author: CARLTON, J., IRVING, P.J.,

text:
    Delia SHEPARD, Individually and as Administratrix of the Estate of Rodney Stowers, Deceased, Appellant v. PRAIRIE ANESTHESIA ASSOCIATES, Russell Linton, M.D., and Golden Triangle Regional Medical Center, Appellees.
    No. 2009-CA-01267-COA.
    Court of Appeals of Mississippi.
    Aug. 30, 2011.
    Rehearing Denied Dec. 13, 2011.
    Certiorari Denied April 26, 2012.

      Robert G. Germany, Jackson, attorney for appellant.
    M. Jay Nichols, Columbus, James Lawrence Wilson IV, Jeffrey Johnson Turnage, Columbus, Aubrey E. Nichols, Tommie G. Williams, Greenwood, attorneys for appel-lees.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Delia Shepard, individually and as administratrix of the estate of Rodney Stowers, appeals the decision of the Lowndes County Circuit Court denying her motion to reconsider the circuit court’s dismissal of Shepard’s suit for wrongful death based on medical malpractice based on Rule 41(b) of the Mississippi Rules of Civil Procedure. On appeal, Shepard asserts that the circuit court abused its discretion by dismissing with prejudice her wrongful death suit for failure to prosecute absent a finding of egregious or contumacious conduct by Shepard or her counsel. Finding no abuse of discretion, we affirm the circuit court’s dismissal of this case.

PACTS

¶ 2. On September 28, 1991, Stowers, a Mississippi State University football player, suffered a fracture of the right tibia during the first half of a Mississippi State football game in Gainesville, Florida. The team physician and Dr. Russell Linton permitted Stowers to return to the sidelines for the second half of the game, participate in post-game activities, and return to Starkville, Mississippi, with the team the next day.

¶ 3. On September 29, 1991, Stowers was admitted to Golden Triangle Regional Medical Center (Golden Triangle), where Dr. Linton examined and treated him. During the night and early morning of September 30, Stowers’s temperature became elevated, and he exhibited abnormal vital signs. Dr. Linton proceeded with a surgical procedure to stabilize Stowers’s broken tibia. Following surgery, Stowers’s pulse reached 152, and his temperature elevated to 104 degrees. By midnight, Stowers was not responsive to verbal or painful stimuli, and his temperature had reached 104.5 degrees. Dr. Linton ordered various tests be performed, which revealed that Stowers suffered from Adult Respiratory Distress Syndrome. Stowers was transferred to the intensive care unit and subsequently received treatment. On October 3, 1991, Stowers stopped breathing and was pronounced dead at 7:03 a.m.

¶ 4. On October 1,1993, Shepard, admin-istratrix of Stowers’s estate, filed the instant wrongful-death action in the Scott County Circuit Court. The Scott County Circuit Court transferred this action to the Lowndes County Circuit Court, where a previously filed wrongful-death action (Jones action) related to Stowers’ death, which had been filed by Telesia Jones, on behalf of Stowers’s alleged daughter Kier-ra Jones, was already pending. On May 23, 1994, the action was re-filed in Lowndes County. On November 2, 1994, the Lowndes County Circuit Court stayed this action pending resolution of dispositive motions filed in the Jones action.

¶ 5. On May 30, 1996, the Mississippi Supreme Court reversed the rulings of the Scott County Chancery Court denying multiple requests for DNA tests in connection with the Jones action, and the Court ordered that blood genetic-marker testing be conducted on Kierra to confirm Stow-ers’s paternity. The test results established that Stowers was not the father of Kierra, and the Jones action was ultimately dismissed.

¶ 6. On July 22, 1997, after a delay of nearly three years, the Lowndes County Circuit Court entered an order lifting the stay of this action and set expert disclosure and motion deadlines. On August 27, 1997, Prairie Anesthesia filed its answer and propounded written discovery to Shepard. On August 29, 1997, Dr. Linton filed his answer, and on September 10, 1997, he propounded written discovery to Shepard. On September 2, 1997, Golden Triangle filed its answer.

¶ 7. On December 2, 1997, Dr. Linton filed a motion to dismiss or, in the alternative, to compel discovery, claiming that Shepard had refused to cooperate in discovery by failing to respond to Dr. Linton’s interrogatories, request for production of documents, and also by failing to designate her expert witnesses. On December 22, 1997, Prairie Anesthesia joined in the motion of Dr. Linton to dismiss or, in the alternative, to compel discovery.

¶ 8. On February 9, 1998, the circuit court conducted a hearing on Prairie Anesthesia’s and Dr. Linton’s motions to compel discovery. The circuit court granted the motions to compel and ordered Shepard to provide complete interrogatory responses and the requested documents on or before February 27, 1998. The circuit court also entered an amended scheduling order extending the expert designation, discovery, and motions deadlines.

¶ 9. The parties continued to propound discovery until the expiration of the amended scheduling order on September 15, 1998. On January 13, 2000, the clerk filed the first motion to dismiss for want of prosecution, noting that there had been no action of record during the twelve months preceding the motion. On February 11, 2000, Shepard responded by filing a motion for trial setting, requesting that the court set this case for trial. On April 11, 2001, the clerk filed a second motion to dismiss for want of prosecution, again noting that there had been no action of record during the twelve months preceding the motion. Shepard responded on April 13, 2001, by filing a second motion for trial setting and also requesting a status conference with the circuit court. The circuit court set a pretrial conference for November 19, 2001, but due to a prior trial setting, Shepard requested a continuance of the conference.

¶ 10. On April 7, 2004, the clerk filed a third motion to dismiss for want of prosecution, and on April 15, 2004, Shepard again moved for a trial setting and status conference with the circuit court. On August 12, 2005, Shepard renewed this request. By an order dated August 23, 2005, the circuit court set a hearing on Shepard’s motion for trial setting and status conference for November 14, 2005. At the hearing, the parties conditionally set the trial for November 27, 2006, noting that Prairie Anesthesia’s counsel and the circuit judge both had potential conflicts with this date.

¶ 11. Prairie Anesthesia’s counsel subsequently informed the parties and the circuit court in October 2006 that the conflict with the trial date remained; therefore, he requested to continue the trial. The circuit court entered an agreed order on November 27, 2006, continuing the trial “to a date in the future.”

¶ 12. On September 12, 2007, Shepard alleges that she contacted the circuit court to obtain available first setting dates to reset the case for trial, and subsequently provided the available trial settings to counsel for Prairie Anesthesia, Dr. Linton, and Golden Triangle. However, this action did not appear in the court file, and such assertions will not be considered by this Court. On March 28, 2008, the clerk filed another motion to dismiss for want of prosecution. On April 29, 2008, Shepard filed a motion for a trial setting and a Mississippi Rule of Civil Procedure 16 pretrial conference.

¶ 13. On May 21, 2008, Prairie Anesthesia filed a motion to dismiss for want of prosecution, claiming that they were prejudiced by the unavailability of witnesses and the fading memory of those witnesses who remained, due to the amount of time, more than sixteen years, that had elapsed since Stowers’s death. On November 20, 2008, Shepard filed a response, arguing that she had attempted to reset the case for trial following the continuance. On November 21, 2008, the circuit court held a hearing on Prairie Anesthesia’s motion to dismiss for want of prosecution, and subsequently the court entered an order granting the motion, concluding that Prairie Anesthesia had been prejudiced due to the lengthy amount of time that had passed.

¶ 14. On December 29, 2008, Shepard filed a motion to alter or amend the order granting Prairie Anesthesia’s motion to dismiss for lack of prosecution, arguing that the circuit court had erred in concluding there was dilatory conduct on the part of the plaintiff and also in concluding that a lesser sanction than dismissal was unavailable. After a hearing held on May 29, 2009, the circuit court dismissed Shepard’s motion to alter or amend the order granting dismissal. Shepard now appeals, claiming that the circuit court erred in dismissing the case with prejudice.

STANDARD OF REVIEW

¶ 15. When reviewing a circuit court’s dismissal of a case under Rule 41(b) for failure to prosecute, this Court may reverse only if it finds that the circuit court abused its discretion. Am. Tel. and Tel. Co. v. Days Inn of Winona, 720 So.2d 178, 180 (¶ 12) (Miss.1998) (AT & T factors). What constitutes a failure to prosecute is considered on a case-by-case basis. Id. at 181 (¶ 12).

DISCUSSION

Whether the circuit court abused its discretion by dismissing with prejudice Shepard’s wrongful-death suit for failure to prosecute absent a finding of egregious or contumacious conduct by Shepard or her counsel.

¶ 16. Shepard claims that the circuit court abused its discretion by misapplying the three AT & T factors when ruling on Prairie Anesthesia’s motion to dismiss pursuant to Rule 41(b). Shepard also contends that the circuit court erred in dismissing with prejudice Shepard’s wrongful-death suit for failure to prosecute absent a finding of egregious or contumacious conduct by Shepard or her counsel.

¶ 17. Rule 41(b) permits a defendant to move for the dismissal of an action for the failure of the plaintiff to prosecute. Additionally, “[ujnless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision ... operates as an adjudication upon the merits.” Id. We note that “the law favors trial of issues on the merits, and dismissals for want of prosecution are therefore employed reluctantly.” Am. Tel. and Tel. Co., 720 So.2d at 180 (¶ 12).

