author: KING, C.J., IRVING, J.,

text:
    FLAGSTAR BANK, FSB, Appellant v. Calvin and Jamie DANOS, Individually and as Guardians and next of friends of Laura Matherne, a minor, Gavin Danos, a minor and Marissa Danos, a minor, Appellees.
    No. 2007-CA-00418-COA.
    Court of Appeals of Mississippi.
    Dec. 2, 2008.
    Rehearing Denied March 31, 2009.

      Camille Henick Evans, Jackson, Christopher Paul Palmer, Brandon, Craig Lawson Slay, attorneys for appellant.
    Catherine H. Jacobs, Ocean Springs, Matthew G. Mestayer, Biloxi, attorneys for appellees.
   KING, C.J.,

for the Court.

¶ 1. While the genesis of this appeal is the sale of an allegedly defective manufactured home, its resolution requires an examination of our law regarding judgments by default. Flagstar Bank, FSB, (Flags-tar) is the last of two defendants in a suit filed by the Danos family who purchased a manufactured home only to discover after the sale that the structure had preexisting water damage, which they claim led to mold growth that harmed them. Flagstar is a Michigan-based banking and mortgage lending corporation that held the Danoses’ mortgage for a short period. Flagstar is alleged by the Danoses to be vicariously liable because its alleged agent, an employee of a Lamar County mortgage company, submitted false and erroneous information to his employer and to Allstate Property and Casualty Insurance Company (Allstate). The Danoses claim that without the erroneous information being given to these parties, their loan would never have closed due to the inability of the property to qualify either for a loan or for insurance.

¶ 2. The trial judge entered a $500,000 judgment by default against Flagstar and against Michael H. Burks, the seller of the trailer home property, after he determined that neither party had ever appeared nor answered the complaint. Twelve days after the default judgment was entered, an attorney filed an appearance as counsel for Flagstar and timely filed a motion to set aside the default judgment. The motion claimed that the Danoses’ service of process on Flagstar was defective; therefore, the default judgment based upon improper service was void thereby giving Flagstar good cause to have the default judgment set aside. Further, Flagstar argued that it had a colorable defense to the merits of the Danoses’ claim in that their allegations against Flagstar rested solely upon vicarious liability through the actions of a defendant who was not Flagstar’s employee and more importantly had been dismissed from the lawsuit. There was no direct allegation against Flagstar in the complaint.

¶ 3. The trial court denied the motion, and this appeal ensued. Flagstar raises three issues on appeal, which we quote verbatim:

I. Did the trial court err when it entered a default judgment against Flagstar Bank, FSB for not appearing at docket call or trial when no notice of trial setting was sent by the Circuit Clerk to Flagstar, and even though the plaintiffs had not sought entry of judgment by default?
II. Did the trial court abuse its discretion when it refused to set aside the default judgment and judgment against Flagstar Bank, FSB, and did it abuse its discretion in not considering the three factors for setting aside a default judgment?
III. Did the trial court abuse its discretion in not setting aside the $500,000.00 damages award against Flagstar Bank, FSB or not apportioning damages as to Flagstar?

¶ 4. Finding error, we reverse the decision of the trial court and render as to the judgment against Flagstar.

FACTS

¶ 5. In March 2001, Calvin J. Danos and his wife, Jamie A. Danos, began the process to purchase from Burks a manufactured home and about eight acres of land located at 828 Pine Grove Road in Picayune, Mississippi. They used Angela Miller of Coldwell Banker Country Properties (Coldwell Banker) in Picayune as their real estate agent. In an effort to obtain financing, the Danoses contacted Chris Shirley, a mortgage broker with Amerigo Mortgage, Inc., (Amerigo) in Gulfport, who began the process of obtaining financing by getting an appraisal and insurance on the property. After the appraisal was done, the Da-noses contacted Country Living Insurance, Inc., (Country Living) in Poplarville, which issued a homeowners’ policy to them through Allstate.

¶ 6. The Danoses closed on the manufactured home and acreage on May 9, 2001, for a price of $65,000 and began occupying the property the first week of June 2001. Amerigo made the original loan and then shortly thereafter sold it to Flagstar pursuant to an agreement between Flagstar and Amerigo for Flagstar to purchase certain mortgages originated by Amerigo. Flagstar then apparently sold the mortgage to Chase Manhattan Mortgage, Inc., (Chase Manhattan) on November 16, 2001. In early June 2001, heavy rains associated with Hurricane Allison caused the Danos-es’ roof to leak. They investigated and found that the roof of the trailer had no ridge cap on the center of the roof and that visqueen which had been put on the roof was directing water down into the walls of the mobile home. As they attempted repairs, they found more and more rotted wood under the paneling. Odors from the rotting wood became apparent, and in September 2001, the family started experiencing respiratory problems. Because the conditions continued, the Da-noses hired an inspector who determined that the mobile home suffered from mildew and mold. To alleviate their health problems, the family moved into a nearby workshop on the property that was not insulated and had insufficient lighting. Calvin testified that the time they spent in the workshop damaged the family relationship due to the living conditions. Also, Jamie testified that the family suffered allergic reactions which caused them to incur $1,500 in medical bills. The Danoses filed a claim with Allstate for the damage, which Allstate denied under the “wear and tear deterioration; molds” provision of the homeowners policy.

¶ 7. On March 22, 2004, Calvin and Jamie, individually and as guardians and next friends of their children, Laura Math-erne, Gavin Danos, and Marissa Danos, all minors, filed suit in the Circuit Court of Lamar County against several defendants. Originally the defendants were Allstate, which wrote a policy of insurance on the trailer home; Coldwell Banker, a Picayune, Mississippi real estate company and Miller, a real estate broker employed by Coldwell Banker in Picayune; Country Living, an insurance agency located in Poplarville, which procured the Allstate policy for the Danoses; Amerigo, a mortgage brokering agency in Lamar County, and Shirley, an employee of Amerigo based in Pass Christian, Mississippi; Burks, a resident of Picayune, who sold the mobile home to the Danoses that is the subject of the litigation; and Flagstar, a lending institution incorporated in the state of Michigan, which held the mortgage on the property and mobile home for a short while. Venue was placed by the plaintiff in Lamar County as it is the principal place of business of Amerigo, even though the property involved and all other plaintiffs and defendants were either nonresident corporations or residents of Pearl River County.

¶ 8. Four of the defendants answered the complaint — Allstate; County Living; real estate broker Coldwell Banker and its employee, Miller; and Amerigo, the mortgage broker/lender and its employee, Shirley. The same defendants who answered the complaint also engaged in discovery with the plaintiff for about two years.

¶ 9. Each of these four defendants were dismissed from the suit. The first to go were defendants Miller and Coldwell Banker, having been dismissed from the action on June 7, 2005, as result of a settlement. Defendant Country Living was dismissed from the action pursuant to an agreement of the parties filed on December 6, 2005. Defendants Amerigo and its employee, Shirley, were granted summary judgment on September 12, 2006, with the Danoses agreeing that they “have no grounds to oppose the motion.” The Danoses claimed that Allstate was negligent for not properly inspecting the property before issuing the insurance policy. Allstate moved for summary judgment, which was granted on September 13, 2006. The court found that there was no contractual provision requiring Allstate to inspect the home on behalf of the plaintiffs, nor did the company have a duty to advise them of the home’s condition. Allstate admitted that it did not conduct a thorough inspection of the premises before issuing the policy. However, the court said that any inspection Allstate would have made would have been for the benefit of Allstate and not for the Danoses. The Danoses admitted that they had not conducted a thorough inspection of the premises before they bought it. Also, the court found that the alleged negligent act, Allstate’s failure to inspect the property before issuing the policy, was outside the circle of foreseeability necessary to sustain a tort action. “While obtaining insurance was a prerequisite to obtaining financing, there is no evidence that the plaintiff would not have consummated the purchase with another insurer, or sought alternative financing,” the trial court said.

¶ 10. Only Burks, who sold the trailer to the Danoses, and Flagstar remained as defendants. Burks was personally served with process on April 15, 2004, by a process server. Burks never answered the complaint nor took part in discovery. On September 11, 2006, the Danoses filed an application for entry of a default judgment against Burks for his failure to plead or answer. Attached to the application was the affidavit of Catherine J. Jacobs, the attorney for the Danoses, who stated that Burks was duly served with a copy of the summons and complaint on April 15, 2004, and that more than thirty days had elapsed since Burks was served; Burks had failed to answer or otherwise defend the action; and the plaintiffs, therefore, were entitled to an entry of judgment by default against Burks. The clerk’s entry of default was entered against Burks on the same day, September 11, 2006. A default judgment was entered against Burks by the trial court in the same judgment as against Flagstar.

