author: PAINTER, Judge. COOKS, J.,

text:
    William BOYD v. The WACKENHUT CORPORATION, et al.
    No. 10-207.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 24, 2010.

      Frank S. Bruno, Attorney at Law, New Orleans, LA, Bernard Marcantel, Attorney at Law, Jennings, LA, for Plaintiffs/Appellants, Joyce Boyd, Marie Lindsey, Betty Jones, Robert Boyd, and Edward Boyd.
    Samuel B. Gabb, Attorney at Law, Lake Charles, LA, for Defendants/Appellees, The Wackenhut Corporation, Joseph De-ville, and American Home Assurance Company.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and DAVID E. CHATELAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   PAINTER, Judge.

|¡¿Plaintiffs, the heirs of William Boyd, appeal the trial court’s judgment finding a passing motorist one hundred percent at fault in causing the accident at issue and dismissing Plaintiffs’ claims. For the following reasons, we affirm the trial court’s judgment in its entirety.

FACTUAL AND PROCEDURAL BACKGROUND

This accident occurred on August 18, 999. On June 13, 2006, Mr. Boyd died from causes unrelated to the subject accident, and his mother, Leona Boyd, was substituted as Plaintiff. Ms. Boyd died before a trial could take place. Therefore, Mr. Boyd’s siblings, Joyce Boyd, Marie Lindsey, Betty Jones, Robert Boyd, and Edward Boyd, were substituted as Plaintiffs.

The matter was previously before this court, Boyd v. Wackenhut Corp., 08-66 (La.App. 3 Cir. 5/28/08), 983 So.2d 1017, writ granted in part and denied in part, 08-1388 (La.10/24/08), 993 So.2d 216, and we stated the facts as follows:

This matter arises out of a motor vehicle accident that took place on August 18, 1999, at approximately 12:10 p.m. on Louisiana Highway 14 in Jefferson Davis Parish. William Boyd, then an inmate of the Wackenhut facility prison (Allen Correctional Center) in Kinder, Louisiana, was assigned to a prison work detail picking up trash along Highway 14 on the date in question.
As lunchtime approached, Boyd and the other inmates were told to load up their tools and to get into the prison van so that they could find a place to eat their lunch. Joseph Deville, an employee of Wackenhut, was the driver of the prison van. Attached to the van was a sixteen-foot trailer that was used to carry tools and supplies needed for the work detail. Immediately following the van and trailer was a dump truck, owned by the State of Louisiana, in which the inmates would load trash bags as they were filled. Upon finding a shady spot on the left side of Highway 14, Mr. Deville began to slow down and exit the highway to his left. As he did so, the left rear of the van was struck by a vehicle being driven by Rosalind Brous-sard as she was attempting to pass the vehicles ahead of her.
Claiming to have suffered severe personal injuries as a result of the accident, Boyd filed suit against the following defendants: Wackenhut, lessor of the van in which Boyd was a guest passenger; American Home, the alleged automobile liability insurer of Wackenhut; Mr. De-ville; Ms. Broussard; and State Farm Mutual Automobile Insurance Company (State Farm), the alleged automobile liability insurer of Ms. Broussard. Boyd later dismissed his claims against Ms. Broussard and State Farm, having settled with those parties.
In July of 2007, a motion for summary judgment was filed by Wackenhut and Mr. Deville seeking dismissal of plaintiffs claims on [sthe basis that the accident was caused solely by the negligence of Ms. Broussard, the driver of the overtaking automobile. Specifically, defendants submitted that because Mr. De-ville had turned on his left-turn signal, slowed down, and looked ahead of and behind his vehicle for approaching traffic prior to beginning his left turn, he had satisfied all of the legal duties imposed upon a left-turning motorist. They argued that because plaintiff will be unable to prove that Mr. Deville breached a legal duty owed to Mr. Boyd, both he and his employer, Wackenhut, were entitled to summary judgment in their favor.
In support of their motion, defendants attached excerpts from the depositions of Mr. Deville, Ms. Broussard, and Way-land Istre, the driver of the dump truck following the prison van. Defendants also submitted a true copy of a Minute Entry of the Thirty-First Judicial District Court, Jefferson Davis Parish, Louisiana, dated September 18, 1999, indicating that Ms. Broussard had pled guilty to the charge of improper passing.
Plaintiff filed an “Objection to Motion for Summary Judgment” in which she ai'gued that the evidence showed that Ms. Broussard had to pass an eighteen wheeler and the dump truck before reaching Mr. Deville’s van. Plaintiff pointed to the deposition testimony of the dump truck driver who stated that he looked in his rearview mirror just before the accident, and he noticed Ms. Broussard’s car coming around the curve, located approximately twenty to thirty yards behind the eighteen wheeler. Adding that distance to the length of the eighteen wheeler, the dump truck, and the van, along with the sixteen-foot trailer the van was pulling, plaintiff suggests that Ms. Broussard’s vehicle was visible for about 150 feet prior to the occurrence of the accident. Therefore, plaintiff submitted that Mr. Deville failed to see what he should have seen, and, thus, his negligence was the sole cause of the accident. Accordingly, plaintiff argued that defendants’ motion for summary judgment should be denied and that a jury should be allowed to determine the fault of defendants. Plaintiff attached to her opposition the complete depositions of Mr. Deville, Ms. Broussard, and Mr. Istre.
Following a hearing, the trial court granted defendants’ motion for summary judgment and dismissed all of plaintiffs claims against them with prejudice, at plaintiffs cost.

Id. at 1018-20.

This court then reversed the trial court’s grant of summary judgment and remanded the matter to the trial court for “a determination of the proper allotment of fault between Mr. Deville and Ms. Broussard.” Id. at 1021. Our opinion, however, stated that “[cjlearly, the accident was caused in part, if not entirely, by the fault of Mr. Deville.” The Supreme Court granted Plaintiffs’ application for writs and noted that this court should not have commented on the fault of Mr. Deville and should have simply reversed the summary judgment and remanded to the trial court. Boyd v. Wackenhut Corp., 08-1388 (La.10/24/08), 993 So.2d 216.

|4On remand, Plaintiffs stipulated that their decedent’s damages did not exceed $50,000.00, and the matter proceeded to bench trial. Following the trial, the court entered judgment in favor of Defendants and dismissed Plaintiffs’ claims. The trial court found Ms. Broussard was one hundred percent at fault in causing the accident. Defendants answered the appeal, asserting that the trial court erred in failing to grant their motion for involuntary dismissal at the close of Plaintiffs’ case and in admitting the depositions of Wayland Istre and Mr. Deville into the record at the time Defendants made the motion for involuntary dismissal after initially disallowing the introduction of said depositions.

We now affirm the trial court’s judgment in its entirety.

DISCUSSION

The allocation of fault by the trier of fact is a factual finding subject to the manifest error of review. Cheairs v. State ex rel. Dep’t of Transp. and Dev., 03-680 (La.12/3/03), 861 So.2d 536. We must employ a two-tiered test in order to reverse the findings of the trial court. First, we “must find from the record that a reasonable factual basis does not exist for the finding of the trial court,” and, secondly, we “must further determine that the record establishes that the finding is not clearly wrong (manifestly erroneous).” Cole v. Brookshire Grocery Co., 08-1093, p. 2 (La.App. 3 Cir. 3/4/09), 5 So.3d 1010, 1012, writ denied, 09-728 (La.5/15/09), 8 So.3d 589. We must also be mindful of the caution in Layssard v. State, Department of Public Safety and Corrections, 07-78, p. 4 (La.App. 3 Cir. 8/08/07), 963 So.2d 1053, 1058, writ denied, 07-1821 (La.11/09/07), 967 So.2d 511, stating that the factors enumerated by our supreme court in Watson v. State Farm Fire and Casualty Insurance Co., 469 So.2d 967, 974 (La.1985) guide our determination, but “the allocation of fault is not an exact science, nor is it the search for a precise ratio” and that, instead, we are determining whether the allocated fault falls within a certain range that does not violate the manifest error rule.

Louisiana Revised Statutes 32:75, entitled “Limitations on passing on the left,” sets forth the law with regard to a vehicle passing on the left, and provides that:

[sNo vehicle shall be driven to the left side of the center of the highway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. In every event the overtaking vehicle must return to the right-hand side of the roadway before coming within one hundred feet of any vehicle approaching from the opposite direction.

The evidence showed that Mr. Deville used his turn signal and began to turn his vehicle before Ms. Broussard started her passing maneuver. We agree with the trial court that the testimony of Mr. De-ville and the independent witness, Mr. Wayland Istre, confirm that Mr. Deville made certain that he could complete his turn safely (and had begun his turn well before Ms. Broussard started her passing maneuver) and, therefore, fulfilled his obligation as a left-turning motorist. Mr. De-ville used his turn signal and looked in front and behind his vehicle to determine that there were no oncoming vehicles. The evidence also showed that Ms. Broussard was traveling at a high rate of speed when she attempted to pass several vehicles. Based on the record before us, we cannot find that a reasonable factual basis does not exist for the trial court’s finding that Ms. Broussard was one hundred percent (100%) at fault in causing the accident. The evidence clearly supports the trial court’s finding of fault on the part of Ms. Broussard. Having so found, we cannot say that the trial court’s finding was manifestly erroneous and must affirm the trial court’s judgment allocating one hundred percent (100%) of the fault to Ms. Brous-sard and dismissing Plaintiffs’ claims.

We now turn to Defendants’ answer to appeal. Since we have affirmed the trial court’s allocation of one hundred percent (100%) of fault to Ms. Broussard, the issues raised in Defendants’ answer to appeal are moot.

