text:
    Christopher WILSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01752-COA.
    Court of Appeals of Mississippi.
    May 15, 2007.

      David L. Tisdell, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Christopher Wilson was convicted of murder and sentenced to life imprisonment. On appeal, Wilson argues that: (1) the trial court erred in allowing evidence of prior bad acts of the defendant; (2) the trial court failed to apply the Weathersby rule; (3) the verdict was against the overwhelming weight of the evidence; and (4) the elements of murder were not supported by sufficient evidence. We find no error and affirm.

FACTS

¶ 2. Wilson was indicted for the murder of Ulanda Brown. During the trial, Wilson did not take the stand to testify, but a large portion of the evidence of the shooting came from his account of the incident made to police. This account was derived from several different statements Wilson made to Investigator Romelle Matthews.

¶ 3. On June 19, 2004, Wilson and Ulanda Brown were at their home in Clarksdale. A shotgun discharged fatally striking Brown in the side. Wilson told Investigator Matthews that it was an accident that gun discharged and that the shotgun was not supposed to be able to fire because it was broken. When asked exactly what happened, Wilson told Investigator Matthews that he was showing Brown how to use the gun so she would no longer be afraid of it. Wilson stated that this demonstration occurred after they had gotten out of the bed and Brown was getting ready for work. Investigator Matthews testified that Wilson’s description of where Brown was physically located when the shotgun discharged was inconsistent with Wilson’s other statements. At one point, Wilson told Investigator Matthews that the gun discharged while she was on the bed. He also told Investigator Matthews that she was standing at the dresser combing her hair when the gun discharged.

¶ 4. Investigator Matthews asked Wilson why he loaded the shell into the gun if he was just showing her how use the shotgun. Wilson replied that he did not know and just kept saying it was an accident. When asked why he even had a shotgun, Wilson stated that he had a general fear of people, and he would use it to intimidate others.

¶ 5. Investigator Matthews questioned Wilson about his relationship with Brown. At first Wilson said that they were very happy together. Later, Wilson stated that they had been having problems and that she was thinking about leaving him. Wilson also told Investigator Matthews that he saw the application for an apartment lease on the dresser the morning of the shooting.

¶ 6. In addition, the State offered the testimony of several of Brown’s friends and two expert witnesses. Steve Byrd was offered by the State as a firearms expert. Byrd testified that he was unable to get the shotgun to fire in its present condition, but he stated that it could be possible with enough torque to still fire the shotgun. When presented with a hypothetical question, Byrd testified that it could have been possible for Wilson to fire the shotgun and then break it. Dr. Stephen Hayne also testified about the entrance wound that Brown received and her cause of death.

¶ 7. For his defense, Wilson did not testify, but offered two witnesses. Ellis Wilson Barber corroborated Wilson’s story that the shotgun was broken prior to it discharging on June 19th. Barber testified that the shotgun was broken at the time they found it at Wilson’s mother’s house. Craig Harris, a record producer, also testified that he had received a letter and a demonstration tape from Wilson. Wilson sent these materials in an effort to receive a recording contract from Harris’s recording company.

¶ 8. The jury returned a verdict of guilty for the murder of Brown. Wilson’s motion for judgment notwithstanding the verdict was denied.

ANALYSIS

I. The trial court erred in allowing in prior bad acts of the defendant

¶ 9. Wilson’s first issue concerns the evidence of prior bad acts. Wilson claims that the trial court erred when it admitted evidence of a prior shooting and Wilson’s rap lyrics about the prior shooting. Generally, evidence of a crime other than the one for which the accused is being tried is not admissible. Ballenger v. State, 667 So.2d 1242, 1256 (Miss.1995) (citing Duplantis v. State, 644 So.2d 1235, 1246 (Miss.1994)). However, Rule 404(b) of the Mississippi Rules of Evidence allows prior bad acts to be admitted to show intent and absence of mistake, among other things. In addition, the evidence must pass through the filter of Rule 403 of the Mississippi Rules of Evidence. It requires that if the prejudicial effect of the evidence substantially outweighs the probative value, then the evidence should be excluded. M.R.E. 403. “The standard of review regarding the admission or exclusion of evidence is abuse of discretion.” Palmer v. State, 939 So.2d 792, 794(¶ 4) (Miss.2006) (citing Jones v. State, 904 So.2d 149, 153(¶ 11) (Miss.2005)).

¶ 10. Did the trial judge abuse his discretion in allowing evidence of prior bad acts for a limited purpose? This question was addressed prior to the trial in a motion in limine. The defense requested that any evidence of a prior shooting of Brown, by Wilson, be excluded from the trial as an inadmissible prior bad act. The State argued that it would offer such evidence to show absence of mistake or accident. The trial judge denied the motion in limine and allowed the evidence of the prior shooting to come in for the limited purpose of absence of mistake or intent. During the trial, when the evidence was presented to the jury, the trial judge instructed the jury that “evidence of the defendant shooting the deceased on a previous occasion may not be considered by you as evidence that he committed the crime with which he is now charged. It may, however, be considered for the limited purpose of showing absence of mistake or accident.”

¶ 11. The State cites us to Readus v. State, 272 So.2d 659, 661 (Miss.1973). In Readus, a child of the deceased testified on direct examination that the defendant had previously shot his mother prior to the day of the fatal shooting. Id. The trial court, during cross-examination, held that the testimony of the prior shooting was inadmissible. Id. The defense then made a motion for a new trial, which the trial court denied. Id. The defendant was later convicted of murder. Id. at 659. On appeal, the supreme court held that the evidence of the prior shooting was admissible. Id. at 661. After addressing the relevant case law and noting that the general rule requires the exclusion of prior bad acts, the supreme court stated, “[t]he prior shooting incident in this case is an exception to the general rule and would tend to show the intent of the appellant and absence of accident in the shooting which caused the death of [the victim].” Id.

¶ 12. Readus is instructive to us here. In Readus and in this case, the State sought to introduce evidence of a prior shooting of the victim when the defendant was claiming accident as the cause of a later fatal shooting. Also, the probative value of the prior shooting was not substantially outweighed by its prejudicial effect. Here, the trial court even gave the proper limiting instruction when evidence of the prior shooting was introduced. Accordingly, we find that the trial court did not abuse its discretion in allowing evidence of a prior shooting of Brown to be presented to the jury for the limited purpose of showing absence of mistake or accident.

¶ 13. Wilson also argues that evidence of his prior abuse of Brown should have been excluded at trial, but was allowed over his objection. The only objection in the record on this issue was based on hearsay, which was sustained. Since objections must be specific in nature, the issue was never properly brought before the trial court. “In order to preserve an issue for appeal, counsel must object. The failure to object acts as a waiver.” Carr v. State, 873 So.2d 991, 1004(¶ 35) (Miss.2004) (citing Oates v. State, 421 So.2d 1025, 1030 (Miss.1982)). Since there was no objection in regard to the evidence of previous abuse, that issue is not properly before us.

¶ 14. The trial court did not commit error in allowing evidence of prior bad acts to be presented to the jury for the limited purpose of determining intent or lack of mistake.

II. The trial court failed to apply the Weathersby Rule

¶ 15. Next, Wilson argues that since he was the only eyewitness to the shooting that his version of the event, if reasonable, must be accepted as true unless substantially contradicted by a credible witness testifying for the State or by physical facts of common knowledge. Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933). The Weathersby rule is a guide to help determine if a defendant is entitled to a directed verdict. Blanks v. State, 547 So.2d 29, 34 (Miss.1989).

¶ 16. We look to determine whether there was credible evidence that contradicted Wilson’s account of the shooting. Wilson stated that the gun discharged when Brown was fixing her hair in front of the dresser. In a separate interview, Wilson provided an inconsistent statement when he stated that the gun discharged when Brown was sitting on the bed brushing her hair. There was also a contradiction in the accompanying physical evidence. First, the statement that Brown was standing when she was shot was contradicted by the testimony of Dr. Stephen Hayne, the State’s medical expert. He testified that the shotgun was fired at a forty degree downward angle. If they were standing next to each other, the entry of the gunshot would have been more perpendicular with very little downward angle. Here, the physical evidence suggests that the gunshot occurred while Wilson was standing over her, and not when he was standing next to her while she was at the dresser getting ready for work.

¶ 17. The second statement was also contradicted by the physical evidence. Wilson also stated that Brown was sitting on the bed when the shotgun discharged. While this may be consistent with the angle at which she was shot, no blood appeared on the bed, except for splatters along the bottom of the bed. This contradiction is shown by the pictures of the crime scene introduced at trial and by the responding officers’ testimony. It is a reasonable inference that blood spatters would have appeared on the bed if she were sitting on it at the time the shotgun discharged.

¶ 18. This Court concludes that the evidence presented “materially contradicted” each of Wilson’s versions of the event. Turner v. State, 796 So.2d 998, 1002(¶ 14) (Miss.2001). In Turner, the testimony of Dr. Hayne regarding the trajectory of the shotgun blast materially contradicted Turner’s version of the events, and the supreme court held as a result that the matter of the defendant’s guilt was proper for the jury to consider. Id. Likewise, it was proper for the trial court here to deny a request for a directed verdict in accordance with the Weathersby rule.

III. The verdict ivas against the overwhelming weight of the evidence

¶ 19. Wilson alleges that the verdict of the jury was against the overwhelming weight of the evidence and a new trial should be granted. This Court will “only disturb a jury verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). To determine if this has occurred, the Court will look at the evidence in a light most favorable to the verdict. Id. If the verdict is against the overwhelming weight of the evidence, the proper remedy is to grant a new trial. Id.

