        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2013-CA-00271-COA

ERVIN KING                                                                APPELLANT

v.

SAM GALE AND JERUSALEM BAPTIST                                             APPELLEES
CHURCH

DATE OF JUDGMENT:                         11/20/2012
TRIAL JUDGE:                              HON. EDWARD C. FENWICK
COURT FROM WHICH APPEALED:                KEMPER COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                   ROBERT M. LOGAN JR.
ATTORNEY FOR APPELLEE:                    GEORGE HOWARD SPINKS
NATURE OF THE CASE:                       CIVIL - REAL PROPERTY
TRIAL COURT DISPOSITION:                  DISMISSED APPELLANT’S CLAIMS TO
                                          CONFIRM AND QUIET TITLE AND FOR
                                          AN EASEMENT BY IMPLICATION OR
                                          NECESSITY; DENIED APPELLANT’S
                                          CLAIM FOR A PRESCRIPTIVE EASEMENT
DISPOSITION:                              AFFIRMED - 06/16/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       MAXWELL, J., FOR THE COURT:

¶1.    Ervin King appeals the denial of his claims for either a prescriptive easement or

easement by necessity across Sam Gale’s and Jerusalem Baptist Church’s properties. The

evidentiary burden required to establish a prescriptive easement is high—clear and

convincing evidence. And the chancellor found King failed to clearly establish the most

basic principle for a prescriptive easement—use that is non-permissive. The chancellor also

found King did not prove that an easement by necessity across Gale’s property was, in fact,
necessary. And as to the church property, King could not meet the preliminary requirement

for an easement-by-necessity claim—that his and the church’s land was once commonly

owned.

¶2.    After review, we find the chancellor applied the law correctly and based his decision

on substantial record evidence. So we affirm.

                              Facts and Procedural History

       I.     King’s Property

¶3.    King has owned a landlocked piece of property in Kemper County since 1974.

Though King lives out of state, he visits the Mississippi property three to four times a year.

¶4.    According to King, to get to his property, most often he would turn off Highway 39

onto Jerusalem Church Road and head south. Jerusalem Church Road runs past Jerusalem

Baptist Church, which has a private drive and parking lot. Just south of the church parking

lot is Sam Gale’s property. And south of Gale’s property lies King’s. Gale’s property is

fenced. But sometimes, with Gale’s permission, King would open Gale’s gates and drive

across Gale’s property to get to his. Most times, however, King would park in the church

parking lot, hop the fence, and then walk across Gale’s property.

¶5.    At other times, King would not go through Gale’s property at all. Instead, he would

enter his property through land belonging to another neighbor, George Follet. For example,

when King harvested timber in 1985, he used Follett’s property to remove the timber.

¶6.    In 2004, King and Gale had a falling out. So King stopped going across Gale’s


                                              2
property and ever since has crossed Follett’s.

       II.    King’s Lawsuit

¶7.    In 2006, King sued Gale. King asked the Kemper County Chancery Court to establish

a boundary line between his and Gale’s properties. He also asked for an easement by

necessity or prescriptive easement across Gale’s land. Later, King amended his complaint,

adding Jerusalem Baptist Church as a defendant. King’s amended complaint sought an

easement across the church’s property too.

¶8.    Trial began in January 2012. At the close of King’s evidence, Gale and Jerusalem

Baptist Church filed a motion to dismiss. See M.R.C.P. 41(b) (permitting the defendant, in

a case tried without a jury, to file a motion to dismiss “on the ground that upon the facts and

the law the plaintiff has shown no right to relief”). The chancellor partially granted the

motion.

¶9.    The chancellor dismissed King’s claim to establish a boundary line, because he

“didn’t think the evidence was compelling enough.” See Buelow v. Glidewell, 757 So. 2d

216, 220 (¶12) (Miss. 2012) (directing that a Rule 41(b) motion “should be granted if the

plaintiff has failed to prove one or more essential elements of his claim or if the quality of

the proof offered is insufficient to sustain the plaintiff's burden of proof”). While King

presented an expert surveyor, the chancellor refused to admit some of the documents the

expert relied on—namely, a twenty-year-old preliminary sketch prepared by the surveyor’s

predecessor and a plat the surveyor created from his predecessor’s sketch.


                                              3
¶10.   The chancellor also dismissed King’s claim for an easement by necessity across both

Gale’s and Jerusalem Baptist Church’s properties. The chancellor found King had presented

no proof of necessity against Gale. King also offered no proof his land used to be part of a

common tract with the church property—an essential first step to establishing an easement

by necessity.

