author: LOLLEY, J. DREW, J.,

text:
    Vernon Chris JOBE, Plaintiff-Appellee v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, OFFICE OF MOTOR VEHICLES, Defendant-Appellant.
    No. 47,264-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 27, 2012.
    Jennifer Del Murray, for Appellant.
    Whitley Robert Graves, Benton, LA, for Appellee.
    Before STEWART, DREW and LOLLEY, JJ.
   LOLLEY, J.

It The Louisiana Department of Public Safety and Corrections, Office of Motor Vehicles (“OMV” or “State”) appeals a ruling of the 42nd Judicial District Court, Parish of DeSoto, State of Louisiana, that granted Vernon Jobe’s request to prohibit the OMV from denying him a commercial driver’s license with hazardous material endorsement. For the following reasons, we affirm.

Facts

Jobe worked as a commercial truck driver hauling hazardous materials. He was authorized to do so by virtue of his Class A commercial drivers licence (“CDL”) issued by the State with a hazardous material endorsement (“HME”). On December 5, 2008, Jobe was involved in a one-car accident in DeSoto Parish, Louisiana. He was arrested and charged with Operating a Motor Vehicle While Intoxicated, a violation of La. R.S. 14:98 (“DWI”). At the time of his arrest, the police officer seized Jobe’s license. As a result of losing his CDL, Jobe was immediately terminated from his job. The following chronology of events occurred:

March 10, 2009: Jobe requested an administrative hearing in connection with the suspension of his license. Although the record does not contain the reasons why, the administrative law judge determined that Jobe was entitled to a return of his license and recalled the suspension. Jobe applied for a new CDL, which was granted at that time by the OMV;
May 7, 2009: Jobe appeared before the trial court on his DUI charge and entered a plea of nolo contendere. The record is not clear as to Jobe’s original sentence for his DUI conviction, but after his sentencing a motion to amend sentence was filed and the trial court amended Jobe’s sentence to be pursuant to La. C. Cr. P. art. 894;
| ¡.May 25, 2011: After having applied to the Transportation Security Administration to renew his HME, he was cleared for renewal of his HME from the State; June 14, 2011: Jobe received notification from the OMV that as.a result of his conviction for DUI, he was suspended from all driving privileges and disqualification of his CDL for 365 days beginning on July 7, 2011; and
June 27, 2011: Prior to his birthday and expiration of his CDL, Jobe applied for reversal and was denied.

As a result of the OMV’s actions, Jobe filed a rule to show cause under La. R.S. 32:414(F)(4), requesting that the OMV be ordered to show cause why it should not be prohibited from suspending and disqualifying his CDL. After a hearing on the matter, judgment was rendered in Jobe’s favor prohibiting the OMV from suspending his CDL. This appeal by the OMV ensued.

Discussion

On appeal, the OMV argues that the trial court erred in ordering it to reinstate Jobe’s CDL. Pointing to statutory law, the OMV argues that it is legally required to suspend Jobe’s license as a result of his DWI conviction. See La. R.S. 32:414.2(A)(4)(a)(i) and 49 C.F.R. § 383.51. Although the OMV may be technically correct in its interpretation of statutory law, considering the particular facts and circumstances of this case, we conclude that its actions were unreasonable and find no error in the trial court’s judgment.

Although there is no jurisprudence directly on point, the trial court considered the mandate in La. C. Cr. P. art. 874 that a “Sentence shall be imposed without unreasonable delay.” Admittedly, the trial court was not ^considering the imposition of a sentence, and the application of art. 874 was by analogy. However, considering the particular facts of this case, the trial court’s reasoning was sound. Here, we know that Jobe was ultimately sentenced with the benefit of La. C. Cr. P. art. 894, but otherwise the record is silent regarding his sentence for DWI. Whereas the precise sentence assigned to Jobe for his DWI conviction pursuant to La. R.S. 14:98 is unknown, the potential suspension of his license under La. R.S. 32:414.2(A)(4)(a)(i), although not a sentence, clearly served as an additional penalty for his action. Thus, the trial court’s application of La. C. Cr. P. art. 874 by analogy was appropriate as the suspension was clearly akin to the imposition of a sentence, and the trial court properly considered the reasonableness of the delay.

We agree with the trial court that the OMV acted unreasonably in waiting approximately two years after Jobe’s initial criminal sentence to suspend his license. Clearly the State can do better in imposing such a penalty on its citizens (even the law-breaking, criminal ones). Other than . claiming that it was not timely informed of Jobe’s conviction, the OMV offers no good cause as to why it acted so slowly. For this particular sort of crime — DWI—the court system and the OMV work parallel to each other. Even without knowing the precise number of DWI convictions coming through the court system, it is not unreasonable in this age of information to expect the OMV to process such suspensions more quickly — especially where the public safety is concerned. Although Jobe clearly erred and committed a crime that has definite ramifications on a safe and orderly society, as a citizen he also clearly has a right to know in a reasonable |4amount of time what his full punishment will be as a result of his crime. It is not unreasonable for him to expect that his suspension would run simultaneously with the period following his conviction. Waiting almost two years, well past the time for which a timely suspension would have already run, was an unreasonable delay in this particular case, especially considering that Jobe maintained a clean criminal record and complied with the trial court’s dictates under La. C. Cr. P. art. 894. So considering, the trial court did not err in prohibiting the suspension and disqualification of Jobe’s CDL.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed. Appeal costs in the amount of $147.00 are assessed against the Louisiana Department of Public Safety and Corrections, Office of Motor Vehicles.

AFFIRMED.

DREW, J., dissents with written reasons.

DREW, J.,

dissenting.

| ¶With respect, I must dissent, as I find that this record falls far short of proving that the delay in notification adversely affected Mr. Jobe to the extent that he should get a free pass on losing his driving privileges.

At the time of his DWI, this defendant hauled hazardous waste for a living. The driving privileges of someone who engages in that profession should be closely scrutinized. Although Mr. Jobe did lose his hazardous material endorsement, his driving privileges were never suspended.

This is not a unique case that is ripe for a heavy measure of equity, in the face of a clear statutory requirement requiring the suspension of driving privileges for those convicted of DWI. Mr. Jobe’s driving privileges should be suspended because of the crime he committed, as is clearly required by statute.

Accordingly, I respectfully dissent.

      . The defendant entered a plea of nolo conten-dere, with a later granting of the benefits of La. C. Cr. P. Art. 894.

      . My brother judges on this panel ruled less than a year ago that suspension of a CDL was still appropriate, even though the defendant was acquitted (after a refusal) for DWI. See Austin v. Department of Public Safety, Office of Motor Vehicles, 46,654 (La.App.2d Cir. 11/2/11), 77 So.3d 474. An argument can be made that Mr. Jobe has a lesser basis for equitable relief than did Mr. Austin.


source: Caselaw Access Project

author: CARLSON,

license: Public Domain

text:
    5K FARMS, INC. v. MISSISSIPPI DEPARTMENT OF REVENUE f/k/a Mississippi State Tax Commission on Writ of Certiorari.
    No. 2009-CT-01787-SCT.
    Supreme Court of Mississippi.
    May 10, 2012.
    Rehearing Denied Aug. 16, 2012.

      Christopher Thomas Graham, Michael A. Heilman, Jackson, attorneys for appellant.
    Gary Wood Stringer, James L. Powell, Jackson, attorneys for appellee.
   CARLSON,

Presiding Justice, for the Court:

¶ 1. We granted certiorari in this matter to address the specific question of whether the requirement to post a pretrial bond set out in Mississippi Code Sections 27-77-5 and 27-77-7 (Rev.2005) is procedural or jurisdictional. If procedural, it would constitute an intrusion by the Legislature into the assigned powers of this Court and of the judicial branch of government, and a violation of Article 6, Sections 144 and 146 of the Mississippi Constitution. Having considered the issue, we find that this Court’s precedent is clear. The requirement of a pretrial bond relates to appellate jurisdiction and is within the powers of the Legislature. Accordingly, we affirm the judgments of the Court of Appeals and of the Chancery Court for the First Judicial District of Hinds County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. 5K Farms, Inc. (5K Farms) is a newly formed blueberry farm, which produced its first saleable crop in 2009. On October 5, 2005, following Hurricane Katrina, the Mississippi Department of Environmental Quality (MDEQ) granted emergency authorization to 5K Farms to accept and dispose of vegetative debris generated as a result of that storm. 5K Farms used this vegetative debris for agricultural development.

¶ 3. On February 8, 2006, the MDEQ notified 5K Farms by means of a memorandum that all sites for which emergency authorization was granted for the disposal of vegetative debris would be considered commercial disposal sites subject to reporting requirements on solid-waste-disposal activities. In the same memorandum, 5K Farms was notified that it was required to file a report with the Mississippi State Tax Commission (MSTC), now known as the Mississippi Department of Revenue (MDR), showing the total amount of vegetative debris it had received. 5K Farms was ordered to pay a fee on the debris in the amount of one dollar per ton.

¶ 4. 5K Farms sought further instruction from the MSTC, which determined that 5K Farms was a commercial disposal site and, as a result, found it to be subject to the fee. In June, 2007, 5K Farms filed a solid-waste-fee annual report for the period between February 10, 2006, and May 4, 2006. 5K Farms reported, in total, the disposal of 138,133 tons of solid waste.

¶ 5. In March 2008, the MSTC notified 5K Farms that it had been assessed $157,096.94, a sum which included the fee of one dollar per ton on 133,133 tons of waste, as well as interest and penalties. 5K Farms appealed this assessment to the MSTC Board of Review. 5K Farms argued in its appeal that it did not operate a disposal site, but rather, only used the debris to develop the land for the planting of blueberries. The Board of Review found that 5K Farms was notified in February 2006 of its potential liability and upheld the MSTC’s assessment. 5K Farms then appealed this ruling to the full Commission.

¶ 6. The Commission determined that 5K Farms was indeed a commercial nonhazardous solid-waste-management facility, and that it was thus subject to the fee of one dollar per ton. 5K Farms had argued that the land used to develop the farm was part of a land-reclamation project. Although 5K Farms argued that its use of the land was beneficial, the Commission found no exemption in the law on that basis. The Commission upheld the assessment of fees incurred during 2006. But the assessment was reduced to $138,133, equivalent to the rate of one dollar per ton of waste used, without an assessment for interest or penalties.