DECREE

For all of the foregoing reasons, the judgment of the trial court is affirmed in its entirety. All costs of this appeal are assessed to Plaintiffs/Appellants,

AFFIRMED.

COOKS, J., dissents and assigns written reasons.

COOKS, J.,

dissenting.

|,I respectfully dissent from the majority’s opinion affirming the trial court’s assessment of one hundred percent (100%) fault against Ms. Broussard and finding Mr. Deville free from fault. •

Initially, I note there can be little question but that the actions of Ms. Broussard contributed to the accident in question. As the trial court noted, she attempted the dangerous maneuver of passing a line of vehicles, including an eighteen wheeler, a dump truck and the vehicle driven by Mr. Deville, which was a van with a trailer attached containing various equipment. The testimony also established Ms. Brous-sard was traveling at a high rate of speed when she attempted the passing maneuver. This court in Kilpatrick v. Alliance Casualty and Reinsurance Co., 95-17, p. 4 (La.App. 3 Cir. 7/5/95), 663 So.2d 62, 66, writ denied, 95-2018 (La.11/17/95), 664 So.2d 406, specifically noted an “overtaking and passing motorist must exercise a high degree of care because [he or she is] engaged in dangerous maneuvers.” We further stated “the driver of an overtaking or passing vehicle has the duty to ascertain before attempting to pass a preceding vehicle that from all the circumstances of traffic, lay of the land, and conditions of the roadway, the passing can be completed with safety.” Id. I agree the evidence supported the trial court’s finding of fault on|2the part of Ms. Broussard.

However, the finding that Ms. Brous-sard was at fault, does not end the inquiry-in this matter. The Louisiana Legislature in its wisdom enacted the comparative fault statute, La.Civ.Code art. 2323, for situations where the actions of more than one party contributed to an accident. Plaintiffs submit the facts in this case present such a scenario. After a thorough review of the record, I agree.

La.R.S. 32:104 imposes certain duties on a left-turning motorist who must signal his intent to turn at least 100 feet from the turning point and take steps to ensure that the maneuver can be made safely. The giving of a signal, however, is immaterial if the driver of the turning vehicle did not have the opportunity to make the turn safely. Wesley v. Home Indem. Co., 148 So.2d 333 (La.App. 1 Cir.1962), judgment affirmed, 245 La. 133, 157 So.2d 467 (1963). He must make certain the turn can be made without danger to normal overtaking or oncoming traffic and he must yield the right of way to such vehicles. Lang v. Cage, 554 So.2d 1312 (La.App. 1 Cir.1989), writ denied, 558 So.2d 605 (La.1990). In a vehicular collision case, a plaintiff may take advantage of a presumption of the left-turning motorist’s negligence when the plaintiff proves the defendant executed a left-hand turn and crossed the center line at the time of impact. Thomas v. Champion Ins. Co., 603 So.2d 765 (La.App. 3 Cir.1992). Accordingly, the burden rests heavily on the motorist who desires to make a left turn to explain how the accident occurred and to show he is free of negligence. Miller v. Leonard, 588 So.2d 79 (La.1991).

The record is clear Ms. Broussard had to pass an eighteen wheeler and a dump truck before reaching Mr. Deville’s van. The majority states that the evidence shows Mr. Deville “had begun his turn well before Ms. Broussard started her passing maneuver.” I find the record does not support this statement. Of particular note is |3the testimony of Wayland Istre, the driver of the dump truck, who stated he looked in his rearview mirror just before the accident, and he saw Ms. Broussard’s “little blue car” coming when it was “in back of the eighteen-wheeler probably twenty (20) yards, thirty (30) yards, when I seen it.” Ms. Broussard’s vehicle then had to travel the remaining distance to the eighteen wheeler, then past the eighteen wheeler, and the dump truck before colliding with Mr. Deville’s tractor. The evidence overwhelmingly establishes that Ms. Broussard’s vehicle was visible for a significant distance prior to the accident and her passing maneuver was underway well prior to Mr. Deville beginning his left turn. It is clear had Mr. Deville looked in his side view mirror before beginning his turn he would have seen Ms. Broussard’s vehicle in the passing lane. The evidence convinces me that Mr. Deville failed to see what he should have seen; and, thus, his negligence was a contributing cause of the accident.

This court has consistently recognized the significant responsibility placed on a left-turning vehicle. In Prejean v. Rabalais, 08-436 (La.App. 3 Cir. 12/10/08), 998 So.2d 1225, this court imposed ten (10) percent fault on a motorist who was stopped, with her blinker on waiting to turn left, when a truck fleeing a hit and run accident passed her at an excessive rate of speed in a no passing zone. We reasoned that the driver did not look in her side view mirror before turning left, and if she had, the accident likely would have been averted even though she did look in her rearview mirror but saw only the car behind her which was also waiting to turn left. Id.

In Kilpatrick, 663 So.2d 62, this court found the trial court manifestly erroneous in finding that a passing motorist, Mr. Kilpatrick, was seventy (70) percent at fault and the left turning motorist, Mr. McManus, was thirty (80) percent at fault. In reallocating fault one hundred (100) percent to Mr. McManus, we noted when the accident occurred, Mr. Kilpatrick had almost fully completed his passing maneuver. |4We reasoned had Mr. McManus looked backward immediately prior to turning, he would have seen that he could not make the turn safely.

Thus, I find the trial court manifestly erred in not apportioning some degree of fault to Mr. Deville for his negligence, which the record established was a contributing cause of the accident. The trial court’s failure to do so, and the majority’s affirmance of that failure, thwart the purpose of the comparative fault statute, La. Civ.Code art. 2323, which was enacted for situations such as what occurred here.


source: Caselaw Access Project

author: DICKINSON, Justice, PIERCE, Justice,

license: Public Domain

text:
    Ronregus FLOWERS v. STATE of Mississippi.
    No. 2008-CT-00609-SCT.
    Supreme Court of Mississippi.
    Nov. 10, 2010.
    Rehearing Denied Feb. 3, 2011.
    Virginia Lynn Watkins, William R. La-barre, Greta D. Mack Harris, Jacinta Hall, attorneys for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
   ON WRIT OF CERTIORARI

DICKINSON, Justice,

for the Court:

¶ 1. The defendant in this house-burglary prosecution testified that someone was trying to shoot him, so he ran to a house, broke in, and hid. The trial court refused his request to instruct the jury on the defense of necessity, the jury found him guilty, and the Court of Appeals affirmed. We find that Flowers’s testimony was sufficient to entitle him to the instruction, so we reverse and remand for a new trial.

BACKGROUND

¶ 2. A neighbor who saw Flowers breaking into a house grabbed a hunting rifle, ran to the scene, and held Flowers captive until the police arrived and arrested him. Flowers was indicted and tried for house burglary. During his trial, Flowers testified that someone had been trying to shoot him, so he ran to a nearby house, knocked on the door, and broke in to escape the would-be attacker.

¶ 3. Flowers submitted a jury instruction on the defense of necessity, but the trial judge, without comment, refused to give it. The jury found him guilty, and the trial court sentenced him to ten years in prison. He appealed, the Court of Appeals affirmed, and we granted certiorari.

ANALYSIS

¶ 4. Flowers requested the following jury instruction:

The Court instructs the jury that the defense of necessity allows conduct which is ordinarily criminal to be excused where a person reasonably believes that he is in danger of physical harm. The defense has three elements:
(1)the act charged must have been done to prevent a significant evil; (2) there must have been no adequate alternative; and (3) the harm caused must not have been disproportionate to the harm avoided.
If you believe from the evidence in this case that:
(1) Ronregus Flowers entered the home of Alvera Jones in order to avoid physical harm to his person;
(2) Ronregus Flowers had no alternative than to enter the home; and
(3) Any harm caused by his entry into the home did not outweigh the physical harm he avoided to his person;
then you should find Ronregus Flowers [n]ot guilty.

Standard of Review

¶ 5. Our standard for review of a trial judge’s decision to grant or refuse a jury instruction is well known: We review the instructions as a whole “to determine if the jury was properly instructed,” giving abuse-of-discretion deference to the trial judge’s decision.

¶ 6. But we also have held that “[a] party has a right to have jury instructions on all material issues presented in the pleadings or evidence,” and that “proposed instructions should generally be granted if they are correct statements of law, are supported by the evidence, and are not repetitious.” And where the question is close, the trial court should “err on the side of inclusion rather than exclusion,” and must consider “the evidence in the light most favorable to the accused, and consider[ ] all reasonable favorable inferences that may be drawn from the evidence in favor of the accused.”

The Defense of Necessity

¶7. The necessity defense entered Mississippi’s jurisprudence in 1992 in Knight v. State, which held “that where a person reasonably believes that he is in danger of physical harm he may be excused for some conduct which ordinarily would be criminal,” and set forth the defense’s three elements: “(1) the act charged was done to prevent a significant evil; (2) there must [have been] no adequate alternative; and (3) the harm caused was not disproportionate to the harm avoided.”

¶ 8. Flowers testified that he broke in the house because someone was trying to shoot him. The prosecutor closely cross-examined him about other options, but Flowers insisted someone was after him with a gun, and he had no time to do anything but break into the house. This testimony, if believed, established a prima facie showing of the necessity defense.

¶ 9. In a criminal prosecution, trial and appellate judges do not always find the defendant’s testimony believable, credible, or consistent with other evidence. Still, it is evidence. And no citation of authority is necessary for the bedrock legal principle that juries, not judges, determine the weight and credibility of the evidence—including the defendant’s testimony.

