text:
    Mona MOY, Plaintiff-Appellant, v. BROOKSHIRE GROCERY COMPANY, Defendant-Appellee.
    No. 48,177-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 26, 2013.

      Anthony J. Bruscato, Monroe, LA, for Plaintiff-Appellant.
    Nelson, Zentner, Sartor & Snellings, LLC, Monroe, LA, by David H. Nelson, for Defendant-Appellee, Brookshire Grocery Company.
    John Avender London, III, Baton Rouge, LA, for Intervenor-Appellee, LUBA Casualty Insurance Company.
    Before LOLLEY, PITMAN and GARRETT, JJ.
   GARRETT, J.

Lin this slip and fall ease, the plaintiff, Mona Moy, appeals from a trial court judgment in favor of the defendant, Brook-shire Grocery Company. We affirm the trial court judgment.

FACTS

On May 19, 2010, at about 1:00 p.m., the plaintiff was shopping at a Super One Foods store in West Monroe. The store had 11 checkout lanes which were laid out side by side and perpendicular to the wall where the store exit was located. Counter 11 is the checkout, counter closest to the store exit. At that time, customers bagged their own groceries after the items were scanned by the cashier at the checkout counter.

The plaintiff, a certified nursing assistant employed by a sitting service, was helping an autistic client and his mother with their grocery shopping. After checking out at counter 10, the plaintiff walked around the end of that counter and toward the area at the end of counter 11. Her reasons for this were unclear. She testified that she was either looking for bags for her groceries or walking over to a nearby soft drink display. When she was about halfway past the end of counter 11, the plaintiff fell down, landing on her knees.

According to the plaintiffs trial testimony, she slipped in a puddle of water which was about the size of either a “dinner plate” or a “basketball.” She testified that a store employee was the first person to reach her and that this woman stated that the plaintiff had slipped in water. The plaintiff testified that she sat on a bench near the store exit and watched two store employees — Dianne Johnston and Barbara Plumley — wipe the floor with |2paper towels. The assistant manager, Christopher Baker, approached the plaintiff. He filled out an incident report which stated that the customer reported slipping on water at the end of the register and that the substance on the floor had “[already [been] wiped up.”

After driving her client and his mother home, the plaintiff sought medical attention at the emergency room at St. Francis Medical Center in Monroe. She complained of pain in her left knee and lower back. The next day, she retained counsel who made an appointment for her with Dr. Patterson. Dr. Patterson referred her to an orthopedic surgeon, Dr. Ferrer. On September 1, 2010, Dr. Ferrer performed arthroscopic surgery on the plaintiffs left knee.

The plaintiff received weekly worker’s compensation benefits for 21 weeks. She was released by Dr. Ferrer to return to work without restrictions in October 2010. Her prior permanent assignment with her autistic client was no longer available. She testified that she continued to experience problems with her knee and that the worker’s compensation insurer refused to allow her to see a physician to whom Dr. Ferrer wished to refer her. She eventually quit her job.

In the meantime, the instant suit was filed in West Monroe City Court in July 2010 and transferred to district court in November 2011. The plaintiff alleged that she was injured after slipping in a puddle of water in the defendant’s store. She asserted that the defendant was negligent in creating an unreasonable risk of harm, failing to provide a reasonable checkout counter, failing to make a reasonable effort to keep the premises 13free of hazards, and failing to exercise reasonable care. She further contended that the defendant knew or should have known of the unreasonably dangerous condition on its premises. The plaintiff sought damages for pain and suffering, mental anguish, physical injuries, medical expenses and loss of wages.

The worker’s compensation insurer, LUBA Casualty Insurance Company, intervened in the lawsuit to claim reimbursement for the worker’s compensation benefits paid to and on behalf of the plaintiff.

A bench trial was held on July 16, 2012. In addition to her own testimony, the plaintiff presented the testimony of three of the defendant’s employees — Ms. Johnston, a nonfood manager who was the first person to reach the plaintiff after she fell; Ms. Plumley, the cashier working the register at counter 11, the spot where the plaintiff fell; and Mr. Baker, the assistant manager who filled out the incident report. None of these employees observed the plaintiffs fall. Ms. Johnston and Ms. Plumley both testified that they wiped the floor with paper towels but found no liquid in the area where the plaintiff fell. Mr. Baker testified that he utilized the information he obtained from the plaintiff to fill out the accident report. He further testified that he did not discuss the plaintiffs fall with the two female employees when it happened. As a result, he did not learn of the absence of water on the floor until almost a month later when the three of them gave recorded statements about the incident to the defendant’s home office.

|4Among the items of evidence introduced at trial were the accident report, a store surveillance video which showed the plaintiffs fall from two camera angles, and photos or screen captures from the video. The video also included the time periods immediately preceding and following the incident. No water is visible on the floor in the video. In the minutes leading up to the plaintiffs fall, numerous people — both store employees and customers — traverse the area without any difficulty or mishap and without noticing any hazardous substance on the floor.

On September 5, 2012, the trial court rendered very thorough written reasons for judgment in which it found that the plaintiff had failed to carry her burden of proof under La. R.S. 9:2800.6(B), which governs a merchant’s liability for such accidents. The court observed, in pertinent part:

There is no doubt that Plaintiff fell, but the reason for her fall cannot readily be ascertained from the video. No water or any other type of spill can be seen, and no one or nothing is seen creating a spill. What is readily apparent is that a number of individuals, both employees and customers, traversed the area of Plaintiffs fall during the time span of the video without incident. No one appears to slip or have difficulty walking, and no one looks down as if to see something on the floor. The last employee to pass this location was about five minutes before Plaintiffs fall.
No evidence was introduced to establish that Defendant created the hazardous condition or had actual notice of it. Thus, Plaintiff must prove constructive notice as defined in La. R.S. 9:2800.6(0(1).
A good deal of the testimony at trial as well as Plaintiffs post-trial brief is focused on the issue of whether or not there was water on the floor. However, as the jurisprudence noted above makes abundantly clear, it is not sufficient for Plaintiff to show there was water on the Ififloor. She must also show the water had been on the floor for some time prior to her fall in order to prove constructive notice.
The video provides no positive visual evidence of water on the floor and merely shows the passage of time. Numerous other people can be seen traversing the area without slipping or avoiding the area. To reach the conclusion Plaintiff urges the court to reach would require the court to make a series of assumptions and impermissible inferences unsupported by the evidence. Such speculation falls short of the factual support necessary to meet Plaintiffs burden of proof.

The court ultimately concluded:

Even if the court assumes there was water on the floor, a fact not necessarily proved by Plaintiff, the court finds Plaintiff has failed to present positive evidence that the water was on the floor for any length of time prior to her fall, i.e., she has failed to make a showing of the temporal element.

Thus, the court determined that the plaintiff did not prove constructive notice on the part of the store, an essential element of her claim. Judgment was signed October 9, 2012, denying the demands of the plaintiff and the intervenor with prejudice at the plaintiffs cost.

The plaintiff appealed.

LAW

The imposition of tort liability on a merchant for a patron’s injuries resulting from an accident on the merchant’s premises is governed by the Claims Against Merchants statute, La. R.S. 9:2800.6. Milton v. E & M Oil Co., 45,528 (La.App.2d Cir.9/22/10), 47 So.3d 1091. In relevant part, that statute provides:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
|fiB. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
C. Definitions:
(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered, if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.

A plaintiff who sustains an injury iecause of a fall resulting from a condition ti or on a merchant’s premises must prove he requisite statutory elements to estabIsh a valid merchant liability claim, and ne failure to prove any of the required lements will prove fatal to a plaintiffs |aim. Chunn v. Brookshire Grocery Co., 4505 (La.App.2d Cir.8/19/09), 18 So.3d 179; Williams v. State Farm Ins. Co., 47,348 (La.App.2d Cir.7/25/12), 103 So.3d 433.

The definition of “constructive notice” includes a temporal element — “such a period of time....” The statute does not allow for the inference of constructive notice absent some showing of this temporal element. White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So.2d 1081. Proof of the statutory temporal element can be by both direct and circumstantial evidence. Heath v. ITT Hartford Ins. Co., 43,756 (La.App.2d Cir.12/3/08), 999 So.2d 166. Mere speculation or suggestion is not enough to meet the stringent burden imposed upon a plaintiff by the statute governing negligence claims against merchants. Chunn v. Brookshire Grocery Co., supra.

A trial court’s findings regarding liability for damages caused by a slip and fall accident at the defendant’s place of business are factual determinations that will not be disturbed absent manifest error or unless clearly wrong. Jones v. Brookshire Grocery Co., 37,117 (La.App.2d Cir.5/14/03), 847 So.2d 43. Whether the condition exists for a sufficient length of time for a merchant’s discovery is necessarily a fact question. Heath v. ITT Hartford Ins. Co., supra.

Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. & Dev., 617 So.2d 880 (La.1993); Williams v. State Farm Ins. Co., supra. Further, when findings are based on determinations regarding credibility of witnesses, the manifest error-elearly wrong standard demands great deference to the trier of fact’s findings. Williams v. State Farm Ins. Co., supra.

Louisiana’s three-tiered court system allocates the fact finding function to the trial courts. Because of that allocation of function (as well as the trial court’s normal procedure of evaluating live witnesses), great | ¡Reference is accorded to the trial court’s factual findings, both express and implicit, and reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appellate review of the trial court’s judgment. Virgil v. American Guarantee & Liab. Ins. Co., 507 So.2d 825 (La.1987).