¶ 7. 5K Farms filed an appeal in the Chancery Court for the First Judicial District of Hinds County. At the same time, 5K Farms filed a motion for supersedeas, requesting that the chancery court enter an order allowing 5K Farms to proceed without posting a bond as required under Mississippi Code Sections 27-77-5 and 27-77-7 (Rev. 2005). These statutes have since been revised. Section 27-77-5(7), as it appeared in 2005, stated:

If in its order the commission orders a taxpayer to pay a tax assessment, the taxpayer shall, within thirty (30) days from the date of the order, pay the amount ordered to be paid or properly appeal said order of the commission to chancery court as provided in Section 27-77-7. After the thirty day period, if the tax determined by the commission to be due is not paid and an appeal from the commission order has not been properly filed, the agency shall proceed to collect the tax assessment as affirmed by the commission....

Section 27-77-7, as it appeared at the time, stated, in pertinent part, that:

(1) The findings and order of the commission entered under Section 27-77-5 shall be final unless the taxpayer shall, within thirty (30) days from the date of the order, file a petition in the chancery court appealing the order and pay the tax or post the bond as required in this chapter....
(3) A petition filed under subsection (1) of this section that appeals an order of the commission affirming a tax assessment shall be accompanied by a surety bond approved by the clerk of the court in a sum double the amount in controversy, conditioned to pay the judgment of the court....

Miss. Code Ann. § 27-77-7(1) and (3) (Rev. 2005). The motion also requested that the chancellor prevent any collection proceedings against 5K Farms during the pen-dency of the case. 5K Farms attached to its motion a pauper’s affidavit signed by its vice president, David Kittrell. This affidavit asserted that 5K Farms, as a new farming operation, did not have the money to pay the required bond or the assessment.

¶ 8. The MSTC filed a motion to dismiss the appeal and objected to 5K Farms’ motion for supersedeas. After a hearing on the matter, the chancellor determined that 5K Farms could not proceed with the appeal as an indigent party. 5K Farms was granted no relief from the requirement to post the proper bond. The chancellor entered an order dismissing the case for lack of subject-matter jurisdiction. 5K Farms then appealed the issue to this Court and we assigned the case to the Court of Appeals.

PROCEEDINGS IN THE COURT OF APPEALS

¶ 9. On appeal, 5K Farms asserted the following issues: (1) whether the chancery court had jurisdiction to hear the appeal; (2) whether 5K Farms was entitled to appeal as a pauper; (8) whether 5K Farms’ failure to post a bond or pay the tax as required by law was a defect of form such that it was curable; and (4) whether the Legislature’s statutory imposition of a bond or prepayment of a contested tax assessment violated 5K Farms’ due-process rights. 5K Farms, Inc. v. Miss. State Tax Comm’n, 94 So.3d 291, 293 (¶ 7) (Miss.Ct.App.2011). Finding no merit in any of these issues, the Court of Appeals affirmed the judgment of the chancery court. Id. at 293-95 (¶¶ 9-15).

DISCUSSION

¶ 10. This Court granted certiorari solely to review whether the pretrial bond requirement found in Mississippi Code Sections 27-77-5 and 27-77-7 (Rev.2005) relates to appellate jurisdiction and is constitutional, or is procedural and unconstitutional. Arcadia Farms Partnership v. Audubon Ins. Co., 77 So.3d 100,104 (Miss.2012) (upon a grant of certiorari, this Court, under Mississippi Rule of Appellate Procedure 17(h), may limit its review to a particular issue). 5K Farms challenged the constitutionality of these statutes before the Court of Appeals in its due-process claim. However, that Court determined that the matter had not been ruled upon by the chancery court, and therefore was beyond the review of an appellate court. 5K Farms, Inc. v. Miss. State Tax Comm’n, 94 So.3d 291, 294 (¶ 14) (Miss.Ct.App.2011) (citing Barnes v. Singing River Hosp. Sys., 733 So.2d 199, 202-03 (Miss.1999)).

¶ 11. Furthermore, the Court of Appeals’ majority noted that Mississippi Rule of Appellate Procedure 44(a) required service of any appellate brief challenging the validity of a statute “on the Attorney General, the city attorney, or other chief legal officer of the governmental body involved. M.R.A.P. 44(a).” 5K Farms, 94 So.3d at 294 (¶ 14). The exception is that “by special order of the court to which the case is assigned, in the absence of such notice neither the Supreme Court nor the Court of Appeals will decide the question until the notice and right to respond contemplated by this rule has been given to the appropriate governmental body.” M.R.A.P. 44(c).

¶ 12. Since 5K Farms did not provide notice to the Attorney General that it was challenging the constitutionality of the statute, as required under Mississippi Rule of Appellate Procedure 44(a), the Court of Appeals took an appropriate course of action in not addressing the issue, and this Court could well have done the same. The general rule is that we will riot address issues raised for the first time on appeal, particularly where constitutional questions are concerned. See, e.g., Mabus v. Mabus, 890 So.2d 806, 811 (Miss.2003); Stockstill v. State, 854 So.2d 1017, 1023 (Miss.2003).

¶ 13. Instead, viewing this jurisdictional issue as worthy of consideration, we proceeded by issuing a special order as allowed under Mississippi Rule of Appellate Procedure 44(c). See Patterson v. State, 594 So.2d 606, 609 (Miss.1992) (quoting Colburn v. State, 431 So.2d 1111, 1114 (Miss.1983)) (“matters of jurisdiction may be raised for the first time on appeal.”). By order entered on November 28, 2011, this Court provided notice to the Attorney General and requested supplemental briefing from both parties as well as from the Attorney General as amicus curiae. All three entities have submitted supplemental briefing, which this Court has reviewed in arriving at its conclusions in today’s opinion.

I. WHETHER THE CLAIM OF UNCONSTITUTIONALITY OF THE STATUTE CAN BE REVIEWED.

¶ 14. Jurisdiction and statutory interpretation are matters of law, and we review de novo a trial court’s rulings on such matters. Ameristar Casino Vicksburg, Inc. v. Duckworth, 990 So.2d 758, 759 (Miss.2008); see also Grand Casino Tunica v. Shindler, 772 So.2d 1036, 1038 (Miss.2000) (citing Wright v. White, 693 So.2d 898, 900 (Miss.1997)). The Court of Appeals’ majority opinion held that the constitutionality of the bond requirement found in Mississippi Code Sections 27-77-5 and 27-77-7 (Rev.2005) was not reviewable on appeal because it had not been raised at trial. The dissent, which stated that the bond requirement was unconstitutional, noted that this Court has found that “[w]hen a valid complaint is filed, the judiciary then governs the procedure surrounding the assertion of the legislatively created right to sue.” 5K Farms, 94 So.3d at 295 (¶ 17) (Carlton, J., dissenting) (citing Wimley v. Reid, 991 So.2d 135, 137-38 (Miss.2008)).

¶ 15. Judge Carlton further noted in her dissent that “[o]nce the court’s jurisdiction attaches, the Legislature lacks the authority to regulate judicial discretion or deprive the judiciary of its established jurisdiction.” 5K Farms, 94 So.3d at 295 (¶ 17) (citing Jones v. City of Ridgeland, 48 So.3d 530, 536 (Miss.2010), and Alexander v. State By and Through Allain, 441 So.2d 1329, 1335-36 (Miss.1983) (overruled on other grounds)). Furthermore, the dissent noted our holding in Jones that “ ‘[t]he rule is well settled that the judicial power cannot be taken away by legislative action ... [and] [a]ny legislation that hampers judicial action or interferes with the discharge of judicial function is unconstitutional.’ ” Jones, 48 So.3d at 536 (citing 16 Am.Jur.2d Constitutional Law § 286, 209-10 (1998)). See also City of Belmont v. Miss. State Tax Comm’n, 860 So.2d 289, 297 (Miss.2003).

¶ 16. In Wimley, we held that:

[T]his Court has never required compliance — strict or otherwise — with unconstitutional statutory provisions.... [H]ere, the parties raised and briefed the issue of whether failure [to comply with Section. 11-1-58] should result in dismissal of the suit. Because the parties failed to brief the constitutionality of the statute, insofar as it usurps this Court’s constitutional authority and duty to promulgate procedural rules for the courts of Mississippi, we required supplemental briefs.

Wimley-, 991 So.2d at 137. Similarly, in Jones we wrote:

We view the statute to be procedural in nature rather than jurisdictional. Procedure is defined as ' “[t]he mode of proceeding by which a legal right is enforced, as distinguished from the substantive law which gives or defines the rights, and which, by means of the proceedings, the court is to administer; the machinery, as distinguished from its product.” Black’s Law Dictionary 1203-04 (6th ed. 1990). When appealing to this Court, litigants use our Rules of Appellate Procedure as their “mode of proceeding” to ensure that the .contested “legal right is enforced.” The “three-court-rule” in Section 11-51-81 essentially turns off this Court’s “machinery” in the appeals process.

Jones, 48 So.3d at 537. The present statute, like those statutes at issue in Wimley and Jones, involves a creditable argument that a statute crosses the line of demarcation between the jurisdiction-conferring powers of the Legislature and the procedural powers of this Court.

¶ 17. We also briefly note these statutes in their current form, as set out in Mississippi Code Sections 27-77-5 and 27-77-7 (Rev.2010). The text of the statutes has been changed, so that 27-77-7 now reads, in pertinent part:

(3) A petition filed by a taxpayer under subsection (1) of this section that appeals an order of the Board of Tax Appeals affirming a tax assessment shall be accompanied by a surety bond approved by the clerk of the court in a sum half the amount in controversy, conditioned to pay the judgment of the court. The clerk shall not approve a bond unless the bond is issued by a surety company qualified to write surety bonds in this state. Notwithstanding the above bond requirement, the chancellor retains jurisdiction, after motion, notice and hearing, to reduce the amount of the bond....

Miss.Code Ann. § 27-77-7 (Rev.2010) (emphasis added). Notably, when comparing the 2005 and 2010 versions of the statute, the bond requirement has been reduced from double to half of the amount of the disputed tax, and the chancellor has been granted the discretion that he/she previously lacked to reduce the amount of the bond. The constitutionality of the 2010 versions of these statutes is not at issue in the present case.

¶ 18. The chancery court explicitly determined that it lacked jurisdiction in this matter, where the plaintiffs had neither paid the bond required by those statutes nor paid the tax under protest. The plaintiffs disagreed with this holding and raised it as a point of error on appeal. “Matters of jurisdiction” may be raised for the first time on appeal. See Patterson 594 So.2d at 609 (Miss.1992) (quoting Colburn, 431 So.2d at 1114).

¶ 19. Furthermore, we granted certio-rari in this case to determine whether these statutes were within the Legislature’s province of establishing the jurisdiction of the appellate courts. If the statutes at issue are determined to be procedural, our determination will be that the Legislature has improperly intruded into a realm belonging to the Judiciary under our system of separation of powers. In contrast, if the statutes are determined to be jurisdictional, the Legislature was operating within its proper realm of authority.