¶ 20. Viewing the evidence in the light most favorable to the verdict, we cannot say that the verdict is unconscionable. Wilson admitted to police that he shot Brown. He only challenged the finding that it was not an accident. The State, through the friends of Brown, presented evidence that Wilson was very possessive and that Brown was trying to secretly find a different place to live. The day of the shooting, police found an application for an apartment lease on the dresser near where Brown was found. When questioned whether he and Brown were having problems, Wilson stated that they were very happy. Later in the interview, he said that they were having some relationship problems.

¶ 21. These were not the only inconsistent statements that Wilson gave to the police. He also gave inconsistent statements regarding how Brown was shot. At one point, Wilson told police that Brown was sitting on the bed when she was shot, while he also stated that she was standing up when the gun discharged. As mentioned before in the Weathersby analysis above, each of these statements was further contradicted by the physical evidence testified to by Dr. Hayne and the responding officers. Also, Wilson could not explain to police why he loaded the shell into the shotgun when he was merely demonstrating how the shotgun worked. As to Wilson’s contention that the shotgun should have never been able to fire, Steve Byrd, the State’s firearm expert, testified that it would have been easy for Wilson to have fired the weapon and then struck it against an object to render it inoperable.

¶ 22. After reviewing the evidence, we cannot say that this verdict is so contrary to its weight that allowing it to stand would sanction an unconscionable injustice. Id. Therefore, this issue is without merit.

TV. Whether there is insufficient evidence to support the conviction for murder

¶ 23. Wilson also challenges the sufficiency of the evidence in support of the element of deliberate design. To evaluate whether the evidence is sufficient, this Court must determine if any evidence may “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty.” Edwards v. State, 469 So.2d 68, 70 (Miss.1985) (citing May v. State, 460 So.2d 778, 781 (Miss.1984)) (emphasis added). If reasonable jurors could have reached different conclusions with respect to every element of the offense, the evidence will be considered sufficient. Bush, 895 So.2d at 843(¶ 16) (citing Edwards, 469 So.2d at 70).

¶ 24. Wilson’s contention is that the evidence is insufficient to support the element of deliberate design. He does not challenge the fact that he shot Brown. Instead, he claims that the shooting was an accident. Therefore, we will determine if there is evidence sufficient to allow reasonable jurors to have reached different conclusions as to deliberate design.

¶ 25. Wilson was shown to be a very possessive boyfriend through the testimony of Brown’s friends. On the day that Brown was shot, the police found an application for an apartment lease on the dresser. Brown’s friends testified that they had looked for a separate apartment for Brown without telling Wilson. The physical evidence of the crime scene suggested the shooting occurred in a way different from either of Wilson’s recollections. The downward angle of the gunshot wound showed that Brown was shot from above. In addition, Wilson never could explain why he loaded a shell into the shotgun when he was demonstrating how to use the shotgun. Wilson urges this Court that the fact that the gun would not fire when Steve Byrd tested it shows that this was an accident. Byrd stated, when given the hypothetical, that it would have been very easy for Wilson to fee the shotgun and then break it immediately afterward.

¶ 26. From the preceding evidence, a reasonable juror could conclude that Wilson found the application for an apartment lease and became angry. He then went and retrieved the shotgun and loaded it. Then he pointed the shotgun at Brown and fired it. After discharging the shotgun, Wilson then struck the shotgun against an object to make it inoperable. With this evidence, we find that a reasonable juror could have concluded that the State proved all the elements of murder. Bush, 895 So.2d at 844(¶ 17). Therefore, this allegation of error is without merit, and we affirm.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. KING, C.J., CONCURS IN RESULT ONLY.


source: Caselaw Access Project

author: CHANDLER, J.,

license: Public Domain

text:
    Sylvia A. WALTERS, Appellant v. Morris Moore WALTERS, Appellee.
    No. 2005-CP-01731-COA.
    Court of Appeals of Mississippi.
    April 17, 2007.

      Sylvia A. Walters, Appellant, pro se.
    Michael Duane Mitchell, attorneys for appellee.
    Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. The wife whose husband was awarded a divorce on the basis of desertion is appealing the judgment. This Court lacks jurisdiction over this appeal because the chancellor’s entry of judgment as to fewer than all of the claims before the court did not comply with the requirements of Mississippi Rule of Civil Procedure 54(b). Therefore, we dismiss this appeal.

FACTS AND PROCEDURAL HISTORY

¶ 2. A full recitation of the facts is not necessary as we find that we lack jurisdiction. However, a brief synopsis is in order to understand how we came to this point. The appeal involves the disintegration of the short, tumultuous marriage between Sylvia A. Walters and Morris Moore Walters. The Walters were married on May 11, 2000. Each had been married before and had children from the earlier marriages. They had no children together. Each party made various accusations against the other and Morris subsequently left the marital home on August 28, 2001. After that date, the parties did not continuously live together as husband and wife but Morris regularly stayed with Sylvia in the marital home and the parties maintained a physical and emotional relationship. On June 2, 2003, Sylvia insisted that Morris return to the home, whereupon Morris removed his belongings from the marital home and did not return.

¶ 3. On June 25, 2003, Morris filed for a divorce. Morris worked as a justice court clerk of Jones County and had an employment history in Jones County law enforcement. Chancellor Frank McKenzie re-cused himself and Chancellor Jerry Mason was appointed to hear the case. After a two-day trial, Chancellor Mason found in an order entered August 20, 2004, that Morris had failed to prove habitual cruel and inhuman treatment, his single ground for divorce. A twenty-one-page memorandum opinion accompanied the judgment.

¶ 4. On September 1, 2004, Sylvia filed a complaint for separate maintenance. Morris filed an answer and cross-complaint for divorce asserting the ground of desertion. Once again a special chancellor, Chancellor Larry Buffington, was appointed to hear the case. A trial was held on January 18, 2005, in which eleven witnesses testified. Sylvia represented herself as she has done throughout the litigation while Morris had retained counsel.

¶ 5. On July 7, 2005, the court entered a document styled, “Final Judgment of Divorce.” In this judgment, Chancellor Buffington found that Morris had proven constructive desertion and awarded Morris a divorce absolute from Sylvia. The last sentence of the order stated, “This divorce shall not be final until such time as the Court has had a hearing to make an equitable distribution of the property of the parties.” Sylvia then filed a motion for relief from judgment, or in the alternative, a new trial.

¶ 6. On August 25, 2005, the chancellor heard Sylvia’s motion. After argument, the judge overruled the motion. It is at this point when things went awry as shown from the following record excerpts.

JUDGE BUFFINGTON: Now having said that, we need to set a trial date for the division of the marital property so that—
MS. WALTERS: I’m going to do a Notice of Appeal, Your Honor.
JUDGE BUFFINGTON: I understand that, but until such time as said in the order, if you’ll read it, a divorce is not final until such time as I have divided up the marital property so that you can go up one time on everything. And so therefore — and I say that. I may be wrong in that. In irreconcilable differences that may be the statute. I will actually let you go ahead and appeal.
MS. WALTERS: I’m going to, Your Honor.
JUDGE BUFFINGTON: You can file your Notice within 10 days. I’ll make this a Rule 54 final judgment as to the divorce and if this Court is mistaken the Supreme Court can reverse me and if not at the time it comes back down we can divide up the marital property then. I don’t think there was a whole bunch you were arguing over to begin with anyway. So your motion has been overruled. You, of course, will have the statutory time within which to file your Notice of Appeal and pay for costs and notify the court reporters of those things.
MS. WALTERS: On my motion for sanctions — I’ll let it go. I’ll withdraw it.
JUDGE BUFFINGTON: If you’ll prepare an order, Ms. Pacific [attorney for Morris] and send it to her and I will sign it so her appeal process can get started.

Then the hearing ended. The same day, Sylvia filed her notice of appeal from the July 7, 2005 judgment. That appeal is now before this Court.

¶ 7. During the pendency of the appeal, on November 30, 2005, the court entered a “Final Judgment of Divorce,” granting Morris a divorce from Sylvia on the ground of constructive desertion. The judgment stated that

this court during a hearing and at the conclusion thereof was inclined not to issue a final judgment of divorce until such time as the property had been divided, however, after having been informed by Sylvia A. Walters that she wished to appeal the finding of the granting of the divorce, and in order to allow her to perfect her appeal on those grounds, the court allowed for a final judgment of divorce to be entered so that Sylvia A. Walters could perfect her appeal.

The judgment further stated that, “upon completion of the appeal, and pending the outcome of said appeal to the Appellate Court of the State of Mississippi, this court shall conduct a hearing as to the distribution of marital property.”

LAW AND ANALYSIS

¶8. Though the issue has not been raised by the parties, this Court is required to note its own lack of jurisdiction. Michael v. Michael, 650 So.2d 469, 471 (Miss.1995). “Generally, only final judgments are appealable.” M.W.F. v. D.D.F., 926 So.2d 897, 899(¶ 4) (Miss.2006). A final, appealable, judgment is one that “adjudicares] the merits of the controversy which settles all issues as to all the parties” and requires no further action by the lower court. Banks v. City Finance Co., 825 So.2d 642, 645(¶ 9) (Miss.2002). There are many reasons for this rule.

The final judgment rule minimizes appellate court interference with trial court proceedings, reduces the ability of a litigant to wear down an opponent with a succession of time-consuming appeals, ... and enables the appellate court to view the case as a whole and avoid questions which may be mooted by the shifting fortunes of trial combat.

Nygaard v. Getty Oil Co., 877 So.2d 559, 561(¶ 11) (Miss.Ct.App.2004) (quoting Luther T. Munford, Mississippi Appellate Practice § 6.1 (2001)).

¶ 9. A judgment granting a fault-based divorce is a non-final order if issues attendant to the fault-based divorce, such as property division, remain before the lower court. M.W.F., 926 So.2d at 899(114); Scally v. Scally, 802 So.2d 128, 130(¶ 10) (Miss.Ct.App.2001). When the July 7, 2004 judgment of divorce was entered, the issue of property division remained before the chancery court. Therefore, the July 7, 2004 judgment was not a final judgment from which an appeal could be taken. M.R.C.P. 58.