EVIDENCE

Ms. Johnston, the nonfood manager, had been employed by the defendant for nine years at the time of trial. She testified that she heard the plaintiffs fall and that she hurried over to the plaintiff who had already gotten up. According to Ms. Johnston’s testimony, the plaintiff told her she must have slipped in some water and that she thought it came from the shopping cart of a female customer who had just left. However, Ms. Johnston testified that she did not observe any water or a water trail on the floor.

Ms. Plumley, the cashier, had been employed by the defendant for 20 years. She testified that Ms. Johnston said the plaintiff slipped and that either the plaintiff or Ms. Johnston said she slipped on water. When asked if Ms. Johnston told her what the plaintiff slipped on, Ms. Plumley testified that “[tjhey said water” and that “they” was either Ms. Johnston or the plaintiff. When pressed by plaintiffs counsel, she essentially indicated that since she did not recall having a direct conversation with the plaintiff, it must have been Ms. Johnston. On the other hand, Ms. Johnston testified categorically that she did not tell Ms. Plumley that there was water on the | ¡floor or to get towels. She testified that it was the plaintiff who said she slipped in water.

Ms. Plumley stated that she automatically grabbed some paper towels when Ms. Johnston said something about the plaintiff slipping. Ms. Plumley and Ms. Johnston testified that they wiped the floor thoroughly with paper towels for several minutes but were unable to find any water on the floor. Ms. Plumley testified that she did not recall Mr. Baker asking her between the time of the incident and their subsequent recorded statements for the home office if there was water on the floor. Likewise, Ms. Johnston testified that Mr. Baker did not talk to her about the incident the day it happened.

Mr. Baker, the assistant manager, had been employed by the defendant for 16 years. He testified that he spoke to the plaintiff after her fall was reported to him and that she recounted slipping in some water that had already been wiped up. He said that he used this information in filling out the accident report. He also testified as to the duties of the checkout personnel, which included keeping the area around their checkout stands clean and free from spills and restocking candy and other items by the checkout counters. Mr. Baker stated that he did not discuss the incident with Ms. Johnston or Ms. Plumley before he submitted the accident report to the defendant’s home office. As a result, he was unaware that they had not found any water on the floor until a month later when they were asked to give recorded statements about the incident.

| inThe plaintiff testified two store employees helped her up and one said that she had slipped in water. The employees got paper towels and began to wipe the floor. She went and sat on a bench. While she was seated there, Mr. Baker approached her. According to her testimony, she told him that she fell in some water and that his employees were getting the water up. The plaintiff described a puddle of water the size of a dinner plate or a basketball. She could not say where it came from or how long it had been on the floor. She testified that the employees’ testimony that they never found any water on the floor was not true.

Review of the video shows that, in the minutes before the, plaintiff fell, several people — including a woman carrying a baby — traversed the area of the fall without incident. Then two different shopping carts were parked at the end of counter 11, one after the other, in quick succession. The last cart departed approximately 22 seconds before the plaintiffs fall. After falling, the plaintiff got to her feet without assistance. Ms. Johnston approached the plaintiff first. At virtually the same time, Ms. Plumley grabbed paper towels and walked to the end of counter 11. The plaintiff walked over to the bench by the store exit while the' two female employees wiped at the floor for about two minutes. A man wearing a white shirt and dark pants approached the female employees and appeared to talk to them briefly; his identity is unknown but he appeared to be shorter and thinner than Mr. Baker. Ms. Plumley resumed checking out customers. Ms. Johnston appeared to check the floor around counter 11 before walking toward the pharmacy. The plaintiff got up from the bench and walked back |nto the end of counter 10, where she appeared to sit down on something. Mr. Baker approached her there and they walked back to the bench together. They sat on the bench for almost six minutes before the plaintiff departed from the store. (During this interval, the unknown man seen previously returned to counter 11 briefly.) Mr. Baker walked away from the store exit, apparently heading in the direction of the store office. He then turned around, went back to counter 11, near the spot where Ms. Plumley was working at her register, and remained for about three minutes. During this time, he interacted with Ms. Plumley, a male customer and another store employee.

DISCUSSION

After hearing the witnesses’ testimony at trial and viewing the store surveillance video, the trial court found that there was no evidence introduced to establish that the defendant created a hazardous condition or had actual notice of such a condition. The trial court also found that the plaintiff failed to prove the mandatory temporal element to support a constructive notice claim. We find no manifest error in the trial court’s rulings on these issues.

At the outset, we note that the plaintiff argues that the trial court erred in not making a definitive ruling as to whether or not there was water on the store floor. Review of the trial court’s well-reasoned written reasons for judgment shows that the trial court referred to the presence of water on the | i2floor as “a fact not necessarily proved by Plaintiff.” This implicitly indicates that the trial court did not accept the testimony of the plaintiff, who emphatically insisted that there was a puddle of water the size of a basketball or a plate on the floor and that the defendant’s employees were lying. However, the trial court— recognizing that the plaintiff had clearly failed in proving the mandatory temporal element required by La. R.S. 9:2800.6— obviously determined that it was unnecessary to belabor the issue of the presence of water on the floor. We find no error in this decision by the trial court.

Additionally, the plaintiff argues that this court must find that the testimony of the defendant’s employees was impeached by their actions on the video and the manner in which the reporting/investigation was handled. As to Ms. Plumley and Ms. Johnston, she asserts that they appear to be wiping up water and a water trail. Our review of the video does not contradict the testimony of these witnesses that they wiped a large area while unsuccessfully searching for water on the floor. As to the plaintiffs assertions that Mr. Baker talked to the female employees before he spoke to the plaintiff, the man who speaks to them at this point on the video does not appear to be the same man subsequently identified as Mr. Baker. While Mr. Baker does appear to go over to Ms. Plumley’s counter after speaking to the plaintiff, we cannot speculate or assume — as the plaintiff would have us do — what, if any, topic he discussed with her. We further note that the | ^plaintiff failed to confront these witnesses with the aforementioned portions of the tape during their testimony and did not question them in any detail as to these specific actions.

The video admitted into evidence shows the area where the plaintiff fell for a period of about 16 minutes before the fall and 18 minutes afterwards. As the trial court correctly noted, there is no liquid visible on the floor. However, given the distance and angle of the cameras and the poor quality of the video, we understand that a clear liquid might not be apparent on the video. Notably, though, no one is seen obviously spilling anything on the floor. Although the plaintiff claims that we should construe this as proof that water was already on the floor before the video began, this argument is belied by the ability of all of the other persons shown on the video to successfully traverse the area at the end of counter 11. Several people, both customers and store employees, walk directly over the spot where the plaintiff fell without misadventure. One customer is even carrying a small child in her arms and she negotiates the area without any difficulty. The time frame between the departure of the last cart from counter 11 and the plaintiffs fall was only 22 seconds. Under all of these circumstances, there is simply no evidence to establish any negligent conduct on the part of the defendant. We find no manifest error in the trial court’s rulings. We agree with the trial court’s ultimate conclusion that, even assuming arguendo there was some water on the floor, the plaintiff failed to prove the mandatory temporal element, i.e., that the water was on 114the floor for such a period of time that it would have been discovered if the merchant had exercised reasonable care.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed to the plaintiff/appellant, Mona Moy.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Joe MORGAN a/k/a Lil Joe v. STATE of Mississippi.
    No. 2012-KA-00861-SCT.
    Supreme Court of Mississippi.
    July 18, 2013.
    Office of State Public Defender by Erin Elizabeth Pridgen, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.

      Before RANDOLPH, P.J., KING and COLEMAN, JJ.
   RANDOLPH, Presiding Justice, for the Court:

¶ 1. Before the Court is Joe Morgan’s direct appeal of his convictions of murder of Damien Talbert and manslaughter of Ricky Thomas. Morgan received a life sentence for the murder conviction and twenty years’ incarceration for the manslaughter conviction. Morgan challenges the denial of his requested jury instruction on imperfect self defense and the denial of his motion for a mistrial. Finding that both claims lack merit, we affirm his convictions and sentences.

FACTS

¶ 2. On Saturday, January 8, 2011, Chris Don’s nightclub in Clarksdale, Mississippi, hosted a rap music convention. Morgan attended with his seventeen-year-old brother, Octavius Morgan, and some friends, including Eric Hawkins. In the early morning hours of January 9, 2011, a large fight broke out on the dance floor in Chris Don’s. The fray expanded through the exit door and onto the sidewalk and street in front of the club. The fight culminated in shots being fired, resulting in the deaths of Damien (“DD”) Talbert and Ricky Thomas.

¶ 8. Clarksville Police Officer Delarian Norsworthy received a report of the disturbance around 1:15 a.m. When Norswor-thy arrived, he observed some people standing outside the club and the fight still going on inside. Norsworthy announced that the club was being shut down and that everyone needed to leave immediately. Norsworthy testified that he was standing near the door watching the crowd exit when he heard shots being fired. Not knowing whether the shots were fired inside or outside the club, Norsworthy got down low near the main door to the club. When he exited the club, Norsworthy saw Talbert lying unresponsive on the street and saw another man being loaded into a car and driven away.

¶4. Witnesses presented conflicting accounts of what happened that night. Latonya (“Nick”) Booker testified that she was standing with Talbert inside Chris Don’s when a fight broke out on the dance floor. They backed up to avoid being involved in the fight, but Talbert “still end[ed] up getting involved in it. He tried to keep somebody from getting jumped, but they still end[ed] up getting jumped.” Booker testified that they then went outside, where Talbert was talking to a group of boys, when Thomas approached and said “Ah hell naw.” Thomas then “jumped up and he stole on [Talbert] ... and the group [of] boys [that] was already standing talking to him, was jumping on [Talbert] too.” Booker testified that Talbert and Thomas then “come out from the crowd, and they come from between these cars” parked in front of Chris Don’s. Talbert was on Thomas’s back and Thomas was holding onto Talbert’s shirt, when Booker heard a shot and ran. Booker testified that she did not see who fired the shots.