¶ 11. Flagstar also did not file an answer. Flagstar was a nonresident corporation with no registered agent in the state. The Danoses attempted service by certified mail with restricted delivery to Albert Gladner the registered agent for Flagstar, at a post office box in Troy, Michigan. The restricted delivery was signed for, returned, and filed with the Lamar County Circuit Court on July 13, 2004. The signature on the return receipt is illegible. Attached to a subsequent pleading was a letter from Robert K. Fleming, the operations coordinator for Flagstar’s legal department in Troy, Michigan. The letter was addressed to Jacobs, counsel for the Danoses, at her Ocean Springs, Mississippi address. The letter read as follows: “Flagstar Bank, FSB (Flagstar) is in receipt of the summons regarding the above referenced matter. The loan account was sold on November 16, 2001 to Chase Manhattan. You may contact them at the following address and phone number listed below.” An address for Chase Manhattan Mortgage, Inc., followed. The plaintiffs never filed an application for entry of default judgment against Flagstar for failing to answer the complaint; thus, there was no clerk’s entry of default judgment against Flagstar. However, on September 21, 2006, the trial judge entered a default judgment against Flagstar. The judgment read as follows:

DEFAULT JUDGMENT
THIS CAUSE having come before the Court for trial on the merits, and the clerk having called the docket, and on three different occasions called the Defendant, Flagstar Bank FSB, and said Defendant failed to answer or appear, it is therefore
ORDERED and ADJUDGED that Default Judgment be and is hereby entered against the Defendant, Flagstar Bank FSB and in favor of the Plaintiffs pursuant to Rule 55(b) of the Mississippi Rules of Civil Procedure. It is further
ORDERED and ADJUDGED that the hearing on damages be and is hereby set over to September 29, 2006 at 11:00 A.M. at the Lamar County Courthouse in Purvis, Mississippi.
SO ORDERED and ADJUDGED this the 21 day of September, 2006.

The order was then signed by the trial judge and filed on September 25, 2006. The hearing on damages was held on September 29, 2006, with Calvin and Jamie testifying and various documents introduced. Neither Flagstar nor Burks was present or had counsel present. After the hearing, the trial judge entered a judgment that same day in the amount of $500,000 against Flagstar and Burks, jointly and severally.

¶ 12. On October 11, 2006, attorney Christopher P. Palmer of Brandon filed a notice of entry of appearance as counsel for Flagstar, and on November 15, 2006, Palmer filed a motion to set aside the default judgment and for additional relief. Flagstar claimed that the Danoses’ service on it as a nonresident corporation with no Mississippi registered agent was flawed; thus, good cause existed to set aside the judgment. Flagstar argued that the Da-noses attempted service on Flagstar by mailing a certified letter, restricted delivery requested, to Gladner, the registered agent for Flagstar at a post office box in Troy, Michigan. The chief legal counsel for Flagstar submitted an affidavit stating that the registered agent for service of process upon Flagstar was Gladner. Flagstar’s attorney swore that the return receipt attached to the summons did not bear the signature of Gladner, but instead it was signed by Romeo Pena, a mail clerk whose job it was to deliver the mail and who was not an authorized agent for service of process. Flagstar’s attorney stated that he was familiar with Pena’s signature. Flagstar’s attorney said that the return receipt was marked “Restricted Delivery” for Gladner, and Pena had no authority to sign the receipt on Gladner’s behalf. Flagstar said that because there was not a valid service of process upon it, the judgment of the Lamar County Circuit Court was void. Further, Flagstar argued that the Danoses did not follow the procedures of Rule 55 in obtaining its default judgment. Flagstar said that pursuant to Rule 55(a) of the Mississippi Rules of Civil Procedure, a plaintiff must apply to the clerk for an entry of default and support that application by affidavit or otherwise. Because there was no application for the default judgment, there also was no entry of default made by the clerk of court as required by Rule 55(a). Thus, Flagstar argued that the trial court’s entry of default was faulty because it did not follow the mandatory requirements of Rule 55. Further, Flagstar argued that the default judgment should be set aside because it had a colorable defense to the merits of the Danoses’ complaint. Flagstar is mentioned in the complaint only twice, once in a paragraph stating who the registered agent is for process and another in three paragraphs that attempt to set out the Danoses’ allegations against Flagstar. Those three paragraphs read as follows:

45. At all times, hereto, the defendant Angela Miller was acting as agent and employee of defendant Coldwell Banker as well as the seller, Michael Burks. Defendant Chris Shirley, at all material times hereto, was acting as agent and employee of Amerigo Mortgage and Flagstar Bank FSB. While acting as agents for Coldwell Banker, Amerigo Mortgage and Flagstar Bank FSB, defendants Miller and Shirley submitted false and erroneous information to their principals, as well as Allstate Property and Casualty.
46. But for the submission of said false and material information, this real estate transaction would not have closed due to the inability of the property to qualify either for a loan or for insurance.
47. As a result of said misrepresentations, whether intentional or erroneous, the plaintiffs have been caused to suffer property damage as well as personal harm, as is more fully set forth hereinafter.

1Í13. Flagstar argued that there were no allegations against it other than those founded upon vicarious liability — a claim that Flagstar’s culpability rests on the actions of defendant Shirley. Because defendant Shirley had been dismissed from the action on summary judgment in September 2006, Flagstar argued that the doctrine of res judicata required that the default judgment be set aside. Flagstar said that the essence of summary judgment is that .no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Flagstar asserted the grant of summary judgment to Shirley found that Shirley had committed no act that would render him liable to the plaintiffs. Therefore, since Flagstar’s alleged liability rests upon Shirley’s liability, Flagstar could not be held liable to the Danoses as a matter of law. Further, Flagstar pointed out that there was no agency or employment relationship among Amerigo, Shirley, or any of the other defendants and Flagstar. Finally, Flagstar argued that the Danoses would suffer no prejudice if the default judgment were set aside.

¶ 14. The trial court denied the motion to set aside and in a memorandum opinion explained that the court entered the default judgment because “the defendant failed to appear for a trial on the merits, and that on three different docket calls, the defendant had failed to appear, or make any announcements. After entry of the judgment, and consistent with M.R.C.P. 55, this Court held a hearing on damages, where the defendant also failed to appear.” The court made a scant finding regarding Flagstar’s claim of lack of jurisdiction because of inadequate service of process, saying only that: “While the defendant raises numerous other issues relating to service and prejudice, this Court deems them to be without merit.” The trial court denied Flagstar’s argument that the record is void as to any entry of default, ruling that neither an application for default nor a clerk’s entry of fault is required. The court said, “M.R.C.P. 55(b) expressly allows for a default to be taken if a party fails to appear at the trial. Here, the record reflects, that the defendant failed to appear at three docket calls, trial and at writ of inquiry on damages.” The trial court rejected Flagstar’s contention that default judgments are not favored and should be set aside when certain factors are shown. The trial court’s order stated: “[T]his Court does not adopt the position advocated by the defendant in regards to liberally setting aside default judgments. Setting aside defaults as envisioned by the plaintiff [sic] would become merely a perfunctory request. Moreover, failure to uphold default judgments would not foster the important judicial policy of finality of judgment.” The trial court did not address the issue of whether Flagstar had a colorable defense to the action. It is from this order that Flagstar appeals.

ANALYSIS

¶ 15. We find Issue I raised by Flags-tar dispositive; therefore, we will limit our analysis only to that issue.