¶ 20. Our proceeding in this case is grounded in the precedent of this Court; in Wimley, where the parties failed to brief the constitutionality of the statute, we required supplemental briefs. Wim-ley, 991 So.2d at 137. Consistent with Wimley, we have done the same in the instant case. Thus, since we have proceeded under Mississippi Rule of Appellate Procedure 44(c) by ordering' supplemental briefing from the parties as well as the Attorney General as amicus curiae, we now proceed to review 5K Farms’ claim that the two statutes under attack are unconstitutional.

II. WHETHER MISSISSIPPI CODE SECTIONS 27-77-5 AND 27-77-7 (2005) ARE UNCONSTITUTIONAL.

¶ 21. In assailing the constitutionality of Sections 27-77-5 and 27-77-7 as they appeared at the time of the litigation, 5K Farms must “overcome the strong presumption” that the Legislature acted within its constitutional authority. See Cities of Oxford, Carthage, Starkville, and Tupelo v. Northeast Elec. Power Ass’n, 704 So.2d 59, 65 (Miss.1997) (citing Loden v. Miss. Public Serv. Comm’n, 279 So.2d 636, 640 (Miss.1973)). The statutes must be shown to be in direct conflict with “the clear language of the constitution.” PHE, Inc. v. State, 877 So.2d 1244, 1247 (Miss.2004) (citations omitted). “[T]he courts are without the right to substitute their judgment for that of the Legislature as to the wisdom and policy of the act and must enforce it, unless it appears beyond all reasonable doubt to violate the Constitution.” Pathfinder Coach Div. of Superior Coach Corp. v. Cottrell, 216 Miss. 358, 362, 62 So.2d 383, 385 (1953) (citation omitted). “When a party invokes our power of judicial review, it behooves us to recall that the challenged act has been passed by legislators and approved by a governor sworn to uphold the selfsame constitution as are we.” State v. Roderick, 704 So.2d 49, 52 (Miss.1997) (citations omitted). This deference to legislative enactments is particularly strong involving constitutional challenges to taxation statutes. See City of Belmont v. Miss. State Tax Comm’n, 860 So.2d 289, 306 (Miss.2003) (“With matters involving the collection, expenditure and disbursement of the taxpayers’ monies, we must afford great deference to that branch of state government vested with clear constitutional and statutory responsibilities.”).

¶ 22. The Mississippi Constitution of 1890 vests in this Court the “inherent power ... to promulgate procedural rules.... ” Newell v. State, 308 So.2d 71, 76 (Miss.1975) (citations omitted). This holding rests on the “fundamental constitutional concept of the separation of powers” defined in Article 1, Sections 1 and 2, and Article 6, Section 144. Id. at 77. In contrast, it is the “Legislature [that] has the constitutional power to determine our appellate jurisdiction.... ” Jones, 48 So.3d at 536 (citing Miss. Const, art. 6, §§ 144, 146). A party has no right to appeal an administrative agency’s decision except where the Legislature has expressly conferred such a right. Gill v. Miss. Dep’t of Wildlife Conservation, 574 So.2d 586, 590 (Miss.1990).

¶ 23. This Court repeatedly has held that statutory appeal bonds are jurisdictional-that is, they relate to a court’s appellate jurisdiction. See, i.e., Jackson State Univ. v. Upsilon Epsilon Chapter of Omega Psi Phi Fraternity, Inc., 952 So.2d 184, 186 (Miss.2007) (holding that because plaintiff “fail[ed] to file a petition for writ of certiorari and to post a bond with security [in accordance with statute], the circuit court did not have jurisdiction ....”) (citations omitted); Miss. State Pers. Bd. v. Armstrong, 454 So.2d 912, 915 (Miss.1984) (“This Court has repeatedly held that statutory bond requirements are jurisdictional.”) (citations omitted). Even in Wimley, one of the two cases primarily relied upon by 5K Farms, we held that “pre-suit requirements are clearly within the purview of the Legislature, and do not encroach upon this Court’s rule-making responsibility. Indeed, we consistently have held that the Legislature has authority to establish presuit requirements as a condition precedent to filing particular kinds of lawsuits.” Wimley, 991 So.2d at 139.

¶ 24. Again, 5K Farms relies on Wim-ley to support its position that Sections 27-77-5 and 27-77-7 are unconstitutional. However, 5K Farms’s reliance on this case is misplaced. Wimley addressed Mississippi Code Section 11-1-58 (Supp.2011), which requires plaintiffs bringing a medical malpractice action to attach to their complaint either a certificate demonstrating that their attorney had consulted with a medical expert, or that the attorney was unable to obtain the consultation due to time constraints. That case held the statute to be procedural, since it required the dismissal of lawsuits that were in full compliance with the Mississippi Rules of Civil Procedure. See Wimley, 991 So.2d at 138-39. Wimley, which involved an original action filed in the trial court, is distinguishable from the instant case, which involves an appeal from an administrative-agency decision to the trial court, sitting as an appellate court. Furthermore, the Mississippi Rules of Civil Procedure do not apply to administrative appeals, but only to original actions that are “commenced by filing a complaint”; so the same concerns are not present. See Miss. R. Civ. P. 3(a).

¶ 25. Another case that 5K Farms mistakenly relies on is Jones v. Ridgeland, wherein this Court which addressed the “three-court rule” of Mississippi Code Section 11-51-81, which prohibited litigants in many cases from appealing decisions from justice or municipal court, to county court, to circuit court, and then to the Supreme Court. This Court held that rule to be unconstitutional because it found the statute to be procedural. Jones, 48 So.3d at 537. However, the three-court rule limited this Court’s ability to hear certain appeals from lower courts, whereas the instant statute imposes a limitation on the chancery court’s jurisdiction over decisions made by an administrative agency within the executive branch of government. The analogy of Jones and the instant case is inapposite. Jones provides no support for the position taken by 5K Farms.

¶ 26. 5K Farms brings to this Court’s attention the existence of rules providing for the posting of a bond when appealing to the circuit court from administrative hearings. See URCCC 5.08 & 5.09. These rales address, respectively, obtaining supersedeas in an appeal from an administrative agency to the circuit court (Rule 5.08), and cost bonds for cases on appeal to the circuit court (Rule 5.09). Furthermore, this Court has enacted Mississippi Rule of Appellate Procedure 8, supplanting Mississippi Code Section 11-51-31. Rule 8 provides the procedure for calculating and posting supersedeas bonds in cases on appeal to the Mississippi Supreme Court. None of these rules deals specifically with appeals from an administrative agency. Neither the Mississippi Department of Revenue nor the amicus curiae, the Attorney General, addresses these rules specifically. 5K Farms argues that the existence of the enumerated rules renders bonds a procedural issue.

¶27. Conversely, the Attorney General, writing as amicus curiae, has called to this Court’s attention a number of statutes requiring parties to post a bond as a condition precedent to perfecting their appeals from administrative-agency decisions. The existence of these statutes indicates that the principle that bonds relate to appellate jurisdiction and hence are within the purview of the Legislature is well grounded in Mississippi law.

¶ 28. The chancellor in the order dismissing the case stated that “[w]hile this Court is sympathetic to the situation encountered by 5K [Farms], the clear language of the relevant statutes prevents this Court from allowing Plaintiff to proceed .... ” We, too, view 5K Farms’ plight with sympathy. Under the 2005 version of the statute that was then current, the chancellor had no discretion to waive or lower the bond requirement, which 5K Farms, a new agricultural operation, claims that it did not have the funds to pay. However, we accord great deference to the Legislature regarding tax policy, and the Legislature also determines our appellate jurisdiction.

¶ 29. With all of these factors in mind, it does not appear beyond all doubt that the versions of Sections 27-77-5 and 27-77-7 that were in effect when this case originated were procedural, rather than jurisdictional, statutes. As a result, this Court must uphold these statutes as constitutional.

CONCLUSION

¶ 30. The pretrial bond requirement derived from Mississippi Code Sections 27-77-5 and 27-77-7 (Rev.2005) is a requirement governing appellate jurisdiction rather than a procedural requirement. Thus, its enactment was properly within the province of the Legislature, our coequal branch of government. We do not find this requirement to violate the separation of powers, and we thus uphold it as constitutional. As a result, we affirm the judgments of the Court of Appeals and the Chancery Court for the First Judicial District of Hinds County.

¶ 31. AFFIRMED.

WALLER, C.J., DICKINSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. KING, J., NOT PARTICIPATING.

      . These cases were in counties which have county courts.

      . These include Mississippi Code Sections 11-51-95 (providing for judicial review, by way of a writ of certiorari, of decisions made by "lower tribunals”; incorporating bond requirement found in writ of certiorari statute, Mississippi Code Section 11-51-93); Mississippi Code Section 25-9-132(1) ($500 bond required in appeal from Employee Appeals Board); Mississippi Code Section 37-3-2(16) (appeal from licensing decision of State Board of Education perfected by filing of $200 bond in appeals;) Mississippi Code Section 37-9-113(2) (conditioning right of appeal from school board proceeding on filing of $200 bond); Mississippi Code Section 49-17-29(5)(b) (appeal from decision of Mississippi Environmental Quality Permit Board not perfected without posting of a bond between $100 and $500); Mississippi Code Section 49-17-41 (appeal bond between $100 and $500 required in appeals of decisions made by Commission on Environmental Quality); Mississippi Code Section 53 — 1—39(b) (requiring $500 surety bond in appeals from State Oil and Gas Board).


author: PIERCE, Justice,

text:
    Jonathan Dwight HAVARD a/k/a Jonathan Havard v. STATE of Mississippi.
    No. 2011-KA-00247-SCT.
    Supreme Court of Mississippi.
    May 10, 2012.
    Rehearing Denied Aug. 16, 2012.

      Office of Indigent Appeals by W. Daniel Hinchcliff, Leslie S. Lee, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, Scott Stuart, attorneys for appellee.
    Before CARLSON, P.J., PIERCE and KING, JJ.
   PIERCE, Justice,

for the Court:

¶ 1. On January 20, 2011, Jonathan Ha-vard was convicted by a jury in George County Circuit Court for the deliberate-design murder of his girlfriend, Joy Hodges. He was sentenced to life imprisonment. On appeal, Havard requests his conviction and sentence be overturned, or, in the alternative, reversed and remanded for a new trial. Appellate counsel filed a Lindsey brief certifying to this Court there were no appealable issues in the record. Believing otherwise, Havard has filed a brief pro se assigning error to both the trial court and defense counsel. The alleged errors include violations of Ha-vard’s Sixth Amendment right to a speedy trial, his Fifth Amendment right to refrain from testifying, inadequate jury instructions, ineffective assistance of counsel, and failure to grant a change in venue. We disagree and find these allegations of error to be lacking in merit. Therefore, we deny Havard’s requested relief and affirm the decision of the trial court.