¶ 10. An exception to the final judgment rule is found in Rule 54(b) of Mississippi Rules of Civil Procedure, which allows the trial court to expressly direct the entry of final judgment as to fewer than all of the claims or parties in an action. Rule 54(b) states:

Judgment upon multiple claims or involving multiple parties. When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

A Rule 54(b) judgment is not an interlocutory order, but is a final judgment. Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 512 So.2d 897, 899 (Miss.1987).

¶ 11. At the hearing on Sylvia’s post-trial motion, the chancellor announced his intention to allow Sylvia to appeal from the judgment of divorce pursuant to Rule 54(b) and directed that Morris’s counsel prepare an order to that effect for the chancellor’s signature. Apparently, that order was the one entered on November 30, 2005, and styled “Final Judgment of Divorce.” As we have held, the July 7, 2005 judgment from which Sylvia took an appeal was a non-final order. We reach the question of whether Sylvia could perfect an appeal from the chancellor’s Rule 54(b) judgment entered during the pendency of her appeal from the non-final judgment. Pursuant to Mississippi Rule of Appellate Procedure 4(b), “[a] notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order is treated as filed after such entry and on the day of the entry.” This Court considers the November 30, 2005 judgment though it was entered during the pendency of Sylvia’s appeal from the non-final judgment of July 7, 2005. M.R.A.P. 4(b).

¶ 12. Like the July 7, 2005 judgment, the November 30, 2005 judgment adjudicated fewer than all of the claims before the court. Therefore, the November 30, 2005 judgment functioned as a final judgment from which a Rule 54(b) appeal could be taken only if the court complied with the requirements of Rule 54(b). M.R.C.P. 54(b). For a judgment adjudicating fewer than all of the claims to be made final and appealable under Rule 54(b), the trial court must make an expressed direction for the entry of final judgment and an expressed determination that there is no just reason for delay. In this case, the chancellor expressly directed the entry of a final judgment, satisfying the first requirement. However, the chancellor never determined that there was no just reason for delay. Because the chancellor failed to make the requisite determination that there was no just reason for delay pursuant to Rule 54(b), the November 30, 2005 judgment was not a final, appealable order. M.R.C.P. 54(b); M.W.F., 926 So.2d at 900(¶ 5). The November 30, 2005 order was interlocutory and Sylvia did not seek permission for an interlocutory appeal. M.W.F., 926 So.2d at 900(¶ 5).

¶ 13. In closing, we note the supreme court’s admonition that the trial court’s authority to enter a Rule 54(b) judgment should be exercised with caution in the interest of sound judicial administration to preserve the judicial policy against piecemeal appeals. Cox, 512 So.2d at 900. “It is incumbent on trial judges and attorneys to recognize that Rule 54(b) judgments must be reserved for rare and special occasions.” Id. If there is nothing about a case that merits a Rule 54(b) judgment, this Court will dismiss the appeal despite a trial court’s mechanical use of the “no just reason for delay” language. Id. at 900-01.

¶ 14. Lacking jurisdiction, we dismiss this appeal.

¶ 15. THE APPEAL FROM THE JULY 7, 2005 JUDGMENT OF THE CHANCERY COURT OF JONES COUNTY IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


author: KING, C.J.,

text:
    Jesse Carmichael GALLEGOS and Greg V. Gallegos, Appellants v. MID-SOUTH MORTGAGE & INVESTMENT, INC., David C. Hand, Randall K. Fisher and R.G. Thomas, Appellees.
    No. 2005-CA-01521-COA.
    Court of Appeals of Mississippi.
    May 8, 2007.

      Daniel M. Czamanske David A. Burns, attorneys for appellants.
    Gary B. Jones, Meridian, attorneys for appellees.
    David C. Hand, pro se.
    Randall K. Fisher, pro se.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   KING, C.J.,

for the Court.

¶ 1. Jesse Carmichael Gallegos and Greg V. Gallegos appeal the chancellor’s decision to grant the appellees’ Mississippi Rule of Civil Procedure 41(b) motion to dismiss following the presentation of the Gallegos’ case-in-chief at trial. The Gallegos’ sole issue on appeal is whether the chancellor erred in granting the motion to dismiss. Finding no error, this Court affirms.

FACTS

¶ 2. Jesse Gallegos is a bookkeeper with a local bank. At the time of the trial, she had twenty years’ experience at that bank, in which she did general bookkeeping and where she had previously worked as a key punch operator. Her husband, Greg Gallegos, was retired from the military and worked for a local aviation company. Jesse owned four adjoining parcels of land in Lauderdale County, which totaled more than forty-nine acres. Three of the parcels were inherited from her mother, and she had purchased the last one herself.

¶ 3. On June 29, 2000, the Gallegoses were facing foreclosure on a property that is not the subject of this action. The foreclosure was scheduled for the following day — June 30, 2000. Jesse had a chance encounter with Appellee R.G. (Gail) Thomas on June 29 and mentioned that she needed some money to stop the foreclosure. Thomas suggested a timber option on the four parcels of land that Jesse owned and which were not subject to the foreclosure scheduled for June 30, 2000. Thomas then approached Appellees David Hand and Randall Fisher, who were partners in a company called Mid-South Mortgage <& Investment, Inc., to see if they were interested in the option. Thomas had served as an agent for Hand and Fisher prior to this date and ordinarily received a finder’s fee for her services. Hand and Fisher agreed to supply the money to purchase the timber option.

¶4. That afternoon, Jesse and Thomas signed a fifteen-day timber option contract on two of the four parcels. Jesse received $3,000 for the option, which was used to stop the foreclosure on the unrelated property. According to the contract, Jesse would receive an additional $22,000 if Thomas “or her assigns” decided to exercise the option. On June 30, 2000, Jesse and Thomas signed another option contract. The new contract provided for a timber option on all four parcels of property, as opposed to the two parcels named in the first contract, and extended the expiration date of the option from fifteen days to two years.

¶ 5. Shortly thereafter, Hand and Fisher viewed the property with Greg Gallegos. After seeing the property but without having a professional estimate — known as a “timber cruise” — done, Hand and Fisher decided to exercise the option. They arranged for payment of the additional $22,000 to Jesse. After Hand and Fisher, through their company Mid-South Mortgage & Investments, Inc., paid the back taxes and other outstanding liens on the property, Jesse received a check for $7,575. Jesse executed the timber warranty deed to “R.G. Thomas and/or his [sic] assigns” on July 13, 2000.

f 6. Hand and Fisher immediately began plans to remove the timber from Jesse’s land. They quickly discovered, however, that the value of the timber was far less than the $25,000 that they had paid for it. They expressed their displeasure to Thomas, who in turn contacted Jesse and informed her that Hand and Fisher were unhappy with the deal and wished to speak with her. Jesse testified that Thomas came to her house “and she had a piece of paper and she had 35,000 some dollars and she said you have got to pay this back. This is what you owe and this — and you have got to find a way to pay this back.”

¶ 7. Jesse met with Hand and Fisher at Mid-South’s office on July 27, 2000. Jesse testified that Hand and Fisher “told me that I had to put my land up for the amount of money that I got. That they had to have their money back and I had to put my land up.” Jesse testified further that she “did feel that the money should be paid back. I didn’t feel that I had misrepresented the land lines or the timber, but I did get the $25,000.” At that meeting, Hand and Fisher, acting as Mid-South, provided her with the option to sign a promissory note for $35,733. Jesse declined to sign the note, stating that she needed to discuss the matter with her husband. Two days later, she signed the promissory note and executed a deed of trust to Mid-South and Fisher naming three of the four parcels cited in the timber deed as security for the promissory note.

¶ 8. Both Hand and Fisher testified that when Jesse signed the promissory note, she received $10,000 in cash. The chancellor heard testimony regarding the discrepancy between the first payment to Jesse, which was made by check, and this second, larger payment, which Hand and Fisher stated was made in cash, with only the promissory note as a receipt for the payment. Hand testified that he made the payment in cash because that was how Jesse wanted it done. He denied that to make such a large payment in cash was a bad business practice, stating, “I can say this, that is not the first time I have done cash deals before.” Fisher also testified that he did not believe that making such a payment in cash would necessarily present a problem and cited the promissory note as the receipt. Jesse denied receiving this money, but she could not explain why she signed a promissory note for $10,738 more than the value she had received from the timber option contract, other than to state that Hand and Fisher promised her a “breakdown” of the amounts borrowed but never provided her with that information.

¶ 9. Following the signing of the promissory note on July 29, 2000, Jesse never made a payment on the note. On November 1, 2000, a corrected deed of trust, signed by Jesse, naming Mid-South and Fisher as recipients of the deed, and naming all four of the parcels at issue, was recorded. Jesse contends that her signature on this deed of trust is forged. On November 3, 2000, Mid-South and Fisher began foreclosure proceedings on Jesse’s property.

¶ 10. Soon after Mid-South and Fisher initiated the foreclosure proceedings, William J. Ross approached Jesse and offered to loan her the money to stop the foreclosure proceedings in exchange for a deed of trust on the four parcels. On November 27, 2000, Thomas conveyed her interest in the timber deed to Ross. That same day, Jesse executed a warranty deed to Ross, and Ross executed an option to purchase the four parcels for $42,500. Once Ross had received the warranty deed, he then executed a quitclaim deed to Thomas, which gave her a one-third interest in the four parcels.

¶ 11. On November 29, 2000, Jesse signed a promissory note for $10,000 to Ross, with the understanding that Ross would use the money to save her property from foreclosure. Jesse testified that she never received the money, but she executed a deed of trust to Ross as security for the note. Ross then gave Jesse an option to purchase the property for $70,000. Under the terms of that option contract, if Jesse opted to re-purchase her property, Ross would convey the property to her free and clear of the timber warranty deed.