¶ 16. “Default judgments are not favored, and trial judges have traditionally been lenient when it comes to relieving a party of the burden of a default judgment.” King v. Sigrest, 641 So.2d 1158, 1161 (Miss.1994) (quoting Bell v. City of Bay St. Louis, 467 So.2d 657, 661 (Miss.1985)). Conflicting principles are at play when a trial court is faced with a default judgment. On the one hand the default judgment promotes efficient administration of justice by requiring a responding party to follow the requirements of Rule 55 of the Mississippi Rules of Civil Procedure. The default judgment provides a means to deal with a party against whom affirmative relief is sought who does nothing or very little to respond to the complaint. On the other hand, however, there is a strong desire to decide cases on the merits rather than on procedural violations. Manning v. Lovett, 228 Miss. 191, 195, 87 So.2d 494, 496 (1956). For this reason, most courts, including our supreme court, disfavor the entry of a default judgment. This is a reflection of the often stated preference for resolving disputes on the merits. “Default is not favored as a way to settle lawsuits. It is the policy of our system of judicial administration to favor disposition of cases on their merits.” Wheat v. Bakin, 491 So.2d 528, 526 (Miss.1986) (citing Bell, 467 So.2d at 661).

¶ 17. Whether to set aside a default judgment is committed to the sound discretion of the trial court. Lexington Ins. Co. v. Buckley, 925 So.2d 859, 864(¶ 21) (Miss.Ct.App.2005). However, “this has never meant that the trial judge could do anything he or she wished.” King, 641 So.2d at 1162 (quoting Bell, 467 So.2d at 661). “Sound discretion imports a decision by reference to legally valid standards [and] [w]here a trial judge in determining a matter committed to his sound discretion makes his decision by reference to an erroneous view of the law, this Court has authority to take appropriate corrective action on appeal.” Id.

¶ 18. A party seeking to set aside a default judgment turns to Rule 55(c) of the Mississippi Rules of Civil Procedure which states: “For good cause shown, the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).” Rule 60(b) provides for relief from judgments for various reasons such as mistakes, fraud, and newly discovered evidence. M.R.C.P. 60(b).

¶ 19. With the law concerning default judgments set out we turn to the pivotal issue of whether the trial court had jurisdiction over Flagstar to enter a judgment against it.

Whether the Service of Process on Flagstar Was Effective

¶20. A salient requirement of issuing a judgment by default is that the court must have jurisdiction over the party against whom the default judgment is to be taken. As the comment to the Rule 55 states: “Before a default [judgment] can be entered, the court must have jurisdiction over the party against whom the judgment is sought, which also means that he must have been effectively served with process. Arnold v. Miller, 26 Miss. 152 (1853).” M.R.C.P. Rule 55 cmt. Succinctly stated, a court must have jurisdiction obtained by proper service of process in order to enter a default judgment against a party. McCain v. Dauzat, 791 So.2d 839, 842(¶ 7) (Miss.2001) (citing Arnold, 26 Miss, at 155). “Otherwise, the default judgment is void.” Id. If a default judgment is void, then the trial court has no discretion and must set the judgment aside. Sartain v. White, 588 So.2d 204, 211 (Miss.1991).

¶ 21. Flagstar was a nonresident corporation not doing business in Mississippi. The Danoses attempted service of process by summons issued pursuant to Rule 4(d)(4) of the Mississippi Rules of Civil Procedure by delivering a copy of the summons and complaint to “an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process.” Then the Danoses had Flagstar served pursuant to Rule 4(c)(5) by sending a copy of the summons and the complaint to the person to be served by certified mail, return receipt requested. This subsection of the civil procedure rule further states that service “shall be deemed complete as of the date of delivery as evidenced by the return receipt or by the returned envelope marked ‘Refused.’ ” M.R.C.P. 4(c)(5).

If 22. The basis of Flagstar’s argument that the default judgment against it should be set aside is that it was not properly served because the person receiving process by mail, signing the return receipt, and mailing it back to the circuit court was a mail clerk and not “an officer, a managing or general agent, or other agent authorized by appointment or by law to receive service of process” pursuant to Rule 4(d)(4). In support of its argument, Flags-tar submitted the affidavit of its chief legal officer saying that he was familiar with the signature of the mail clerk who signed the return receipt and that it was the mail clerk’s signature on the return receipt, not the signature of the registered agent. Matthew Roslin, in his affidavit dated October 31, 2006, stated that he was the chief legal officer for Flagstar and that in April 2004 Flagstar’s registered agent for service of process was Gladner. The affidavit states that the return receipt attached to the summons for Flagstar did not bear the signature of the addressee, Gladner. Instead Roslin said that the signature was that of Romeo Pena, a mail clerk at Flags-tar, with whose signature Roslin said he was familiar. Roslin said that Pena’s job responsibilities were to deliver mail from the mail distribution center to the recipients. Roslin said that Pena was not authorized to accept service of process for Flagstar, nor was he an agent for Gladner. “The Return Receipt is marked ‘Restricted Delivery5 for Mr. Gladner and Romeo Pena had no authority to sign the Return Receipt on Albert Gladner’s behalf,” the affidavit concluded.

¶ 23. The Lamar County Circuit Clerk could not read the signature on the return as is noted by a July 13, 2004, docket entry that reads: “Summons returned-certified mail as to Flagstar Bank signed for 4-15-04 by ?, filed.” As noted in the entry there was a question mark where the clerk places the name of the person returning service.

¶ 24. In the face of this denial of proper service, the Danoses offered no counter-affidavits or other proof regarding the signature of the registered agent or as to its authenticity. Instead, the Danoses filed a “Response to Motion to Set Aside Judgment” and a “Motion to Strike the Affidavit.” The Danoses, however, never brought the motion to strike on for hearing as there is no order in the record ruling on the motion. In the motion to set aside judgment, the Danoses said that the signature on the return receipt was “largely illegible and resembled the initials ‘A.G.’ ” The only other reference in the motion was that Flagstar sent a letter dated April 26, 2004, to counsel for the plaintiff advising her that Flagstar had sold the Danoses’ loan account to Chase Manhattan on November 16, 2001.

¶ 25. Mississippi Rule of Civil Procedure 4(c)(5), which allows out of state service of summons by certified mail, and Rule 4(d)(4), which identifies the person upon whom service must be made if the defendant is a foreign corporation, must be read jointly. Brown v. Bristol-Myers Squibb Co., 2002 WL 34213425 at *3, 2002 U.S. Dist. LEXIS 27445 at *8-12 (S.D.Miss.2002). If service is attempted by certified mail upon a corporation under Rule 4(c)(5), but is delivered to a person not designated to receive process under Rule 4(d)(4), then the process fails. Id. In Rogers v. Hartford Life and Accident Insurance Co., 167 F.3d 933, 940 (5th Cir.1999), the federal appeals court considered the interrelationship between Rule 4(c)(5) and Rule 4(d). The court said:

We begin by examining the plain language of Rule 4(c)(5). See Russell v. State, 231 Miss. 176, [189], 94 So.2d 916, 921 [1957] (noting that “the meaning of statutes is to be sought and ascertained from their language.”) [superceded by statute on other grounds]. The first sentence of the Rule states that “a summons may be served on a person outside this state by sending a copy of the summons and of the complaint to the person to be served by certified mail, return receipt requested.” [M.R.C.P.] 4(c)(5) (emphasis added). The Rule then states that “[w]here the defendant is a natural person, the envelope containing the summons and complaint shall be marked ‘restricted delivery.’ ” [M.R.C.P.] 4(c)(5) (emphasis added). The Rule, therefore, distinguishes between the “person” that physically receives service, and the actual “defendant.” The two terms are not synonymous.

Rogers, 167 F.3d at 940. Thus, a plaintiff, when faced with which procedural rule to follow in serving process pursuant to Rule 4(d), must specifically identify whether the defendant is a “person” and apply the attendant civil procedure rule and/or identify who is the “the actual defendant” and follow the appropriate civil procedure rule. In this case, the Danoses determined that one of the defendants was Flagstar, a foreign corporation not doing business in Mississippi with no registered agent for service of process. Because Flagstar, the actual defendant, was a corporation then the civil procedure rule for serving an out-of-state corporation, Mississippi Rule of Civil Procedure 4(d)(4), was to be followed. The Danoses attempted to follow Rule 4(d)(4) but failed because the authorized agent for service of process was not served. Instead the uncontested evidence shows that service was had upon a mail clerk. We have affirmed the salient rule that procedural rules relating to service of process are to be strictly construed. Kolikas v. Kolikas, 821 So.2d 874, 878(¶16) (Miss.Ct.App.2002) (citing Birindelli v. Egelston, 404 So.2d 322, 323-24 (Miss.1981)).

