author: DICKINSON, Justice,

text:
    James Bradley BROWN v. STATE of Mississippi.
    No. 2006-KA-00837-SCT.
    Supreme Court of Mississippi.
    Aug. 2, 2007.
    Rehearing Denied Oet. 18, 2007.

      Virginia Lynn Watkins, William R. La-barre, Hollandale, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before WALLER, P.J, DICKINSON and RANDOLPH, JJ.
   DICKINSON, Justice,

for the Court.

¶ 1. In this deliberate-design murder case, the Defendant claims the trial court committed reversible error by improperly admitting evidence and prohibiting questioning regarding a witness’s informant status. The defendant also claims that the evidence was legally insufficient to support his conviction. Finding no reversible error, we affirm the circuit court’s disposition.

STATEMENT OF FACTS AND PROCEEDINGS

¶ 2. In the early morning hours of July 25, 2004, Jackson, Mississippi, firefighters were responding to a 911 report of a business fire on Terry Road, when they were directed by an unidentified motorist to look behind the Unique Hair Salon. There, they found an automobile engulfed in flames and the burning body of a man later identified as Edward Lee Nichols (“Nichols”). An autopsy revealed that Nichols had died of blunt force trauma to the back of the head.

¶ 3. While investigating the crime scene, Detectives Amos Clinton and Eric Smith noticed a pathway through the woods to the back of a residence on Shiloh Drive, where they found a gas can and partially burned rags. They also noted that the pathway continued from the residence to the Rebelwood Apartments.

¶ 4. The police were without suspects until Shanta Payne came forward and identified James Bradley Brown as the killer. She stated that around 4:30 a.m. on July 25, Brown knocked on her Rebelwood apartment door and told her that he had killed someone. Payne also identified another resident of Rebelwood Apartments, Rasheeda Newton, as a potential witness. The police followed up by obtaining two statements from Newton, one in August 2004 and another in January 2005. Newton would later testify at trial that, although her August statement was factually accurate, she purposely failed to inform police that Brown had confessed to her he killed Nichols because, at the time, she was in love with Brown. Newton testified that, in an effort to clear her conscience, she returned to the police station two weeks before Brown’s trial and signed another statement specifying that Brown had knocked on her door around 4:30 a.m. on July 25, 2004. Newton stated that Brown was “acting all crazy,” and that he had said he “got into it” with Edward Nichols,- and he had told her “the boy was dead.” She also testified that when she told Brown she did not believe he killed Nichols, he left her apartment and returned with his sister, Shannon Brown, who “told [Newton] that [Brown] wasn’t lying; that it was all true.”

¶ 5. During the investigation, police traced the 911 call to a cell phone registered to James Butler, who told police he was the driver of the car that intercepted and directed firefighters to the blaze behind the Unique Hair Salon. Butler testified he saw James Brown running toward the Rebelwood Apartments between 4:00 and 4:30 a.m. on the morning in question, and that the day after the murder, Brown confessed to him that he “took about a grand off [Nichols]” and hit him. Butler further testified that Brown told him he had burned the car to get rid of his fingerprints at the crime scene.

¶ 6. The trial court allowed the State to introduce into evidence a letter Butler testified Brown wrote him while the two were in jail together. According to Butler, the letter was delivered to him by his cellmate, who was a prison trustee assigned to work in the barber shop. Butler claimed that, while Brown was getting a haircut, he asked the trustee to deliver the letter to his cellmate. Butler further testified that, sometime after he received the letter, Brown acknowledged to him that he authored the letter, which addressed Butler’s testimony about the murder.

¶7. The defense called Markia Felder, who testified that Brown was with her on the night in question. Joseph Nix, a passenger in James Butler’s car on July 25, also testified for the defense and disputed Butler’s identification of Brown as the person running from the crime scene to Reb-elwood Apartments. Brown’s sister, Shannon Brown, testified that she never went to Rasheeda Newton’s apartment the night of July 25. Brown testified on his own behalf, after which the defense rested.

¶ 8. The jury found Brown guilty of deliberate-design murder, and the trial judge sentenced him to life imprisonment. Following post-trial motions, Brown timely perfected this appeal.

ANALYSIS

¶ 9. Brown presents for our review the following assignments of error: (1) the trial court erred in its denial of full impeachment of James Butler; (2) the trial court erred in admitting a letter purportedly from James Brown; (3) the trial court erred in admitting testimony of a statement allegedly made by James Brown; (4) the trial court abused its discretion in admitting a gas tank found near the scene; and (5) the evidence was insufficient to support the jury verdict.

¶ 10. When reviewing evidentia-ry rulings made by the trial court, this Court employs an abuse of discretion standard. Peterson v. State, 671 So.2d 647, 655 (Miss.1996) (citing Baine v. State, 606 So.2d 1076, 1078 (Miss.1992); Wade v. State, 583 So.2d 965, 967 (Miss.1991)). This Court must first determine if the proper legal standards were applied. Id. at 655-56 (citing Baine, 606 So.2d at 1078). Where error involves the admission or exclusion of evidence, this Court “will not reverse unless the error adversely affects a substantial right of a party.” Ladnier v. State, 878 So.2d 926, 933 (Miss.2004) (quoting Whitten v. Cox, 799 So.2d 1, 13 (Miss.2000)).

Evidence of a plea agreement

¶ 11. Prior to addressing the issues presented on appeal, we address Brown’s assertion .that evidence of a plea deal Butler received after the conclusion of Brown’s trial should be considered at this stage of review. However, this evidence will not be considered on appeal per our Order dated January 17, 2007, in which this Court refused to allow the appellant’s motion to supplement the record with that evidence. Brown chose to ignore such ruling and referenced this improper material throughout his brief. The State has moved to strike that information.

¶ 12. “This Court will not consider matters that do not appear in the record, and it must confine its review to what appears in the record.” Pulphus v. State, 782 So.2d 1220, 1224 (Miss.2001) (citing Robinson v. State, 662 So.2d 1100, 1104 (Miss.1995)). This Court has stated, “we have on many occasions held that we must decide each case by the facts shown in the record, not assertions in the brief, however sincere counsel may be in those assertions.” Robinson, 662 So.2d at 1104. Asserted error grounded in facts outside the record may not be presented on direct appeal, but is more appropriately presented in a petition for post-conviction relief. We grant the State’s motion to strike, and we must disregard all improperly-included evidence in making today’s findings.

Denial of full impeachment

¶ 13. During discovery, Brown learned that Butler was an informant for the Hinds County Sheriffs Department. In an effort to show Butler’s bias toward law enforcement, Brown attempted to introduce evidence of Butler’s relationship as an informant. The trial judge refused to allow the evidence, holding that the Sheriffs Department was totally different from the Jackson Police and Fire Departments, and that Butler’s relationship with the Sheriffs Department did not affect his credibility as a witness. On appeal, Brown asserts that he was denied his right to fully impeach Butler on his relationship with the Hinds County Sheriffs Department.

¶ 14. Brown cites Banks v. Dretke, 540 U.S. 668, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004), for the proposition that his conviction should be remanded because the jurors were unaware that Butler was a confidential informant for the Hinds County Sheriffs Department. However, that case is hardly instructive here. In Banks, the State actively concealed the witness’s paid informant status and allowed that witness to testify untruthfully on the stand without correction. The United States Supreme Court held that where the State conceals impeaching material in its possession, it is incumbent on the State to set the record straight. Id. at 675-76, 124 S.Ct. 1256. Here, no impeaching material was concealed — the defense was fully aware that Butler had cooperated with the Hinds County Sheriffs Department well in advance of trial. Moreover, we find James Butler’s status as a confidential informant to the Hinds County Sheriffs Department irrelevant to this case. Such information does not have “the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R.E. 401 (emphasis added). Because the Hinds County Sheriffs Department had no involvement with the case before us, Brown’s assertion is unfounded. Rule 402 of the Rules of Evidence specifically provides that “[e]vi-dence which is not relevant is not admissible.” See Johnson v. Fargo, 604 So.2d 306, 309 (Miss.1992) (“A trial judge has the discretion to exclude irrelevant evidence”). Accordingly, the trial court did not abuse its discretion by excluding evidence of James Butler’s relationship with the Hinds County Sheriffs Department, as it was not the investigating law enforcement agency in Brown’s case.

Admission of letter without authentication

¶ 15. Brown asserts that the trial court committed error in admitting the letter Brown allegedly wrote to Butler while in prison. Specifically, Brown claims that the letter presented at trial was not properly authenticated, was not the original, and that a chain of custody between Brown and Butler had not been established.