¶ 5. Andreana Roby, the mother of Tal-bert’s children, testified that she saw Tal-bert helping someone named “Duke-Boy” fight a group of men inside Chris Don’s. When the State inquired, “[w]ho was the Duke-Boy in a fight with,?” she responded “All the Ghost Boys.” Roby also testified that she saw Derrick Ross hit Talbert on the nose with a bottle during the fight inside the club. She testified that she watched Talbert walk out of the club with Booker shortly before she walked out and encountered a large fight on the sidewalk in front of the door. The State asked Roby “[w]ho was fighting out there then?” and she responded that “it was so many people that night, and they all had on dark clothes.... And it was a lot of more boys, and they was all fighting [Talbert].” Roby testified that she and her friends were standing outside when she saw Derrick Ross on the sidewalk. She heard Ross say “Shoot that bitch[,]” and saw Ross pass a gun to Morgan. She testified that she saw Morgan fire the gun.

¶ 6. After defense counsel objected to Roby’s testimony that Talbert had been fighting a group of men dressed in black, whom she identified as “the Ghost Boys,” the trial judge held a conference with the attorneys outside the jury’s presence to discuss Roby’s testimony and the admissibility of gang-related evidence. Morgan’s attorney argued that, although Roby had not used the word “gang,” the jury knew that her identification of a large group of men dressed in black as “the Ghost Boys” was a reference to gang involvement, particularly because jurors were informed during voir dire that evidence of gang involvement might be presented at trial. Defense counsel argued that:

we’re in a position now to where we’ve either got to continue now to open that door to try and explain it ... and/or hope that the jury doesn’t connect that dot to the defendant, but it already has been.
We feel that has prejudiced us, and hamstrung us.

The trial judge denied defense counsel’s motion for a mistrial, finding that Roby’s statement was not an intentional introduction of evidence of gang involvement by the State and that Roby’s statement that Talbert was fighting with men dressed in black was independent of her account of Morgan shooting Talbert with a gun given to him by Ross.

¶ 7. Kurtencia (“Tai-Tai”) Perryman testified that multiple fights broke out in Chris Don’s. She “backed up out the door, because I was eight months pregnant.” She was standing at the door when she saw her brother, Virgil (“Man-Man”) Alford, and got him to go outside. Kurtencia testified that, when she was standing outside, she saw Talbert talking to some boys, that Thomas ran up and started fighting with Talbert near the door to Chris Don’s. There “was just a big crowd of folks fighting. Them the only two people I just really spotted out.” Thinking that Alford may have been involved in the fight, Kur-tencia watched the fight to see whether Alford was involved so she could make him leave. She then saw Talbert on top of Thomas and heard gunshots being fired. Kurtencia testified that she saw Morgan fire the shots.

¶ 8. Octavius testified that he was leaving the club with Morgan and Hawkins when Alford and Latravion (“Tray-80”) Perryman, Kurtencia’s brothers, began a fight with Morgan in the doorway. Octavi-us testified that he joined the fight to help his brother, and that he never lost sight of Morgan the whole time. Octavius was fighting Alford, and Morgan was fighting Latravion, in the doorway of the exit of Chris Don’s when Octavius heard gunshots from the entrance side of the club. He testified that he was watching Morgan the entire time and that he did not see Morgan with a weapon that night. He stated that, when he heard the gunshots, he and the men with whom he had ridden to the club, including Morgan and Hawkins, all ran to the vehicle and left. Octavius also testified that he did not see Ross at Chris Don’s that night. Octavius further testified that Morgan had known Thomas for about seven years and that the two generally were on friendly terms.

¶ 9. Hawkins testified that Talbert and Thomas were fighting in the doorway of Chris Don’s, and that the fight then spilled outside of the club. He testified that Morgan was fighting Latravion and Alford in the exit doorway, and that the fight was escalating just outside of the doorway when the shots were fired. Hawkins testified that he heard the shots as soon as he got outside, that his eyes were on Morgan the entire time, and that he did not see Morgan with a weapon at any time that night. Hawkins testified that, upon hearing the gunshots, he ran to his vehicle and left with the men who had ridden to the club with him that evening.

¶ 10. Morgan later questioned Police Sergeant Norman Starks regarding gang activity. Starks testified that the Ghost Boys, Vice Lords, and Mafia Vice Lords gangs generally were allies with one another, and that they were rivals with the Gangster Disciples and Gangsters. Stark testified that Morgan was a member of the Ghost Boys, and Ross a member of the Mafia Vice Lords, while Talbert and La-travion Perryman were members of the Gangster Disciples and the Gangsters, respectively. No evidence was adduced regarding Ricky Thomas’s gang involvement.

ISSUES

¶ 11. Morgan raises two issues on appeal:

1. Whether the trial court abused its discretion and denied Morgan the opportunity to present an alternate theory of defense by denying his requested jury instruction on imperfect self defense.
2. Whether the trial court abused its discretion by failing to grant a mistrial because a witness called by the State testified about gang activity without laying the proper foundation.

DISCUSSION

¶ 12. We apply an abuse-of-discretion standard when reviewing a trial court’s denial of a jury instruction and a trial court’s denial of a mistrial. Clayton v. State, 106 So.3d 802, 804 (Miss.2012) (‘When reviewing a trial court’s grant or denial of a jury instruction, this Court considers the jury instructions ‘as a whole to determine if the jury was properly instructed, giving abuse-of-discretion deference to the trial judge’s decision’ ” (citation omitted)); Clark v. State, 40 So.3d 531, 538 (Miss.2010) (“The decision of whether to grant a mistrial lies within the sound discretion of the trial court, and the trial court’s refusal to grant a mistrial is reviewable on appeal for abuse of discretion.” (citation omitted)).

I. The trial court did not abuse its discretion by refusing to give Morgan’s requested imperfect-self-defense jury instruction, because the instruction was without foundation in the evidence.

¶ 13. Morgan argues that the trial court abused its discretion by denying his requested jury instruction on imperfect self-defense, because, based on the testimony that Chris Don’s was generally chaotic and dangerous that night; that Morgan was on friendly terms with Thomas; and that Talbert, who was much larger than Thomas, was on top of Thomas when the two were shot, the jury “could have inferred ... that Morgan shot Talbert in defense of Thomas with a real, but unreasonable belief that it was necessary to save Thomas’s life.”

¶ 14. We conclude that the trial court did not abuse its discretion by refusing to instruct the jury on imperfect self-defense, because the requested instruction was without foundation in the evidence. We have provided that “[a] defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which [1] incorrectly states the law, [2] is covered fairly elsewhere in the instructions, or [3] is without foundation in the evidence.” Bailey v. State, 78 So.3d 308, 315 (Miss.2012) (citation omitted).

¶ 15. Morgan did not present an imperfect-self-defense theory through witness testimony or introduce “evidence that a jury could infer that Morgan feared for Thomas’s life that night.” Morgan presented testimony from three witnesses: Sergeant Norman Starks, Octavius Morgan, and Eric Hawkins. Starks testified regarding his knowledge of local gangs and the gang affiliations of Talbert, Morgan, Ross, and others who were present at Chris Don’s that night. Morgan’s counsel told the trial judge that he was eliciting testimony regarding Ross to respond to

earlier testimony that Morgan had shot Talbert at Ross’s command, because of “the influence [Ross] would have over another [gang member], for a manslaughter.” (Emphasis added.) Stark testified that it is not unusual for a member of a gang to carry out a task because “a commander, or a leader, or [another] member” asked him to do so, “as a sign of loyalty[.]”

¶ 16. Not one witness testified or implied that Morgan killed Talbert to protect Thomas that night. Morgan’s incident witnesses testified that their eyes were on Morgan at all times, and that they did not see a weapon in his possession. Evidence was presented that Morgan was acquainted with Thomas. Octavius testified that Ricky Thomas was a friend of his brother, and that Thomas and his brother “[n]ot ... ran together ..., but they used to be together every now and then[.]” Hawkins, who had known Morgan for about seven years and was good friends with Morgan, testified that he did not know whether Morgan was friends with Thomas. Moreover, neither Octavius nor Hawkins described any reaction by Morgan to the fight between Talbert and Thomas. Neither testified that Morgan was even aware that Talbert was fighting with Thomas. Both Octavius and Hawkins testified that they were with Morgan when they heard the gunshots, that they watched him the entire time, and that they did not see him with a gun that night. Thus, the only theory presented through witnesses called by the defense was that Morgan was not the shooter. Morgan presented no evidence that Morgan feared Talbert or believed Talbert to be a threat to Thomas, or, for that matter, that Morgan even was aware that Talbert was prevailing in a fight with Thomas, to provide a foundation for the requested instruction.

¶ 17. Morgan argued that the State had failed to present sufficient evidence to prove beyond a reasonable doubt that Morgan was the shooter. Morgan argued in the alternative that, if the jury found that Morgan did shoot Talbert, it should convict him of manslaughter, because the shooting “was in the heat of passion, uncontrollable anger” and “[t]he Gangsters were fighting rival gangs. If you believe the defendant did it, he didn’t calculate it. He didn’t plan it. That’s not deliberate design. It is a heat of passion.” Morgan argued that Morgan shot Talbert because he was enraged and impassioned that Tal-bert was fighting Thomas, not because he had a bona fide, though mistaken, belief that shooting Talbert was necessary to prevent Thomas from suffering death or great bodily harm. As Morgan failed to present evidence to support an imperfect-self-defense theory, his requested instruction was without foundation. Thus, we discern no abuse of discretion by the trial court in refusing the instruction.