FACTS AND PROCEEDINGS

¶2. Defendant Jonathan Havard was convicted of deliberate-design murder and received a life sentence. The following facts are supported by testimony and evidence presented at trial.

¶ 3. On May 28, 2009, George County Deputy Sheriff Bobby Daffin responded to a 911 call. The call was placed by the victim’s aunt, Sandra Williams. Upon arrival at the scene, Officer Daffin saw Ha-vard standing on the porch covered in blood. Daffin testified to asking Havard “what happened” to which Havard responded, “I cut my girlfriend’s throat and I cut my own.” Immediately thereafter, Daffin ordered Havard to the ground and detained him using handcuffs. Shortly thereafter, Daffin was joined by Deputy Mitch Howell.

¶ 4. Once Havard was “detained,” both deputies entered the residence and discovered the victim, Joy Hodges. At trial, Daffin testified to seeing “a large wound [on] the [victim’s] neck ... you could see [her] windpipe.” The officers recovered two knives from the scene — “a wood-handled knife ... [and] a folding Gerber knife that was closed.” DNA from both the victim and defendant was found on the Gerber folding knife. This was consistent with the medical examiner’s testimony, which stated the manner in which Hodges was slain. He concluded she died from approximately five different slice wounds to her throat.

¶ 5. Havard was indicted for the deliberate-design murder of Joy Hodges on December 17, 2009. His original trial date was set for April 19, 2010. Through counsel, Havard sought and received three continuances. On January 18, 2011, the court began voir dire. After questions by the trial judge, prosecutor, and Havard’s defense counsel, twelve members of the jury were empaneled.

¶ 6. Havard’s trial began on January 18, 2011. At trial, the jury heard testimony from the victim’s grandmother, Alice Howell. Howell testified to seeing Havard leave the bedroom with blood on his hands, walk to the kitchen sink, and retrieve a [wood-handled knife] before reentering the bedroom.

¶ 7. The jury also heard testimony from the emergency medical technician (EMT), Candace Colson. Colson asked Havard if he was responsible for his own wounds and the those of the victim. He responded in the affirmative. Along with Colson, the jury heard from an emergency-room nurse, Christy Foster, who treated Ha-vard’s wounds. She testified to hearing Havard say, “I didn’t mean to do it.” Both women were subjected to cross-examination by defense counsel.

¶ 8. Havard was called to the stand by defense counsel. Havard recounted for the jury his version of events, maintaining his innocence throughout. He testified to “waking up with somebody on top of [him], trying to cut [his] throat.” Havard said he was unable to see his face, that it was rather dark outside, and that it looked like this person was wearing a “turkey mask.” After Havard was cross-examined and defense counsel had been given an opportunity for redirect, the defense rested its case.

¶ 9. Next, the State submitted eight different proposed jury instructions; two were withdrawn. Defense counsel offered eleven sets of instructions, with the court refusing six and approving one; four were withdrawn. None contained a request for a limiting instruction regarding the testimony of certain witnesses who were related to the victim. Finally, the jury found Havard guilty by unanimous verdict, and the trial judge sentenced him to life imprisonment. Havard filed notice of appeal to this Court on February 2, 2011.

DISCUSSION

I. Lindsey Brief

¶ 10. When appellate counsel believes there to be no meritorious issues upon which to mount an appeal, the procedure outlined in Lindsey v. State must be followed. Appellate counsel must “file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28” and certify to the court a diligent review of the procedural and factual history of the criminal action has taken place and that “there are no arguable issues supporting the client’s appeal.” Counsel must specifically examine:

(a) the reason for the arrest and circumstances surrounding the arrest; (b) any possible violations of the client’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.

Counsel must then transmit a copy of the appellant’s brief to the client, inform him or her of the findings, and explain his or her right to file an appellate brief pro se. At this point — once all of the briefs are filed — an appellate court shall evaluate the case on its merits and render its opinion.

¶ 11. This case arrives at this Court via direct appeal. Daniel Hinchcliff, Havard’s appellate counsel, has certified to this Court that he has followed the procedure required of him, and we find no additional briefing is required of him. Havard, however, has elected to submit pro se a brief for this Court’s consideration. Therefore, we will address below the issues he raises.

II. Havard’s Assignments of Error

I. Whether the defendant was entitled, sua sponte, to a limiting or cautionary instruction concerning the potential bias of testimony given by witnesses who were related to the victim even though defense counsel did not object or request a limiting instruction at trial.

¶ 12. Havard takes issue with the testimony of the victim’s grandmother and aunt, and he argues that a limiting or cautionary instruction should have been given by the trial court sua sponte, because their testimony was likely biased. We find, however, that Havard was not entitled, sua sponte, to receive a limiting or cautionary instruction to the jury with regard to the testimony offered by the victim’s family members.

¶ 18. The standard of review for a “a trial judge’s decision to grant or refuse a jury instruction” is abuse of discretion. Generally, this court, will review jury instructions as a whole. And when those instructions, “taken as a whole fairly — although not perfectly — announce the applicable primary rules of law ... no reversible error will be found.” Even though a defendant “has a right to have jury instructions on all material issues presented in the pleadings or evidence,” it remains the burden of trial counsel to raise and request any limiting or cautionary instruction. Failure to do so at trial will result in a procedural bar on appeal.

¶ 14. Here, both the State and defense counsel submitted jury instructions for the court’s review. Eight different instructions ultimately were approved by the trial court and chosen for submission to the jury. The record is devoid of any attempt by defense counsel to object to those instructions or to request a limiting or cautionary instruction regarding testimony by family members of the victim. Therefore, we find that Havard’s argument is procedurally barred.

¶ 15. Notwithstanding the procedural bar, Havard’s argument on appeal still fails. The record before us illustrates that all testimony at trial was subject to cross-examination by defense counsel, and defense counsel addressed the adverse testimony, including that of the victim’s family, during his closing argument. Then, after the close of evidence, the trial court provided two jury instructions, advising Havard’s jury against undue influence resulting from “bias, sympathy, or prejudice” and the “credibility of [all] witnesses and the weight and worth of their testimony.” On appeal, Havard fails to explain to us why these two general instructions were inadequate in this instance. Accordingly, we And that this issue is without merit.

2. Whether Havard was denied his constitutional and statutory right to a speedy trial.

¶ 16. Both the United States Constitution and the Mississippi Constitution provide that an accused has the right to a speedy trial. The Sixth Amendment to the United States Constitution states, in pertinent part, that “the accused shall enjoy the right to a speedy and public trial.” Article 3, Section 26 of the Mississippi Constitution likewise states, in part, “the accused shall have a -right to ... a speedy and public trial.” In addition, Mississippi Code Section 99-17-1 (Rev. 2007) creates a statutory right to a speedy trial: “Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.”

¶ 17. Havard contends that both his constitutional and statutory rights to a speedy trial were violated. Havard acknowledges that this appeal is the first time this claim has been raised. He contends, however, that since the issue involves a fundamental right, it is “accorded plain error review,” and because his defense was prejudiced by the delay in bringing him to trial, this Court must reverse the trial court’s judgment and order the charge dismissed with prejudice. We cannot provide Havard the relief he seeks.

¶ 18. Havard waived his statutory claim by failing to raise it with the trial court. Waiver notwithstanding, we find no statutory violation in this case.

¶ 19. The total time between arraignment and trial was 357 days. As mentioned, three continuance orders were entered in the case at defense counsel’s request: one on April 15, 2010; one on August 3, 2010; and one on October 7, 2010. The first continued the cause from the original trial date of April 19, 2010, to permit a psychiatric evaluation of Havard; the second continued the cause from August B, 2010, to allow the defense additional time to obtain certain medical information, which could lead the defense to seek aid of certain experts to assist in Havard’s trial; and the third continued the cause from October 25, 2010, to allow the defense more time to prepare for trial, after the defense had filed a motion requesting (and ultimately receiving) funds for a private investigator to assist in the preparation of Havard’s case.

¶ 20. Based on our calculations, the first order tolled the 270-day period prescribed by Section 99-17-1 for 105 days; the second, for another 83 days; and the third, another 85 days, for a total of 278 days. When this total is deducted from the 357 days that elapsed between Ha-vard’s arraignment and the beginning date of his trial, we find that Havard was brought to trial well within the statutory limit.

¶ 21. With regard to Havard’s constitutional speedy-trial claim, the United States Supreme Court has stated that a formal indictment or information or an arrest — which ever occurs first — triggers the constitutional right to a speedy trial. Here, Havard’s arrest on May 28, 2009, triggered the right. In Barker v. Wingo, the United States Supreme Court stated that a balancing test consisting of four factors is to be used in determining the issue. They are as follows: 1) length of delay; 2) reason of delay; 3) defendant’s assertion of his or her rights; and 4) prejudice to the defendant.

¶ 22. Because Havard did not first raise a speedy-trial claim with the trial court, we can decide the issue only if we find that Havard has established a plain-error basis to justify appellate review. Similar to the appellant in Dora v. State, Havard seeks to “leapfrog over the required plain-error analysis by making Barker genre assertions....” Havard merely claims that his defense was prejudiced by the 600 days that elapsed between his arrest and trial, because “witnesses were lost” and his “defense to the charges [was] diminished by the delay,” nothing more. This is not enough. We need more than just broad assertions made “out of the clear blue,” that have no support in the record. Accordingly, we find that Havard has failed to show plain error on appeal, and we hold that his constitutional speedy-trial claim remains proeedurally barred.

3. Whether the trial court erred by failing to advise Havard of his right not to testify at trial.

II23. A defendant’s right against self incrimination is not only sacrosanct, but is commonly known across this land. Even so, Havard asks this Court to reach reversible error when a trial court fails to notify the accused of his right to abstain from testifying prior to taking the stand. Havard asks too much. Where a defendant is represented by competent defense counsel, without evidence to the contrary, reversible error cannot be found.

¶ 24. Both the Fifth Amendment to the United States Constitution and Article 3, Section 26 of the Mississippi Constitution of 1890 provide defendants with adequate protections against self-incrimination. Havard argues the trial court has a duty to inform him of these commonly known rights, and failure to do so constitutes reversible error. We disagree.

¶ 25. Prior to trial, Havard was read his Miranda rights three times and indicated by signature he understood those rights. At trial, defense counsel called Havard to the stand to testify on his own behalf. The record is devoid of any warning by the trial judge concerning Havard’s right against self-incrimination. Also absent from the record is any objection by defense counsel to the trial judge not advising Havard of his right not to testify prior to him taking the stand.