¶ 18. In the circuit court’s order granting Prairie Anesthesia’s motion to dismiss for lack of prosecution, the circuit court acknowledged the three factors, set out by this Court in Hasty v. Namihira, 986 So.2d 1036, 1040 (¶ 16) (Miss.Ct.App.2008) (citing Am. Tel. and Tel. Co., 720 So.2d at 181-82 (¶¶ 14, 17,19)), to be considered by courts when ruling on a motion to dismiss: (1) contumacious or dilatory conduct of the plaintiff; (2) application of lesser sanctions; and (3) other aggravating factors.

¶ 19. Regarding the first factor, the circuit judge stated that he found no evidence that Shepard acted contumaciously; however, he did find that Shepard’s actions were dilatory in nature. The circuit judge acknowledged that there had been four clerk’s motions to dismiss for want of prosecution filed. The first motion was filed on January 13, 2000; the second on April 11, 2001; the third on April 7, 2004; and the last on March 28, 2008. The circuit judge noted that after the clerk filed each of the motions to dismiss for want of prosecution, Shepard filed a motion in response. However, the circuit judge noted that Shepard failed to take any action to bring these motions to the circuit court’s attention or request a hearing on the motions. The circuit judge determined that since no action had been taken after the clerk’s motions to dismiss, besides requesting a court date, that Shepard’s conduct was dilatory.

¶20. Shepard argues that the circuit court erred in finding dilatory conduct on her part, and she points out that the initial trial date was continued at the request of Prairie Anesthesia’s counsel. Further, Shepard asserts that the circuit court failed to cite authority for the proposition that the alleged failure to bring these motions on for hearing constituted dilatory conduct.

¶ 21. We note that we have found that a delay of one year “can clearly be seen as dilatory conduct.” Hasty, 986 So.2d at 1040 (¶ 17) (Over a year after dismissing the clerk’s motion to dismiss for want of prosecution, the court found that “essentially nothing had occurred in the case,” and as a result, the court granted the defendant’s motion to dismiss for want of prosecution.). The record before us reflects that Shepard has had to respond to four motions to dismiss for want of prosecution issued by the clerk because there was no activity in the record for at least one year before each of the four motions were filed.

¶ 22. Shepard also argues that the circuit court misapplied the holding in Hasty, claiming that unlike the present case, the plaintiffs in Hasty failed to file a response to the defendant’s motion to dismiss for failure to prosecute. Hasty, 986 So.2d at 1038 (¶ 5). Accordingly, the circuit court in Hasty dismissed the case without prejudice due to the failure of the plaintiffs to take any action of record for one year prior to the filing of the motion to dismiss. Id. Shepard claims that in contrast, after each filing of a motion to dismiss, she filed a motion requesting that the case be set for trial.

¶ 23. However, when examining whether conduct is dilatory, this Court “may consider whether the plaintiffs’ activity was reactionary to the defendants’ motion to dismiss, or whether the activity was an effort to proceed in the litigation.” Holder v. Orange Grove Med. Specialties P.A., 54 So.3d 192, 198 (¶ 22) (Miss.2010). In Hill v. Ramsey, 3 So.3d 120, 122 (¶ 7) (Miss.2009), the Mississippi Supreme Court upheld the circuit court’s determination of dilatory conduct on behalf of the plaintiff after finding that “the only action taken by [Hill] ... was reactionary,” and not an effort to proceed in the litigation. As previously noted, Shepard did file motions responding to each of the clerk’s motions to dismiss, but the circuit court found that she had failed to take any action to bring these motions to circuit court’s attention or request a hearing on the motions. Thus, we find that over the course of the litigation, Shepard failed to take positive actions to prosecute her claim. See Vosbein v. Bellias, 866 So.2d 489, 493 (¶ 8) (Miss.Ct.App.2004).

¶ 24. Turning to the second factor of determining whether lesser sanctions should be applied, the circuit judge found that the four clerk’s motions to dismiss constituted explicit warnings to Shepard to move forward with the case. The circuit judge found that such explicit warnings constituted lesser sanctions under the AT & T factors. The circuit judge then held that lesser sanctions, in the form of the motions to dismiss, had already been applied; thus, they were no longer available. Although not cited by the circuit court in its order dismissing the case, the record reflects that the circuit court previously issued an order to compel Shepard to comply with discovery and scheduling orders, and it also issued an order demanding mediation to keep the case moving toward trial.

¶ 25. Shepard contends that the circuit court erroneously found the clerk’s motions to dismiss to be “lesser sanctions” under the facts of this case. In Wallace v. Jones, 572 So.2d 371, 377 (Miss.1990) (quotation omitted), our supreme court acknowledged that “[Ijesser sanctions include ‘fines, costs, or damages against plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings.’ ” Additionally, this Court has upheld the filing of a clerk’s notice of dismissal as a lesser sanction, finding that such notice serves “as a warning to the plaintiffs that the case needed to proceed.” Hasty, 986 So.2d at 1041 (¶ 18); Jenkins v. Tucker, 18 So.3d 265, 271 (¶ 21) (Miss.Ct.App.2009). As noted, the record reflects that the circuit court attempted previous efforts at lesser sanctions, all to no avail, including a order to compel Shepard to comply with discovery and scheduling orders and an order demanding mediation.

¶ 26. Next, the circuit court noted that under Hasty, courts must consider three factors when determining whether there were aggravating circumstances: “(1) whether delay was caused by the party as opposed to his counsel, (2) whether there was actual prejudice to the opposing party, and (3) whether the delay was an intentional attempt to abuse the judicial process.” Hasty, 986 So.2d at 1041 (¶ 19). In his order, the circuit judge stated that he found the first and third factors inapplicable to the present case. Regarding the second factor, the circuit judge stated that “if the court only considers the latter date of 1997, when the stay was lifted, this still was over ten years ago. There is a large span of time that has elapsed since 1997 and even more so since 1991 when the alleged medical negligence occurred. Thus, the court finds that [Prairie Anesthesia] has been prejudiced due to the lengthy amount of time that has accrued.”

¶ 27. Regarding the issue of prejudice when examining other aggravating factors, Shepard claims that Prairie Anesthesia’s witnesses had not been identified, and she argues that no evidence exists in the record to support Prairie Anesthesia’s claims that it will be difficult to locate witnesses due to the amount of time that has elapsed. Shepard asserts that since this is a medical-malpractice case, the main testimony needed is that of the experts. Shepard also argues that she offered to locate the witnesses at her own expense and to provide their contact information to Prairie Anesthesia.

¶ 28. However, the record shows that as early as August 19, 1996, when Prairie Anesthesia filed a response to Shepard’s motion to stay, Prairie Anesthesia stated that it continued to be prejudiced by Shepard’s lack of cooperation in preparing for trial, and it would be severely prejudiced should the circuit court stay the entire course of proceedings. Prairie Anesthesia also stated that it made efforts to contact witnesses who were employed by the hospital at the time of Stowers’s death, but it submits that after an investigation, it has learned that eleven of the nurses who cared for Stowers that no longer work there. Prairie Anesthesia also submits that the hospital had no record on six of those nurses. See Holder, 54 So.3d at 199-200 (¶¶ 28-30) (discussing actual and presumptive prejudice in Rule 41(b) dismissals).

¶ 29. After reviewing the record before us, we find that the circuit judge followed the test set forth by the Mississippi Supreme Court to review when considering a Rule 41(b) motion to dismiss for lack of prosecution. The order from the circuit court also shows that the circuit judge noted that lesser sanctions had been previously implemented, and they were no longer available. Thus, we find that the circuit court did not abuse its discretion in granting Prairie Anesthesia’s motion to dismiss for want of prosecution pursuant to Rule 41(b).

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

GRIFFIS, P.J., MYERS, ISHEE, ROBERTS, MAXWELL AND RUSSELL, JJ„ CONCUR. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY LEE, C.J. BARNES, J., NOT PARTICIPATING.

IRVING, P.J.,

dissenting:

¶ 31. The majority finds that the circuit court did not abuse its discretion in dismissing Shepard’s complaint for failure to prosecute. I disagree; therefore, I dissent. For the reasons that are explained herein, I would reverse the judgment of the circuit court and remand this case to the circuit court for a hearing on the merits.

¶ 32. This case presents an unusual set of procedural facts extending over a period of five years. On October 1, 1993, Shepard, individually and as the administratix of Stowers’s estate filed a wrongful death complaint against Prairie Anesthesia and others in the Scott County Circuit Court. Shepard’s complaint was transferred to the Lowndes County Circuit Court where Jones, representing a purported wrongful death heir of Stowers, had already filed a wrongful death action against the same defendants that were named in Shepard’s complaint. On November 2, 1994, the Lowndes County Circuit Court stayed the proceedings in Shepard’s case pending disposition of various motions in Jones’s case. The stay was lifted on July 22, 1997. Therefore, it cannot be legitimately argued that the period of time prior to July 1997 should be included in the calculation when considering whether Shepard failed to prosecute her case.

