author: LEE, P.J., KING, C.J.,

text:
    John MICKALOWSKI and Jamie Mickalowski, Appellants, v. AMERICAN FLOORING, INC. and Jim Chrestman, Appellees.
    No. 2005-CA-01864-COA.
    Court of Appeals of Mississippi.
    May 29, 2007.
    Rehearing Denied Oct. 2, 2007.

      George E. Dent, Anna Catherine Pipkin, Tupelo, attorneys for appellants.
    Michael Lee Dulaney, attorney for ap-pellees.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. The conflict in this case centers around a covenant not to compete entered into by the parties when John and Jamie Mickalowski sold their retail flooring business, American Flooring, Inc., to Jim Chrestman.

¶2. The Mickalowskis owned and operated American Flooring and Floors 4 Less (both operated as American Flooring), a retail ceramic tile store, in Lee County, Mississippi, near the town of Saltillo. On July 21, 2000, the Mickalowskis entered into a contract with Chrestman, whereby Chrestman agreed to purchase all of the assets of the flooring business. Chrest-man paid $829,227 for the business and an additional $90,000 for the covenant not to compete. The non-compete agreement prohibited the Mickalowskis from engaging in retail sales of ceramic tile and other flooring. However, the Mickalowskis reserved the right to engage in the wholesale distribution of tile “from time to time.” The terms of the agreement will be discussed in more detail as applicable.

¶ 3. Chrestman became aware of several violations of the agreement and filed a complaint on October 30, 2001, in the Circuit Court of Lee County seeking in-junctive relief, compensatory damages, punitive damages, attorney’s fees and expenses, and any other relief available at law or in equity. During the bench trial, the trial court heard testimony regarding alleged retail sales, sales to other retailers in Lee County without proper notice, and sales to retailers outside Lee County but within the restricted area without proper notice. The trial court also heard testimony regarding two retail ceramic tile stores in which John Mickalowski allegedly had some involvement. The trial court entered an opinion on August 25, 2005, finding that the Mickalowskis willfully violated the terms of the non-compete agreement by selling tile to retail customers and by selling tile wholesale both inside and outside Lee County without proper notification to Chrestman. In the final judgment dated October 21, 2005, the trial court awarded Chrestman $90,000 in compensatory damages, $25,000 in punitive damages, and $19,095.06 in attorney’s fees.

¶4. The Mickalowskis now appeal the circuit court’s decision to this Court asserting the following issues: (1) the trial court erred in finding that they violated Section 6.1, the covenant not to compete; (2) the trial court erred as a matter of law in finding that they violated 6.1.a.a. of the agreement by failing to give American Flooring notice of the proposed sale of wholesale tile to Tupelo Lumber; (3) the trial court erred as a matter of law in finding that they breached 6.1.a.b. of the agreement in that notices of wholesale sales outside of Lee County were required only if the purchaser establishes a retail presence outside of Lee County; (4) the trial court erred in assessing damages at $90,000; (5) the trial court erred in assessing punitive damages; and (6) the trial court erred in awarding attorney’s fees. For judicial economy, Issue I will be combined with Issues II and III. Issues IV, V, and VI will also be combined as each addresses the issue of damages.

¶ 5. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 6. A trial judge’s findings of fact following a bench trial will not be disturbed on appeal as long as they are supported by substantial, credible and reasonable evidence. City of Jackson v. Brister, 838 So.2d 274, 277-78(¶ 13) (Miss.2003). Issues of law, however, are reviewed under a de novo standard. Id.

DISCUSSION

I. DID THE TRIAL COURT ERR AS A MATTER OF LAW IN FINDING THAT THE MICKALOWSKIS VIOLATED 6.1.a.a. OF THE AGREEMENT BY FAILING TO GIVE AMERICAN FLOORING NOTICE OF THE PROPOSED SALE OF WHOLESALE TILE TO TUPELO LUMBER

The covenant not to compete

¶ 7. The covenant not to compete set forth the following restrictions on the Miekalowskis’ business .activities. Under Section 6.1 of the agreement, the Micka-lowskis agreed not to compete, directly or indirectly, with Chrestman in the ceramic tile and flooring businesses for five years after the sale of American Flooring. This restriction was limited to “a one hundred (100) mile radius from the premises where the Business is located.” Notwithstanding the one hundred mile restriction, Section 6.1.a. of the agreement stated that the Miekalowskis would be permitted to engage “in the wholesale distribution, from time to time, of ceramic tile (the ‘Wholesale Tile’) within a fifty (50) mile radius from the premises where the Business is located (the Wholesale Territory’),” subject to the following conditions and restrictions:

a. Purchaser shall have the exclusive right of first refusal, in its sole discretion, to carry for retail sale and to purchase from Seller any and all lines of the Wholesale Tile in Lee County, Mississippi. In furtherance of this right of first refusal, Seller agrees as follows:
i.Before selling any Wholesale Tile to any person or entity inside Lee County, Mississippi, Seller shall first offer such Wholesale Tile to Purchaser in writing.
ii. Within 30 days of its receipt of the written offer provided for in the preceding paragraph, Purchaser shall notify Seller whether it intends to exercise its right of first refusal to carry and to purchase from Seller such lines of Wholesale Tile in Lee County, Mississippi.
iii. If and only to the extent that Purchaser elects not to exercise its right of first refusal as to said Wholesale Tile, Seller shall be free to sell same to other purchasers in Lee County, Mississippi; provided, however, that if Purchaser later de- . cides that it wants to carry and purchase any such lines of Wholesale Tile in Lee County, Mississippi, Seller agrees to accept no further orders for said Wholesale Tile from the existing purchaser(s) thereof in said county.

Wholesale activities within Lee County

¶ 8. Section 6.1.a.a. of the covenant not to compete allowed the Miekalowskis to engage in wholesale distribution “from time to time” with the condition that American Flooring was given the right of first refusal on the sales in Lee County. With regard to sales in Lee County, the trial court concluded that the Miekalowskis violated the agreement with regard to their business relationship with Tupelo Lumber. Specifically, the trial court stated that “the Defendants violated the terms and conditions of Section 6.1.a. dealing with proposed wholesale sales within Lee County when the Defendants failed to notify in writing the Plaintiff regarding the proposed sale to Tupelo Lumber,” and a sale to Tupelo Lumber would be in direct competition with Chrestman’s store.

¶ 9. The Miekalowskis gave notice of the first proposed sale within Lee County in accordance with Section 6.1.a. of the agreement, and Chrestman chose not to exercise his right of first refusal on this particular sale. However, when the Mickalowskis offered tile to Tupelo Lumber, they did not give American Flooring notice and the opportunity to exercise its right of first refusal as required in the contract. John Mickalowski argues that, while no specific notice was given, he would send an updated price list periodically which constituted notice. Jamie Mickalowski acknowledged that Tupelo Lumber did not sell ceramic tile and would be in direct competition with American Flooring if they were to do so. We are not persuaded by John Micka-lowski’s assertion that mailing updated price lists served as notices for Chrestman to exercise his right of first refusal. This is especially true for Section (b) which required the notice to include “a description and location of the proposed purchaser, and a description of the Wholesale Tile which Seller proposes to sell to said prospective purchaser.”

Retail sales

¶ 10. The covenant not to compete expressly prevented the Mickalowskis from participating in any retail sales within 100 miles of the physical location of Chrestman’s business for a period of five years, beginning on July 21, 2000. Two or three months after the Mickalowskis sold American Flooring to Chrestman, John Mickalowski constructed a large warehouse and opened Old World The, a wholesale ceramic tile store, in Booneville, Mississippi, which was outside of Lee County but within approximately fifteen miles of the current location of American Flooring. Chrestman testified that he began hearing about retail cash sales to customers by Old World Tile and was concerned about the size of Mickalowski’s new business. Chrestman believed that John Mickalowski was violating the terms of the non-compete agreement, which only allowed him to engage in wholesale business in the restricted area “from time to time.” According to John’s testimony, Old World Tile was the only tile distributor in northeast Mississippi and the largest source of wholesale tile in northeast Mississippi. It grossed approximately $800,000 in 2004. Chrest-man’s disapproval is reflected in the business relationship between Chrestman and Mickalowski. Between July and September 2001, Chrestman purchased $68,496.21 in tile from Old World Tile. Between September 2001 and July 2005, Chrestman purchased only $5,034.25 in tile from Old World Tile. After hearing evidence that American Flooring stopped purchasing wholesale tile from Old World Tile, it was apparent to the trial judge that “Mr. Mick-alowski perceived that it was a ‘condition precedent’ that American Flooring sell Old World Tile, otherwise, the Mickalowskis perceived they were under no obligations to honor the terms of the Purchase and Sale Agreement.” Nothing of this nature appears in the covenant not to compete and the Mickalowskis should not be allowed to use this as an excuse for violating the covenant not to compete.

¶ 11. The trial court also heard testimony regarding two retail ceramic tile stores in which John Mickalowski allegedly had some involvement. In June of 2002, after Chrestman moved American Flooring to another location, Tony Kendrick opened a retail ceramic tile store, The Tile Depot, in the half of Mickalowski’s building that originally housed Chrestman’s store. Kendrick, a former employee of the Micka-lowskis and Chrestman, testified that John Mickalowski approached him about opening a retail store and proposed that he and Kendrick be “silent partners.” No documents exist outlining the terms of Kendrick’s partnership with Mickalowski. However, Kendrick testified that no written agreement was made because John Mickalowski wanted the arrangement to be verbal because he could not personally sell to anyone not having a tax identification number due to the non-compete clause. Mickalowski denied any such relationship. Kendrick testified that Micka-lowski provided everything necessary for the operation of the store, including personally moving computers, fixtures, displays, and office equipment into the building. Kendrick further testified that when the store was not successful, Mickalowski changed the terms of the deal so that Kendrick became nothing more than an employee.