¶ 10. And it is the jury’s responsibility, after determining the facts, to apply them to the law provided by the trial court. Yet, had the jurors believed Flowers’s testimony, they could not have done so, because the trial judge provided them no instruction on the law of necessity. Because the trial court failed properly to instruct the jury on the law of the defense of necessity, we must reverse Flowers’s conviction and remand this case for a new trial.

CONCLUSION

¶ 11. Our own precedent requires us to consider Flowers’s testimony “in the light most favorable to [him],” and we must “consider! ] all reasonable favorable inferences that may be drawn from the evidence in [his] favor....” Applying this law to the facts of this case, and particularly to Flowers’s testimony, we find the trial court’s refusal to instruct the jury on the defense of necessity requires reversal and a new trial.

¶ 12. Our holding today simply reaffirms what the law already required: that a trial judge, when requested; must properly instruct the jury on the defendant’s theory of the case—so long as that theory constitutes a legal defense to the charged offense, is not repetitious, and is supported by evidence.

¶ 13. REVERSED AND REMANDED.

CARLSON AND GRAVES, P JJ., KITCHENS AND CHANDLER, JJ., CONCUR. PIERCE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., RANDOLPH AND LAMAR, JJ.

PIERCE, Justice,

dissenting:

¶ 14. I dissent from the Majority because Flowers’s proposed instruction was an incorrect statement of the law, was covered fairly elsewhere in jury instructions, and was lacking in evidentiary foundation. All these flaws can be summed up: This is not a defense-of-necessity case.

¶ 15. Before anything else, the Majority’s opinion is incomplete without a fuller account of the testimony of James Funch-es, the citizen-arrester. According to Funches, approximately a week before Christmas, Flowers, a neighborhood resident familiar to Funches, walked up to the home of Alvera Jones, knocked once, and then broke down the door. When Flowers emerged from the house, he carried with him certain items. Jones testified that the Christmas presents in Jones’s home had been foraged through, moved, and placed in bags near the doorway. Funches testified that when Flowers had seen him (and, more importantly, his hunting rifle), the perceived burglar had laid down those personal items he was carrying, assumed a surrendering position, and exclaimed that he “done messed up.” Suffice it to say, the evidence against Flowers is overwhelming.

¶ 16. Lately, when we have said that “jury instructions are within the sound discretion of the trial court,” we often have followed it with “but.” Today’s case is no different. However, we do allow trial judges to refuse instructions that are incorrect statements of the law, unsupported by the evidence, or covered fairly elsewhere. This instruction falls within all of those categories.

¶ 17. First, it is an incorrect statement of the law. The proposed instruction read: “If you believe ... that ... Ronregus Flowers entered the home of Alvera Jones in order to avoid physical harm ... then you should find Ronregus Flowers [n]ot guilty.” This is incorrect, because Flowers might have had dual motivations. If he entered the house with both the intent to avoid harm and the intent to commit the crime of larceny, he still is guilty of burglary.

¶ 18. Besides that, necessity is not perfectly his theory of defense, anyway. Necessity is an affirmative defense. One admits to the indicted charge — here, burglary — when one claims an affirmative defense. In Knight v. State, the defendant admitted leaving the scene of an accident, but claimed that he had feared for his life had he stayed. In Stodghill v. State, the defendant admitted driving under the influence (DUI), but claimed it was necessary, since he was transporting someone to the hospital. And in Davis v. State, the defendant admitted his role in a litany of violent offenses, but claimed that he was doing so under duress.

¶ 19. Contrary to the facts of those prior cases, Flowers is not admitting that he committed burglary in the home of Alvera Jones. His theory is that he lacked the necessary intent when he entered the home, so he is, pointedly, denying that he committed the indicted crime. His is not an affirmative defense; it is just an ordinary one. And so, instructing the jury on necessity would not have been right on point.

¶ 20. Second, his actual theory of defense was covered elsewhere in the instructions in the elements instruction. The jury was told that it must find beyond a reasonable doubt that Flowers entered the home “[w]ith the intent to commit a crime of larceny[.]” Had the jury believed that Flowers had entered the house out of fear for his life, it could have had reasonable doubt that he had entered with the intent to commit larceny and it could have found him not guilty. Flowers’s defense was not an affirmative one of necessity; it was that the State had not proven an essential element of burglary. Therefore, his theory is built into the elements instruction. Flowers’s proposed instruction would have repeated the applicable law, applied the facts to it, and erroneously injected the elements of necessity.

¶21. The proposed instruction also is without foundation in the evidence. In murder trials, we have said that “simply claiming self-defense does not make it so.” Mississippi defendants regularly are denied self-defense instructions predicated solely upon self-serving testimony. Why the Majority would employ a different standard in this, a less-serious crime, I do not know. If self-serving, wholly unsubstantiated stories such as this are sufficient evidence to merit a jury instruction, then, trial court judges in Mississippi should think long and hard about denying any instruction.

1122. Finally, the Majority ignores our suggestion in Davis v. State (which the Majority cites) that the erroneous refusal of necessity instructions can be harmless. Though the trial court was squarely within its discretion when it refused this instruction, if there ever was an error that was harmless, this is it.

¶ 23. For the foregoing reasons, I dissent.

WALLER, C.J., RANDOLPH AND LAMAR, JJ., JOIN THIS OPINION.

      . For a more complete recitation of the facts see Flowers v. State, 51 So.3d 963 (Miss.Ct.App.2009).

      . Because the issue before us today is whether the trial judge should have instructed the jury on the law of necessity, this opinion should not be read as an endorsement or criticism of the form or wording of this particular instruction.

      . Rubenstein v. State, 941 So.2d 735, 787 (Miss.2006) (internal quotation marks omitted) (citing Milano v. State, 790 So.2d 179, 184 (Miss.2001); Goodin v. State, 787 So.2d 639, 657 (Miss.2001)).

      . Solanki v. Ervin, 21 So.3d 552, 561 (Miss.2009) (internal quotation marks omitted) (iquoting Glorioso v. YMCA, 556 So.2d 293, 295 (Miss.1989)).

      . Green v. State, 884 So.2d 733, 737 (Miss.2004). Flowers's petition for certiorari cited Green for the proposition that "[p]arties to a case have the fundamental right for the jury to be instructed as to the theory of defense so long as an evidentiary basis exists, is [sic ] a correct statement of law and the requested instruction does not duplicate another.” Green did not identify this right as “fundamental,” nor has any other case of which we are aware.

      . Id. (citing Taylor v. State, 577 So.2d 381, 383-84 (Miss.1991)).

      . Anderson v. State, 571 So.2d 961, 964 (Miss.1990).

      . Knight v. State, 601 So.2d 403 (Miss.1992).

      . Id. at 405.

      . Stodghill v. State, 892 So.2d 236, 238 (Miss.2005).

      . See Davis v. State, 18 So.3d 842, 849 (Miss.2009).

      . Anderson, 571 So.2d at 964.

      . Green, 884 So.2d at 737.

      . Rubenstein v. State, 941 So.2d 735, 787 (Miss.2006).

      . Id.

      . I understand that it is highly unlikely that Flowers had dual intentions when he entered the Jones home, but this instruction leaves open that rhetorical possibility. And, after all, it also is highly unlikely that "the man in the shrubbery” made him do it.

        . Knight v. State, 601 So.2d 403, 405 (Miss.1992).

      . Stodghill v. State, 892 So.2d 236, 238 (Miss.2005).

      . Davis v. State, 18 So.3d 842, 847 (Miss.2009).

      . The "elements” instruction read:
      The defendant, Ronregus Flowers, has been charged ... with the offense of burglary by breaking and entering a dwelling. If you find from the evidence in this case beyond a reasonable doubt that: 1. The defendant Ronregus Flowers, on or about December 15, 2003, in the First Judicial District of Hinds County, Mississippi; 2. Did break and enter the dwelling house of Alvera Jones; [3]. With the intent to commit a crime of larceny; Then you shall find the defendant, Ronregus Flowers, guilty. If the prosecution has failed to prove any of the above elements beyond a reasonable doubt, then you shall find the defendant, Ronregus Flowers, not guilty.

      (Emphasis added.)

      . It should further be noted that under his actual theory of defense (that the State had failed to prove an essential element of burglary) he had no burden of proof. His proposed jury instruction would have introduced an affirmative defense, for which he carried the burden of proof. The State, no doubt, would have sought an instruction to that effect.

      . Strong v. State, 600 So.2d 199, 203 (Miss.1992).

      . See Whittington v. State, 49 So.3d 107 (Miss.Ct.App.2010); Beale v. State, 2 So.3d 693 (Miss.Ct.App.2008).

      . See Davis v. State, 18 So.3d 842, 850 (Miss.2009) ("[i]n some circumstances, the trial court’s refusal of [a necessity instruction] would constitute harmless error”).


author: RANDOLPH, Justice,

text:
    PAW PAW ISLAND LAND CO., INC., and Warren County, Mississippi v. ISSAQUENA AND WARREN COUNTIES LAND CO., LLC.
    No. 2008-CA-01632-SCT.
    Supreme Court of Mississippi.
    Nov. 10, 2010.
    Rehearing Denied Feb. 3, 2011.