¶ 33. The first motion to dismiss for lack of prosecution was filed by Dr. Linton on December 2, 1997, a little over three months after the stay had been lifted, because Shepard had failed to respond to discovery. Other defendants, including Prairie Anesthesia, joined Dr. Linton’s motion. On February 9, 1998, the circuit court considered the defendants’ motion to dismiss or, alternatively, to compel discovery. The court entered an order compelling Shepard to provide all outstanding discovery. The court also entered an amended scheduling order extending expert designation, discovery, and motion deadlines until September 1998, and the parties continued the prosecution of the case until the end of the amended discovery deadline. It was after the conclusion of the discovery deadline that Shepard’s prosecution of her case began to falter, as she did nothing further on her case until February 11, 2000, when she responded to the clerk’s first motion to dismiss by filing a motion for a trial setting. Apparently, this motion was never noticed for hearing.

¶ 34. Shepard took no further action in the prosecution of her case until April 13, 2001, when she was again forced to respond to a second motion by the clerk for dismissal of her case. She responded this time by filing yet another motion for a trial setting and for a status conference with the circuit court. The circuit court set a pretrial conference for November 19, 2001, but, due to a prior trial setting and other matters, Shepard later asked for a continuance. The record does not reflect any further action by Shepard until April 15, 2004, when again she was forced to respond to the clerk’s motion to dismiss. Shepard filed a motion for a status conference and for a trial setting. The circuit court entered an order on May 18, 2004, directing the parties to schedule mediation within twenty days and to complete mediation in ninety days. On August 12, 2004, Shepard advised the circuit court in specific details of the reasons why she had been unable to comply with the court’s May 18 directive to commence mediation and requested an additional sixty days to do so. Apparently, nothing further occurred in the prosecution of the case until August 12, 2005, when Shepard again filed a motion for a status conference and for a trial setting. The motion was set for hearing on November 14, 2005.

¶ 35. On February 22, 2006, the circuit court, sua sponte, entered an order directing the parties to schedule mediation within twenty days. On March 15, 2006, Prairie Anesthesia filed a motion for an extension of time in which to designate experts. The other defendants joined this motion. On November 28, 2006, the circuit court entered an order continuing the action until further order of the court. On September 13, 2007, Shepard’s counsel sent a letter via electronic mail to counsel for the defendants advising of his availability for trial on May 19 and 27, 2008; November 17, 2008; and December 1, 2008. On April 29, 2008, the clerk filed another motion to dismiss for lack of prosecution, and it is from this motion that this appeal emanates. In response to the clerk’s motion, counsel for Shepard filed a copy of the September 13, 2007 letter that he had sent to defense counsel by electronic mail.

¶ 36. Based on these facts, it is clear to me that the circuit court abused its discretion when it dismissed Shepard’s complaint for lack of prosecution. Had the dismissal occurred prior to March 15, 2006, when Prairie Anesthesia moved for an extension of time to designate experts, I would agree with the majority that the judgment of dismissal should be affirmed. However, that did not happen. It is significant that in December 1997, Prairie Anesthesia joined Dr. Linton’s motion to dismiss. Throughout the substantial periods of time when Shepard took no action to move her case along, Prairie Anesthesia and the other defendants did nothing to have the case dismissed. Then in March 2006, after the circuit court had ordered mediation, Prairie Anesthesia actively participated in the prosecution of this case by requesting an extension of time to designate experts. I am aware that it was the clerk’s motion to dismiss for lack of prosecution that ultimately led to the dismissal. Nevertheless, Prairie Anesthesia and the other defendants claim to have suffered prejudice by the lack of movement in the case. It would appear that if they saw their defenses being prejudiced by the passage of time, surely they would have moved for a dismissal themselves. Moreover, there had been action in the case during the twelve months preceding the filing of the clerk’s motion on April 28, 2008. Therefore, under Rule 41 of the Mississippi Rules of Civil Procedure, dismissal was inappropriate.

¶ 37. For the reasons presented, I dissent.

LEE, C.J., Joins this Separate Written Opinion.

      . The record reflects that this hearing was set for January 5, 1998, but it was continued at the request of Shepard.

      . This agreement was not memorialized in a written order.

      . Dr. Linton joined this motion to dismiss on May 30, 2008, and Golden Triangle joined on June 12, 2008.

      . Due to the number of appellees in this appeal, we will refer to the appellees collectively as "Prairie Anesthesia.”

      . In response to the 2000 motion to dismiss, Shepard filed a motion for trial setting. In response to the 2001 motion to dismiss, Shepard filed a motion for status conference and trial setting. In response to the 2004 motion to dismiss, Shepard filed another motion for status conference and trial setting. In response to the final motion to dismiss in 2008, Shepard filed a motion for a Mississippi Rule of Civil Procedure 16 conference and also requested a trial setting.

      . The record reflects that Kierra also filed a motion to stay, and Prairie Anesthesia’s response addressed both parties’ motions.

      . As an alternative to dismissing Shepard’s complaint, Dr. Linton sought to compel the discovery that Shepard had failed or refused to make.


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    Anthony P. JONES a/k/a Anthony Prenell Jones a/k/a Anthony Parnell Jones, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-02017-COA.
    Court of Appeals of Mississippi.
    Aug. 30, 2011.
    Rehearing Denied Jan. 17, 2012.
    Certiorari Denied April 26, 2012.

      Leslie S. Lee, Jackson, Erin Elizabeth Pridgen for appellant.
    Office of the Attorney General by John R. Henry Jr., for appellee.
    Before LEE, C.J., MYERS and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Anthony Prenell Jones was convicted in the Forrest County Circuit Court of armed robbery. He was sentenced as a habitual offender to twenty-five years in the custody of the Mississippi Department of Corrections without eligibility for parole or probation. Jones filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the trial court denied.

¶ 2. Jones now appeals, arguing the following issues: (1) the State was improperly allowed to amend the habitual-offender portion of the indictment to change the date of a prior conviction, and (2) the trial court failed to include an order in the record amending the indictment. Finding no reversible error, we affirm.

FACTS

¶ 3. A masked man entered the Circle K Convenience Store in Hattiesburg, Mississippi, and demanded money from the store clerk. The man pointed a .22-caliber handgun at the store clerk, Samuel Chap-pell, and demanded money. Before exiting the store, the robber grabbed several packages of cigarettes. He dropped some of the packages on the floor as he left.

¶ 4. Chappell called the Hattiesburg Police Department. Chappell was unable to identify the robber. Jon Byrd, a latent fingerprint examiner, collected prints from the cigarette packages dropped by the robber. He found three prints that matched Jones’s fingerprints. A warrant was issued, and Jones was arrested at his mother’s home. Police found a .22-caliber revolver, a box of bullets, a .22 cartridge, a stocking hat, and cash.

DISCUSSION

I. ERROR IN INDICTMENT

¶ 5. Jones argues that the indictment against him was fatally defective because it contained erroneous information regarding his status as a habitual offender.

¶ 6. Jones was sentenced under Mississippi Code Annotated section 99-19-81 (Rev.2007), which states:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

¶ 7. The pen pack submitted to the trial court reflects three prior felonies committed in Michigan, two of which were cited by the State of Mississippi in the indictment. On February 4, 2002, Jones was convicted of two charges: attempted unlawful driving away of an automobile and fleeing from a police officer. The cause number for these two convictions is 02-009352-FH-U. Jones was sentenced on February 25, 2002, but he was not incarcerated for these offenses until October 7, 2002, when he was detained for an unrelated fleeing offense that occurred on September 15, 2002. The cause number for the third offense is 02-010651-FH-R. Jones was convicted of this offense on October 21, 2002, and sentenced on November 15, 2002.

¶ 8. Jones argues that the indictment contains substantive errors regarding his prior felonies. The enhancement portion of the indictment states:

(1) On October 07, 2002, he, the said ANTHONY PRENELL JONES, was convicted in the Circuit Court of Gene-see County, Michigan, in Cause No. 02-009352-FH-U, of the felony of Attempt Unlawful Driving Away an Automobile, and, on October 07, 2002, in said Court was sentenced to a term of twenty to thirty (20-30) months in the custody of the Michigan Department of Corrections; and
(2) On October 07, 2002, he, the said ANTHONY PRENELL JONES, was convicted in the Circuit Court of Gene-see County, Michigan, in Cause No. 02-010651-FH-R, of the felony of Attempt Police Officer-Feeling [sic]-Third Degree, and, on October 07, 2002, in said Court was sentenced to a term of twenty to thirty (20-30) months in the custody of the Michigan Department of Corrections ....

¶ 9. The indictment erroneously states that Jones was convicted and sentenced on October 7, 2002, for both cause numbers 02-009352-FH-U and 02-010651-FH-R. Jones objected at the sentencing hearing, arguing that he was only prepared to defend against the sentences that occurred on October 7, 2002. His defense was that the two crimes for which he was sentenced on October 7, 2002, arose from the same incident and, thus, did not meet the requirements of section 99-19-81. The trial court continued Jones’s sentencing, giving both parties a week to consider the applicability of the Michigan convictions.