¶ 18. Nor did the requested instruction have foundation in evidence presented by the State. Two of the State’s witnesses, Roby and Kurtencia Perryman, testified that they had seen Morgan fire the shots. Roby testified that she had witnessed Ross giving Morgan a gun and instructing Morgan to “Shoot that bitch” moments before she saw Morgan shooting, and Kurtencia simply testified that she had heard gunshots and had seen Morgan shooting. Neither testified that she had observed Thomas in danger of death or sei’ious bodily harm.

II. The trial court did not abuse its discretion by denying Morgan’s motion for a mistrial, because the challenged testimony did not irreparably and substantially prejudice his case.

¶ 19. We find that the trial court did not abuse its discretion by denying Morgan’s motion for a mistrial based on Roby’s mention of “the Ghost Boys.” Morgan argues that the trial court abused its discretion by denying his motion for a mistrial, because “Roby’s testimony left the jury with the inference that the Ghost Boys were dressed in dark clothes ... and Morgan was a member of that gang.” (Emphasis added.) He asserts that “the prosecution did not lay the proper foundation to show that Roby was aware of gang life, that she knew gang members, or that she had any other personal knowledge of ‘the Ghost Boys[,]’ ” in violation of Mississippi Rule of Evidence 602. (Citing Hoops v. State, 681 So.2d 521, 531 (Miss.1996)). Morgan cites Hoops for the proposition that, under Rule 602, the State had to lay a proper foundation before Roby mentioned “the Ghost Boys.”

¶ 20. Rule 602 provides, in relevant part, that “[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter.” Miss. R. Evid. 602. At issue in Hoops was whether the State had laid the proper foundation for evidence of gang involvement to be introduced before eliciting testimony that the defendant was a member of a particular gang. Hoops, 681 So.2d at 531. In contrast, here, the State did not elicit testimony from Roby that Morgan was a member of a particular gang. Rather, Morgan’s argument is that the State violated Rule 602 by failing to lay a proper foundation before Roby made a statement from which the jury could have inferred, that Morgan was involved with a gang. We find that the trial judge did not abuse his discretion by finding that this potential inference did not warrant a mistrial.

¶21. The State did not introduce evidence to support a finding that Roby had personal knowledge of Morgan’s affiliation with a gang. The State had not laid a foundation for evidence of Morgan’s gang membership prior to Roby’s mention of “the Ghost Boys[,]” because the State did not question Roby regarding Morgan’s membership in a gang. Roby referenced the Ghost Boys while being questioned by the State regarding her observations of how the fight began. Roby responded that she had not seen what had started the fight, but that she had seen Talbert “helping the little Duke-Boy.” The State asked her who Duke-Boy had been fighting, and she responded “All the Ghost Boys.” Morgan objected and renewed his motion for a mistrial, because “[s]he just blurted it out, without any basis or personal knowledge— just says the Ghost Boys. Here we go about the gangs.” The trial judge declined to grant a mistrial and further found that Roby’s comment did not warrant a jury instruction to disregard it. The trial judge was “not totally convinced that the jury is associating [Roby’s mention of ‘the Ghost Boys’] with gang activity.” He stated that “[i]f I give some kind of instruction, it’s just going to highlight what happened[,]” to which Morgan’s counsel responded, “I agree.”

¶ 22. Under these facts, we cannot say that the State’s failure to lay a foundation for gang evidence before Roby’s mention of “the Ghost Boys” — which Morgan recognizes “she just blurted ... out” — warranted a mistrial. Roby blurted out the statement in response to general questioning regarding her observations of the fight that preceded the shooting deaths of Tal-bert and Thomas. After Morgan objected, Roby was instructed “not to mention anything [regarding gangs].” Neither Roby nor any subsequent witness called by State made further mention of “the Ghost Boys” or gang activity.

¶ 23. The mention of the Ghost Boys, in the absence of evidence laying a foundation for her knowledge of gang activity, did not irreparably and substantially prejudice Morgan. See Clark v. State, 40 So.3d 531, 538 (Miss.2010) (“If the trial court determines that error occurred in the proceedings that substantially and irreparably prejudiced the defendant’s case, the court must grant a mistrial.” (citation omitted)). We have provided that “the trial judge is permitted considerable discretion in determining whether a mistrial is warranted because the judge is best positioned to measure the prejudicial effect.” Harrell v. State, 947 So.2d 309, 316 (Miss.2007) (citation omitted). Here, the trial judge found that drawing attention to Roby’s passing reference to Talbert’s fight with “the Ghost Boys,” by instructing the jury to disregard it, could have been more prejudicial than the statement itself had been — and Morgan’s counsel agreed. While Roby did testify that Morgan was dressed in dark clothing, she did not use the word “gang.” She did not testify that Morgan was a member of the Ghost Boys. Indeed, the State presented no evidence that the Ghost Boys was a gang. Morgan was not among the men wearing dark clothing who Roby testified were fighting with Talbert. Thus, Roby’s suggestion that the group of men with whom Talbert was fighting outside of Chris Don’s — a group that did not include Morgan — was affiliated with the Ghost Boys did not implicate Morgan, for, at that point, no evidence had been introduced regarding Morgan’s or Talbert’s putative gang affiliation. We find that Roby’s brief reference to the Ghost Boys did not substantially and irreparably prejudice Morgan’s right to a fair trial. Accordingly, we conclude that the trial court did not abuse its discretion by denying Morgan’s motion for a mistrial.

CONCLUSION

¶ 24. The trial court did not abuse its discretion by denying the requested imperfect-self-defense instruction, which had no foundation in the evidence. The trial court did not abuse its discretion by denying the motion for a mistrial, for the challenged testimony did not irreparably and substantially prejudice Morgan’s right to a fair trial. Accordingly, we affirm Morgan’s convictions and sentences in the Coahoma County Circuit Court.

¶ 25. COUNT I: CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT II SHALL RUN CONSECUTIVELY TO SENTENCE IN COUNT I.

WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . The State then asked "What group?!,]” at which point defense counsel objected and moved for a mistrial, arguing that the State had "introduced into evidence this thing about the gang-issue that we discussed prior to trial” without making any "presentation at all of personal knowledge of this witness of any gangs” and "[n]ow it’s out into the jury's ears. There’s no way we can take it out.”

      . The requested instruction read as follows: The Court instructs the jury that under the law, a Defendant may have what is known as an "imperfect self defense.” What this means is that under the law the “imperfect self-defense", an intentional killing may be considered manslaughter if done without malice but under a bona fide, but unfounded, belief that it was necessary to prevent death or great bodily harm. If you find in this case that the proof shows that the Defendant killed the deceased Damien Talbert, without malice, under a bona fide, but unfounded belief that it was necessary for the Defendant to do so in order to prevent the said Damien Talbert from inflicting death or great bodily harm upon Ricky Thomas, then you must find the Defendant, Joe Morgan, guilty of manslaughter as to Count I due to imperfect self-defense.

      . Morgan did not testify at trial.

      . "The trial judge may alleviate the potential damage of [improper] testimony by addressing the statement with the jury, instead of declaring a mistrial.” Strickland v. State, 784 So.2d 957, 964 (Miss.2001) (citation omitted).


author: ROBERTS, J., for the Court:

text:
    Jonathan McGRIGGS, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01208-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2012.
    Rehearing Denied April 23, 2013.

      Jonathan McGriggs, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J., for the Court:

¶ 1. This appeal stems from Jonathan McGriggs’s motion for post-conviction relief (PCR) filed on August 4, 2011. The Copiah County Circuit Court entered an order on December 28, 2011, dismissing McGriggs’s PCR motion as being time-barred and successive-writ barred. The circuit court also imposed sanctions on McGriggs. McGriggs appeals the circuit court’s decision.

FACTS AND PROCEDURAL HISTORY

¶ 2. On March 5, 2001, McGriggs, represented by counsel, appeared before the circuit court to enter a guilty plea to a charge of murder, reduced from capital murder. He was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC). McGriggs first filed a PCR motion on November 21, 2002. This motion was dismissed by the circuit court, and McGriggs did not appeal that dismissal. He filed a second PCR motion on December 2, 2002, and the circuit court again dismissed the motion. McGriggs appealed that dismissal; however, this Court affirmed the circuit court’s dismissal. McGriggs v. State, 877 So.2d 447, 450 (¶ 11) (Miss.Ct.App. 2003). McGriggs filed another PCR motion on February 12, 2008. That motion was again dismissed by the circuit court, and this Court affirmed the dismissal. McGriggs v. State, 14 So.3d 746, 749 (¶ 13) (Miss.Ct.App.2009).

¶ 3. Undeterred, McGriggs filed yet another PCR motion on August 4, 2011, which is the subject of the current appeal. In an ordered entered on August 10, 2011, the circuit court dismissed this PCR motion, finding that McGriggs had failed to obtain permission from the Mississippi Supreme Court before filing the current PCR motion. The circuit court further found that the PCR motion was a successive writ, and sanctioned McGriggs in the amount of $250 and prohibited him from filing any further motions in forma pauper-is until he paid that amount or was granted permission by the supreme court. McGriggs filed a motion with the supreme court for leave to proceed in forma pauper-is. The supreme court entered an order finding that McGriggs’s conviction and sentence had never been directly appealed on the merits; therefore, he did not need to obtain its permission before filing his PCR motion. The supreme court remanded McGriggs’s motion to proceed in forma pauperis back to the circuit court. The circuit court allowed McGriggs to proceed in forma pauperis on his appeal but dismissed McGriggs’s PCR motion as time-barred and successive-writ barred. The sanctions from the August 10, 2011 order were still imposed against McGriggs.