¶ 26. This Court consistently has held “that no individual may be compelled to testify against himself or to offer testimony which might render him liable to a criminal prosecution.” However, the Mississippi Constitution also affords defendants the fundamental “right to be heard by himself or counsel, or both....” Like other fundamental rights, “the privilege against self-incrimination may be waived....”

¶ 27. Even so, “it is the duty of the court in proper cases to inform the witness of his privilege, so the witness may decide for himself whether he will claim the privilege.” But where a defendant— like Havard in the present case — is presumably equipped with competent counsel, waives his Miranda rights, and shows no hesitancy to take the stand, it cannot be said a trial court judge must provide more.

If 28. In Scott v. State, the defendant argued he should have received a warning about the “possible ill effects of his testimony.” Scott’s counsel “failed to raise this issue with the trial court or in Scott’s motion for a new trial.” Like Havard, Scott was represented by counsel, waived his Miranda rights by speaking with the police, and willingly took the stand in his own defense. The Mississippi Court of Appeals held'there was no need for the trial court to warn or provide additional advice regarding Scott’s decision to testify independent from Scott’s counsel. Likewise, we find the instant case to be one in which the trial court owed no duty to advise the defendant of the potential “ill effects” of his testimony prior to taking the stand.

¶29. Furthermore, because defense counsel did not raise any objection during the course of the trial, the issue is procedurally barred. Thus, defendant’s request for relief is denied.

4. Whether the trial court erred in failing to issue, sua sponte, a motion for a change of venue.

¶ 30. It is the responsibility of the defendant, not the trial judge, “‘to obtain a ruling from the court on motions A motion for a change of venue must be made in writing and supported by the sworn affidavits of at least two credible individuals. Failure to adhere to the statutory guidelines or make the motion at trial “constitutes a waiver.”

¶ 31. The record is devoid of any motion by Havard to request a change of venue or any affidavits to support his claim. Additionally, there is nothing during voir dire which would give the trial court cause to issue, sua sponte, a motion for change of venue. A change in venue is not automatic. A defendant must show he or she “cannot receive a fair and impartial trial in the county where the offense is charged.” Havard failed to do so.

¶ 32. Moreover, the record indicates the trial judge took steps to ensure that the jurors would harbor no bias. Despite Ha-vard’s claims, the circuit judge did not allow the influence of media, outside publicity, or murmurings to impede the jury’s ability to be impartial. Because the record does not support Havard’s belief that he should have received a change in venue due to pretrial publicity, we find this issue lacking merit. Regardless, because Ha-vard failed to raise the issue at trial, he may not address it here on appeal. Therefore, his request for relief is denied.

5. Whether Havard’s assistance of counsel was ineffective.

¶ 33. This Court reviews appeals asserting ineffective assistance of counsel under the guidelines established by the U.S. Supreme Court in Strickland v. Washington. A successful claim requires a defendant to put forth sufficient evidence which, when viewed under the totality of the circumstances, proves: 1) the defense attorney’s “performance was deficient;” and 2) the deficiency prevented the defendant from receiving a fair trial.

¶ 34. This Court will evaluate the merit of these claims presuming trial counsel to be competent and his or her conduct reasonable. To overcome this presumption, the defendant must “identify the acts or omissions of counsel” and show “the deficient performance prejudiced the defense.”

¶ 35. This Court has addressed the proper procedures for reviewing claims for ineffective assistance of counsel on direct appeal. Generally, “ineffective assistance claims are more appropriately brought during post-conviction[relief] proceedings.” “This is because on direct appeal the Court is limited to the trial court' record in its review of the claim.” Where the record lacks sufficient evidence to adequately address the claim, this Court should deny relief, preserving the defendant’s right to argue the issue through a post-conviction-relief petition.

¶ 36. Here, we find that the record does not contain sufficient evidence for this Court adequately to address Havard’s claims. Therefore, this issue is more appropriate for post-conviction-relief proceedings.

6. Whether the cumulative effect of alleged errors warrants a reversal of Havard’s conviction.

¶ 37. Havard’s final alleged error rests on the cumulative effect of all of his previously asserted errors. This Court previously has held that cumulative effect of errors may warrant reversal in capital cases. However, where “there was no reversible error in any part ... there is no reversible error to the whole.” Therefore, because we are unable to find any reversible error committed to Havard’s detriment during trial, we can not dispense cumulative relief. The judgment and sentence of the Circuit Court of George County are affirmed.

¶ 38. CONVICTION OF DELIBERATE-DESIGN MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

WALLER, C.J., CARLSON, P.J., RANDOLPH, KITCHENS, CHANDLER AND KING, JJ. CONCUR. DICKINSON, P.J., AND LAMAR, J., CONCUR IN RESULT ONLY.

      . Lindsey v. State, 939 So.2d 743, 748 (Miss.2005) (implementing procedures governing cases where appellate counsel represents an indigent defendant and does not believe the client’s case presents any issues on appeal); see also Easley v. State, 46 So.3d 345 (Miss.2010).

      . The transcript at page seven erroneously reads "July 18, 2011.”

      . Lindsey, 939 So.2d at 748.

      . Id.

      . Id.

      . Id.

      . Flowers v. State, 51 So.3d 911, 912 (Miss.2010).

      . Boyd v. State, 47 So.3d 121, 123 (Miss.2010) (citing Utz v. Running and Rolling Trucking, Inc., 32 So.3d 450, 474 (Miss.2010) (citing Bickham v. Grant, 861 So.2d 299, 301 (Miss.2003))).

      . Boyd, 47 So.3d at 124.

      . Id. at n. 3 (citing Solanki v. Ervin, 21 So.3d 552, 561 (Miss.2009)).

      . Brown v. State, 890 So.2d 901, 913 (Miss.2004).

        .Boyd v. State, 47 So.3d at 123.

      . Boyd, 47 So.3d at 123.

      . U.S. Const, amend. VI.

      . Miss. Const, art. 3, § 26 (1890).

      . Miss.Code Ann. § 99-17-1 (Rev.2007).

        .See McBride v. State, 61 So.3d 138, 148 (Miss.2011) (reiterating that "where a defendant fails to raise the statutory right to a speedy trial, he or she waives his or her right to complain about not being tried within 270 days of arraignment”).

      . United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971).

      . Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

      . Id. at 530-32, 92 S.Ct. 2182.

      . Dora v. State, 986 So.2d 917, 924-26 (Miss.2008).

      . Id. at 925.

      . State v. Magnusen, 646 So.2d 1275, 1285 (Miss. 1994).

      . "No person ... shall be compelled in any criminal case to be a witness against himself....” U.S. Const, amend. VI.

      . "In all criminal prosecutions the accused ... shall not be compelled to give evidence against himself....” Miss Const, art. 3, § 26.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Moore v. Moore, 558 So.2d 834, 836 (Miss.1990) (citing Wright v. McAdory, 536 So.2d 897, 903 (Missf.1988)).

      . Miss Const, art. 3, § 26.

      . See Phillips v. State, 421 So.2d 476, 479-83 (Miss.1982) (the right to confront and cross-examine prosecution’s witnesses); and Thomas v. State, 472 So.2d 425, 426 (Miss.1985) (the right to a jury trial).

      . Moore, at 836-37; see also Hutchins v. State, 212 Miss. 145, 54 So.2d 210, 211 (1951).

      . Hutchins, 54 So.2d at 211 (emphasis added).

      . Scott v. State, 965 So.2d 758, 762-63 (Miss.Ct.App.2007).

      . Id. at 762.

      . Id.

      . Id. at 760-61.

      . Id. at 763.

      . Byrom v. State, 863 So.2d 836, 851 (Miss.2003) (quoting Evans v. State, 725 So.2d 613, 708 (Miss.1997)); see also URCCC 2.04 (“It is the duty of the movant ... to pursue [a] motion to hearing and decision by the court.”).

      . Miss.Code Ann. § 99-15-35 (Rev.2007).

      . Byrom, 863 So.2d at 851; see also URCCC Rule 2.04 (“Failure to pursue a pretrial motion to hearing and decision before trial is deemed an abandonment of that motion. ...).”

      . Byrom, 863 So.2d at 851.

      . Id. at 851 (citing Miss.Code Ann. § 99-15-35 (Rev.2000)).

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court adopted the Strickland test in Stringer v. State, 454 So.2d 468, 476 (Miss.1984).

      . Sea v. State, 49 So.3d 614, 617 (Miss.2010) (citing Leatherwood v. State, 473 So.2d 964, 968 (Miss.1985)).

      . Id.; see also Jackson v. State, 815 So.2d 1196, 1200 (Miss.2002).

      . Lindsay v. State, 720 So.2d 182, 184 (Miss.1998) (citing Edwards v. State, 615 So.2d 590, 596 (Miss.1993)); see also Jackson, 815 So.2d at 1200.

      . Strickland, 466 U.S. at 690, 104 S.Ct. 2052.

      . See Read v. State, 430 So.2d 832, 841-42 (Miss.1983).

      . Archer v. State, 986 So.2d 951, 955 (Miss.2008).

      . Id.

      . Id. (citing Wilcher v. State, 863 So.2d 776, 825 (Miss.2003)).

      . Glasper v. State, 914 So.2d 708, 728 (Miss.2005) (citing Hansen v. State, 592 So.2d 114, 142 (Miss.1991)); see also Griffin v. State, 557 So.2d 542, 553 (Miss.1990).

      . Glasper, 914 So.2d at 729 (quoting McFee v. State, 511 So.2d 130, 136 (Miss.1987)).


author: LAMAR, Justice,

text:
    Daniel C. FLYE and Lowndes County District 1 Fire Department. v. Milton SPOTTS and Brenda Spotts.
    No. 2010-IA-01764-SCT.
    Supreme Court of Mississippi.
    Aug. 2, 2012.

      John D. Brady, Columbus, attorneys for appellants.
    Berkley N. Huskison, Columbus, William P. Starks, II, Starkville, attorney for appellees.
    Before DICKINSON, P.J., LAMAR and KITCHENS, JJ.
   LAMAR, Justice,

for the Court:

¶ 1. This interlocutory appeal presents the issue of whether a volunteer fire department incorporated under the Mississippi Non-Profit Corporation Act is a “political subdivision” under the Mississippi Tort Claims Act (MTCA) and thus immune from liability. The volunteer fire department argues immunity for itself and its employee, asserting it is a “body corporate ... responsible for governmental activities” under the MTCA’s definition of “political subdivision.” However, plaintiffs Milton and Brenda Spotts argue that the volunteer fire department is an independent contractor with Lowndes County and is not entitled to immunity. We find the volunteer fire department does not meet the definition of a political subdivision, as the term “body corporate” does not mean any corporate body, but a public corporate body. We also find the volunteer fire department was acting as an independent contractor with the county. Thus, the volunteer fire department and its employee do not have immunity for their alleged acts of negligence.

