author: ROBERTS, J.,

text:
    Carlos VARNADO, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00591-COA.
    Court of Appeals of Mississippi.
    July 19, 2011.

      Benjamin Allen Súber, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. On February 14, 2008, Carlos Var-nado was indicted on one count of conspiracy to commit armed robbery, nine counts of armed robbery, and one count of capital murder. The State later nol prossed three counts of armed robbery and the murder count. At his January 2010 trial in the Marion County Circuit Court for the count of conspiracy to commit armed robbery and the six counts of armed robbery, a jury unanimously found Varnado guilty of all seven counts. Varnado was sentenced to five years in the custody of the Mississippi Department of Corrections (MDOC) for the conspiracy count to run concurrently with his sentences for the armed-robbery counts. He was sentenced to twenty years in the custody of the MDOC for each armed-robbery count. Counts two and three were ordered to run consecutively to each other. The remaining counts were ordered to run concurrently to each other. Therefore, Varnado was ultimately sentenced to serve forty years in the custody of the MDOC. Varnado filed a motion for reconsideration and a motion for a new trial which the circuit judge denied. Feeling aggrieved, Varnado appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. On March 18, 2007, a group of men were gathered in a building adjacent to the home of Leon Andrews in Columbia, Mississippi. The building was typically used, as it was that night, to play pool, watch ball games, and “shoot dice.” Later that night, two armed men with stockings covering their faces burst through the building’s door and ordered everyone to get on the floor. At gunpoint, the two men demanded marijuana, money, and cell phones. After collecting the items, the two men forced the others to take off their clothes. During the course of the robbery and while exiting the building, the two men fired multiple shots into the building; one bullet ultimately killed Lorenzo Flowers.

¶ 3. When the police arrived at the scene, the robbery victims identified the two men as Joshua Moore and Varnado. Police arrested both men and recovered weapons, clothing, and a cell phone. A Marion County grand jury indicted both men and a third man, Christopher Thompson, on one count of conspiracy to commit armed robbery, nine counts of armed robbery, and one count of capital murder. In the case against Varnado, the State nol prossed three counts of armed robbery and the murder count. On January 25, 2010, Varnado was tried alone in front of a jury on one count of conspiracy to commit armed robbery and six counts of armed robbery. After hearing the testimony and evidence presented, the jury unanimously returned guilty verdicts for all counts. He received a five-year sentence for Count I: conspiracy to commit armed robbery. Varnado then received twenty-year sentences for armed robbery on Counts II through VII. Counts I, IV, V, VI, and VII were ordered to run concurrently with the sentences imposed in Counts II and III. Counts II and III were ordered to run consecutively to each other. He would ultimately serve a total of forty years in the custody of the MDOC. Varnado was also ordered to pay fines, fees, and restitution.

¶ 4. Varnado filed a motion for reconsideration and a motion for a new trial. The circuit judge denied both motions. It is from these denials that Varnado appeals. He raises three issues which we recite verbatim:

I. The evidence was insufficient to support a conviction of armed robbery [of] Earnest Ratlifff.]
II. The trial court erred by allowing hearsay testimony.
III. The trial court erred by not suppressing any and all statements made by Varnado due to his inability to knowingly and voluntarily waive his Miranda rights.

¶ 5. Finding no error, we affirm the circuit court’s judgment.

ANALYSIS

I. SUFFICIENCY OF THE EVIDENCE

¶ 6. Varnado first argues that there were insufficient evidence to support the conviction of armed robbery of the victim Earnest Ratliff. The standard of review for challenges to the sufficiency of the evidence is well settled in Mississippi. Viewing the evidence, in the light most favorable to the State, “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.]’ ” Brown v. State, 48 So.3d 614, 616 (¶ 6) (Miss.Ct.App.2010) (quoting Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted)). Further, if “any rational trier of fact could have found, beyond a reasonable doubt, that the essential elements of the crime existed, this Court will affirm the conviction.” Id. “If we find that reasonable, fair-minded jurors could have concluded that the defendant was guilty of the accused crime, the evidence will be deemed sufficient.” Id.

¶ 7. In his brief, Varnado notes that he moved for a directed verdict at trial and made post-trial motions to reconsider and for a new trial; all were denied. However, Varnado fails to note that he did not raise this particular issue in the motion for a directed verdict, motion to reconsider, or motion for a new trial. From our reading of the record, we determine the circuit court never had an opportunity to hear this particular issue. The failure to raise an issue at the trial level is a procedural bar to the issue on appeal. Birrages v. Ill. Cent. R.R. Co., 950 So.2d 188, 194 (¶ 18) (Miss.Ct.App.2006) (citing Bell v. State, 769 So.2d 247, 251 (¶ 8) (Miss.Ct.App.2000)). Procedural bar notwithstanding, we will address the merits of this issue.

¶ 8. Mississippi’s armed-robbery statute is found in Mississippi Code Annotated section 97-3-79 (Rev.2007) and states the following:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery....

Varnado argues that the evidence does not show that all the elements of armed robbery were met in regard to Ratliff. In particular, he claims that the carrying away of the property of another was not proved at trial. Ratliff testified that no money was taken from him because he had lost all of his money in the dice game. Since no money was taken from Ratliff, Varnado argues that his conviction on that count should not stand and that this Court should reverse and render the case. We disagree.

¶ 9. Varnado is not the first person convicted of armed robbery to make this argument before this Court. It is well-settled case law in the state of Mississippi that a “conviction based on armed robbery does not require that there be an actual taking.” Croft v. State, 992 So.2d 1151, 1159 (¶ 33) (Miss.2008); see also Cooper v. State, 386 So.2d 1115, 1116 (Miss.1980); White v. State, 969 So.2d 72, 82 (¶ 38) (Miss.Ct.App.2007); Houston v. State, 811 So.2d 371, 372 (¶¶ 4-5) (Miss.Ct.App.2001). This Court has held that the armed-robbery statute includes the crime of attempted armed robbery and that “the crime of armed robbery is complete at the attempt.” White, 969 So.2d at 82 (¶ 38). Further, “[w]hen a perpetrator attempts to rob a victim, the perpetrator may not know what valuables, if any, the victim has with him. Armed robbery is not defeated when the perpetrator finds out that the victim has nothing of value to take.” Id. In this case, Varnado is still guilty of armed robbery even though Ratliff had nothing of value to take. Varnado attempted to take property from Ratliff and would have succeeded had Ratliff not lost all of his money in the dice game.

¶ 10. Keeping in mind our standard of review, we find that there was sufficient evidence to support an armed-robbery conviction. Thus, we find this issue without merit.

II. HEARSAY

¶ 11. Varnado’s second argument is that the trial court erred by allowing hearsay testimony during trial. The standard of review that this Court applies when reviewing the admission or exclusion of evidence is abuse of discretion. Walls v. State, 928 So.2d 922, 927 (¶ 12) (Miss.Ct.App.2006) (citing Harrison v. McMillan, 828 So.2d 756, 765 (¶ 27) (Miss.2002)). At issue is Officer Roy Clingon’s testimony that he was told by Officer Doug Barnes that Vivian Alexander had received a phone call informing her that Varnado had shot someone. Varnado asserts that this testimony unfairly bolstered Officer Clin-gon’s testimony and that his right to cross-examination was diluted.

¶ 12. This issue was addressed previously by the circuit court. Varnado filed a motion in limine to prohibit several pieces of evidence, including:

Any out of court statements made to any witness, including but not limited to the following: statements (whether oral or written) made by witnesses to any law enforcement personnel, statements made by one law enforcement officer to any other law enforcement officer, and anything that Vivian Alexander may have heard from Colby Stanley as to what Varnado allegedly told him; as same constitutes inadmissible hearsay[.]

At trial, the circuit judge heard Varnado’s argument on the motion in limine and found that he would not preclude the statements as long as they fit within an exception of the hearsay rule. During the State’s direct examination of Officer Clin-gon, Varnado again objected to the testimony as it was “triple hearsay” not within any of the exceptions or that, pursuant to Mississippi Rule of Evidence 408, the prejudicial effect outweighs the probative value. The State’s response was that the statement was not hearsay because it was not being offered to prove the truth of the matter asserted. It was only being offered to show why and how the police had developed Varnado as a suspect. The circuit judge overruled Varnado’s objection on the ground that the statement was introduced to show the investigation process and not to prove Varnado’s guilt or innocence. The following testimony was given in front of the jury:

STATE: But prior to that time, how did you and/or Officer Barnes develop Mr. Varnado as a suspect?
OFFICER CLINGON: [Officer] Doug Barnes received information from Vivian Alexander that she had received a phone call that — that [sic] Carlos Varnado had called and stated that he had shot someone.

Varnado asserts that this statement “is not the kind of investigatory exception to hearsay which has been carved out to explain an investigating offieer[’]s action” found in Jackson v. State, 985 So.2d 1108, 1114 (¶¶ 8-9) (Miss.Ct.App.2006). We disagree and find that this statement Officer Clin-gon made at trial is within that exception. In Jackson, 935 So.2d at 1114 (¶ 8), the circuit court allowed the officer to testify that the reason he went to Jackson’s home was based on statements from two people that the stolen property was at Jackson’s home. This Court found that none of the statements “were offered to prove the truth of the matter asserted, which was whether the stolen items were in Jackson’s possession.” Id. at (¶ 9). The statements were to show why the officer was at Jackson’s home, not that the stolen property was in Jackson’s possession. Id. The facts of the current case are similar. In this case, it is clear from the record that the State offered the statements to show how Varnado’s name was brought to their attention as a possible suspect and not that Varnado had shot someone.

¶ 13. We hold that the statements offered were not used to show the truth of the matter asserted, and we find the circuit judge did not abuse his discretion by allowing such statements at trial. This issue is without merit.

III. WAIVER OF MIRANDA RIGHTS

¶ 14. Varnado’s final argument is that he did not have the requisite mental capacity to make a knowing and voluntary waiver of his Miranda rights before he gave a confession to the police. Before addressing Varnado’s argument, it is important to note our standard of review is limited when determining whether a waiver of Miranda rights were voluntarily and knowingly given. Miller v. State, 740 So.2d 858, 866 (¶ 34) (Miss.1999). The Mississippi Supreme Court held that the determination of “[wjhether there has been an intelligent, knowing and voluntary waiver is essentially a factual inquiry to be determined by the trial judge from the totality of the circumstances.” Neal v. State, 451 So.2d 743, 753 (Miss.1984). Our review of.a trial court’s finding of fact is to determine if the trial judge applied the appropriate legal standard when evaluating the facts. Id. If we determine that the trial judge did apply the appropriate legal standard, we next determine if there was substantial evidence presented to support his/her finding. Id.