¶ 16. Rule 901 of the Mississippi Rules of Evidence governs the authentication of documents in our trial courts. Specifically, subsection (a) of that Rule states that “the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” The Rule goes on to explain that a written document may be authenticated by a lay witness familiar with handwriting not acquired for purposes of litigation, or by an expert by comparing specimens that have been previously authenticated. See M.R.E. 901(b)(2), (3). Rule 901 further provides that testimony of a witness with knowledge is sufficient authentication that a matter is what it is claimed to be. M.R.E. 901(b)(1).

¶ 17. Butler testified that, after the trustee delivered the letter from Brown to him, Brown acknowledged that he wrote the letter. Accordingly, the letter was sufficiently authenticated under Rule 901(b)(1). The trial court did not err in overruling the defendant’s objection to introduction of the letter on the basis of authenticity.

¶ 18. Under Mississippi Rule of Evidence 1003, a duplicate is admissible to the same extent as the original unless a genuine question is raised as to the authenticity of the original, or if in the circumstances it would be unfair to admit the duplicate in lieu of the original. Butler stated on the stand that the letter presented in court was an exact duplicate of the original, which was in his attorney’s possession during trial. The defense offered no reason why it would be unfair to admit the duplicate in lieu of the original, and the letter was sufficiently authenticated as noted above. Therefore, the trial court properly admitted the letter.

¶ 19. Brown also argued that a chain of custody was never established to connect him with the letter. “Whether a chain of custody has been properly established is left to the discretion of the trial court.” Brown v. State, 682 So.2d 340, 350 (Miss.1996) (citing Nalls v. State, 651 So.2d 1074 (Miss.1995); Wells v. State, 604 So.2d 271 (Miss.1992)). Although the trial judge did not explicitly overrule the chain of custody- objection made by the defense, the judge did acknowledge that in light of the defendant’s admission that he wrote the letter and because Butler testified that the trustee specifically noted that the letter came from Brown, the letter was admissible. We agree with the trial court’s disposition regarding chain of custody and find that the trial court’s discretion was not abused in accepting witness testimony that the letter was what Butler claimed it to be. Thus, this assignment of error is without merit.

Admission of statement made to police

¶20. After being arrested and advised of his Miranda rights, Brown invoked his right to remain silent. However, according to Detective Clinton’s testimony, while the detectives were handling procedural matters related to his arrest, Brown spontaneously asked Detectives Clinton and Smith how they could help him “if he was the individual that was responsible for Edward Nichols’s death.” Brown’s attorney objected to the introduction of that statement on the basis that it would be an indirect comment on the defendant’s right to remain silent. In a precautionary move, the trial judge required the State to proffer Detective Clinton’s testimony outside of the jury’s presence to ensure the defendant’s rights were protected. In declaring the testimony probative of the defendant’s guilty conscience, the trial judge warned the parties not to mention that the defendant “exercised his right to remain silent or even any partial invocation of his Miranda rights.” On appeal, Brown asserts that the testimony of Detective Clinton makes clear that there was no further statement by Brown, otherwise, the jury would have heard testimony of it. Therefore, Brown asserts the detective’s testimony was a “back door effort to place before the jury the fact that Mr. Brown remained silent.”

¶ 21. In a case similar to this one, during the booking process on a kidnaping charge, the defendant stated, “I want to know what happens to little girl snatchers in this town.” Hersick v. State, 904 So.2d 116, 126-27 (Miss.2004). This Court found no abuse of discretion where the trial court ruled the statement was spontaneous and admissible. Indeed, this Court has determined that volunteered and unprompted statements are admissible, so long as they are not the result of questioning by officers after a defendant has exercised the right to remain silent. See Stallworth v. State, 797 So.2d 905, 912 (Miss.2001). We find no abuse of discretion in the trial court’s decision to allow Detective Clinton to testify to Brown’s spontaneous, un-coerced statement, and we applaud the trial judge’s efforts to assure that the State made no reference to, or comment about, Brown’s right to remain silent. For the reasons stated, this assignment of error is without merit.

Admission of gas tank found at residence

¶ 22. Brown next asserts that the trial court erred by admitting into evidence the gas tank found in the vicinity of the crime scene, as it was not relevant. Additionally, Brown claims that the trial court failed to weigh the gas tank’s probative value against the danger of unfair prejudice.

¶ 23. With few exceptions, this Court has enforced the rule that provides, where no objection is made at trial to an asserted error, a party is procedurally barred from asserting the error on appeal. Fleming v. State, 604 So.2d 280, 294 (Miss.1992) (holding the absence of timely objection causes the defendant to be procedurally barred from asserting the alleged error on appeal). The defense properly preserved, by motion in limine and objection during trial, its protest to the introduction of the gas tank based on the fact that it was evidence of arson, an uncharged crime. The trial court overruled the motion in limine and Brown’s continuing objection on the basis that the gas tank was probative of the defendant’s concealment of the murder. Before admitting the gas tank into evidence, the judge asked the defense for any further objections. The defense then objected based on chain of custody, which the trial judge overruled. The defense never objected to introduction of the gas tank on the basis that the trial court did not perform a Rule 403 balancing inquiry.

¶ 24. It is incumbent on the party asserting error, to make a contemporaneous objection and obtain a ruling in order to preserve the objection. Billiot v. State, 454 So.2d 445, 456 (Miss.1984), cert. denied, 469 U.S. 1230, 105 S.Ct. 1232, 84 L.Ed.2d 369, reh. denied, 470 U.S. 1089, 105 S.Ct. 1858, 85 L.Ed.2d 154 (1985). Thus, the defense is now procedurally barred from arguing on appeal that the trial court committed reversible error by not performing a Rule 403 balancing analysis.

Sufficiency of the evidence

¶ 25. Brown claims the evidence presented by the State was insufficient to support a conviction. This Court’s standard of review for sufficiency of the evidence has been established as follows:

Should the facts and inferences considered in a challenge to the sufficiency of the evidence ‘point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,’ the proper remedy is for the appellate court to reverse and render. Edwards v. State, 469 So.2d 68, 70 (Miss.1985) (citing May v. State, 460 So.2d 778, 781 (Miss.1984)); see also Dycus v. State, 875 So.2d 140, 164 (Miss.2004). However, if a review of the evidence reveals that it is of such quality and weight that, ‘having in mind the beyond .a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,’ the evidence will be deemed to have been sufficient. Edwards, 469 So.2d at 70.

Bush v. State, 895 So.2d 836, 843 (Miss.2005).

¶ 26. When reviewing a case for sufficiency of the evidence, the relevant question is whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 843 (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 27. Brown was indicted and convicted under Miss.Code- Ann. Section 97-3-19(l)(a) (Rev.2006). The statutory definition of deliberate-design murder is as follows: “The killing of a human being without the authority of law by any means or in any manner shall be murder ... when done with deliberate design to effect the death of the person killed, or of any human being.” Miss.Code Ann. § 97-3-19(l)(a) (Rev 2006). This Court has enumerated the elements the prosecution is required to prove beyond a reasonable doubt as: (1) the defendant killed the victim; (2) without authority of law; and (3) with deliberate design to effect his death. Dilworth v. State, 909 So.2d 731, 736 (Miss.2005). Brown asserts that the State failed to adduce evidence sufficient to satisfy the deliberate-design element as required by law.

¶ 28. “[Deliberate design to kill a person may be formed very quickly, and perhaps only moments before the act of consummating the intent.” Gossett v. State, 660 So.2d 1285, 1293 (Miss.1995) (quoting Windham v. State, 520 So.2d 123, 127 (Miss.1987)). This Court has acknowledged that’deliberate-design connotes an intent to kill and may be inferred through the intentional use of any instrument which, based on its manner of use, is calculated to produce death or serious bodily injury. Wilson v. State, 936 So.2d 357, 364 (Miss.2006) (internal citations omitted). In Wilson, this Court found sufficient evidence to convict the defendant of deliberate-design murder where the victim had been beaten and repeatedly stabbed by the defendant. This Court also has recognized that shooting a victim with a gun constituted deliberate-design murder. See Jones v. State, 710 So.2d 870 (Miss.1998); Hawthorne v. State, 835 So.2d 14 (Miss.2003).

¶ 29. Nichols’s cause of death was officially noted as “blunt force trauma” to the head. Dr. Steven Hayne, a forensic pathologist, testified that, based on the autopsy and his report prepared incident thereto, Nichols sustained multiple blows to the head, chest, abdomen and back. Dr. Hayne further testified that the amount of force necessary to produce the victim’s injuries was unlikely to have been inflicted without an object and most likely was made by contact with a blunt object. Indeed, James Butler alleged that Brown told him the day after the murder that he had hit Nichols. Butler testified, “He never told me what he hit him with or what did he do or did he shoot him or anything. He just said he had hit him.” Rasheeda Newton likewise testified that Brown told her he had “got[ten] into it” with Nichols and that the boy was dead. Thus, based on the testimony and evidence presented, we find that the State produced enough evidence for a jury to find a “deliberate design” beyond a reasonable doubt.