¶11.   Still, the chancellor overruled the motion to dismiss the prescriptive-easement claim.

Because he could not say King failed to establish this claim, the chancellor ordered trial to

continue on this remaining issue.

¶12.   In his order partially granting dismissal under Rule 41(b), the chancellor used the

phrase “without prejudice.” But because of the confusion that phrase created, the chancellor

later entered an order clarifying that, since his dismissal was based on an evaluation of the

merits of King’s evidence, the boundary-line claim and easement-by-necessity claims had

been actually dismissed with prejudice. According to the chancellor, the phrase “without

prejudice” merely had been used “to convey to the parties that the ruling did not prejudice

the rights of each defendant to proceed with the presentation of their respective case on the

only remaining issue before the court.” See M.R.C.P. 41(b) (expressly stating that a

defendant does not “waiv[e] his right to offer evidence in the event the motion is not

granted”).

¶13.   Trial continued in November 2012. At the close, the chancellor denied King’s claim

for a prescriptive easement across Gale’s and the church’s property, finding King failed to


                                             4
prove by clear and convincing evidence all six required elements of a prescriptive easement.

In particular, King had failed to show his use of Gale’s property had been hostile, as King

himself testified he had asked for Gale’s permission.

¶14.   With the November 2012 order dismissing the remaining claims, both this order and

the earlier Rule 41(b) order became final and appealable. And following the denial of his

motion for a new trial or alteration of the judgment, King timely appealed.

¶15.   On appeal, we employ a limited standard of review. We will not disturb the

chancellor’s findings unless the chancellor was manifestly wrong or clearly erroneous or the

chancellor applied the wrong legal standard. McNeil v. Hester, 753 So. 2d 1057, 1063 (¶21)

(Miss. 2000).

                                        Discussion

       I.       Surveyor’s Sketch and Plat

¶16.   King’s first argues the chancellor erred by excluding the preliminary sketch and plat

offered by his expert witness, licensed surveyor Henry D. Purvis III. Gale and Jerusalem

Baptist Church objected to the sketch because it had been drawn twenty years ago by another

surveyor, a man Purvis had apprenticed under. And they objected to Purvis’s plat because

Purvis had based the plat on the sketch, not his own survey.

¶17.   King claims these objections had more to do with the weight of this evidence, not its

admissibility. He asserts the sketch and plat were business records and, thus, should have

been admitted under the business-records exception to the hearsay rule. See M.R.E. 803(6).


                                             5
We agree with King that there was no hearsay issue with the sketch and plat. See Dillon v.

Greenbrier Digging Serv., Ltd., 919 So. 2d 172, 175-76 (¶¶8-10) (Miss. Ct. App. 2005)

(affirming the admission of an inspection report, which had been prepared by a different

inspector than the one offering it into evidence, because it met the requirements of the

business-record exception). And any evidentiary problems had more to do with the weight

and credibility, not the admissibility, of this evidence.

¶18.   That said, the chancellor clearly found the sketch and plat were insufficient to

establish a boundary line between the two properties. Both the admissibility and—in a bench

trial like this one—evidentiary weight of the sketch and plat fell within the sound discretion

of the chancellor. Terrain Enters., Inc. v. Mockbee, 654 So. 2d 1122, 1131 (Miss. 1995)

(broad discretion vested to trial judge regarding evidentiary questions); Murphy v. Murphy,

631 So. 2d 812, 815 (Miss. 1994) (deferential standard of review for chancellor, who sits as

the finder of fact). On appeal, our role is not to substitute our judgment for the chancellor’s

but instead to ask whether he abused his discretion. See Murphy, 631 So. 2d at 815. Further,

“for a case to be reversed on the admission or exclusion of evidence, it must result in

prejudice and harm or adversely affect a substantial right of a party.” Terrain Enters., 654

So. 2d at 1131.

¶19.   Had a trial judge excluded this evidence, preventing a jury from weighing it, such

exclusion might be reversible. But here the chancellor was the fact-finder. And even had

he admitted the sketch and plat, it is clear he found this evidence lacked sufficient weight to


                                               6
meet King’s burden to establish the boundary line. So we cannot say that his refusal to admit

this evidence was reversible error.