¶ 12. Jesse then executed a second warranty deed to Ross and entered into a contract with Ross whereby she agreed to give Ross any proceeds that she received from the foreclosure, up to $100,000, if Ross was the successful bidder at foreclosure. Jesse then executed an escrow agreement that stated Ross’ first warranty deed would not be filed unless she failed to re-pay the $10,000 promissory note in ninety days. Despite the escrow agreement, however, Jesse immediately wrote a note in longhand that delivered the first warranty deed to Ross.

¶ 13. The foreclosure did occur at the end of November 2000. Appellee Fiddle, Inc., a company owned by Ross, bought the property for $45,726.22. Jesse testified that on the day of the foreclosure sale, she was in Ross’ office. She further testified that she believed that he was using the $10,000 from the promissory note she signed with him to redeem the property and stop the foreclosure sale. On December 22, 2000, Jesse executed a quitclaim deed to Fiddle, Inc. In that deed, which Jesse testified that Ross requested she execute, the parties agreed to hold each other harmless for any actions taken by either party with respect to the foreclosure on the four parcels of property. According to the record, Ross was still the owner of the property at the time of the trial.

STANDARD OF REVIEW

¶ 14. The standard of review for a motion to dismiss under Mississippi Rule of Civil Procedure 41(b) is as follows:

In considering a motion to dismiss, the judge should consider “the evidence fairly, as distinguished from in the light most favorable to the Plaintiff,” and the judge should dismiss the case if it would find for the defendant. “The court must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiffs evidence were all the evidence offered in the case.” “This Court applies the substantial evidence/manifest error standards to an appeal of a grant or denial of a motion to dismiss pursuant to M.R.C.P. 41(b).”

Alexander v. Brovm, 793 So.2d 601, 601 (¶ 6) (Miss.2001) (citing Stewart v. Merchants Nat’l Bank, 700 So.2d 255, 258 (Miss.1997)).

¶ 15. With regard to this Court’s review of the chancellor’s findings of fact, “[t]his Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Sanderson v. Sanderson, 824 So.2d 623, 625-26(¶ 8) (Miss.2002).

ANALYSIS

¶ 16. In her order, the chancellor found that Jesse and Greg Gallegos failed to meet the burden of proof regarding several of the allegations in their complaint. Specifically, the chancellor found that the evidence did not support a finding that Jesse did not receive $10,000 from Mid-South following the signing of the promissory note on July 29, 2000. She also failed to prove her claim that the corrected deed of trust adding the fourth parcel of land and recorded on November 1, 2000, was a forgery. The chancellor held that Jesse’s testimony was uncorroborated and that she had failed to introduce expert testimony to establish that the signature on the deed was not hers.

¶ 17. The Gallegos’ complaint asserted both fraud and intentional misrepresentation. The elements of fraud are as follows:

(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of the truth; (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated; (6) the hearer’s ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; and (9) his consequent and proximate injury.

Hobbs Auto., Inc. v. Dorsey, 914 So.2d 148, 153(¶ 18) (Miss.2005) (citation omitted). The elements of intentional misrepresentation are identical to the elements of fraud. Southeastern Med. Supply v. Boyles, Moak & Brickell Ins., 822 So.2d 323, 330(¶ 29) (Miss.Ct.App.2002). The elements of fraud and intentional misrepresentation must be proven by clear and convincing evidence. Hobbs, 914 So.2d at 160(¶ 61).

¶ 18. With regard to the elements of fraud, the chancellor found that while Hand and Fisher “certainly wanted Mrs. Gallegos to bail them out of a bad timber deal by signing the promissory note and deed of trust,” there was no evidence that they made false statements to her to persuade her to return their money. Additionally, the chancellor found that Jesse “did certainly feel that she owed them some money by virtue of the fact that she had received $25,000.”

¶ 19. The Court agrees that the evidence presented during the Gallegos’ casein-chief failed to prove that Hand, Fisher, or Thomas made a false representation to Jesse. Jesse’s vague statements that she “had to put my land up for the amount of money that I got” and that she “had to get the money up some kind of way” fail to prove by clear and convincing evidence that Hand, Fisher, or Thomas made a false representation to Jesse Gallegos concerning her obligation, if any, to undo the timber option contract.

¶ 20. Failure to prove any of the elements of fraud or intentional misrepresentation was grounds for the chancellor to grant the Rule 41(b) motion to dismiss. Accordingly, the Court affirms the chancellor’s decision to grant the motion to dismiss on the counts of fraud and intentional misrepresentation.

¶ 21. As to the charge of conspiracy alleged in the complaint, the chancellor found that Jesse and Greg Gallegos presented no proof that Hand, Fisher, and Thomas conspired to defraud Jesse or take her property. Further, the chancellor found that there was no proof of an act of fraud or damages. Finally, the chancellor found that there was no evidence that the alleged conspirators knowingly entered into “a common plan” with the intent “to further its common purpose.”

¶ 22. Conspiracy requires a finding of “(1) two or more persons or corporations; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result.” Gallagher Bassett Servs. v. Jeffcoat, 887 So.2d 777, 786(¶ 36) (Miss.2004). It is imperative that a plaintiff asserting a cause of action for conspiracy prove that the parties had an agreement, either to accomplish an unlawful purpose or to accomplish a lawful purpose unlawfully. Id.

¶ 23. In the case sub judice, the chancellor found that the Gallegoses presented no evidence of an agreement among the three defendants and no evidence of an unlawful purpose or an agreement to undo the timber contract unlawfully. Based on the Court’s review of the evidence under the substantial or manifest error standard, the Court must affirm the chancellor’s decision. The evidence did not prove that Hand, Fisher, and Thomas — or any combination of the three — conspired to take Jesse Gallegos’ property. To the contrary, Jesse’s own testimony states that the timber contract arose over a chance encounter. Additionally, the evidence does not show that there was an agreement to take the property, only an attempt on the part of Hand and Fisher to undo a bad business decision. When Hand and Fisher did have the property, they foreclosed on it after Jesse failed to meet her obligations under the terms of the promissory note.

¶ 24. Finally, the chancellor determined that there was no conspiracy between Hand and Fisher to defraud Jesse with regard to the promissory note. The chancellor concluded that Jesse did, in fact, receive $10,000 from the signing of the promissory note. As the chancellor noted in her ruling, “I find it very difficult to believe that Mrs. Gallegos would have gone into Mid-South and signed that document without receiving some additional monies.... ”

¶ 25. It is the province of the chancellor, sitting as the finder of fact, to weigh the testimony of witnesses and to draw conclusions regarding the credibility of witnesses, and those findings will not be disturbed unless unsupported by substantial evidence or manifestly erroneous. See Owen v. Owen, 928 So.2d 156, 168(¶ 35) (Miss.2005). Hand and Fisher testified that Jesse did receive $10,000 after signing the promissory note, and Jesse testified that she did not receive any money. Jesse also testified that she had twenty years experience at a bank, where she worked as a bookkeeper, a fact which likely impacted the chancellor’s conclusions on this issue. Additionally, no documentary evidence, other than the promissory note itself, was presented to the chancellor. On the basis of this evidence, this Court cannot find that the chancellor committed manifest error in believing the testimony of Hand and Fisher. Accordingly, the chancellor did not err in concluding that there was no conspiracy to take money from Jesse by having her sign the $35,733 promissory note.

¶ 26. The chain of events in this case, the testimony regarding the Gallegos’ persistent money troubles, and Jesse’s accusations of forgery and fraud with regard to the $35,733 promissory note raise serious questions for this Court. Although the chancellor concluded that Hand and Fisher simply were seeking to reverse a bad business decision, this Court perceives that Hand and Fisher, and possibly Thomas, were operating with more sinister motives following their discovery of the lack of value in the timber on Jesse’s property. Had this Court been the court of first impression in this case, the Court would, at the very least, have determined that the Gallegos’ case-in-chief raised questions that required the Appellees’ to present evidence in defense of their actions. However, the Court is required to follow the applicable standard of review. In this case, the Court is limited to a substantial evidence/manifest error standard, with regard to both the chancellor’s findings of fact and the chancellor’s decision to grant the Rule 41(b) motion to dismiss. Under that limited standard, the Court cannot say that the chancellor erred in granting the motion or that her findings of fact are not supported by the evidence.

¶27. Because the chancellor’s conclusion that Jesse and Greg Gallegos failed to meet their burden of proof on their causes of action for fraud, intentional misrepresentation, and conspiracy is supported by substantial evidence and is not manifestly erroneous, this Court affirms the chancellor’s decision to grant the defendants’ motion to dismiss under Mississippi Rule of Civil Procedure 41(b). The decision of the chancellor is affirmed.

¶ 28. THE JUDGMENT OF THE CHANCERY COURT OF LAUDER-DALE COUNTY IS AFFIRMED. ALL COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . William J. Ross and his companies, Fiddle, Inc. and Topton Air Estates, Inc., were named in the complaint as defendants. It appears from the docket sheet that these defendants were dismissed by an order granting them summary judgment, but those documents are not included in the record before this Court. Counsel for Jesse and Greg Gallegos also alluded to the dismissal of Ross and his companies during the course of the trial.


text:
    William KINGSTON, Appellant v. SPLASH POOLS OF MISSISSIPPI, INCORPORATED and Donna N. Parker Withrow, Jointly and Severally, Appellees.
    No. 2005-CA-02257-COA.
    Court of Appeals of Mississippi.
    May 8, 2007.
    T. Jackson Lyons, Jackson, attorney for appellant.
    Mona Vidin Patel, James D. Holland, Jackson, attorneys for appellees.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. William Kingston filed suit against Splash Pools of Mississippi, Inc. and its corporate manager after one of its employees allegedly attacked and beat Kingston while Kingston was a patron. Kingston failed to serve process on the defendants within the 120-day time period prescribed by Mississippi Rule of Civil Procedure 4(h). The defendants moved to dismiss the suit, and the lower court granted the motion due to untimely service of process. Kingston appeals, arguing:

I. WHETHER THE TRIAL COURT ERRED BY BASING ITS DISMISSAL ON THE FACT THAT KINGSTON DID NOT REQUEST ADDITIONAL TIME TO SERVE THE DEFENDANT.
II. WHETHER THE TRIAL COURT ERRED BY NOT CONSIDERING KINGSTON’S ATTORNEY’S ASSERTIONS THAT DILIGENT EFFORTS WERE MADE TO SERVE THE DEFENDANTS.