Facts

¶ 2. The underlying dispute arose from a vehicle collision between volunteer firefighter Daniel Flye and a Lowndes County Sheriffs Department vehicle, in which Milton Spotts was a passenger and suffered injuries. Both Flye and Spotts had responded to an emergency call to provide assistance to a child who had been hit by a vehicle. Flye had responded in his capacity as a volunteer firefighter with the Lowndes County District 1 Fire Department (the volunteer fire department), and was driving his personal vehicle with a county-issued radio at the time he collided into the back of the sheriffs car.

¶ 3. Aggrieved by his injuries, Spotts filed a complaint against the volunteer fire department and Flye. After conducting some discovery, the defendants moved for summary judgment, arguing immunity under the MTCA. The defendants asserted that, as a private, nonprofit corporate entity, the volunteer fire department was a “body corporate” providing “governmental activities” under the definition of “political subdivision.” They submitted the affidavit of Sammy Fondren, the fire coordinator for Lowndes County, who provided the following undisputed facts:

(1) District I Volunteer Fire Department receives funding from county millage money and State Insurance Rebate Funds.
(2) All of the equipment used by the firefighters in the performance of their duties is provided by Lowndes County, but the County exercises no control over it.
(8) While the firefighters receive no salary or other compensation from Lowndes County or the fire department, they receive a nominal amount of reimbursement for each call they answer, to assist with personal expenses such as gas. Based on federal law, the money received as reimbursement is not taxed income unless the total reimbursement exceeds $600. And the District 1 Volunteer Fire Department supplies the 1099 tax form for reporting the reimbursements.

¶ 4. In response, the plaintiffs argued that the volunteer fire department was an autonomous entity, organized under the Mississippi Non-Profit Corporation Act, that had simply contracted with the county to provide fire protection services. The plaintiffs argued the fire department is not a political subdivision, as it has no governmental accountability. They pointed out that the county had no control over the fire department’s activities, including hiring, firing, and operating of machinery. Additionally, the plaintiffs noted that the volunteer fire department has its own board of directors with the ability to raise money through private fundraisers. While the plaintiffs admitted the county paid for the fire department’s liability insurance, they argued the insurance was provided as consideration for the contract and did not cause the department to become a political subdivision. They also argued that fire protection services are not governmental activities. After hearing these arguments, the trial court denied summary judgment, finding genuine issues of material fact exist “as to whether Defendant District I Fire Department is considered a political subdivision^]” It made no other findings.

Discussion

¶ 5. This Court applies a de novo review to a grant or denial of summary judgment and to the application of the MTCA.

¶ 6. The MTCA defines “political subdivision” as:

[A]ny body politic or body corporate other than the state responsible for governmental activities only in geographic areas smaller than that of the state, including, but not limited to, any county, municipality, school district, community hospital as defined in Section 41-13-10, Mississippi Code of 1972, airport authority or other instrumentality thereof, whether or not such body or instrumentality thereof has authority to levy taxes or to sue in its own name.

The defendants argue that the volunteer fire department is a “body corporate,” since it is a private, nonprofit corporation that performs governmental activities by way of fire protection. Neither the MTCA nor the Code defines “body corporate.” Therefore, we examine the surrounding text of the statute, the dictionary, and caselaw to determine the meaning.

¶ 7. This Court defined the phrases “body corporate” and “body politic” when determining whether the Urban Renewal Agency of the City of Aberdeen was immune from liability. In that case, the Legislature had enacted a statute that expressly identified the agency as a “public body corporate and politic.” In addressing the issue of liability, the Court determined the meaning of the phrases “body corporate” and “body politic.” It noted “one definition” of “body corporate” is “a body constituted of all the inhabitants within the corporate limits of an incorporated area.” The Court found that “body politic” meant:

Where the term is used as referring to the state, it signifies the state in its sovereign, corporate capacity, and applies to a body incorporated by the state and charged with the performance of a public duty, such as an institution of learning for the benefit of the people of a particular parish, or a corporate body created for the sole purpose of performing one or more municipal functions, or an incorporated board of trustees of a levee district, or a township declared by statute to be a body politic and incorporate.

¶ 8. Notably, the Court’s definition of “body politic” applied to a “body incorporated,” so the phrases “body politic” and “body corporate” are not mutually exclusive. The Court’s definition of “body corporate” clearly meant a governmental subdivision of an area smaller than the state, not a private corporation. However, the Court provided only “one definition” for “body corporate.” Black’s Law Dictionary also provides a definition of “body corporate,” defining it as a “public or private corporation.” Arguably, this Court chose the “one definition” that denoted a public corporation, since the phrase at issue was “public body corporate and politic.”

¶ 9. However, the Legislature’s omission of “public” to modify “body corporate” in the MTCA does not mean that “body corporate” should apply to a private corporation. Black’s Law Dictionary also defines the phrase “body politic or corporate”:

A social compact by which the whole people covenants with each citizen, and each citizen to the whole people, that all shall be governed by certain laws for the common good.... Also a term applied to a municipal corporation, school district, county or city. State or nation or public associations

That definition applies only to governmental/public entities, not private.

¶ 10. We also note that the phrase “body politic or body corporate” in the MTCA is immediately followed by the words “including, but not limited to, any county, municipality, school district, community hospital ... [or] airport authority[.]” So “body politic” and “body corporate” are general terms followed by more specific ones. Under the doctrine of ejusdem generis:

Where general words follow specific words in statutory enumeration, the general words are construed to embrace only those objects similar in nature to those objects enumerated by the preceding specific words. Where the opposite sequence is found, ie., specific words following general ones, the doctrine is equally applicable, and restricts application of the general term to things that are similar to those enumerated. Ejus-dem generis has been called a common drafting technique designed to save the legislature from spelling out in advance every contingency in which the statute could apply.

All of the specific words following “body corporate” clearly identify those entities as governmental. So after reviewing the language at issue, we conclude that the term “body corporate,” either in isolation or as part of the phrase “body politic or body corporate” in the MTCA, does not include a private corporation.

¶ 11. However, the defendants argue that this Court held in Mozingo v. Scharf that a private entity can be immune under the MTCA. In that case, the Court determined whether University Anaesthesia Services (UAS) was a governmental entity. The plaintiffs contended that UAS was a private entity acting as an independent contractor with University of Mississippi Medical Center and not a governmental entity. However, the Court held that UAS was “not a private entity” but in fact a governmental entity, as it was an instrumentality of UMMC. In support of its holding, the Court relied on the following facts: (1) UAS was a medical practice plan under the “umbrella” of UMMC, and every doctor providing clinical patient services at UMMC was required to participate in a practice plan; (2) twelve clinical departments at UMMC formed UAS; (3) UAS physicians could not moonlight on other jobs in private practice but could only provide services at UMMC; and (4) “UAS was created because of a direct edict from the state agency [Board of Trustees of State Institutions of Higher Learning of the State of Mississippi] charged with the management of UMMC.”

¶ 12. The defendants’ reliance on Moz-ingo is misplaced, as this Court clearly held that UAS was not a private entity. Second, the Mozingo Court found UAS was an instrumentality. Here, the defendants argue that the volunteer fire department meets the definition of “body corporate” and have never contended it is an instrumentality of the county. And, unlike UAS in Mozingo, private citizens created the volunteer fire department, and its operations are not controlled by the county. We do not find that the use of county equipment or the receipt of county funds, including liability insurance, causes the volunteer fire department to become a political subdivision. Those funds and equipment could be allocated to support any fire department, and the purchase of insurance was a term of the contract between the department and county.

¶ 13. If “body corporate” denoted private corporations that contract with government entities, then those private corporations would be both a “political subdivision” and an independent contractor. The volunteer fire department does not dispute that it is an independent contractor and argues that the MTCA does not prohibit independent contractors from also being political subdivisions. According to the defendants, the MTCA excludes independent contractors only from the definition of employee. The MTCA defines “employee” as:

any officer, employee or servant of the State of Mississippi or a political subdivision of the state, including elected or appointed officials and persons acting on behalf of the state or a political subdivision in any official capacity, temporarily or permanently, in the service of the state or a political subdivision whether with or without compensation. The term “employee” shall not mean a person or other legal entity while acting in the capacity of an independent contractor under contract to the state or a political subdivision.

¶ 14. In reviewing the MTCA’s definition of employee, this Court has held that “[g]enerally speaking, independent contractors are not granted immunity under the MTCA.” In Knight v. Terrell, a wrongful-death beneficiary filed suit against a school and its peace officer, an independent contractor doing business with the school as Terrell Security Services. The trial court dismissed the suit, finding the officer was immune under the MTCA. On appeal, this Court noted that the Legislature “allows schools to retain peace officers for the purpose of providing security on school campuses” and that another statute granted the officer the powers of constable. The Court further noted that a constable’s duties fall under “police protection” and such actions are generally immune from liability under Section 11 — 46—9(l)(e) of the MTCA. However, the Court held that “[u]nless or until the Legislature expressly crafts the statute to provide constable immunity to independent contractors, we will not draft one where it does not exist.” Thus, Terrell stands for the proposition that a private company and its employees who provide “governmental activities” via contract with a political subdivision are not immune from liability under the MTCA. And this Court specifically has ruled that “duties connected with the preservation of the peace or health, or the prevention of the destruction of property by fire are all governmental [activities.]”

¶ 15. The volunteer fire department concedes that, like the officer in Terrell, it is an independent contractor with the county. And, like the police protection at issue in Terrell, “fire protection” generally is immune from liability under the MTCA and is a governmental activity. But as the Court held in Terrell, “[u]nless or until the Legislature expressly crafts the statute to provide [private volunteer fire department] immunity to independent contractors, we will not draft one where it does not exist.” Thus, the volunteer fire department is not a political subdivision under the MTCA.

Conclusion

¶ 16. While private volunteer fire departments provide valuable services for the communities they serve, their charitable works exercised through a contract with a governmental entity do not convert them into a political subdivision. Such entities do not constitute a “body corporate” as the Legislature used that term to define political subdivisions. Thus, the trial court erred in finding genuine issues of material fact exist as to the volunteer fire department’s status. The volunteer fire department and its employee are not immune under the MTCA for their alleged acts of negligence. However, we affirm the trial court’s denial of summary judgment and remand for further proceedings consistent with this opinion.

1f 17. AFFIRMED AND REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR.