¶ 15. We agree with Varnado’s assertion in his brief that the mental abilities and intelligence level are factors to be considered when determining the volun-tariness of a confession. Id. at 755-56. However, we disagree with Varnado that the circuit judge erred in not suppressing Varnado’s confession; instead, we find that the circuit judge applied the appropriate legal standard and that there was sufficient evidence presented to support his finding.

¶ 16. On January 13, 2010, the circuit court held a hearing on Varnado’s motion to suppress his involuntary statements. At this hearing, Varnado offered the testimony of Dr. William Criss Lott to show that Varnado had been previously diagnosed with a form of mild retardation or borderline intellectual functioning. Dr. Lott testified that, in his opinion, Varnado “did not appear to have the sever adaptive deficits, or daily living skills deficits, that would render him mentally retarded according to the Diagnostic and Statistical Manual ... [,]” but his intellectual level “ranged from the extremely low level to the moderately retarded range to more recent scores in the borderline range[;] all are in the below-average or the sub[-]average level.” He further testified that with regard to waiving Miranda rights, he thought that Varnado understood that he was voluntarily agreeing to speak, but it was less certain, and difficult to determine with certainty, as to whether Varnado truly understood the long-term consequences of his statements. Also at the hearing, the testimony of Officer Barnes was offered by the State. Officer Barnes, along with two other officers, gave Varnado his Miranda rights and interviewed him the morning after the incident. Officer Barnes also testified that the Miranda waiver that Varnado had signed consisted of two parts. The first part inquired as to whether Var-nado understood the rights. The second part inquired whether Varnado, being mindful of the results of waiving his rights, waived these rights. Varnado answered in the affirmative to both questions and gave a verbal statement to the officers. Based on the evidence presented at this hearing, we find that there is sufficient evidence to support the circuit judge’s finding that the waiver was voluntarily and knowingly made.

¶ 17. This issue is without merit.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF MARION COUNTY OF CONVICTION OF COUNT I, CONSPIRACY TO COMMIT ARMED ROBBERY, AND SENTENCE OF FIVE YEARS, AND COUNTS II, III, IV, V, VI, AND VII, ARMED ROBBERY, AND SENTENCE OF TWENTY YEARS FOR EACH COUNT, WITH THE SENTENCES IN COUNTS I, IV, V, VI, AND VII TO RUN CONCURRENTLY, AND WITH THE SENTENCES IN COUNTS II AND III TO RUN CONSECUTIVELY TO EACH OTHER AND CONCURRENTLY WITH THE SENTENCES FOR THE REMAINING COUNTS, FOR A TOTAL OF FORTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARION COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR.

      . Also listed in the indictment were the names of Joshua Moore and Christopher Thompson. Neither Moore nor Thompson are involved in this appeal.

      . It was later determined at a separate trial that Moore was responsible for the death of Flowers. As a result of that decision, the State nol prossed the murder charge against Varnado.


source: Caselaw Access Project

author: ROBERTS, J., IRVING, P.J.,

license: Public Domain

text:
    SCOTT COLSON’S SHOP, INC. and the Ohio Casualty Insurance Company, Appellants v. Parnell HARRIS, Appellee.
    No. 2010-WC-00363-COA.
    Court of Appeals of Mississippi.
    July 19, 2011.

      Robert Elliott Briggs III, attorney for appellants.
    Louise Harrell, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. Parnell Harris filed a claim for workers’ compensation benefits against Scott Colson’s Shop, Inc. (SCSI). Harris claimed he became totally and permanently disabled as a result of being mistreated while he was employed at SCSI. The administrative judge (AJ) who initially heard Harris’s claim awarded Harris full compensation benefits. SCSI appealed to the full Mississippi Workers’ Compensation Commission (Commission). The Commission reversed the AJ’s decision. Harris then appealed to the Hinds County Circuit Court. The circuit court reversed the Commission’s decision and awarded full compensation benefits. Aggrieved, SCSI appeals and asserts that: (1) the Commission did not err when it considered hearsay evidence that the AJ refused to consider; (2) the circuit court improperly substituted its judgment for the Commission’s; and (3) the Commission properly found that Harris was not entitled to workers’ compensation benefits. After careful consideration, we find that the circuit court erred when it reversed the judgment of the fact-finder, the Commission. Accordingly, we reverse the judgment of the circuit court and reinstate the Commission’s order finding that Harris is not entitled to workers’ compensation benefits.

FACTS AND PROCEDURAL HISTORY

¶ 2. In December 1998, Harris began making horseshoes in SCSI’s blacksmith shop in Hinds County, Mississippi. According to Harris, who was approximately thirty years old at that time, his supervisor, Alex McGowan, began harassing him on his second day of work. Harris later claimed that McGowan was verbally abusive. Harris further claimed that McGowan had barbeques at SCSI’s facility and that he only invited white employees. Harris also complained that McGowan was outwardly critical of prominent African Americans.

¶ 3. Harris claimed that McGowan used offensive racial slurs while relating a story about an African American man’s penis being shot off. McGowan did not relate the story directly to Harris, but Harris was present while McGowan told the story.

¶ 4. On one other occasion, approximately six months later, McGowan told a story to Harris and Tony McKay, another African American employee at SCSI. McGowan’s story involved explaining how someone else had used a racial slur. In other words, McGowan repeated a racial slur that someone else had used in the past. Harris became so upset that he clocked out and went home.

¶ 5. Mark Clay bought SCSI from Scott Colson while Harris worked at SCSI. Clay learned about Harris’s leaving work due to McGowan’s story. Clay called Harris and convinced him to return to work the next morning so McGowan could apologize. However, McGowan did not appear the next morning. Clay apologized on McGowan’s behalf. McGowan arrived at work at approximately 10:00 a.m. It is disputed whether McGowan apologized later. In any event, Harris became upset and left work at approximately 12:00 p.m. He never returned to work.

¶6. Over time, Harris became increasingly paranoid. His mental condition became debilitating. Therapy notes from treating physicians note that the incidents at SCSI figured heavily into Harris’s mental state. Essentially, Harris had become fearful and upset. He directly related his feelings to his experiences while working at SCSI. According to Harris, he was afraid that McGowan or Colson, the owner of SCSI for the majority of the time that Harris worked there, would try to kill him. Harris’s fear was based on an imaginary threat to Harris’s life by McGowan and/or Colson.

¶ 7. By the time of the hearing before the AJ, approximately seven years after Harris had quit his job at SCSI, Harris was completely disabled as a result of his mental condition. Dr. Wood Hiatt, a board-certified psychiatrist, examined Harris on behalf of SCSI. Dr. Hiatt opined that Harris suffered from severe, chronic paranoid schizophrenia. Two of Harris’s three treating physicians had expressed the same diagnosis. Although Harris’s treating physicians never provided an explicit explanation of what caused Harris’s schizophrenia, Dr. Hiatt stated that paranoid schizophrenia normally develops during late adolescence or early adulthood. Dr. Hiatt did not believe that Harris’s experiences at SCSI could have caused Harris’s schizophrenia.

¶ 8. On June 9, 2000, Harris filed a petition to controvert. On January 22, 2007, the AJ issued his opinion, finding that Harris was entitled to workers’ compensation benefits. SCSI appealed the AJ’s opinion to the Commission. On December 5, 2007, the Commission made its findings and legal conclusions effectively overruling the AJ’s opinion. Harris appealed to the circuit court. On December 28, 2009, the circuit court issued its opinion and order reversing the Commission’s decision and awarding full compensation benefits. SCSI appeals.

STANDARD OF REVIEW

¶ 9. The Mississippi Supreme Court has held:

The standard of review in workers’ compensation cases is limited. The substantial evidence test is used. See Walker Mfg. Co. v. Cantrell, 577 So.2d 1243, 1245-47 (Miss.1991). The Workers’ Compensation Commission is the trier and finder of facts in a compensation claim. [An appellate court] will overturn the Workers’ Compensation Commission decision only for an error of law or an unsupported finding of fact. Georgia Pac. Corp. v. Taplin, 586 So.2d 823, 826 (Miss.1991). Reversal is proper only when a Commission's] order is not based on substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law. Smith v. Jackson Constr. Co., 607 So.2d 1119, 1124 (Miss.1992).

Weatherspoon v. Croft Metals, Inc., 853 So.2d 776, 778 (¶ 6) (Miss.2003). Furthermore, as is always the case, questions of law receive a de novo review. Short v. Wilson Meat House, LLC, 36 So.3d 1247, 1251(23) (Miss.2010).

¶ 10. Furthermore, “[w]hen an appeal is resolved by the Commission, the administrative judge’s decision become[s] moot.” Kitchens v. Jerry Vowell Logging, 874 So.2d 456, 462 (¶ 16) (Miss.Ct.App.2004). “The administrative judge is not an independent arbiter entitled to deferential review by the Commission, as a trial judge is independent of her reviewing appellate court.” Id. at (¶ 18). “There may be substantial evidence to support the administrative judge’s findings, but so long as there also is substantial evidence to support the Commission’s contrary findings, the latter will be upheld.” Id. at (¶ 17) (citing Day-Brite Lighting v. Cummings, 419 So.2d 211, 213 (Miss.1982)).

ANALYSIS

I. HEARSAY EVIDENCE

¶ 11. This contention of error concerns whether the Commission improperly considered hearsay evidence in the form of an affidavit by Jimmy Hudson, who was McKay’s stepfather and Harris’s co-worker at SCSI. Prior to the hearing before the Commission, Hudson was diagnosed with terminal cancer and subsequently had passed away. Hudson’s affidavit averred that Harris had exhibited odd behavior, such as talking to himself. Hudson’s affidavit also averred that Hudson had never heard any racial slurs at work. Furthermore, Hudson’s affidavit averred that he had never found the work environment at SCSI to be “racially hostile.” Hudson’s affidavit closed by stating that Hudson was “an African-American male.”

¶ 12. Under the Commission’s procedural rules, the rules of evidence are relaxed during the Commission’s proceedings. See Short, 36 So.3d at 1255 (¶ 36). Therefore, the Commission was entitled to use and consider Hudson’s affidavit during its deliberations. We note, however, that the information contained in Hudson’s affidavit is not dispositive of Harris’s claims or Harris’s condition. Regardless, the circuit court erred when it found that the Commission erred in considering Hudson’s affidavit.

II. THE COMMISSION’S DECISION

¶ 13. SCSI’s second and third issues both address whether the Commission correctly denied Harris’s claim for workers’ compensation benefits. SCSI .contends that the Commission ruled correctly; therefore, the circuit court erred in overruling the Commission’s decision. We agree.