      Lynn P. Ladner, John L. Low, IV, William C. Smith, III, Jackson, R.E. Parker, Jr., Clifford C. Whitney, III, Kenneth B. Rector, Vicksburg, attorneys for appellants.
    Lisa Anderson Reppeto, Mark D. Herbert, Jackson, attorneys for appellee.
    Before WALLER, C.J., RANDOLPH and CHANDLER, JJ.
   RANDOLPH, Justice,

for the Court:

¶ 1. This appeal involves a claim of a prescriptive easement over land providing access to Paw Paw Island. Paw Paw Island Land Company (“PPILC”) now owns most of the island. It alleges that its predecessors in title first used a dirt trail, which later was upgraded to a road to access the island. The road traverses land now owned by Issaquena and Warren Counties Land Company (“IWCLC”). The island, located entirely in the State of Louisiana, was formed in 1935 when the main channel of the Mississippi River was diverted through a large tract of land in Louisiana west of the Mississippi River. The large tract of land and island were owned by Jack Wyly, a Louisiana resident, and Alluvial Lands Company, Ltd., a Louisiana corporation. The diversion caused the land severed from the large tract to be land-locked and water-locked, depending on river stages. Land-based ingress and egress was then limited to access from Mississippi, over land then owned by the Anderson-Tully Corporation (“ATCO”), IWCLC’s predecessor. Paw Paw Chute, the former river channel, separates the island from the Mississippi state border. A low-water bridge was built to span the chute. When river levels are high (approximately six months each year), there is no land access to the island. PPILC also claims a prescriptive easement over a parking area and boat launch located on IWCLC’s land and allegedly used by PPILC’s predecessors in title. When IWCLC sought to confirm the parking area, and to relocate the boat launch and a small segment of the road, PPILC filed this action.

¶ 2. While the PPILC-IWCLC trial was ongoing, the Board of Supervisors of Warren County (“Board”) demanded by letter that IWCLC remove gates to the road to allow public access to the road, claiming it was a “county road.” IWCLC immediately sought declaratory relief in the same court. The cases were consolidated for all purposes. After a trial extending over parts of four years, the chancellor entered an eighty-nine-page Memorandum Opinion and Final Judgment, including findings of fact and conclusions of law, denying a prescriptive easement in favor of PPILC and determining that the disputed portion of the road was private, inter alia. PPILC and the Board appealed.

¶ 3. We find that the chancery court’s exercise of jurisdiction over the Board was discretionary, and that the chancellor did not abuse that discretion. We further find that, although the chancellor erred in evaluating one of the elements of prescriptive easement, the final judgment comports with the law of our state. Thus, we affirm the final judgment.

FACTS AND PROCEDURAL HISTORY

I. Facts relevant to both cases

¶ 4. IWCLC owns land on both sides of the Mississippi River levee, the land over which the road is situated, and a small portion of Paw Paw Island. The Board of Mississippi Levee Commissioners (“levee board”) owns the levee, and also leases some land to IWCLC. The road begins at Highway 465, also called Eagle Lake Road. The first segment (0.13 miles) runs west from the highway to a gate southwest of the levee. It is a public road without dispute. The road continues west and south (0.47 miles) over IWCLC land to the low-water bridge at Paw Paw Chute. IWCLC bought the property in 2002 from ATCO, a timber company, which had owned the property since 1928. ATCO leased hunting and fishing rights to Big Rack Hunting Club and Oak Ridge Hunting Club. PPILC now owns nearly all of the island, having bought it from another timber company, Crown Zellerbach (“CZ”) in July 1995. CZ leased hunting and fishing rights to Paw Paw Island Hunting Club (PPIHC) beginning in 1969. CZ terminated the lease on January 20, 1994. In 1994-95, CZ cut timber and hunted on the island, but PPIHC did not hunt on the island. Prior to CZ’s purchase of the island in January 1969, it was owned by Wyly and Alluvial.

¶ 5. Before creation of the island, the land was part of the land mass of Louisiana and separated from ATCO’s property by the main channel of the Mississippi River. When the trail, which later became a road, was first established is unknown. The record is silent as to any use of the property by Wyly and/or Alluvial before and after the island was created. One witness remembered the road was used by hunters, occasional fishermen, foresters, and game wardens as far back as 1953.

¶ 6. PPILC alleged in its complaint that it possessed a prescriptive easement created by its predecessors in title, beginning in 1934 and completed by 1944. Tim Evans, an ATCO administrator, testified that hunting had occurred on the island since 1934 and that hunters had used the road to get to the island since that time. He testified that PPIHC later built a boat ramp on ATCO’s property. He knew of no permission sought from or granted by ATCO, contrary to the testimony of some hunting-club members. (See infra Bank-ston testimony ¶ 10). Earnest Wright testified that he first hunted in the area in 1953 along with his father, a PPIHC member, and that there was a gate east of the levee at that time. Wright testified that PPIHC had a clubhouse on the island in 1953, but that no buildings existed on ATCO’s property. He stated that PPIHC built and maintained the bridge. Wright recalled nine other members of the club who used the boat ramp to reach the island.

¶ 7. Bobby Herrington testified that he hunted on the island as a member of PPIHC, beginning in 1963. He recalled that his father was president of PPIHC in the mid-sixties when electrical service was provided to the island via power lines along the road. He recalled the club’s efforts to improve the bridge. Robert Reeder, a former PPIHC member, testified that he hunted on the island beginning in 1963 along with his father and grandfather, both also PPIHC members. He recalled using the boat ramp when it was dirt, then gravel and later, concrete. He testified about improvements made to the bridge, road, and culverts. E.C. Burk-hardt, an ATCO forester, testified that he visited the island in 1965 and that it was being used for hunting at that time and that PPIHC had a clubhouse there.

¶ 8. Although ATCO had hunting lessees, Oak Ridge and Big Rack hunting clubs, no clubhouse was built on ATCO property until 1968. That same year, the gate east of the levee was moved west of the levee, to a point where the current gate is located. Moving the gate was a joint project of Big Rack and PPIHC. John Lindigrin, a former member of PPIHC and now an officer and shareholder of PPILC, testified that moving the gate was a mutual decision. John Byram, a Big Rack member, testified that Big Rack moved the gate because the levee board required them to allow public access to the levee. The current levee-maintenance contract between the levee board and IWCLC prohibits any gates obstructing public access to the levee and the road atop the levee. David McDonald, a Big Rack member who is now a county supervisor, testified that he took part in the gate project and that it was done to prevent vandalism by trespassers. The gate was secured by a chain with multiple padlocks on it. Unlocking any one of the padlocks released the chain. Earnest Wright testified that ATCO, Big Rack, and PPIHC each had a lock on the gate. No testimony was adduced that Wyly and/or Alluvial had a lock on this gate or the prior gates.

¶ 9. CZ bought the island in 1969. CZ and PPIHC improved the road and bridge. Freddie Hatcher, a CZ road-maintenance foreman, testified that, when CZ bought the property, the road was “a little old narrow [dirt] trail” with gravel in some spots. He stated that CZ graveled and widened the road from the levee to the island, pulled ditches, sloped the banks, and improved the bridge. Hatcher said he worked on the road annually through 1994, spending six to eight weeks a year there during CZ’s timber operations. Pat Weber, a CZ manager, testified that the bridge was a “very crude low water bridge.”. Lin-digrin and others testified that CZ improved the bridge by installing a flatbed rail car. Carl Clay, who later did road and bridge maintenance work for PPILC, testified that he crossed the bridge with his road grader. Since then, at least ten mobile homes have been transported across the bridge.

¶ 10. CZ and PPIHC also improved the boat launch and parking area. Weber testified that the boat launch and parking area already had been in use when CZ bought the property. Bobby Bankston, a PPIHC board member, testified that he and his brother, also a PPIHC member, built the concrete boat ramp using club funds. Bankston stated that Weber, a CZ manager, approved the project, including the location of the ramp.

¶ 11. Evidence was offered that, during the time the two properties were owned by timber companies, usage of the lands was governed by the timber-industry custom of neighborly courtesy. Evans testified that both companies crossed the property of the other without any formal agreement and that each maintained the road as necessary to “move wood.” Jeff Portwood, a CZ manager, testified that the companies and their hunting lessees used the same road, and that each of them had a lock on the gate. PPILC stipulated that ATCO and CZ had allowed each other to use the road. IWCLC also presented evidence that some PPIHC members in the 1970s and 1980s believed their use had been permissive.

¶ 12. In 1994, CZ terminated PPIHC’s hunting lease. No hunting and fishing leases for any time period were introduced into evidence. PPIHC’s members removed club and personal property from the island. In 1995, CZ sold the island to PPILC, a new corporation, whose shareholders included some of the former members of PPIHC. Lindigrin, who became a PPILC officer, testified that he believed it was part of the sales agreement between CZ and PPILC that CZ would negotiate with ATCO to obtain a written easement for PPILC. Evans, an ATCO manager, testified that he drafted easement agreements for the road and for other locations where ATCO land bordered CZ land, but that CZ never agreed. He stated that he had been concerned about the informal nature of their interactions in the Paw Paw area and elsewhere. After the sale, PPILC continued to discuss an easement with ATCO, but no easement agreement was reached. Martin Lewis, an executive vice-president of ATCO, testified that he offered PPILC a one-year easement in 1996, but that PPILC refused, claiming for the first time it had a prescriptive easement.

¶ 13. As the new owner of the island after July 1995, PPILC continued to maintain portions of the road and to make other improvements. Lindigrin testified that phone service was instituted on the island in 1997 after underground cables were installed traversing ATCO land.

¶ 14. In 1997, members of Oak Ridge complained that PPILC vehicles parked near the boat launch were too close to the Oak Ridge clubhouse. Evans informed Lindigrin, and PPILC agreed to park vehicles farther away from Oak Ridge, in an area designated by ATCO.