FACTS

¶2. Kingston filed a complaint against Splash Pools on December 6, 2002. He alleged that the corporate defendant, Splash Pools, and its officer, Donna N. Parker Withrow (“Withrow”), were negligent in failing to protect Kingston, an invitee, from one of Splash Pool’s employees, John Withrow (“John”). Withrow was the corporate agent for service of process for the company. She was also married to John’s father. John allegedly attacked Kingston while Kingston was in the store and beat him. Negligent hiring and retention claims were also included in the cause of action.

¶ 3. During the year and eleven months between the initial filing of the complaint and the final receipt of summons, John and his father both passed away and Splash Pools dissolved as a corporate entity. Withrow remarried and changed her name and address during this period. Summons for Withrow was issued on September 10, 2004, but personal service was not obtained on her until November 9, 2004. Splash Pools and Withrow answered on December 8, 2004, and raised the affirmative defense that process and service of process were insufficient. They claimed that Kingston had not met the 120-day time limit, had not properly asked for any additional time extensions, and that the case should therefore be dismissed.

¶ 4. A hearing was subsequently held in which Kingston asserted that diligent efforts were made within those two years to find Splash Pools and Withrow. Kingston cited difficulties because Splash Pools closed its storefront business, did not leave a forwarding address, and then dissolved the corporation entirely. Kingston also noted that John was deceased, and that Withrow had changed her name. However, no specifics as to how, when and where the process server made attempts to effectuate service of process were given to the court, and an affidavit from the process server was not provided to show any sort of detail that could have demonstrated good cause. Thus, the lower court dismissed the case without prejudice. At the time of dismissal, the statute of limitations for the claims had expired.

STANDARD OF REVIEW

¶ 5. A trial court’s finding of fact on the existence of good cause for the delay in service of process has been deemed “a discretionary ruling ... and entitled to deferential review” on appeal as to whether “the trial court abused its discretion and whether there was substantial evidence supporting the determination.” Rains v. Gardner, 731 So.2d 1192, 1197-98(¶ 19) (Miss.1999).

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED BY BASING ITS DISMISSAL ON THE FACT THAT KINGSTON DID NOT REQUEST ADDITIONAL TIME TO SERVE THE DEFENDANT.

¶ 6. Kingston asserts that the lower court based its ruling on Kingston’s failure to file a motion for additional time or that the court, at the very least, implied that the failure to request additional time was required. Upon a thorough review of the record, we disagree. The lower court found that Splash Pools and Withrow were not timely served with a copy of the summons and complaint as required by Rule 4(h) of the Mississippi Rules of Civil Procedure, and stated in its reasoning that Kingston failed to show good cause for the delay. Rule 4(h) states:

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

Thus, failure to serve process within 120 days will only cause a complaint to be dismissed if the plaintiff cannot show good cause for failing to meet the deadline. The plaintiff bears the burden of establishing good cause. M.R.C.P. 4(h).

¶ 7. Kingston asserts that “Rule 4(h) does not require that a motion for additional time for service of process be filed within 120 days of the filing of the complaint.” Webster v. Webster, 834 So.2d 26, 28(¶ 8) (Miss.2002). Our supreme court has further stated that “although there is no requirement of a motion for additional time, ‘the better method to be utilized in future cases would be for plaintiffs [sic] counsel to seek authority for extensions from the court, rather than unilaterally making this decision himself.’ ” Montgomery v. SmithKline Beecham Corp., 910 So.2d 541, 545(¶ 13) (Miss.2005) (quoting Fortenberry v. Mem’l. Hosp., 676 So.2d 252, 256 (Miss.1996)). In addition, the courts have held that if the plaintiff is unable to meet the 120-day deadline, “a diligent plaintiff should file [a motion for additional time to serve process] within the 120-day time period. Such diligence would support an allegation that good cause exists for failure to serve process timely.” Webster, 834 So.2d at 29(¶ 11).

If 8. The motion for additional time must be filed before the expiration of the 120-day time period. Mitchell v. Brown, 835 So.2d 110, 112(¶ 10) (Miss.Ct.App.2003). Kingston did not file such a request before the 120-day time limit lapsed. The lower court noted Kingston’s failure in reference to the fact that since no motion was filed and no order given to extend the time in which to serve process, then Kingston had the burden of showing good cause for the delay. The lower court further noted that no evidence was presented to the court to establish good cause beyond broad assertions of diligence at the hearing on the motion to dismiss. Therefore, we find nothing in the record to support Kingston’s argument that the lower court either mandated or implied that filing a motion to request additional time was required. Accordingly, Kingston’s first issue is without merit.

II. WHETHER THE TRIAL COURT ERRED BY NOT CONSIDERING KINGSTON’S ATTORNEY’S ASSERTIONS THAT DILIGENT EFFORTS WERE MADE TO SERVE THE DEFENDANTS.

¶ 9. Kingston next argues that the lower court erred by not considering statements made by his attorney in the hearing to dismiss the case. Kingston maintains that his attorney had personal knowledge of where and when the process server attempted service, and the court disregarded those assertions that diligent efforts were made to effectuate service of process.

¶ 10. While Kingston or his attorney may have had personal knowledge of the server’s attempts, the record is void of any detail to support such an assertion. For instance, no dates, times or locations were given to prove that any efforts had been made to serve process on the defendants within the 120-day time period. Likewise, no affidavit from the process server exists to demonstrate if any attempts were made, and the record is void of any returns of the summons originally issued. The only indication in the record which would support a finding that Kingston may have attempted to serve process during that time period was a statement that “some attempts” were made. No further details were given.

¶ 11. Our supreme court has stated that the court “cannot rely solely on an inference based upon the unsworn statement of an attorney made during argument at a hearing without any evidence to support his assertion of fact.” Smith County School Dist. v. McNeil, 743 So.2d 376, 379(¶ 11) (Miss.1999). Thus, some level of detail appears to be required to demonstrate a showing of good cause. A plaintiff attempting to establish good cause must show “at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.” Watters v. Stripling, 675 So.2d 1242, 1243 (Miss.1996) (quoting Systems Signs Supplies v. U.S. Dep’t of Justice, 903 F.2d 1011, 1013 (5th Cir.1990)). A leading treatise has expounded upon what constitutes good cause:

[G]ood cause is likely (but not always) to be found when the plaintiffs failure to complete service in a timely fashion is a result of the conduct of a third person, typically the process server, the defendant has evaded service of the process or engaged in misleading conduct, the plaintiff has acted diligently in trying to effect service or there are understandable mitigating circumstances, or the plaintiff is proceeding pro se or in forma pauperis.

Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1137, at 342 (3d ed. 2000).

¶ 12. Kingston claims that the present case is similar to Bennett v. McCaffrey, 937 So.2d 11, 13(¶ 11) (Miss.2006), in which our supreme court found good cause shown to extend the time permitted for service of process. Bennett involved a personal injury automobile case in which the plaintiff sued the motorist defendant and his insurer. In Bennett, the plaintiff failed to serve process on the defendant within the 120-day time period. Unlike the present case, however, the plaintiffs provided specific dates and information regarding attempts to serve process. In addition, the plaintiffs utilized several different methods of serving process, including service by publication and through the county sheriff, as well as a subpoena to the Commissioner of Insurance in an attempt to locate the defendant’s insurer. The plaintiffs also filed motions to extend the time period for service of process. Id. As noted above, the record before us is void of any similar evidence.

¶ 13. Kingston further asserts that the lower court improperly refused to accept his attorney’s statements as true and, therefore, did not consider them in his determination. Upon a thorough review of the record, we find Kingston’s argument to be without merit.

¶ 14. The lower court stated in its order that the only evidence before the court was the “unsubstantiated oral representations of the Plaintiffs attorney which is not sufficient as a matter of proof as to what attempts were made and when they were made to serve process.” The court did not base its ruling on whether the attorney’s statements were true or false. Rather, the court concluded that a general statement that “some attempts” were made did not rise to the level required for good cause.

¶ 15. The purpose behind the 120-day rule is to provide the plaintiff with an adequate amount of time in which to find the defendant and provide notice of the claim. If the plaintiff is unable to locate or serve the defendant within that time frame, the plaintiff has several options from which to proceed. The plaintiff may request additional time in which to file, dismiss and re-file the claim, or demonstrate to the court good cause as to why the defendant was not properly served within the time allowed.

¶ 16. Where, as in the present case, the record is void of any example of diligent effort made to serve process, then we cannot say that good cause has been shown. Therefore, we hold that the lower court did not abuse its discretion, and we affirm the dismissal of the case for failure to serve process within the time prescribed by M.R.C.P. 4(h).

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . Donna N. Parker Withrow has since remarried and changed her last name to "Foster.” However, due to the style of the case, we will refer to her former name, "Withrow.”


author: BARNES, J.,

text:
    Timothy MILLIGAN, Individually and as an Heir of the Estate of Jackie R. Milligan, Appellant, v. Mary V. MILLIGAN, Individually and as Trustee of the Jackie R. Milligan Testamentary Trust and Milligan’s Ready Mix, Inc. and Kelly Kirk Milligan, Appellees.
    No. 2005-CA-01413-COA.
    Court of Appeals of Mississippi.
    May 15, 2007.