¶ 30. As to the remaining elements, the prosecution put forth corroborating testimony of three witnesses that Brown had confessed to killing Edward Lee Nichols. Additionally, the State presented a witness who identified Brown running from the direction of the crime scene toward Rebel-wood Apartments and who later received correspondence from Brown regarding the crime. Moreover, the State introduced the spontaneous statement of Brown to Detectives Clinton and Smith regarding whether they could do anything for him if he killed the victim. A competent jury could have determined that, on the basis of all the evidence, James Bradley Brown was the person responsible for Nichols’s death. Therefore, this issue is without merit.

CONCLUSION

¶ 31. For the reasons stated herein, we find that the State proved all the elements of deliberate-design murder by legally sufficient evidence. Moreover, we find that the trial court did not abuse its discretion in the admission and exclusion of evidence in this case. Therefore, finding no reversible error, we affirm James Bradley Brown’s murder conviction and sentence.

¶ 32. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, GRAVES, RANDOLPH AND LAMAR, JJ„ CONCUR. DIAZ, P.J., CONCURS IN RESULT ONLY.

      . For clarification of the layout of the area, Detective Clinton testified that there is "a beauty shop, which is on Terry Road. Directly behind the beauty shop is Shiloh Drive, and directly behind Shiloh Drive is Rebelwood Apartments. It is pretty much at a straight angle. I mean they’re directly behind one another."

      . Although the record does not explicitly state why Butler was in jail at this time, his incarceration is unrelated to the events at issue in this case.


source: Caselaw Access Project

author: RANDOLPH, Justice, DIAZ, Presiding Justice, GRAVES, Justice,

license: Public Domain

text:
    CENTURY 21 MASELLE AND ASSOCIATES, INC., and Cindy Smith v. Tony L. SMITH and Linda N. Smith.
    Nos. 2005-IA-01696-SCT, 2005-CA-01814.
    Supreme Court of Mississippi.
    Aug. 16, 2007.
    Rehearing Denied Oct. 18, 2007.

      Joe S. Deaton, III, Jackson, Mac Haynes, Ellsville, David Christopher Daniel, attorneys for appellants.
    Donald W. Boykin, Jackson, attorney for appellees.
   RANDOLPH, Justice,

for the Court.

¶ 1. Once again, this Court is called upon to navigate the waters of arbitration. The Court is nonplused by the continuous procession of disputes in an area of law which by now should be well settled, as initial passage of a Federal Arbitration Act (“FAA”) occurred more than eight decades ago. It is hoped that today’s decision will clarify what some claim to be opaque waters by providing additional guidance to the courts and those who appear therein. But first, we encourage all affected parties to peruse and follow the mandates of the FAA, which would eliminate a number of arbitration issues for both trial and appellate courts.

¶ 2. Aggrieved by the Circuit Court of the First Judicial District of Hinds County’s denial of their motion to compel arbitration and motion to transfer venue pursuant to the provisions of the “Real Estate Contract” (“Contract”), Century 21 Ma-selle and Associates, Inc. (“Century 21”) and its agent, Cindy Smith, appealed to this Court. Finding that this arbitration clause is valid, enforceable, and was not waived, we reverse the judgment of the circuit court and remand this case with directions to stay the proceedings as to Century 21 and Cindy Smith only, and direct that their dispute be referred to arbitration consistent with the Contract.

FACTS

¶ 3. On November 9, 2003, John Hendon entered into the Contract to sell his home to Tony L. Smith and Linda N. Smith (“Smiths”). Century 21 and its agent, Cindy Smith, represented the Smiths. Cindy Smith signed the Contract as “[b]roker [ajssociate.” The Contract contained an arbitration clause, which stated:

38. MANDATORY ARBITRATION: Both Buyer and Seller § {hereinafter “parties”} acknowledge, understand and agree that: (1) any controversy, claim, action or inaction arising out of, or relating to, the “purchase” set out herein, as against the listing broker or selling broker and/or their agents or representatives § {hereinafter “company”} involved in this transaction, shall ■ be resolved by arbitration administered by the American Arbitration Association in accordance with its arbitration rules; and (2) judgment of the award rendered by the arbitrator(s) will be entered in the Circuit Court of Rankin County; and (3) the arbitration proceeding shall be conducted within Rankin County, Mississippi; and (4) any damages awarded must conform to the terms and conditions of the “purchase”; and (5) this transaction involves interstate commerce such that the Federal Arbitration Act, 9 U.S.C. Section 1 et seq. (1947 as amended) shall govern the interpretation and enforcement of this arbitration agreement along with all claims between or among any parties and the eompa-ny(ies) involved in this transaction; and (6) any action at law regarding this agreement must be filed in the Circuit Court of Rankin County.

(Emphasis added).

¶ 4. On January 14, 2005, the Smiths filed their “First Amended Complaint” against “John Hendon, Union Planters Bank, NA[,] First American Real Estate Solutions of Texas, L.P., Successor in Interest to First American Flood Data Services, Inc., Century 21 Maselle & Assoc., Inc., Cindy Smith, Coldwell Banker Graham & Associates, Inc., Cindy Lai, Mark S. Bounds Realty Partners, Inc., Donald Conn, Jr., [and] Wayne C. Williams” for alleged negligence and/or fraudulent inducement in the purchase of their new home, in violation of the Contract. On February 24, 2005, Century 21 and Cindy Smith filed separate answers and affirmative defenses. Inserted beneath the caption of these pleadings, Century 21 and Cindy Smith plead “Jury Trial Requested.” The first defense was entitled “Motion to Dismiss” and averred that “this cause of action should be dismissed and arbitration compelled.” That same day, Century 21 and Cindy Smith propounded written discovery, in the form of eighteen interrogatories and fourteen requests for production of documents, for which responses were never received. On March 16, 2005, both Century 21 and Cindy Smith noticed their motion to compel arbitration and/or to transfer venue for a hearing. This occurred only sixty-one days after the suit was filed by the Smiths and twenty days after Century 21 and Cindy Smith filed their separate answers and affirmative defenses. In the interim, litigation was not advanced by these parties.

¶ 5. Although a hearing was held on April 21, 2005, the circuit court did not enter an order until August 17, 2005, denying both Century 21’s and Cindy Smith’s motion to compel arbitration and to transfer venue. Specifically, the circuit court found that:

3. Although the subject Real Estate Contract contained a mandatory arbitration clause, the Court finds that the motion to compel arbitration and/or transfer venue is without merit and will be denied for the following reasons:
a. The defendants have waived their right to enforce the arbitration clause.
b. All of the defendants have served discovery upon the plaintiffs.
c. Defendants [Century 21] and Cindy Smith requested a Jury Trial in their Answer to the herein lawsuit.... This coupled with Century 21 and Smith’s service of discovery upon plaintiffs clearly supports a waiver of the right to enforce the arbitration clause.

(Emphasis added). Finding that the right to arbitration had been waived, the circuit court refused to enforce the agreement to arbitrate. From that ruling proceeds this appeal. This Court will consider whether the circuit court erred in denying the motion to compel arbitration filed by Century 21 and Cindy Smith.

ANALYSIS

(1) Whether the circuit court erred in denying the motion to compel arbitration filed by Century 21 and Cindy Smith.

¶ 6. “This Court reviews questions of law de novo.” Pre-Paid Legal Servs. v. Battle, 873 So.2d 79, 82 (Miss.2004) (citing Russell v. Performance Toyota, Inc., 826 So.2d 719, 721 (Miss.2002)). “[W]e have reviewed the grant or denial of a motion to compel arbitration under the de novo standard of review.” Battle, 873 So.2d at 82 (citing Tupelo Auto Sales, Ltd. v. Scott, 844 So.2d 1167, 1169 (Miss.2003)).

Waiver

¶ 7. In Dean, Witter, Reynolds, Inc. v. Byrd, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985), the United States Supreme Court noted that:

[t]he House Report accompanying the [FAA] makes clear that its purpose was to place an arbitration agreement “upon the same footing as other contracts, where it belongs,” H.R.Rep. No. 96, 68th Cong., 1st Sess., 1 (1924), and to overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate. This is not to say that Congress was blind to the potential benefit of the legislation for expedited resolution of disputes. Far from it, the House Report expressly observed:
“It is practically appropriate that the action should be taken at this time when there is so much agitation against the costliness and delays of litigation. These matters can be largely eliminated by agreements for arbitration.... ”
Nonetheless, passage of the [FAA] was motivated, first and foremost, by a congressional desire to enforce agreements into which parties had entered, and we must not overlook this principal objective when construing the statute, or allow the fortuitous impact of the [FAA] on efficient dispute resolution to overshadow the underlying motivation.