      . Miss.Code Ann. § 79-11-101 (Rev.2009).

      . Miss.Code Ann. §§ 11-46-1 to -23 (Rev. 2002 and Supp.2011).

      . Lowndes County District 1 Fire Department

      . Miss.Code Ann. § 11-46-1 (f), (i) (Supp. 2011).

        .See generally Miss.Code Ann. § 11 — 46—1(f) (Supp.2011) ("The term ‘employee’ shall not mean a person or other legal entity while acting in the capacity of an independent contractor under contract to the state or a political subdivision....”).

      . The parties dispute whether District 1 and/or Flye properly responded to the call, as the emergency call arose out of District 3, not District 1. However, that dispute is irrelevant for the purposes of this interlocutory appeal, since we find the volunteer fire department is not protected by the Mississippi Tort Claims Act.

      . Miss.Code Ann. § 79-11-101 (Rev.2009).

      . Under Mississippi Code Section 19-5-175, "if the board of commissioners of [a fire protection district] and the board of supervisors unanimously agree, the county may contract directly with any fire protection services provider, in which case the board of supervisors may distribute directly to the fire protection services any and all funds that otherwise would be distributed to the fire protection district.” Miss.Code Ann. § 19-5-175 (Rev. 2003).

      .They argued in the alternative that Flye's response was not "fire .protection” but was the response of a "Good Samaritan.”

      . Mozingo v. Scharf, 828 So.2d 1246, 1249-50 (Miss.2002).

      . City of Jackson v. Harris, 44 So.3d 927, 931 (Miss.2010).

      . This Court has ruled that "[g]ovemmental acti[vities] under the MTCA are those which are performed pursuant to the act of a statute or are a matter of public necessity.” Spencer v. Greenwood/Leflore Airport Auth. a/k/a Greenwood/Leflore Airport Bd. & Leflore Co. Bd. of Supervisors, 834 So.2d 707, 711 (Miss.2003).

      . We note the plaintiffs argue in their appellate brief that the volunteer fire department is not an instrumentality of the county. However, the defendants have never argued that the volunteer fire department is an instrumentality, but have always maintained it is a body corporate performing governmental activities.

      . Miss.Code Ann. § 11 — 46—l(i) (Supp.2011) (emphasis added).

      . Urban Renewal Agency of the City of Aberdeen v. Tackett, 255 So.2d 904 (Miss.1971).

      . Id. at 904-05 (emphasis added). Notably, the phrase at issue contained the word "public” that modified "body corporate and politic.” Id. (emphasis added).

      . Id. at 905.

      . Id.

      . Id. (emphasis added).

      . Id.

      . Id.

        . Id.

      . Black’s Law Dictionary 175 (6th ed.1990) (emphasis added).

      . Tackett, 255 So.2d at 904-05.

      . Black’s Law Dictionary 175 (6th ed.1990).

      . Miss.Code Ann. § 11 — 46—1(1) (Supp.2011).

      . 2A Sutherland Statutory Construction § 47:17 (Westlaw 7th ed.).

      . Mozingo v. Scharf, 828 So.2d 1246 (Miss.2002).

      . Id. at 1249. Under the MTCA, a governmental entity "means and includes the state and political subdivisions as herein defined.” Miss.Code Ann. § 11 — 46—1(g) (Supp.2011).

      . Mozingo, 828 So.2d at 1249.

      . Id. at 1255 (emphasis added).

      . Id.

      . Id.

      . Id.

        .See generally Miss.Code Ann. § 19-5-175 (Rev.2003) ("[T]he county may contract directly with any fire protection services provider, in which case the board of supervisors may distribute directly to the fire protection services provider any or all of the funds that otherwise would be distributed to the fire protection districtf.]”); Miss.Code Ann. § 83-1 — 39(3)(g) (Rev.2011) ("Any county-owned equipment or other property, at the option of the board of supervisors, may be used by any legally created fire department.”).

      . Miss.Code Ann. § 11 — 46—1(0 (Supp.2011) (emphasis added).

      . See Knight v. Terrell, 961 So.2d 30, 33 (Miss.2007) (emphasis added).

      . Id. at 31.

      . Id.

      . Id. at 31-32.

      . Id.

      . Id. at 33.

      . As previously noted, this Court has ruled that “[governmental activities] under the MTCA are those which are performed pursuant to the act of a statute or are a matter of public necessity.” Spencer v. Greenwood/Le-flore Airport Auth. afk/a. Greenwood/Leflore Airport Bd. & Leflore Co. Bd. of Supervisors, 834 So.2d 707, 711 (Miss.2003).

      . City of Hattiesburg v. Geigor, 118 Miss. 676, 79 So. 846, 846 (1918).

      . Section 1 l-46-9(l)(c) provides that a:
      governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim: .... [a]rising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of the injury....
      Miss.Code Ann. § 11 — 46—9(l)(c) (Supp.2011) (emphasis added).

      . Terrell, 961 So.2d at 33.


text:
    D.P. HOLMES TRUCKING, LLC v. Lester BUTLER.
    No. 2011-IA-00953-SCT.
    Supreme Court of Mississippi.
    Aug. 2, 2012.

      James Seth McCoy, Lanny R. Pace, Jackson, attorneys for appellant.
    Carroll Rhodes, Hazlehurst, attorney for appellee.
    Before WALLER, C.J., LAMAR and PIERCE, JJ.
   PIERCE, Justice,

for the Court:

¶ 1. On April 18, 2006, Lester Butler filed a personal-injury action in the Copiah County Circuit Court against David Holmes and John Does 1-5. Later, Butler moved to amend his complaint to substitute a trucking company, D.P. Holmes Trucking, LLC, for Holmes or, in the alternative, to be allowed to file an amended complaint to add Holmes Trucking as a defendant. Both the circuit court and Holmes permitted Butler to amend his original complaint to add Holmes Trucking as a defendant; however, when filed, Butler had substituted Holmes Trucking for Holmes. After a responsive pleading had been filed, Butler filed a second amended complaint without leave of court and without permission of Holmes Trucking, identifying both Holmes and Holmes Trucking as defendants. Holmes Trucking responded with a motion to dismiss or, in the alternative, for summary judgment, but the circuit court allowed Butler to proceed, finding that the mistaken party name was a misnomer. Thus, Holmes Trucking filed notice of interlocutory appeal, requesting that this Court grant a dismissal with prejudice.

FACTS

¶ 2. On April 18, 2006, Lester Butler brought a personal-injury claim in Copiah County Circuit Court against David Holmes and John Does 1-5, alleging negligence in a traffic accident involving a truck driven by Tommy Jones. David Holmes filed his answer and affirmative defenses on May 24, 2006, asserting that Jones was not his employee and listing several affirmative defenses.

¶ 3. On March 18, 2009, Butler moved to substitute the parties or, in the alternative, to file an amended complaint to add Holmes Trucking as a defendant. On August 11, 2010, an agreed order was signed allowing Butler to amend his complaint and add Holmes Trucking as a defendant. However, when Butler filed the amended complaint on February 11, 2011, he failed to comply with the order-instead of adding Holmes Trucking as a defendant, he substituted Holmes Trucking for Holmes. In the amended complaint, Butler kept John Does 1-5 as named defendants as well.

¶ 4. Holmes Trucking responded with a motion to strike, arguing that Butler’s amended complaint contradicted the order. Holmes Trucking also answered and asserted affirmative defenses. On March 9, 2011, Holmes Trucking filed a motion to dismiss or, alternatively, for summary judgment. Without leave from the circuit court, Butler filed a second amended complaint on March 23, 2011, which seems to be an attempt to comply with the August 11, 2010, agreed order. In the second amended complaint, Butler named both Holmes and Holmes Trucking as defendants and kept John Does 1-5 as named defendants also.

¶ 5. Holmes and Holmes Trucking jointly moved to strike the second amended complaint, most notably arguing that the complaint did not comply with Mississippi Rule of Civil Procedure 15(c) and that Butler had failed to eliminate one of the five John Doe defendants as required by this Court’s ruling in Doe v. Mississippi Blood Services and by Mississippi Rule of Civil Procedure 9(h).

¶ 6. Butler filed a response on May 13, 2011, asserting that he properly had amended his complaints, that the misiden-tification of Jones’s employer was a misnomer, and that the relation-back portion of Mississippi Rule of Civil Procedure 15(c) precluded the statute-of-limitations argument proffered by Holmes Trucking. The circuit court issued an order on June 17, 2011, denying both Holmes Trucking’s motion to strike and its alternative motions to dismiss and/or for summary judgment. In that order, the circuit court stated that the Mississippi Supreme Court “has long recognized that the doctrine of misnomer allows parties to correct ‘party-name’ errors at any time or [at] any stage of the proceedings if doing so would not result in prejudice.” The circuit court ruled that neither Holmes Trucking nor Holmes would be prejudiced.

¶ 7. Holmes Trucking filed this interlocutory appeal, arguing that the circuit court had erred: 1) in classifying the amendment as a misnomer and a party-name error;, 2) in failing to strike, dismiss, or grant summary judgment in favor of the defense with regard to the first amended complaint under Doe v. Mississippi Blood Services and Mississippi Rule of Civil Procedure 9(h); 3) in refusing to strike Butler’s second amended complaint; and 4) in failing to grant Holmes Trucking’s motion to dismiss or, alternatively, for summary judgment with regard to Butler’s second amended complaint under Doe and Rule 9(h).

DISCUSSION

I. Whether the circuit court erred in classifying the attempted amendments as a party-name error or misnomer.

¶ 8. The circuit court stated that this Court “has long recognized that the doctrine of misnomer allows parties to correct ‘party-name’ errors at any time or [at] any stage of the proceedings[,] if doing so would not result in prejudice.” And the circuit court ruled that neither Holmes Trucking nor Holmes would be prejudiced by allowing the second amended complaint. The circuit court cited Southern Trucking Service, Inc. v. Mississippi Sand and Gravel, Inc. to find that it was appropriate for Butler to correct the party name as he did. Although this Court has long recognized the doctrine of misnomer, it does not apply here.

¶ 9. In Southern Trucking, both the plaintiff and the defendant had agreed to the substitution of Southern Trucking Services, Inc., as the true defendant. Southern Trucking moved to set aside the judgment under Mississippi Rule of Civil Procedure 60(b)(4), because Plaintiff Mississippi Sand and Gravel, Inc., did not exist. Mississippi Sand filed a cross-motion under Rule 60 to reflect the plaintiffs true identity — South Mississippi Sand and Gravel, Inc. The trial court denied Southern Trucking’s motion, but allowed Mississippi Sand to correct its name. This Court stated that a party’s name can be changed so long as the name change is not a material change (i.e., no one is confused about who is suing whom). But, although it had been proper to allow the party name to be changed, this Court found for Southern Trucking, because the misnomer also existed in the earlier suits, which were never amended, resulting in a void judgment.