¶4. Feeling aggrieved by the dismissal of his fourth PCR motion, McGriggs now appeals arguing that his guilty plea was involuntary because he was coerced into pleading guilty and that he was not informed that he was waiving his constitutional right to avoid self-incrimination.

ANALYSIS

¶ 5. The standard of review this Court employs when reviewing a circuit court’s dismissal of a PCR motion is that a circuit court’s factual findings will only be reversed if they are determined to be clearly erroneous. Bell v. State, 95 So.3d 760, 763 (¶ 7) (Miss.Ct.App.2012) (citing Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004)). Issues of law receive a de novo review. Id.

¶ 6. Mississippi Code Annotated section 99-39-5(2) (Supp.2012) provides that a person who enters a guilty plea shall file a PCR motion within three years from the date of the judgment of conviction. Pursuant to the statute, the following are the three exceptions to this time-bar: (1) An intervening decision of the Mississippi Supreme Court or the United States Supreme Court that would have adversely affected the outcome of the PCR movant’s conviction or newly discovered evidence that would have caused a different outcome in his conviction; (2) biological evidence, such as DNA evidence, that is capable of being tested and “that testing would demonstrate by reasonable probability that the [PCR movant] would not have been convicted or would have received a lesser sentence if favorable results had been obtained”; and (3) the PCR movant’s “sentence has expired or his probation, parole[,] or conditional release has been unlawfully revoked.” Miss.Code Ann. § 99-39-5(2)(a)-(b).

¶ 7. Additionally, Mississippi Code Annotated section 99-39-23(6) (Supp.2012) states that “any order dismissing the [PCR] motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article.” This section prohibits a PCR movant from filing successive PCR motions. Section 99-39-23(6) contains the same exceptions enumerated in section 99-39-5(2)(a)-(b).

¶8. MeGriggs’s current PCR motion clearly falls within the parameters of the procedural bars in both section 99-39-23(6) and section 99-39-5(2). His guilty plea was entered in March 2001, and his current PCR motion was not filed until over ten years later. This is well outside of the three-year time period found in section 99-39-5(2). Further, the issues he raises in his current PCR motion do not fall under an exception within which we can properly address the merits of his PCR motion. Therefore, we find that the circuit court was correct m finding that McGriggs was time-barred from bring his current PCR motion.

¶ 9. Additionally, the circuit court correctly found that McGriggs’s PCR motion was also barred under section 99-39-23(6). This section prevented him from filing a successive PCR motion when his previous PCR motion had been filed and an order dismissing or denying the PCR motion had been entered. This is McGriggs’s fourth PCR motion since entering his guilty plea in 2001. Including this opinion, McGriggs has a total of three published opinions by this Court all involving his filing of PCR motions. As was stated above, McGriggs has not presented any evidence that this PCR motion falls within one of the enumerated exceptions. We find the circuit court was correct in dismissing McGriggs’s PCR motion as successive-writ barred as well.

¶ 10. We recognize that the supreme court has held that errors affecting fundamental constitutional rights are not subject to the procedural bars of the Uniform Post-Conviction Collateral Relief Act (UP-CCRA), such as the time-bar or successive-writ bar. See Rowland v. State, 42 So.3d 503, 508 (¶ 16) (Miss.2010). McGriggs’s claims of an involuntary plea and a failure to be informed that he has a right to not say anything to incriminate himself have not been determined by the supreme court to be fundamental constitutional rights; therefore, he is subject to the procedural bars of the UPCCRA.

¶ 11. Because we find that the circuit court properly dismissed McGriggs’s PCR motion as time-barred and successive-writ barred, we do not address the issues McGriggs raises in his brief.

¶ 12. We also note that the circuit court imposed sanctions against McGriggs for his repeated filing of PCR motions. Pursuant to Mississippi Rule of Appellate Procedure 38, this Court or the supreme court may also impose sanctions for a frivolously filed appeal. If this Court or the supreme court finds an appeal is frivolous, it “shall award just damages and single or double costs to the appellee.” M.R.A.P. 38. “An appeal is frivolous when, objectively speaking, the appellant has no hope of success.” McCoy v. City of Florence, 949 So.2d 69, 85 (¶ 61) (Miss.Ct.App.2006) (citations omitted). We recognize that McGriggs has a right to appeal an unfavorable judgment; however, it was clear that McGriggs was time-barred and successive-writ barred from filing his PCR motion and that his issues did not fall within any of the statutory exceptions. While we do not impose sanctions on McGriggs for filing a frivolous appeal at this time, we warn him that such is possible for any future objectively frivolous filings.

¶ 13. THE JUDGMENT OF THE CO-PIAH COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF AND IMPOSING SANCTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR. BARNES, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.


author: FAIR, J., for the Court: CARLTON, J.,

text:
    Charles PATTERSON, Appellant v. CITY OF GREENVILLE, Mississippi, Councilman Kenneth L. Gines, Councilman Carolyn Weathers, Councilman Ann Hollowell, Councilman Betty Watkins and Councilman Errick D. Simmons, Appellees.
    No. 2011-CA-00708-COA.
    Court of Appeals of Mississippi.
    Feb. 19, 2013.
    Rehearing Denied July 16, 2013.
    Edward Blackmon, attorney for appellant.
    Andrew N. Alexander III, Greenville, attorney for appellees.
    Before LEE, C.J., BARNES and FAIR, JJ.
   FAIR, J., for the Court:

¶ 1. The Washington County Circuit Court affirmed the discharge of Charles Patterson, Greenville’s former chief of police. Chief Patterson now appeals asserting that the city council’s decision violated his constitutional or statutory rights, was arbitrary or capricious, or was beyond the agency’s power. Finding that the city council’s decision to discharge Chief Patterson was within its discretion, we affirm.

FACTS

¶ 2. Greenville was to host a fair in April 2010, and it was rumored that a fight would occur on the fairgrounds. Chief Patterson ordered several off-duty officers, who were working as private security at the fair, to take their police vehicles and park them somewhere visible. Mayor Heather McTeer was absent, and Vice Mayor Kenneth Gines was acting in her stead. Vice Mayor Gines asked Chief Patterson to rescind his order and advised him that it was a violation of law to use city vehicles for private security work. Chief Patterson refused to do so.

¶ 8. After meeting with the city council, Vice Mayor Gines again asked Chief Patterson to countermand his prior order. When Chief Patterson refused, he was suspended for three days. Following the meeting, Chief Patterson drove out to the fairgrounds in his police vehicle and instructed the off-duty officers there to move their vehicles to a nearby police substation. Lieutenant Ernest Sanders drove to the fair in his private vehicle, and Chief Patterson ordered him to go get his police vehicle.

¶ 4. In December, the city council held a hearing where four officers testified. Chief Patterson denied the allegations against him, but the city council unanimously voted to discharge him for malfeasance and the willful violation of a direct order. Chief Patterson appealed his dismissal to the Washington County Circuit Court, which affirmed the council’s decision.

STANDARD OF REVIEW

¶ 5. “The decision of an administrative agency is not to be disturbed unless the agency order was unsupported by substantial evidence; was arbitrary or capricious; was beyond the agency’s scope or powers; or violated the constitutional or statutory rights of the aggrieved party.” Bd. of Law Enforcement Officers Standards & Training v. Butler, 672 So.2d 1196, 1199 (Miss.1996).

¶ 6. Substantial evidence has been defined as “evidence that a reasonable person would accept as adequate to support a conclusion.” Miss. Transp. Comm’n. v. Anson, 879 So.2d 958, 963 (¶ 14) (Miss.2004). “It is something more than a mere scintilla or suspicion.” Id. (quoting Public Employees' Retirement System v. Marquez, 774 So.2d 421 (Miss.2000). An act is considered arbitrary “when it is not done according to reason or judgment, but depending on the will alone.” Burks v. Amite Cnty. Sch. Dist., 708 So.2d 1866, 1370 (¶ 14) (Miss.1998). An act is capricious when “done without reason, in a whimsical manner, implying either a lack of understanding of or a disregard for the surrounding facts and settled controlling principles.” Id.

DISCUSSION

¶ 7. Under the Greenville Code of Ordinances, section 2-87 provides: “The office of chief of police shall be filled by appointment by the city council; and the chief so appointed shall serve for a term of two (2) years or until removed by the city council in its discretion.”

¶ 8. The Mississippi Supreme Court has held that where an “office is held at the pleasure of the appointment power, and where the power of removal is exercisable at its mere discretion, it is well settled that the officer may be removed without notice or hearing.” Ware v. State, 72 So. 237, 238 (Miss.1916). In Ex parte Castle, 248 Miss. 159, 160, 159 So.2d 81, 82-83 (1963), our supreme court considered the discharge of a deputy sheriff. Under the Mississippi Code of 1942, section 4235 stated that the sheriff could discharge deputies “at pleasure.” Castle, 248 Miss, at 163-64, 159 So.2d at 83. The supreme court found that no formal charges or hearings were required where a public officer holds his office only at the pleasure of superiors. Id. at 164, 159 So.2d at 83.

¶ 9. But under Greenville Code section 2-3, the chief of police is an appointed officer, and section 2-6 provides a procedure for removing such officers:

(a) Grounds. Any city officer may be removed from office by the council for nonfeasance or malfeasance of duty; for willful violations of the ordinances of this city or for drunkenness in office.
(b) Hearing. Charges against any such officer shall be presented in writing to the council in open session; the officer being so charged shall be furnished a copy of such charges. The council shall fix a time for the hearing of such charges not less than five (5) days thereafter ....