Byrd, 470 U.S. at 219-20, 105 S.Ct. 1238 (emphasis added). Just two terms earlier, the United States Supreme Court in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), offered explicit instruction on seeking enforcement of an arbitration agreement by reference to the FAA itself, stating:

Congress’ clear intent, in the [FAA], [was] to move the parties to an arbitra-ble dispute out of court and into arbitration as quickly and easily as possible. The [FAA] provides two parallel devices for enforcing an arbitration agreement: a stay of litigation in any case raising a dispute referable to arbitration, 9 U.S.C. § 3, and an affirmative order to engage in arbitration, § i. Both of these sections call for an expeditious and summary hearing ....

Moses H. Cone, 460 U.S. at 22, 103 S.Ct. 927 (emphasis added). Furthermore, the FAA “calls for a summary and speedy disposition of motions or petitions to enforce arbitration clauses.” Id. at 29, 103 S.Ct. 927. In considering such motions, there is a presumption in favor of arbitration. See id. at 24-25, 103 S.Ct. 927. Procedurally, it shall be no different in state court.

¶ 8. In Byrd, the United States Supreme Court stated that the FAA “leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed ... absent a ground for revocation of the contractual agreement.” Byrd, 470 U.S. at 218, 105 S.Ct. 1238. This Court has held that arbitration can be waived where a party “actively participates in a lawsuit or takes other action inconsistent with [the right to arbitration].” Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 619 So.2d 908, 914 (Miss.1993) (quoting Cornell & Co. v. Barber & Ross Co., 123 U.S.App.D.C. 378, 360 F.2d 512, 513 (D.C.Cir.1966)) (emphasis added). In Cox, this Court found the right to arbitration was waived due to “extensive” pre-trial litigation, where the party seeking to enforce arbitration had filed a “summary judgment motion, requested two continuances, appealed to this Court based on a pretrial ruling, and had requested various types of discovery.” Id. at 914. Ten years later, this Court qualified the precepts of Cox, stating that arbitration may be waived where a party “substantially invokes the judicial process to the detriment or prejudice of the other party.” Univ. Nursing Assocs., PLLC v. Phillips, 842 So.2d 1270, 1278 (Miss.2003) (emphasis added). That same year, in Sanderson Farms v. Gatlin, 848 So.2d 828 (Miss.2003), this Court found that Sanderson Farms waived arbitration by refusing to pay one-half of arbitration costs. See id. at 838. In Pass Termite and Pest Control v. Walker, 904 So.2d 1030 (Miss.2004), this Court found waiver where Pass Termite failed to allege the affirmative defense of arbitration in its answer and requested a jury trial; propounded interrogatories and requests for production of documents, which were subsequently responded to; and also delayed 237 days before moving to compel arbitration. See id. at 1032, 1035. In MS Credit Center v. Horton, 926 So.2d 167 (Miss.2006), this Court once again addressed waiver, stating:

[t]he record before us today clearly demonstrates that the Defendants asserted their right to compel arbitration in their respective answers. However, rather than proceeding within a reasonable time to file a motion to compel arbitration and request a hearing on the motion, defendants proceeded to substantially engage the litigation process by consenting to a scheduling order, engaging in written discovery, and conducting Horton’s deposition.

Id. at 180. As in Horton, “we will not hesitate to find a waiver of the right to compel arbitration” for a “delay in pursuing the right, coupled with active participation in the litigation process.” Id. (emphasis added). In summary, either active participation or substantial invocation of the litigation process which results in detriment or prejudice to the other party, or engaging in conduct inconsistent with timely enforcing the arbitration agreement, constitutes waiver. See Horton, 926 So.2d at 180; Phillips, 842 So.2d at 1278; Cox, 619 So.2d at 913-14. However, parties claiming waiver must offer sufficient evidence at a hearing to overcome the presumption in favor of arbitration. See Moses H. Cone, 460 U.S. at 24-25, 103 5.Ct. 927. In the case sub judice, the Smiths failed to offer any evidence to defeat the presumption.

(A) Request for Jury Trial

¶ 9. Century 21 and Cindy Smith simultaneously requested a jury trial and asserted a right to arbitration in their answers and affirmative defenses, only forty-one days after the Smiths filed their amended complaint. They noticed the same for a hearing a mere twenty days thereafter. This act simply does not rise to the level of active participation in the lawsuit (see Cox, 619 So.2d at 913-14), substantial invocation of the judicial process (see Phillips, 842 So.2d at 1278), or a “delay in pursuing the right.” Horton, 926 So.2d at 180. Century 21 and Cindy Smith did request a jury trial, which “is characteristic of the judicial process.” Walker, 904 So.2d at 1035. We have held that it “is inconsistent with asserting a right to arbitration.” Id. Such inconsistency is mitigated by the fact that the jury trial request was filed simultaneously with the motion to compel arbitration. While a request for a jury trial is inconsistent with asserting the right to arbitration, standing alone it does not constitute waiver. Of greater import, the request for a jury trial did not delay resolution of the .controversy, did not add to the expense of litigation, and did not substantially invoke the judicial process. Nor, for that matter, did it even constitute increased involvement in the litigation process, as it is automatic, unless opted out of, in civil actions in Mississippi. See Miss. R. Civ. P. 38.

(B) Discovery

¶ 10. Regarding discovery, this Court previously has stated that “[tjaking advantage of pre-trial litigation such as answers, counterclaims, motions, requests, and discovery obviates the right to arbitration.” Cox, 619 So.2d at 914. In Phillips, this Court articulated that arbitration is waived where a party “substantially invokes the judicial process to the detriment or prejudice of the other party.” Phillips, 842 So.2d at 1278 (emphasis added). In Phillips, now-Presiding Justice Waller astutely included a practice note that “parties desiring to seek arbitration should promptly file and present to the trial court a motion to stay proceedings and a motion to compel arbitration.” Id. at 1277 (emphasis added). Clearly, the FAA requires same, as announced by the United States Supreme Court. The FAA does not pro-vide for discovery. Therefore, pursuing discovery, a litigation tool, creates the danger of incongruent determinations by lower courts regarding whether such action constitutes active participation in, or substantial invocation of, the litigation process. From this day forward, the advice of Phillips and caveat of Walker are the mandate of this Court, in accord with the FAA. Parties seeking to enforce arbitration are to file a “Motion to Compel Arbitration and to Stay Proceedings Pending Arbitration” immediately upon discovery that the controversy or suit is subject to an arbitration agreement. All proceedings, including the filing of responsive pleadings (answer or otherwise) and discovery, in prospective cases involving an arbitration agreement shall be suspended upon the timely filing and notice of a “Motion to Compel Arbitration and to Stay Proceedings Pending Arbitration.”

¶ 11. Century 21 and Cindy Smith posit that they merely “propounded routine written discovery” to the Smiths. This Court notes that there is no such thing as “routine” discovery in arbitrable controversies. The “Order Adopting the Mississippi Rules of Civil Procedure” provides “the rules attached hereto are adopted and promulgated as Rules of Practice and Procedure in all Chancery, Circuit, and County Courts of this State in all civil actions.... ” (Emphasis added). See also Miss. R. Civ. P. 1 (“These rules govern procedure in the circuit courts, chancery courts, and county courts in all suits of a civil nature.... ”). The Mississippi Rules of Civil Procedure address the subject of discovery in Rules 26-37. The forum of arbitration is outside the scope of the Mississippi Rules of Civil Procedure, and discovery in that forum is neither automatic nor guaranteed. Initiating discovery is inapposite to seeking to compel arbitration.

¶ 12. Century 21 and Cindy Smith’s acts are precipitously close to satisfying the waiver exception by initiating discovery. However, the Smiths offered no evidentiary basis for the lower court to find detriment or prejudice either by incurred legal expense or procedural delay, and the record reflects they failed to answer the discovery. See Phillips, 842 So.2d at 1278 (“[w]aiver will be found when the party seeking arbitration substantially invokes the judicial process to the detriment or prejudice[] of the other party.”) (emphasis added). Given the presumption in favor of arbitration (see Moses H. Cone, 460 U.S. at 24-25, 103 S.Ct. 927), in the absence of prejudice or invocation of the court’s jurisdiction for a purpose other than the declaration of arbitrability vel non, the circuit court either clearly erred in denying the motion to compel arbitration or, alternatively, the circuit court was provided with proof of detriment and/or prejudice, but the Smiths failed to provide this Court with a record to support such finding. See Ditto v. Hinds County, 665 So.2d 878, 880 (Miss.1995) (quoting Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973)) (“[t]his Court ‘may not act upon or consider matters which do not appear in the record and must confine itself to what actually does appear in the record’ ”). Litigants shall prospectively follow the procedure mandated by this Court and separately file a “Motion to Compel Arbitration and to Stay Proceedings Pending Arbitration!;,]” and then promptly schedule and notice a hearing on their motions. Discovery, a procedural implement of the courts, should not be initiated as its use may be deemed active participation in a court proceeding and inconsistent with the right to arbitration.