¶ 14. It is necessary to distinguish two distinctly separate but often confused concepts: causation of Harris’s schizophrenia and the aggravation or exacerbation of a pre-existing mental condition. The record contains absolutely no evidence that Harris had been diagnosed with a mental illness at any time prior to or during his employment at SCSI. Harris presented no testimony whatsoever that, prior to his walking out on the job in June 1999, he had been diagnosed with or received treatment for a mental condition. In other words, prior to his being hired in December 1998, there is no evidence that Harris had a history of mental illness. Accordingly, there is no evidence that Harris had a pre-existing condition that was aggravated or exacerbated by his employment at SCSI. In fact, after Harris quit working for SCSI in June 1999, he successfully applied for unemployment benefits. As noted by the Commission, in so doing, Harris “stated in his application that he was capable of full-time employment. In fact, when specifically asked[,] ‘Is there any reason you cannot accept full-time work,’ the Claimant responded by cheeking ‘no.’ ” Four months later, Dr. Mark Lad-ner first diagnosed Harris with depression and possible post-traumatic-stress disorder. Seventeen months after Harris had walked out at SCSI, Dr. Mario Pineda then diagnosed Harris with schizophrenia. In November 2002, Dr. Pineda concluded that Harris was suffering from chronic schizophrenia. There is simply no evidence that Harris was suffering from schizophrenia before or during the time that he worked for SCSI.

¶ 15. The real issue in this case is one of causation. In reversing the Commission’s decision, the circuit court held that the Commission “did not give proper weight to the testimony of [Harris’s] treating physician, Dr. Ladner, and gave too much weight to the testimony of [SCSI’s] expert, Dr. Hiatt.” The circuit court did not specify any of Dr. Ladner’s testimony that the Commission supposedly failed to weigh properly. Nonetheless, the circuit court went on to hold that: “having made an objective review of the record ... the decision of the [Commission] was not supported by substantial evidence and [was,] therefore[,] arbitrary and capricious.”

¶ 16. Harris claimed that a racially hostile environment at SCSI caused him to develop paranoid schizophrenia. It is necessary to note that it was highly disputed that there was actually a racially hostile environment at SCSI. The Commission’s decision specifically stated as follows:

The Claimant, ... Harris, was hired by Mr. Scott Colson in December ... 1998. The Claimant was hired to make horseshoes in the Employer’s blacksmith shop. According to the Claimant, he was harassed, discriminated against, his civil rights were violated and he was physically abused, by his then supervisor Alex (a.k.a.“Donnie”) McGowin.[] Mr. Harris claims that Mr. McGowin cursed and screamed at him, pushed him on one occasion while he was making horseshoes, and used racial slurs, specifically the “n-word” in his presence. With regard to the use of the “n-word,” Claimant has alleged that he can recall only two specific incidences where the word was used, and in both instances, the “n-word” was used only in stories that Mr. McGowin was telling about other individuals.
In the first incident, Mr. McGowin was not speaking to the Claimant but to another employee, John Bingham, and the Claimant overheard Mr. McGowin use the “n-word.” In the second incident, Mr. McGowin was telling Claimant and another African-American employee, Tony McKay, a story that a relative told him. At no time, did Mr. McGowin call the Claimant himself the “n-word.” According to the Claimant, after the second incident, he left work early but, thereafter, returned to work at his usual time of 7:00 a.m. the next day. Claimant also claims that on the following day, June 9, 1999, Mr. McGowin told him he did not feel an apology was warranted. Mr. McGowin supposedly made this statement in front of both Tony McKay and Jimmy Hudson. As a result, Claimant stated he once again left work early and, thereafter, did not return.
Tony McKay and Jimmy Hudson worked with the Claimant shoeing horses and were also supervised by Mr. McGowin. Both Mr. McKay and Mr. Hudson are, coincidentally, African-Americans and deny ever witnessing any of the alleged conditions or behavior by Mr. McGowin. In fact, Tony McKay testified as follows:
Q. What type of relationship did [Harris] and Mr. McGowin have?
A. A supervisor and employee relationship.
Q. You don’t recall anything else?
A. No.
Q. Did they get along?
A. As far as I know.
With regard to Mr. McGowin’s alleged use of the “n-word,” Mr. McKay testified that he was only aware of its use while Mr. McGowin was telling a story about his relatives. Mr. McKay further testified that Mr. McGowin apologized both before and after telling the story:
Q. Before Mr. McGowin told the story in the breakroom, did he say anything to the people who were present?
A. Yes, he apologized, first of all, in the beginning and in the end, you know, if it offended anybody.
Q. What did he say in particular?
A. “I ain’t trying to sound racist or nothing.” Something like that. “I hope what I’ve said don’t offend anybody because this is something that happened in the past.”
In stark contrast to the Claimant’s testimony, Mr. McKay testified that Mr. McGowin did, in fact, apologize to the Claimant:
A. Yes, I heard the apology several times from Donnie.
Q. You heard it several times?
A. Yes. Not only has he apologized to [Harris], but he apologized to me and Jimmy also.
Q. He apologized to you and Jimmy and [Harris]?
A. Yes.
Q. Was [Harris] present when he apologized to you all?
A. No, madam.
Q. So, he apologized to you all separately from [Harris]?
A. Uh-uh (indicating yes).
Q. But you were present when he apologized to [Harris]?
A. Yes.
Moreover, Tony McKay testified that he was not offended by Mr. McGowin’s story as it was merely involving a story about people in the past.
Jimmy Hudson was Mr. McKay’s step-father. Prior to the trial, Mr. Hudson was diagnosed with terminal throat cancer. In a[f]ederal discrimination lawsuit involving the same parties and same incidents, Mr. Hudson submitted certain affidavit testimony providing that in his ten plus years of employment with [SCSI], he did not find the working environment to be racially hostile. Moreover, Mr. Hudson, who worked side by side with the Claimant, stated Claimant “appeared to have some sort of psychiatric or emotional condition, as he talked to himself frequently.”
Mark Clay and Scott Colson also dispute the Claimant’s allegations. However, Mr. Clay and Mr. Colson, like Tony McKay, did admit that McGowan did on occasion use curse words and profanity but they were never directed to any one person. Similarly, at no time did they ever witness Mr. McGowin directing the “n-word” at any specific person. In fact, Mark Clay testified as follows:
Q. Now when did you see Mr. Col-son that day? Not Mr. Colson. I’m sorry. Mr. McGowin?
A. Probably an hour later.
Q. What happened when you saw him?
A. I got [Harris] in the break room and Mr. McGowin apologized.
Q. You were present when Mr.— what did Mr. McGowin say?
A. He said, I’m sorry if what I said, you know, offended you. He said, I’m sorry. It was not directed at you. McGowan himself admits using pro-
fanity and having a “dirty mouth” but clearly states that he never directs his curse words to any one person and it is done around both whites and blacks. He denies ever yelling or cursing at Mr. Harris. The allegation that Mr. Harris makes about McGowan popping his hand and pushing him is strongly denied by Mr. McGowan. McGowan admits to grabbing a tool from Harrises] hand and stepping in between him and a machine in an effort to protect him from harming himself, but he classifies this as an attempt to save his life or prevent injury.
With regard to the incident that occurred on or about June 9, 1999, this involved a story told by Mr. McGowan about his grandfather and the use of the word “[-.]” Mr. McGowan admits that he told the story and the word was used but it was not directed at any one person. He states that he just repeated something someone else said in telling the story. In addition, McGowan states that prior to telling the story, he apologized to Harris and Tony McKay, that he was not intending to offend anyone but he would tell the story as it was told to him. He also apologized after telling the story concerning the use of the word “[-.]” In addition, McGowan states that the day after the story he apologized again to Harris for using the word “[-,]” and that Harris seemed to accept the apology and not be bothered by it.
The first time that the Claimant sought medical treatment for his medical condition was October 19, 1999, more than [four] months after the alleged incident. During these four months, the Claimant also received unemployment compensation benefits from the Mississippi Department of Employment Security. Notably, in order to receive such unemployment benefits the Claimant stated in his application that he was capable of full-time employment. In fact, when specifically asked[,] “Is there any reason you cannot accept full-time work,” the Claimant responded by checking “no.”

¶ 17. In reversing the Commission’s decision, the circuit court held that the Commission “did not give proper weight to the testimony of [Harris’s] treating physician, Dr. Ladner, and gave too much weight to the testimony of [SCSI’s] expert, Dr. Hiatt.” The circuit court did not specify any of Dr. Ladner’s testimony that the Commission supposedly failed to weigh properly. Nonetheless, the circuit court went on to hold that: “having made an objective review of the record ... the decision of the [Commission] was not supported by substantial evidence and [was,] therefore[,] arbitrary and capricious.”

¶ 18. As stated above, the Commission is the trier and finder of facts in a compensation claim. Weatherspoon, 853 So.2d at 778 (¶ 6). The circuit court may have opted to weigh certain evidence differently than the Commission, but objectively weighing the evidence was not a proper component of the circuit court’s review as an appellate court. The fact of the matter was that the Commission’s decision was supported by substantial evidence. An appellate court is directed to affirm the Commission’s decision unless the decision was based on an unsupported finding of fact. Id.

¶ 19. Neither party disputes that Harris’s claim is what has been described as a “mental/mental” claim. “[A] ‘mental/mental’ injury is a mental or nervous injury stemming from mental stimulus, ‘with no physical component in either the cause or the disabling consequence.’ ” Hosp. Housekeeping Sys., Inc. v. Townsend, 993 So.2d 418, 424 n. 1 (Miss.Ct.App.2008) (quoting 3 Larson’s Workers’ Compensation Law, § 56.06(3) (2000)). “[W]hen [a] claimant seeks benefits as a result of a compensable mental injury, the burden of proof is raised to clear and convincing evidence of a causal connection between the injury and employment.” Id. at 423 (¶ 19) (citing Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988)). “[W]ith a mental/mental claim, the claimant is also required to show that the mental injury was ‘caused by something more than the ordinary incidents of employment.’ ” Id. at 424 (¶ 21). “In general, where the claim is based upon a mental or nervous disease, it is viewed with the normal suspicion attending claimed disabilities which have no physical cause traceable to objective findings, and the burden of proof, which rests upon the claimant, is greater than [in] ordinary cases.” Smith and Sanders, Inc. v. Peery, 473 So.2d 423, 425 (Miss.1985) (citation omitted).

¶ 20. “When our standard of review is applied ... [to] any case involving the claim that a mental injury is compen-sable through worker’s compensation benefits, it dictates that there must be substantial evidence for the Commission’s finding that [a claimant] met [the] burden of proof.” Hospital Housekeeping Systems, Inc., 993 So.2d at 425 (¶ 24). In the context of reviewing an administrative agency’s decision, “substantial evidence” is “something more than a ‘mere scintilla’ or suspicion.” Id. Substantial evidence has also been defined as “such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Id. Additionally, substantial evidence has been described as “that which provides an adequate basis of fact from which the fact in issue can be reasonably inferred.” Id.