¶ 15. In 2002 IWCLC bought ATCO’s property. Before after the sale, PPILC negotiated with Marty Elrod, an IWCLC officer and a PPILC shareholder, to obtain a written easement. PPILC also offered to buy the road, parking area, and boat ramp, but no agreement was reached. Prior to the sale, IWCLC had the property surveyed to determine the boundaries and to lay out plats for fifteen home sites. The surveyor recommended relocation of a segment of the road to allow for home sites along Paw Paw Chute. IWCLC replaced the gate southwest of the levee with a new gate in the same location. In 2003, IWCLC informed PPILC by letter that the parking area, boat ramp, and a small segment of the road would have to be relocated to make room for the homes to be built along Paw Paw Chute. PPILC then filed this action in chancery court.

II. Facts relevant only to IWCLC versus Warren County

¶ 16. In 1988, Warren County converted from the beat system to the county-unit system of road maintenance. As a part of this process, the Board carried out the statutorily required functions of inventorying public roads eligible for county maintenance and adopting a map of such roads. A Board resolution dated April 17, 1988, stated, “The inventory list attached hereto shall be the official inventory of County maintained roads and with the names indicated being the official names of said roads and with the amount of mileage indicated being the amount of mileage on said road which is subject to maintenance by the Warren County Board of Supervisors.” The county did not present into evidence the map adopted by the Board in April 1988. IWCLC presented a 1988 map, revised in April 1989. That map shows a gate located west of the levee. Beyond the gate, the road is indicated by a red-shaded line. The map legend states that a red line means “Road not accepted or maintained by the county as of April 1989.” The Board resolution and minutes do not include the length of the road. The road name list attached to the resolution lists only map coordinates, but not road length or the beginning and ending points of the roads. Board members, the county engineer, and a county surveyor testified that, as a result of the 1988 resolution, the road became a county road for 0.6 miles from the highway to the low-water bridge. They testified that “not accepted or maintained” meant that the road southwest of the gate was a county road that was not being maintained. A county road sign near the gate bears the words “End of County Maintenance.” Regarding this sign, a county supervisor testified, “We couldn’t very well put it beyond the gate, it being closed.” No one testified that the county had a lock or key to enter. Two current supervisors testified that they were required to inspect all county roads annually, but that they had never inspected the road beyond the gate.

¶ 17. In June 2000, the Board carried out the statutorily required functions of preparing and adopting an “official map designating and delineating all public roads on the county road system” and a “county road system register.” Miss.Code Ann. § 65-7-4 (Rev.2005). The register was to include the name of the road and a “general reference to the terminal points and course of each such road.” Miss.Code Ann. § 65-7-4(2) (Rev.2005). A map dated June 2000 was proffered, but was marked for identification only. It shows the road as public for only the first 0.13 miles, beginning at the highway. The road register adopted by the Board on June 19, 2000, indicates that the road is public for 0.13 miles from “HWY 465” to “END OF COUNTY MAINTENANCE.” Other county-road registers were introduced into evidence, all of which list the road as public for 0.13 miles. One of these registers, which County Engineer John McKee testified was from “right before 2003,” includes two lines for the road. The first line lists the road as public for 0.13 miles from the highway to the levee. The second line lists the road as “PRIVATE” from the levee to “DEAD END.” McKee, after refreshing his memory by viewing other maps and registers prepared between 2000 and 2005, all of which stated that the road was public for only 0.13 miles, continued to insist that the road inside the gate was public but not maintained.

¶ 18. In July 2005, while the PPILC-IWCLC trial was ongoing, PPILC sought intervention by the Board. By that time, IWCLC had installed an additional gate, requiring PPILC to use the new segment of the road, which exhibits indicate is closer to the bridge accessing the island. PPILC attended an informal meeting of the Board on July 14, 2005. The next day, PPILC wrote the Board a letter requesting that it order IWCLC to remove the gates, allow public access to the old road, and cease construction of houses on IWCLC’s own land. The Board received the letter at its official meeting on July 19. The record of that meeting does not indicate any action taken by the Board. Yet, on July 21, the Board attorney sent IWCLC a letter ordering it to remove the gates, allow public access, and cease construction. According to the testimony of Board members, both PPILC and IWCLC had an opportunity to meet with the Board before the next official meeting on August 1, 2005. At that meeting, the Board passed a resolution authorizing the Board attorney “to take whatever steps are necessary in regards to the .06 of a mile (sic) of public road referred to as Paw Paw Road and to proceed with haste and deliberation to get that matter resolved as soon as possible.” Less than two hours after the resolution passed, IWCLC filed in chancery court a twenty-two-page complaint for declaratory and injunctive relief.

III. Procedural history

¶ 19. PPILC filed suit in May 2003 after IWCLC informed it that the road segment, parking area, and boat ramp would be relocated. IWCLC continued with its plans to relocate a segment of the road and build houses. When trial began in December 2003, IWCLC already had completed the new road segment, which was approximately 420 feet from the old road at the farthest point. IWCLC also had the power lines and phone cables moved to the new segment. Lindigrin testified that the new road was not as good as the old one, as it could not handle house trailers and heavy trucks. This dispute was resolved in the interim by an agreed order, in which IWCLC allowed PPILC to: (1) use the new road segment and make improvements at its own expense, (2) use the boat ramp, (3) use the previously defined parking area.

¶ 20. By July 2005, each of the fifteen IWCLC members had been deeded a home site. One house had been completed, and ten others were in progress. Some of the homes were to be built directly on a segment of the old roadbed. On July 14, 2005 (the same day PPILC attended the informal meeting of the Board), IWCLC informed PPILC that a new gate was in place, blocking access to a portion of the old road.

¶ 21. After IWCLC filed its declaratory-judgment action in August 2005, the county filed an answer and counter-claim, and did not raise jurisdiction as an issue. The chancellor consolidated the cases without objection in October 2005. The trial resumed in February 2007 and was completed in April 2007. The chancellor requested additional briefs. In October 2007, the county first filed a motion to dismiss for lack of subject-matter jurisdiction.

¶ 22. In September 2008, the chancellor issued judgment, finding inter alia: (1) jurisdiction of the chancery court was proper, as IWCLC’s complaint was in response to the Board’s letter and not a Board judgment; (2) Paw Paw Road is public for the first 0.13 miles and private thereafter; (3) PPILC failed to prove a prescriptive easement; and (4) the levee board was not an indispensable party.

ISSUES '

¶ 23. The issues raised by PPILC are:

I. Whether the chancellor committed errors of law in applying the elements of a prescriptive easement.
II. Whether the evidence requires reversal of the chancellor’s judgment and rendering a judgment in favor of PPILC.

¶ 24. The issues raised by the Board are:

III. Whether the chancellor had jurisdiction to review an action of the Board.
IV. Whether the chancellor erred in finding the disputed portion of the road to be private.

¶ 25. IWCLC raised the following issues in the alternative:

V. Whether the chancellor erred in excluding documents proffered by IWCLC.
VI. Whether the chancellor erred in finding that the Mississippi Board of Levee Commissioners was not a necessary party.

Our decision moots issues V and VI.

ANALYSIS

¶ 26. In Lowrey v. Lowrey, 25 So.3d 274 (Miss.2009), this Court stated the following:

“ ‘A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous.’ ” “However, the Court will not hesitate to reverse if it finds the chancellor’s decision is manifestly wrong, or that the court applied an erroneous legal standard.” A chancellor’s conclusions of law are reviewed de novo.

Id. at 285 (citations omitted).

I. Whether the chancellor committed errors of law in applying the elements of a prescriptive easement.
II. Whether the evidence requires reversal of the chancellor’s judgment and rendering a judgment in favor of PPILC.

¶ 27. To establish a prescriptive easement, use must be proven by clear- and-convincing evidence. Each of the following elements must be met by the same clear and convincing standard. The use must be: (1) open, notorious, and visible; (2) hostile; (3) under claim of ownership; (4) exclusive; (5) peaceful; and (6) continuous and uninterrupted for ten years. Sharp v. White, 749 So.2d 41, 42 (Miss.1999). Use by express or implied permission or license, no matter how long continued, cannot ripen into an easement by prescription since adverse use is lacking. Id. Whether use is prescriptive or permissive is ordinarily a question of fact to be determined by the chancellor. Id. at 43. The chancellor found that PPILC had failed to prove three elements: hostile, under claim of ownership, and exclusive. The chancellor erred on exclusivity. However, we find no error by the chancellor in decreeing that evidence was lacking to prove, by clear and convincing evidence, the hostility and claim-of-ownership elements.

¶ 28. For all times relevant to this case, the ownership of the affected parcels and the legal relationship between them can be reduced to three distinct “eras.” For each of these eras, there is at least one reason why no prescriptive easement was proven.

¶ 29. The first era began in 1934 and ended in 1969. During this time, the putative dominant estate was owned by Jacky Wyly and the Alluvial Lands Company, Ltd. The putative servient estate was owned by ATCO. ATCO, a timber company, used its land for timber-farming operations. The record is silent that Wyly and/or Alluvial used the road. Absent proof that the titled owner of the putative dominant estate used the road, it is axiomatic that adverse use cannot be proven. Absent adverse use, the hostile element cannot be satisfied.

¶ 30. The second era began in 1969— when Wyly and Alluvial sold the putative dominant estate to CZ — and lasted until 1995. Like ATCO, CZ was a timber company and began using its land for timber-farming operations. In addition, CZ leased hunting and fishing rights on the island to PPIHC. This lease lasted from 1969 to 1994, nearly the entire second era.