Unconscionability

¶ 13. This Court also notes that the subject arbitration clause is virtually identical to the arbitration clause in Fra-della v. Seáberry, 952 So.2d 165 (Miss. 2007). The Smiths admit as much in their brief, stating:

[t]he case sub judice is also analogous to the facts in Fradella .... The arbitration provision [in] their contract is identical to the contract in the case sub judice, except that the Fradella contract stated that any judgment would be entered in any court of competent jurisdiction, whereas in'the case sub judice, the arbitration provision states that the judgment would have to be entered in the Circuit Court of Rankin County.

In Fradella, this Court found that the arbitration clause was not procedurally or substantively unconscionable (see id. at 172), and created contractual “rights and responsibilities on the part of’ the real estate agent and her agency. See id. at 175. In the case sub judice, the circuit court’s order reflects the validity and enforceability of the arbitration clause, finding that the clause was “mandatory.” Therefore, the argument presented by the Smiths to this Court that the agreement is invalid or unenforceable for lack of mutuality of assent or obligation, lack of standing, or unconscionability is untimely and unmerited, as no facts to support the argument were presented to the circuit court, or made a part of this appeal. See Ditto, 665 So.2d at 880 (“this Court can only review matters on appeal as were considered by the lower court.”).

CONCLUSION

¶ 14. Accordingly, we reverse the circuit court’s denial of Century 21 and Cindy Smith’s motion to compel arbitration, and we remand this case with directions to compel the parties (Century 21, Cindy Smith, Tony L. Smith, and Linda N. Smith) to submit to arbitration consistent with the Contract. This action is stayed pending resolution of the arbitration proceedings only as to the parties herein referred.

¶ 15. REVERSED AND REMANDED.

SMITH, C.J., EASLEY, CARLSON, DICKINSON AND LAMAR, JJ., CONCUR. DIAZ, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J. GRAVES, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ, P.J. WALLER, P.J., NOT PARTICIPATING.

DIAZ, Presiding Justice,

Concurring in Part and Dissenting in Part:

¶ 16. I agree with the majority regarding the analysis of waiver and its application to this case. However, I remain committed to the ideal that arbitration contracts should be voided when they involve overreaching, procedural or substantive unconscionability, or any other grounds that would serve as a basis for invalidation under state statutory or common law. Because the majority does not acknowledge that the failure to invalidate such contracts infringes upon the constitutional rights afforded all Mississippians, I must respectfully dissent in part. See Cleveland v. Mann, 942 So.2d 108, 121-22 (Miss.2006) (Diaz, J., dissenting).

¶ 17. Further, in some cases federal law simply does not apply, and accordingly I would not be so quick to defer to federal law as the majority. In this case, the parties stipulated that the contract affected interstate commerce, and I agree as a matter of sound contract law that “[wjhen parties agree to arbitrate under the FAA, they are not required to establish that the transaction at issue involves or affects interstate commerce.” In Re Choice Homes, Inc., 174 S.W.3d 408, 412 (Tex. App.2005). Not all contracts involve interstate commerce or contain express declarations of the applicability of the FAA; those contracts escape the federal government’s predilection for arbitration. See Perry v. Thomas, 482 U.S. 483, 489, 107 S.Ct. 2520, 2525, 96 L.Ed.2d 426 (1987) (“Section 2 [of the FAA] ... embodies a clear federal policy of requiring arbitration unless the agreement to arbitrate is not part of a contract evidencing interstate commerce or is revocable ‘upon such grounds as exist at law or in equity for the revocation of any contract’ ”) (emphasis added, quoting 9 U.S.C. § 2). In those cases where the agreement between the parties is silent as to the FAA or interstate commerce, “a party seeking to compel arbitration must establish its right to arbitrate under the federal act.” Stewart Title Guar. Co. v. Mack, 945 S.W.2d 330, 333 (Tex.App.1997).

¶ 18. The majority’s automatic deferral to federal law also ignores that the U.S. Congress built in an huge state law exception to the FAA. For “[a] written provision in ... a contract” for arbitration “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C.A. § 2 (emphasis added); Perry, 482 U.S. at 489, 107 S.Ct. 2520.

¶ 19. In other words, Congress and the U.S. Supreme Court acknowledge the primacy of state statutory and common law protections against overreaching and fraud, as often embodied in the doctrines of procedural and substantive unconsciona-bility. We should not be so quick to toss aside those tools meant to safeguard the rights of Mississippians.

GRAVES, J., Joins this Opinion.

GRAVES, Justice,

Concurring in Part and Dissenting in Part:

¶ 20. I agree with the majority’s analysis on the issue of waiver and I agree with the promulgation of guidelines with regard to the assertion of a right to arbitration. However, I disagree on the issue of whether a non-party, nonsignatory to a contract has a right to enforce an arbitration clause contained in that contract. Hence, I deem it unnecessary to address the issue of waiver in this case. As a result, I would find that the issue regarding a nonsignato-ry is dispositive and that the trial court should be affirmed. Therefore, I respectfully concur in part and dissent in part.

¶ 21. Arbitration can only exist when created by a contract. The contract herein was between the buyer and the seller. Cindy Smith is neither the buyer nor the seller. Cindy Smith’s signature is on the contract merely pursuant to the following: “Subject to clearance of any check, Broker acknowledges receipt of the above-mentioned earnest money and holds same in trust subject to the terms of this contract.” Allowing a non-party, nonsignatory to a contract to take advantage of a clause in a contract violates basic legal principles. See Parkerson v. Smith, 817 So.2d 529, 534-35(Miss.2002). Nevertheless, some courts have allowed this to happen. See Grigson v. Creative Artists Agency, LLC, 210 F.3d 524 (5th Cir.2000).

¶ 22. However, there is a view that this Court should not defer to the federal courts and the Federal Arbitration Act, but that the Legislature and courts of Mississippi should regulate the usage of arbitration within our state. Greater Canton Ford Mercury, Inc. v. Abies, 948 So.2d 417 (Miss.2007) (Diaz, J., dissenting) (citing Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265, 285-97, 115 S.Ct. 834, 845-51, 130 L.Ed.2d 753 (1995) (Thomas, J., dissenting)).

¶23. Because the motions to compel arbitration and transfer venue were properly denied, the trial court should be affirmed. Therefore, I respectfully concur in part and dissent in part.

DIAZ, P.J., Joins this Opinion.

      . 9 U.S.C. § 1, et seq.

      . According to Century 21 and Smith, "[t]his discovery was simply propounded in the event that the arbitration clause was somehow determined to be invalid, which is denied, as opposed to unenforceable.”

      . The Smiths did not respond to Century 21's and Cindy Smith's motion to compel arbitration until April 21, 2005. The response was untimely pursuant to U.R.C.C.C. 4.03. The response was not included in the record presented to this Court.

      . A transcript of the hearing, if one was made, was not included in the record presented to this Court.

      . On September 6, 2005, Century 21 and Cindy Smith timely filed a “Petition for Permission to Appeal” with this Court, pursuant to Miss. R.App. P. 5. According to Miss. R.App. P. 5(a):
      [a]ppeal from such an order may be sought by filing a petition for permission to appeal with the clerk of the Supreme Court within 21 days after the entry of such order in the trial court with proof of service on the trial judge and all other parties to the action in the trial court.
      (Emphasis added). On September 19, 2005, the remaining defendants (Mark S. Bounds Realty Partners, Inc., Wayne C. Williams, Coldwell Banker Graham & Associates, Inc., Cindy Lai, and Donald Conn, Jr.) filed for "Joinder in Defendants’ Petition for Interlocutory Appeal.” Thereafter, the Smiths filed a motion to dismiss the appeals of the defendants attempting joinder as untimely. On May 25, 2006, this Court entered an order granting the Smiths’ motion.

      . In Walker, this Court stated ''[t]he 237-day delay before invoking arbitration, coupled with the invocation of the discovery process after failing to raise the defense of arbitration in its initial pleading bring us to our conclusion that Pass has effectively waived its right to invoke arbitration.” Walker, 904 So.2d at 1035. In that case, Pass Termite failed to allege the affirmative defense of arbitration in its answer and requested a jury trial; propounded interrogatories and requests for production of documents, which were subsequently responded to; and only then, more than six months after filing its answer, filed its motion to compel arbitration. See id. at 1032. Walker is clearly distinguishable from the case sub judice where the answer requesting a jury trial included the motion to compel arbitration; the discovery propounded was unanswered; and the motion to compel arbitration was noticed for a hearing twenty days after the answer was filed.

      . In Walker, this Court referred to the Phillips “practice note” as a "caveat.” Walker, 904 So.2d at 1035.

      . 9 U.S.C. § 3 states:
      [i]f any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.