¶ 10. At the rescheduled sentencing hearing, the State continued to assert that both offenses were distinct. However, the prosecutor informed the trial court that the date of cause number 02-010651-FH-R was incorrect. The State argued the correct date was November 15, 2002, and it sought to amend the indictment to modify what it deemed a scrivener’s error. Jones’s counsel objected to any post-trial amendment. The trial court did not rule on the State’s motion to amend the date of the second predicate offense. Instead, based on what it deemed adequate proof that Jones had committed prior “separate and distinct crimes,” the trial court found Jones qualified as a habitual offender.

¶ 11. “The question of whether an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review by an appellate court.” Davis v. State, 866 So.2d 1107, 1110 (¶ 11) (Miss.Ct.App.2003). The purpose of an indictment “is to inform the defendant with some measure of certainty as to the nature of the charges brought against him so that he may have a reasonable opportunity to prepare an effective defense.... ” Moses v. State, 795 So.2d 569, 571 (¶ 13) (Miss.Ct.App.2001). While Uniform Rule of Circuit and County Court 7.06(5) requires dates to be listed in the indictment, it goes on to state that the failure to cite the correct date in an indictment shall not render the indictment insufficient.

¶ 12. Despite the absence of the amendment to the indictment correcting the date, we find that the indictment contained sufficient information for Jones to prepare a defense. The incorrect date amounted to a scrivener’s error. It affected the form of the indictment, not its substance. Jones was put on notice by the two cause numbers cited in the indictment of the charges the State intended to use to prove Jones’s habitual-offender status. We also find that the two charges arose from separate incidents. Cause number 02-009352-FH-U stemmed from a car jacking that took place on December 23, 2001. On that date, Jones punched a Michigan man in the face, breaking his glasses, then stole the man’s car. On December 26, 2001, police spotted Jones in the stolen car and pursued him. He fled, but he was arrested a few weeks later on January 12, 2002. Jones was charged with three counts related to the theft and flight. He ultimately pleaded guilty to two felony offenses, only one of which — attempted unlawful driving away of a motor vehicle— was listed as a predicate offense.

¶ 13. The second pi'edicate office— cause number 02-010651-FH-R — occurred on September 15, 2002, when the Michigan State Police attempted to stop a vehicle for driving seventy-two miles per hour in a forty-five mile-per-hour zone. The driver refused to stop, and the police gave chase. The suspect eventually crashed the car and fled on foot. The driver was later identified as Jones. This charge was separately brought, and Jones pleaded guilty on October 21, 2002.

¶ 14. We find that Jones was put on notice of the prior convictions by the introduction of the pen pack from Michigan, which listed the two cause numbers. We also find that the two charges were separate and distinct. Further, Jones was given seven days after the jury reached its verdict to prepare a defense to his sentencing as a habitual offender. This issue is without merit.

¶ 15. An additional error in the indictment concerns the length of the sentence for one of the predicate offenses. The indictment shows that Jones was sentenced to twenty to thirty months’ imprisonment on each count. The pen pack shows that offense number 02-009352-FH-U resulted in a thirty-six month probationary sentence. The sentence for 02-010651-FH-R was twenty to thirty months, which was correctly shown in the indictment. We find the mistake as to the length of the sentences is immaterial as all the sentences were over one year. Also, as to cause number 02-010651-FH-R, the indictment states that the felony charged was the “attempt” to flee from a police officer. This is incorrect. The predicate offense to which Jones pleaded guilty was the completed act of fleeing. Jones did not raise this issue during sentencing or on appeal. Regardless, we find that the errors were to form rather than substance and did not prejudice Jones’s defense. The indictment cites the correct cause numbers and jurisdiction where the offenses occurred. We also find this issue without merit.

II. ABSENCE OF ORDER AMENDING INDICTMENT

¶ 16. Next, Jones argues that the indictment was ineffective because the order amending the indictment was not made part of the record as required by Mississippi Code Annotated section 99-17-15 (Rev.2007).

¶ 17. Section 99-17-15 states:

The order of the court for amendment of the indictment, record or proceedings provided in Section 99-17-13 shall be entered on the minutes, and shall specify precisely the amendment, and shall be a part of the record of said case, and shall have the same effect as if the indictment or other proceeding were actually changed to conform to the amendment; and wherever necessary or proper for the guidance of the jury, or otherwise, the clerk shall attach to the indictment a copy of the order for amendment.

¶18. During the sentencing hearing, the State moved to amend the indictment to correct one of the prior conviction dates from October 7, 2002, to November 15, 2002. Jones’s counsel objected to the amendment. However, the amendment was not made to the indictment nor was it mentioned further by the trial court. No objection was made to the absence of the order granting or denying the State’s motion to amend the indictment.

¶ 19. Regarding orders to amend an indictment, the Mississippi Supreme Court has held that “[t]he State is required to make sure that such an order appears in the record and the defense is required to object to the absence of such order if it wishes to preserve this point for appeal.” Reed v. State, 506 So.2d 277, 279 (Miss.1987). Neither the State or defense followed through with this requirement. Thus, this issue was not properly preserved for appeal. Notwithstanding the procedural bar, we will address whether the variance in the indictment and the proof is fatal to Jones’s case.

¶ 20. In Leonard v. State, 972 So.2d 24, 28 (¶ 11) (Miss.Ct.App.2008), Randy Leonard’s indictment stated an incorrect date. The State moved to amend the indictment to reflect the correct date, and Leonard objected. Id. The trial court did not originally rule on the motion, but it later granted the motion to amend. Id. However, the State did not see to it that the trial court entered an order allowing the amendment of the indictment. Id. at 29 (¶ 17). This Court found that the issue then became “whether the variance in the indictment and the proof is fatal to Leonard’s case.” Id. As stated above, failure to state the correct date in an indictment shall not render the indictment insufficient. URCCC 7.06(5). As we find that the variance in the indictment is one of form only, it did not prejudice Jones’s defense or the theory of his case. This issue is procedurally barred and without merit.

¶ 21. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, ROBERTS, CARLTON AND RUSSELL, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT.


author: MAXWELL, J., CARLTON, J.,

text:
    Lloyd Wayne CUEVAS and Charlotte Angell Cuevas, Appellants v. Angela K. LADNER and Kelly C. Smith, Appellees.
    No. 2011-CA-00108-COA.
    Court of Appeals of Mississippi.
    April 10, 2012.

      Michele Dawn Biegel, B. Ruth Johnson, Jackson, attorneys for appellants.
    James C. Simpson Jr., Biloxi, attorney for appellees.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Lloyd Wayne Cuevas missed the deadline for filing a notice of appeal from an adverse ruling in the Harrison County Chancery Court. He moved to reopen the time for appeal under Mississippi Rule of Appellate Procedure 4(h), alleging he did not receive proper notice of the entry of the chancellor’s order. Because Cuevas provided a specific factual denial of receipt of notice, supported by an affidavit from his attorney and other documentation, and with no contrary proof from the opposing parties, we find the chancellor abused his discretion by refusing to reopen the time for appeal. Therefore, we reverse and remand for further proceedings.

FACTS

¶2. Cuevas executed and delivered a quitclaim deed conveying his homestead property to his two daughters, Angela Ladner and Kelly Smith. Cuevas later filed suit seeking to cancel the deed of record, claiming his signature on the deed had been forged and illegally notarized. The chancellor disagreed with Cuevas’s allegations. Based on the testimony of Lad-ner, Smith, and a notary public, the chancellor found Cuevas had in fact signed the quitclaim deed. The chancellor also found the deed to Ladner and Smith had priority over a competing deed Cuevas had executed to the same property. The chancellor entered a final judgment resolving the dispute in favor of Ladner and Smith.

¶ 3. Cuevas requested that the chancellor amend his findings under Mississippi Rule of Civil Procedure 52 or, in the alternative, grant a new trial under Mississippi Rule of Civil Procedure 59. The chancellor denied Cuevas’s motion on November 1, 2010. Cuevas had thirty days from this date to file a notice of appeal. M.R.A.P. 4(a), (d). He missed the deadline.

¶ 4. On December 10, 2010, Cuevas moved to reopen his time for appeal under Mississippi Rule of Appellate Procedure 4(h), alleging he did not receive proper notice of the chancellor’s November 1 order. See M.R.C.P. 77. Without conducting a hearing, the chancellor denied Cue-vas leave to file an out-of-time appeal. Cuevas appeals from this ruling.

STANDARD OF REVIEW

¶ 5. We review a trial court’s denial of an out-of-time appeal under Rule 4(h) for an abuse of discretion. Pre-Paid Legal Servs., Inc. v. Anderson, 873 So.2d 1008, 1009 (¶ 4) (Miss.2004) (citing M.R.A.P. 4(h)).

DISCUSSION

¶ 6. Mississippi Rule of Civil Procedure 77(d) mandates that “[i]mmediately upon the entry of an order or judgment!,] the clerk shall serve a notice of the entry” to the parties. “In addition to the clerk’s notice, a party may serve notice on the other party.” Duncan v. Duncan, 774 So.2d 418, 420 (¶5) (Miss.2000); M.R.C.P. 77(d). By doing so, the prevailing party “may protect itself from the possibility of an adverse party claiming lack of notice and ... insure the running of the clock” for the purposes of appeal. Miss. Pub. Employees’ Ret. Sys. v. Lee, 23 So.3d 528, 531 (¶ 7) (Miss.Ct.App.2009) (citing Anderson, 873 So.2d at 1010 (¶ 8)).