      Brian H. Neely, Tupelo, attorney for appellant.
    Michael Dale Cooke, Iuka, attorney for appellees.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Timothy Milligan appeals the judgment of the Chancery Court of Tishomingo County which ruled in favor of defendants Milligan’s Ready Mix, Inc., and Kelly Kirk Milligan. Timothy argues the trial court erred in the following: its dismissing his claim of partial ownership of the “family” business of Milligan’s Ready Mix, Inc. and the real property upon which the business is located; failing to determine the type of business entity MRM operated as at the time of his father’s death; and granting summary judgment regarding his right to damages. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. MRM is a concrete mixing and form business located in Iuka, Mississippi. The business has been in the Milligan family for several decades. This dispute began over MRM’s storing its large concrete products on a portion of a tract of property devised to Timothy in 1995 by his father, Jackie Milligan. Pursuant to Jackie’s will, Timothy’s step-mother, Mary Milligan, held the tract of land in trust for Timothy until he reached the age of fifty. An initial complaint was filed by Timothy in July of 2001 against Mary Milligan, individually and as trustee of Jackie’s estate, and Milligan’s Ready Mix, Inc. Timothy complained of storage by MRM of large concrete products on approximately a one-half acre portion of his property. Timothy also complained of the encroachment onto his property of a metal building owned by MRM. Timothy ultimately filed a second amended complaint in June of 2004, expanding his claims to include a one-half ownership interest in MRM’s property and business. Additionally, he added another defendant, his uncle, Kelly Kirk Milligan, who currently operates the business.

¶ 3. Because the business’s chain of title is in dispute, the history of the business must be explained from its inception. “Milligan’s Ready Mix” was founded around 1958 by Timothy’s grandfather, Kell Milligan, as a sole proprietorship. At that time, Kell bought the property of the business’s present location in Tishomingo County. In the 1960s the business continued to develop under Kell and his two sons, Jackie and Kelly, as a family business. It is undisputed that in 1979, Kell, via warranty deed, conveyed the property upon which MRM is located to his sons Jackie and Kelly.

¶ 4. The current dispute centers around three instruments: a warranty deed, a deed of trust, and a promissory note. The warranty deed conveyed the MRM real property from Kelly and Jackie to “Milli-gan Brothers Ready Mix, Inc.” on November 1, 1986. However, at this time, while there was evidence submitted to the court that “Milligan’s Brothers Ready Mix, Inc.” operated as a corporation, the business was not incorporated at the Mississippi Secretary of State’s office until May 23, 1988, when the business entity “Milligan’s Ready Mix, Inc.” was incorporated. In sum, Timothy claims that because “Milli-gan Brothers Ready Mix, Inc.” was not officially incorporated at the time the warranty deed was executed, or in fact at any time, the 1986 warranty deed is invalid, and thus Jackie never sold his one-half interest in the property. Upon Jackie’s death, Timothy claims he was entitled to a one-half interest in the real property and proceeds from the business.

¶ 5. Pertinent documents submitted into evidence included a deed of trust, also signed on November 1, 1986, from “Milli-gan Brothers Ready Mix, Inc.” to Jackie to secure payment of $82,500 at the rate of eight percent per annum for Jackie’s interest in the MRM real property. The deed of trust stated “Milligan’s Brothers Ready Mix, Inc.” was to pay Jackie $10,000 per year for fourteen years. Further, a promissory note dated October 31, 1986, granted Jackie $82,500 from “Milligan Brothers Ready Mix, Inc.,” under the same terms as the deed of trust. Kelly Milligan and Ann Harwell, Kelly’s sister, signed the note respectively as president and secretary/treasurer of Milligan Brothers Ready Mix, Inc.

¶ 6. In July of 1995, Jackie Mulligan passed away, leaving a will which devised most of his estate to his wife, Mary, and son, Timothy. Timothy was bequeathed the parcel of land adjacent to the Milli-gan’s Ready Mix business by his father. Jackie had purchased this property from T.B. Woodruff in 1971; it is adjacent to but not a part of the MRM property. Pursuant to Jackie’s will, the Woodruff property was held in trust for Timothy, with Timothy’s step-mother, Mary, serving as trustee until Timothy reached the age of fifty, at which point all proceeds of the trust would be his. Also, upon Jackie’s death, Timothy moved into a home on this property. Large concrete products were stored by MRM on a portion of this property since the 1980s, because of space constraints on the ready-mix property, but with Jackie’s permission. Additionally, the metal building, constructed in the early 1970s, was also partially on the MRM property and partially on Timothy’s property by agreement of Jackie.

¶ 7. Regarding the ready mix business, Jackie’s will only mentioned the following: “I give and bequeath to my son Timothy ... the balance of the proceeds due me from a note receivable from Milligan Brothers Ready Mix, Inc.” No mention was made in the will regarding Jackie’s retaining any ownership interest in the ready mix business. At trial, receipts were entered into evidence showing that after Jackie died, “Milligan’s Ready Mix, Inc.” properly began paying Timothy $10,000 per year commencing in 1995, concluding with a “paid in full” receipt on August 2000. Total funds paid to Timothy after his father’s death were $60,169.28.

¶ 8. As previously stated, this dispute first began in July 2001 as an apparent attempt by Timothy to rid his property of the large concrete products stored for several years by MRM and to receive compensation for the encroachment of the metal building on his property. In his first complaint, Timothy also complained that Mary had refused to stop the uncompensated use and damage to his property and was thus negligent as trustee of his property. In response to this complaint, Milligan’s Ready Mix, Inc. and Kelly made a counterclaim seeking Timothy’s parcel of land by adverse possession, noting the concrete products and metal garage had been on this property for over ten years. Timothy, however, did not sue for partial ownership of the ready mix business until his second amended complaint of June 2004, filed by new counsel. In the revised complaint, he sought one-half of the assets of “Milligan’s Ready Mix, Inc.,” $2 million in damages for his deprivation of interest in the business, $2,000 per month for compensation of the use of his property, or alternatively an order directing Milligan’s Ready Mix, Inc. to remove the materials from his land, and compensation for any damage to his property. In response, Mil-ligan’s Ready Mix, Inc. and Kelly renewed their adverse possession counterclaim.

¶ 9. In January 2005, defendants Milli-gan’s Ready Mix, Inc. and Kelly filed a motion for partial summary judgment which was granted in part. The chancellor stated there was no genuine issue of material fact for the following claims: $2 million in damages or for any other amount against Milligan’s Ready Mix, Inc. and Kelly, $2,000 per month rent on the disputed property, and any damages to Timothy’s property by MRM or Kelly. The chancellor excepted, however, any potential claim to damages of Timothy’s property by the adverse use by Milligan’s Ready Mix, Inc. The chancellor denied summary judgment for two claims: Timothy’s claim to one-half of the assets of Milligan’s Ready Mix, Inc. and the defendants’ counterclaim of adverse possession on the portion of the metal building that allegedly encroached on Timothy’s property.

¶ 10. A bench trial occurred on May 9, 2005, before the Chancery Court of Tish-omingo County. The remaining two claims were heard on the merits. Timothy called two witnesses during his case-in-chief: Kelly as an adverse witness and Mary Milligan. Timothy then rested. Next, the chancellor granted defendant Mary’s oral motion for an involuntary dismissal against her as trustee. The remaining two defendants then moved for an involuntary dismissal regarding Timothy’s claim to one-half interest in Milligan’s Ready Mix, Inc., which the chancellor granted. Thus the only remaining claim for adjudication was the defendants’ adverse possession counterclaim against Timothy. After hearing testimony, the chancellor dismissed the adverse possession claim. On June 14, 2005, a final order was entered whereby Milligan’s Ready Mix, Inc. was ordered to remove all of its personalty from the disputed property within ninety days. Timothy timely appealed to this Court, challenging the judgment in favor of Milligan’s Ready Mix, Inc. and Kelly Kirk Milligan.

STANDARD OF REVIEW

¶ 11. “The sufficiency of the evidence is determined by the chancellor, who sits as finder of fact and makes determinations as to the weight and credibility of the evidence.” Peters v. Peters, 906 So.2d 64, 68(¶ 12) (Miss.Ct.App.2004). Our standard of review is a limited one for a chancellor’s findings of fact. This Court will not disturb a chancellor’s findings unless clearly erroneous, manifestly wrong, or an erroneous legal standard was applied. Sanderson v. Sanderson, 824 So.2d 623, 625-26(¶ 8) (Miss.2002). A finding of fact is considered clearly erroneous when, even though there is evidence to support the finding, the reviewing court has a firm belief a mistake has been made. Tutor v. Pannell, 809 So.2d 748, 751(¶ 11) (Miss.Ct.App.2002). However, if a chancellor’s findings of fact are supported by substantial evidence, broad discretion is given to support her determination. Id.

ANALYSIS

¶ 12. Timothy raises ten issues in his brief. For discussion purposes, we will combine related issues.

1. Whether the trial court erred in granting the Defendants’ motion for involuntary dismissal of Timothy’s claim to partial ownership of Milligan’s Ready Mix, Inc. or Mil-ligan’s Brothers Ready Mix, Inc. and the real property upon which it is situated.

¶ 13. In his brief, Timothy raises two related issues separately: his claim to a partial ownership of MRM (formerly Mil-ligan Brother’s Ready Mix and now Milli-gan’s Ready Mix, Inc.) and his claim to partial ownership of the real property upon which MRM is situated. For discussion purposes, we shall combine these two issues. These issues were determined at the conclusion of Timothy’s ease-in-chief when the chancellor granted the defendants’ motion for an involuntary dismissal of Timothy’s claim for one-half interest in MRM. We find proper the trial court’s determination that Timothy did not have an interest in MRM’s assets or real property.