¶ 12. The evidence was uncontradicted that Chrestman personally observed John Mickalowski coming to and from The Tile Depot. Kendrick testified that he personally witnessed the Mickalowskis sell tile to the public. He testified that customers contacted him to inquire about installing tile purchased from Old World Tile. He also testified that the Mickalowskis sold tile to him without him having a sales tax number, and he testified that the Micka-lowskis had given him samples to go sell tile to others. Kendrick further testified that he knew about the non-compete agreement because John Mickalowski warned him that Chrestman did not need to find out about the retail sales because the sales violated the non-compete clause. From this testimony, the trial judge determined that the Mickalowskis were aiding and assisting in the operation of The Tile Depot in violation of the non-compete agreement.

1113. John Mickalowski argues that Kendrick’s testimony is unreliable because at some point Kendrick was unable to continue paying for the tile and Mickalowski repossessed the remaining unsold tile. Kendrick was ultimately arrested and John Mickalowski argues that Kendrick blames him for the failure of his business and for his arrest for failure to deliver tile which Kendrick sold to a local governmental agency. The charges against Kendrick were later dismissed. Mickalowski argues that the agreement did not preclude him from leasing the building for fair market value regardless of the product sold. However, Chrestman argues that, at the least, the deal amounted to aiding and assisting a competitor.

¶ 14. Keith Phillips, an employee of the Mickalowskis, testified that he had personally read the non-compete agreement during his employment. He testified to witnessing people come into Old World Tile, look at samples, buy the tile, and leave with it in hand. He also testified that John Mickalowski told him that if Chrest-man would not buy tile from Old World Tile then he would sell it to Chrestman’s prospective customers. Phillips further testified that John kept an invoice book on his desk in Earl Owen’s trade name to make it appear that tile was being sold by Earl Owens and not Old World Tile. Ed Neely, a construction inspector and appraiser, testified that John told him that he could not sell him tile since he was “wholesale only.” However, Neely testified that he bought tile through Earl Owens even though he selected tile at Old World Tile using Old World Tile’s samples and was never shown any samples by Earl Owens. Earl Owens testified for the defense that to his knowledge Old World Tile did not sell to retail customers.

¶ 15. Another instance of a retail store in which John Mickalowski allegedly had some involvement was with his brother, Jerry Mickalowski. After Kendrick’s business failed, John rented the other half of the building to his brother who opened a retail tile store. Mickalowski testified that he charged his brother fair market value for the rent on the building and did not assist his brother in any way in running the store. Ultimately, the store was unsuccessful. Chrestman argues that allowing a direct competitor to establish a business approximately one mile from his location provided more evidence that the Mickalowskis intended to violate the covenant not to compete.

¶ 16. Given the evidence, we find that the trial judge did not err in finding a violation of Section 6.1.a. of the agreement regarding sales within Lee County, and her decision is affirmed as it was based on substantial evidence. Further, substantial evidence exists to support the trial court’s conclusion that the Mickalowskis made retail sales through Old World Tile, and the evidence shows that their wholesale distribution exceeded the “from time to time” limitation.

II. DID THE TRIAL COURT ERR IN FINDING THAT THE MICKA-LOWSKIS BREACHED 6.1.a.b. OF THE AGREEMENT IN THAT NOTICES OF WHOLESALE SALES OUTSIDE OF LEE COUNTY WERE REQUIRED ONLY IF THE PURCHASER ESTABLISHED A RETAIL PRESENCE OUTSIDE OF LEE COUNTY

¶ 17. Section 6.1.a.b. of the agreement set out the following restrictions 'with regard to wholesale activities outside Lee County but within a fifty mile radius from the premises where the business is located (the “Wholesale Territory”):

b. Purchaser shall have the exclusive right of first refusal, in its sole discretion, to carry for retail sale and to purchase from Seller any and all lines of the Wholesale Tile in any area outside of Lee County, Mississippi but within the remainder of the Wholesale Territory, in which Purchaser establishes a retail presence. In further [sic] of this right of first refusal, Seller agrees as follows:
i. Before selling the Wholesale Tile to any person or entity outside of Lee County, Mississippi, but within the geographic limits of the Wholesale Territory, Seller shall give Purchaser advance written notice of its intention to sell said Wholesale Tile, which notice shall include a description and location of the proposed purchaser, and a description of the Wholesale Tile which Seller proposes to sell to. said prospective purchaser.
ii. Within 30 days of its receipt of the written notice provided for in the preceding paragraph, Purchaser shall notify Seller whether it intends to exercise its right of first refusal to carry for retail sale and to purchase from Seller said lines of Wholesale Tile in said area.
iii. If and only to the extent that Purchaser elects not to exercise its right of first refusal as to said Wholesale Tile in said geographic area, Seller shall be free to sell same to said prospective purchaser; provided, however that if Purchaser later decides that it wants to carry and purchase said Wholesale Tile in said geographic area, Seller agrees to accept no further orders fro [sic] said Wholesale Tile from the existing purchaser(s) thereof in said area.

¶ 18. With respect to Section 6.1.a.b.— sales outside of Lee County — the proof is uncontradicted that no notices were given to Chrestman. Chrestman testified that American Flooring does business in all of northeast Mississippi and advertises throughout northeast Mississippi. We find that the trial court correctly stated that “the language in (b) establishes that American Flooring already had an established retail presence outside of Lee County but within the 50 mile radius or else there would have been no reason to include (b) in the Agreement.” (emphasis added). At the time of the agreement, Chrestman’s store was located in Lee County five miles from the Prentiss County line. It would not be reasonable to require him to open another location five miles away to trigger Section 6.1.a.b. American Flooring was already doing business in Prentiss County, and Chrestman testified that he had established a retail business in northeast Mississippi that included Tippah County, Corinth, Monroe County, and the general northeast Mississippi area. According to Chrestman, he advertised in all of these areas and more than fifty percent of his business came from outside Lee County.

¶ 19. John Mickalowski testified that he sold wholesale tile to the following entities: Perry’s at Booneville, Earl Owens, South-land, Collier-Windham, Booneville Flea Market, Amanda Oust, Leslie’s Floors, and Wren’s Carpets. Upon questioning, he stated that all these businesses were within a fifty mile radius of American Flooring and all of the businesses were located outside of Lee County. John admitted that he did not give notice on these sales pursuant to the agreement. He also admitted that the sales were in direct competition with American Flooring and agreed that had proper notice been given, Chrestman would have had an opportunity to block the sales to these entities had he chosen to exercise his right of first refusal.

¶ 20. The Mickalowskis should have been put on notice from the terms in the agreement that Chrestman already had a retail presence in Northeast Mississippi. If this were not true then Section (b) would have been unnecessary. Further, Section 6.a.b.i. specifically states, “Before selling the Wholesale Tile to any person or entity outside of Lee County, Mississippi, but within the geographic limits of the Wholesale Territory, Seller shall give Purchaser advance written notice of its intention to sell said Wholesale Tile.” (emphasis added). Since Chrestman had a retail presence within the restricted area, the Mickalowskis should have known that they must give notice before selling to any person or entity in the area.

¶ 21. We find that the decision of the trial court was based on substantial evidence and should be affirmed. This issue is without merit.

III. DID THE TRIAL COURT ERR IN ITS AWARD OF COMPENSATORY DAMAGES, PUNITIVE DAMAGES, AND ATTORNEY’S FEES

¶ 22. The Mickalowskis argue that damages are not appropriate since they did not violate the covenant not to compete. In the alternative, they argue that the amount of damages awarded was excessive.

¶ 28. Chrestman paid $90,000 for the non-compete clause, and the parties agreed in the purchase agreement that this was the value of the covenant not to compete. The trial court’s opinion stated that the award of $90,000 was meant to reimburse Chrestman for what he paid for the non-compete clause since the Micka-lowskis wholly failed to comply with its terms; thus, putting Chrestman in as good a position as he would have been in but for the breach. The trial judge based the award on the Mickalowskis’s flagrant violations of the covenant not to compete. While it is apparent that Chrestman received little value for the $90,000 he paid for the covenant, the award not only reflects the price paid but also the ongoing and irreparable harm caused by the violations.

¶ 24. On the issue of punitive damages, the trial court stated in its opinion:

From a totality of the evidences, it is evident that the Defendants executed the agreement and deliberately engaged in a course of misconduct. The evidence establishes that their wholesale activities were clearly larger in scope than the restricted language of “from time to time.” They engaged in the above cited sales in total disregard of the contract language requiring notice to the Plaintiff. At the end of the day, this Court is persuaded that the Mickalowskis were upset that the Plaintiff was not purchasing their tile product and deliberately elected to totally disregard the covenant not-to-compete even though the Defendants had been paid $90,000 to refrain from competing against American Flooring.

The award of punitive damages and the amount is within the discretion of the trier of fact. Sudeen v. Castleberry, 794 So.2d 237, 249(¶ 34) (Miss.Ct.App.2001). At the same time, punitive damages are appropriate “only in extreme cases,” and should be awarded only with “caution and within narrow limits.” Id. (citing Bryant v. Alpha Entm’t Corp., 508 So.2d 1094, 1098 (Miss.1987)). The trial judge demonstrated that this was an extreme case warranting punitive damages in her statement that after executing the agreement the Mickalowskis “deliberately engaged in a course of misconduct” and “elected to totally disregard the covenant not-to-compete.” Based on the evidence, the decision of the trial court regarding damages should be affirmed.

¶25. After reviewing the trial court’s seventeen page opinion, we find it to be based on the evidence and find that the trial judge made sufficient findings of fact to support her ruling. We find that the trial judge’s opinion was based on substantial, credible and reasonable evidence and thus cannot now be disturbed on appeal.

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

MYERS, P.J., GRIFFIS, ROBERTS AND CARLTON, JJ., CONCUR. BARNES J., CONCURS IN RESULT ONLY. KING, C.J., DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER AND ISHEE, JJ. IRVING, J., NOT PARTICIPATING.

KING, C.J.,

dissenting in part:

¶ 27. I respectfully disagree with the majority’s opinion in three areas: (1) the finding that the Mickalowskis violated the terms of the non-compete agreement in selling wholesale tile to Tupelo Lumber; (2) the finding that the Mickalowskis violated the terms of the non-compete agreement with regard to their wholesale activities outside Lee County but within the restricted area; and (3) the finding that the trial court properly awarded compensatory and punitive damages. Accordingly, I dissent.