¶ 7. If a party does not receive notice of a court order or receives notice so late it impairs the opportunity to file a timely notice of appeal, that party may seek relief under Rule 4(h). Duncan, 774 So.2d at 420 (¶ 6); see also M.R.C.P. 77(d) cmt.; M.R.A.P. 4(h) cmt. Rule 4(h) provides:

The trial court, if it finds (a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced, may, upon motion filed within 180 days of entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.

M.R.A.P. 4(h).

¶ 8. The Mississippi Supreme Court has defined “prejudice” under Rule 4(h) as “some adverse consequence other than the cost of having to oppose the appeal and encounter the risk of reversal.” Duncan, 774 So.2d at 420 (¶ 7). “Prejudice might arise, for example, if the appellee had taken some action in reliance on the expiration of the normal time period for filing a notice of appeal.” M.R.A.P. 4(h) cmt.

¶ 9. The burden is on the party seeking relief to show lack of timely notice. See Anderson, 873 So.2d at 1009 (¶ 6); Forkner v. State, 852 So.2d 604, 606 (¶ 7) (Miss.Ct.App.2002). If the clerk’s records reflect that mailed notice was provided, a presumption arises that notice was received. See Anderson, 873 So.2d at 1009 (¶7). But “a specific factual denial of receipt of notice rebuts and terminates the presumption that mailed notice was received.” Id. at 1009 (¶ 6) (quoting M.R.A.P. 4(h) cmt.); see also Lee, 23 So.3d at 530-31 (¶ 5). This court has held that “a party’s specific factual denial of receipt is sufficient to conclusively overcome any subjective reasoning by a trial judge or ambiguity in a record as to whether notice was actually received.” Lee, 23 So.3d at 531 (¶ 7) (citing Anderson, 873 So.2d at 1009 (¶¶ 6-7)). “Once the presumption of notice is rebutted, [the] trial court must address the issue of prejudice.” Lee, 23 So.3d at 531 (¶ 5) (citing Anderson, 873 So.2d at 1009-10 (¶¶ 7-9)).

¶ 10. In Anderson, the supreme court reversed a trial court’s refusal to reopen the time for appeal, where the defendants made a timely specific denial of receipt of notice. Anderson, 873 So.2d at 1010 (¶ 9) (applying M.R.A.P. 4(h)). There, the defendants missed the deadline for appealing the trial court’s grant of a partial summary judgment to the plaintiff and moved under Rule 4(h) to reopen the time for appeal. Relying on the clerk’s records, which indicated that notice had been served on the parties, the trial court denied relief. Id. at 1009 (¶¶ 3, 7). The supreme court held this was an abuse of discretion. Id. at (¶ 7). Although finding the clerk’s office records gave rise to a rebuttable presumption that mailed notice was received, the supreme court held this presumption was “rebutted and terminated” when the defendants specifically denied receiving notice of the entry of the court’s order. Id. Observing that “[t]he rules clearly and unequivocally call for the clerk to provide notice of the entry of judgment,” the supreme court found it of no consequence “that defendants’ counsel were present when the ruling was announced and the order signed[.]” Id. at 1010 (¶ 8).

¶ 11. The supreme court revisited essentially the same issue in Taylor and reaffirmed Anderson’s holding. Prepaid Legal Servs., Inc. v. Taylor, 904 So.2d 1059, 1060-61 (¶¶ 9-11) (Miss.2004). As in Anderson, the defendants in Taylor specifically denied receiving proper notice of the trial court’s order under Rule 4(h). The plaintiffs failed to respond with any contrary proof showing that notice had been sent or received. The supreme court found the “specific factual denial of the receipt of notice ... rebutt[ed] and destroyed] the presumption of notice.” Id. at 1061 (¶ 10). Thus, the trial court’s refusal to reopen the time for appeal was an abuse of discretion. Id.; see also Boyles v. Schlumberger Tech. Corp., 792 So.2d 262, 266-67 (¶¶ 12-13) (Miss.2001) (reversing trial court’s refusal to reopen time for appeal); Duncan, 774 So.2d at 420-21 (¶¶ 8-9) (same); Lee, 23 So.3d at 532 (¶ 11) (same); Horowitz v. Parker, 852 So.2d 686, 689 (¶ 10) (Miss.Ct.App.2003) (same).

¶ 12. Here, Cuevas made a specific factual denial that he received notice. In his motion for an out-of-time appeal, he alleged that neither he nor his counsel received notice of the chancellor’s November 1, 2010 order (which denied his Rule 52 post-trial motion) within 21 days. See M.R.A.P. 4(h); M.R.C.P. 77(d). In support of his motion to reopen, Cuevas attached an affidavit from his attorney, Michele D. Biegel. Biegel attested she only learned of the entry of the November 1 order after receiving an email from opposing counsel on December 7. Cuevas also attached as an exhibit a partially redacted printout of an email Biegel had sent to opposing counsel on December 6. The email reflects that, as of December 6, Bie-gel was unaware of the entry of the chancellor’s November 1 order. The December 6 email further shows Biegel had anticipated a hearing on Cuevas’s post-trial motion. In Cuevas’s motion to reopen, he alleged neither Smith nor Ladner would be prejudiced by permitting an out-of-time appeal.

¶ 13. In response to Cuevas’s motion, Ladner and Smith claimed the handwritten language “4C” appearing on the court’s November 1 order showed copies had been sent to the four counsel of record. They also argued Cuevas was required to show “excusable neglect” to be entitled to relief. Ladner and Smith attached no affidavits or other proof tending to show Cuevas in fact received notice of the entry of the November 1 order.

¶ 14. We note the supreme court in Anderson squarely rejected Ladner and Smith’s first argument. Though the handwritten designation “4C” may have established a presumption of notice, this presumption was rebutted and terminated when Cuevas made a specific factual denial that he received notice. Anderson, 873 So.2d at 1009-10 (¶¶ 7, 9). The supreme court has further instructed that Rule 4(h) provides a “limited opportunity for relief, independent of and in addition to that available under M.R.A.P. 4(g).” Duncan, 774 So.2d at 420 (¶ 6). And the official comment to the rule makes clear:

While the trial court retains some discretion to refuse to reopen the time for appeal even when the requirements of Rule (4)(h) are met, the concept of excusable neglect embodied in Rule 4(g) simply has no place in the application of Rule 4(h).... Thus, where non-receipt has been proven and no other party would be prejudiced, the denial of relief cannot rest on a lack of excusable neglect, such as a party’s failure to learn independently of the entry of judgment during the thirty-day period for filing notices of appeal.

M.R.A.P. 4(h) (citations and quotations omitted). Therefore, the excusable neglect criteria in Rule 4(g) have no bearing on whether Rule 4(h)’s requirements were met.

¶ 15. Ladner and Smith also suggest for the first time on appeal that Cuevas’s “lead counsel,” Walter L. Nixon Jr. might have received proper notice. Yet Ladner and Smith point to no record evidence demonstrating Nixon received proper notice, or for that matter, that Nixon was Cuevas’s lead counsel during post-trial proceedings. Indeed, Biegel was the attorney who drafted the Rule 52 motion that the chancellor denied on November 1, the entry of which Cuevas claims he did not have proper notice. And Ladner and Smith offer no contrary proof that Biegel received proper notice.

¶ 16. We find Cuevas’s specific factual denial of receipt of notice, supported by an affidavit from his attorney and other documentation, was sufficient to rebut the presumption of notice. See, e.g., Taylor, 904 So.2d at 1060-61 (¶¶ 9-11); Anderson, 873 So.2d at 1009-10 (¶¶ 7-9). Neither Lad-ner nor Smith argue they would be prejudiced by allowing Cuevas to re-open the time for appeal. And we discern no evidence of prejudice other than the costs of defending the appeal, which is not a component in our prejudice analysis. See, e.g., Duncan, 774 So.2d at 420 (¶ 7). Since Cuevas rebutted the presumption of notice, and no party would be prejudiced, we find the chancellor abused his discretion in denying Cuevas an out-of-time appeal.

¶ 17. We reverse the chancellor’s order denying Cuevas an out-of-time appeal. On remand the chancellor should reopen the time to appeal for a period of fourteen days. See M.R.A.P. 4(h).

¶ 18. THE JUDGMENT OF THE HARRISON COUNTY CHANCERY COURT IS REVERSED, AND THIS CASE IS REMANDED WITH INSTRUCTIONS TO REOPEN THE TIME FOR APPEAL FOR FOURTEEN DAYS. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPEL-LEES.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS AND RUSSELL, JJ, CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY ISHEE, J. FAIR, J., NOT PARTICIPATING.

CARLTON, J.,

DISSENTING:

¶ 19. I respectfully dissent, as I disagree with the majority’s determination that the appellate record supports a finding that the chancellor abused his discretion by refusing to reopen the time for appeal.