¶ 21. Because Harris raised a “mental/mental” claim for worker’s compensation benefits, he was required to demonstrate clear and convincing evidence of a causal link between his later diagnosed paranoid schizophrenia and the earlier events that happened at SCSI. Id. at 426 (¶ 30). Clear and convincing evidence has been defined as:

that weight of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case.

Moran v. Fairley, 919 So.2d 969, 975 (¶ 24) (Miss.Ct.App.2005) (quoting Travelhost, Inc. v. Blandford, 68 F.3d 958, 960 (5th Cir.1995)). In fact, “[c]lear and convincing evidence is such a high standard that even the overwhelming weight of the evidence does not rise to the same level.” Id.

¶ 22. Based on a proper review of the Commission’s decision — within the bounds of the standard of review — we find that there was substantial evidence to support the Commission’s conclusion that Harris had failed to present clear and convincing evidence that his paranoid schizophrenia was causally connected to his six-month employment at SCSI. Dr. Hiatt explicitly opined that Harris’s schizophrenia could not have been caused by anything that happened at SCSI. Dr. Hiatt stated: “It is my opinion within a reasonable degree of medical certainty that the chronic paranoid [schizophrenia suffered by Parnell Harris was not caused by employment at [SCSI]. Specifically ... the pattern of comments by the supervisor and owners of [SCSI] did not ‘cause’ [schizophrenia.” There is nothing in the record to undermine Dr. Hiatt’s conclusion.

¶ 23. Dr. Ladner, one of three psychiatrists who had personally treated Harris, noted that Harris discussed events at SCSI during counseling treatments, but Dr. Ladner did not relate Harris’s schizophrenia with Harris’s employment with SCSI. What is more, Dr. Ladner did not even diagnose Harris as suffering from schizophrenia. Dr. Ladner referred Harris to Dr. Pineda. Dr. Pineda, a psychiatrist, diagnosed Harris with schizophrenia. Dr. Pineda noted that Harris referred to events that occurred at SCSI, but Dr. Pineda never explicitly related Harris’s mental illness to Harris’s employment at SCSI. Dr. Andrew Bishop treated Harris after Dr. Pineda. Dr. Bishop, also a psychiatrist, never mentioned a causal connection between Harris’s mental illness and Harris’s employment.

¶ 24. The Commission found no causal connection between Harris’s mental illness and his employment at SCSI. Specifically, the Commission found as follows:

In the case of a mental injury which arises in the absence of any physical trauma, the Claimant must show by clear and convincing evidence that the mental injury has been caused or contributed to or aggravated by something more than the ordinary incidents of employment. This test of causation is by now familiar to all. It is our considered opinion that [Harris] has not presented clear and convincing evidence that his alleged mental injury is causally related to the alleged work incidents.

(Emphasis added). The Commission went on to find as follows:

Again, [Harris] did not seek medical treatment for his alleged medical condition until some [four] months after leaving [SCSI]. Since beginning treatment at the Jackson ... Mental Health Center, [Harris] has treated with [sic] three different psychiatrists. He was eventually diagnosed by a psychiatrist at that clinic with paranoid schizophrenia. At no time during his treatment did any of his physicians specifically causally relate his medical condition to the alleged events or incidents at work. Although the records reference [Harris’s] work with [SCSI] and give a history of events as reported by [Harris], the records do not state that [Harris’s] work caused his schizophrenia. In fact, the records indicate that [Harris] was affected by, and fearful of, many other things including utility workers at his house, the West Nile virus, mosquitoes, and strangers in general.
Dr. Hiatt is the only medical expert of record to give an opinion regarding causation as none of [Harris’s] other treating physicians were ever deposed and at no time in their records of treatment do they ever express an opinion concerning causation.
In the present case, there is ... no convincing medical opinion connecting [Harris’s] mental injury to his employment and [Harris’s] attempt to identify extraordinary incidents of employment are not only not corroborated, they are disputed in most every material respect.

¶ 25. To summarize, none of Harris’s three treating psychiatrists mentioned a causal connection between Harris’s mental illness and Harris’s employment at SCSI. As the Commission accurately noted, “none of [Harris’s] other treating physicians were ever deposed and at no time in their records of treatment do they ever express an opinion concerning causation.” Dr. Hiatt explicitly stated that there was no causal connection between Harris’s later development of mental illness and Harris’s employment at SCSI. Consequently, there was absolutely no testimony that there was any connection between Harris’s employment at SCSI and Harris’s eventual diagnosis of paranoid schizophrenia. Nor was there any testimony that an incident at work exacerbated or aggravated any pre-existing mental illness Harris might have had. It follows that there was substantial evidence to support the Commission’s conclusion that Harris had failed to present clear and convincing evidence that he was entitled to workers’ compensation benefits. The dissent would propose to remand Harris’s case to the Commission for a determination of whether Harris’s mental condition was exacerbated, aggravated, or contributed to by his employment at SCSI. We can perceive no reason that Harris could not have timely presented any evidence — assuming such evidence existed — that he was suffering from a preexisting mental illness during or prior to his employment at SCSI and that such illness was aggravated by his employment. We find that Harris’s first bite of the proverbial apple was quite adequate. Accordingly, we find that the circuit court erred when it substituted its view for that of the Commission’s. Therefore, we reverse the decision of the circuit court and reinstate the judgment of the Commission, in which the Commission found that Harris was not entitled to recover workers’ compensation benefits.

¶ 26. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REVERSED, AND JUDGMENT IS RENDERED TO REINSTATE THE DECISION OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

GRIFFIS, P.J., MYERS, BARNES AND MAXWELL, JJ., CONCUR. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY ISHEE AND RUSSELL, JJ. LEE, C.J., AND CARLTON, J„ NOT PARTICIPATING.

IRVING, P.J.,

dissenting:

¶ 27. Parnell Harris, who was employed as a machinist at Scott Colson’s Shop, Inc. (SCSI), filed a petition to controvert with the Mississippi Workers’ Compensation Commission (Commission) wherein he alleged that as result of “excessive verbal abuse and racial harassment by a supervisor,” over a six-month period, he had suffered a mental and emotional breakdown. The administrative judge (AJ), to whom the case had been assigned for hearing, agreed and rendered a fifteen-page opinion in which he found that “Mr. Harris’s mental condition is causally connected to his work; that the precipitating events at work were out of the ordinary.”

¶ 28. The AJ summarized the pertinent evidence of harassment as follows:

On Mr. Harris’s second day of work, December 8, 1998, his supervisor, Mr. [Alex “Donnie”] McGowan[, who is a white male,] began racially harassing Mr. Harris. Mr. McGowan cursed him, used racial epithets, and threw things at him. As part of that harassment, Mr. McGowan hosted barbeques at the employer’s place of business for the white employees but did not invite Mr. Harris or the other black employees. Mr. McGowan also shoved Mr. Harris to one side while Mr. Harris was working on a machine.
In addition, Mr. McGowan continually criticized prominent blacks. For example, he once denounced O.J. Simpson to Mr. Harris and Mr. [Tony] McKay.
On another occasion[,] Mr. McGowan, in Mr. Harris’s presence, recounted a story to a non-employee about shooting off a black man’s penis. Mr. Harris reported that incident to the then owner, Scott Colson, but Mr. Colson did not do anything. Later[,] Mr. McGowan told Mr. Harris and Mr. McKay about an episode when Mr. McGowan’s uncle had wanted to Ml a black man. (In both of those incidents, Mr. McGowan used the word, “n-r,” to refer to the black men in his anecdotes.)
After hearing the second story, Mr. Harris clocked out and went home. After Mr. Harris got home, Mark Clay, who was in the process of buying the business, telephoned Mr. Harris. Mr. Clay stated that Mr. McGowan had realized that he had acted improperly, and that if Mr. Harris would return to work, Mr. McGowan would apologize to him. Mr. Harris agreed to meet about the situation at 7:00 a.m. the next day.
In the morning Messrs. Harris, Clay, Colson, and McKay met at the appointed time, but Mr. McGowan did not appear. During that meeting[,] Messrs. Clay and Colson apologized to Mr. Harris for Mr. McGowan’s behavior. Mr. Colson added, however, that Mr. Harris should not be so sensitive because Mr. McGowan was just that way.
Around 10:00 a.m.[,] Mr. McGowan arrived and told Mr. McKay that Mr. Harris might not work there much longer. At some point Mr. McGowan told Mr. Harris that if anyone sued Mr. McGowan, that person would not live to enjoy any recovery from the lawsuit. [At][a]bout noon[,] Mr. Harris left work and did not return. Mr. Harris went home but was not able to sleep for three or four days because he feared for his life. He thought that Mr. Colson and Mr. McGowan would try to kill him, but he has not seen them since leaving work.
A coworker, Mr. [Jimmy] Hudson, witnessed some of the racial harassment directed toward Mr. Harris. Mr. Harris, however, believed that Mr. Hudson would not say anything that was adverse to Mr. Colson because Mr. Colson had given Mr. Hudson a job while Mr. Hudson had been out of prison on parole.

¶ 29. The Commission rejected the findings of its AJ and denied compensation. Upon appeal to the circuit court, the circuit judge, finding that the Commission’s decision was not supported by substantial evidence, reversed the decision of the Commission and ordered compensation. The majority reverses the judgment of the circuit court and reinstates the decision of the Commission.

¶ 30. Respectfully, I dissent. I believe that the Commission failed to consider whether Harris suffered from a mental infirmity during his employment with SCSI and, if so, whether that condition was exacerbated by the events that happened at SCSI. Accordingly, I would remand this case to the Commission with instructions to consider whether Harris’s schizophrenia had its onset during Harris’s employment with SCSI and, if so, whether the incidents at SCSI aggravated or exacerbated Harris’s then mental state.

¶ 31. It clear from the record that the Commission focused only on Harris’s post-employment, full-blown schizophrenia, not his mental condition during his employment with SCSI. Although Harris did not seek medical help during his period of employment with SCSI, there is a plethora of medical evidence pointing unmistakably to the conclusion that apparently something was wrong psychologically with Harris during his time at SCSI. First, it is undisputed that Harris was diagnosed with major depression and possible posttrau-matic stress disorder within four months of leaving his employment with SCSI. A little more than a year after leaving, he was diagnosed with schizophrenia. Second, according to Dr. Wood Hiatt:

Schizophrenia has varied and ominous symptoms that generally begin in late adolescence or early adulthood and usually continue throughout life. Most patients have a history of behavioral dysfunction — primary social and learning difficulties. Diagnostic features of schizophrenia include auditory hallucinations (generally voices that converse with or about the patient) and delusions (often the paranoid belief that external forces are conspiring against the patient) .... In addition to these overt psychotic or “positive” symptoms, various deficits or “negative” symptoms occur .... Depressive symptoms are common at all phases of schizophrenia. Positive symptoms are generally treatable with antipsychotic medication[,] but there are no treatments with established efficacy for primary negative symptoms.