¶ 26. If service is attempted upon an agent, this entails an affirmative showing by the plaintiff that the person served was in fact the agent for service of process before a default judgment is entered. Hanover Modular Homes of Taft, Inc. v. Corpus Christi Bank & Trust, 476 S.W.2d 97, 99 (Tex.Civ.App.1972). Just because an individual is an employee of a defendant “does not cloak that individual with authority to receive process for the defendant,” and the burden of proof is upon the plaintiff to establish that the authority to receive service of process exists between the defendant and the individual served. Brakke v. Rudnick, 409 N.W.2d 326, 330 (N.D.1987); Hanover Modular Homes, 476 S.W.2d at 99, 101. When the return of service in situations other than by personal service is challenged by an affidavit and there are no counter-affidavits, the return itself is not even evidence and, absent evidence from the plaintiff, the affidavit must be taken as true and the purported service of summons quashed. Sullivan v. Bach, 100 Ill.App.3d 1135, 56 Ill.Dec. 450, 427 N.E.2d 645, 649 (1981) (citing First Fed. Sav. & Loan Ass’n of Chicago v. Brown, 74 Ill.App.3d 901, 30 Ill.Dec. 538, 393 N.E.2d 574, 578 (1979)).

¶ 27. Applying these general rules to the facts of our case, we find that the Danoses did not make an affirmative showing that the person who signed for the summons was in fact the registered agent for service of process for Flagstar. While Flagstar submitted an affidavit that the person who signed was a mail clerk and not the agent for service of process, the Danoses only said in a pleading that the signature on the return receipt “resembled the initials ‘A.G.’ ” The Danoses point to the fact that their attorney received a letter dated April 22, 2004, from Fleming, with the legal department at Flagstar advising her that Flagstar was in receipt of the summons regarding the matter, but that the loan account was sold to another bank on November 16, 2001. However, the Mississippi Supreme Court has long held that “actual knowledge by a defendant of the pendency of a suit against him is immaterial, ‘unless there has been a legal summons or a legal appearance.’ ” Brown v. Riley, 580 So.2d 1234, 1237 (Miss.1991) (quoting McCoy v. Watson, 154 Miss. 307, 315, 122 So. 368, 370 (1929)). Thus, the Danoses may not use the letter as a substitute to a legal summons upon Flagstar.

¶ 28. The Danoses, as plaintiffs, had the burden to establish that the authority to receive service of process existed between Flagstar and the individual who was served. By affidavit, the attorney for Flagstar stated that the person who signed for the process was a mailroom clerk who was not the agent for service of process. The Danoses submitted no counter-affidavits. Therefore, the Flagstar affidavit from the Flagstar attorney Roslin must be taken as true, and the purported service of summons on Flagstar quashed.

¶29. The dissent takes the view that service upon Flagstar was complete upon the delivery of the certified mail, quoting in support of its argument the last sentence of Rule 4(c)(5), entitled “Service by Certified Mail on Person Outside State” which reads: “Service by this method shall be deemed complete as of the date of delivery as evidenced by the return receipt or by the returned envelope marked ‘refused.’ ” The dissent says that the certified letter was signed for by someone whose signature could not be deciphered and summons was returned. Thus, to the dissent, service was effectuated. However, while quoting in full Rule 4(d)(4), which sets out how a foreign corporation is to be served, the dissent then makes no analysis of how serving a mail clerk can meet the requirements of that rule that service be made on a foreign corporation like Flagstar “by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process.” The Danoses’ attempt to serve Flagstar failed when the mailroom clerk signed for the process and the Danoses took no further action to ensure that the person signing the return receipt was “an officer, a managing or general agent, or ... any other agent authorized by appointment or by law to receive service of process.” Even when told by Flagstar in the affidavit of Roslin that Peno, the mail clerk, had signed for the summons and that Peno was not authorized by appointment or by law to receive service of process, the Danoses did nothing. They took no steps to offer a counter-affidavit. We refuse to adopt a corporate “mailbox-type rule” where service upon a foreign corporation is complete upon delivery as evidenced by the return receipt regardless of who signs for the corporation. Process upon a corporation must be directed to one of its agents authorized by it to accept process. As the practice guide in American Jurisprudence 2d states: “Service of process on a corporation will be quashed upon the filing of an uncontradicted affidavit that the person served was not the general manager, officer, or agent of a corporation and had never been authorized to accept service of process on the corporation’s behalf.” 62B Am.Jur.2d Process, § 241 (2005).

¶ 30. Because the trial court lacked jurisdiction to issue a default judgment, we find that the judgment of the trial court must be reversed and rendered.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF LAMAR COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

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

IRVING, J.,

dissenting.

¶ 32. The majority finds that process on Flagstar Bank, FSB (Flagstar) was defective and, on that basis, reverses and renders the default judgment in the amount of $500,000 ordered by the trial court in favor of Calvin and Jamie Danos and their minor children. The majority concludes that process was defective because the mail-room clerk at Flagstar signed for the restricted letter or package (containing the complaint and summons) that was addressed to Albert Gladner, Flagstar’s registered agent for service of process. This finding is premised on the contents of an affidavit submitted by Flagstar’s chief legal officer as a part of Flagstar’s motion to set aside the default judgment that had been rendered against it after it failed to answer the Danoses’ complaint. In finding that process was defective because the mailroom clerk signed for the letter addressed to Gladner, the majority, in my opinion, ignores or misconstrues Rules 4(d)(4) and 4(c)(5) of the Mississippi Rules of Civil Procedure, which specify to whom and how service of process may be served upon a domestic or foreign corporation. Therefore, I dissent. I would affirm the judgment of the trial court.

¶ S3. I begin with an analysis of the rules quoted above. Rule 4(d)(4) identifies the person to be served and provides that service by a sheriff or process server shall be made as follows:

Upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process.

Rule 4(c)(5) provides for various methods of service of the summons and complaint including the following:

Service by Certified Mail on Person Outside State. In addition to service by any other method provided by this rule, a summons may be served on a person outside this state by sending a copy of the summons and of the complaint to the person to be served by certified mail, return receipt requested. Where the defendant is a natural person, the envelope containing the summons and complaint shall be marked “restricted delivery. ” Service by this method shall be deemed complete as of the date of delivery as evidenced by the return receipt or by the returned envelope marked “Refused.”

(Second emphasis added).

¶ 34. It is clear from a reading of the plain language of Rule 4(c)(5) that where a defendant is a natural person the envelope must be marked restricted delivery. The defendant in this case, Flagstar, is a corporation, not a natural person. Therefore, Rule 4(c)(5) does not mandate that the envelope containing the summons and complaint sent to Flagstar be marked restricted delivery; however, the rule does not prohibit marking the envelope restricted delivery. When the defendant is a corporation, Rule 4(c)(5) only requires that the summons and complaint be sent by certified mail, return receipt requested. Of course, the summons and complaint must be addressed to the corporation’s registered agent for service of process, as was done in this case.

¶35. As stated, the majority relies upon the affidavit of Flagstar’s chief legal officer that stated that the mailroom clerk, Romeo Pena, signed for the certified letter and that Pena “is not, and has never been, authorized to accept service of process for Flagstar Bank.” The fact that Pena was not, and never had been, an agent for service of process for Flagstar is beside the point. The certified letter was addressed and sent to Flagstar’s registered agent for service of process — Gladner. It is not contended in the affidavit that Pena did not have the authority to pick up mail at the post office for Gladner. Even if such an allegation had been made, it would be inconsequential. This is because Rule 4(c)(5) does not speak to the issue of whether someone other than the registered agent for service of process for a corporation may sign for a certified letter addressed to the registered agent.