      9 U.S.C. § 3 (emphasis added). As the United States Supreme Court notes in Moses H. Cone, "[t]he [FAA] provides two parallel devices for enforcing an arbitration agreement: a stay of litigation in any case raising a dispute referable to arbitration, 9 U.S.C. § 3, and an affirmative order to engage in arbitration, § 4. Both of these sections call for an expeditious and summary hearing....” Moses H. Cone, 460 U.S. at 22, 103 S.Ct. 927.

      . "Prejudice ... refers to the inherent unfairness-in terms of delay, expense, or damage to a party’s legal position-that occurs when the party’s opponent forces it to litigate an issue and later seeks to arbitrate that same issue.” Phillips, 842 So.2d at 1278.

      . Not a motion to dismiss.

      . Century 21 and Cindy Smith maintain that they propounded discovery out of caution, in the event that the circuit court found the arbitration clause invalid.

      . Beyond the different venue requirements, the arbitration clauses are more accurately described as virtually identical, as they include several non-substantive, linguistic differences.

      . Unlike in Fradella, Cindy Smith was a signatory to the Contract.


author: EASLEY, Justice,

text:
    CHOCTAW, INC., et al. v. CAMPBELL-CHERRY-HARRISON-DAVIS AND DOVE.
    No. 2006-CA-01621-SCT.
    Supreme Court of Mississippi.
    Oct. 4, 2007.

      Fred Krutz, Edwin S. Gault, Jr., Daniel J. Mulholland, Brian Barry Hannula, Jackson, Ronald G. Peresich, W. Mark Edwards, Randi Peresich Mueller, Johanna Malbrough McMullan, Biloxi, attorneys for appellants.
    Dewitt T. Hicks, Jr., William Thomas Cooper, Columbus, Steve McConnico, attorneys for appellees.
    Before WALLER, P.J., EASLEY and CARLSON, JJ.
   EASLEY, Justice,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. On December 30, 2002, Campbell-Cherry-Harrison-Davis-Dove, P.C., (CCHDD), a Texas law firm, filed its original complaints in Baldwin, et al. v. Graco Enterprises, Inc., et al, Cause No.2002-429, on behalf of 247 plaintiffs, and Prince, et al. v. Pearl River Sand & Gravel Co., Inc., et al., Cause No.2002-430, on behalf of 4,200 plaintiffs, collectively the “CCHDD Plaintiffs,” in the Circuit Court of Noxubee County, Mississippi, against 131 unrelated defendants for alleged personal injuries suffered by the CCHDD Plaintiffs’ exposure to silica. The lawsuits were filed in the circuit court by the CCHDD Plaintiffs’ Mississippi counsel, William H. Liston, Esq., Liston & Lancaster. Amended complaints were filed in the circuit court on March 24, 2003, by Attorney Liston.

¶ 2. The CCHDD Plaintiffs’ cases were subsequently, successfully removed by the Defendants to the United States District Court for the Southern District of Mississippi. Thereafter, the cases were removed by the United States District Court for the Southern District of Mississippi to the United District Court for the Southern District of Texas, which was handling a multi-district litigation (MDL) docket for silicosis claims, the Honorable Janis Graham Jack, District Court Judge, presiding. The Plaintiffs who were removed to the MDL federal court, including the CCHDD Plaintiffs, objected to the removal based on an alleged lack of subject matter jurisdiction. Judge Jack reserved ruling on the lack of subject matter jurisdiction claim, allowing some initial discovery as to the Plaintiffs’ claims and jurisdiction.

¶ 3. After conducting a lengthy eviden-tiary hearing, Judge Jack concluded that she lacked jurisdiction over most of the lawsuits, including all of the CCHDD Plaintiffs, that had been filed in state court and removed to the MDL federal court. See In re Silica Products Liability Litigation, 398 F.Supp.2d 563 (S.D.Tex.2005). Before Judge Jack remanded the CCHDD Plaintiffs to the Mississippi state court on June 30, 2005, for lack of subject matter jurisdiction, she criticized the opinions supporting the silicosis claims, despite her admitted lack of subject matter jurisdiction to render any ruling as to the cases except to remand.

¶4. Once the CCHDD Plaintiffs were remanded to Mississippi state court, CCHDD, on October 14, 2005,. filed a motion for determination, of status pursuant to this Court’s holding in Harold’s Auto Parts, Inc. v. Mangialardi, 889 So.2d 493 (Miss.2004). CCHDD sought the Court’s guidance regarding the then-recent changes in the law as to venue and. joinder after Mangialardi. (The CCHDD Plaintiffs filed suit before Mangialardi was decided by this Court.) CCHDD requested guidance on how to handle the severance and transfer of the Plaintiffs’ claims. By agreement between the parties, on an ore tenus motion to the trial court, most of the Plaintiffs’ claims against the Defendants were dismissed without prejudice and each party agreed to bear its own costs. The agreed order was entered by the Circuit Court of Noxubee County on December 14, 2005. The agreed order specifically stated:

IT IS, THEREFORE, ORDERED AND ADJUDGED that all Defendants be and the same are hereby dismissed without prejudice as to the claims of the Plaintiffs listed in the attached Exhibit “A,” with each party to bear its own costs.

(Emphasis added).

¶ 5. Despite the agreement to bear their own costs, some of the 131 defendants, on December 19, 2005, filed motions for sanctions in the Circuit Court of Noxubee County, alleging that CCHDD frivolously filed the two suits. The Defendants sought sanctions pursuant to the Litigation Accountability Act of 1988, Mississippi Code Annotation Section 11-55-1, et seq. The substance of the Defendants’ allegations was that the CCHDD Plaintiffs lacked any diagnoses to sustain their .claims of silica-related disease, and 'the medical reports submitted by CCHDD were, in effect, a sham. CCHDD filed its response to the allegations. A hearing on the motions for sanctions was held on March 26, 2006, by the circuit court, the Honorable Lee J. Howard, presiding. The circuit court reserved its ruling at the hearing, subsequently entering an order denying the motions for sanctions. On July 17, 2006, 'the circuit court entered its orders denying the Defendants’ motions for sanctions “in its entirety.”

¶ 6. The Defendants now appeal to this Court. This Court granted the parties’ agreed motion to consolidate the cases for appeal. The dispositive issue that we address on appeal is: whether the trial court erred in denying the Defendants’ motions for sanctions against CCHDD under the Litigation Accountability Act of 1988.

The Defendants also, alternatively, raise the issue of whether the trial court erred in finding that the record was well-developed and not allowing additional discovery regarding the motions for sanctions.

DISCUSSION ■

I.

¶ 7. “Miss.Code Ann. § 11-55-3(a) provides that a claim is without substantial justification when it is ‘frivolous, groundless in fact or in law, or vexatious, as determined by the court.’ ” Scruggs v. Saterfiel, 693 So.2d 924, 927 (Miss.1997). This Court examines whether a claim is frivolous as follows:

To determine whether a claim is frivolous pursuant to the statute, this Court looks to the definition of “frivolous” found in M.R.C.P. 11. Leaf River Forest Products, Inc. v. Deakle, 661 So.2d 188, 197 (Miss.1995). For purposes of Rule 11, a claim is frivolous “only when, objectively speaking, the pleader or movant has no hope of success.” Stevens v. Lake, 615 So.2d 1177, 1184 (Miss. 1993), quoting Tricon Metals & Services, Inc. v. Topp, 537 So.2d 1331, 1335 (Miss.1989); Smith v. Malouf, 597 So.2d 1299, 1303 (Miss.1992) (applying Rule 11 definition to Litigation Accountability Act context). “Though a case may be weak or ‘light-headed,’ that is not sufficient to label it frivolous.” Deakle, 661 So.2d at 195; Nichols v. Munn, 565 So.2d 1132, 1137 (Miss.1990).

Wilson v. Greyhound Bus Lines, 830 So.2d 1151, 1159 (Miss.2002) (quoting Scruggs, 693 So.2d at 927) (emphasis added). Thus, sanctions are not justified if the plaintiff had some hope of success when the claim was filed. Bean v. Broussard, 587 So.2d 908, 912 (Miss.1991); see Wilson, 830 So.2d at 1159. “To deem a question of law ‘frivolous, groundless in fact or in law, or vexatious’ merely because there is no existing Mississippi law on the subject would have a chilling effect on all litigation involving questions of first impression.” Scruggs, 693 So.2d at 927 (emphasis added).

¶ 8. “The imposition of sanctions raises a question of law, the standard of review of which is de novo.” In re Estate of Ladner v. Ladner, 909 So.2d 1051, 1055 (Miss.2004) (citing Amiker v. Drugs For Less, Inc., 796 So.2d 942, 945-46 (Miss.2001)). However, this Court has also held, “When reviewing a decision regarding the imposition of sanctions pursuant to the Litigation Accountability Act, this Court is limited to consideration of whether the trial court abused its discretion.” Scruggs, 693 So.2d at 927 (citing Deakle, 661 So.2d at 197; Jackson County School Board v. Osborn, 605 So.2d 731, 735 (Miss.1992)) (emphasis added).