¶ 31. The third era commenced in 1995 upon the sale of the dominant estate to PPILC, a company that included several former PPIHC members. The enmity between the parties, eventually giving rise to this suit, occurred during the third era.

A. Hostile

¶ 32. The chancellor gave credence to the timber-industry custom of neighborly courtesy. She found that this custom was in effect from 1969 (when CZ obtained ownership) until 1995 (when CZ sold the property), and she found that CZ had implied permission to use the road crossing ATCO’s land. She found that no one objected to this implied permission until 2003, thus, PPILC could not tack its prescriptive-easement claim to the time CZ owned the property.

¶ 33. The chancellor discussed whether PPILC was entitled to a presumption of hostility. See McCain v. Turnage, 238 Miss. 44, 117 So.2d 454, 455 (1960). We all can agree, in the absence of proof, the dominant estate is entitled to a presumption of hostility, if use by the owner has been shown. However, the McCain rule, as applicable in this case, is as follows:

where ... a use of lands of another for roadway purposes has been open, visible, continuous, and unmolested since some point in time anterior to the memory of aged inhabitants of the community, such use will be presumed to have originated adversely.

Id. at 455 (emphasis added). Here, no use by the pre-1969 owners was shown. As the rule presupposes use, it does not apply. Thus, we need not consider whether the presumption of hostility should apply for that time frame.

¶ 34. The chancellor concluded the discussion of the hostile element as follows: “The evidence is insufficient to prove that [PPILC], or any of [its] predecessors, used Paw Paw Road without the implied permission of [ATCO].” The chancellor found that PPILC had failed to prove by clear and convincing evidence the predecessors’ use was hostile.

¶ 35. No evidence was offered of use of the road by CZ’s predecessors in title, Wyly and Alluvial. We cannot say that the chancellor erred in finding a lack of clear and convincing evidence of use, much less hostile use, from 1934 until 1969.

B. Claim of ownership

¶ 36. The chancellor found insufficient evidence that any of the early “owners, loggers, and hunters” made a claim of ownership. Further, she could not find “any reasonable inference that the ‘road’ was owned by them.”

¶ 37. PPILC argues that the chancellor used the adverse-possession standard for the claim-of-ownership element, requiring it to show that it (or its predecessors in title) had claimed to own the road, instead of showing a claim to use the road. PPILC asserts that the chancellor reversed the burden of proof, requiring it to “prove a negative,” the absence of objection, rather than requiring IWCLC to show permission. PPILC argues that the neighborly-courtesy evidence would be irrelevant if the chancellor had properly found that a prescriptive easement already had vested by that time (ie., before January 1969).

¶ 38. In determining that evidence was lacking that Wyly or Alluvial had claimed ownership of a right to use the road, the chancellor was correct. “One claiming a prescriptive easement need not claim to own the land itself, but he or she must claim to own an easement.” Threlkeld v. Sisk, 992 So.2d 1232, 1239 (Miss.Ct.App.2008) (citing Delancey v. Mallette, 912 So.2d 483, 488 (Miss.Ct.App.2005)). In the prescriptive-easement cases reviewed, the dispute centered on owners of dominant estates claiming prescriptive easements over servient estates, not hunters, occasional users, et cetera. Nothing in the record shows that Wyly and Alluvial ever used the road, much less claimed ownership of a right to use the road. The record is replete that PPILC’s immediate predecessor in title, CZ, used the road without a claim of ownership, following industry standards of neighborly courtesy. PPILC unsuccessfully argues that nonowners’ use of the road should satisfy this requirement. However, the presence of or use of the road by persons other than the owners of the dominant estate does not obviate a claim by the owner. Here, the record is devoid of any claim by Wyly and/or Alluvial. PPILC cannot tack its claim to a hunting lessee, even assuming arguendo that Wyly and Alluvial leased hunting and fishing rights, and if any right existed via a lease, it expired with the termination of the hunting and fishing lease in 1994. Tacking is a principle used to connect continuous use of former property owners with use of subsequent property owners. See Rutland v. Stewart, 630 So.2d 996, 999 (Miss.1994).

¶ 39. Thus, we cannot say the chancellor erred in finding this element lacking for that era.

C. Exclusive

¶ 40. The chancellor quoted Keener Properties, LLC v. Wilson, 912 So.2d 954 (Miss.2005). and noted that “exclusivity” has a different meaning regarding prescriptive easements than it does with adverse possession. See id. at 956-57. However, she distinguished Keener and found that exclusivity had not been met because PPILC had not shown “sole dominion.” PPILC argues that the chancellor misinterpreted Keener, requiring it to show sole dominion over the road, instead of showing “a claim to the right to use the road over and above that of a member of the indiscriminate public.” Id. at 957.

¶ 41. Keener defines exclusivity as it applies to adverse possession as well as prescriptive easement. Id. at 956-57. Joint use does not defeat a prescriptive-easement claim. Keener clarified the “subtle distinctions” between adverse possession and prescriptive easement as follows:

the term “exclusive” as it relates to a prescriptive easement does not mean to keep all others out, but to show a right to use the land above other members of the general public. [The dominant estate holders] are correct when they assert that to meet the exclusivity requirement, they did not have to exclude others or the general public from using the road across Keener’s property. They were only required to show a claim to the right to use the road over and above that of a member of the indiscriminate public.

Id. at 957. See also McCain, 117 So.2d at 455; Threlkeld, 992 So.2d at 1239-40; Griffin v. Brian Dev. Co., Inc., 938 So.2d 337, 340 (Miss.Ct.App.2006); Moran v. Sims, 873 So.2d 1067, 1069-70 (Miss.Ct.App.2004). If the chancellor erred as to exclusivity, it is of no consequence, as other elements were not proven by clear and convincing evidence.

III. Whether the chancellor had jurisdiction to review an action of the Board of Supervisors.

¶ 42. Declaratory judgments are controlled by the Mississippi Rules of Civil Procedure. Declaratory-judgment relief may be sought in either chancery or circuit court, usually dependent upon traditional notions of their jurisdictions. Suits involving claimed easements, public-versus-private-road disputes, removal of gates and locks, and injunctive relief to remove obstructions, inter alia, have been tried in both circuit and chancery courts, predominantly chancery, a proposition so well-settled that no citation is necessary.

¶ 43. The Board relies exclusively on Mississippi Code Section 11-51-75, which requires “[a]ny person aggrieved by a judgment or decision of the board of supervisors” to appeal within ten days to circuit court using a bill of exceptions. Miss.Code Ann. § 11-51-75 (Rev.2002). Application of this section presupposes the judgment or decision challenged was rendered by an official act of the Board, duly recorded in its minutes. The chancellor found that the Board’s letter to IWCLC was sent before the Board lawfully authorized such action. Official acts of a board are voidable only if found to be arbitrary or capricious. A board’s minutes are evidence of its actions. There being no minutes in the record other than those of the August 1, 2005, meeting, the chancellor found that the Board’s letter was not precipitated by a judgment or decision of the Board. This Court has stated “the property of the citizen ... should not be lost to him ... particularly so where there has been no conveyance or dedication of the right of way by deed or when there is no record evidence of its having been appropriated for public use by constitutional and statutory procedure.” Armstrong v. Itawamba County, 195 Miss. 802, 810, 16 So.2d 752, 754 (1944). The chancellor found that IWCLC’s complaint was filed in response to the letter, and not in response to the Board’s subsequent resolution. Finding that Mississippi Code Section 11-51-75 does not apply, we find that the chancellor properly exercised jurisdiction.

¶ 44. The subject matter of this case is the status of a road — public or private, and if private, the question is whether an easement existed. In case after case cited by all parties, the subject-matter jurisdiction of the chancery court was never in doubt. To argue otherwise is without merit. Thus, we find the chancery court did not abuse its discretion in exercising jurisdiction.

IV. Whether the chancellor erred in finding the disputed portion of the road to be private.

¶ 45. The county argues that: (1) the Board’s actions in 1988 made Paw Paw Road a county road for 0.6 miles, and that such a determination is not subject to collateral attack; (2) the chancellor’s ruling effectively means that the county lost “right, title, and ownership” of the road because of an erroneous register entry in 2000; (3) IWCLC, as the challenger in a title action, had the burden to prove its claim of ownership of the road; (4) the county has the right to review, correct, and amend its prior actions, so that it is not subject to losing its assets; (5) the county holds a prescriptive easement over the road.

¶ 46. The county argues that 0.6 miles of Paw Paw Road became public solely by the Board’s inclusion of the road on the county road map in 1988. The facts indicate that this assertion is not correct. The road was gated at that time (as depicted on the map), and all witnesses testified it had been gated for decades and has continued to be ever since. No evidence was presented of public maintenance inside the gate for at least the last thirty years, and only sporadically before that. A county road sign indicates that county maintenance ends at the gate. Two county supervisors testified that, as a part of their obligation to inspect all county roads, they never inspected the road beyond the gate. The map admitted into evidence indicates that the road inside the gate was “not accepted or maintained” by the county as of 1989.

¶ 47. The county also claimed at oral argument that it owned many roads that are not county-maintained. This included an entire subdivision in which the developer had dedicated the roads to the county, but had not brought the roads up to county maintenance standards. This argument is unhelpful, as there is no evidence of dedication of the road to the county. The county relied on its 1988 resolution as evidence that the road had become public. Further, a county supervisor testified that he had no knowledge of the road having been dedicated or becoming a county road by any other statutory method. See Ladner v. Harrison County Bd. of Supervisors, 793 So.2d 637, 639 (Miss.2001).