¶ 10. This Court, in Scaggs v. GPCH-GP, Inc., has ruled more recently on this issue. In Scaggs, the plaintiff was correcting a misnomer, because the plaintiff incorrectly had named the defendant as Garden Park Medical Center rather than GPCH-GP, Inc., d/b/a Garden Park Medical Center. This Court stated that there is an important “‘distinction between a complaint that sues the wrong party, and a complaint that sues the right party by the wrong name.’” This Court ruled that Scaggs should have been allowed to correct the name of the party under the doctrine of misnomer and found that Mississippi Rule of Civil Procedure 15 was inapplicable.

¶ 11. The case before this Court rests on a different set of circumstances than those in Scaggs v. GPCH-GP. Where Scaggs was an issue of misnomer, simply suing the correct defendant using an incorrect name, here, Butler sued one defendant with the correct name and then sought to substitute a completely different defendant. Butler initially filed a complaint against Holmes and John Does 1-5, rather than filing his complaint against Holmes Trucking — the true defendant. Initially, Butler followed the procedure under Rule 15 to substitute or amend his pleadings to name Holmes Trucking. And as long as a party follows the procedures outlined in Rule 15, there is no reason why a plaintiff cannot substitute the proper name of the defendant when the plaintiff has learned that he has sued a wrongly-named party. Here, Butler named the person he thought was responsible for Jones, and when he later learned the identity of the true defendant, he moved to substitute or, in the alternative, amend his complaint. Therefore, misnomer would not apply. Butler did not simply misname the defendant; rather, he sued a person he believed to be responsible for the driver involved in the accident when he should have sued a different party.

II. Whether the circuit court erred by denying Holmes Trucking’s motion to strike Butler’s first and second amended complaints.

¶ 12. The Mississippi Rules of Civil Procedure allow a party to amend his pleadings under Rule 15. The amendment process outlined in Rule 15 encompasses changing parties, and that process also includes adding parties. When a party moves to amend his pleadings, leave to do so should be freely given when justice so requires. And “[m]otions for leave to amend [the] complaint are left to the sound discretion of the trial court.”

A. The First Amended Complaint

¶13. Holmes Trucking does not argue that Butler’s first amended complaint fails for following the procedures outlined in Rule 15, nor could it. Instead, Holmes Trucking argues that Butler’s amendment was improper because it substituted Holmes Trucking for Holmes instead of adding Holmes, as the Agreed Order allowed, and failed to substitute Holmes Trucking in the place of a John Doe defendant—a Mississippi Rule of Civil Procedure 9(h) argument. Upon review of Butler’s motion to substitute parties or, in the alternative, amendment of complaint, we note that he attempted either to substitute Holmes Trucking under Rule 9(h) or, in the alternative, to add Holmes Trucking as a defendant under Rule 15. The circuit court, after having reviewed Butler’s motion, clearly directed Butler to add Holmes Trucking rather than substitute it in place of Holmes or a John Doe defendant.

¶ 14. To substitute Holmes Trucking for Holmes, Butler was required to comply with Rule 9(h), which states:

Fictitious Parties. 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.

A Rule 9(h) substitution “does not change the name of a party against who a claim is asserted;” rather, “it provides the true name of the party already in the litigation.”

¶ 15. This Court stated in Veal v. J.P. Morgan Trust Co.,N.A.,:

Rule 9(h) does not say that a plaintiff may include a fictitious party because the plaintiff suspects that there might be someone out there who might have engaged in conduct which might be actionable. For instance, if the plaintiff knew that a nurse was assisting a doctor with a procedure and that the nurse engaged in negligent conduct, the plaintiff is not prevented from proceeding with litigation against the nurse simply because the plaintiff does not know the name of the nurse. The plaintiff may sue “Nurse X” and upon learning the nurse’s name, substitute it for the fictitious party under Rule 9(h).
However, where a plaintiff suspects that there might have been others involved in the procedure who might have been negligent, but is, at the time suit is filed, unaware of who they are or what negligent act they are alleged to have committed, the plaintiff may not include a fictitious party in the complaint. This Court has previously stated that the purpose of Rule 9(h) is to provide a mechanism to bring in responsible parties, known, but unidentified, who can only be ascertained through the use of judicial mechanisms such as discovery.

Correspondingly, when a plaintiff adds new parties by name by amending his complaint while maintaining originally designated John Doe defendants, he has not substituted the names of the new parties for the fictitiously named ones, as required by Rule 9(h).

¶ 16. Holmes Trucking was not a party to the litigation until Butler was permitted to amend his complaint to add a new party. And as stated previously, a plaintiff cannot use Rule 9(h) as a means to reserve a spot for those unknown individuals or entities he may discover later; rather, Rule 9(h) is to be used to clearly identify a party or entity that the plaintiff is aware of but cannot name. Butler was aware that an employer existed; however, he had named the wrong employer, naming Holmes individually rather than the entity of Holmes Trucking. When attempting to correct that mistake, he failed to comply with the requirements of Rule 9(h) by substituting one of the five John Does with Holmes Trucking.

¶ 17. The analysis does not end with Rule 9(h). Consequently, this Court must review whether Butler’s first amended complaint will relate back under Rule 15(c), since the 120 days to effect service under Mississippi Rule of Civil Procedure 4(h) have expired. For a claim to relate back to the original complaint under Rule 15(c) against a new party, the new claim must arise out of the same conduct, transaction, or occurrence as the original complaint. Additionally, the newly added party must have had notice of the suit within 120 days from the filing of the original complaint. However, “notice” does not mean service of process. In order for the amended pleading to relate back within the 120-day requirement to effect service under Mississippi Rule of Civil Procedure 4(h), the newly named party must:

(1) [have] received such notice of the institution of the action that the party will not be prejudiced in maintaining the party’s defense on the merits, and
(2) [have known] or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. 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.

¶ 18. And this Court will not accept mere speculation as to what a party was aware of or what it knew or should have known before the 120-day time period had elapsed.

¶ 19. After reviewing the record, we note that Holmes Trucking was added to this suit after the 120 days for effecting service had passed. Yet, the claims included in the first amended complaint stem from the same conduct, transaction, and occurrence as identified in the original complaint. Additionally, Holmes Trucking was aware of the pending litigation, as it already had settled a claim, in a separate matter, with a passenger in Butler’s vehicle involving the same conduct, transaction, and occurrence alleged in all of Butler’s complaints. Moreover, Holmes Trucking is represented by the same law firm as Holmes, and that law firm is authorized to accept service of process on Holmes Trucking’s behalf. For those same reasons, Holmes Trucking cannot argue that it did not know or that it should not have had reason to know of Butler’s pending litigation within 120 days of Butler’s original complaint. Therefore, the circuit court did not err in allowing Butler to amend his complaint.

B. The Second Amended Complaint

¶ 20. Rule 15(a) instructs a party to seek leave of the court or permission from the opposing party when seeking to amend the pleadings if a responsive pleading has been filed. If a party fails to seek leave of the court or permission of the opposing party prior to amending the pleadings, such amendment is improper and will be struck. Holmes Trucking had filed a responsive pleading before the second amended complaint had been filed, and thus, leave of court or permission from Holmes Trucking was required. Because Butler failed to seek leave of court or permission from Holmes Trucking, his second amended complaint is improper, and therefore, the circuit court should have dismissed the improper complaint. Accordingly, the circuit court erred by not dismissing the second amended complaint.

CONCLUSION

¶ 21. Misnomer does not apply in this case, and the circuit court erred in applying that doctrine. However, the court did not err in allowing Butler to amend his complaint. The circuit court should direct Butler to file a corrected complaint that complies with the August 11, 2010, agreed order. The circuit court erred by failing to dismiss the second amended complaint, as Butler did not follow the procedures outlined in Rule 15(a). Therefore, this case is remanded to the Copiah County Circuit Court for further proceedings consistent with this opinion.

¶ 22. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, CHANDLER AND KING, JJ., CONCUR. KITCHENS, J., NOT PARTICIPATING.

      . Butler complied with the 120-day time limit for service required by Mississippi Rule of Civil Procedure 4(h). Accordingly, Holmes filed his answer within thirty-six days of the filing of the complaint.

      . Doe v. Miss. Blood Servs., 704 So.2d 1016 (Miss. 1997)..

      . S. Trucking Servs., Inc. v. Miss. Sand and Gravel, Inc., 483 So.2d 321 (Miss. 1986).

        .Id. at 322.

      . Id. at 322-23.

      . Id. at 323.

      . Id.

      . Id. at 324.

      . Id.

      . Scaggs v. GPCH-GP, Inc., 23 So.3d 1080 (Miss.2009).

      . Id.

      . Id. at 1085 (quoting Roberts v. Michaels, 219 F.3d 775, 777-778 (8th Cir.2000)).

      . Id.

      . Holmes Trucking raised four issues on appeal; however, the last three issues have been combined into one.

      . Miss. R. Civ. P. 15.

      . See Miss. R. Civ. P. 15(c) cmt.

      . Barry v. Reeves, 47 So.3d 689, 695 (Miss.2010) (quoting Webb v. Braswell, 930 So.2d 387, 393 (Miss.2006)).

      . Id. (quoting Church v. Massey, 697 So.2d 407, 413 (Miss.1997)).

      . Miss. R. Civ. P. 9(h).

      . Price v. Clark, 21 So.3d 509, 525 (Miss.2009).

      . Veal v. J.P. Morgan Trust Co., N.A., 955 So.2d 843, 846 (Miss.2007).

      . Nguyen v. Miss. Valley Gas. Co., 859 So.2d 971, 978 (Miss.2002) (holding that the standard of review is de novo rather than abuse of discretion when this Court reviews the grant or denial of a motion to dismiss for failure to state a claim) (abrogated for other reasons by Ralph Walker, Inc. v. Gallagher, 926 So.2d 890, 893 (Miss.2006)).

      . Veal, 955 So.2d at 846.

      . Miss. R. Civ. P. 15(c).

      . Miss. R. Civ. P. 15(c)(1); see also Bedford Health Props., LLC v. Estate of Williams, 946 So.2d 335, 348 (Miss.2006).

      . Bedford, 946 So.2d at 351.

      .Miss. R. Civ. P. 15(c).

      . Bedford, 946 So.2d at 352-53; see also Ralph Walker, Inc. v. Gallagher, 926 So.2d 890, 896-97 (Miss.2006).

      . Miss. R. Civ. P. 15(a).