Wholesale activities within Lee County

¶ 28. With regard to the issue of sales that occurred within Lee County, the trial court concluded that the Mickalowskis violated the agreement with regard to their business relationship with Tupelo Lumber. Specifically, the trial court stated that “the Defendants violated the terms and conditions of Section 6.1.a. dealing with proposed wholesale sales within Lee County when the Defendants failed to notify in writing the Plaintiff regarding the proposed sale to Tupelo Lumber” because a sale to Tupelo Lumber would be in direct competition with Chrestman’s store.

¶ 29. With respect to sales within Lee County, the terms of the non-compete agreement required the Mickalowskis to provide written notice to Chrestman of the opportunity to a right of first refusal on the exclusive right to sell Old World Tile “[bjefore selling any Wholesale Tile to any person or entity inside Lee County, Mississippi. ...” On June 11, 2001, John Mick-alowski sent a letter to Chrestman that stated as follows: “The Purchase and Sale Agreement on Pages 12 and 13 Section 6.1.a. Numbers i, ii, and iii states that you have first right of refusal to purchase and carry all lines of ceramic tile carried by Old World Tile, Inc. Old World Tile, Inc. is now offering you first right of refusal for Lee County on the ceramic tile listed on the following page.” While that letter, which was introduced into evidence, contained no attached pages, John Mickalow-ski testified that he sent his entire price list to Mickalowski, both on that date and subsequently, as products and prices changed. Chrestman did not dispute Mickalowski’s testimony on this issue.

¶ 30. The non-compete agreement further states that once Mickalowski provided such written notice, Chrestman had thirty days to respond and exercise its right of first refusal to carry such lines of tile exclusively. If Chrestman failed to respond, “Seller shall be free to sell same to other purchasers in Lee County, Mississippi; provided, however, that if Purchaser later decides that it wants to carry and purchase any such lines of Wholesale Tile in Lee County, Mississippi, Seller agrees to accept no further orders for said Wholesale Tile from the existing purchaser(s) thereof in said county.” According to the testimony, Chrestman did not respond to the June 11, 2001, letter within the thirty days set forth in the agreement, nor did he ever approach Old World Tile thereafter. Accordingly, in order for the account with Tupelo Lumber to violate the agreement, that account would have had to have been established prior to the expiration of the thirty-day period following the June 11, 2001, letter.

¶ 31. The testimony at trial also demonstrates that Jamie Mickalowski set up the account with Tupelo Lumber more than thirty days from the date of the June 11, 2001, letter. According to the terms of the Purchase Agreement, Jamie Mickalowski agreed to work full-time for Chrestman for one year following the sale of the company. Chrestman purchased the company on July 21, 2000, and both Chrestman and Jamie Mickalowski testified that she fulfilled her obligation to work for Chrestman for one year — until July 21, 2001. Although there was no testimony as to the date of the establishment of the Tupelo Lumber account, Jamie Mickalowski could not have established the account any earlier than July 22, 2001, a date following the expiration of the thirty-day notice period on Chrestman’s right of first refusal. Accordingly, there is no substantial evidence to support the trial court’s finding that the Mickalowskis violated Section 6.1.a. of the covenant not to compete regarding sales within Lee County.

¶ 32. The majority finds that the Mick-alowskis violated Section 6.1.a because the initial letter and the updated price lists were not sufficient to satisfy the notice requirement. The majority then cites Section 6.1.b. in support of that finding. This interpretation of the Mickalowskis’ notice obligations is inconsistent with a plain reading of the contract. Section 6.1.a. defines the Mickalowskis’ restrictions for sales within Lee County, while Section 6.1.b. defines the Mickalowskis’ restrictions for sales outside Lee County but within the restricted area. The contractual obligations set forth in these two sections are separate and distinct and are clearly defined. To apply the more stringent notice requirements of Section 6.1.b. of the non-compete agreement to the type of sales defined in Section 6.1.a. ignores the most basic concepts of contract law. See generally A & F Props., LLC v. Madison County Bd. of Supervisors, 933 So.2d 296, 301(¶ 12) (Miss.2006) (outlining basic contract interpretation principles such as the “four corners rule” and a plain reading of clear and unambiguous terms) (citations omitted).

Wholesale activities outside Lee County but within the restricted area

¶ 33. The non-compete agreement prevented Miekalowski from selling wholesale tile to businesses outside Lee County but ■within a fifty-mile radius of Chrestman’s store in those areas where Chrestman had established a retail presence. Miekalowski was called to testify as an adverse witness and later testified during the presentation of his own case. In that testimony, he admitted to selling wholesale to several businesses that existed outside Lee County but within a fifty-mile radius of Chrest-man’s store without first providing notice to Chrestman. Miekalowski stated, however, that his price lists served as right of first refusal. Miekalowski further testified that over the course of the five-year non-compete agreement, he sold approximately $350,000 in wholesale the to those entities.

¶ 34. Chrestman testified that he advertised throughout most of Northeast Mississippi, which would encompass the fifty-mile radius area, and that approximately half of his business could be attributed to customers within the Northeast Mississippi area. No advertisements or customer records were presented to the trial court as evidence, but Miekalowski did not dispute Chrestman’s claims. Miekalowski testified, however, that in order for the restriction to apply, he believed that Chrestman would have been required to open retail locations in each of those areas, as the term “retail presence” referenced a briek-and-mortar building. Counsel for Miekalowski also argued to the trial court that the term “retail presence” required a physical location for the business as a matter of law, while Chrestman’s counsel argued that the term “retail presence” was satisfied by proof of advertising to a particular geographic area.

¶ 35. The trial court determined that the Mickalowskis violated the terms of the non-compete agreement for failure to provide notice of wholesale activities outside of Lee County but within a fifty mile radius “of the Wholesale Territory, in which Purchaser establishes a retail presence.” The trial court concluded that Old World Tile’s sales to Perry’s at Booneville, Earl Owens, Southland, CoUier-Windham, Booneville Flea Market, Amanda Aust, Leslie’s Floors, and Wren’s Carpets all violated this term of the non-compete agreement because, according to the trial court, these sales were made outside Lee County “but within the 50 mile wholesale . radius.” The trial court also held as a mátter of law that the term “retail presence” did not require Chrestman to establish physical locations for his business in order to claim a “retail presence.”

¶ 36. The trial court held as a matter of law thát the language of the agreement established that American Flooring did have a retail presence within fifty miles of its location at the time of the sale in July 2000. The trial court also found that Chrestman’s testimony that he advertised within the restricted area and drew 50% of his customer base from the restricted area, as well as John Mickalowski’s admission that he did not provide notice of any of the proposed sales within the restricted area, provided substantial evidence for the trial court to conclude that the Mickalowskis violated that provision of the covenant not to compete.

¶ 37. The terms of the agreement between the parties do not define the phrase “retail presence,” and a nationwide search of case law revealed no cases defining the term “retail presence.” Counsel for Mick-alowski presented internet news clippings, mostly regarding cellular companies, which inferred that the term “retail presence” meant a physical location. Chrestman’s counsel argued that to- require a physical location within each county in the Northeast Mississippi area would be unfeasible and would result in an absurd reading of the contract.

¶ 38. I agree with the trial court that under the terms of this contract, the phrase “retail presence” does not require a brick-and-mortar building in each county in which Chrestman claimed a retail presence. Chrestman testified that he advertised in the fifty-mile radius surrounding his physical location and that fifty percent of his customer base came from outside Lee County. While I would have preferred documentary proof of such advertisement, in the form of a Yellow Pages advertisement or newspaper ads or invoices from other advertising outlets, I have to concur with the majority that Chrestman’s testimony, which was undisputed, does constitute substantial evidence that Chrestman had established a “retail presence” in those areas outside Lee County in which Old World Tile contracted its wholesale business.

¶ 39. I disagree with the majority’s holding, however, that the trial court correctly interpreted the contract to find that Chrestman had established a “retail presence” in July 2000 when he purchased the business from the Mickalowskis. Interpretation of the terms of a contract is an issue of law subject to de novo review by this Court. See IP Timberlands Operating Co. v. Denmiss Corp., 726 So.2d 96, 108(¶ 50) (Miss.1998). The covenant not to compete reads in pertinent part as follows:

Purchaser shall have the exclusive right of first refusal, in its sole discretion, to carry for retail sale and to purchase from Seller any and all lines of the Wholesale Tile in any area outside of Lee County, Mississippi but within the remainder of the Wholesale Territory [the fifty-mile radius from the current location of the business], in which Purchaser establishes a retail presence.

(emphasis added). The phrase “in which the Purchaser establishes a retail presence” indicates that at the time of the agreement, Chrestman had not yet established a retail presence but that he intended to do so. Accordingly, in order for Mickalowski to provide notice of proposed sales in those areas in which Chrestman had established a “retail presence,” Chrestman was required to first give Mickalowski notice that he had, in fact, established a retail presence in those areas. The evidence in the record does not establish that Chrestman ever communicated to Mickalowski that he had established a retail presence in any area outside of Lee County; therefore, Mickalowski could not have known to provide Chrest-man with notice of proposed sales.

¶ 40. Section 6.1.b, regarding sales outside of Lee County, does require Micka-lowski to give notice of each proposed sale of tile, but only after a condition precedent is met. Before Mickalowski can be said to have an obligation to notify Chrestman, Chrestman must first establish a retail presence in that area. Because Chrest-man had not engaged in retail tile sales prior to the date of the contract, the contract cannot be interpreted to mean that Chrestman already had a “retail presence” in the fifty-mile radius outside Lee County. If the term “retail presence” does not mean a separate physical location, then of necessity, some notice to Mickalowski of Chrestman’s claims of a “retail presence” in the restricted area must be given in order for Miekalowski to know that he had this obligation under the contract.