¶ 48. The county concedes that the 2000 register was in error, but asserts that the chancellor ruled that the county had lost “right, title, and ownership” of the road because of that error. The county argues that the ruling converts the 2000 register into a title-transfer document, taking the road from the county and giving it to IWCLC. The county argues further that, having had title to the road, such title could not be taken absent the statutory process of declaring the road abandoned. See Miss.Code Ann. § 65-7-121 (Rev. 2005). The chancellor made no such ruling.

¶ 49. The county now claims it holds a prescriptive easement over the road. This argument was raised for the first time in the county’s reply brief to this Court. As it is improper to raise new arguments in a reply brief, the Court is under no obligation or duty to consider such argument. See Overstreet v. Allstate Ins. Co., 474 So.2d 572, 576 (Miss.1985).

¶ 50. The chancellor cited the statute that requires a board of supervisors “by appropriate action spread on its minutes” to establish or accept the road and include it “in the official record of the county road system as provided in Section 65-7-4.” Miss.Code Ann. § 65-7-1(3) (Rev.2005). Mississippi Code Section 65-7-4 requires a board to “prepare and adopt an official map designating and delineating all public roads on the county road system.” Miss. Code Ann. § 65-7-4(1) (Rev.2005). Boards also are required to “prepare and adopt a county road system register in which shall be entered: (a) The number and name of each public road on the county road system [and] (b) [a] general reference to the terminal points and course of each such road.” Miss.Code Ann. § 65-7-4(2) (Rev.2005).

¶ 51. The chancellor also cited caselaw outlining the three exclusive methods for creating a public road: “prescription, dedication, or pursuant to statutory provisions.” Ladner, 793 So.2d at 639. See Miss.Code Ann. § 65-7-57 (Rev.2005) (petition); Miss.Code Ann. § 65-7-89 (Rev. 2005) (eminent domain).

¶ 52. The chancellor found that the Board had contended that the map revised in 1989 was the map adopted by the Board in 2000. The chancellor found that the index to the 1989 map “lists Paw Paw Road ... as being .60 of a mile in length; however, the actual map shows the road to be ‘not accepted or maintained’ past the levee/gate,” according to the red-shaded line and the map legend. The chancellor recounted the testimony of a county supervisor who said he had never inspected the road beyond the gate. The chancellor took note of the road registers, all of which stated the road was public for only 0.13 miles, and one of which stated that the road beyond the gate was “private” and “not maintained.” The chancellor then cited the statute that establishes that, where a conflict exists between a road register and a county map, the “register shall have priority....” Miss.Code Ann. § 65-7-4(5) (Rev.2005). The chancellor found that the county’s argument — that the register indicated only the maintained roads, not the full length of roads owned by the county— was in conflict with the statute mandating the road register, which requires a listing of “each public road on the county road system,” including a “general reference to the terminal points and course of each such road.” Miss.Code Ann. § 65-7-4(2) (Rev.2005). The chancellor concluded “that Paw Paw Road is public for .13 miles and private for the remainder.”

¶ 53. The statutes cited offer no support for the county’s position. In 1988, the county was carrying out its function to “inventory” county roads, indicating that the county was to make a “list” of what it already had, not acquire new roads. The chancellor correctly identified the only methods for creating a public road. The county made no claim at trial that the disputed portion of the road had ever become a public road by any of these methods, instead relying on the 1989 map for its claim. The Legislature has made clear its intent regarding these map-and-registry requirements, as follows:

The Legislature of the State of Mississippi finds and determines as a matter of public policy and legislative intent that the proceedings and public hearing required for initial adoption of the official map and county road system register required by Section 65-7-4, Mississippi Code of 1972, are not intended to lay out, open, designate or otherwise establish new public roads, but to document and record existing roads which are, at the time of the initial adoption of said map and register, adjudicated by the board, consistent with fact, to be public roads by dedication, under the methods provided by statute, or by prescription and required by public convenience and necessity.

Miss.Code Ann. § 65-7-4.1 (Rev.2005).

¶ 54. We find no error by the chancellor, either factually or legally, in finding that the road west of the gate is private and that the county never had title to the road.

CONCLUSION

¶ 55. Accordingly, we affirm the final judgments of the chancellor.

¶ 56. AFFIRMED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ„ CONCUR.

      . This is according to deeds, although oral testimony averred this occurred in 1934.

      . After the suit was filed, PPILC and IWCLC agreed that PPILC would use same during the pendency of the suit.

      .CZ went through various mergers and name changes during this time. The names include St. Francisville Paper Company, James River, Crown Vantage, and Tembec. These corporations collectively will be called "CZ.”

      . The chain on the gate had locks for PPILC; IWCLC; utility providers; CZ, which retained timber rights to its former property; and ATCO, which retained timber rights to its former property.

      . This position is contrary to the existence of a private prescriptive easement. PPILC maintained at trial it possessed a prescriptive easement acquired by a prior owner. PPILC adopted its former position in its brief to this Court, wherein it joined the county’s legal position that the road was public.

      . The issues raised by all parties have been edited and consolidated for clarity and brevity-

      . No hunting and fishing leases for any time period were introduced.


author: KITCHENS, Justice,

text:
    Janis ANDERSON, individually, and on behalf of all wrongful death beneficiaries of Jesse J. Anderson, Jr., Deceased v. ALPS AUTOMOTIVE, INC.
    No. 2009-IA-00987-SCT.
    Supreme Court of Mississippi.
    Nov. 18, 2010.
    Rehearing Denied Feb. 3, 2011.
    Patricia Loverne Beale, Paul T. Benton, Biloxi, John Wincie Lee, Jr., Michael Jacob Shemper, Hattiesburg, attorneys for appellant.
    Brenda B. Bethany, Edward M. Kronk, J. Wyatt Hazard, Jackson, attorneys for appellee.

      Before GRAVES, P.J., LAMAR and KITCHENS, JJ.
   KITCHENS, Justice,

for the Court:

¶ 1. Following an automobile accident, Janis Anderson filed suit for her injuries and for the wrongful death of her husband, Jesse Anderson, Jr., against General Motors Corporation, Stan King Chevrolet, Inc., and two fictitious defendants, alleging product liability, strict liability, negligence, and breach of warranty. Nearly two years after filing her complaint, Anderson learned that ALPS Automotive, Inc., had manufactured a key component of an airbag that she contended had failed to deploy properly. However, she did not seek leave to substitute ALPS for one of the fictitious defendants until nine-and-a-half months after she had discovered ALPS’s identity. Although the trial judge allowed the plaintiff leave to amend her complaint, he subsequently granted ALPS’s motion for summary judgment, finding that the nine-and-a-half-month delay was unreasonable. This Court granted the plaintiffs motion for interlocutory appeal.

Facts and Procedural History

¶ 2. Jesse Anderson, Jr., was driving his wife, Janis Anderson, to work on February 15, 2003, in their 1998 Chevrolet Venture Van when it was struck head-on by a Ford truck driven by Michael Beasley. Upon impact, the van’s passenger-side airbag deployed; however, the driver-side airbag did not. As a result of the collision, Mr. Anderson died.

¶ 3. At the request of the decedent’s widow, Richard Moakes, a chartered professional mechanical engineer, along with a General Motors representative, inspected the Chevrolet van on June 22, 2005. From that inspection of the vehicle, Moakes determined that the driver’s-side airbag “did not deploy at the time of the incident, the clockspring at the top of the steering column was broken, and this defective part denied Mr. Anderson the protection provided by the driver’s side airbag.” Moakes further opined that “despite the fact that Mr. Anderson was not wearing his seat belt at the time of the incident, there was sufficient space between the steering wheel and the back of the seat for him to occupy without being crushed, and that had the airbag deployed, he would have received a better chance of surviving the crash.” Moakes’s report was dated April 6, 2006, almost a year following the inspection.

¶ 4. Mrs. Anderson filed her complaint on February 13, 2006, in the Circuit Court of Lincoln County, Mississippi, against General Motors Corporation, Stan King Chevrolet, Inc., ABC, Inc., and XYZ, Inc. Both ABC, Inc., and XYZ, Inc., were described as “fictitious defendant[s] sued because the identities of all entities involved in the design, manufacture, sale and repair of the subject vehicle and the airbag mechanism at issue are presently unknown.”

¶ 5. On November 30, 2007, counsel for General Motors conducted a non-destructive inspection of the clockspring. Representatives for General Motors, ALPS, and Anderson were present for the inspection. The only manufacturer identified on the clockspring was General Motors, shown thereon as “GM,” followed by a set of numbers. The names ALPS or ALPS Automotive, Inc., did not appear anywhere on the clockspring. During the inspection of the clockspring, an ALPS employee in attendance informed Anderson’s counsel that ALPS had manufactured the clockspring.

¶ 6. On September 16, 2008, Anderson circulated a proposed agreed order for leave to file her second amended complaint to all counsel of record to replace XYZ, Inc., with ALPS Automotive, Inc., as a defendant. The Lincoln County Circuit Court entered the agreed order for leave to amend on November 24, 2008, and Anderson filed her second amended complaint on December 8, 2008. ALPS was served with process on December 9, 2008.