¶ 9. Mississippi Code Annotated Section ll-55-5(l)-(3) (2007) provides in pertinent part:

Assessment of attorney fees and costs against attorney or party for meritless action, claim or defense, unwarranted delay, or unnecessary proceedings])]
(1) Except as otherwise provided in this chapter, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorney’s fees and costs, against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification, or that the action, or any claim or defense asserted, was interposed for delay or harassment, or if it finds-that an attorney or party unnecessarily expanded the proceedings by other improper conduct including, but not limited to, abuse of discovery procedures available under the Mississippi Rules of Civil Procedure.
(2) No attorney’s fees or costs shall be assessed if a voluntary dismissal is filed as to any action, claim or defense within a reasonable time after the attorney or party filing the action, claim or defense knows or reasonably should have known that it would not prevail on the action, claim or defense.
(3) When a court determines reasonable attorney’s fees or costs should be assessed, it shall assess the payment against the offending attorneys or parties, or both, and in its discretion may allocate the payment among them, as it determines most just, and may assess the full amount or any portion to any offending attorney or party.

¶ 10: The Defendants argue that CCHDD’s screening process was a device designed to generate unfounded claims. CCHDD contends that its screening process was well-established and that it is a mechanism that has been used for years in the field of mass torts, citing Findley v. Trustees of the Manville Personal Injury Settlement Trust (In re Joint Eastern & Southern Districts Asbestos Litigation), 237 F.Supp.2d 297, 309 (D.N.Y.2002) (“Claimants today are diagnosed largely through plaintiff-lawyer arranged mass screening programs targeting possibly asbestos-exposed workers and attraction of potential claimants through the mass media. The programs rely almost solely on chest x-rays and pro-plaintiff readers to identify the injured.”). Today, we are not asked to devise an alternative process to the mass x-ray screening process; we are only asked to decide whether Judge Howard erred in finding that CCHDD’s conduct was not sanctionable pursuant to the Litigation Accountability Act.

¶ 11. To determine whether an attorney’s conduct was sanctionable, we must focus on whether the attorney’s conduct was objectionably reasonable. See Wilson, 830 So.2d at 1159. Here, we must start our analysis with the process CCHDD undertook to screen their clients and their reliance on the screening process before filing suit. CCHDD established criteria based on a methodology for diagnosing silicosis to screen potential clients. CCHDD retained a screening company, N & M, Inc., to handle the screening process so CCHDD could be detached from the diagnosis. N & M was informed that CCHDD would only represent persons who met the established criteria CCHDD provided to N & M.

¶ 12. Billy H. Davis, Jr., counsel for the CCHDD Plaintiffs, and shareholder in the CCHDD law firm, provided an affidavit detailing the required criteria. In his affidavit, Davis stated that N & M was required to adhere to a screening process that specified that each potential client have: (1) at least two years of silica exposure generally occurring before 1980; (2) a positive B-read by a NIOSH certified B-reader; (3) a physical exam and pulmonary function test; and (4) a diagnosis of silicosis by a qualified physician. N & M was licensed by the State of Mississippi to perform x-rays. N & M informed CCHDD that Ray Harron, M.D., would perform the physical exam and a “B-read” on the individuals screened by N'& M. The individuals with a positive B-read would then have a physical exam and pulmonary function test performed. The x-rays and the occupational history information on those positive B-reads would then be provided to a second B-reader for another Breading. If positive, a qualified physician would determine whether each individual had silicosis within a reasonable degree of medical certainty.

¶ 13. CCHDD had no contact with the physicians, using N & M as a barrier between itself and the findings and diagnoses. N & M was paid for each positive individual. However, the physicians were paid regardless of whether the diagnosis was positive. Many of the CCHDD Plaintiffs also had been previously diagnosed with asbestosis. The Defendants argue that it is virtually impossible for the asbestosis clients to also be diagnosed with silicosis. However, CCHDD maintains that all the CCHDD Plaintiffs were subjected to a new screening for silicosis, following the screening process stated above. CCHDD also contends that the Defendants do not cite any individual plaintiff who does not have silicosis.

¶ 14. Judge Howard rendered the following findings of fact and conclusion of law in support of his ruling, stating:

(1) The Court finds that the claims CCHDD filed in this lawsuit were not brought without substantial justiftcation or for delay or harassment, and thus sanctions are not warranted under the Mississippi Accountability Act.
MISS. CODE ANN. § 11-55-5 (2002). The Court finds that the factors to be weighed when considering whether to award sanctions do not support an award of sanctions here. MISS. CODE ANN. § ll-55-7(a-k) (2002).
(2) The Court finds further that, at the time this lawsuit was filed, Mississippi had no firm rule regarding the amount of pre-suit discovery required of a plaintiff. The Court finds that sanctions are not warranted that would hold CCHDD to a standard that had not been adopted at the time CCHDD filed this action.
(3) The Court notes that, by agreement of the parties, CCHDD has dismissed claims brought by many of the plaintiffs pursuant to current Mississippi joinder rules. The Court finds that it is not appropriate to award sanctions based on claims after they have been voluntarily dismissed.
(4) The Court declines to adopt the opinion by the Honorable Judge Janis Graham Jack, United States District Judge for the Southern District of Texas, Corpus Christi Division, who presided over the In re Silica Products Liability Litigation, No. 1553. The federal court remanded this lawsuit back to this Court because it lacked subject-matter jurisdiction over this lawsuit.

(Emphasis added).

¶ 15. Despite their agreeing to the dismissal of the CCHDD’s claims without prejudice and bearing their own costs associated with the litigation, the Defendants attack Judge Howard’s ruling denying the motions for sanctions. First, the Defendants argue that CCHDD delayed the proceedings. However, the dates have been purposely outlined in the procedural history in order to see the actions taken by CCHDD and the date of each relevant filing, including the removal to federal court in Mississippi and Texas, and the subsequent transfer to Mississippi, where the claims were dismissed without prejudice.

¶ 16. Based on the background of the case, including its long history of transfers and the period of time allowed by the MDL federal court for discovery, we fail to see how the CCHDD Plaintiffs delayed the litigation for the purpose of harassment. The fact that CCHDD dismissed its Plaintiffs’ claims does not prove that CCHDD acted to delay the proceedings. The grounds for the dismissal were based on a recent clarification of the law in Mississippi regarding joinder pursuant to Mississippi Rule Civil Procedure 20.

¶ 17. In subsections (2) and (3) of Judge Howard’s ruling, he states that sanctions were not appropriate because CCHDD dismissed claims, brought pursuant to current Mississippi joinder rules, based on recent opinions by the Court in the area of joinder. At the time the CCHDD Plaintiffs filed suit, they did not have the benefit of this Court’s holding in Mangialardi, 889 So.2d at 495. In Mangialardi, 889 So.2d at 495, we held, “Such information must include, at a minimum, the name of the defendant or defendants against whom each plaintiff makes a claim, and the time period and location of exposure.” In 2004, this Court took significant steps to clarify the application of joinder pursuant to Mississippi Rule Civil Procedure 20.

¶ 18. Here, the CCHDD complaint, filed in 2002, did not satisfy the requirements of our holding in 2004 in Mangia-lardi, which relied on our holding in Jans-sen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092 (Miss.2004). In Armond, this Court addressed joinder, stating:

The comment to Rule 20 states both that “the general philosophy of the joinder provisions of these rules is to allow virtually unlimited joinder at the pleading stage ” and:
Joinder of parties under Rule 20(a) is not unlimited. ... Rule 20(a) imposes two specific requisites to the joinder of parties: (1) a right to relief must be asserted by or against each plaintiff or defendant relating to or arising out of the same transaction or occurrence; and, (2) some question of law or fact common to all the parties will arise in the action. Both of these requirements must be satisfied in order to sustain party joinder under Rule 20(a). ... M.R.C.P. 20 cmt. (emphasis added). The issue, then, is where to draw the line with respect to what is considered “the same transaction, occurrence, or series of transactions or occurrences.” Plaintiffs ask this Court to extend the rule to allow multiple unconnected plaintiffs’ actions against multiple unconnected defendants, where independent doctors prescribed at different times and places, the same drug, Propulsid, to different patients. Defendants ask the Court to place some limit on Mississippi’s “virtually unlimited joinder” by finding that the many separate doctor-patient prescribings of Propulsid do not arise from the same transaction, occurrence, or series of transactions or occurrences.

Armond, 866 So.2d at 1097. Further and importantly, the parties signed an agreed order dismissing most of the plaintiffs, which was approved by the circuit court, with the parties agreeing to bear their own costs of litigation.