       II.    Prescriptive-Easement Claim

¶20.   King next argues he was entitled to a prescriptive easement across both Gale’s and

Jerusalem Baptist Church’s properties.1 We are mindful that the evidentiary burden to

establish a prescriptive easement is high. King had to show by clear and convincing evidence

he used the church’s private drive and a path across Gale’s property to get to his. See

Thornhill v. Caroline Hunt Trust Estate, 594 So. 2d 1150, 1152 (Miss. 1992). He also had

to prove his use was (1) under claim of ownership, (2) actual or hostile, (3) open, notorious,

and visible, (4) continuous and uninterrupted for a period of ten years, (5) exclusive, and (6)

peaceful. Id. at 1152-53 (citations omitted).

¶21.   As to Gale, the chancellor found no clear and convincing evidence of even a road

across Gale’s property—let alone clear and convincing evidence King had been using this

road openly, notoriously, visibly, adversely, under a claim of ownership, exclusively,

peacefully, and uninterruptedly for at least ten years. In Rawls v. Blakeney, 831 So. 2d 1205,



       1
         While Gale filed a brief in response to King’s, Jerusalem Baptist Church did not.
Traditionally, the “failure to file a brief [was] tantamount to a confession of error[.]” Gary
v. Gary, 84 So. 3d 836, 838-39 (¶11) (Miss. Ct. App. 2012). But “there is an exception when
this court can ‘state with conviction after reviewing the record and brief of the appealing
party that no error existed.’” Id. (quoting Conservator of Eldridge v. Sparkman, 813 So. 2d
753, 755 (¶7) (Miss. Ct. App. 2001)). Because our review of the record and King’s brief
leaves us with the conviction no error occurred, we do not take Jerusalem Baptist Church’s
failure to file a brief to be a confession of error.

                                                7
1209-10 (¶15) (Miss. 2002), this court affirmed the grant of prescriptive easement, in part,

because the plaintiff had met the under-a-claim-of-ownership requirement by maintaining

the road across her neighbor’s property and keeping it from getting overgrown. Here, had

there ever been a road, it is clear King never did anything to maintain it or otherwise claim

ownership of an easement over the road. So we agree King’s claim for a prescriptive

easement to drive across Gale’s property fails.

¶22.   At most, the evidence showed King had used Gale’s property to walk across by foot.

See Fratesi v. City of Indianola, 972 So. 2d 38, 43 (¶14) (Miss. 2008) (noting that the scope

of a prescriptive easement is limited to the adverse use). But King testified he had done so

with Gale’s permission. “[T]he rule is well settled that use by express or implied permission

or license, no matter how long continued, cannot ripen into an easement by prescription[.]”

Patterson v. Harris, 239 Miss. 774, 785, 125 So. 2d 545, 550 (1960). Based on King’s own

testimony, the chancellor found King’s use of Gale’s property was permissive and thus could

not ripen into a prescriptive easement. Because we will not disturb a chancellor’s finding of

fact when it is supported by substantial evidence from the record, Floyd v. Floyd, 949 So. 2d

26, 28 (¶5) (Miss. 2007), we find King’s claim for a prescriptive easement to walk across

Gale’s property also fails.

¶23.   Against Jerusalem Baptist Church, King likewise failed to prove by clear and

convincing evidence his use of the church’s driveway and parking lot was under a claim of

ownership and non-permissive (i.e., hostile). At most, King drove or parked on the driveway


                                             8
four times a year. Given how the church parking lot was used, this was certainly not enough

to assert a claim of ownership of an easement. As one of the church’s deacons testified, King

was welcome to use their driveway and parking lot “just like anyone else.” Because King

took advantage of the church’s generosity, he cannot claim a prescriptive easement. See

Patterson, 239 Miss. at 785-86, 125 So. 2d at 550 (“It is only when the use of the path or

road is clearly adverse to the owner of the land, and not an enjoyment of neighborly courtesy,

that the landowner is called upon ‘to go to law’ to protect his rights.”).

       III.   Easement-by-Necessity Claim

¶24.   Alternatively, King claims he was entitled to an easement by necessity.

¶25.   An “easement by necessity” and an “implied easement” are the same. Delancey v.

Mallette, 912 So. 2d 483, 488 (¶13) (Miss. Ct. App. 2005) (citations omitted). “An implied

easement must be continuous, apparent, permanent, and necessary.” Id. at (¶14) (citing

Hutcheson v. Sumrall, 220 Miss. 834, 840, 72 So. 2d 225, 227 (1954)). “Apparent” in this

context “does not necessarily mean ‘visible,’ but includes permanent artificial structures.”