¶ 41. Only the actual establishment of a retail presence triggered the obligation of notice and the right of first refusal under the contract. Chrestman testified that he spent advertising dollars in the restricted area and that approximately half of his sales came from the restricted area outside Lee County. Chrestman’s statements were the sum of the testimony on the establishment of a retail presence outside Lee County. As a practical matter, I cannot conclude that Miekalowski, as a resident of Lee County and a stranger' to Chrestman’s business practices, had knowledge of Chrestman’s retail presence based on Chrestman’s evidence. Accordingly, without some notice from Chrestman or some proof that Miekalowski had actual knowledge of Chrestman’s retail presence, it is illogical to conclude that Chrestman met the condition precedent contained in Section 6.1.b. and that Mickalowski’s failure to give notice constituted a violation of the non-compete agreement.

¶42. The majority further interprets Mickalowski’s testimony to mean that Miekalowski admitted that his failure to provide notice of those sales was an admission that he had violated the agreement. Counsel for Chrestman elicited testimony from Miekalowski during Chrestman’s case-in-chief in which Miekalowski admitted that he did not provide notice of sales within the restricted area. Miekalowski also admitted that Chrestman had some rights to notice under the terms of the contract. Mickalowski’s testimony as a whole, however, demonstrates that Micka-lowski did not provide notice to Chrestman of those sales outside Lee County because he did not believe that Chrestman had a retail presence outside Lee County. Mick-alowski testified that he interpreted the phrase “retail presence” to mean a store, an actual physical location. While the trial court ultimately determined that “retail presence” is not defined under the terms of this contract as a brick-and-mortar building, such an interpretation does not automatically lead to a conclusion that Miekalowski violated the terms of the non-compete. Only the completion of the condition precedent, the actual establishment of a “retail presence,” triggered Mickalow-ski’s obligation to provide notice.

Damages

¶'43. Miekalowski also appeals the trial court’s decision to award $90,000 in compensatory damages, $25,000 in punitive damages, and $17,871.42 in attorney’s fees. Miekalowski argues that the evidence does not support these damage awards. In reviewing the award of damages, I recognize that “it is primarily the province of the jury [and in a bench trial the judge] to determine the amount of damages to be awarded and the award will normally not ‘be set aside unless so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous.’ ” Lewis v. Hiatt, 683 So.2d 937, 941 (Miss.1996).

¶ 44. The parties agreed in the Purchase Agreement that the five-year covenant not to compete had a value of $90,000. The $90,000 award for compensatory damages reflects the trial court’s conclusion that Chrestman received absolutely no value for the covenant not to compete, although the trial court does not state her reasoning for the award. Based on the evidence received at trial, I find that the trial court’s conclusion was not based on the evidence and is unreasonable. Accordingly, I would remand the case for the trial court to re-evaluate the amount of damages to be awarded. Based on my analysis on the issues of violation of the non-compete, cf necessity, the trial court would be required to re-evaluate the award of punitive damages as well.

¶ 45. The majority does not address the issue of attorney’s fees but upholds the award. I agree with the trial court’s decision to award attorney’s fees, but because the majority failed to address this issue in its opinion, it is unclear why the majority upholds that award; therefore, I write to explain my support of the trial court’s decision. Mississippi law states that attorney’s fees may be awarded only in the following instances: when a contract or statute so provides or when an award of punitive damages is proper. See Hamilton v. Hopkins, 884 So.2d 695, 700(¶ 16) (Miss.2003). The Purchase Agreement explicitly provides in Section 6.6 that “[i]n the event that either party elects to incur legal expenses to enforce or interpret any provision of this Agreement, the prevailing party will be entitled to recover such legal expenses, including, without limitation, reasonable attorneys’ fees, costs and necessary disbursements, in addition to any other relief to which such part shall be entitled.” Accordingly, an award of attorney’s fees to Chrestman, as the prevailing party, was proper so long as that award was reasonable. I agree with the trial court that the award of $17,871.42 in attorney’s fees is not unreasonable; therefore, I would not disturb the trial court’s award of attorney’s fees.

Conclusion

¶46. I disagree that Chrestman presented substantial evidence that the Mick-alowskis failed to provide the required notice to Chrestman with regard to wholesale activities within Lee County. I also disagree that the evidence was sufficient to prove that the Mickalowskis failed to provide the required notice of wholesale activities outside Lee County but within the restricted area. The obligations of that provision of the non-compete were not triggered without notice from Chrestman that he had established a “retail presence” in that area, and while Chrestman presented evidence that he had established a “retail presence” through the use of advertising and gave testimony regarding his sales in that restricted area, there is no evidence that Miekalowski was aware of Chrest-man’s “retail presence.” The signing of the non-compete, by itself, is not sufficient notice to Miekalowski that Chrestman established a “retail presence.” To the contrary, the plain language of the contract identifies Chrestman’s “retail presence” as a condition precedent not yet established. Finally, I disagree with the trial court’s decision to award the entire value of the non-compete agreement as compensatory damages and to award punitive damages. The evidence does not establish that Chrestman received no value from the non-compete agreement, nor is it clear that the award of punitive damages was proper. For the foregoing reasons, I respectfully dissent.

CHANDLER AND ISHEE, JJ., JOIN THIS OPINION.


source: Caselaw Access Project

author: CHANDLER, J.,

license: Public Domain

text:
    James K. HENSARLING, M.D., Appellant, v. Sandra HOLLY, M.D., Appellee.
    No. 2003-CA-00096-COA.
    Court of Appeals of Mississippi.
    June 5, 2007.
    Rehearing Denied Oct. 16, 2007.

      Joel W. Howell, Jackson, attorney for appellant.
    Samuel 0. Morris, Jackson, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Dr. James K. Hensarling appeals the dismissal of his medical malpractice suit, claiming that the trial court abused its discretion by dismissing his case with prejudice for failure to timely prosecute the case.

FACTS

¶2. On September 11, 1998, the day before the two-year statute of limitations was to expire, Hensarling filed a complaint against Dr. Sandra Holly, Dr. Ed Burchak, Baptist Behavioral Health Services and the Mississippi Baptist Medical Center, Inc. in the Circuit Court of Hinds County. Hensarling alleged damages for medical negligence that arose out of a single psychiatric evaluation with Holly at Baptist Behavioral Health Services on September 12,1996.

¶ 3. On January 8, 1999, Burchak, Mississippi Baptist Medical Center and Baptist Behavioral Health Services were personally served with process through their personal representatives. However, the proof of process affidavits from the process server were not filed with the court until November 14, 2002. Holly was not served with process until January 13,1999, after the 120-day service of process time limit had lapsed. On January 10, 1999, the statute of limitations began to run again and lapsed on January 11, 1999, before process was served on Holly. No answers were filed by any of the defendants.

¶ 4. No further action occurred in the case until October 4, 2002, when Hensar-ling moved to substitute Joel Howell, III, as his counsel. On November 12, 2002, the trial court denied Hensarling’s motion to substitute counsel and dismissed the case sua sponte based on the failure to prosecute. The court found that (1) Hensarling failed to show proof that service of process was perfected within 120 days of filing the complaint, (2) more than ninety days had passed since the filing of the complaint and no discovery had been filed, nor had any extension of discovery been requested by the court for more than four years, and (3) Hensarling had been dilatory in prosecuting his claim since nothing had been filed with the court since the initial complaint on September 11, 1998, with the exception of the motion to substitute counsel on October 4, 2002.

STANDARD OF REVIEW

¶ 5. The trial court has the power to dismiss for failure to prosecute as a means necessary to the orderly expedition of justice and the court’s control of its own docket. Watson v. Lillard, 493 So.2d 1277, 1278 (Miss.1986). Dismissal may be exercised sua sponte where a motion by a party is lacking. Id. This Court will reverse a trial court’s decision to dismiss only if the trial court abused its discretion. Wallace v. Jones, 572 So.2d 371, 375 (Miss.1990)

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED BY DISMISSING HEN-SARLING’S CASE WITH PREJUDICE.

A. Dismissal of the case with prejudice

¶ 6. Hensarling submits that the trial court abused its discretion in dismissing his case with prejudice because there was no egregious or contumacious conduct that would require this drastic penalty. Hen-sarling further argues that the trial court erred by not considering lesser alternatives to dismissal.

¶ 7. Pursuant to Rule 41(b) of the Mississippi Rules of Civil Procedure, a court may dismiss a plaintiffs claims for want of prosecution, which is a penalty for dilatoriness. See also Miss.Code Ann. § 11-53-25 (Rev.2002). The power to dismiss for failure to prosecute is an inherent power in any court of law or equity and has been regarded as a means necessary to control the court’s docket and promote the orderly expedition of justice. Watson, 493 So.2d at 1278. Unless otherwise specified in its order, a dismissal under Rule 41(b) is an adjudication on the merits of the case and is with prejudice. Taylor v. GMC, 717 So.2d 747, 748(¶ 5) (Miss.1998). However, “past Mississippi practice has tempered this harsh result by allowing dismissed cases to be reinstituted, except in extreme situations.” Id.

¶ 8. The law favors a trial of issues on the merits; therefore, a dismissal for want of prosecution is reluctantly applied. AT & T v. Days Inn, 720 So.2d 178, 180(¶ 12) (Miss.1998). Mississippi does not set a time limit for the prosecution of an action once it has been filed. Id. However, if the record shows that a plaintiff has been guilty of dilatory or contumacious conduct, or has repeatedly disregarded the procedural directives of the court, such a dismissal is likely to be upheld. Id. Thus, “Rule 41(b) dismissals with prejudice will be affirmed only upon a showing of ‘a clear record of delay or contumacious conduct by the plaintiff,’ ... and where lesser sanctions would not serve the best interests of justice.” Id. at 181(¶ 13) citing Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir.1982). What constitutes failure to prosecute depends on the facts of the particular case. Wallace, 572 So.2d at 376.

¶ 9. “While the requirements of a clear record of delay by the plaintiff and futile lesser sanctions have been articulated the most consistently, several other factors have been identified as ‘aggravating factors.’ ” AT & T, 720 So.2d at 181(¶ 13). These include “the extent to which the plaintiff, as distinguished from his counsel, was personally responsible for the delay, the degree of actual prejudice to the defendant, and whether the delay was the result of intentional conduct.” Id. (citing Rogers, 669 F.2d at 320). In Rogers, the court noted that dismissal “is reserved for the most egregious of cases, usually cases where the requisite factors of clear delay and ineffective lesser sanctions are bolstered by the presence of at least one of the aggravating factors.” 669 F.2d at 320.