¶ 14. Involuntary dismissals are rightly granted during a non-jury trial pursuant to Mississippi Rules of Civil Procedure 41(b) at the close of the plaintiffs case-in-chief for failure to show a right to relief. Glover v. Jackson State Univ., 755 So.2d 395, 404(¶ 23) (Miss.2000). When considering a motion to dismiss, the chancellor should review the evidence fairly, and not in the light most favorable to the plaintiff, which is the applicable standard for a motion for a directed verdict. Century 21 Deep South Properties, Ltd. v. Cor-son, 612 So.2d 359, 369 (Miss.1992). “The result is that the ruling [for an involuntary dismissal] is practically equivalent to a finding of fact.” Ainsworth v. Callon Petroleum Co., 521 So.2d 1272, 1274 (Miss.1987). Therefore, the standard of review for a motion to dismiss under Rule 41(b) is one of substantial evidence and manifest error. Stewart v. Merchants Nat’l Bank, 700 So.2d 255, 259 (Miss.1997).

¶ 15. Timothy argues that the chancery court made insufficient findings of fact upon which to base its involuntary dismissal, and thus the trial court erred. However, “[generally, when there are no specific findings of fact, this Court will assume that the trial court made determinations of fact sufficient to support its judgment.” Century 21, 612 So.2d at 367. When the chancellor does not provide specific findings of fact, our Court must “look to the evidence and see what state of facts will justify” her ruling. Id. (citations omitted). We disagree with Timothy’s assertion that the factual findings of the trial court were insufficient to adjudicate the ownership issue. The lack of evidence presented by Timothy during the bench trial to prove his right to relief justifies the dismissal.

¶ 16. Initially, the chancellor denied the defendants’ motion for summary judgment on this issue. Because our standard of review is one of substantial evidence and/or manifest error, we do not need to consider all of the evidence before the chancellor in support of her ruling of involuntary dismissal during trial. We will, however, briefly recapitulate the uncontro-verted evidence before the court which justified the chancellor’s ruling.

¶ 17. The following facts are not in dispute. In 1979, Kell conveyed MRM’s property to Jackie and Kelly. On November 1, 1986, Kelly and Jackie conveyed the property on which the business is located to “Milligan Brothers Ready Mix, Inc.” Kelly testified via deposition that he and his brother ran the business as a partnership, but there was no partnership agreement. On October 31, 1986, a promissory note was entered into by Kelly and Ann Milligan, as president and secretary/treasurer, respectively, of “Milligan’s Brothers Ready Mix, Inc.,” for $82,500 at eight percent interest to be paid to Jackie Milligan over the next fourteen years at $10,000 per year payments. Also, a deed of trust was entered into by the same parties, with the same terms, for the MRM property. Pursuant to his father’s will, from 1995 until 2000 Timothy accepted a total of $60,169.28 payments, as seen on six receipts for payment from Milligan Brothers Ready Mix, Inc. to Timothy. Although not incorporated at the Secretary of State’s office, Milligan Brothers Ready Mix, Inc. filed corporate United States and Mississippi state tax returns from 1980 until approximately 1986, according to depositions and exhibits of tax documents. In his deposition, the business’s former certified public accountant, David Nichols, testified he treated Milligan’s Brothers Ready Mix, Inc. as a corporation for tax purposes until 1987, at which time “Jackie left the corporation.” In 1988 documentation attests a corporation named “Milligan’s Ready Mix, Inc.” filed articles of incorporation in Mississippi. Finally, after Jackie’s death, Timothy also signed a waiver of process and entry of appearance regarding his father’s will stating in effect the closing of the estate was correct.

¶ 18. Importantly, Timothy acknowledges in a deposition that he could produce no witnesses or documents which would establish that Jackie owned a one-half interest in the business at the time of his death. Timothy also explained that the reason he initiated this action was because the annual payments of $10,000 from MRM suddenly stopped in 2000, and he was under the impression these payments were disbursements for his father’s ongoing share of the business profits. Further, he stated in a deposition that he felt as Jackie’s heir that he was due part of the $500,000 reported every year on MRM’s tax returns. Yet, Timothy had no documents or witnesses to substantiate this claim.

¶ 19. At the bench trial, Timothy rested without putting forth any further evidence to prove his claim of a one-half ownership interest in the business. In fact Kelly, testifying as an adverse witness for Timothy, stated that Jackie had “sold out” his interest in the business in 1986. In response, Timothy provided no evidence to disprove this statement.

¶20. Kelly stated that once Kell sold the business to his two sons, Kelly and Jackie, it was run like a partnership with all profits and losses split fifty-fifty. However, Kelly was under the impression that while he and Jackie were running the business it was already incorporated. Kelly testified that they “filed everything as a corporation, but it wasn’t incorporated until after Jackie got out of it.” Kelly testified that when he found out the business was not incorporated he properly filed articles of incorporation for “Milligan’s Ready Mix, Inc.” at the Secretary of State’s office in May of 1988, which was after the November 1, 1986 warranty deed purportedly conveying the property and interest from Jackie and Kelly to “Milli-gan’s Brothers Ready Mix, Inc.”

¶ 21. In his brief, Timothy insists that after his father died, Jackie’s estate retained a one-half interest in the business. However, again, Timothy did not present the chancery court with any proof to support his contention that the ownership interest in the business was never sold by Jackie. He merely provided evidence that at one time Jackie did possess some interest in the business as a partial owner with Kelly. There was no evidence present in the record proving Jackie died with any interest in the business, regardless of its legal status.

¶ 22. In their brief, the Appel-lees contend that Milligan Brothers Ready Mix, Inc. was a de facto corporation and thus had the legal ability to acquire ownership interest and title to property. Therefore, they argue, the transfer of interest from Jackie to that entity in 1986 was valid. A de facto corporation “is an association which actually exists for all practical purposes as a corporate body, but which, because of failure to comply with some provision of the law has no legal right to corporate existence as against a direct attack by the state.” Allen v. Thompson, 248 Miss. 544, 559-60, 158 So.2d 503, 509-10 (1963) (quoting 18 C.J.S., Corporations § 93). A de facto corporation exists when there is “(1) a valid law under which a corporation with the powers assumed might be incorporated; (2) a bona fide attempt to organize a corporation under such law; and (3) an actual exercise of corporate powers.” Id. at 561, 158 So.2d 503 (quoting 13 Am.Jur., Corporations, § 49, 195). The effect of de facto corporate status is that the entity “may be ousted in a direct proceeding brought by the state for that purpose ... but with a few exceptions ... it has a corporate existence ... against individuals and other corporations_” Id. at 559-60, 158 So.2d 503 (quoting 18 C.J.S., Corporations § 93).

¶ 23. While the chancellor declined to make a finding of fact that the ready-mix business was a de facto corporation at the time Jackie sold his interest in the property in 1986, we find this analysis furthers her ruling that Timothy retained no ownership interest to MRM, and it invalidates Timothy’s contention that there was no existing corporation to take title to MRM’s property. Examining the record, we find Timothy failed to make a case for relief regarding his claim for any ownership interest in the business or its property. Timothy has been paid for Jackie’s sale of his interest in the business. Whether or not Jackie sold his interest in MRM is an issue of fact which the chancery court already ruled upon in the affirmative. After applying the proper standard of deference to the trial court, and carefully examining the record, we find the chancellor’s decision was based on substantial evidence and was not clearly erroneous. Thus the trial court did not err in issuing an involuntary dismissal in favor of the defendants regarding whether Timothy was a partial owner of the business or real property upon which MRM is situated. Accordingly, this issue is without merit.

2. Whether the trial court erred in failing to determine the legal status of the ready-mix business at the time of Jackie Milligan’s death.

¶ 24. Timothy raises several issues regarding the legal status of the ready-mix business, which we shall combine for our discussion purposes. Timothy contends that the trial court erred in failing to determine if the business was a sole proprietorship, partnership, or corporation. Timothy argues that since the court did not determine what type of legal status the ready-mix business held, it was impossible for the trial court to determine who owned the business and its assets.

¶ 25. The Appellees argue that this and related issues are improper because they were not raised initially before the trial court. Burns v. Haynes, 913 So.2d 424, 428(¶ 18) (Miss.2005) (citing Mack v. State, 784 So.2d 976, 978(¶ 10)(Miss.Ct.App.2001)). We agree. However, we will discuss the issue on the merits since it is related to the involuntary-dismissal of the ownership issue.

¶ 26. The chancellor found, in her order denying defendants’ summary judgment regarding Timothy’s partial ownership, that the business had operated in at least four different forms over the years: “as a sole proprietorship owned by Kell Milli-gan, as a jointly-owned venture in some form owned by Kelly Kirk Milligan and Jackie Milligan, as Milligan Brothers Ready Mix, Inc., and as Milligan Ready Mix, Inc.” The court went on to state “the points of transition of the business from one of the foregoing forms to the other [are] unclear. One item of significance which remains unanswered is the point at which the assets of Milligan Brothers Ready Mix, Inc. became the assets of Mil-ligan Ready Mix, Inc.” Further, the court acknowledges “the cloud of doubt that looms over the history of the business’ ownership and structure, [is] likely due in large measure to its being operated by a handful of family members over the years who did not anticipate litigation such as this.”

¶ 27. The crux of Timothy’s argument is that since the warranty deed of November 1986 conveyed property to an entity that “did not exist,” the deed is void. However, neither at trial nor in his brief does Timothy cite any case law to support this statement. Factually, Timothy contends the corporation did not exist because “Milligan’s Brother’s Ready Mix, Inc.” had not been officially incorporated at the Secretary of State’s office. He stated the entity functioned as a “sham corporation” because it was a “family business.” Yet, the court noted otherwise in its order regarding defendants’ motion for partial summary judgment, stating “[t]he Court finds that no reasonable person would conclude that there is an inconsistency between describing a business as a corporation and referring to it as a ‘family business.’ Indeed, it is not unusual for a ‘family business’ to function as a close corporation, which is a valid business form.”