¶ 36. Finally, it cannot be legitimately doubted that the certified letter was received by Gladner because in a letter dated April 22, 2004, Robert K Fleming, Legal Department Operations Coordinator, advised counsel for the Danoses, inter alia, that “Flagstar Bank, FSB (Flagstar) is in receipt of the summons regarding the above referenced matter.” The majority finds that this letter cannot take the place of a valid summons and complaint being served upon Flagstar. I agree, but the importance of the letter is not that it serves in lieu of service of the summons and complaint upon Flagstar, but that it proves that the certified letter that was properly addressed to Flagstar’s registered agent for service of process was in fact received by the registered agent. Rule 4(c)(5) provides: “Service by [certified mail] shall be deemed complete as of the date of delivery as evidenced by the return receipt or by the returned envelope marked “Refused.” ” The return receipt showed that the letter was signed for by someone whose signature could not be readily deciphered. However, Flagstar’s chief legal officer was able to decipher the otherwise illegible signature, advising that it was signed for by Flagstar’s mailroom clerk. As stated, the letter was sent restricted delivery, but it did not have to be. The United States Postal Service should not have allowed the mailroom clerk to sign for the letter. Nevertheless, that failure on the part of the postal service does not affect the legality or effectiveness of the process on Flagstar, because a certified letter, return receipt requested, was served on its registered agent for service of process, even though it was physically picked up by someone else for the registered agent. It is apparent that the majority equates the physical pickup of the certified letter by Pena with a failure of service of the certified letter on Gladner. That is simply not the case. As stated, for service to have been complete and effective under Rule 4(c)(5), all that was required was for the letter to have been sent by certified mail, return receipt requested, not restricted delivery, addressed to Flagstar’s registered agent for service of process. That in fact was done in this case. Therefore, process was deemed complete when the certified letter was signed for and picked up by Pena.

¶ 37. For the reasons stated, I dissent. I would affirm the trial court’s judgment, for it is clear that Flagstar slept on its responsibility to respond to the Danoses’ lawsuit.

LEE AND MYERS, P.JJ., AND GRIFFIS, J., JOIN THIS OPINION.

      . Federal Rule of Civil Procedure 4(e)(1) provides that serving an individual within a federal judicial district may be done by: “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Therefore, federal court decisions interpreting Mississippi's civil procedure rules are persuasive.

      . Rule 4(d)(4) provides in pertinent part:
      "Service by sheriff or process server shall be made as follows:
      (4) Upon a ...- foreign corporation ... by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process.”


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Timothy Wayne DIGGS, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-CP-01546-COA.
    Court of Appeals of Mississippi.
    Feb. 9, 2010.
    Rehearing Denied Aug. 17, 2010.
    Certiorari Denied Oct. 28, 2010.

      Timothy Wayne Diggs, appellant, pro se.
    Office of the Attorney General by John R. Henry, Jr., attorney for appellee.
    Before KING, C.J., ISHEE AND MAXWELL, JJ.
   KING, C.J.,

for the Court:

¶ 1. Timothy Wayne Diggs filed a motion for post-conviction relief in the Circuit Court of Lawrence County. The trial court dismissed the motion, and Diggs now appeals. On appeal, Diggs claims that:

I. His constitutional rights were violated because: (a) he was sentenced to a mandatory sentence, without the benefit of earned time; (b) he was not indicted for the offense; and (c) there was no firearm or deadly weapon introduced into evidence to substantiate the charge of armed robbery;
II. He was denied due process of law because the trial court failed to advise him that he could seek a direct appeal of his sentence;
III. He received ineffective assistance of counsel; and
IV. A sufficient factual basis was not established for his guilty plea.

We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Diggs executed a waiver of indictment and consented to be charged by information for the crime of armed robbery. The information alleged that:

On or about February 9, 2005, in Lawrence County, Mississippi, Timothy Wayne Diggs did feloniously take the personal property of Valley Quick Stop from its clerk, Wanda Renfroe, by putting her in fear of immediate injury to her person by the exhibition of a handgun, a deadly weapon, contrary to and in violation of [Mississippi Code Annotated section] 97-3-79, as amended, against the peace and dignity of the State of Mississippi.

On April 21, 2005, Diggs entered his guilty plea to the charge in the Circuit Court of Lawrence County. Satisfied that Diggs was making an intelligent and voluntary guilty plea, the trial court accepted his plea.

¶ 3. Diggs’s sentencing hearing was held on May 13, 2005. During the hearing, Diggs apologized for his involvement in the crime. However, he informed the trial court that he was not the person who actually went into the convenience store with the gun. Diggs claimed that he never left the car and remained outside the entire time. The trial court agreed to take Diggs’s claims into consideration when sentencing him. Subsequently, on June 27, 2005, the trial court entered a judgment of conviction and sentence, finding Diggs guilty of armed robbery and sentencing Diggs to thirty years in the custody of the Mississippi Department of Corrections (MDOC), with twenty years suspended, ten years to serve, and five years of post-release supervision.

¶4. On May 9, 2008, Diggs filed his motion for post-conviction relief. The trial court found that Diggs’s motion was deficient on its face and without merit, and the trial court summarily dismissed the motion. Aggrieved, Diggs timely filed his notice of appeal.

ANALYSIS

¶ 5. The trial court may dismiss a motion for post-conviction relief without an evidentiary hearing where “it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief[.]” Miss.Code Ann. § 99-39-11(2) (Supp.2009). This Court will not disturb the trial court’s dismissal of a motion for post-conviction relief absent a finding that it was clearly erroneous. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). However, issues of law are reviewed de novo. Id.

I. Diggs’s Constitutional Rights A. Earned Time

¶ 6. Diggs contends that his constitutional rights were violated because he was sentenced to serve a mandatory ten-year sentence without the benefit of earned time. Mississippi Code Annotated section 47-5-139 (Rev.2004) precludes some inmates from eligibility for earned-time credit. In pertinent part, section 47-5-139(l)(e) provides that an inmate is not eligible for earned-time credit when “[t]he inmate has not served the mandatory time required for parole eligibility for a conviction of robbery or attempted robbery with a deadly weapon.”

¶ 7. Mississippi Code Annotated section 47—7—3(1) (d) (ii) (Supp.2009) dictates an inmate’s parole eligibility and provides that any inmate convicted of armed robbery on or after October 1, 1994, shall not be eligible for parole. Thus, it logically follows that “since an offender serving a sentence for an armed robbery committed on or after October 1, 1994[,] can never serve the mandatory time required for parole eligibility, he is not eligible to accrue earned[-]time credits.” Sykes v. Epps, 963 So.2d 31, 33 (¶ 7) (Miss.Ct.App.2007). Based on the foregoing, it is clear that Diggs is not entitled to accumulate earned-time credit. Thus, we find that this argument is without merit.

B. Indictment

¶ 8. Diggs argues that his guilty plea was not valid because he was not indicted for the offense of armed robbery. Diggs further contends that his guilty plea is invalid because the information did not notify him that the first ten years of his sentence was mandatory, and the information allegedly failed to cite the charging statute.

¶ 9. Article 3, Section 27 of the Mississippi Constitution provides, in pertinent part, that:

No person shall, for any indictable offense, be proceeded against criminally by information, except in cases ... where a defendant represented by counsel by sworn statement waives indictment[.]

At the guilty plea proceeding, Diggs, who was represented by trial counsel, acknowledged that he understood the nature and consequences of the charge against him. He also acknowledged that he was entitled to have the matter presented to a grand jury. However, Diggs executed a sworn waiver of indictment and consented to be proceeded against by criminal information. Thus, we find that Diggs was lawfully proceeded against by criminal information in accordance with Article B, Section 27 of the Mississippi Constitution. See Edwards v. State, 995 So.2d 824, 826 (¶ ¶ 7-8) (Miss.Ct. App.2008).

¶ 10. In regard to Diggs’s remaining arguments, any complaints regarding non-jurisdictional defects in an indictment are waived upon the defendant’s entry of a guilty plea. Harris v. State, 811 So.2d 37B, 374 (¶ ¶ 6-7) (Miss.Ct.App.2001). We must note that the information did in fact cite the charging statute for armed robbery. Thus, there is no basis for this argument. Also, Diggs’s argument that his indictment failed to put him on notice that the first ten years of his sentence for armed robbery were mandatory is non-jurisdictional in nature. Thus, Diggs waived this argument upon the entry of his guilty plea. See id. (finding that a defendant’s argument that his indictment was deficient because it failed to put him on notice of restrictions denying parole and earned-time credit for the first ten years of his sentence for armed robbery were non-jurisdictional in nature and, thus, waived upon the entry of his guilty plea).

C. Firearm

¶ 11. Diggs contends that his guilty plea is invalid because there was no firearm introduced into evidence to substantiate the charge of armed robbery. However, because Diggs pleaded guilty to the charge of armed robbery, he waived his right to challenge the sufficiency of the State’s evidence. See Young v. State, 797 So.2d 239, 246 (¶ 17) (Miss.Ct.App.2001).