¶ 10. Therefore, we must evaluate this case under a two-part test. First, there must be a clear record of delay or contumacious conduct on the part of Hensarling. Second, we must determine from the record if lesser sanctions would have been sufficient to serve the best interests of justice, and we will also look to whether certain aggravating factors are present.

i. Clear record of delay or contumacious conduct

¶ 11. Hensarling maintains that no clear record of delay exists and absent contumacious conduct, the first requisite of the two-part test fails. He argues that the action taken by requesting new counsel indicates a desire to hasten the resolution of this matter and because the record is void of any intentional conduct by himself to delay the case, it should be reinstated.

¶ 12. Hensarling claims that where the plaintiff has taken prompt and positive steps toward the disposition of the cause and has not deliberately created delay, no plaintiff-culpability is established. Vosbein v. Bellias, 866 So.2d 489, 493(¶ 7) (Miss.Ct.App.2004). However, “where a clear record of delay has been shown ..., there is no need for a showing of contumacious conduct.” Hine v. Anchor Lake Prop. Owners Ass’n, 911 So.2d 1001, 1005(¶ 14) (Miss.Ct.App.2005).

¶ 13. The record demonstrates that Hensarling has been dilatory in the prosecution of his case. Hensarling filed his complaint the day before the statute of limitations expired. He then had 120 days in which to serve all of the defendants in the case, effectively tolling the statute of limitations. Hensarling served most of the defendants one day before the time lapsed under Rule 4(h) of the Mississippi Rules of Civil Procedure. He claims that he was unable to serve the final defendant, Holly, within the required time because she was out of town. However, had Hensarling been diligent in his attempts to serve Hoily as soon as the 120 days began to run, then he may not have found himself in the unfortunate situation of being unable to locate Holly within the required time. Moreover, several options for service of process exist under Rule 4. Hensarling could have employed the use of other types of service of process in the event that personal service of process failed. When Holly was finally served on January 13, 1999, both the time for service of process and statute of limitations had lapsed. We also note that the proofs of service of process were not filed with the court until after the court had dismissed the case in 2002. Hensarling’s former attorney also filed an affidavit with the court after the court had dismissed the case. In his statement, the attorney noted that the suit was “held in abeyance pending resolution of matters with the State Board of Medical Examiners, which has been accomplished.”

¶ 14. Hensarling neither requested an extension of time within which to serve the defendants nor attempted to refile his case or request discovery. No action occurred in this case until Hensarling submitted a motion to substitute counsel more than four years after he initially filed the case. Thus, we find a clear record of delay and, as such, we need not consider whether there has been contumacious conduct.

ii. Lesser sanctions

¶ 15. We next consider whether lesser sanctions may have better served the interests of justice. Hoffman v. Paracelsus Health Care Corp., 752 So.2d 1030, 1035(¶ 16) (Miss.1999). We are less likely to uphold a Rule 41(b) dismissal when the lower court does not consider alternative sanctions. Id. Lesser sanctions include “fines, costs, or damages against plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings.” Wallace, 572 So.2d at 377. Hensarling maintains that the trial court clearly erred because the court failed to consider lesser sanctions and failed to make a showing on whether a lesser remedy would have sufficed.

¶ 16. The record does not indicate whether the lower court specifically considered lesser sanctions. The dismissal order merely states that the court reviewed the file and the motion to substitute counsel, denied the motion, and dismissed the case for failure to prosecute. It has been held that the trial court “need not make a ‘showing’ that lesser sanctions would not suffice.” Hine, 911 So.2d -at 1005(1117). When a trial judge does not make specific findings of fact, we will “assume that the trial judge made all findings of fact that were necessary to support his verdict.” Watson, 493 So.2d at 1279. In Watson, our supreme court held that a trial judge’s findings of fact on a Rule 41(b) dismissal were to be presumed. Id. In the instant case, therefore, we must presume that the trial court made the requisite findings to support his ruling that lesser sanctions would have been insufficient.

¶ 17. Further, when we consider certain aggravating factors, such as the prejudice to the defendant, we find that the record is sufficient to show that lesser sanctions would not have served the best interest of justice. As the lower court noted, Hensarling failed to timely serve process on Holly, failed to conduct any sort of discovery within the required time, and failed to diligently prosecute the case for four years. Almost nine years have passed since the initial complaint was filed. The passage of time in this case may have altered the physical evidence available. Hine, 911 So.2d 1001, 1006(¶ 18) (Miss.Ct.App.2005) (plaintiffs delay in dragging case out over seven years was prejudicial to defendant). The ninety day discovery limit has lapsed, as have the statute of limitations and time in which to serve Holly with proper service of process. It is unclear how anyone’s memory will be tested in discovery at this point, or whether any evidence is still available.

¶ 18. In addition, it is difficult for us to see how attorney discipline, fines, or even a dismissal without prejudice would serve the best interests of justice at this time. There is no evidence to support an argument that the case would be prosecuted any differently if it were reinstated. We find the delay is certainly prejudicial to the defendants and it would not serve the best interest of justice to reinstate this case. Thus, we find that the dismissal of this case with prejudice was not an abuse of discretion.

B. Notice to Hensarling before sua sponte dismissal

¶ 19. Hensarling further argues that the court, before considering dismissal, did not provide notice to him as required under Rule 4(h) of the Mississippi Rules of Civil Procedure. By not having notice of the dismissal, Hensarling claims he was deprived of an opportunity to show good cause. We find this argument to be without merit.

¶ 20. Rule 4(h) of the Mississippi Rules of Civil Procedure requires dismissal of the case if the plaintiff fails to serve process on a defendant within 120 days:

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

M.R.C.P. 4(h). In the present case, Hen-sarling had filed a motion to substitute counsel more than four years after he filed the initial complaint. Service of process on Holly was not made within the time requirement proscribed by Rule 4(h). Therefore, the court had the power, on its own initiative, to dismiss the case. M.R.C.P. 4(h). The notice provided to Hensarling was in the form of the order of dismissal. Rule 4(h) does not state that notice be given to Hensarling prior to the court’s consideration of the dismissal of the case, only that the court notify Hensar-ling of the dismissal itself.

¶ 21. Moreover, the burden is on the plaintiff to show good cause as to why the service was not made within the 120 days. M.R.C.P. 4(h). Hensarling attempted to demonstrate good cause only after the court had dismissed his case, when he filed the proofs of service of process and an affidavit from the process server stating that Holly was out of town when service of process was attempted. An affidavit from Hensarling’s former attorney was also filed after the dismissal which stated that the delay of prosecution was due to a resolution of matters with the State Board of Medical Examiners. But as we noted above, Hensarling had the option to either refile the case before the statute of limitations ended or show good cause as to why he was unable to perfect service of process within the time required. Holmes v. Coast Transit Auth., 815 So.2d 1183, 1185(¶ 7) (Miss.2002). Hensarling failed to take any action whatsoever in the case. Therefore, we find Hensarling’s arguments to be without merit and we affirm the lower court’s dismissal of the case.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY DISMISSING THE CASE WITH PREJUDICE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The 120 day deadline lapsed on January 9, 1999, pursuant to Rule 4 of the Mississippi Rules of Civil Procedure.

      . According to Holly, she never made an appearance in the underlying case because she relied on Hensarling's original counsel who represented that Hensarling planned to dismiss Holly from the lawsuit. Therefore, Holly states that she did not file a motion to dismiss for defective service of process. She also maintains that the trial court's sua sponte dismissal of the present case made it unnecessary to file the motion to dismiss.


author: BARNES, J.,

text:
    Anthony Ryan LOVELESS, Appellant, v. CITY OF BOONEVILLE, Mississippi, Appellee.
    No. 2005-KM-02017-COA.
    Court of Appeals of Mississippi.
    June 5, 2007.
    Rehearing Denied Sept. 25, 2007.

      Tommy Dexter Cadle, Kenneth Eugene Floyd, attorneys for appellant.
    William Wayne Smith, Bonneville, attorney for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Anthony Ryan Loveless was convicted on October 3, 2005, for driving under the influence of intoxicating liquor, possession of beer in a dry county, possession of whiskey, and careless driving. Aggrieved by the judgment rendered following a bench trial in this matter, Loveless appeals, asserting the following errors: (1) Loveless was subjected to double jeopardy when his trial was continued following the beginning of testimony by the City’s first witness, (2) the arresting officer did not have probable cause to initiate a traffic stop of Loveless, and, (3) the citations issued to Loveless were insufficient/improper and did not confer jurisdiction upon the court. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In the early morning hours of August 1, 2003, Anthony Ryan Loveless was stopped in the north-bound lane at a four-way stop sign in the City of Booneville, Mississippi. Directly across from Loveless, in the south-bound lane, Booneville Police Officer Bryon Parker was also stopped at the four-way stop. According to Officer Parker, while the two vehicles were awaiting their turn to proceed, Officer Parker heard loud music emanating from Loveless’s vehicle. After Loveless proceeded north through the intersection, Officer Parker turned his cruiser around and followed Loveless with the intention of pulling him over and warning Loveless to turn the volume of the music down. Officer Parker testified that, while he was following Loveless, he witnessed Loveless cross over the center line, with both driver’s side tires crossing over into the southbound lane. At this point, Officer Parker turned on his blue lights, signaling Loveless to pull over. Loveless drove a short distance further and then pulled over without incident.

¶ 3. Upon approaching Loveless’s vehicle, Officer Parker noticed a strong odor of alcohol coming from the vehicle. Officer Parker also testified that Loveless’s speech was slurred. After observing these signs of intoxication, Officer Parker asked Loveless to exit his vehicle. When he did so, Officer Parker noticed a beer can in the console of Loveless’s vehicle, which Parker discovered was about half full, or half empty. In addition, Officer Parker testified that he continued to detect the aroma of beer on Loveless’s breath after they went to the rear of Loveless’s vehicle. A search of Loveless’s vehicle revealed a bottle of vodka and four unopened cans of beer located in a box behind the seat of Loveless’s vehicle. •

¶4. Based on the illegal possession of beer and vodka, and pursuant to Officer Parker’s suspicion that Loveless was driving under the influence, Loveless was transported to the Justice Center where Officer Parker administered field sobriety tests, including: the horizontal gaze nys-tagmus test, the walk and turn test, and the one-leg stand test. Loveless refused to take the breathalyzer test on the Intoxi-lyzer 5000; however, based on Loveless’s performance in the field sobriety tests, his slurred speech, and evidence of alcohol consumption, Officer Parker determined that Loveless was under the influence of intoxicating liquor at the time he was operating his vehicle. Accordingly, Loveless was arrested and charged with driving under the influence, possession of beer in a dry county, possession of whiskey, and careless driving.