¶ 28. We find the trial court did not err in adjudicating the matter of Timothy’s potential ownership without determining the exact legal status of the business. According to our deferential standard of review, we are to assume the trial court made determinations of fact sufficient to support its ruling. Century 21, 612 So.2d at 369. Timothy failed to establish a pri-ma facie case for his claim to ownership. The court found the business was valid and not a “sham corporation.” In his brief, Timothy quotes Gulf Land & Dev. v. McRaney, 197 So.2d 212, 217 (Miss.1967) (quoting Allen v. Thompson, 248 Miss. 544, 158 So.2d 503 (1963)) regarding de facto corporations, without elaborating. As discussed supra, Milligan’s Brothers Ready Mix, Inc. did share many of the characteristics of a de facto corporation. Yet, the trial court found it unnecessary to identify the exact legal nature of the business, and we do not find this in error. If Timothy had been able to provide some evidence to prove his ownership claim, it may have been necessary for the chancellor to determine specifically what type of business MRM was at the time of Jackie’s death. However, as was the case, the “cloud of doubt” regarding the family business’s ownership and structure was not lifted because of the failure of Timothy to state a claim for relief. This issue is without merit.

3. Whether the trial court erred in failing to determine what interest Jackie had in MRM at the time of his death.

¶ 29. Relatedly, Timothy asserts the chancellor is in error for failing to specify Jackie’s ownership interest in MRM at the time of his death. Again, the Appellees argue that this issue is improper because it was not raised before the trial court. Burns, 913 So.2d at 428(¶ 19). We agree.

¶ 30. Indisputably, Timothy did not present any evidence contradicting the defendants’ claim that Jackie did not retain any ownership interest, because of the warranty deed of 1986 and various witness’s testimony that he sold it, nor does he put forward an argument in his brief to support his contention. Because Timothy failed to present evidence for his prima facie case for ownership interest in MRM before the trial court, this issue is moot. Additionally, we find there was substantial evidence for the chancellor to find Jackie did not retain an ownership interest in the property, and it was unnecessary for her to adjudicate the issue at bar. Accordingly, this issue is without merit.

4. Whether the trial court erred in failing to determine a chain of title to the land upon which MRM is situated.

¶ 31. The Appellees note this issue was not raised below and is thus improper for appeal. Burns, 913 So.2d at 428(¶ 18). Again, we agree. Furthermore, we find this issue moot because the chancellor found Timothy did not retain any ownership interest in the real property MRM is situated upon. Finally, Timothy does not present an argument in support of this specific issue in his brief.

¶ 32. If we address this issue on the merits, Timothy argues that the trial court “completely ignored” the chain of title regarding ownership to the real property. However, after making this bold assertion — basing his prima facie case upon the warranty deed which gave title from Kell to Jackie and Kelly — once again, Timothy fails to offer any documentation in support thereof, and simply claims there is “not even an iota of evidence to dispute” Timothy’s uncontroverted chain of title. Presumably in support of his position, Timothy cites Holliman v. Charles L. Cherry and Assoc., Inc., 569 So.2d 1139 (Miss.1990). We find Holliman analogous to the case at bar. That court found there was insufficient proof to establish the plaintiffs prima facie claim for adverse possession based upon the chancellor’s findings of fact. Id. at 1147. Proeedurally similar to our case, the chancellor granted defendant-title holder’s motion for a directed verdict after the plaintiffs case-in-chief, based on insufficient evidence. Id. at 1141. Holliman states “[t]he burden of proof is upon the party trying to establish mutual mistake and the proof must establish such a mistake beyond a reasonable doubt.” Id. at 1144. Although dealing with adverse possession, this case is instructive regarding Timothy’s burden of proof, which he failed to meet for a claim to MRM’s property. We cannot find the trial court erred in declining to adjudicate this issue. Accordingly, this issue is without merit.

5. Whether the trial court erred in granting summary judgment in favor of Milligan Ready Mix, Inc. and Kelly regarding Timothy’s right to damages.

¶ 33. The chancellor granted the defendants’ motion for summary judgment regarding Timothy’s claim to damages. In his second amended complaint, Timothy sought $2 million in damages, or any other amount; $2,000 per month for compensation by MRM for his property’s use; and recovery for damage to his property. The trial court did except from summary judgment Timothy’s possible recovery for damages arising from MRM’s use of his property by adverse possession at that time.

¶ 34. In reviewing a trial court’s grant of summary judgment, our standard of review is de novo. Harrison v. Chandler-Sampson, Ins., Inc. 891 So.2d 224, 228(¶ 11) (Miss.2005). Thus this Court will review all evidence contained in the record in the light most favorable to the non-moving party. Id. Summary judgment is granted if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). The party opposing the motion “may not rest upon the mere allegations or denials of his pleadings” but instead must respond by setting forth specific facts showing there is a genuine issue of material fact for trial. M.R.C.P. 56(e); Miller v. Meeks, 762 So.2d 302, 304(¶ 3) (Miss.2000). If an issue of fact is found, the trial court shall deny summary judgment; otherwise, the motion is affirmed. Id.

¶ 35. After carefully examining the record, we find no evidence to substantiate Timothy’s claims to either $2 million in damages or $2,000 per month in rent for the use of his property by MRM. As the trial court notes in its order, in Timothy’s depositions he gives a vague rationale for these two figures. During his examination by defense counsel, when asked “Why do you think you’re entitled to $2 million against Milligan’s Ready Mix?” Timothy responds, “Because they’ve not given me— they’ve not given me nothing, but what I thought was for that year, no money for— you know, it stopped that.” When asked how he arrived at the figure of $2,000 a month, Timothy cryptically responded, “I thought, well, they’re trying to screw me and the people of the United States, then I think that’s a good deal. I think that that’s a reasonable price from — since they’ve stopped paying what I thought was — not promotions, but since they’ve stopped paying the $10,000 a year, which I thought was from — not gross income, but Jackie’s part of the ready mix....” In another deposition, in reference to his damage claims, Timothy responded that he did not have any documents or witnesses to substantiate his claims to damages. Finally, in Timothy’s response to defendants’ motion for partial summary judgment, he states, regarding compensation, that “tax documents will show that Milligan’s Ready Mix, for the past few years, has routinely grossed over $400,000.00. The question of compensation will be a matter of proof to be decided by the trier of fact.” And yet, the law is clear that in a motion for summary judgment the non-moving party may not rest on mere denials in pleadings, but must present some evidence of a genuine issue of material fact. M.R.C.P. 56(e); Miller, 762 So.2d at 304(¶ 3). Timothy presents no evidence to justify his claims to $2 million or $2,000 per month in damages. Accordingly, the trial court properly granted defendants’ motion for summary judgment regarding damages. This issue is without merit.

6. Whether the trial court erred in failing to determine the amount of damages owed to Timothy for the use of his property.

¶ 36. The trial court found $2,000 per month compensation for use of Timothy’s property by MRM was not a genuine issue of material fact because Timothy did not present any evidence explaining from where he derived this figure. After our review of the record in the prior issue, we agree. If the trial court finds no issue of material fact over a specific claim for damages, it is not the court’s duty to find an alternative amount for damages other than the one requested. Furthermore, Timothy did not prove that he was damaged in any way by MRM’s use of his property. Nor did he prove that he was unable to rent his property because of the defendants’ actions. He merely alleges that several individuals were interested in renting a trailer on his property, without putting forth evidence that they were precluded from doing so because of any action by the defendants. Accordingly, this issue is without merit.

CONCLUSION

¶ 37. For the above stated reasons, we find that the trial court did not err in dismissing Timothy’s claim of partial ownership in the family business, Milligan’s Ready Mix, Inc., or the real property upon which the business is located. Because of Timothy’s failure to establish a prima facie case for his claim to ownership, it was unnecessary for the trial court to determine the business’ legal status at the time of Jackie’s death. For the same reason, the trial court did not err in determining a chain of title of MRM’s real property. Finally, Timothy failed to prove any entitlement to damages. Consequently, we find the trial court was not in error and affirm its decisions.

¶ 38. THE JUDGMENT OF THE CHANCERY COURT OF TISHOMIN-GO COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ„ CONCUR.

      .The business has operated in different forms as a family-owned business. In 1988, the business was officially incorporated as “Milli-gan's Ready Mix, Inc.” Prior to this time, the business was known as "Milligan's Brothers Ready Mix, Inc.” and "Milligan’s Ready Mix.” For clarity, when referring to the business in general, and not its specific legal name, we shall call it "MRM”; otherwise, we will specify its exact legal name or the name under which it was doing business.

      . This was the business’s original name before it became "Milligan's Brothers Ready Mix, Inc.” The exact date of this name change is not apparent from the record.

      . When the business was incorporated, it was named "Milligan’s Ready Mix, Inc.,” not "Milligan Brothers Ready Mix, Inc.”

      . It is undisputed that Ann Harwell, Kell Mil-ligan's daughter, does not have an ownership interest in any form of MRM, nor does she seek one.

      . Timothy had not reached fifty years of age at the time this suit was filed, thus the Wood-ruff property was still held in trust by his step-mother.

      .Timothy does not dispute that any funds are due him as beneficiary of the note payable to Jackie.

      . Since Mary Milligan was dismissed as a defendant, and Timothy has not appealed this issue, the term "defendants” hereinafter shall refer only to Milligan’s Ready Mix, Inc. and Kelly Kirk Milligan.

      . Apparently Timothy finds the 1986 warranty deed from his father to Milligan Brothers Ready Mix, Inc. as being unworthy of mention.

      . In addition, while we find the trial court correctly dismissed the $2 million in damages on summary judgment due to lack of evidence, we note that once the trial court found, at the bench trial, that Timothy failed to establish a claim of ownership to the business, his claim to any amount of damages is moot.