¶ 10. Here, the record shows that Chief Patterson was terminated for malfeasance and provided with notice and a hearing. There is evidence that Chief Patterson allowed public property to be used for private employment in violation of section 21-17-5(2)(g) of the Mississippi Code Annotated (Supp.2012) and the instructions of the city council and vice mayor. He was expressly advised that an attorney general’s opinion had previously been issued to the city advising that police vehicles could not be used by off-duty police officers moonlighting as private security officers. Miss. Att’y Gen. Op., 93-0929, 1994 WL 117370, Blass (Mar. 30, 1994). On November 16, 2010, Chief Patterson received notice of the hearing from the city council. At his request, the hearing was postponed until December 6, 2010. At the hearing, the city council heard testimony from three witnesses and Chief Patterson himself before unanimously voting to terminate Chief Patterson.

¶ 11. Under section 2-87, Chief Patterson could have been removed from his position as chief of police at the discretion of the city council at any time, with or without cause. Under section 2-6, the council had to follow a specific procedure to remove Chief Patterson. The council followed the more stringent requirements of section 2-6. Considering the evidence presented, we find that the city council was within its discretion to discharge Chief Patterson. Its decision was not arbitrary or capricious, and was supported by substantial evidence.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J., AND JAMES, J.

CARLTON, J.,

dissenting:

¶ 13. I respectfully dissent from the majority’s opinion.

¶ 14. I would reverse and remand this matter to the city council. I submit that the city council, and hence the circuit court in affirming the city council’s decision, acted arbitrarily and capriciously in terminating the police chief without first determining factually whether the chiefs use of police vehicles constituted use for an official public law enforcement purpose and whether Vice Mayor Gines’s direct order constituted a lawful order within his authority to issue. Vice Mayor Gines lacked authority to direct this order to the police chief because compliance with the order required the police chief to violate the sworn official duties vested by statute in the police chief to protect the public and prevent crime within the city’s jurisdiction. See Miss.Code Ann. § 21-21-1 (Rev.2007); Miss.Code Ann. § 45-6-3(c) (Rev.2011). No malfeasance can be predicated upon the failure to comply with such an unlawful order that is void due to its contravention of specific statutory duties vested in the police chief as chief law enforcement officer of the municipality. See Miss. Att’y Gen. Op., 2002-0749, 2003 WL 356383, Lee (Jan. 3, 2003) (mayor lacks authority to become involved in day-to-day operation of the police department or to make law enforcement decisions). The record reflects that Vice Mayor Gines ordered Chief Patterson to refrain from fulfilling affirmative official “sworn” law enforcement duties of his office, as a police chief and as vested by statute, to prevent crime and to protect the community. See Miss.Code Ann. § 21-21-1; Miss.Code Ann. § 45-6-3(c). By statute, the chief of police is the chief law enforcement officer in the city and supervises the law enforcement duties of the police officers. See Miss.Code Ann. § 21-21-1; Miss.Code Ann. § 21-21-3 (Rev.2007). Clearly, a municipality is statutorily obligated to provide police protection to all of its citizens pursuant to Mississippi Code Annotated section 21-21-3.

¶ 15. While a mayor, or a vice mayor as in the case at bar, possesses superintending control over police and the affairs of a municipality to provide oversight, to observe, and to report police activities to the board, the mayor lacks authority to supervise law enforcement by the police chief or to supervise police officers on a daily basis. Neither the mayor, nor the vice mayor, are sworn law enforcement officers. See Miss.Code Ann. § 21-5-7 (Rev.2007); see also Miss. Att’y Gen. Op., 2002-0052, 2002 WL 1011178, Nickles (Mar. 8, 2002); Miss. Att’y Gen. Op., 96-0331, 1996 WL 369495, Scott (June 7, 1996). I respectfully submit that the vice mayor’s direct order, underlying the termination action, constituted a void and unlawful order exceeding the scope of Vice Mayor Gines’s authority. In addition to exceeding his authority, the order contradicts the statutory authority vested in the chief of police as the chief law enforcement officer in the municipality. See Miss. Att’y Gen. Op., 2002-0052, 2002 WL 1011178, Nickles (Mar. 8, 2002) (chief of police supervises police officers, and while the city employs, regulates, and supports a sufficient police force, the municipal authorities do not get to micromanage the police department’s law enforcement duties). See also Marion Cnty. v. Taylor, 55 Miss. 184, 184 (1877) (supervisor’s order was a nullity since order exceeded statutory authority).

¶ 16. Stated otherwise, no malfeasance of office may be predicated upon the police chiefs refusal or failure to comply with the unlawful and invalid order given herein by the vice mayor. The order at issue directed the chief of police to refrain from fulfilling the official sworn duties of his position as chief law enforcement officer. See Miss.Code Ann. § 21-21-1; Miss.Code Ann. § 45-6-3(c). The record reflects that as time for the Greenville fair approached in April 2010, rumors circled that a fight would occur on the fairgrounds. See Miss. Code Ann. § 45 — 6—B(c) (providing that primary duties of a sworn law enforcement officer include prevention and detection of crime and apprehension of criminals). The Greenville mall was hosting the fair event in its parking lot. After learning of the rumored fight to occur at the Green-ville fair, Chief Patterson directed off-duty police officers to park their police vehicles at a nearby police substation located within the city limits. Such actions reflect no malfeasance of office or inappropriate use of public property for private purposes. The vehicles serve as an asset and instrument to aid law enforcement to fulfill their sworn law enforcement duties. In this case, the use of the police vehicles parked near the fairgrounds, as a show of force, reflects both an effort to deter the rumored potential fight at the fair and also an effort to pre-position these assets for ready availability in the event that the rumored fight actually erupted at the fair. See Miss.Code Ann. § 45-6-3(c) (sworn law enforcement duties include crime prevention); see also Edwards House Co. v. City of Jackson, 138 Miss. 644, 644,103 So. 428, 429 (1925) (authority of municipality is limited by authority granted to it by the Legislature).

¶ 17. Vice Mayor Gines’s order and unfounded assertion of malfeasance conveys an inherent assertion that the fair located in the mall parking lot was not entitled to law enforcement protection from crime by the City of Greenville or its police force because off-duty officers worked there as private security. The outside private employment of these police officers fails to relieve the chief of police of his sworn statutory official duties as chief law enforcement officer of the municipality. Outside private employment of off-duty police officers fails to impact the duty of the municipality and its police chief to protect and prevent crime previously rumored to occur at this public event within the municipal jurisdiction. See Miss.Code Ann. § 21-21-1; Miss.Code Ann. § 21-21-3; Miss.Code Ann. § 45-6-3; see generally Miss. Att’y Gen. Op., 1992 WL 614119, Ross (Aug. 26, 1992) (providing that since the Legislature has not delegated exclusive power specifically over State fairgrounds to a particular entity, nor has it taken away such power from the City of Jackson, the city retains jurisdiction over violations of state statutes at the fairgrounds).

¶ 18. With respect to the alleged use of the vehicles for private employment, the record indicates that the police vehicles were being parked at a previously established police substation. No dispute appears in the record regarding the location of the parked vehicles at a police substation. Thus, logically from these facts, the police vehicles were parked at an authorized official law enforcement location. The record moreover reflects that Chief Patterson was not working for a private employer or private purpose. The record shows that Chief Patterson was serving in his official public capacity as chief of police acting for a public law enforcement purpose when directing that the vehicles be parked at this previously established police substation near the rumored fight and the fair venue. The record does not indicate that the vehicles were being utilized for any private purpose or for a private employer but, instead, the record reflects use for a public law enforcement purpose of crime prevention by parking vehicles at the police substation, providing ready availability and assisting crime prevention by scaring off “would-be fighters” at the public event. As previously acknowledged, a municipality bears a statutory obligation to protect all of its citizens pursuant to section 21-21-3. See Miss. Att’y Gen. Op., 98-0102, 1998 WL 156073, Walker (Mar. 6, 1998) (“Whether a police chief is using a police car primarily in the performance of his official duties for the city is a factual determination which the governing authorities must make, subject to review by a court of competent jurisdiction.”). Crime prevention and the protection of the public constitutes a public law enforcement purpose falling within the scope of duty of the municipal police chief.

¶ 19. Mississippi Code Annotated section 17-25-11 (Rev.2012) was enacted in 2006 and allows law enforcement to wear their official uniform and their official weapon while working off-duty and for private employers. The new authorization for such wearing of the uniforms and weapons somewhat changes the complete prohibition previously provided for by statute. However, no need exists in this case to even evaluate whether the use of a vehicle for a private employer could have been authorized, since the record on its face reflects the use of the police vehicles for the public law enforcement purpose of preventing a potential crime of violence in the city at a fair open to the public, and since the record reflects that the vehicles were parked at a previously authorized official police substation. More specifically, the vehicles at issue were parked at a nearby police substation to fulfill the public purpose of performing an affirmative law enforcement duty imposed on the city and on the city’s chief of police to protect the city’s citizens by preventing potential crime threatening injury or harm to the public at the fair within municipal jurisdiction. See Miss.Code Ann. § 99-11-3 (Supp.2012); see generally Thornhill v. Wilson, 504 So.2d 1205, 1206-07 (Miss.1987); Delker v. State, 50 So.3d 309, 316 (¶ 16) (Miss.Ct.App.2009); Scott v. City of Goodman, 997 So.2d 270, 272 n. 1 (Miss.Ct.App.2008).