¶ 32. So, the first question is: Does the evidence undergird the conclusion that Harris was suffering from some mental condition during his employment with SCSI? That is a different question from whether the incidents at SCSI caused the condition. The second question is: If the evidence warrants a finding that Harris was suffering from a mental condition, is there clear and convincing evidence that the incidents at SCSI aggravated or exacerbated that condition?

¶ 33. A claimant may be entitled to benefits if an incident at work exacerbates or aggravates a mental condition. See Miss.Code Ann. § 71-3-3(b) (Rev.2000); Fought v. Stuart C. Irby Co., 523 So.2d 314, 317-18 (Miss.1988); Radford v. CCA-Delta Corr. Facility, 5 So.3d 1158, 1163 (¶ 22) (Miss.Ct.App.2009); Daniels v. Peco Foods of Miss., Inc., 980 So.2d 360, 363 (¶ 10) (Miss.Ct.App.2008). Further, when the claim is for a mental injury without accompanying physical trauma, the claimant must show by clear and convincing evidence that the mental injury has been caused or aggravated by something more than the ordinary incidents of employment. Bates v. Countrybrook Living Ctr., 609 So.2d 1247, 1248 (Miss.1992). It cannot be legitimately argued that the racial invec-tiveness used by Harris’s supervisor over a six-month period is part of the ordinary incidents of employment. The fact that none of the invectives were directed at Harris personally, as found by the Commission, changes nothing. Nor does it preclude a finding that that sort of conversation in the workplace can have an emotional impact upon a person who may already be suffering from mental issues.

¶ 34. The AJ clearly considered whether the incidents at SCSI exacerbated Harris’s mental condition, as shown by his findings: “It is clear that Mr. Harris’s mental condition has rendered him permanently and totally disabled. The question remains, however, as to whether Mr. Harris’s work ‘contributed to or aggravated or accelerated ... in a significant manner’ his mental condition.” The AJ concluded that Harris’s employment had contributed to his mental condition and noted the following:

The psychiatrists who actually treated Mr. Harris did not explicitly opine as to causation, but they certainly accepted Mr. Harris’s history and implicitly linked that history to Mr. Harris’s mental condition. In this case[,] the [AJ] is struck by the fact that the records of the treating psychiatrists are replete with references to Mr. Harris’s work for [SCSI]. Those psychiatrists noted that Mr. Harris dreamed and hallucinated about events at work on an almost daily basis.
In addition, there is no indication that Mr. Harris suffered from a disabling mental illness before he began working for [SCSI], In that regard, it may be true, as Dr. Hiatt implied that Mr. Harris had developed schizophrenia before he started his job with [SCSI ], but it is clear that the symptoms of Mr. Harris’s mental illness did not become disabling until after he became employed at ... [SCSI ]_

(Emphasis added).

¶ 35. In order to present a complete picture of what the AJ was referring to in Harris’s medical records, I quote some relevant portions of those records. Harris’s intake form, dated October 19, 1999, from when he began seeing Dr. Mark Lad-ner, a psychiatrist at the Jackson Mental Health Center (Center), notes that Harris “reports sleep disturbances. Excessive anger due to abuse on last job where he was racially harassed.” The “problem history” on the same form notes that Harris’s difficulties “started after conflicts (racial) that led to him quitting in June.” Harris’s psychosocial assessment from the Center notes: “Client comes for intake complaining of being nervous all the time. Reports being ‘paranoid’ — feelings that people are going to harm him. Was given a death threat from his supervisor at work who also was racially [illegible] to his job.” The same form noted that Harris reported having flashbacks to things that happened at work. The psychiatric evaluation by Dr. Ladner from Harris’s first visit to the Center noted:

The patient denies any past psychiatric history prior to December of 1998. He started working at a place called Scott Colson Shop [sic]. He was making horseshoes. He complained about the owner and supervisory who are both white. He said that they called him racial names. He said he actually felt “physically abused.” He describes one incident where the supervisor “knocked me out of the way when I was making the horseshoe. I know I was doing it right.” He continued to work until June of 1999[,] when he quit.... He has dreams about his supervisor at work. He will have distressing recollections during the day about things that occurred at work. He does not actually have any temper outbursts, just feelings of anger[,] and he has had homicidal ideations, but he denies any type of homicidal intentions or plans. He shows good judgment in saying[,] “I know I’d go to jail.” Furthermore, there were comments made at work that caused him to be afraid for his safety. He says that either his supervisor or [the] owner said once “if someone tries to sue me, they won’t make it to court.” Again, this is what the patient alleges was said at his previous place of employment.

Dr. Ladner’s June 8, 2000 notes state the following:

[Harris] says he is still depressed, anxious, having flashbacks and some paranoia[,] although I think this is more suspiciousness at this point. I had said he has a probable posttraumatic stress disorder and ... he seems to fit into the categories. He was confronted by a threat of serious injury. His response involved intense fear. He has dreams about these events and the stressing recollections about these events.

On August 8, 2000, Dr. Ladner stated the following regarding Harris: “He still periodically has auditory hallucinations and paranoia.... He says he is hearing the voices of the men he used to work with.”

¶ 86. Harris’s reports about what had happened at SCSI remained a continuing theme throughout his treatment records, regardless of which doctor he saw. On January 9, 2001, Dr. Mario Pineda, a psychiatrist who treated Harris, noted the following about Harris: “He still has frequent paranoid thinking and feels some people that used to work with him are watching him.” On December 18, 2001, Dr. Pineda observed the following: “Basically, the mother gives me the same report and that is [that] at night [Harris] seems to be talking to himself and he says that there are some type of nightmares that he is having about his job.” On March 12, 2002, Dr. Pineda noted: “[Harris] continues to have auditory hallucinations and then the patient replies to them. Usually they are referring to his old job.... ”

¶ 37. Dr. Hiatt’s expert report discussed Harris’s mental condition in depth and concluded: “It is my opinion within a reasonable degree of medical certainty that the chronic paranoid schizophrenia suffered by Parnell Harris was not caused by employment at [SCSI]. Specifically ... the pattern of comments by the supervisor and owners of [SCSI] did not ‘cause’ schizophrenia.” Nothing in Dr. Hiatt’s report addressed whether the incidents at SCSI exacerbated or aggravated Harris’s mental condition. Similarly, the Commission’s decision did not address whether the occurrences at SCSI exacerbated or aggravated Harris’s condition rather than caused it. As previously discussed, Harris is entitled to benefits even if the incidents at SCSI merely exacerbated or aggravated a preexisting condition.

¶ 38. The majority finds that “[t]he record contains absolutely no evidence that Harris had been diagnosed with a mental illness at any time prior to or during his employment at SCSI.” While it is true that there is nothing to indicate that Harris had ever been diagnosed with a mental illness, the record provides evidence that Harris was mentally ill prior to the incidents at SCSI. In his affidavit, Hudson stated that Harris’s parents had asked Hudson to look after Harris. Hudson went on to aver that “Mr. Harris appeared to have some sort of psychiatric or emotional condition, as he talked to himself frequently.” In his deposition, McGowan noted that Harris frequently spoke or sang to himself while he worked; McGowan could not discern which, but he observed Harris’s lips moving when no one else was near him. I note that Harris’s habit of talking to himself is one symptom of his mental disease that is mentioned frequently in his medical records. Furthermore, Dr. Hiatt noted that paranoid schizophrenia “generally begin[s] in late adolescence or early adulthood.... ” When describing the “[diagnostic features” of paranoid schizophrenia, Dr. Hiatt first noted “auditory hallucinations,” which he described as “voices that converse with or about the patient.” I further note that no doctor ever concluded that Harris’s schizophrenia did not start prior to his employment at SCSI. While a formal diagnosis of any mental illness was never made prior to Harris’s employment at SCSI, I believe that there is evidence in the record suggesting that Harris was mentally ill prior to the incidents in question. As noted before, Harris never claimed that the incidents caused his schizophrenia; rather, Harris’s petition to controvert merely stated that the incidents caused him to have a mental breakdown.

¶ 39. Accordingly, I would reverse the circuit court’s decision and remand this case to the Commission for an on-the-record determination of whether Harris’s mental condition was exacerbated, aggravated, or contributed to by the incidents at SCSI.

ISHEE AND RUSSELL, JJ., JOIN THIS OPINION.

      . At times, the Commission spelled McGowan’s name as “McGowin.” Both spellings refer to the same person.

      . It would seem, as a fact-finder, the Commission may well have been justified in attaching great credibility to Hudson's affidavit since Hudson was directly facing his immediate demise.

      . A claimant may also be entitled to benefits if an incident at work exacerbates or aggravates a mental condition. See Miss.Code Ann. § 71 — 3—3(b) (Rev.2000); Fought, 523 So.2d at 317-18; Radford v. CCA-Delta Corr. Facility, 5 So.3d 1158, 1163 (¶22) (Miss.Ct.App.2009); Daniels v. Peco Foods of Miss., Inc., 980 So.2d 360, 363 (¶ 10) (Miss.Ct.App.2008).

      . The AJ also pointed out that the appeals referee with the Mississippi Department of Security, who reviewed Harris’s claim for unemployment benefits, found that Harris had good cause for leaving his employment with SCSI because Harris’s white supervisor repeatedly used racial slurs and called Harris derogatory names.


author: MYERS, J.,

text:
    Terrience BATES, Appellant v. DEDICATED MANAGEMENT GROUP, LLC and Employers Insurance of Wausau, a Mutual Company, Appellees.
    No. 2010-WC-00792-COA.
    Court of Appeals of Mississippi.
    Aug. 2, 2011.

      Carlos Eugene Moore, Tangala Laniece Hollis, Grenada, attorneys for appellant.
    Tara Strickland Clifford, Jackson, attorney for appellees.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   MYERS, J.,

for the Court:

¶ 1. Terrience Bates appeals from the Lincoln County Circuit Court’s judgment affirming the decision of Mississippi Workers’ Compensation Commission (Commission) to deny the compensability of Bates’s alleged work-related injury. The Commission reversed the administrative judge’s (AJ) ruling that Bates had sustained a work-related injury to his lower back sometime during August 2005, while working for his employer Dedicated Management Group, LLC (DMG). Because the record evidence sufficiently supports the Commission’s decision, we affirm the circuit court’s judgment.

FACTS AND PROCEEDINGS

¶ 2. Bates, who has one and a half years of college education, began working for DMG in April 2005. His job primarily entailed unloading cargo laden pallets from tractor trailers with the use of a pallet jack.