¶ 19. The Defendants also maintain that Judge Howard was bound under the doctrine of res judicata to adopt the rulings by Judge Jack. Judge Howard expressly rejected the Defendants’ position. The doctrine of res judicata applies “only to questions actually litigated in a prior suit, and not to questions which might have been litigated.” Mayor & Bd. of Aldermen v. Homebuilders Ass’n of Miss., Inc., 932 So.2d 44, 59 (Miss.2006) (citing Dunaway v. W.H. Hopper & Associates, 422 So.2d 749, 751 (Miss.1982) (quoting Johnson v. Bagby, 252 Miss. 125, 171 So.2d 327 (Miss.1965))). “Res judicata reflects the refusal of the law to tolerate a multiplicity of litigation.” Global Oceanic Enters. v. Hynum, 857 So.2d 659, 662 (Miss.2003) (citing Little v. V & G Welding Supply, Inc., 704 So.2d 1336, 1337 (Miss.1997)).

¶ 20. In Collins v. State, 594 So.2d 29, 32 (Miss.1992), the Court defined subject-matter jurisdiction as:

[A] court’s authority “to entertain and proceed with a case.” Bullock v. Roadway Express, Inc., 548 So.2d 1306, 1308 (Miss.1989). In reviewing a subject-matter jurisdiction challenge, this Court looks at the type of case by examining the nature of the controversy and the relief sought, assuming the allegations in the well-pleaded complaint are true: Hood v. Dept, of Wildlife Conservation, 571 So.2d 263, 266 (Miss.1990); see also Penrod Drilling Co. v. Bounds, 433 So.2d 916, 924-25 (Miss.1983) (Robertson, J., concurring).

Here, the CCHDD Plaintiffs raised the lack of subject-matter jurisdiction, and the MDL federal court agreed.

¶ 21. Under the facts of this case, Judge Howard correctly found that since Judge Jack admittedly lacked subject-matter jurisdiction, the circuit court was not bound by her rulings as to the CCHDD Plaintiffs on remand. See Rayner v. Raytheon Co., 858 So.2d 132, 138 (Miss.2003) (citing Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006 (5th Cir.1998) (“[T]he federal court’s ‘comments’ regarding the merits of Rayner’s claims will not subject his new action to the doctrines of res judicata or claim preclusion because those ‘comments’ concerning the merit of his claims were made without subject matter jurisdiction and cannot be used against his new action.”)).

¶ 22. Examining the record and the arguments advanced on appeal, we find .that the circuit court did not abuse its discretion in denying the Defendants’ motions for sanctions. Accordingly, this assignment of error is without merit.

II.

¶ 23. Alternatively, the Defendants argue that Judge Howard erred in denying the Defendants’ request for additional discovery. The circuit court stated:

IT IS FURTHER ORDERED that Defendants’ requests for additional discovery relative to the Motion for Sanctions is DENIED. The record is sufficiently established for this Court to rule on the merits of the Motion, and no further discovery is necessary.

¶ 24. The standard of review for eviden-tiary matters is well-established. In Payne v. Whitten, 948 So.2d 427, 429-30 (Miss.2007), this Court recently reiterated that, “The standard for review of eviden-tiary matters is abuse of discretion.” (Citing Floyd v. City of Crystal Springs, 749 So.2d 110, 113 (Miss.1999)).

¶25. As the record demonstrates, the discovery allowed by Judge Jack in the MDL federal court provided sufficient discovery for the circuit court to proceed with the motions for sanctions. Judge Howard conducted a hearing on the Defendants’ motions for sanctions. At the conclusion of the hearing, Judge Howard reserved his ruling. After his examination of the record, Judge Howard declined to award sanctions against CCHDD, and he denied the request for additional discovery. Judge Howard was in the best position to determine whether additional discovery was necessary in order to rule on the motions for sanctions.

¶ 26. Finding no abuse of discretion in the circuit court’s ruling, we hold that this assignment of error is without merit.

CONCLUSION

¶ 27. For the foregoing reasons, the judgment of the Circuit Court of Noxubee County, Mississippi, is affirmed.

¶ 28. AFFIRMED.

SMITH, C.J., WALLER, P.J., CARLSON, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. DIAZ, P.J., AND GRAVES, J., CONCUR IN RESULT ONLY.

      . Here, CCHDD was defended at trial on the motion for sanctions, as well as in this appeal by the Mississippi law firm Gholson, Hicks & Nichols, P.A.

      . The plaintiffs that remained after the initial dismissal also were subsequently dismissed.

      .The Defendants did not seek sanctions against the CCHDD Plaintiffs’ local counsel, Liston & Lancaster. Of the 131 original defendants, the defendants/appellees listed in this appeal of the denial of the motions for sanctions are as follows: Choctaw, Inc.; Clark Sand Co., Inc.; Clark Sales & Rentals, Inc.; Clemco Industries Corporation; Custom Aggregates & Grinding, Inc.; Eastern Safety Equipment Co., Inc.; F & S Abrasives, Inc.; Flexco Products, Inc.; Huey Stockstill, Inc.; Humble Sand Co., Inc. d/b/a Humble Sand & Gravel, Inc.; Ingersoll-Rand Company; Lockheed Martin Corporation; Parmelee In- • dustries, Inc.; P.K. Lindsay Company; Precision Packing, Inc. fk/a Quikrete Materials, Inc.; Standard Equipment Co., Inc.; and Empire Abrasive Equipment Corporation.

      . The Defendants raise numerous assignments of error that all are substantially tied to the discussion of the issue of whether the trial court erred in denying the motions for sanctions.

      . Mississippi Code Annotated Section 11 — 55— 3(a) (Rev.2002) provides:
      "Without substantial justification,” when used with reference to any action, claim, defense or appeal, including without limitation any motion, means that it is frivolous, groundless in fact or in law, or vexatious, as determined by the court.
      (Emphasis added).

      . An extensive number of cases state that the proper standard of review regarding the imposition of sanctions is abuse of discretion. In Wilson, 830 So.2d at 1159, the Court acknowledged abuse of discretion as the appropriate standard of review, stating: "In both Scruggs and Wheeler [v. Stewart, 798 So.2d 386 (Miss.2001)] we were called upon to determine whether the trial court's award of sanctions pursuant to the Litigation Accountability Act was ah abuse of discretion." Also, in Foster v. Ross, 804 So.2d 1018, 1022 (Miss.2002), the Court provided the appropriate standard of review, holding: "When reviewing a decision regarding the imposition of sanctions pursuant to the Litigation Accountability Act, this Court is limited to a consideration of whether the trial court abused its discretion.” (citations omitted).

      . Subsection (2) of Mississippi Code Annotated Section 11-55-5 is referred to as the "safe harbor” provision by CCHDD.

      . The court in In re Joint Eastern & Southern Districts Asbestos Litigation also went on to examine in detail the complaints associated with the process, stating, “A number of studies have shown that some plaintiffs' doctors consistently over-diagnose asbestos-related conditions.” 237 F.Supp.2d at 309.

      . Silicosis is a disabling, nonreversible and sometimes fatal lung disease caused by overexposure to respirable crystalline silica. U.S. Dept, of Labor and the National Institute of Occupational Safety and Health, Preventing Silicosis (1996).

      .NIOSH denotes the National Institute for Occupational Safety and Health, a U.S. federal agency, part of the Centers for Disease Control and Prevention (CDC), which conducts research and makes recommendations for the prevention of work-related disease and injury. See http://www.cdc.gov/niosh.html.
      A B-reader is a doctor certified by NIOSH to identify the presence of asbestos- and silica- related disease precursors on chest x-rays. See Gibson v. Workers' Compensation Appeal

        Bd., 580 Pa. 470, 861 A.2d 938, 942 n. 4 (2004).

      . Dr. George Martindale issued a diagnosis of silicosis for many of the CCHDD Plaintiffs as the second B-reader. Dr. Martindale later withdrew his diagnoses, claiming that he did not intend to diagnosis silicosis. CCHDD claimed that it was unaware of this. According to a letter from Dr. Martindale to Billy H. Davis, Esq., Campbell Cherry Harris Davis and Dove, dated March 25, 2005, Dr. Martin-dale informed Attorney Davis regarding the background and scope of his services provided to N & M as a B-reader. Dr. Martindale stated that he was hired by N & M, and he neither had any contact with any attorney from CCHDD nor any Defendant’s attorney concerning his diagnoses until he was subpoenaed by a defense attorney in October 2004. According to Dr. Martindale, he never intended on being designated as a "diagnosing physician” or being deposed. Dr. Martin-dale stated that all his records were turned over to the screening company that hired him, N & M. The Defendants cite Dr. Martin-dale’s recantation as grounds to grant the motions for sanctions against CCHDD.