¶ 5. Loveless was tried and convicted of all four charges in the Municipal Court of Booneville, Mississippi, and Loveless timely filed an appeal with the Circuit Court of Prentiss County. A trial de novo was commenced on March 5, 2004, and the City called its first witness, Officer Parker. Officer Parker was sworn and had responded to a few background questions when Loveless interposed an objection to Officer Parker’s testifying based on an alleged discovery violation under Rule 9.04 of the Uniform Circuit and County Court Rules. Specifically, Loveless argued that the City had failed to furnish a witness list identifying Officer Parker as a potential witness. The City responded by pointing out that, in response to Loveless’s discovery request, the following letter was furnished:

In response to your letter of February 26, 2004 my file reflects that I provided you with information regarding this case by letter of September 10, 2003 which was prior to the trial of this case in city court.
I have no additional evidence other than the evidence which was presented in the city court at the trial of this case.

Loveless argued that the City’s response did not satisfy the disclosure requirements outlined in Rule 9.04, and therefore, he argued, the City could not offer the testimony of Officer Parker.

¶ 6. After hearing the argument of both parties, the circuit court offered Loveless the opportunity to interview Officer Parker or, in the alternative, offered to grant a continuance. Loveless refused to accept either alternative and argued that jeopardy attached and that the case should be dismissed. The circuit court ruled that jeopardy had not attached and granted a continuance over Loveless’s objection, continuing the trial from its March 5, 2004 setting until September 24, 2004.

¶ 7. Trial in this matter was subsequently reset three times, and Loveless’s bench trial was ultimately conducted on June 20, 2005. The circuit court’s judgment convicting Loveless of careless driving, driving under the influence of intoxicating liquor in violation of Mississippi Code Annotated section 63 — 11—30—(l)(a) (Rev.2004), possession of beer in a dry county, and possession of vodka in violation of the Mississippi Local Option Alcoholic Beverage Control Act was entered on October 3, 2005. Loveless filed his notice of appeal on October 25, 2005. His argument to this Court is that the circuit court erred by finding that jeopardy had not attached when the first witness was sworn, that the circuit court erred in finding that probable cause existed to allow Officer Parker to initiate the traffic stop on Loveless, and that the circuit court erred in failing to dismiss this case for lack of jurisdiction. Loveless contends that jurisdiction was lacking in this case due to insufficient and improper affidavits with respect to the charges of DUI, possession of whiskey, and possession of beer in a dry county. Finding no reversible error in Loveless’s assignments of error, we affirm the judgment of the circuit court.

DISCUSSION

1. Double Jeopardy

¶ 8. Loveless objected to the testimony of the City’s first witness, Officer Parker, and argued to the circuit court that the City’s letter responding to Loveless’s discovery request did not comply with Uniform Circuit and County Court Rule 9.04(A)(1). According to that provision, upon written request the prosecution must provide to the defendant or defendant’s attorney, among other information, the “[njames and addresses of all witnesses in chief proposed to be offered by the prosecution at trial.... ” Loveless contended that, rather than referencing evidence and witnesses presented at the trial in municipal court, Rule 9.04 mandated that a new list be provided with the names and addresses of witnesses in chief to be called at the de novo trial in circuit court. Because Rule 9.04 was not followed, Loveless argued that the City was not allowed to present the testimony of Officer Parker. The circuit court stated that it would not dismiss the case based on the City’s alleged discovery violation. Rather, the circuit court offered Loveless the alternative remedies outlined by Rule 9.04(1), which provides, in pertinent part, as follows:

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

¶ 9. Although the circuit court did not explicitly state that the City Prosecutor violated the discovery rules outlined in Rule 9.04, the trial judge at least implicitly found that Rule 9.04 had not been technically complied with when she offered Loveless the benefit of the remedial provisions of Rule 9.04(I). Loveless refused the circuit court’s offer to allow him the opportunity to interview Officer Parker. Loveless likewise refused the court’s alternative offer of a continuance, asserting that because Officer Parker began testifying, jeopardy attached and any agreement to a continuance would waive Loveless’s double jeopardy defense. The circuit court nevertheless continued the case, and Loveless was finally tried and convicted approximately one year and three months after his trial began. On appeal, Loveless argues that he was placed in double jeopardy when the circuit court resumed his trial following the extended continuance. Although we agree that jeopardy attached when the City’s first witness was sworn and began giving testimony, we are not persuaded that Loveless was subjected to double jeopardy based on the circuit court’s continuance.

¶ 10. “The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from repeated prosecutions for the same offense.” Oregon v. Kennedy, 456 U.S. 667, 671, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982) (citing United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976)). “As a part of this protection against multiple prosecutions, the Double Jeopardy Clause affords a criminal defendant a ‘valued right to have his trial completed by a particular tribunal.’” Id. at 671-72, 102 S.Ct. 2083 (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949)). After jeopardy attaches in a criminal proceeding, “if a mistrial is granted upon the court’s own motion, or upon the state’s motion, a second trial is barred because of double jeopardy unless there was a manifest necessity for the mistrial, taking into consideration all the circumstances.” Watts v. State, 492 So.2d 1281, 1284 (Miss.1986) (citing Jones v. State, 398 So.2d 1312 (Miss.1981)). “In a jury trial, jeopardy attaches once the jury has been empaneled and sworn.” Wheeler v. State, 826 So.2d 731, 738(¶ 26) (Miss.2002) (citing Simmons v. State, 746 So.2d 302, 309 (Miss.1999)).

¶ 11. Our analysis in the instant case begins with the question of whether jeopardy had attached at or prior to the time Officer Parker was sworn and began giving testimony. We must then determine whether the continuance at issue was sufficiently like a mistrial such that resumption of the trial constituted a second jeopardy. If either question is answered in the negative, then we need not address the “manifest necessity” prong of double jeopardy analysis.

¶ 12. In King v. State, 527 So.2d 641 (Miss.1988), our supreme court was presented with issues similar to those before this Court. Specifically, the King court addressed the questions of when jeopardy attaches in a bench trial, and whether a continuance in a bench trial is sufficiently similar to a mistrial in a jury proceeding so as to trigger double jeopardy scrutiny. As to the first question, the King court agreed with the appellant’s argument “that jeopardy attaches for a bench trial when the first witness is sworn.” Id. at 643 (citing U.S. v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977)). With respect to whether a bench trial continuance is comparable to a mistrial in a jury proceeding, the supreme court stated that “a continuance is not a mistrial in all situations, especially where, as here, the continuance is granted without defendant’s objection.” Id. at 644. In addressing this question, our supreme court considered the following language from Webb v. Hutto, 720 F.2d 375 (4th Cir.1983), a case in which a five-day continuance was deemed not violative of the Double Jeopardy Clause:

The simple, yet to us controlling, consideration is that the accused must be placed in jeopardy twice for double jeopardy to exist. It happens when the second event involves a completely new beginning, i.e., when the second proceeding takes place before a new trier of fact, whether that be a different judge or jury, or the same judge starting with a clean slate. It simply does not occur when the very same proceeding continues on after a brief postponement before the first and only trier of fact, as was the case here.

Id. (quoting Webb, 720 F.2d at 379). Finding it “indisputable that the subsequent proceeding was a continuation of the first hearing,” noting the defendant’s failure to object to the continuance, and comparing the brief six-day continuance at issue to the five-day continuance in Webb, the King court found that the continuance was not sufficiently like a mistrial, and therefore, the resumption of the proceedings did not constitute double jeopardy. Id. Since double jeopardy scrutiny was not warranted, the King court deemed it unnecessary to address the “manifest necessity” prong of double jeopardy analysis as discussed in Watts, 492 So.2d at 1284. King, 527 So.2d at 644.

¶ 13. In the instant case, although the delay caused by the continuance was not brief as compared to the delays at issue in King and Webb, we find that since Loveless’s trial resumed before the same trier of fact and was not “a completely new beginning,” Loveless was not subjected to double jeopardy. Accordingly, while jeopardy attached at the time Office Parker was sworn and began giving testimony on March 5, 2004, the resumption of Loveless’s trial on June 20, 2005, was merely a continuance of the March 5, 2004, proceeding and, therefore, did not constitute double jeopardy. Since the resumption of Loveless’s bench trial did not constitute double jeopardy, we need not determine whether there was manifest necessity for the continuance in this case. See id.

¶ 14. We also note that, while the King court “lean[ed] toward accepting the rationale of the Fourth Circuit in Webb,” the supreme court nevertheless briefly discussed State v. O’Keefe, 135 N-J.Super. 430, 343 A.2d 509 (1975). King, 527 So.2d at 644. In O’Keefe, the New Jersey Supreme Court stated that “[e]ven though a declaration of mistrial caused by prosecu-torial neglect would bar retrial, a continuance in the course of a trial caused by prosecutorial neglect should not bar resumption unless the neglect is inexcusable and the continuance is an unreasonable break in the continuity of the trial.” O’Keefe, 343 A.2d at 515. Hence, according to O’Keefe, a continuance caused by prosecutorial neglect does not result in double jeopardy unless the neglect was (1) inexcusable, and (2) the length of the continuance constituted an unreasonable break in continuity.