¶20. In this case, Cuevas missed the deadline for filing his notice of appeal from an adverse ruling in Harrison County Chancery Court, which was entered on November 1, 2010. Pursuant to Appellate Rules 4(a) and (d), Cuevas had thirty days from this date to file a notice of appeal. On December 10, 2010, Cuevas filed a motion to reopen the time for appeal under Appellate Rule 4(h), alleging he did not receive proper notice of the chancellor’s November 1, 2010 order. The chancellor refused to reopen the time for appeal. On appeal to this Court, the majority found that Cuevas’s specific factual denial of receipt of notice of the chancellor’s order, supported by an affidavit from his attorney and other documentation, was sufficient to rebut the presumption of notice. However, I submit that the record supports the chancellor’s denial of Cuevas’s motion, and I submit that Cuevas’s denial conflicts with the record.

¶ 21. The chancellor herein was not required to make findings in support of his denial, and our standard of review requires that we affirm the chancellor if his decision is supported by substantial evidence. Rule 4.01 of the Uniform Chancery Court Rules and Rule 52 of the Mississippi Rules of Civil Procedure allow the trial court to make specific findings of fact and “state separately its conclusions of law thereon[.]” Rule 52 gives the trial court the discretion to make such findings absent a parties’ request.

¶ 22. In Omnibank of Mantee v. United Southern Bank, 607 So.2d 76, 82 (Miss.1992), the Mississippi Supreme Court stated that where a trial court sits without a jury, the trial court’s judgment will be affirmed on appeal where the record includes substantial supporting evidence. The supreme court acknowledged that when the trial court fails to provide findings of fact reasonably prerequisite to its judgment, appellate courts must assume the trial court resolved the remaining issues consistent with the judgment. Id. The supreme court further clarified that “[tjhese implied findings are protected by the substantial evidence rule the same as express findings.” Id.

¶ 23. In this case, the chancellor denied the motion to reopen time for appeal without providing findings, and the record shows that neither party requested specific findings from the chancellor. I submit that the record provides sufficient facts in support of the chancellor’s discretion in denying Cuevas’s motion to reopen the time for appeal for us to apply the “implied findings” doctrine, thus allowing us to assume the chancellor made determinations of fact sufficient to support his judgment. See Tricon Metals & Servs., Inc. v. Topp, 516 So.2d 236, 238 (Miss.1987); Pace v. Owens, 511 So.2d 489, 491-92 (Miss.1987). The record shows evidence conflicting with the attempt by Cuevas’s counsel, Biegel, to rebut the presumption of notice. Specifi-eally, the record reflects that the court records and the order itself indicate that notice was sent to the four counsel (of record) due to the notation “4C.” A review of the record further shows that the language of the affidavit by Cuevas’s counsel fails to claim that she was unaware of the court ruling; instead, the affidavit simply asserts lack of receipt of notice. The record shows that this matter was pending in chancery court, and Ladner and Smith’s brief appropriately recognizes an attorney’s established duty to be diligent in checking the court record and docket, particularly in a case taken under advisement by a chancellor.

¶ 24. Paragraph four of the affidavit by Cuevas’s counsel provides that neither she nor her office received notice from the clerk or any party. However, her affidavit does not state that she was unaware of the order. Her affidavit also does not state that “counsel of record” failed to receive notice from the clerk. Significantly, the disputed order shows that “4C” is handwritten at the bottom of the page at the end of the order. I submit that such notation provides a basis for the chancellor to determine copies were sent to the four counsel of record, contradicting the affidavit of Cuevas’s counsel denying receipt of notice. Additionally, the order signed by the chancellor denying Cuevas’s motion to reopen time for appeal similarly shows on the bottom of the page in handwritten script the following notation: “Six copies Walter Nixon, Esq., Michele Biegel, Wayne Farrell, Scott Ellzey, Ron Yar-brough,[and] James Simpson.” I thus submit that the record supports the chancellor’s decision denying Cuevas’s request to reopen the time for appeal. Furthermore, I find that the denial of receipt of notice of the chancellor’s November 1, 2010 order by Cuevas’s counsel is insufficient to constitute a specific factual denial of receipt of notice by counsel of record, especially where the denial and the counsel’s affidavit contradict the face of the record. Therefore, I respectfully dissent, and I would affirm the chancellor’s denial of Cuevas’s motion to reopen time for appeal.

ISHEE, J., JOINS THIS OPINION.

      . For the purposes of this opinion, we refer to the appellants collectively as "Cuevas.”

      . Rule 77(d) provides: "Lack of notice of the entry by the clerk does not affect the time to appeal, nor relieve, nor authorize the court to relieve, a party for failure to appeal within the time allowed, except as permitted by the Mississippi Rules of Appellate Procedure.”

      . "In all actions where it is required or requested pursuant to MRCP 52, the chancellor shall find the facts specially and state separately his conclusions of law thereon. The request must be made either in writing, filed among the papers in the action, or dictated to the Court Reporter for record and called to the attention of the chancellor.”


author:
RUSSELL, J.,
      CARLTON, J.,

text:
    Linda W. LOCHRIDGE, Appellant v. PIONEER HEALTH SERVICES OF MONROE COUNTY, INC., Appellee.
    No. 2010-CA-01529-COA.
    Court of Appeals of Mississippi.
    April 24, 2012.

      Jim Waide, Tupelo, Luther C. Fisher, IV, attorneys for appellant.
    J. Tucker Mitchell, Keely Rose McNulty, Magee, Bruce B. Smith, Marisa Campbell Atkinson, Ridgeland, Matthew Taylor Biggers, attorneys for appellee.
    Before LEE, C.J., ROBERTS and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Linda Lochridge appeals the Monroe County Circuit Court’s grant of summary judgment in favor of Pioneer Health Services of Monroe County, Inc. (Pioneer) on Lochridge’s malicious-prosecution claim. Finding several genuine issues of material fact in dispute, we reverse and remand.

FACTS

¶ 2. Lochridge worked as a registered nurse at one of Pioneer’s assisted-living facilities. Lochridge was considered a good employee and maintained positive relationships with patients and staff. On May 4, 2007, she met with Susan Grimes, director of the assisted-living facility, and Linda Smith, director of human resources. Grimes and Smith informed Lochridge her position had been eliminated due to Pioneer’s restructuring and cost-saving measures. Lochridge surrendered her keys to the facility. Lochridge was escorted back to the assisted-living facility, where other employees helped her load what she could into her car.

¶ 3. Later that evening, Lochridge shared dinner with friends, some of whom were her former Pioneer coworkers. It is undisputed that Lochridge had left several personal items at the facility; therefore, the Pioneer employees at the dinner offered to help her retrieve the remaining items.

¶ 4. At approximately 9:00 p.m., Lo-chridge and four to five Pioneer employees went to the assisted-living facility. According to Lochridge, when they arrived, Pauline Rowe, one of the nurses on duty, allowed Lochridge and the other Pioneer employees to enter the facility. Cindy Beasley, another nurse, loaned Lochridge her key to the nursing office so Lochridge could retrieve her items from that office. Subsequently, Lochridge called Grimes’s cell phone and left a voice message, stating she had obtained her remaining items from the facility.

¶ 5. According to Grimes, after listening to Lochridge’s voice message at approximately 11:30 p.m., she called the facility and spoke with Ollie Burroughs about what had happened. It is disputed whether Burroughs informed her that Lochridge had taken items that belonged to Pioneer. Grimes then called her supervisor, Steve Fontaine. Fontaine instructed her to either call Lochridge and ask her to return the items or call the police. Prior to Grimes calling Lochridge, she called the Aberdeen Police Department (APD) and the Monroe County Sherriff s Department, stating Lochridge had entered the facility without permission and had stolen items that belonged to Pioneer. According to Grimes, she then called Lochridge “to inform her of pending charges” and to request that Lochridge return the items. The following morning Grimes received a voice message from Lochridge indicating that she had returned some items to the facility. The exact wording of Lochridge’s message is disputed.

¶ 6. On May 7, 2007, Grimes went to APD and provided a verbal statement of the incident and was instructed by Officer Mike Griffin to prepare a written report and list of items taken from the facility. Subsequently, on May 9, 2007, Grimes provided Major Quinell Shumpert written reports of the incident, which included a list of the property allegedly taken and assessed a value of IS^OO.OO. Based on the information from Grimes, Major Shumpert signed an affidavit charging Lochridge with burglary, and the APD issued an arrest warrant for Lochridge. That same day, Lochridge turned herself in to the APD. Upon arrival, she provided Major Shumpert with receipts for several items she removed from Pioneer that belonged to her. Lochridge also provided Major Shumpert with some file documents that allegedly belonged to Pioneer.

¶ 7. On January 18, 2008, the grand jury of Monroe County indicted Lochridge under Mississippi Code Annotated section 97-17-38 (Rev.2006) for burglary. The indictment alleged Lochridge unlawfully entered Pioneer’s facility and stole Pioneer’s lawn furniture, patient files, and fax machine. The charges were retired to file on February 29, 2008, and were dismissed with prejudice officially on September 11, 2008.

¶ 8. The next month, Lochridge filed her complaint against Pioneer, alleging malicious prosecution. After a hearing, the circuit court granted Pioneer’s motion for summary judgment, finding Lochridge failed to demonstrate the elements of malice or probable cause. Lochridge now appeals.