¶ 3. In March 2006, Bates filed a petition to controvert, in which he claimed he injured his back while working for DMG on August 26, 2005. Specifically, Bates claimed he “slipped a disk while trying to maneuver a jack with no power steering.” DMG and its insurance carrier, Employers Insurance of Wausau, disputed compensa-bility. According to DMG, Bates never reported his injury, and his medical records did not corroborate a work injury.

¶ 4. In May 2008, a hearing on the merits was held before an AJ. Bates and Michael Butler, a former employee of DMG, testified at the hearing in support of Bates’s claim. James Randall Hughes, DMG’s general manager, testified as an adverse witness having been called to do so by Bates.

¶ 5. According to Bates, sometime in June or July 2005, he was assigned a faulty pallet jack to perform his duties as an “unloader” for DMG. Prior to that time, he had the use of a satisfactory pallet jack, but management made him surrender it to a “shuttle operator.” Bates described the faulty pallet jack as an older model that was more difficult to operate than the other pallet jacks because it did not have power steering and proper brakes. Bates said maneuvering the faulty pallet jack required him to use more body force, which necessitated improper use of his hips.

¶ 6. When asked by his counsel to describe what he was doing when he was injured, Bates said he remembered feeling a sharp pain in his back as he bent over to cut cardboard away from one of the pallets. Bates could not remember the exact date this occurred, but he was sure it happened sometime in August 2005. Bates recalled telling a few of his coworkers about the pain immediately afterwards, and he said he continued working at the warehouse throughout the night despite the pain. Bates testified that he did not inform a supervisor about the pain until the next evening, after he had already started his shift and had realized he was unable to work because of the pain. Bates recalled that the supervisor’s name was “Eric,” and Eric had told him to go get his back checked out at the hospital. Bates said he also may have informed “Randy,” who, according to the record, is Hughes.

¶ 7. Butler testified at the hearing that before he was terminated from DMG, he had worked as a shuttle operator at the same warehouse as Bates. Butler did not witness Bates injure himself, but he attested that Bates had used a faulty pallet jack. According to Butler’s testimony, one night in August 2005, at Butler’s behest, management made Bates exchange his good pallet jack for an “old faulty jack” that Butler had been using. Butler described the faulty pallet jack as an obsolete model that “hardly had any brakes ... [and] was hard to turn.” Butler said that after the exchange, he saw Bates a couples of times later that evening struggling with the faulty pallet jack.

¶ 8. Hughes testified that Bates showed up to work on August 22, 2005, with a doctor’s release from King’s Daughters Medical Center in Brookhaven, Mississippi, which stated that Bates was injured and could not work. According to Hughes, the release did not state that Bates had been injured at work. The record does not contain a copy of this medical release, but it does indicate that King’s Daughters Medical Center provided Bates a one-day work release on August 22. Hughes said that Bates showed up later that week with another doctor’s release, which excused him from work for a longer period. The record contains a copy of this medical release, which excused Bates from work until August 29, 2005, due to injury; it does not mention Bates’s injury or how Bates was injured. Hughes said he honored both medical releases. According to Hughes, Bates did not show up to work on August 29, or any point thereafter, and DMG terminated Bates’s employment with the company on October 10, 2005. According to Hughes’s testimony and DMG’s pay records, August 19, 2005, was the last date on which Bates had actually worked at the warehouse.

¶ 9. Hughes testified that Bates never informed him that he had injured himself at work. Hughes also testified that DMG had no supervisor by the name of Eric working at the warehouse during Bates’s employment. Hughes said that even though he knew that Bates had been medically excused from work, he did not know that Bates was claiming a work-related injury until DMG’s home office later contacted him and asked him about it. Hughes said at that point, he asked “Rod,” one of the warehouse supervisors, about Bates’s alleged injury. According to Hughes, Rod had no knowledge about it.

¶ 10. Hughes further testified that he had no knowledge that Bates had been using faulty equipment at the warehouse. According to Hughes, none of the pallet jacks used at the warehouse have power steering, and he stated that he has worked in the warehouse industry for over twelve years and has never known any pallet jack to be equipped with such a feature. Hughes added that each warehouse employee is given an operator’s test, certified by the Occupational Safety and Health Administration (OSHA), which covers faulty equipment. Hughes said the employees are instructed to turn such equipment over to maintenance for repair.

¶ 11. In addition to the above-mentioned testimonies, Bates’s deposition, taken in March 2007, was submitted into evidence, along with Bates’s various medical records from King’s Daughters Medical Center. Included therewith was a written report from Dr. Ashraf Ragab, who had examined Bates in September 2006 and diagnosed Bates as suffering from a “right lateral recess stenosis due to a herniated disc at L5-S1.” Dr. Ragab stated in his report that Bates’s back condition and herniated disc were causally related to the nature of Bates’s work.

¶ 12. The AJ found that Bates proved by a preponderance of evidence that he had suffered a work-related injury to his back while working for DMG. The AJ noted that her decision was not easily reached because there were “considerable factual conflicts in [the] case.” She found, however, that the evidence, in its totality, supported the occurrence of a workrelated injury, despite the factual conflicts.

¶ 13. The Commission disagreed and reversed the AJ’s decision. According to the findings contained in its decision, the Commission gave little weight to Butler’s testimony because he did not witness Bates injure himself. The same can be said with regard to Dr. Ragab’s medical report, as the Commission determined that Dr. Ragab had based his assessment on Bates’s medical history, which the Commission found lacking credibility. As to Bates’s testimony, the Commission expressly found it unbelievable.

¶ 14. In sum, the Commission found that: Bates provided conflicting testimony with regard to the alleged date of his injury as well as the nature of the alleged accident that could have caused such injury; the medical records and wage records submitted into evidence conflicted with Bates’s testimony; and the medical records revealed that Bates’s back pain had been present for one month prior to the alleged date(s) of injury. The Commission, thus, concluded that Bates had failed to meet his burden of proof that he had a compensable claim under the Mississippi Workers’ Compensation Law (“the Act”).

STANDARD OF REVIEW

¶ 15. “In workers’ compensation cases, a decision by the Commission is afforded great deference.” Langford v. Southland Tracking, LLC, 30 So.3d 1266, 1274 (¶ 28) (Miss.Ct.App.2010). The Commission is the trier and finder of facts, “the findings of the [AJ] to the contrary notwithstanding.” Smith v. Container Gen. Corp., 559 So.2d 1019, 1021 (Miss.1990) (quoting Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988)); see also Barber Seafood, Inc. v. Smith, 911 So.2d 454, 461 (¶ 27) (Miss.2005) (“The Commission is also the ultimate judge of the credibility of witnesses.”). A decision by the Commission may not be disturbed on appeal when it is supported by substantial credible evidence. See Coleman v. Chattanooga Container, 377 So.2d 606, 608 (Miss.1979) (“If the order of the Commission, be it for the claimant or for the employer/carrier, is supported by substantial evidence, it must stand.”).

ANALYSIS

¶ 16. Bates contends that the Commission denied his claim because he had mistakenly asserted in his petition to controvert that his injury occurred on August 26, 2005. Bates submits that the Commission failed to take into consideration the fact that he stated later in his deposition that he was not sure of the exact date when his injury occurred and that his medical records would reveal the correct date. Bates further contends that the Commission ignored the fact that in his deposition he had testified that he reported the accident to his supervisors, “Randy and Jeff.” Bates submits that DMG failed to present any evidence to contradict the existence of a supervisor named Jeff and that the accident was reported to him.

¶ 17. These are after-the-fact contentions that disregard the aforementioned standard of review adhered to in workers’ compensation cases and the well-settled law that governs them. The Act places with the claimant, not the employer or its insurance carrier, “the burden of proving by a ‘fair preponderance of the evidence’ that an injury occurred that has a causal connection with the claimant’s employment.” City of Laurel v. Blackledge, 755 So.2d 573, 577-78 (¶ 17) (Miss.Ct.App.2000) (citing Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 13 (Miss.1994)). That Bates could not recall the exact date(s) he allegedly injured his back, or remember the name(s) of the DMG supervisor(s) he allegedly notified about his injury, presented factual questions for the Commission to contend with in its ultimate determination as to whether Bates adequately demonstrated that he had suffered a compensable injury as contemplated by the Act. Our task, like that of the circuit court in this case, is, as previously mentioned, limited to determining whether the evidence by which the Commission based its decision is sufficient. We find that it is.

¶ 18. Bates presented no corroborating witness(es) with respect to his alleged injury. Even though Bates claimed they existed in the case, no one testified that he or she contemporaneously observed Bates exhibit signs, or express complaints, of a disability. Again, Butler did not witness Bates injure himself; rather, he claimed that sometime in August 2005, Bates used a faulty pallet jack, which, in Butler’s opinion, could have resulted in an accident. As DMG points out on appeal, a claimant must prove he or she suffered a work injury “beyond speculation and conjecture.” Coleman, 377 So.2d at 608. The Commission treated Butler’s testimony accordingly, and it had the prerogative to do so.

¶ 19. The Mississippi Supreme Court has spoken to instances where contemporaneous corroboration of a work injury is absent from the case and has expressed the following:

The claimant is competent to prove his own claim, and his testimony may be accepted without corroboration. It may be acted upon although disputed by other witnesses and if undisputed and not untrustworthy, must be taken as conclusive proof of the fact. On the other hand, if the claimant is uncorroborated as to the occurrence of a claimed accident and is shown to have made statements inconsistent with the claim, the [Cjommission is not bound to accept the testimony as the basis for an award.

Penrod Drilling Co. v. Etheridge, 487 So.2d 1330, 1333 (Miss.1986) (quoting Vardaman S. Dunn, Mississippi Workmen’s Compensation, § 264 (3d Ed.1982)).

¶ 20. Here, the Commission expressly found Bates’s testimony untrustworthy and rejected it. Based on the rules of law mentioned above and the facts of this case, we find that the Commission was justified in doing so.

¶ 21. Aside from the fact that Bates could not remember the date when his alleged injury occurred, or recall exactly who he had reported it to, Bates consistently maintained throughout the case that his first visit to the emergency room at King’s Daughters Medical Center coincided with his last day of work. In his deposition, Bates testified that immediately following the accident, he told his employer that he was experiencing “shooting pain.” Bates claimed his employer would not allow him to continue working and told him to go to King’s Daughters Medical Center to get it checked, which Bates said he did. According to Bates, this all occurred on the same date.

¶ 22. At the hearing, Bates’s version of events differed somewhat in that Bates claimed that the accident initially occurred the night before his last shift. Bates testified that he came in the next evening, tried to work, and then told a supervisor he was experiencing pain in his back. He then went to the emergency room at King’s Daughters Medical Center that day to have it checked out.