¶ 15. We find that O’Keefe, even though not explicitly adopted by our supreme court, would compel the same conclusion that we reach in relying on the reasoning of Webb and King. The conclusion that double jeopardy was not implicated by the continuance and resumption of Loveless’s trial is compelled by O’Keefe inasmuch as the city prosecutor’s neglect, if any, in not complying with Loveless’s discovery request as required by Rule 9.04 did not rise to the level of inexcusable neglect. First, in its discovery response, the City asserted that it would introduce the same evidence and testimony in circuit court as was introduced during the municipal court trial, a response that was neither elusive nor prejudicial to Loveless. Second, assuming, without deciding, that the City’s response was technically deficient, we note that Loveless received the City’s allegedly deficient discovery response at least two days prior to the March 5, 2004, trial, and Loveless could have sought supplemental discovery prior to Officer Parker’s taking the witness stand. Additionally, we note that the trial court addressed other pretrial matters on the day of trial but prior to commencement of the proceedings, and Loveless could have raised the allegedly defective discovery response at that point. However, Loveless failed to object to Officer Parker’s giving testimony until after the officer was sworn and began testifying, apparently with the intention of having the charges dismissed. Considering the timing and sequence of the events just described, as well as the City Prosecutor’s apparent lack of bad faith in responding to Loveless’s discovery request, we find no inexcusable neglect on the part of the prosecutor. Accordingly, application of the O’Keefe test to the facts of this case leads us to the same conclusion that we reach pursuant to the reasoning of Webb and King: that Loveless was not subjected to double jeopardy.

2. Probable Cause

¶ 16. Loveless argues that, since Officer Parker could not cite the noise ordinance that Loveless was allegedly violating on the morning in question, and could not recite the elements which constitute a violation of the ordinance, there was no probable cause to make a traffic stop which led to Loveless’s arrest. Based on this lack of probable cause, Loveless asserts error by the circuit court “in finding that there was probable cause to initiate the stop of’ Loveless. We disagree.

¶ 17. With regard to Officer Parker’s inability to cite the noise ordinance and elements for a violation thereof, we note that it is impractical to expect an officer of the law to possess the level of knowledge which Loveless claims, at least implicitly, that an officer should have with respect to every law an officer is charged with enforcing. We suspect that even the most knowledgeable legal scholar could not spontaneously recite the citation and elements of all of the criminal statutes and ordinances which are in effect in Mississippi.

¶ 18. Such a level of knowledge is not required to establish probable cause for an arrest or a traffic stop. Instead, “the test for probable cause in Mississippi is the totality of the circumstances.” Harrison v. State, 800 So.2d 1134, 1138(¶ 18) (Miss.2001) (citing Haddox v. State, 636 So.2d 1229, 1235 (Miss.1994)). Probable cause has been further defined as:

a practical, nontechnical concept, based upon the conventional consideration of every day life on which reasonable prudent men, not legal technicians act. It arises when the facts and circumstances with[in] an officer’s knowledge, or of which he has reasonably trustworthy information, are sufficient in themselves to justify a man of average caution in the belief that a crime has been committed and that a particular individual committed it.

Id. (quoting Conway v. State, 397 So.2d 1095, 1098 (Miss.1980)). Even if Officer Parker’s belief that Loveless was violating a noise ordinance was based on an erroneous conclusion of law or fact, such mistake does not necessarily render the probable cause defective, as long as Officer Parker’s “probable cause [was] based on good faith and a reasonable basis then it is valid.” Id. at 1138 — 39(¶ 19) (citing United States v. Wallace, 213 F.3d 1216 (9th Cir.2000) (finding probable cause existed because of reasonable belief that suspect committed or was committing crime even though officer was mistaken that all front-window tint was illegal); United States v. Sanders, 196 F.3d 910 (8th Cir.1999) (officer objectively had reasonable basis for probable cause even though vehicle was not technically in violation of the statute); DeChene v. Smallwood, 226 Va. 475, 311 S.E.2d 749 (1984) (holding arrest resulting from mistake of law should be judged by the same test as one stemming from mistake of fact; whether the arresting officer acted “in good faith and with probable cause”)).

¶ 19. Loveless points to nothing in the record to indicate a lack of good faith and reasonable belief by Officer Parker that Loveless was violating a City of Booneville noise ordinance. However, even assuming that Officer Parker did not have probable cause to initiate a traffic stop based on the belief that Loveless violated a noise ordinance, we note that Office Parker did not turn on his blue lights and signal Loveless to stop his vehicle until Parker saw Loveless cross the center line of the road. There is no requirement that an officer have probable cause before following a motorist, and, up until the point when Loveless crossed the center line and Officer Parker engaged his blue lights, following Loveless is all that Officer Parker did. Accordingly, even if Officer Parker’s suspicion of a noise ordinance violation was not sufficient to establish probable cause, and we find that it was, Loveless’s careless driving evidenced by his crossing the center line of the road clearly established probable cause sufficient for Officer Parker to initiate the traffic stop. This assignment of error is, therefore, wholly without merit.

3. Jurisdiction

¶20. Loveless contends that the uniform traffic ticket charging him with driving under the influence, first offense, as well as the affidavits charging him with possession of beer and possession of whiskey were defective. Based on these defects, Loveless contends that the municipal court did not have jurisdiction with respect to these charges. Further, since the circuit court’s jurisdiction is only valid insofar as jurisdiction was valid in municipal court, Loveless asserts that the circuit court was without jurisdiction also.

¶ 21. Questions regarding jurisdiction and statutory construction are questions of law which we review de novo. Jensen v. State, 798 So.2d 383, 384(¶ 6) (Miss.2001). For reasons to be discussed below, we find that the errors or omissions contained in the uniform DUI citation and possession affidavits do not render these documents defective. Therefore, jurisdiction was properly exercised in this case, and any argument to the contrary is without merit.

¶ 22. Loveless points out that the DUI citation indicated an arraignment date of August 18, 2003, at 3:30, but did not indicate whether it would be a.m. or p.m. Further, the citation lists the municipal court address as 203 N. Main Street when in fact the address for the municipal court was 1901 East Chambers Drive. According to Loveless, the Booneville Municipal Court had been situated at the Chambers Drive location “for some time prior to” issuance of the DUI citation. Because of these errors, Chambers contends that the DUI citation did not comply with Mississippi Code Annotated section 63-9-21(3)(c) (Supp.2003), which provides, in relevant part, as follows:

Every traffic ticket shall show, among other necessary information, the name of the issuing officer, the name of the court in which the cause is to be heard, and the date and time such person is to appear to answer the charge. The ticket shall include information which will constitute a complaint charging the offense for which the ticket was issued, and when duly sworn to and filed with a court of competent jurisdiction, prosecution may proceed thereunder.

¶ 23. Referring to the information required by subsection (3)(c), our supreme court in Wheeler v. Stewart, 798 So.2d 386, 390(¶ 8) (Miss.2001) stated that “[a] traffic ticket that contains this information constitutes a ‘sworn affidavit’ as referred to in Section 21-23-7(1) when the officer who issues the ticket has it properly attested and filed with the proper court.” Because Loveless’s DUI citation does not contain an a.m. or p.m. designation, he contends that it did not comply with the “time such person is to appear” requirement of section 63-9-21(3)(c). Relying on Wheeler and an opinion of the Mississippi Attorney General interpreting section 63 — 9—21(3)(c) in light of Wheeler, Loveless argues that this omission, as well as the listing of the incorrect municipal court address, rendered the citation fatally defective.

¶ 24. The Mississippi Supreme Court has stated that, “[although a statute imposing criminal penalties must be strictly construed in favor of the accused, it should not be so strict as to override common sense or statutory purpose.” Palmer v. City of Oxford, 860 So.2d 1203, 1211(¶ 23) (Miss.2003) (citing United States v. Brown, 333 U.S. 18, 25, 68 S.Ct. 376, 92 L.Ed. 442 (1948); State v. Burnham, 546 So.2d 690, 692 (Miss.1989)). Furthermore, “[s]trict construction- means reasonable construction.” Id. (citing State v. Martin, 495 So.2d 501, 502 (Miss.1986)). We hold that to deem the citation at issue defective based on the lack of an a.m. or p.m. designation would require this Court to construe section 63 — 9—21 (3)(c) so strictly so “as to override common sense [and the] statutory purpose” of that provision.

¶ 25. Regarding the incorrect municipal court address listed on Loveless’s DUI citation, we note that section 63 — 9—21(3)(c) does not require that the address of the municipal court be contained on the citation. While prudence suggests that correct information be provided in order to avoid prejudice caused by incorrect information, we note that Loveless does not allege, and the record does not reveal, that he suffered any such prejudice. Accordingly, neither the p.m. omission nor the incorrect municipal court address prevented the municipal and circuit courts from properly asserting jurisdiction over Loveless’s DUI charge. We turn now to Loveless’s contention that the affidavits charging him with unlawful possession of beer and unlawful possession of whiskey were defective.

¶26. The “Police Justice Affidavit” citing Loveless for “willfully and unlawfully” possessing beer in violation of “an order of the Board of Supervisors of Prentiss County, Mississippi ... against the peace and dignity of the State of Mississippi” does not contain a reference to any Mississippi statute. In addition to not citing a Mississippi statute, the affidavit charging Loveless with “willfully and unlawfully possessing] 750ml of Taaka vodka” does not reference any local ordinance or order that Loveless was charged with violating. Loveless cites Brown v. State, 241 Miss. 838, 133 So.2d 529 (1961) to support his argument that these affidavits were deficient for failing to cite section 67-3-13 of the Mississippi Code.

¶ 27. In Brown, the supreme court held that the affidavit charging the defendant with unlawful possession of homemade beer was insufficient for failing to “allege that the possession was in violation of Chapter 279, Laws of 1958.Id. at 840, 133 So.2d at 530. However, the supreme court subsequently held “[i]n Armstead v. State, 503 So.2d 281 (Miss.1987) ... that all questions regarding the sufficiency of indictments are determinable by reference to Rule 2.05 [of the Uniform Criminal Rules of Circuit Court Practice] which articulated seven elements which are to be included in any indictment.” Nguyen v. State, 761 So.2d 873, 875(¶ 7) (Miss.2000) (citing Armstead, 503 So.2d at 283). Rule 7.06 of the Uniform Circuit and County Court Rules, adopted effective May 1, 1995, contains the same seven elements as former Rule 2.05 and governs indictments and other criminal complaints such as the affidavits at issue in the case sub judice. See id. With respect to the specificity with which an indictment must describe the charged crime, Rule 7.06, in parts relevant to the alleged error, provides as follows:

The indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation. Formal and technical words are not necessary in an indictment, if the offense can be substantially described without them....