¶ 7. ALPS filed its motion for summary judgment on February 19, 2009, alleging that the statute of limitations on Anderson’s claims against ALPS had expired, that Anderson had failed to exercise reasonable diligence in ascertaining the identity of ALPS under Rule 9(h) of the Mississippi Rules of Civil Procedure, that Anderson had failed to meet the diligence requirement of Rule 15(c)(2) in amending her complaint, and, as a result, Anderson’s claims against ALPS, made in her second amended complaint, did not relate back to the filing date of the original complaint. A hearing on the motion was held, resulting in a bench ruling granting the motion for summary judgment. The trial judge adjudicated that a nine-and-a-half-month delay between the time the plaintiff learned that ALPS had manufactured the clockspring and the filing of the plaintiffs second amended complaint to add ALPS as a defendant was unreasonable under Mississippi Rule of Civil Procedure 9(h).

¶ 8. Anderson filed a motion to reconsider, which was denied. The trial court further held that, once ALPS had admitted being the manufacturer of the clockspring, ALPS was no longer a fictitious party under Mississippi Rule of Civil Procedure 9(h), the mistake under Rule 15(c) had been resolved, and that a nine-month period of delay in adding ALPS as a defendant was unreasonable.

¶ 9. Aggrieved by the trial court’s ruling, Anderson filed her petition for interlocutory appeal, which this Court granted.

Issue

¶ 10. The plaintiff asks this Court to consider whether a nine-and-a-half-month delay between learning the identity of a fictitious party and amending her complaint to substitute the true name of the defendant for a fictitious party is unreasonable and exhibits a lack of due diligence.

Standard of Review

¶ 11. When reviewing a trial court’s grant or denial of summary judgment, this Court applies a de novo standard of review. Crawford Logging, Inc. v. Estate of Irving, 41 So.3d 687, 689 (Miss.2010). A motion for summary judgment is to be granted “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c).

Discussion

¶ 12. Anderson argues that the trial court erred in adjudicating that she failed to use reasonable diligence in amending her complaint by waiting nine-and-a-half months from the date she learned that ALPS had manufactured the clockspring before seeking leave to amend her complaint. ALPS argues that Anderson is a tardy plaintiff who slept on her rights by not seasonably naming ALPS a defendant in her product liability action.

¶ 13. Mississippi Rule of Civil Procedure 9(h) provides:

When a party is ignorant of the name of an opposing party and so alleges in his pleading, the opposing party may be designated by any name, and when his true name is discovered the process and all pleadings and proceedings in the action may be amended by substituting the true name and giving proper notice to the opposing party.

(Emphasis added.) The phrase “when his true name is discovered,” suggests that an immediate amendment of the complaint is required properly and timely to substitute a true defendant for the fictitiously named defendant. Rule 15 of the Mississippi Rules of Civil Procedure governs the process of amending complaints and provides in pertinent part:

An amendment pursuant to Rule 9(h) is not an amendment changing the party against whom a claim is asserted and such amendment relates back to the date of the original pleading.

Miss. R. Civ. P. 15(c)(2). Thus, “a proper amendment pursuant to Rule 9(h) will relate back to the date of the filing of the original complaint.” Bedford Health Props., LLC v. Estate of Williams, 946 So.2d 335, 341 (Miss.2006). The plaintiff in the present case must have made a “proper” amendment to avoid the running of the statute of limitations regarding ALPS.

¶ 14. This Court has never spoken specifically on the issue of how much time constitutes unreasonable delay in substituting a named defendant for a fictitious one. Although the Federal Rules of Civil Procedure do not contain a counterpart to our Rule 9(h), the Mississippi Rules of Civil Procedure and the Alabama Rules of Civil Procedure provide almost identical means by which to substitute true parties in place of fictitiously named parties. Furthermore, the Alabama Supreme Court has discussed pointedly the interplay between that state’s rules on amending a civil complaint to substitute true defendants for fictitious parties. Although not binding on Mississippi, Alabama case law is instructive on the application of Rules 9(h) and 15(c) in this case.

¶ 15. The Alabama Supreme Court has held that Rules 9(h) and 15(c)(4) of the Alabama Rules of Civil Procedure “allow a plaintiff to avoid the bar of a statute of limitations by fictitiously naming defendants for which actual parties can later be substituted.” Ex parte Nationwide Ins. Co., 991 So.2d 1287, 1290 (Ala.2008) (quoting Ex parte Chem. Lime of Ala., Inc., 916 So.2d 594, 597 (Ala.2005)). The Alabama Court further explained that “to invoke the relation-back principle of Rule 15(c), a plaintiff, after filing suit, must proceed in a reasonably diligent manner to determine the true identity of a fictitiously named defendant and to amend his complaint accordingly.” Id. (quoting Ex parte FMC Corp., 599 So.2d 592, 593-94 (Ala.1992) (emphasis in original)).

¶ 16. In Ex parte Hensel Phelps Construction Company, 7 So.3d 999, 1001-1002 (Ala.2008), the Alabama Supreme Court considered whether a delay of seven months from the date on which the plaintiff discovered the true identity of a fictitiously named defendant and the date on which the plaintiff sought to amend his complaint to substitute Hensel Phelps Construction Company in place of the fictitious defendant constituted an unreasonable delay. The Alabama Supreme Court held that “[t]he recalcitrant plaintiff cannot ... use the relation-back rule to gain what might otherwise amount to an open-ended statute of limitations.” The Court found that the plaintiff failed to act with due diligence in ascertaining the identity of Hensel Phelps, and that the plaintiff failed to comply with the rules governing fictitious party practice by waiting seven months to amend his complaint to substitute Hensel Phelps for a fictitious defendant. Id.

¶ 17. In this case, Anderson acted consistently with Rule 9(h) of the Mississippi Rules of Civil Procedure by filing her original complaint against two known defendants and two fictitious defendants. Anderson described ABC, Inc., and XYZ, Inc., as “fictitioufs] defendants sued because the identities of all entities involved in the design, manufacture, sale and repair of the subject vehicle and the airbag mechanism at issue are presently unknown.” Anderson knew the reason for the failed deployment of her husband’s airbag was a defective component of the airbag system; she was merely unaware of all maintenance facilities that had serviced the van and of the identity of the manufacturer of the allegedly defective part. By participating in the discovery process, Anderson was able to ascertain the true identity of both fictitious defendants.

¶ 18. The trial judge found that it was not until November 30, 2007, at the nondestructive inspection of the clockspring, that the plaintiff learned that ALPS had manufactured the clockspring, but she did not seek to substitute ALPS as a party until nine-and-a-half months later. At the hearing on ALPS’s motion for summary judgment, the trial judge stated, “I am satisfied that the Plaintiff did what the Plaintiff could do or needed to do up until the moment in time that the Plaintiff, by their own admission, learned that ALPS manufactured the clockspring. From there a delay of something upwards of nine months simply is not reasonable diligence.”

¶ 19. In her motion to reconsider, the plaintiff alleged that ALPS had notice of the lawsuit as early as June of 2005, eight months prior to the actual filing of the lawsuit and well within the three-year statute of limitations. In the motion to reconsider, Anderson asked the trial court to consider her second amended complaint under Rule 15(c) of the Mississippi Rules of Civil Procedure instead of Rule 9(h). In denying her motion to reconsider, the trial court reasoned that Anderson had acted with due diligence in ascertaining the true identity of the fictitious party under Rule 9(h), but that she had failed to act with due diligence in amending her complaint under Rule 15(c).

¶ 20. In the absence of any reasonable explanation by Anderson of why she waited more than nine months after learning ALPS’s identity to seek the trial court’s leave to include it as a defendant in her lawsuit, we agree that the plaintiff failed to exercise reasonable diligence to bring this party into the litigation in a timely manner. The plain language of Rule 9(h) contemplates that the plaintiff must amend her complaint “in a reasonably diligent manner” once she learns the true identity of the fictitious party. See Ex parte Hensel Phelps Constr. Co., 7 So.3d at 1003. As in Hensel Phelps, we find a delay of more than nine months unreasonable. Id. at 1002. Accordingly, we hold that the trial judge did not err in granting summary judgment to ALPS, and the entry of summary judgment for ALPS is therefore affirmed.

¶ 21. AFFIRMED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, LAMAR, CHANDLER AND PIERCE JJ., CONCUR.

      . Beasley is not a party to this lawsuit.

      . The parties agree that the statute of limitations had expired, unless Anderson’s claims against ALPS related back to the filing date of the original complaint.

      . Rules 9(h) and 15(c)(4) of the Alabama Rules of Civil Procedure are substantially similar to our Rules 9(h) and 15(c)(2).
      Rule 9(h) of the Alabama Rules of Civil Procedure provides:
      When a party is ignorant of the name of an opposing party and so alleges in the party’s pleading, the opposing party may be designated by any name, and when that party’s true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.
      Rule 15(c)(4) of the Alabama Rules of Civil Procedure provides that:
      An amendment of a pleading relates back to the date of the original pleading when ... relation back is permitted by principles applicable to fictitious party practice pursuant to Rule 9(h), Ala. R. Civ. P.

      .This Court also has held that ”[t]he relation back privilege provided for fictitious parties under Rule 15(c)(2) requires the plaintiff to actually exercise a reasonably diligent inquiry into the identity of the fictitious party.” Wilner v. White, 929 So.2d 315, 323 (Miss.2006) (quoting Doe v. Miss. Blood Servs., Inc., 704 So.2d 1016, 1019 (Miss.1997)).

      . This Court also has held that "[t]he purpose of Rule 9(h) is to provide a mechanism to bring in responsible parties, known, but not identified, who can only be ascertained through the use of judicial mechanisms such as discovery. It is not designed to allow tardy plaintiffs to sleep on their rights.” Doe, 704 So.2d at 1019.