¶ 23. Bates’s medical records and employment records contradicted both accounts. According to the medical records, Bates’s first visit to the emergency room occurred on August 22. Bates’s employment records, however, disclosed that August 19 was the last date Bates actually worked at the warehouse. Bates made no attempt whatever at the hearing to explain this discrepancy.

¶ 24. Bates also had no explanation for the fact that his August 22 medical records indicated that the back pain he claimed he was then experiencing had been on going for a month prior. “When a patient gives a history to a physician which is inconsistent with allegations in a workers’ compensation case, this is a significant factor in support of denial of a claim.” Raytheon Aerospace Support Servs. v. Miller, 861 So.2d 330, 336 (¶ 16) (Miss.2003) (citing Hudson v. Keystone Seneca Wire Cloth Co., 482 So.2d 226, 227-28 (Miss.1986)).

¶ 25. The Commission’s conclusion that Bates failed in his burden of proof to demonstrate that he had sustained a compen-sable work-related injury is supported by sufficient evidence. Bates’s arguments to the contrary are without merit.

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

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

      . According to the record, shuttle operators moved the loaded pallets from the loading dock to various places inside the warehouse after the unloaders had removed the pallets from the trailers.

      . The record indicates that the cargo shipped to DMG’s warehouse sits atop pieces of cardboard, which is used to cover the pallet boards; it is the responsibility of the unload-ers to sheer any excess cardboard away from the pallet once it is taken off the trailer.

      . In his petition to controvert. Bates listed "David, Supervisor” as the DMG employer who he had allegedly notified about his injury on August 26.


author: GRIFFIS, P.J.,

text:
    Bobby Charles MITCHELL Jr., Appellant v. Kimberly Betty Kilgore MITCHELL, Appellee.
    No. 2010-CA-00897-COA.
    Court of Appeals of Mississippi.
    Aug. 9, 2011.

      Vann Fredric Leonard, Jackson, Betty Slade Derossette, attorneys for appellant.
    Marc E. Brand, Jackson, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ROBERTS, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Bobby Charles Mitchell Jr. appeals the judgment of the DeSoto County Chancery Court finding him in contempt of court for the failure to make alimony payments as directed by the parties’ divorce decree. Bobby claims that his ex-wife, Kimberly Betty Kilgore Mitchell, also failed to abide by the provisions of the divorce decree; thus, Bobby claims: (1) Kimberly should not have been granted relief because she entered court with unclean hands; and (2) the chancellor should have found Kimberly in contempt of court for her failure to make the mortgage payments on the marital home. We find no error and affirm.

FACTS

¶2. The parties divorced on December 2, 2008. A settlement agreement concerning child custody, child support, and property division was incorporated into the divorce decree. Kimberly was awarded $1,000 per month in alimony, and she received ownership of the marital home. The agreement stated: “Wife shall attempt to refinance the home within the twenty-four months that she is receiving assistance with the mortgage.”

¶ 3. Bobby failed to make any alimony payments after March 2009. As a result, Kimberly filed a petition for contempt and modification on April 28, 2009. Bobby filed his answer and petition for modification on October 7, 2009. He asserted the defense of unclean hands because Kimberly had failed to refinance the mortgage on the marital home and remove his name from the loan. Because Kimberly had failed to make the mortgage payments, Bobby argued that his credit rating had been harmed.

¶ 4. In his answer, Bobby admitted that he had not made his required alimony payments. Instead, he chose to place those funds into the escrow account of his attorney because Kimberly had not made the mortgage payments. At trial, Kimberly testified that she had made the mortgage payment through June 2009. She was unable to make the subsequent payments because of Bobby’s failure to pay her alimony. Kimberly also testified that she had attempted to sell the home via a short sell; however, Bobby had stopped the sale because it would have resulted in a tax liability for him.

¶ 5. The chancellor found that Kimberly was the exclusive owner of the marital home, and she was not in contempt for her failure to refinance or sell the home. The chancellor held Bobby in contempt for his failure to make alimony payments and awarded Kimberly $14,280 in delinquent alimony.

STANDARD OF REVIEW

¶ 6. “This Court will affirm the decision of the chancellor when it is supported by substantial evidence unless the chancellor abused [his] discretion, the decision was manifestly wrong or clearly erroneous, or the chancellor applied an erroneous legal standard.” Pool v. Pool, 989 So.2d 920, 923 (¶ 9) (Miss.Ct.App.2008).

ANALYSIS

1. Whether Bobby may assert the unclean-hands doctrine as a defense to his failure to make alimony payments.

¶ 7. Bobby claims that Kimberly could not seek relief from the chancellor because she failed to comply with the provision of the divorce decree that required her to keep up the mortgage payments on the home. Bobby argues that Kimberly’s failure to do so made her in contempt and invoked the unclean-hands doctrine, which is his defense for refusing to make the alimony payments required by the divorce decree.

¶ 8. “The elean[-]hands doctrine prevents a complaining party from obtaining equitable relief in court when he is guilty of willful misconduct in the transaction at issue.” Bailey v. Bailey, 724 So.2d 335, 337 (¶ 6) (Miss.1998). At the time of the filing of Kimberly’s petition for contempt, there is no evidence that she had violated any portion of the divorce decree. It is undisputed that Bobby had stopped making his alimony payments months before Kimberly stopped making the mortgage payments. The agreement provided for alimony payments for twenty-four months, in which time Kimberly was required to attempt to refinance the home. Yet Bobby had stopped making the alimony payments just four months after the divorce was finalized. Bobby may not assert Kimberly’s failure to make the mortgage payments as a defense to the contempt proceeding when there was sufficient proof that her nonpayment was a direct result of his decision to withhold alimony payments.

¶ 9. Accordingly, we find that the chancellor properly denied Bobby’s assertion of the defense of unclean hands.

2. Whether the chancellor properly held that no contempt action existed as to Kimberly’s failure to refinance the marital home.

¶ 10. Bobby claims that the chancellor should have held Kimberly in contempt for her failure to refinance the marital home. He contends that the language of the divorce decree is clear that Kimberly must be responsible for and hold him harmless for all expenses relating to the home.

¶ 11. Bobby states that the divorce decree requires the following:

Wife shall receive the exclusive use, title, and possession to the marital residence located at 3852 Misty Oaks Lane, Nesbit, MS 38651. Husband shall execute a Quitclaim Deed relinquishing all of his right, title and interest in the said property. Wife shall be responsible for all mortgage payments and related expenses to the said residence and hold Husband harmless from same. Husband agrees to sign whatever documents may be necessary in order for Wife to obtain information about the mortgage so long as she is living in the home. Wife shall attempt to refinance the home within the twenty-four months that she is receiving assistance with the mortgage. Wife shall receive all equity in the home. The Husband agrees to bring the mortgage current through October 2008 in accordance with his obligation under the Temporary Order.

¶ 12. On appeal, Bobby claims that Kimberly is in contempt because, at the time of the hearing, she had failed to refinance the home within the twenty-four months following the divorce. However, Bobby never requested that the chancellor find Kimberly in contempt. In his answer and counter petition for modification, Bobby only requested that his child support be reduced and his visitation be modified.

¶ 13. Further, the agreement merely required that Kimberly attempt to refinance the home within twenty-four months. Bobby presented absolutely no evidence that she failed to make such attempt. Again, the record is clear that Kimberly was unable to make the mortgage payments on the home due to Bobby’s decision to withhold alimony payments. Bobby also chose to cancel Kimberly’s sale of the home because of certain tax consequences to him.

1114. The chancellor properly found that Kimberly was not in contempt for her failure to refinance or sell the marital home. Therefore, the chancellor’s judgment is affirmed.

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

LEE, C.J., IRVING, P.J., MYERS, BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR.

      . The agreement was not made part of the record on appeal. We rely on Bobby's brief and testimony during trial to ascertain the language of the agreement.

      . The chancellor also modified visitation and lowered Bobby’s monthly child-support payments. Neither of these issues have been raised on appeal.


author: SMITH, Justice. SMITH, Justice.

text:
    Kimberly R. KIKER, administratrix of the estate of Christopher A. Kiker, deceased v. PROBATE COURT OF MOBILE COUNTY.
    1090414.
    Supreme Court of Alabama.
    Sept. 17, 2010.
    Opinion on Return to Remand Dec. 10, 2010.

      Michael S. McGlothren, Fairhope; and Kevin R. Robson of Robson Law Firm, L.L.C., Mobile, for appellant.
    J. Michael Druhan, Jr., James C. Johnston, and Jason K. Hagmaier of Johnston Druhan LLP, Mobile, for appellee.
    Jean M. Powers, Mobile, guardian ad litem.
   SMITH, Justice.

Kimberly R. Kiker, administratrix of the estate of Christopher A. Kiker, deceased, appeals from an order of the Mobile Probate Court insofar as the order awarded attorney fees and expenses. We remand this cause with directions.

I. Facts and Procedural History

Kiker’s husband, Christopher A. Kiker, died in December 2005. In October 2006, Kiker petitioned the probate court for letters of administration. The probate court granted the letters of administration, authorizing Kiker to administer Christopher’s estate subject to the following exception: “The said personal representative shall not enter into any settlement of any litigation or receive any asset from such litigation without approval of this Court and under such conditions as this Court may require.”

In June 2007, Kiker filed a wrongful-death action against Christopher’s physician. Kiker was represented in the wrongful-death action by, among others, Michael S. McGlothren; Kiker and McGlo-thren entered into a fee agreement pursuant to which McGlothren would receive a contingency fee of 50% of the gross amount recovered, plus expenses. In February 2009, Kiker agreed to settle the wrongful-death action for $150,000; however, she did not obtain approval of the probate court before settling the wrongful-death action.

In June 2009, Kiker petitioned the probate court for final settlement of Christopher’s estate. Kiker presented to the probate court a “submission regarding expenses and attorneys’ fee,” stating that, pursuant to the fee agreement in the wrongful-death action, her attorneys were entitled to a 50% contingency fee in the amount of $75,000, plus $36,087.75 in expenses, for a total award of $111,087.75 from the $150,000 settlement. Kiker attached several exhibits to the submission, including a “settlement distribution” detailing how the $75,000 attorney fee would be divided and listing all expenses that had been incurred by her attorneys in the wrongful-death action.