¶ 20. Again, crime prevention and the protection of the public constitute public purposes, and law enforcement may use its equipment, vehicles, and other assets to fulfill these official law enforcement purposes. The Greenville fair in the mall parking lot was not rendered ineligible for municipal police protection due to the hiring of off-duty police as private security by the mall or other private employers. A municipality bears a statutory obligation to protect all of its citizens pursuant to Mississippi Code Annotated section 21-21-3, and city police possess jurisdiction over crimes within city limits. See Miss. Atty’ Gen. Op., 2004-0048, 2004 WL 555123, Redmond (Feb. 13, 2004) (municipality may also share concurrent jurisdiction over crimes occurring within a city at some locations); Miss. Att’y Gen. Op., 93-0709, 1993 WL 467813, Harrell (Oct. 25, 1993) (board of aldermen has statutory duty to provide reasonable police protection for municipality). The fair was open to the public and located within the jurisdiction of the city, and upon receipt of a report of a rumored potential crime of violence to occur at this public event, Chief Patterson possessed an affirmative official public duty as chief law enforcement officer of the municipality to protect the public and prevent crime.

¶ 21. Based on the foregoing, I respectfully dissent.

IRVING, P.J., AND JAMES, J., JOIN THIS OPINION.

      . See Miss Att’y Gen. Op., 98-0102, 1998 WL 156073, Walker (Mar. 6, 1998).

      . See Miss.Code Ann. § 45-6-3(c) (Rev.2011) (defining sworn law enforcement officer); Miss.Code Ann. § 21-21-1 (Rev.2007) (duties of the chief of police); Miss.Code Ann. § 21— 17-5 (Supp.2012) (governing authorities of municipality).

      . See generally Petition of Aultman, 205 Miss. 397, 400-02, 38 So.2d 901, 901-02 (1949) (police officers bear the duty to arrest persons who commit crimes in a municipality); see also Miss. Att’y Gen. Op., 2002-0052, 2002 WL 1011178, Nickles (Mar. 8, 2002) (board of aldermen as legislative body possess responsibility to hire sufficient police and to appropriate funds for support of the police department but may not micromanage the police department without running afoul of the doctrine of separation of powers).

      . See also Miss. Att’y Gen. Op., 2011-00341, 2011 WL 5006005, Warren (Sept. 2, 2011) (municipality duty to provide police protection includes duty to maintain public presence in municipal court room, but authority to ensure decorum and order in municipality's courtroom belongs to the municipal judge).

      . See Miss.Code Ann. § 21-5-7 (Rev.2007) (duties of mayor). Neither the mayor, nor the vice mayor in the mayor's stead, are sworn law enforcement officers.

      . See also Miss.Code Ann. § 21-31-13 (Rev. 2007) (regarding civil service).

      . See also Joseph T. Bockrath, Liability of Municipality or Other Governmental Unit for Failure to Provide Police Protection, 46 A.L.R.3d 1084, 1086-1105 (1972).

      . Compare Miss.Code Ann. § 25-3-25(6)(o) (Rev.2010) (acknowledging that the Sheriff of Hinds County regularly provides security for the State fairgrounds and museums in Jackson) with Miss.Code Ann. § 19-3-40 (Rev. 2012) (providing that county supervisors cannot issue orders inconsistent with a specific provision of general law).

      . See also Watts v. City of Jackson, 664 F.Supp.2d 680, 685-89 (S.D.Miss.2009) (no adverse employment action may be used to retaliate for First Amendment claim).

      . See Bradley v. City of Jackson, 590 F.Supp.2d 817, 823 (S.D.Miss.2008) (recognizing that in evaluating liability pursuant to § 1983, Mississippi Code Annotated section 17-25-11, while authorizing wear of uniforms and guns, did not prohibit the use of vehicles).

      . See Miss. Att’y Gen. Op., 2011-00341, 2011 WL 5006005, Warren (Sept. 2, 2011); Miss. Code Ann. § 45 — 3—21 (i) (Rev.2011) (stating that the Highway Safety Patrol may respond to calls for assistance in a law enforcement incident and that such request and action shall be reflected in radio logs of Mississippi Highway Patrol district substation and the requesting agency); see also Ouzts v. State, 947 So.2d 1005, 1007-09 (¶¶ 9-19) (Miss.Ct.App.2006) (police stopped defendant in a DUI case not in prosecuting county but in second county and used substation in second county, and evidence found sufficient). The use of law-enforcement substations is recognized by statute as a lawful public use. See Miss.Code Ann. § 45-3-19 (Rev.2011) (allowing Highway Safety Patrol Commissioner to establish a headquarters and substations to carry out purpose of organization and enforcement of laws).


author: BARNES, J., for the Court:

text:
    Bobby Ray HENDERSON a/k/a Bobby R. Henderson a/k/a Bobby Henderson, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01798-COA.
    Court of Appeals of Mississippi.
    March 5, 2013.
    Rehearing Denied July 16, 2013.
    Benjamin Allen Súber, George T. Holmes, Jackson, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.

      Before LEE, C.J., BARNES and FAIR, JJ.
   BARNES, J., for the Court:

¶ 1. Bobby Ray Henderson was convicted by a Franklin County Circuit Court jury on a count of possession of a weapon by a convicted felon. He was sentenced to ten years in the custody of the Mississippi Department of Corrections (MDOC) as a nonviolent habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007). On appeal, Henderson challenges his conviction and sentence. Finding that the evidence supports the conviction, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On December 3, 2010, Henderson mentioned to his uncle, J.L. Amos, that he had a shotgun he wanted to sell. Henderson said a friend, Kennon Halford, had “pawned” the gun to him for sixty dollars and that he would sell it to J.L. for seventy-five dollars. After assuring his uncle the shotgun was not stolen, J.L. agreed to buy the gun, and Henderson later delivered the shotgun to him.

¶ 3. On January 7, 2011, Halford went to Henderson and purchased a different gun, a Mossberg Ducks Unlimited shotgun, from him. Halford then contacted Deputy David Blackwell with the Franklin County Sheriffs Department to see if he needed to register the weapon. Aware that Henderson was a convicted felon and was prohibited from possessing a gun, Deputy Blackwell launched an investigation. He visited the home of Henderson’s father, Bobby Ray Amos, where Henderson was currently residing, and asked Mr. Amos about the gun. Realizing that the shotgun in question sounded like the one he owned, Mr. Amos went inside to search for his shotgun and discovered it was missing. Henderson arrived at this time, and he was questioned by Deputy Blackwell. Henderson voluntarily confessed to taking his father’s shotgun and selling it to Hal-ford. He also confessed to selling the shotgun that he had obtained from Halford to his uncle, J. L. Deputy Blackwell went to J.L.’s home and retrieved the other shotgun.

¶ 4. Henderson was arrested and indicted on Counts One and Two, possession of a weapon by a convicted felon in violation of Mississippi Code Annotated section 97-37-5 (Supp.2012). After a jury trial, Henderson was convicted on Count Two and sentenced to ten years in the custody of the MDOC as a habitual offender, -without eligibility for parole or probation. See Miss.Code Ann. § 99-19-81.

¶ 5. Henderson filed a motion for a judgment notwithstanding the verdict (JNOV) and a motion for a new trial; both were denied by the circuit court. Henderson appeals, claiming that while it was stipulated he was a convicted felon, the evidence was insufficient to prove he was in possession of the weapon in Count Two. We affirm the circuit court’s judgment, finding that the evidence supports the verdict.

DISCUSSION

¶ 6. Henderson contends that the circuit court’s denial of his motion for a JNOV was in error, as the evidence was insufficient to support his conviction for Count Two. “A motion for [a] JNOV challenges the legal sufficiency of the evidence.” Johnson v. State, 81 So.3d 1020, 1028 (¶ 6) (Miss.2011) (citing Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005)). If the evidence fails to show “beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[,] ... it is insufficient to support [the] conviction.” Id.

¶ 7. “To prove possession of a firearm by a convicted felon, the State must prove two things: (1) the person was in possession of a firearm, and (2) the person had been convicted of a felony crime.” Young v. State, 95 So.3d 685, 688 (¶ 10) (Miss.Ct.App.2011) (citing Cooley v. State, 14 So.3d 63, 66 (¶ 13) (Miss.Ct.App.2008)). Although it was stipulated at trial that Henderson was a convicted felon, he argues the State failed to prove that he possessed the shotgun sold to his uncle. Henderson notes that none of the witnesses, except J.L., alleged he had possession of the shotgun in Count Two. Further, he asserts that J.L.’s testimony was not reliable, as J.L. was “unable to remember any events with specificity surrounding [Henderson’s] alleged visit to [J.L.’s] home ■with the shotgun.”

¶ 8. We find no merit to Henderson’s claim. J.L., an ordained minister, unequivocally testified that Henderson was the one who delivered the gun to him.

Q. So who was it that brought the gun to your house?
A. Bobby [Henderson].
Q. [Henderson] did?
A. Yes.
Q. Okay. Did you see anybody else with him?
A. I didn’t. No, ma’am.

J.L. also identified, at trial, the shotgun sold to him by Henderson.

¶ 9. Moreover, Deputy Blackwell testified that Henderson admitted he “took the gun and sold it to his uncle[.]” Henderson attempts to make an issue about Deputy Blackwell’s failure to give him a Miranda warning before the questioning; however, the testimony clearly shows Deputy Blackwell’s visit with Henderson began merely as an investigation. Also, Henderson volunteered the information regarding the shotgun he sold to his uncle without any questioning or prompting by law enforcement. Deputy Blackwell stated:

When he walked up, I just simply told him — I think we exchanged pleasantries, hello, and then I told him I was up there to talk about the gun that Kennon Hal-ford had, and he immediately began to say, yeah. It was my dad’s gun. I took my dad’s gun[,] and [he] completed his statements. He never stopped talking.