Hutcheson, 220 Miss. at 840, 72 So. 2d at 227. So “use is apparent when it may be

discovered upon reasonable inspection.” Id.

¶26.   While the chancellor provisionally dismissed2 King’s claim of an easement by

necessity months before he ruled on the prescriptive-easement claim, his findings from the


       2
         Under Mississippi Rule of Civil Procedure 54(b), an order that disposes of less than
all claims is not final, unless certified as such, and thus “is subject to revision at any time
before the entry of [a] judgment adjudicating all claims[.]”

                                              9
prescriptive-easement hearing reinforce the earlier conclusion that King failed to establish

an easement by necessity across Gale’s property. Again, the chancellor found scant evidence

of the alleged dirt road used in the decades after King’s property was severed and became

landlocked. So there was no “apparent” easement. And even had there once been a road, it

appeared to have been grown over, meaning there was also no “continuous” and “permanent”

easement. Finally, based on the chancellor’s findings, there was no “necessary” easement.

In other words, it is not necessary for King to cross Gale’s property to enjoy his property.

King testified he quit crossing Gale’s property after their dispute in 2004, opting instead to

cross Follett’s property to get to his. But even before this, King sometimes circumvented

Gale’s property, choosing to cross Follett’s property instead. Specifically, King went over

Follett’s and another neighbor’s land when removing timber back in 1985.

¶27.   King also failed to establish an easement by necessity across Jerusalem Baptist

Church’s property. “[A]s an initial first step,” King had to “show that the tract that is

blocked in its access to a public road was once joined with the tract over which access is

allegedly necessary.” Delancey, 912 So. 2d at 488 (¶14) (citing Dieck v. Landry, 796 So. 2d

1004, 1008 (¶13) (Miss. 2001)). And King did not prove this first step. While King’s expert

testified the two tracts were in the same section, he did not testify they were commonly

owned. Nor do the title documents support King’s claim of common ownership. Rather, one

of the church’s deacons testified the church obtained its tract of land decades before King’s

parcel became severed and landlocked. See id.


                                             10
¶28.   For these reasons, we affirm the chancellor’s order dismissing King’s claim for an

easement by necessity.

¶29.   In light of Judge James’s separate opinion, we explain why our decision to affirm is

necessarily with prejudice. As the chancellor acknowledged in his amended Rule 41(b)

order, his use of the phrase “without prejudice” was a mistake. It was not meant to convey

that he was dismissing King’s easement-by-necessity claim on the pleadings, without delving

into the evidence. See M.R.C.P. 12(b)(6). Instead, as the chancellor expressed in his

amended order, his Rule 41(b) ruling was an adjudication on the merits, entered after King

“completed the presentation of his evidence.” See M.R.C.P. 41(b).

¶30.   Apparently King was satisfied by this explanation. Nowhere in his brief does he ask

that if we affirm his already-denied easement-by-necessity claim that we do so “without

prejudice.” And King is not seeking an opportunity to refile his easement-by-necessity claim.

Nor could he be afforded a do over. Because the chancellor’s order was a final ruling on the

merits, the doctrine of res judicata bars him from relitigating his easement-by-necessity

claim. See Harrison v. Chandler-Sampson Ins., 891 So. 2d 224, 232 (¶23) (Miss. 2005).

¶31. THE JUDGMENT OF THE CHANCERY COURT OF KEMPER COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

     LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, CARLTON AND FAIR, JJ.,
CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT
SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART AND
DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. IRVING, P.J., NOT
PARTICIPATING.


                                             11
       JAMES, J., CONCURRING IN PART AND DISSENTING IN PART:

¶32.   I agree with the majority opinion that the circuit did not err in denying King’s claim

to a prescriptive easement. However, excluding the survey plat from evidence and changing

the dismissal of the easement by necessity from a dismissal without prejudice to a dismissal

with prejudice resulted in an abuse of discretion. Therefore, I respectfully dissent.

       Denial of Survey Plat into Evidence

¶33.   King argues that the sketch of the survey plat should have been admitted into evidence

because it was a part of regularly kept business records, an exception to the hearsay rule.

King contends that because Henry D. Purvis III was qualified as an expert witness by the trial

court and the successor to the surveying business, the plat should have been introduced by

his testimony. According to King, Purvis’s testimony about the sketch concerned a regularly

kept business record, confirming its accuracy.