II. Direct Appeal of Sentence

¶ 12. Diggs argues that he was denied due process of law because the trial court failed to inform him that he could seek a direct appeal of his allegedly illegal sentence. This Court previously addressed this issue in Coleman v. State, 979 So.2d 731, 733-34 (¶ If 3-6) (Miss.Ct.App. 2008). Pursuant to Uniform Rule of Circuit and County Court 8.04(A)(4), the Court found that the trial court was not obligated to inform a defendant of his right to appeal his sentence. Id. at (¶ 6); see also Harris v. State, 5 So.3d 1127, 1131 (¶ 14) (Miss.Ct.App.2008).

¶ 13. Diggs was convicted of armed robbery under Mississippi Code Annotated section 97-3-79 (Rev.2006), which provides, in pertinent part, that:

[Wjhere the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.

Accordingly, the minimum term of imprisonment is three years and the maximum term of imprisonment is “a definite term reasonably expected to be less than life.” Williams v. State, 922 So.2d 853, 856 (¶ 8) (Miss.Ct.App.2006) (quoting Payton v. State, 897 So.2d 921, 950 (¶ 110) (Miss.2003)).

¶ 14. At the time of his guilty plea, Diggs was approximately thirty-four years old. He was sentenced to thirty years in the custody of the MDOC, with twenty years suspended, ten years to serve, and five years of post-release supervision. Diggs has not presented any evidence to this Court showing that his sentence is illegal. To the contrary, we find that the trial court properly sentenced Diggs within the statutory guidelines. This issue is without merit.

III. Ineffective Assistance of Counsel

¶ 15. Diggs claims that his trial counsel was ineffective. There is a strong but rebuttable presumption that trial counsel was competent and performed within the wide range of reasonable conduct expected from counsel. Wrenn v. State, 802 So.2d 177, 180 (¶ 12) (Miss.Ct.App.2001). However, the defendant may rebut this presumption upon a showing that: (1) his trial counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

¶ 16. Diggs claims that his trial counsel was ineffective because he failed to interview witnesses in preparation for trial. However, Diggs has failed to provide this Court with a list of witnesses or any affidavits of the witnesses who would have testified on his behalf, and he has failed to show how any of the alleged testimony would have altered the outcome of his guilty plea. See Miss.Code Ann. § 99-39-9 (Supp.2009); see also Steen v. State, 868 So.2d 1038, 1040 (¶ 10) (Miss.Ct.App.2004).

¶ 17. Diggs also claims that his trial counsel coerced him into pleading guilty and that his trial counsel failed to properly advise him of the potential sentence he could receive for the crime. However, the plea colloquy clearly belies Diggs’s allegations of ineffective assistance of counsel. See Nichols v. State, 994 So.2d 236, 238 (¶ 7) (Miss.Ct.App.2008) (finding that the defendant’s claim of ineffective assistance of counsel was without merit where the plea colloquy contradicted the defendant’s allegations). The trial court informed Diggs of the charges pending against him and informed Diggs of his constitutional rights. The trial court specifically asked Diggs whether he was satisfied with trial counsel’s representation and whether his trial counsel properly advised him regarding the charge. Diggs responded affirmatively. The trial court also asked Diggs whether anyone had coerced him into pleading guilty to the crime, and Diggs assured the trial court that his guilty plea was voluntary. The trial court also informed Diggs of the applicable sentencing range for the crime of armed robbery, to which Diggs raised no objections.

¶ 18. The law is clear that “[t]rial judges are entitled to place great weight upon a defendant’s initial plea under oath.” Green v. State, 880 So.2d 377, 381 (¶ 17) (Miss.Ct.App.2004) (quoting Templeton v. State, 725 So.2d 764, 767 (¶ 10) (Miss.1998)). Diggs has provided this Court with nothing more than his bare assertions to support his claims of ineffective assistance of counsel. However, more is required. See Steen, 868 So.2d at 1040 (¶ 11). Based on the foregoing, we find that Diggs’s allegations of ineffective assistance of counsel are without merit.

IV. Factual Basis for Guilty Plea

¶ 19. Diggs argues that he was wrongly convicted of armed robbery because the trial court failed to establish a sufficient factual basis to demonstrate that he was guilty of the offense. In addition to determining that a defendant’s guilty plea was made intelligently and voluntarily, the trial court must determine that there was a factual basis for the guilty plea. See Corley v. State, 585 So.2d 765, 767 (Miss.1991).

¶ 20. In the plea colloquy, Diggs explained to the trial court that he was pleading guilty because he was indeed guilty of armed robbery. Through Diggs’s own testimony, he admitted that he was waiting outside in the car while the robbery took place. Diggs assumes that he cannot be guilty of armed robbery if he was not the person who actually robbed the convenience store. However, the law is clear that an accessory to armed robbery is just as guilty as the principal. McCuiston v. State, 791 So.2d 315, 317 (¶¶ 5-6) (Miss.Ct.App.2001). Based on the foregoing, we find that there was a sufficient factual basis established to warrant the trial court’s acceptance of Diggs’s guilty plea. This argument is also without merit.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF LAWRENCE COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAWRENCE COUNTY.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR.


author: ISHEE, J.,

text:
    INTERNATIONAL STAFF MANAGEMENT and Legion Insurance Company, Appellants. v. Takisha STEPHENSON, Appellee.
    No. 2008-WC-01641-COA.
    Court of Appeals of Mississippi.
    March 9, 2010.
    Rehearing Denied July 20, 2010.
    Certiorari Denied Oct. 28, 2010.

      H. Mitchell Cowan, F. Hall Bailey, Jackson, attorneys for appellants.
    D. Briggs Smith, Jr., Batesville, attorney for appellee.
    Before KING, C.J., ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the Court:

¶ 1. After the administrative law judge (ALJ) entered an order finding that Taki-sha Stephenson had reached maximum medical improvement and was due no benefits, she appealed to the Workers’ Compensation Commission (the Commission). The Commission reversed, finding that benefits were wrongfully denied. International Staff Management and Legion Insurance Company (International), her employers, appealed the adverse finding to the Circuit Court of DeSoto County, which affirmed the Commission’s decision. International appeals from that judgment and asserts two issues:

I. Stephenson’s injuries from the shooting were not within the course and scope of her employment, and
II. The Commission’s findings regarding Stephenson’s permanent disability as a result of the shooting are not supported by substantial evidence and are based on an error of law.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 28, 2000, after her shift at One Source, in Olive Branch, Mississippi, Stephenson was leaving work when she was approached by Terry Crane, who was not an employee. Crane told Stephenson that she was wanted inside, so she followed him back in the building. Upon entering, she discovered Reginald Davis, a former co-worker, armed with a handgun and holding her co-workers hostage. Davis shot Stephenson in the back of the head and shot Crane in the shoulder; then Davis turned the gun on himself and committed suicide.

¶ 3. Stephenson handled quality assurance, and she oversaw one of One Source’s three assembly lines. Davis began working at One Source in December 2000, and he worked on Stephenson’s assembly line. Stephenson had previously experienced problems with Davis, who she believed had a crush on her and had tried to flirt with her at work. At some point, Davis had stolen some of Stephenson’s pictures from her desk.

¶ 4. On June 20, 2000, Davis got into an argument with Mildred Mack, one of the managers at One Source. After Davis began cursing Mack, she went to the office and brought back termination papers that she and Shawn Mullaly had signed. They told Stephenson that she needed to sign the papers as a witness, but she never signed anything. Davis was some distance away when they asked Stephenson to sign, but it was unclear whether he heard the conversation. Davis’s employment was terminated that day. Later that day, Stephenson discovered that someone had keyed or scratched her husband’s car, which she had driven to work. She and her husband, Terry Stephenson (Terry), called the police regarding the incident, and they filled out a police report.

¶ 5. On June 26, 2000, Stephenson was notified by a secretary at One Source that she had a phone call from her husband. When Stephenson picked up the phone, she discovered that it was not her husband; it was Davis. Davis said he was going to kill Stephenson. He gave Stephenson his phone number, and he said that if she did not call him, he would kill her husband and her children. Either Stephenson or someone else at One Source contacted the police regarding the incident.

¶ 6. The following day, Stephenson spotted Davis staring at her after she dropped her kids off at daycare. She returned home to tell her husband, and they went to the Byhalia Police Department to complain about Davis, who the Stephensons alleged had been harassing them. Officer Jason Hughey talked with the couple about the incident. He then went to the bus stop in Byhalia where Davis was to question him about the incident. Although Officer Hu-ghey told Stephenson and her husband to remain at the police station, they also went to the bus stop. At the bus stop and in the presence of Officer Hughey, Davis again threatened to kill Stephenson, and he said that he had stolen pictures off of her desk.