After a hearing, the probate court entered an order on November 24, 2009, finding that “the wrongful death settlement ... is appropriate and in [the] best interest of the estate and the heirs at law” and providing for distribution of the settlement; however, the probate court’s order incorrectly stated that the amount of the settlement was $152,000 and awarded attorney fees and expenses in an amount less than the $111,087.75 provided for in the fee agreement. Kiker moved the probate court to amend the November 24, 2009, order “by stating the settlement amount as being $150,000 as opposed to the $152,000 figure that is mentioned.” On December 22, 2009, the probate court entered an order amending its prior order; the amended order awarded attorney fees and expenses in the amount of $93,044.60 and provided, in pertinent part:

“4. Kimberly A. Kiker, as personal representative, is authorized to enter into said wrongful death settlement ... in the sum of $150,000.00.
“5. Michael S. McGlothren, P.C. is authorized to distribute the proceeds of the settlement agreement, as follows:
“A. Attorneys fees and expenses in the sum of $78,678.80 to Michael S. McGlothren, P.C.
“B. Attorneys fees in the sum of $19,365.80 to the Robson Law Firm. “C. Kimberly Kiker, surviving spouse, the sum of $53,478.06.
“D. Kimberly Kiker, as custodian for Christopher A. Kiker, II, minor son of Decedent, the sum of $1,739.03.
“E. Kimberly Kiker, as custodian for Robert Matthew Kiker, minor son of Decedent, the sum of $1,739.03.”

(Emphasis added.)

On December 23, 2009, Kiker petitioned this Court for a writ of mandamus directing the probate court to set aside its order and “reinstate” the attorney-fee agreement. On February 2, 2010, the clerk of this Court entered an order stating that Kiker’s petition for a writ of mandamus challenges an order that is appealable pursuant to Rule 4(a)(1), Ala. R.App. P., and that Kiker’s petition would be viewed as a timely notice of appeal.

II. Standard of Review

“The determination of whether an attorney fee is reasonable is within the sound discretion of the trial court and its determination on such an issue will not be disturbed on appeal unless in awarding the fee the trial court exceeded that discretion. State Bd. of Educ. v. Waldrop, 840 So.2d 893, 896 (Ala.2002); City of Birmingham v. Horn, 810 So.2d 667, 681-82 (Ala.2001); Ex parte Edwards, 601 So.2d 82, 85 (Ala.1992), citing Varner v. Century Fin. Co., 738 F.2d 1143 (11th Cir.1984).
“This Court has set forth 12 criteria a court might consider when determining the reasonableness of an attorney fee:
“ ‘[T]he nature and value of the subject matter of the employment; (2) the learning, skill, and labor requisite to its proper discharge; (3) the time consumed; (4) the professional experience and reputation of the attorney; (5) the weight of his responsibilities; (6) the measure of success achieved; (7) the reasonable expenses incurred; (8) whether a fee is fixed or contingent; (9) the nature and length of a professional relationship; (10) the fee customarily charged in the locality for similar legal services; (11) the likelihood that a particular employment may preclude other employment; and (12) the time limitations imposed by the client or by the circumstances.’
“Van Schaack v. AmSouth Bank, N.A., 530 So.2d 740, 749 (Ala.1988). These criteria are for purposes of evaluating whether an attorney fee is reasonable; they are not an exhaustive list of specific criteria that must all be met. Beal Bank v. Schilleci, 896 So.2d 395, 403 (Ala.2004), citing Graddick v. First Farmers & Merchants Nat’l Bank of Troy, 453 So.2d 1305, 1311 (Ala.1984).
“We defer to the trial court in an attorney-fee case because we recognize that the trial court, which has presided over the entire litigation, has a superior understanding of the factual questions that must be resolved in an attorney-fee determination. Horn, 810 So.2d at 681-82, citing Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Nevertheless, a trial court’s order regarding an attorney fee must allow for meaningful appellate review by articulating the decisions made, the reasons supporting those decisions, and how it calculated the attorney fee. Horn, 810 So.2d at 682, citing American Civil Liberties Union of Georgia v. Barnes, 168 F.3d 423, 427 (11th Cir.1999); see also Hensley, 461 U.S. at 437, 103 S.Ct. 1933.”

Pharmacia Corp. v. McGowan, 915 So.2d 549, 552-53 (Ala.2004) (emphasis added).

III. Discussion

On appeal, Kiker contends, among other things, that the probate court’s December 22, 2009, order is deficient with regard to its award of attorney fees because, Kiker says, the probate court “addresses none of the issues contained in Van Schaack v. AmSouth Bank, N.A., 530 So.2d 740 (Ala.1988),” Kiker’s brief, p. 23, and because the probate court “offers no explanation as to how it arrived at any of its opinions.” Kiker’s brief, p. 22. We agree.

In this case, the probate court’s December 22, 2009, order awarding attorney fees and expenses in the amount of $73,678.80 to Michael S. McGlothren, P.C., and attorney fees in the amount of $19,365.80 to the Robson Law Firm provides no indication as to whether the probate court considered the criteria set forth for determining the reasonableness of an attorney fee as detailed in Pharmacia, 915 So.2d at 552-53 (quoting Van Schaack v. AmSouth Bank, N.A., 530 So.2d 740, 749 (Ala.1988)). Additionally, the probate court’s order neither indicates how the probate court calculated the attorney fees nor provides a basis for ascertaining the exact amount of McGlothren’s award specifically attributable to attorney fees. Although the probate court stated in its original order of November 24, 2009, that its decision was based on the “evidence and argument presented,” the probate court provides no detailed application of the facts regarding the attorney fees to the factors detailed in Pharmacia.

The probate court may, in its discretion, reduce an agreed-upon attorney fee if it concludes that the attorney fee is unreasonable. See Ex parte Peck, 572 So.2d 427, 429 (Ala.1990). However, without a sufficient explanation by the probate court regarding its consideration of the 12 factors outlined in Pharmacia and how it calculated the attorney fees, we cannot ascertain whether the probate court exceeded its discretion in awarding those fees.

IV. Conclusion

Based on the foregoing, we remand this cause to the probate court for the entry of an order explaining its decision and articulating its reasons for that decision. Due return shall be made to this Court within 42 days of the date of this opinion.

REMANDED WITH DIRECTIONS.

COBB, C.J., and WOODALL, PARKER, and SHAW,¡JJ., concur.

On Return to Remand

SMITH, Justice.

Kimberly R. Kiker, administratrix of the estate of Christopher A. Kiker, deceased, appealed from an order of the Mobile Probate Court insofar as the order awarded attorney fees and expenses in the amount of $73,678.80 to Michael S. McGlothren, P.C. (“McGlothren”), and attorney fees in the amount of $19,365.80 to the Robson Law Firm (“Robson”). On September 17, 2010, we remanded the case with directions, stating:

“In this case, the probate court’s December 22, 2009, order awarding attorney fees and expenses in the amount of $73,678.80 to Michael S. McGlothren, P.C., and attorney fees in the amount of $19,365.80 to the Robson Law Firm provides no indication as to whether the probate court considered the criteria set forth for determining the reasonableness of an attorney fee as detailed in Pharmacia [Corp. v. McGowan], 915 So.2d [549,] 552-53 [ (Ala.2004) ] (quoting Van Schaack v. AmSouth Bank, N.A., 530 So.2d 740, 749 (Ala.1988)). Additionally, the probate court’s order neither indicates how the probate court calculated the attorney fees nor provides a basis for ascertaining the exact amount of McGlothren’s award specifically attributable to attorney fees. Although the probate court stated in its original order of. November 24, 2009, that its decision was based on the ‘evidence and argument presented,’ the probate court provides no detailed application of the facts regarding the attorney fees to the factors detailed in Pharmacia.
“The probate court may, in its discretion, reduce an agreed-upon attorney fee if it concludes that the attorney fee is unreasonable. See Ex parte Peck, 572 So.2d 427, 429 (Ala.1990). However, without a sufficient explanation by the probate court regarding its consideration of the 12 factors outlined in Phar-macia and how it calculated the attorney fees, we cannot ascertain whether the probate court exceeded its discretion in awarding those fees.
“Based on the foregoing, we remand this cause to the probate court for the entry of an order explaining its decision and articulating its reasons for that decision. Due return shall be made to this Court within 42 days of the date of this opinion.”

Kiker v. Probate Court of Mobile County, 67 So.3d 865, 868 (Ala.2010) (footnote omitted; emphasis added).

The probate court has made timely return of the case; however, on remand the probate court exceeded the scope of remand. Specifically, the probate court, on remand, was only to explain its award of attorney fees and expenses. See Kiker, supra. In addition to explaining its award of attorney fees and expenses, however, the probate court modified its prior order both by reducing Robson’s attorney-fee award from $19,365.80 to $18,793.53 and by increasing McGlothren’s total award of attorney fees and expenses from $73,678.80 to $74,250.35. The probate court was not free to modify its prior order on remand, and, in so doing, the probate court exceeded its limited jurisdiction on remand. This Court did not reverse the probate court’s prior order on original submission; this Court remanded the case for the probate court to explain how it reached the conclusions stated in its order. See Ex parte Edwards, 727 So.2d 792, 794 (Ala.1998) (“Tt is well settled that, after remand, the trial court should comply strictly with the mandate of the appellate court by entering and implementing the appropriate judgment.’” (quoting Auerbach v. Parker, 558 So.2d 900, 902 (Ala.1989))); Ex parte Alabama Power Co., 431 So.2d 151, 155 (Ala.1983) (“ Tt is the duty of the trial court, on remand, to comply strictly with the mandate of the appellate court according to its true intent and meaning, as determined by the directions given by the reviewing court. No judgment other than that directed or permitted by the reviewing court may be entered....’” (quoting 5 Am.Jur.2d Appeal and Error § 991 (1962))); Walker v. Humana Med. Corp., 423 So.2d 891, 892 (Ala.Civ.App.1982) (“After an appellate court, in appropriate cases, has directed entry of a judgment, the only function of the trial court is to enter and implement the appropriate judgment.” (citing, among other authorities, Hames v. Irwin, 256 Ala. 319, 54 So.2d 293 (1951))).

We have no alternative but to remand this case for a second time, directing the probate court to vacate its order on first remand and to comply with this Court’s mandate in Kiker v. Probate Court of Mobile County, supra. Specifically, we direct the probate court to explain its decision awarding attorney fees and expenses in the amount of $73,678.80 to McGlothren and attorney fees in the amount of $19,365.80 to Robson and to articulate its reasons for that decision. Due return shall be made to this Court within 42 days of the date of this opinion.

REMANDED WITH DIRECTIONS.

COBB, C.J., and WOODALL, PARKER, and SHAW, JJ., concur.

      . We note that the trial court's amended order provides for a total distribution of $150,000.72.

      . At this time, we express no opinion on the propriety of the probate court's award of attorney fees and expenses in this case.

      . McGlothren represented Kiker in a wrongful-death action against Christopher's physician; the parties settled the wrongful-death action for $150,000. Robson, who had represented Kiker in probating Christopher’s estate, had referred Kiker’s wrongful-death action to McGlothren.