¶34.   An appellate court reviews “a trial court’s exclusion of evidence under an abuse-of-

discretion standard, and where [it] find[s] a trial court has erred, [it] will not reverse unless

the error adversely affects a party’s substantial right.” Heflin v. Merrill, 154 So. 3d 857, 860

(¶9) (Miss. 2014). “Relevancy and admissibility of evidence are largely within the discretion

of the trial court, and the trial court’s decision will only be reversed where that discretion has

been abused.” In re Dissolution of Marriage of Spriggs, 149 So. 3d 517, 526 (¶39) (Miss.

Ct. App. 2014) (citing Terrain Enters. Inc. v. Mockbee, 654 So. 2d 112, 1128 (Miss. 1995)).

¶35.   Also, we have previously stated:


                                               12
       Mississippi Rule of Evidence 801(c) defines hearsay as[] “a statement, other
       than one made by the declarant while testifying at the trial or hearing, offered
       in evidence to prove the truth of the matter asserted.” The threshold question
       when addressing a hearsay issue is whether the statement is actually hearsay.

Blakeney v. State, 39 So. 3d 1001, 1010 (¶26) (Miss. Ct. App. 2010). Purvis referred to the

survey plat sketch that was prepared by Purvis’s predecessor before his death, making the

plat hearsay. King attempted to use the plat as evidence of the existence of the boundary

lines between his and Gale’s properties. “Hearsay evidence is inadmissible unless it falls

within one of the known exceptions.” Miss. Gaming Comm’n v. Freeman, 747 So. 2d 231,

242 (¶42) (Miss. 1999).

¶36.   King claims the sketch falls under the business-records exception. In order to

establish the foundational requirements for admitting evidence under the business-record

exception, the following elements are required:

       1) the statement is in written or recorded form; 2) the record concerns acts,
       events, conditions, opinions or diagnoses; 3) the record was made at or near
       the time of the matter recorded; 4) the source of the information had personal
       knowledge of the matter; 5) the record was kept in the course of regular
       business activity; and 6) it was the regular practice of the business activity to
       make the record.

Dillon v. Greenbriar Digging Serv. Ltd., 919 So. 2d 172, 175 (¶8) (Miss. Ct. App. 2005)

(citing Flowers v. State, 773 So. 2d 309, 322 (¶72) (Miss. 2000)). Although the plat satisfies

several requirements, it does not fulfill all of them. When testifying, Purvis admitted that

although he was working with the surveyor who was the author of the sketch, he was

“working on the rod” and was an apprentice at the time the sketch was made. It is unclear


                                              13
whether or not Purvis had personal knowledge of what was contained in the sketch. The trial

court did not abuse its discretion when it disallowed the admission of the survey into

evidence and dismissed the easement by necessity without prejudice. However, to disallow

the survey and dismiss the easement with prejudice results in an abuse of discretion. It is

clear that it was within the chancellor’s discretion to allow the admission of the evidence.

The dismissal with prejudice resulted in harm or prejudice to King, and it adversely affected

his substantial rights. This constitutes reversible error. See Terrain Enters., 654 So. 2d at

1131.

        Easement by Necessity

¶37.    King argues that, other than Gale’s property, there were no practical ways to gain

access to the public road. King contends that the other proposed ways to gain access to a

public road were impractical because they were heavily wooded and had large ditches.

¶38.    “A claimant seeking an easement by necessity has the burden of proof and must

establish that he is entitled to a right of way across another’s land.” Fike v. Shelton, 860 So.

2d 1227, 1230 (¶11) (Miss. Ct. App. 2003) (citing Broadhead v. Terpening, 611 So. 2d 949,

954 (Miss. 1992)). King “must demonstrate strict necessity and is required to prove there is

no other means of access.” Id. An easement by necessity may be established by proving

reasonable necessity instead of absolute necessity. Evanna Plantation Inc. v. Thomas, 999

So. 2d 442, 446 (¶12) (Miss. Ct. App. 2009). In order to determine what is reasonably

necessary, “the operative consideration is ‘whether an alternative would involve


                                              14
disproportionate expense and inconvenience.’” Id.