¶ 7. On June 28, 2000, the morning of the shooting, Terry was dropping his children off at daycare when he again encountered Davis. He noticed Davis staring at him, and Davis approached him and said he needed to tell Terry something. Terry responded that he did not want to talk to Davis. When Davis noticed someone else approaching, he ran away. The police were called regarding the incident, and Officer Hughey apprehended Davis and transported Davis back to the daycare. At that point, Davis began telling Terry that he was having an affair with Stephenson. The police released Davis from custody, and it was that afternoon that he returned to One Source and shot Stephenson.

¶ 8. As Stephenson was leaving for the day, Crane approached her and asked her to come back inside to speak to the manager. Stephenson, believing that something was wrong with the paperwork that she had filed, went back inside the building and into the office. Jackie Cook testified in her deposition that she entered the office that afternoon, and Davis pointed a gun at her. He said he was there for Stephenson. Cook had heard that Stephenson had fired Davis, and she thought that was the reason Davis was after her. Cook admitted that she had also heard that it was Mack who had fired Davis. As far as Cook knew, Stephenson and Davis only had a working relationship; she had never heard any rumors about an affair between them. Cook did not recall any problems between Stephenson and Davis besides the confrontation at the daycare. Also, Mack, who actually signed Davis’s termination papers, had not heard that Stephenson and Davis were having an affair, and the only problem she had heard about was the daycare incident.

¶ 9. On August 8, 2000, Stephenson filed a petition to controvert alleging that she had suffered a work related injury when she was shot by Davis on June 28 and as a result, was she was permanently and totally disabled. International filed an answer admitting that the incident occurred, but it denied that Stephenson was permanently disabled as a result of the incident or that she suffered a loss of wage earning capacity as a result of her injury.

¶ 10. In November 2000, Stephenson was released to return to work by Dr. John Brophy, a neurosurgeon and Stephenson’s treating physician for her gunshot injuries.

¶ 11. The ALJ entered an order in April 2002 finding that the injuries Stephenson received when she was shot by Davis, were suffered in the course and scope of her employment. The ALJ ordered that Stephenson be paid temporary total disability benefits beginning on June 28, 2000 and continuing through November 27, 2000. The ALJ also ordered that Stephenson undergo an independent medical examination by Dr. Keith Atkins, a clinical neuropsychologist. The ALJ’s decision was affirmed by the full commission.

¶ 12. Stephenson underwent an examination by Dr. Atkins. Dr. Atkins was offered as an expert in the field of clinical neuropsychology. He examined Stephenson on June 5 and 19, 2002. Based on his review of Stephenson’s medical records, Dr. Atkins described how the bullet caused injuries to the cerebellum and the lower occipital lobe in her brain. Dr. Atkins testified that the cerebellum controls coordination of fine motor control and movements and the occipital lobe, which is the vision center of the brain. Dr. Atkins detailed various tests that he gave Stephenson to test her effort and symptom exaggeration. Based on the results of the tests, he concluded that Stephenson was not giving her best effort on the exams and was probably exaggerating her symptoms. Dr. Atkins reasoned that: “[S]uch widespread poor effort and symptom exaggeration invalidates the remainder of [Stephenson’s] neuropsychological profile. In other words, I have no confidence in the validity of her neuropsychological scores, most of which fell within the impaired range.” Dr. Atkins found no reason why she would not be able to return to the workplace.

¶ 18. Stephenson was also examined by Dr. Martha Nan Hawkes. Dr. Hawkes, a neuropsychologist, testified at the hearing as an expert in neuropsychology and clinical psychology. Over two days, on January 13 and 14, 2003, Dr. Hawkes performed a neuropsychological evaluation of Stephenson, consisting of several tests, to examine her brain function or cognitive function or thinking. According to Dr. Hawkes, Stephenson’s motivation tests were valid. The tests indicated that she was not exaggerating her symptoms; she was not faking or malingering. Incidents in Stephenson’s patient history included the following: memory problems, poor concentration, personality changes, slurred speech, confusion, hearing difficulty in her right ear, and chronic cough. At the time Dr. Hawkes examined Stephenson, it had been three years since the shooting, and Dr. Hawkes found that Stephenson had reached maximum medical improvement approximately eighteen to twenty-four months after the injury. Dr. Hawkes concluded that Stephenson had suffered moderate brain damage from the gunshot and that Stephenson could not be gainfully employed due to memory and cognitive problems.

¶ 14. The Commission asked Dr. Atkins to reevaluate Stephenson in light of Dr. Hawkes’s findings, but he refused. He reasoned that his initial critical evaluation of Stephenson compromised his ability to evaluate her further. It was his belief that, in light of his critical report, Stephenson would not cooperate with him, and he would not be able to establish a working rapport with her.

¶ 15. The Commission remanded the case with instructions that the ALJ admit the testimony of Dr. Hawkes. After considering Dr. Hawkes’s testimony, the ALJ found that Stephenson had reached maximum medical improvement on November 27, 2000, and had no permanent impairment or loss of wage-earning capacity. The ALJ based his findings on the fact that Dr. John Brophy released Stephenson to return to work and on Dr. Atkins’s testimony that Stephenson exaggerated her symptoms. Stephenson appealed the ALJ’s ruling to the Commission. The Commission reversed the opinion of the ALJ, finding that Dr. Hawkes performed a thorough evaluation of Stephenson and that Dr. Atkins’s testimony did not discredit that evaluation. The Commission noted that it was unclear how Dr. Atkins could opine that Stephenson could return to work, when he had no confidence in the validity of the results of her neuropsycho-logical exams and found Dr. Hawkes’s results to be flawed.

STANDARD OF REVIEW

¶ 16. This Court applies a limited standard when reviewing a decision of the Commission. Ameristar Casino-Vicksburg v. Rawls, 2 So.3d 675, 679 (¶ 16) (Miss.Ct.App.2008) (citation omitted). As the Commission is the ultimate fact-finder, we will only reverse its decision if it was not supported by substantial evidence, was arbitrary and capricious, or if the judgment contained an error of law. Id.

DISCUSSION

I. Compensability

¶ 17. First, International takes issue with the Commission’s finding that Stephenson’s injuries from the shooting were compensable injuries. Its position is that Davis’s motives for shooting Stephenson were purely personal, having to do with an alleged relationship between the two. International concludes that, because Davis’s motives were personal, they were wholly unconnected from Stephenson’s employment; therefore, her injury is not compensable.

¶ 18. An order from the Commission must be final before it is appealable. Flexible Flyer, Inc. v. Harris, 755 So.2d 50, 51 (¶ 7) (Miss.Ct.App.2000) (citing Bickham v. Dep’t of Mental Health, 592 So.2d 96, 97 (Miss.1991)). Here, International appealed the ALJ’s determination of compensability to the Commission, and the Commission affirmed the ALJ’s opinion and remanded the claim for a determination of benefits. At that time, it was not proper for International to have appealed the determination of compensability because the proceedings were ongoing.

¶ 19. Mississippi Code Annotated section 71-3-7 (Rev.2000) provides as follows: “Compensation shall be payable for disability or death of an employee from injury or occupational disease arising out of and in the course of employment, without regard to fault as to the cause of the injury or occupational disease.” “Injury” includes both an accidental injury and “an injury caused by the willful act of a third person directed against an employee because of his employment while so employed and working on the job....” Miss. Code Ann. § 71-3-3 (Rev.2000). This Court has stated the following regarding the compensability of an intentional act that causes an injury:

When the assault is unconnected with the employment, or is for reasons personal to the assailant and the one assaulted, or is not because the relation of the employer and employee exists, and employment is not the cause, though it may be the occasion of the wrongful act, and may give a convenient opportunity for its wrongful act, it is ordinarily held that the injury does not arise out of the employment.

Hawkins v. Treasure Bay Hotel & Casino, 813 So.2d 757, 760-61 (¶ 16) (Miss.Ct.App. 2001) (quoting Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 626, 636, 59 So.2d 294, 300 (1952)). The determination of whether a third party’s intentional tort against an employee is compensable is a factual determination for the Commission. Total Transp., Inc. of Miss. v. Shores, 968 So.2d 400, 406 (¶21) (Miss.2007) (citing Barry v. Sanders, 211 Miss. 656, 661, 52 So.2d 493, 495 (1951)).