¶ 28. We note that the affidavit charging Loveless with unlawful possession of beer and the affidavit charging him with unlawful possession of whiskey both comply with the relevant portion of Rule 7.06 set forth above. Both affidavits plainly and concisely set forth the essential facts underlying the respective charges with sufficient clarity and definiteness such that Loveless was adequately notified of the “nature and cause of the accusation[s]” against him. Accordingly, the failure to reference section 67-3-13 of the Mississippi Code did not render these affidavits defective, and Loveless’s argument to the contrary is without merit.

¶ 29. THE JUDGMENT OF THE PRENTISS COUNTY CIRCUIT COURT OF CONVICTION OF DRIVING UNDER THE INFLUENCE FIRST OFFENSE, CARELESS DRIVING, POSSESSION OF BEER IN A DRY COUNTY, AND UNLAWFUL POSSESSION OF WHISKEY, AND SENTENCE OF TWO DAYS IN JAIL WITH TWO DAYS SUSPENDED AND $1,550 IN FINES IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . At the time he gave testimony at the trial in this matter, Officer Parker was working for the Prentiss County Sheriffs Department; however, he was working for the City when the events which gave rise to this action occurred.

      . The record reflects that, prior to Loveless's objection, Officer Parker testified to his name, rank, that he was employed as a police officer in the City of Booneville on August 1, 2003, and that he had been employed as a police officer since 1998.

      . The record reflects subsequent continuances from September 24, 2004, until March 11, 2005, due to the trial judge's unavailability, and from March 11, 2005, to June 22, 2005, pursuant to a motion by Loveless. Finally, upon motion by Loveless, trial was reset for June 20, 2005, and proceedings were had and concluded on that date.

      . The trial judge expressed her opinion that, in light of defense counsel's involvement in the municipal proceedings, allowing Loveless the benefit of the remedial provisions outlined in Rule 9.04(1) was "overkill.” Because this issue is not presented for our review, we do not express any opinion as to whether the City’s initial response to Loveless's discovery request complied with Rule 9.04.

      . We note that, despite the circuit court’s unrequested grant of a continuance in this case, Rule 9.04(I)(2) requires the granting of a mistrial or continuance only upon a claim of “unfair surprise or undue prejudice” followed by a request for a continuance or mistrial by the defense. Loveless made no request for a continuance and, in fact, objected to the court’s grant of a continuance.

      .As pointed out in footnote three, above, at least part of the continuation in this case is attributable to Loveless.

      . As alluded to above, Loveless was represented by the same counsel during the circuit court and municipal court proceedings. Accordingly, the City’s representation that it would call only those witnesses that were called at the trial in municipal court clearly informed Loveless of the witnesses it intended to call at trial in circuit court.

      . The record reflects that Loveless’s letter requesting discovery prior to trial in circuit court was dated February 26, 2004, and the City’s letter in response was dated March 2, 2004, and stamped "Received” on March 3, 2004.

      .The circuit judge ruled that the prosecution would not be allowed to introduce the videotape showing Loveless's demeanor after the traffic stop, evidence which was introduced during the municipal court trial. Without this evidence, Officer Parker’s testimony was the only evidence of Loveless’s intoxication that the City planned to present.

      . Because Loveless addresses this issue under a probable cause analysis rather than a reasonable suspicion analysis, without challenge by the City, we do the same. However, it should be noted that the lesser standard of reasonable suspicion applies in making investigatory traffic stops. See Floyd v. City of Crystal Springs, 749 So.2d 110, 114-15 (Miss. 1999) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)). The Mississippi Supreme Court has recognized that under reasonable circumstances an officer may stop a suspect "to resolve an ambiguous situation" with less knowledge than justifies arrest, i.e. on less than probable cause. Floyd v. City of Crystal Springs, 749 So.2d 110, 114(¶ 16) (Miss. 1999) (citing Singletary v. State, 318 So.2d 873, 876 (Miss.1975)). Under this lesser standard, a suspect may be stopped if there is "reasonable suspicion, grounded in specific and articulable facts," taken in the totality of the circumstances, that the detaining officer had a "particularized and objective basis for suspecting the particular person stopped of criminal activity,” even if there is no probable cause to arrest the suspect. Id. (quoting U.S. v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)).

      . The attorney general opinion cited by Loveless concluded that a citation giving “notice to the defendant to either pay the ticket [within thirty days] or contact the court does not satisfy the requirements of Section 63- — 21 (3)(c).” Municipal Traffic Tickets, 000015214 Op. Att’y Gen. No.2002-0487 (2002).

      . Subsection one of this statute makes it unlawful to possess beer in a county which has elected to "prohibit the transportation, storage, sale, distribution, receipt and/or manufacture of wine and beer....” Miss. Code Ann. § 67-3-13(1) (Rev.2005).

      . Chapter 279, Laws of 1958 is currently codified at section 67-3-13 of the Mississippi Code.


text:
    Travis SHANKS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2006-CP-00729-COA.
    Court of Appeals of Mississippi.
    June 12, 2007.
    Rehearing Denied Sept. 25, 2007.
    Travis Shanks (Pro Se), attorney for appellant.
    Office of the Attorney General by Desh-un Terrell Martin, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Travis Shanks appeals the denial of his post-conviction relief motion (PCR). Shanks pled guilty to murder pursuant to Mississippi Code Annotated section 97-3-19(l)(a) (Rev.2006), and was sentenced to serve life in the custody of the Mississippi Department of Corrections.

FACTS

¶2. Shanks shot David Smalls while committing a robbery on October 30, 2002, in Claiborne County, Mississippi. Smalls was shot in the head five times and subsequently died from his wounds. Shanks pled guilty to murder on March 24, 2003, and was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections.

¶3. In his petition to plead guilty, Shanks confessed to killing Smalls. He wrote, “I killed David Smalls by shooting him five times outside the liquor store in Claiborne County, MS.” The petition stated that Shanks understood the charge against him and the consequence of pleading guilty to murder. Shanks listed the elements of murder pursuant to section 9T — 3—19(1) (a) and also stated that his admission to killing Smalls proved all of the required elements.

¶ 4. In the sentencing order dated March 24, 2003, the trial judge noted that Shanks and his lawyer had made a personal appearance before him. The judge stated that he had advised Shanks of his legal and constitutional rights and that Shanks had voluntarily, freely and intelligently waived said rights. The judge also stated that he had advised Shanks of the consequences of pleading guilty and that, upon direct questioning, Shanks admitted that he was guilty of murder. The judge therefore sentenced Shanks to serve the remainder of his natural life in the custody of the Mississippi Department of Corrections.

¶ 5. Shanks filed a PCR on March 30, 2006, claiming that he did not give a voluntary guilty plea because he did not fully understand the elements of the crime of murder. He alleged that he was not informed and did not understand that “intent” was part of the deliberate design element of murder. The lower court denied Shanks’s PCR, finding that the motion was filed outside of the three-year time limit.

STANDARD OF REVIEW

¶ 6. This Court will not disturb the trial court’s findings on post-conviction relief unless they are found to be clearly erroneous. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999). However, where questions of law are raised, our review is de novo. Id.

LAW AND ANALYSIS

I. WHETHER SHANKS’S GUILTY PLEA WAS KNOWING AND VOLUNTARY.

¶ 7. Shanks pled guilty to murder and was sentenced on March 24, 2003. He filed his PCR with the trial court on March 30, 2006. Pursuant to section 99-39-5(2) of the Mississippi Code Annotated (Rev. 2006), a prisoner who entered a guilty plea must file a petition for post-conviction relief within three years of the entry of judgment of conviction. Therefore, the trial court correctly held that Shanks was procedurally barred from asserting his motion for post-conviction relief.

¶ 8. Notwithstanding the procedural bar, we will briefly discuss the merits of Shanks’s allegations. Shanks argues that he was not advised by his counsel or the court that intent to cause death was an essential element of murder and, therefore, he was denied due process. He was indicted for capital murder for the fatal shooting of Smalls while in the commission of a robbery. Pursuant to an agreement with the prosecutor and after consulting with his attorney, Shanks pled guilty to the lesser charge of murder. After he was sentenced to life in prison, Shanks filed a PCR in which he admitted that his counsel advised him of the different sentences which could be imposed for the original charge of capital murder and that his counsel also advised him of the element of deliberate design to effect another person’s death, which is an element of the lesser charge of murder. However, Shanks contends that he did not understand that deliberate design meant that Shanks “intended” to kill Smalls. Had he known that “intent” was part of the guilty plea, Shanks claims he would not have pled guilty to the offense of murder and, therefore, his guilty plea was made involuntarily and unknowingly. Even so, Shanks admits in his PCR that the fact that he shot Smalls in the head repeatedly, into what he knew to be a vital part of the body, “must raise a presumption that he intended to take life.”

¶ 9. A plea is considered voluntary and intelligent if “the defendant is advised about the nature of the charge against him and the consequences of the entry of the plea.” Ward v. State, 879 So.2d 452, 455(119) (Miss.Ct.App.2003) (citing Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992)).

¶ 10. Section 97-3-19(l)(a) of the Mississippi Code Annotated states that murder is, “(1) The killing of a human being without the authority of law by any means or in any manner ... (a) [w]hen done with deliberate design to effect the death of the person killed, or of any human being[.]” Shanks properly listed the elements of section 97-3-19(l)(a) in his petition to enter a guilty plea. The petition also stated that Shanks understood the nature of the charges against him, the elements of the crime, and the consequences of pleading guilty to such a crime.

¶ 11. Upon review of the record, we find that Shanks was sufficiently informed of the elements of murder and the consequences of pleading guilty to such a crime. Because Shanks is procedurally barred from bringing this PCR, and because we find that he voluntarily and knowingly entered a guilty plea for murder, we affirm the lower court’s decision to deny him relief.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF CLAIBORNE COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAIBORNE COUNTY.

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