¶39.   Since 2003, King had not used the easement, yet King continued to visit the property

by crossing another neighbor’s property. We have previously stated that “an easement by

necessity will not be awarded when the only evidence presented was that an alternative route

would be longer and less convenient. Where one seeks to obtain a ‘way of access’ easement

by necessity[,] but submits no evidence as to the allegedly higher costs of an alternative

route, a trial court will not err in declining to award an easement.” Harkness v. Butterworth

Hunting Club Inc., 58 So. 3d 703, 708 (¶14) (Miss. Ct. App. 2011). King does not offer

sufficient evidence of any additional costs or impractical alternative routes. Therefore, I find

that the trial court did not err in refusing to establish an easement by necessity.

¶40.   However, the easement by necessity also failed because the survey was not admitted

into evidence and no alternative route was shown along with the expenses for creating the

route. The chancellor abused his discretion in attempting to dismiss the easement by

necessity with prejudice after he initially dismissed the easement by necessity without

prejudice. As persuasive authority, in the case of Hutchinson v. City of Madison, 987 N.E.2d

539 (Ind. Ct. App. 2013), the court allowed a dismissal without prejudice to allow the City

to include an appraisal of the real property in order to refile its condemnation proceeding.

Hutchinson argued that the counterclaim should be dismissed with prejudice because the

hearing was an adjudication on the merits. The judge stated, “We are not convinced that the

failure to comply with Indiana Code Section 32-24-1-3(c) forever bars the state from


                                              15
acquiring property.” Id. at 542. Chancellors have broad discretion to fashion remedies to

avoid an inequitable dilemma. Borne v. Estate of Carraway, 118 So. 3d 571, 592 (¶65)

(Miss. 2013). In Mississippi State Highway v. Morgan, 248 Miss. 631, 638, 160 So. 2d 77,

80 (1964), the Court held that the highway commission abused its discretion in seeking to

condemn an easement, and the judgment of the circuit court was affirmed without prejudice

to any other rights or remedies, if any, which might be asserted by the parties. It should be

noted, however, that the subject of this case is a condemnation proceeding by the State. I do

not see why the same logic should not be applied to individuals in cases where injustice

would result. If King is not allowed to refile his complaint to pursue his petition for an

easement by necessity, his property will remain landlocked.

¶41.   In the court’s order dated June 29, 2012, the court entered its Order on Plaintiff’s

Motion to Dismiss and for Withdrawal of Motion for New Trial as to the easement by

necessity. In this order, the court also set the hearing on the prescriptive easement for

November 5, 2012. In the court’s order, the court changed its order from a dismissal of the

easement by necessity without prejudice to a dismissal with prejudice, which would leave

King without a remedy. Also, I note that under Mississippi Rule of Civil Procedure 52(b)

a judgment must be amended within ten days of the Mississippi Rule of Civil Procedure

41(b) dismissal. The order of dismissal without prejudice was signed on January 30, 2012,

and filed on February 1, 2012. The judge labeled the change as a clarification, but it was in




                                             16
the nature of an amendment.3 The amendment was done outside of the ten-day period as

required by the rule.

¶42.   The majority opinion states that the petition should be dismissed without prejudice.

However, as previously stated, the judgment must be amended within ten days pursuant to

Rule 52(b). Also, our courts have established precedence in affirming judgments without

prejudice. See Pierce v. State, 811 So. 2d 395, 397 (¶7) (Miss. 2001).

¶43.   Also, it is noted that in King’s motion to dismiss and for withdrawal of the motion for

a new trial, King stated:

       Plaintiff would show that it is his desire to withdraw his motion for new trial
       and allow the Court’s ruling of January 30, 2012[,] to stand, provided all other
       issues in the Plaintiff’s complaint and amended complaints are dismissed
       without prejudice.

King relied on the judge’s order that he was dismissing the easement by necessity without

prejudice. The majority opinion states that Rule 54(b) allows an order to be revised at any

time before the judgment adjudicating all of the claims. This is true for a revision. However,

the trial court dismissal with prejudice was a substantial amendment that prejudiced the

Appellant.4


       3
         “An amended judgment refers to a trial court correcting a substantive error in an
original judgment. . . . [A]n amended judgment should be issued within 10 days of the
original judgment.” http://definitions.uslegal.com/a/amended-judgment/ (citing Fed. R. Civ.
P. 59(e)).

       4
        “Revise - a reexamination or careful review for conclusion or improvement. A
revision can occur only if it will not materially prejudice the accused.” Black’s Law
Dictionary 1434 (9th ed. 2009).

                                             17
¶44.   As a result, I would reverse the dismissal of the easement by necessity with prejudice,

and affirm the dismissal of the easement by necessity without prejudice to King’s right to file

a petition for an easement by necessity.




                                              18
