                       IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2002-CP-00546-SCT

KENNETH PEDEN, SR.

v.

THE CITY OF GAUTIER, MISSISSIPPI


DATE OF JUDGMENT:                              03/19/2002
TRIAL JUDGE:                                   HON. JAYE A. BRADLEY
COURT FROM WHICH APPEALED:                     JACKSON COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                        PRO SE
ATTORNEYS FOR APPELLEE:                        ROBERT G. RAMSAY
                                               JERRY L. MILLS
NATURE OF THE CASE:                            CIVIL - OTHER
DISPOSITION:                                   AFFIRMED - 04/01/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       BEFORE SMITH, C.J., COBB, P.J., AND CARLSON, J.

       CARLSON, JUSTICE, FOR THE COURT:


¶1.    This case comes to us after the trial court granted the City of Gautier’s Motion For Summary

Judgment. Plaintiff Kenneth Peden, Sr., filed a Motion For Injunctive Relief and Motion for

Declaratory Relief in the Jackson County Chancery Court seeking to enjoin the enforcement of the

chancery court’s order in a separate action approving the City’s annexation of the Gautier Utility

District. Chancellor Jaye A. Bradley found that the Special Chancellor’s order in the annexation case

was dispositive of the issues raised in Peden’s pleadings and that summary judgment was thus

appropriate. We agree.
              FACTS AND PROCEEDINGS IN THE CHANCERY COURT

¶2.    The City of Gautier filed a complaint for annexation, including the territory of the Gautier

Utility District (GUD) on August 30, 1999. The Jackson County Chancery Court, Special Chancellor

Donald Patterson, found that the annexation was reasonable. Kenneth Peden, Sr., a duly elected

Commissioner of the GUD, filed several post-trial motions, including (1) a Motion For Injunctive

Relief and Motion For Declaratory Relief and (2) a Motion for New Trial. The first motion was

withdrawn by Peden. The second motion was denied. An appeal was filed by Brian Britt to this

Court, which this Court dismissed. Britt v. City of Gautier, No. 2000-AN-01129-SCT.

¶3.    In a separate and subsequent action commenced in the Jackson County Chancery Court,

Peden filed a Motion For Injunctive Relief and Motion for Declaratory Relief, identical to the motion

withdrawn in the annexation case. That motion was filed pro se and reflected that Peden was an

elected commissioner of the GUD. In essence, the motion sought an injunction preventing the

“proposed assumption of the GUD by the City of Gautier” because of violations of (1) Miss. Code

Ann. § 21-27-7 for failure to conduct an election; (2) Local and Private Law Chapter No. 923, H.B.

1376, dated 1987, and Chapter 831, H.B. 1641, dated 1991, for failure to conduct an election and to

submit the matter to the U.S. Attorney General; (3) H.B. 1641 because an area known as

“Grasshopper Point” was exempted; and (4) H.B. 1641, Section 100 of the Constitution of the State

of Mississippi, and Miss. Code Ann. §§ 19-05-151 et seq. for failure of the chancellor to make

provision for or a finding relating to the assumption of the GUD.

¶4.    The matter was removed from the chancery court’s active docket due to inactivity, but was

later reinstated at Peden’s request. Although no minutes of GUD were provided in the record, the


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testimony reflects that GUD’s Board of Directors (“Board”) hired David Kihyet to represent the

interests of the Board and/or Peden. The City filed a Motion for Summary Judgment claiming that

Peden’s action was barred by the doctrine of res judicata.

¶5.    Thereafter, several meetings of the Board were conducted. The final meeting was held the

night before the hearing on the summary judgment motion where, by a vote of 4-0 (Peden

abstaining), the Board voted to intervene in Peden’s lawsuit. Also, by a vote of 4-1, the Board voted

to enter into an Agreed Order with the City finding: (1) that Miss. Code Ann. § 21-27-7 “has no

application to the assumption of operation and maintenance and the assets, liabilities and other

contractual obligations” of GUD by the City; (2) that Chancellor Patterson’s ruling in the annexation

case complied with all laws cited in Peden’s complaint and is dispositive of all issues raised in that

complaint; (3) that Section 100 of the Constitution and §§ 19-5-151 et seq. had no application to the

assumption of operation and maintenance and the assets, liabilities and other contractual obligations”

of GUD by the City; ( 4) that the City was in the process of obtaining preclearance under Section 5

of the Voting Rights Act of 1965 and upon receipt of preclearance, the City would “assume the

operation and maintenance of the facilities” and assume the “assets, liabilities, and other contractual

obligations” of GUD; and (5) that upon that assumption, the GUD and its Board would no longer

have any authority or liability and the GUD will be dissolved. At the hearing, Peden filed a motion

for continuance, which was denied.