DISCUSSION

¶ 9. This Court applies a de-novo standard of review when a circuit court grants summary judgment. Harris v. Miss. Valley State Univ., 873 So.2d 970, 979 (¶ 14) (Miss.2004). Since the circuit court receives no deference in summary-judgment matters, we:

[E]xamine[ ] all the evidentiary matters before it, admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact, and the mov-ant is entitled to judgment as a matter of law, summary judgment should ... be entered for the movant. Otherwise, the motion should be denied. Issues of material fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says to the opposite. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant should be given the benefit of any doubt.

Id.

¶ 10. The elements of a malicious-prosecution claim are:

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

McClinton v. Delta Pride Catfish, Inc., 792 So.2d 968, 978 (¶ 8) (Miss.2001).

¶ 11. The circuit court focused its ruling on the malice and want-of-probable-cause elements. Specifically, the circuit court found it undisputed that Lochridge had removed Pioneer’s personal property from the facility, including patient files and marketing material. Therefore, the circuit court held that Lochridge could not prove either malice or want of probable cause.

I. Termination of Criminal Prosecution

¶ 12. Although the Mississippi Supreme Court requires a termination of criminal prosecution, a final termination is not required. Its holdings in other cases teach that the termination element of a malicious-prosecution claim does not require an appealable judgment or a dismissal with prejudice. Joiner v. Principal Cas. Ins. Co., 684 So.2d 1242, 1244 (Miss.1996) (quoting Royal Oil Co., Inc. v. Wells, 500 So.2d 439, 443 (Miss.1986)) (holding that the underlying case was terminated where a warrant issued on an affidavit was bound over to the grand jury, which did not indict); see also Childers v. Beaver Dam, Plantation, Inc., 360 F.Supp. 331, 334 (N.D.Miss.1973) (holding a nolle prose-qui is a termination of the underlying case upon which a malicious-prosecution action can accrue).

¶ 13. The record indicates that on March 4, 2008, Lochridge filed a motion to dismiss the criminal charges seeking that the case be dismissed with prejudice. Lo-chridge’s motion to dismiss further stated that “[i]f Plaintiff is not willing to dismiss the case with prejudice, then the case should be tried in the first place setting on June 19, 2008.” No other motion to dismiss was filed, and no opposition to Lo-chridge’s motion is found in the record. On September 11, 2008, the circuit court found the motion well taken and dismissed the cause.

¶ 14. Further, it is not necessary that all proceedings that may be required to enforce the rights of the parties occur before the cause of action accrues for malicious prosecution. Id. The requirement of termination is satisfied by showing that the suit upon which the malicious-prosecution claim is based was abandoned. 52 Am.Jur.2d Malicious Prosecution § 42 (1970). Pioneer submitted a letter to the District Attorney’s office stating “[w]e do not wish to pursue criminal charges against Linda Lochridge at this time.” Notwithstanding that Pioneer could have pursued its criminal allegations by filing a subsequent affidavit against Lochridge, it did not; thus, the allegations made by Pioneer resulting in the civil action before us were clearly abandoned on February 27, 2008. Thus, the termination requirement for malicious-prosecution purposes is met.

II. Malice

¶ 15. Lochridge argues jurors could infer malice from the fact that Pioneer pursued her prosecution for burglary, knowing the personal property belonged to her, and from Grimes’s making false statements to the police about the incident. We agree. Pioneer, however, asserts it initiated criminal proceedings against Lo-chridge to bring her to justice for taking its property. Because Lochridge did, in fact, give the police several items that belonged to Pioneer, Pioneer asserts Lo-chridge cannot prove malice.

¶ 16. “Malice” holds a particular meaning in malicious-prosecution claims. The Mississippi Supreme Court explained:

[Mjalice does not refer to mean or evil intent, as a layman might ordinarily think. Rather, malice in the law of malicious prosecution is a term used in an artificial and legal sense. It connotes a prosecution instituted primarily for a purpose other than that of bringing an offender to justice. As such, it refers to the defendant’s objective, not his attitude. Malice may be and usually is shown by circumstantial evidence. The jury may infer malice from the facts of the case. Malice may be inferred as well from the fact that a defendant may have acted with reckless disregard for the plaintiffs rights.

Nassar v. Concordia Rod & Gun Club, Inc., 682 So.2d 1035, 1044-45 (Miss.1996) (citations omitted).

¶ 17. In this case, the circuit court incorrectly found the malice element lacking because Lochridge indisputably had returned Pioneer’s patient files, which were not medical files, to the police. It is disputed whether the files returned by Lo-chridge were documents taken separately or whether they were documents located in personal property belonging to Lochridge. Whether Lochridge returned any of the items is irrelevant to whether Pioneer instituted the burglary prosecution for an improper purpose. Further, the depositions of several witnesses show genuine factual disputes on the malice element. For example, Grimes characterized her reason for reporting Lochridge to the police as a “business decision.” This statement alone raises a genuine issue of material fact as to whether Pioneer instituted the burglary prosecution for a purpose other than to bring Lochridge to justice. See, e.g., Strong v. Nicholson, 580 So.2d 1288, 1294 (Miss.1991) (finding malice where defendants instigated grand-larceny prosecution “to protect their property rights”).

¶ 18. The facts are also in dispute on whether Pioneer acted with reckless disregard for Lochridge’s rights — particularly, when Grimes provided Major Shumpert with the information he used for the affidavit alleging burglary. Grimes stated Burroughs and Rowe, the nurses on duty, told Grimes they did not know how Lochridge entered the facility. Rowe, however, unequivocally stated she allowed Lochridge into the facility. Rowe also stated Grimes never asked her how Lochridge entered the facility. There is also nothing in the record to indicate that Lochridge entered the facility under false pretense or trickery.

¶ 19. Additionally, Lochridge asserts she only removed items for which she had paid and had not been reimbursed. Grimes knew Lochridge had purchased items for use at the assisted-living facility. Further, Grimes could determine whether Pioneer had reimbursed Lochridge for her purchases, as Grimes had obtained an accounting report, which detailed the items and amounts for which Lochridge had been reimbursed. But without consulting her accounting report, Grimes provided the pólice with a list of items allegedly stolen by Lochridge. On the list provided to the police were items Grimes knew belonged to Lochridge. Considering the evidence in the light most favorable to Lochridge, jurors could reasonably find Pioneer acted with malice based on Grimes’s role in instituting the prosecution against Lochridge for burglary.

III. Probable Cause

¶ 20. Lochridge asserts Pioneer lacked probable cause to charge her with burglary because several witnesses stated she was allowed to enter the facility. Pioneer, however, argues it honestly believed Lochridge had unlawfully entered its facility and removed its personal property because of the voice message Lochridge left Grimes stating that she had gone back to the facility and gotten her belongings. Pioneer further argues it had reasonable grounds to believe Lochridge was guilty because she returned items when she turned herself in to the police. The evidence is disputed regarding whether these items returned by Lochridge belonged to her,

¶ 21. In evaluating whether probable cause existed, “we look to the facts reasonably available” to the defendant when the prosecution was initiated. Strong, 580 So.2d at 1294. Probable cause requires proof of “(1) a subjective element — an honest belief in the guilt of the person accused, and (2) an objective element — reasonable grounds for such belief.” McClinton, 792 So.2d at 973 (¶ 11) (citation omitted). “[P]roof of lack of probable cause on any one element of the crime charged and which forms the basis of the action is sufficient to establish this element of the tort.” C & C Trucking Co. v. Smith, 612 So.2d 1092, 1100 (Miss.1992) (citation omitted).

¶ 22. Lochridge was charged with violating Mississippi Code Annotated section 97-17-33, which states:

Every person who shall be convicted of breaking and entering, in the day or night, any shop, store, booth, tent, warehouse, or other building or private room or office therein ... to commit any felony, ... shall be guilty of burglary, and imprisoned in the penitentiary not more than seven (7) years.

(Emphasis added). The indictment specifically alleged Lochridge committed the underlying felony of grand larceny by stealing Pioneer’s lawn furniture, patient files, and a fax machine. Grand larceny requires evidence of the offender’s “taking and carrying away, feloniously, the personal property of another, of the value of Five Hundred Dollars ($500.00) or more.... ” Miss.Code Ann. § 97-17-41(1) (Rev.2006).

¶ 23. As noted above, the circuit court incorrectly focused on Lochridge’s alleged actions in finding the probable-cause element lacking. Several factual disputes exist on each element of the alleged burglary. For example, the witnesses dispute whether Pioneer had an honest belief or reasonable grounds to believe Lochridge unlawfully entered the facility and removed Pioneer’s personal property. Lo-chridge asserts she knocked, and Rowe allowed her inside. Rowe agreed with this assertion.

¶ 24. The facts are also disputed on whether Pioneer had an honest belief or reasonable grounds to believe Lochridge unlawfully removed its personal property. Lochridge asserts she owned all the items she removed. Grimes knew Lochridge owned the fax machine and some other items Grimes reported stolen. Grimes, for example, explained that the “patient files” reportedly stolen referred to the “thorough records” and notes Lochridge kept while employed at Pioneer, and not patient-medical files. Grimes also asserted Lochridge had purchased with donated funds many of the items she removed, but Grimes provided no documentation to support her allegation.