See Smith v. State, 96 So.3d 33, 39 (¶ 21) (Miss.Ct.App.2012) (An interrogation performed during a non-custodial, “general on-the-scene” investigation, does not require a Miranda warning “in order that a defendant’s statements be admissible.” (citing Hopkins v. State, 799 So.2d 874, 878 (¶ 7) (Miss.2001))). Henderson was not arrested until the following day, at which time he was informed of his Miranda rights.

¶ 10. Consequently, we find that the evidence was sufficient to support Henderson’s conviction and sentence, and we affirm the circuit court’s judgment.

1111. THE JUDGMENT OF THE CIRCUIT COURT OF FRANKLIN COUNTY OF CONVICTION OF COUNT TWO, POSSESSION OF A WEAPON BY A CONVICTED FELON, AND SENTENCE AS A HABITUAL OFFENDER OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FRANKLIN COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

      . At trial, Halford denied that he "pawned” or sold a shotgun to Henderson. He told law enforcement that the shotgun was his grandfather’s and that it had been stolen from his home. However, he did not recall that Henderson had ever been to his house.

      . Henderson was found not guilty on Count One.


author: FAIR, J., for the Court:

text:
    Martha EDWARDS, Appellant. v. STATE FARM MUTUAL INSURANCE COMPANY, Appellee.
    No. 2012-CA-00240-COA.
    Court of Appeals of Mississippi.
    June 25, 2013.

      Bennie L. Jones Jr., Roberta Lynn Haughton, West Point, attorneys for appellant.
    H. Scot Spragins, Lawrence John Tucker Jr., Oxford, attorneys for appellee.
    Before LEE, C.J., FAIR and JAMES, JJ.
   FAIR, J., for the Court:

¶ 1. On August 28, 2009, Martha Edwards sued State Farm Insurance for un-derinsured-motorist benefits. Edwards did not serve State Farm with process until February 2, 2010, over 160 days later. State Farm immediately filed a motion to dismiss or, in the alternative, a motion for summary judgment, arguing that Edwards failed to effectuate service within the 120-day period designated by Mississippi Rule of Civil Procedure 4(h). The trial court granted State Farm’s motion, finding that Edwards failed to show good cause for failure to serve within the 120-day period. Aggrieved, Edwards appeals. We affirm the decision of the circuit judge as within his discretion.

FACTS

¶ 2. The issues before us center on the trial court’s determination of Edwards’s failure to comply with Mississippi Rule of Civil Procedure 4(h), the “120-day rule” for serving process.

¶ 3. On June 4, 2004, Edwards was involved in a collision with Willie J. Gunn. At the time of the accident, Edwards had an underinsured-motorist policy through State Farm. Edwards filed a claim with State Farm after she settled her claims with Gunn. State Farm denied Edwards’s claim, and she filed her complaint on August 21, 2009.

¶ 4. Edwards filed a motion for enlargement of time on the last day of the 120-day time limit. However, Edwards never requested a hearing or a ruling on the motion. Edwards did not serve State Farm until February 2, 2010, 160 days after the filing of her complaint.

¶ 5. The court held a hearing on State Farm’s motion to dismiss. After reviewing the filings made by Edwards, including her motion for an extension of time, the trial court found no reason given for Edwards’s failure to serve State Farm. On January 12, 2012, the court issued an order dismissing the case.

DISCUSSION

1. Good Cause

¶ 6. Mississippi Rule of Civil Procedure 4(h) requires that “a plaintiff must serve a defendant with process within 120 days or show good cause why service was not made.” Webster v. Webster, 834 So.2d 26, 27-28 (¶ 4) (Miss.2002) (citation omitted).

¶ 7. In Holmes v. Coast Transit Authority, 815 So.2d 1183, 1185 (¶ 6) (Miss.2002), the supreme court addressed the standard of review of a trial court’s determination of good cause:

A trial court’s finding of fact on the existence of good cause for the delay in service of process has been deemed “a discretionary ruling ... and entitled to deferential review” on appeal. Rains v. Gardner, 731 So.2d 1192, 1197-98 (Miss.1999). When reviewing fact-based findings, we will only examine “whether the trial court abused its discretion and whether there was substantial evidence supporting the determination.” Id. at 1197. However, a decision to grant or deny an extension of time based upon a question of law will be reviewed de novo. Id. at 1198.

It further explained:

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

Holmes, 815 So.2d at 1186 (¶ 12) (quoting 4B Charles Allen Wright & Arthur R. Miller, Federal Practice & Procedure § 1137 (3d ed.2000)). “[A]t a minimum, a plaintiff attempting to establish good cause must show at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.” Id. at (¶ 11) (quotations omitted).

¶ 8. Edwards states that she was only required to show “cause” and not “good cause” because she filed a Mississippi Rule of Civil Procedure 6(b) motion for enlargement of time within the first 120 days. Rule 6(b) provides in pertinent part as follows:

Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shoum may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefore is made before the expiration of the period originally prescribed. ...

(Emphasis added).

¶ 9. Edwards properly filed her motion for an extension of time within the 120-day time period. However, it is undisputed that Edwards failed to secure an order granting her motion. On appeal, Edwards cites Cross Creek Productions v. Scafidi, 911. So.2d 958, 959 (¶7) (Miss.2005), in support of her argument that she is only required to show “cause” and not “good cause” because of that timely filing. However, this case is distinguishable from Cross Creek, where there was an order granting the motion, allowing the party additional time to serve process. In this case, there is no order. Edwards “placets] far too much emphasis on when a motion should be filed, while ignoring any demonstration of diligence.” Montgomery v. SmithKline Beecham Corp., 910 So.2d 541, 546 (¶ 18) (Miss.2005).

¶ 10. As the trial court correctly pointed out, Edwards provides no reason as to why service was not perfected in the first 120 days. Rather, she only states that the motion for an extension of time was “not filed for the purpose of delay but in order to represent Plaintiff adequately.” More importantly, Edwards did not promptly seek a ruling on her motion. The trial court correctly stated that, since no enlargement of time had been granted, Edwards, without cause, failed to serve State Farm within the 120 days as prescribed by Rule 4(h). Absent a showing of good cause for this failure, Edwards’s claim must be dismissed. See Collom v. Senholtz, 767 So.2d 215, 217 (¶ 5) (Miss.Ct.App.2000).

¶ 11. The court stated that it was apparent from the complaint that Edwards knew the proper party to serve. In addition, the trial court stated that there were no allegations that State Farm attempted to avoid process. In her motion, Edwards merely states that the motion was not filed “for the purpose of delay.”

¶ 12. Edwards also mistakenly argues that service was effective because State Farm has not shown it has been prejudiced or that Edwards acted in bad faith. As the party requesting additional time, Edwards had the burden to show good cause in order for the court to find proper service of process. Therefore, we find that the trial court did not abuse its discretion in finding that Edwards did not show good cause for failure to serve State Farm within the 120-day time limit.

2. Waiver of Process

¶ 13. Edwards claims that State Farm waived its right to rely on its affirmative defense of insufficient service of process. In its order dismissing the case, the trial court did not specifically find that State Farm had waived any of its affirmative defenses. However, based on the court’s ruling, it appears it concluded that State Farm’s defenses had not been waived. This determination is subject to an abuse-of-discretion standard. See Kinsey v. Pangborn Corp., 78 So.3d 301, 306 (¶ 13) (Miss.2011). Pursuant to this standard, this Court’s only consideration is “whether there was substantial evidence supporting the determination.” Kingston v. Splash Pools of Miss., Inc., 956 So.2d 1062, 1063 (¶ 5) (Miss.Ct.App.2007)

¶ 14. In her complaint, Edwards alleged that State Farm had denied her claim in bad faith, demanding punitive and extra-contractual damages. In its motion to dismiss, or in the alternative, for summary judgment, State Farm argued that the action should be dismissed because Edwards failed to timely serve State Farm, and because her claims are barred by the applicable three-year statute of limitations.

¶ 15. To establish a waiver, Edwards must prove there was a substantial and unreasonable delay by State Farm in pursuing its affirmative defenses, coupled with active participation in the litigation. See Miss. Credit Ctr., Inc. v. Horton, 926 So.2d 167, 171 (Miss.2006).

¶ 16. Edwards incorrectly asserts that State Farm has waived the defenses of insufficient process and insufficiency of service of process by its participation in litigation. Service of process defenses must be affirmatively asserted by an initial responsive pleading or by a separate motion. See Burleson v. Lathem, 968 So.2d 930, 933 (¶ 8) (Miss.2007). Further, a defendant who properly raises the defenses preserves them, although he may pursue a defense on the merits. Miss. Credit Ctr., 926 So.2d at 180 (¶ 44) (Miss.2006). State Farm persistently raised these defenses at all stages of litigation. The trial court held a hearing on State Farm’s motion to dismiss, or in the alternative, motion for summary judgment, on October 7, 2011. Before the hearing began, State Farm reiterated Edwards’s failure to serve State Farm with process within the prescribed time. We find that there was substantial evidence to support the trial court’s determination. See Kingston, 956 So.2d at 1063 (¶ 5). Therefore, we find that the trial judge did not abuse his discretion in concluding that State Farm did not waive its affirmative defenses.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND JAMES, JJ., CONCUR. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.