¶6.    Because Peden refused to join in the agreed order, the court proceeded with the hearing on

the summary judgment motion. At the same time, the court also heard Britt’s Motion to Intervene.

The only testimony taken was that of Ray Vecchio, the author of the original bill which created the


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GUD. The chancellor also took judicial notice of the court file in the annexation proceedings. After

a brief recess, the chancellor issued a ruling from the bench in which the City’s summary judgment

motion was granted. In so ruling, the chancellor stated that the issues raised in Peden’s motion were

already decided by Chancellor Patterson’s ruling in the annexation case, with the exception of the

Voting Rights Act preclearance issue. However, the City was prevented from seeking preclearance

until all pending litigation was finalized in the trial courts, including this pending litigation. Therefore,

this issue was premature. Because summary judgment was appropriate, Britt’s motion for

intervention was ruled moot. Peden appeals the judgment entered on March 19, 2002, raising four

issues; however, in the interest of judicial efficiency, we shall combine two of those issues.

                                               ANALYSIS

        I.      WHETHER THE CHANCELLOR ERRED BY GRANTING
                SUMMARY JUDGMENT IN FAVOR OF THE CITY.

¶7.     In reviewing a trial court’s grant of summary judgment, this Court’s standard of review is

well settled:

        As to the review of a trial court's granting of a motion for summary judgment under
        Rule 56, we employ a de novo standard of review and the motion should be granted
        only when there is no genuine issue of material fact and the moving party is entitled
        to judgment as a matter of law. [Hartford Cas. Ins. Co. v. Halliburton Co., 826
        So.2d 1206, 1209 (¶ 6) (Miss. 2001)] (citations omitted). See also Brown v. Credit
        Ctr., Inc., 444 So.2d 358, 362-65 (Miss. 1983) and its progeny.

Richardson v. Sara Lee Corp., 847 So.2d 821, 823 (¶ 5) (Miss. 2003). Peden asserts that because

the City put on no witnesses, the City offered no evidence in this matter. This Court disagrees. The

City offered the trial court’s entire three-volume record in the annexation case as proof that the issues

contained in Peden’s complaint were properly before Chancellor Patterson. “The trial court may take

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judicial notice of available evidence in its own court files.” Gulf City Fisheries, Inc. v. Bobby

Kitchens, Inc., 518 So.2d 661, 664 (Miss. 1988) (citing Johnson v. Ford Motor Co., 354 F. Supp.

645, 647 (N.D. Miss. 1973); 29 Am. Jur. 2d Evidence § 57, at 89-90 (1967); 31 C.J.S. Evidence §

50(1), at 1018 & § 50(2), at 1022). See also Miss. R. Evid. 201.

¶8.    We note that Chancellor Patterson’s ruling in the annexation matter is not contained in the

record on appeal.

       Mississippi appellate courts may not consider information that is outside the record.
       Dew v. Langford, 666 So.2d 739, 746 (Miss. 1995). The trial court's rulings are
       presumed correct, and this presumption will prevail unless the record shows
       otherwise. Id.; Myers v. Miss. Farm Bureau Mut. Ins. Co., 749 So.2d 1173, 1174
       (Miss. Ct. App.1999).

Hardy v. Brock, 826 So.2d 71, 76 (¶ 26) (Miss. 2002). Thus, Peden has offered no evidence

sufficient to show that summary judgment was improper. We find that summary judgment was

proper where the chancellor found that a specially appointed chancellor had already found that the

annexation was reasonable and that Peden’s complaint contesting the annexation was barred by the

doctrine of res judicata. The only remaining issue concerned preclearance under the Voting Rights

Act, which was premature while this litigation was pending in the trial court. Vecchio’s testimony

was insufficient to defeat summary judgment. Vecchio offered his lay opinion as to what the City

had to do in order to successfully complete the annexation. This, too, was included in Chancellor

Patterson’s order concerning the annexation.