¶ 25. At one point, Grimes placed some emphasis on Lochridge’s removal of a gazebo. This Court has stated that for personal property to be considered real property, it must permanently attach to real property, and the following criteria must be met:

[Pjroperty or equipment must be attached to building walls, floors, and/or ceiling in such way as to require design or structural alterations to the real property to which it is being attached, or property could not be removed intact or its removal would result in alteration or destruction of structure or property, or property must become an independent structure itself, i.e., real property, and the property must lose its identity as personal property.

Blount v. ECO Resources, Inc., 986 So.2d 1052, 1057 (¶ 18) (Miss.Ct.App.2008).

¶ 26. Considering the evidence in the light most favorable to Lochridge, jurors could reasonably find Pioneer lacked an honest belief or reasonable grounds to believe Lochridge committed any element of burglary. Probable cause requires the concurrence of an honest belief in the guilt of the person accused and reasonable grounds for such belief. Nassar v. Concordia Rod and Gun Club, Inc., 682 So.2d 1035, 1042 (Miss.1996). The absence of probable cause in the institution of a criminal proceeding would permit but not require a factfinder to infer malice. Id. at 1043. Unlike probable cause, the question of malice is to be determined by the jury unless only one conclusion may reasonably be drawn from the evidence. The defendant’s improper purpose usually is proven by circumstantial evidence, and the lack of probable cause for the initiation of the criminal proceedings is evidence of an improper purpose. Id. at 1044. The Mississippi Supreme Court found that “[t]he want of probable cause is an inference of law from the acquittal and discharge of the party prosecuted; and in the absence of other testimony, the jury are bound to find according to the legal inference.” Whitfield v. Westbrook, 40 Miss.311 (1866). Whitfield is not a recent case, but it has not been overruled.

¶27. In granting Pioneer’s motion for summary judgment, the circuit court failed to consider the evidence in the light most favorable to Lochridge. Genuine disputes of facts material to the outcome of this case clearly exist and should be left to resolution by the factfinder. After we consider the evidence in the required light, we must reverse the judgment of dismissal and remand for further proceedings.

¶ 28. THE JUDGMENT OF THE MONROE COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., IRVING, P.J., ISHEE, ROBERTS AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY GRIFFIS, P.J.

CARLTON, J.,

dissenting:

¶29. I respectfully dissent from the majority’s decision. Lochridge was indicted on January 18, 2008, for the offense on which she bases her malicious-prosecution claim. An indictment serves the purpose of guarding against malicious prosecution. Jefferson v. State, 556 So.2d 1016, 1021 (Miss.1989); Garner v. State, 944 So.2d 934, 939 (¶ 14) (Miss.Ct.App.2006).

¶30. Since probable cause existed, as shown by the independent review by the grand jury and the prosecutor, Lochridge’s malicious-prosecution claim fails due to the lack of evidence establishing both the “malice” and “want of probable cause” elements of malicious prosecution. See Funderburk v. Johnson, 935 So.2d 1084, 1100 (¶ 41) (Miss.Ct.App.2006). By order dated February 29, 2008, the circuit judge retired the cause to the files, and on September 11, 2008, the circuit judge granted Lochridge’s motion to dismiss the charges. On its face, the order of dismissal contained no language dismissing the case with prejudice.

¶ 31. Additionally, I submit that since probable cause existed to support the charges, as evidenced by the grand-jury indictment, Lochridge is unable to meet her burden to show that the conduct of Pioneer rose to the level of extremely outrageous or beyond all possible bounds of decency to establish her claim of malicious prosecution. See id. (citing Croft v. Grand Casino Tunica, Inc., 910 So.2d 66, 75 (¶ 32) (Miss.Ct.App.2005)).

¶ 32. In this case, nothing in the record indicates that the criminal case was dismissed due to a lack of probable cause or any malicious intent. In the civil case, Pioneer attached to its motion for summary judgment an incident report identifying the items taken from the living center. The summary-judgment motion also referenced the notification to Lochridge that she had been laid off. Pioneer also attached to the motion Lochridge’s deposition, documenting the return of her facility keys. It also attached the affidavit of Major Shumpert of the Aberdeen Police Department charging Lochridge with unlawfully carrying away goods of Pioneer valued over $3,000. Pioneer alleged in its motion for summary judgment that a warrant for Lochridge’s arrest was issued May 9, 2007, and Lochridge turned herself in to authorities that same day. Pioneer further contended that at that time, Lo-chridge met with Officer Shumpert and provided receipts for some of the items she had taken from Pioneer. However, Pioneer explained in its motion that when Lochridge turned herself in, she was still in possession of Pioneer’s patient files and other items belonging to Pioneer. Pioneer stated that Lochridge subsequently turned over the property of Pioneer. Pioneer also claimed that Lochridge had previously returned other items to Pioneer that she had taken on Saturday, May 5, 2007, and that she had notified Pioneer of the return of the items. Lochridge claimed that some of the “stolen” items did not belong to Pioneer. Pioneer alleged in its motion that some of the items taken by Lochridge had been thrown across Pioneer’s parking lot and yard.

¶ 33. The summary-judgment motion reflects that the State contacted Pioneer on the eve of trial requesting that Pioneer supply information as to items for which it had reimbursed Lochridge. Pioneer asserts that it could not locate the documentation on such short notice because, if such information existed, the documentation would have been located in Magee, Mississippi. Pioneer notified the district attorney by letter that it did not wish to pursue charges at that time, and the district attorney requested that the case be retired to the files. As stated, the trial court approved this request on February 29, 2008. On April 7, 2008, Lochridge filed a motion to dismiss charges against her with prejudice or, in the alternative, to set the case for trial. On September 11, 2008, the trial court dismissed the case. However, the trial court’s order does not state that the dismissal was with prejudice. The dismissal was not at the request of Pioneer. Further, the criminal case was not terminated on its merits in favor of Lochridge. The affidavit in support of the criminal charges was never withdrawn by Pioneer or the affiant.

¶ 34. “It is evident from our cases that, when a suit for malicious prosecution is based on a criminal proceeding, the criminal proceeding must terminate in favor of the defendant before a defendant has a cause of action for malicious prosecution.” Pugh v. Easterling, 367 So.2d 935, 937 (Miss.1979). In this ease, neither the retirement of the charges to the files nor the dismissal of the case without prejudice constitutes a termination in favor of Lo-chridge. See Rush v. State, 254 Miss. 641, 182 So.2d 214, 216 (1966) (“The passing of an indictment to the files is not an acquittal or a nolle prosequi of the indictment.”). Furthermore, jeopardy did not attach in this case since no jury was sworn or empaneled. See Deeds v. State, 27 So.3d 1135, 1139 (¶10) (Miss.2009). See also Miss. Const, art. 3, § 22 (“No person’s life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution.”). In this case, the trial judge dismissed the charges before trial and consideration of the merits of the criminal case. Therefore, the charges can be refiled and a new indictment issued if prosecuted within the statute of limitations and in compliance with speedy-trial requirements.

¶ 35. In conclusion, I would affirm the trial court’s grant of summary judgment in favor of Pioneer. As stated above, the indictment in this case guarded against a claim of malicious prosecution. The trial court dismissed the indictment pretrial, and the order of dismissal contains no language dismissing the indictment with prejudice. Further, the record reflects no withdrawal of the affidavit in support of the charges or the indictment by Pioneer or the affiant.

GRIFFIS, P.J., JOINS THIS OPINION IN PART.

      . Grimes reported the following property as stolen: 8 bulletin boards, a small refrigerator, a gazebo, a patio set with chairs, an end table, a table fan, an electric piano, four yard figurines, approximately 100 pieces of craft supplies, approximately 10 letter racks, miscellaneous office supplies, a policy and procedure manuals, 2 boxes of holiday decorations, an ornamental table, 3 figurines, a coffee pot, a barbeque grill, a bookcase, books, a medical dictionary, files, a Rolodex of numbers, patient medications, and a fax machine.

      . See generally Downtown Grill, Inc. v. Connell, 721 So.2d 1113, 1117-18 (¶ 13) (Miss. 1998); Williams v. State, 708 So.2d 1358, 1364 (¶ 27) (Miss.1998).

      . “Abandonment of prosecution, withdrawal of affidavit, or nolle prosequi all constitute termination favorable to plaintiff and. will support malicious prosecution claim[.]“ Pulliam v. City of Horn Lake, Miss., 32 F.3d 565 n. 9 (5th Cir.1994) (citing Pugh, 367 So.2d at 938). See also Serfass v. United States, 420 U.S. 377, 391-92, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975) (finding that a dismissal of an indictment fails to constitute an acquittal or an adjudication on the merits).

      . See Childers v. Beaver Dam Plantation, Inc., 360 F.Supp. 331, 334 (N.D.Miss.1973) ("It is common knowledge among judges and members of the bar in Mississippi, that an order retiring a criminal case to the files merely suspends the prosecution, and that the case is subject to recall and prosecution at any time thereafter at the discretion of the court.”).