¶ 20. International alleges that the facts show that Stephenson was not involved in Davis’s termination and that Davis was romantically obsessed with Stephenson. Notably, Davis only harassed and threatened Stephenson, and she admitted that Davis tried to flirt with her and had a crush on her. International also points out that Davis never mentioned his firing and that it was unclear whether Davis even knew that Stephenson was asked to sign his termination papers. Aside from being asked to sign the papers, which Stephenson did not do, she had no part in Davis’s termination.

¶ 21. However, none of Stephenson’s coworkers suspected any romantic involvement between her and Davis, and Stephenson denied that they had been having an affair. Furthermore, a rumor circulating around One Source was that Stephenson was the one who fired Davis. Cook testified that she heard the rumor from Davis’s friend, Dewayne Pitts, who was a temporary worker at One Source. Davis only shot at Stephenson, but he told everyone else that entered the office that he or she had “bought it too.” Aside from Davis’s threats and allegations of an affair, with which the ALJ found little credibility, there was little to support a finding that he and Stephenson were having an affair.

¶22. Ultimately, the ALJ found the case to be doubtful as to whether the existence of any real or imagined relationship between Davis and Stephenson was the sole cause of her injuries. To “fulfill the beneficent purposes of the statute,” the rule is that doubtful claims must be resolved in favor of compensation. Duke ex rel. Duke v. Parker Hannifin Corp., 925 So.2d 893, 897-98 (¶ 15) (Miss.Ct.App.2005) (citing Marshall Durbin Cos. v. Warren, 633 So.2d 1006, 1010 (Miss.1994)). Therefore, the ALJ found that it was proper to resolve the claim in Stephenson’s favor. The Commission signaled its agreement with the ALJ’s finding by adopting his ruling. There was certainly some evidence to support a finding that the shooting was personally motivated. However, we afford the Commission discretion when reviewing its findings, and we find the ruling, that Stephenson’s claim was compensable, was supported by substantial evidence. All of the testimony reveals that until the day Davis was fired, he was an agreeable employee, and he did not have any arguments with his coworkers. It was not until after he was fired that he appeared to target and eventually shoot Stephenson. Furthermore, when Stephenson returned to the office and was shot, she was responding to what she believed was a request from her supervisor.

¶ 23. The ALJ considered the applicable law addressing whether a third-party assault was a compensable injury or if it was the product of a personal-vendetta that bore no relation to the claimant’s employment. International takes issue with the ALJ’s ruling that there needed to be a love triangle for the personal-vendetta exception to apply. However, what the ALJ found was that, in those cases in which the personal-vendetta exception has been applied, “there was no doubt that a love triangle existed and that the love triangle clearly [motivated] the non-employee to commit the tort against the employee.” See Big “2” Engine Rebuilders v. Freeman, 379 So.2d 888, 891 (Miss.1980) (reviewing cases that denied compensation because the intentional tort was the result of a personal vendetta). In this case, the ALJ found that Davis’s motives as to why he shot Stephenson were unclear. “[I]n order for a claim to be compensable, there must be some causal connection between the employment and the injury. This causation may be minimal or even ‘reasonably incidental’ to the employment....” Id. at 890.

II. Benefits

¶ 24. The claimant bears the burden of proving a loss of wage-earning capacity. McCarty Farms, Inc. v. Kelly, 811 So.2d 250, 254 (¶ 11) (Miss.Ct.App. 2001) (McGowan v. Orleans Furniture, Inc., 586 So.2d 163, 167 (Miss.1991)). The determination of whether a claimant has suffered a loss of wage-earning capacity is a question of fact for the Commission. Id. (citing McGowan, 586 So.2d at 167).

1125. This Court has previously held that “when examining conflicting opinions by medical experts, ‘we will not determine where the preponderance of the evidence lies ... the assumption being that the Commission as trier of fact, has previously-determined which evidence is credible, has weight, and which is not.’ ” Rawls, 2 So.3d at 679 (¶ 16) (quoting Hardaway Co. v. Bradley, 887 So.2d 798, 796 (¶ 12) (Miss.2004)). The present issue involves the conflicting neuropsychological evaluations performed by Dr. Atkins and Dr. Hawkes. Dr. Atkins concluded that his examination of Stephenson was unreliable, and he saw no reason why she could not return to work. On the other hand, Dr. Hawkes found that her examination of Stephenson was sufficiently reliable, and she concluded that Stephenson was “not competent to be employed due to her memory problems as well as other cognitive deficits.” Dr. Atkins found fault with Dr. Hawkes’s testing of Stephenson, but he refused to reexamine her when the circuit court requested that he do so.

¶ 26. Dr. Hawkes testified as to a number of Stephenson’s problems that would preclude her from gainful employment. Stephenson was mentally deficient on a test of her memory of immediate material, which meant she would have trouble remembering or repeating things that people told her. Additionally, she did very poorly on the test of her visual-spatial functioning. That meant that she had problems dealing with shapes, mechanics, or seeing what was going on around her. Dr. Hawkes also found that Stephenson did poorly at reasoning and that she was withdrawn and depressed. In its order, the Commission summarized Stephenson’s px’oblems that Dr. Hawkes noted: “constructional dispraxia, impaired visual tracking and search skills, impaired visual-spatial memory, inability to cope with environmental visual-spatial interference, poor hypothesis testing, abstract pattern-perception issues, left upper extremity motor impairment, attention and concentration deficit, impaired perceptual problem solving, visual motor impairment, and visual and auditory memory impairments.... ”

¶ 27. Dr. Atkins found that most of Stephenson’s scores fell within the impaired range, but he felt that she could have performed better on the tests. He had no confidence in the results of his examination because he found that Stephenson gave poor effort and may have been exaggerating her symptoms. He also found Dr. Hawkes’s tests to be flawed and unreliable.

¶ 28. In examining the conflicting opinions of the experts, the Commission reasoned as follows:

Dr. Atkins testified at some length that Dr. Hawkes’[s] evaluation and testing was flawed, and unreliable due to what he characterized as non-standardized testing methods. Despite, however, his strong testimony that Dr. Hawkes’[s] test data arid conclusions are unreliable, Dr. Atkins actually offered the opinion that, based on this test date, [Stephenson] was able to return to the same type of work as before her injury with no impairment or restrictions. This begs a huge question, of course, as to how Dr. Atkins can opine anything based on an evaluation carried out by Dr. Hawkes which he termed invalid, tainted[,] and unreliable. Dr. Atkins was not even able to opine anything with regard to [Stephenson’s] employability from his own evaluation because he had “no confidence in the validity of her neuropsycho-logical scores.” He obviously had even less confidence in the validity of Dr. Hawkes’[s] scoresf;] thus[,] his opinion of [Stephenson’s] permanent disability based on these very scores is itself suspect.
In the end, Dr. Brophy apparently performed magnificently in treating [Stephenson] for the penetrating gunshot wound to the brain. Beyond this, Dr. Hawkes conducted a thorough neuropsy-chological evaluation of [Stephenson] and offered a very credible opinion, based on this evaluation, that [Stephenson] is permanently and totally disabled. Nothing in the testimony of Dr. Atkins convinces us that Dr. Hawkes’[s] opinion is flawed or otherwise unreliable.

¶29. After reviewing the expert testimony on each side, we find that the Commission’s decision was supported by substantial evidence, namely, the testimony of Dr. Hawkes. There was certainly competing testimony offered by Dr. Atkins. However, it is for the Commission, and not this Court, to judge the reliability of conflicting expert opinions. We do not find the Commission’s decision, to award Stephenson permanent total disability benefits, to be clearly erroneous or against the overwhelming weight of the evidence. This issue is without merit.

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ROBERTS AND MAXWELL, JJ., CONCUR.

      . This opinion will refer to the appellants, collectively, as "International,” unless it is necessary to distinguish between the parties.

      . Stephenson was employed by International, which was a personnel outsourcing company, but she worked at the One Source facility.

      . Terry Crane previously worked at One Source, but on the date of the shooting, he was there only to pick up his mother, Debra Bogan, who was a supervisor at One Source.

      .This witness’s name is spelled several different ways throughout the record.