¶9.    Inasmuch as there are no disputed facts, the City met its burden, and summary judgment was

properly granted.




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       II.     WHETHER THE CHANCELLOR ERRED IN REFUSING TO
               GRANT A CONTINUANCE.

¶10.   Peden filed his Motion for Continuance on the morning of the hearing, citing that he was in

poor health and that he was no longer represented by counsel. We review the chancellor’s decision

under an abuse of discretion standard:

       The granting of a continuance is largely a matter within the sound discretion of the
       trial court and unless manifest injustice appears to have resulted from a denial, this
       Court should not reverse." Thomas v. Hilburn, 654 So.2d 898, 904 (Miss. 1995)
       (quoting Hatcher v. Fleeman, 617 So.2d 634, 639 (Miss. 1993)). This Court has
       further held that the trial court may exercise "reasonable latitude" in the setting and
       continuance of cases. Thomas, 654 So.2d at 904 (citing Watts v. Pennington, 598
       So.2d 1308, 1312 (Miss. 1992)).

Morgan v. Greenwaldt, 786 So.2d 1037, 1045 (¶ 26) (Miss. 2001).

¶11.   Peden argues that the matter should have been continued because he was in poor health and

taking medication. The record reflects that Peden left the courtroom at one point to “go and make

a phone call to [his] cardiologist.” However, the record does not reflect how long he was gone, but

does reflect that after the court called a recess, Peden was in the courtroom and actively participated

in the hearing before the trial court, including questioning his own witness.

¶12.   In furtherance of his argument, Peden asserts that he was “forced to go forward

unrepresented by counsel due to a sudden change of events that had occurred only 12 hours earlier

and, consequently, caused Peden’s attorney to now become his adversary and oppose Peden at the

hearing and act against Peden’s interest to the extent that his attorney actually cross-examined the

sole witness called by Peden.” The chancellor stated that Peden had been acting pro se since his

motion was filed June 29, 2000, through the hearing of March 19, 2002, with the exception of a brief



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appearance by Kihyet. Additionally, Kihyet represented the Board, of which Peden was a member,

and on behalf of the Board entered into the Agreed Order, which would resolve this matter on its

behalf.

¶13.      Based upon the foregoing, we cannot say that the chancellor abused her discretion in denying

the motion for continuance. Therefore, this issue is without merit.

          III.   WHETHER THE CHANCELLOR ERRED IN THE ENTRY OF
                 THE AGREED ORDER BETWEEN THE CITY AND THE BOARD.

¶14.      Peden asserts in this brief that the GUD was never granted leave to intervene and, therefore,

was never a party to this litigation. Peden’s reliance on Dillon v. Allen-Parker Co., 223 Miss. 359,

78 So. 2d 357 (1955), is misplaced. In Dillon, although the Mosseler Acceptance Company was not

named as a defendant, it was permitted to enter an appearance and file a motion to dismiss for want

of territorial jurisdiction. The Mosseler Acceptance Company asserted that it was doing business as

Allen-Parker Company, the named defendant. Because Dillon failed to raise an objection at the trial

court level, he was barred from doing so on appeal and the dismissal was affirmed. Dillon, 78 So.2d

at 367.

¶15.      In the case sub judice, Peden did not object in the trial court to the intervention of the other

commissioners. The remaining commissioners filed a Motion to Intervene and for Joinder of Parties

Pursuant to Miss. R. Civ. P. 18, 20 and 24. The Agreed Order entered by the trial court states that

the commissioners “intervene in this action for the purpose of the entry of this Order.” Peden failed

to object in the trial court, and the remaining commissioners were permitted to intervene pursuant

to the Agreed Order. Therefore, this issue is without merit.



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                                      CONCLUSION

¶16.   For the foregoing reasons, we affirm the summary judgment granted in favor of the City of

Gautier.

¶17.   AFFIRMED.

     SMITH, C.J., WALLER AND COBB, P.JJ., GRAVES AND DICKINSON, JJ.,
CONCUR.   EASLEY, J., CONCURS IN RESULT ONLY.         DIAZ, J., NOT
PARTICIPATING.




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