author: CHANDLER, Justice, KITCHENS, Justice, DICKINSON, Presiding Justice,

text:
    KIMBALL GLASSCO RESIDENTIAL CENTER, INC. and Vera Richardson v. Terrance SHANKS as Next of Kin of Lois Shanks.
    No. 2009-IA-01617-SCT.
    Supreme Court of Mississippi.
    June 9, 2011.

      Wade G. Manor, Jackson, Jamie Leigh Heard, attorneys for appellants.
    Ellis Turnage, Cleveland, attorney for appellee.
    Before CARLSON, P.J., LAMAR and CHANDLER, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. Terrance Shanks filed this personal-injury action on behalf of his mother, Lois Shanks, against Kimball Glassco Residential Center, Inc. and Vera Richardson. Shanks alleged that Lois was injured when Richardson lost control of a van she was driving, in which Lois was a passenger. Richardson filed a motion to dismiss, asserting that she was employed by Delta Community Mental Health Service (DCMHS), not Kimball Glassco, and that the action was barred by the one-year statute of limitations under the Mississippi Tort Claims Act (MTCA). Miss.Code Ann. § 11-46-11(3) (Rev.2002). Kimball Glas-sco’s answer asserted that Kimball Glassco is a state entity entitled to the protections of the MTCA.

¶2. At the hearing on the motion to dismiss, Kimball Glassco and Richardson argued that Shanks’s action was time-barred under the MTCA. The trial court denied the motion to dismiss, holding that the defendants had waived their statute-of-limitations defense by failing to timely raise and pursue the defense while actively participating in the litigation. The trial court held alternatively that the defendants were estopped from asserting the MTCA’s one-year statute of limitations based on a misrepresentation by the Mississippi Tort Claims Board (MTCB) that DCMHS was not a state entity. This Court has granted the defendants’ petition for an interlocutory appeal. Because the defendants did not waive their statute-of-limitations defense, and Kimball Glassco and Richardson were not equitably es-topped by the misrepresentation of the MTCB, we reverse and render the decision of the trial court.

FACTS

¶ 3. Shanks filed the instant lawsuit on April 8, 2008, alleging that, on April 15, 2005, Lois had been a passenger in an automobile owned by Kimball Glassco and driven by Richardson. Shanks claimed that Lois had been injured when Richardson negligently failed to keep a proper lookout and lost control of the automobile. Shanks alleged that Richardson was employed by Kimball Glassco, and that Kim-ball Glassco was vicariously liable for Richardson’s negligence because the accident had occurred in the course and scope of Richardson’s employment.

¶ 4. Richardson filed a motion to dismiss, alleging that she was employed by DCMHS and that, because DCMHS is a state entity, she is entitled to the protections of the MTCA. Richardson admitted that Shanks had given a notice of claim to DCMHS as required by Mississippi Code Section 11-46-11(3). However, she alleged that Shanks’s lawsuit was time-barred by the MTCA’s one-year statute of limitations. See Miss.Code Ann. § 11-46-11(3) (Rev.2002). In its answer, Kimball Glassco averred that it is a corporation created under the laws of the State of Mississippi by the board of DCMHS. On that basis, Kimball Glassco asserted that it is a state entity covered by the MTCA. Kimball Glassco also averred that Richardson had been employed by DCMHS, not Kimball Glassco.

¶ 5. Shanks filed a response disputing the applicability of the MTCA and alleging that, in the July 28, 2006, letter, the defendants and the MTCB had made misrepresentations that detrimentally had induced Shanks to file suit outside the MTCA’s limitations period. Therefore, Shanks argued, the defendants were equitably es-topped from relying on the MTCA statute of limitations as an affirmative defense. Shanks also argued that the statute of limitations was tolled by the defendants’ fraudulent concealment. The same day, Shanks filed a motion for leave to amend the complaint to add the MTCB as a defendant and add claims for concealment, equitable and judicial estoppel, waiver, detrimental reliance, and deprivation of notice and due process of law.

¶ 6. In support of the equitable-estoppel argument, Shanks attached to the motion to amend a letter from Bruce Donaldson of the MTCB to Shanks’s counsel, dated July 28, 2006. The letter acknowledged that Shanks had given a notice of claim to DCMHS and the Mississippi Department of Mental Health. The letter stated that the MTCB had been advised by the Mississippi Department of Mental Health that DCMHS was not a state agency or a department or division of the Mississippi Department of Mental Health. Shanks alleged that the MTCB’s misrepresentation had induced him to file suit outside the one-year statute of limitations applicable to a state entity under the MTCA.

¶ 7. On June 8, 2009, Kimball Glassco and Richardson filed a notice of hearing of the Motion to Dismiss. The hearing occurred on August 19, 2009. On the day of the hearing, Shanks filed a supplemental response, claiming that the defendants had waived their affirmative defenses under the MTCA by failing to seek a timely hearing. The trial court held that Kimball Glassco and Richardson had waived their MTCA defenses because they had failed timely and reasonably to raise and pursue enforcement of those defenses while actively participating in the litigation. Alternatively, the trial court found that Kimball Glassco and Richardson were equitably es-topped from pursuing their MTCA defenses based on the letter from the MTCB that stated DCMHS was not a state entity.

STANDARD OF REVIEW

¶ 8. This Court applies de novo review to the grant or denial of a motion to dismiss or a motion for summary judgment. Price v. Clark, 21 So.3d 509, 517 (Miss.2009).

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN DENYING SHANKS’S MOTION TO DISMISS.

A Waiver

¶ 9. The MTCA provides the exclusive civil remedy against a governmental entity and its employees. Miss.Code Ann. § 11-46-7(1) (Rev.2002). All actions brought under the MTCA are subject to a one-year statute of limitations, which is tolled by a timely-filed notice of claim. Miss.Code Ann. § 11-46-11(3) (Rev.2002). A party instigating a claim under the MTCA must file a notice of claim with the chief executive officer of the governmental entity ninety days before maintaining an action. Miss.Code Ann. § 11-46-11(1) (Rev.2002).

¶ 10. A governmental entity includes the State and its political subdivisions. Miss.Code Ann. § 11-46-1(g) (Rev.2002). The “State” includes “the State of Mississippi and any office, department, agency, division, bureau, commission, board, institution, hospital, college, university, airport authority, or other instrumentality thereof,_” Miss.Code Ann. § 11 — 46—1(j) (Rev.2002). The definition of “political subdivision” encompasses “any county, municipality, school district, community hospital ... airport authority or other instrumentality thereof_” Miss.Code Ann. § 11 — 46—1(i) (Rev.2002). Any claim against an employee of a governmental entity for acts arising out of his or her employment must be brought pursuant to the MTCA. Miss.Code Ann. § 11-46-7 (Rev.2002). In City of Hattiesburg v. Region XII Commission on Mental Health and Retardation, 654 So.2d 516, 517 (Miss. 1995), this Court held that a regional mental-health commission is a state agency.

¶ 11. Kimball Glassco and Richardson assert that they are entitled to the privileges and immunities of the MTCA. The trial court implicitly held that Kimball Glassco and Richardson were covered by the MTCA by holding that they had waived their MTCA defenses or were es-topped from asserting them. On appeal, Shanks does not dispute that Kimball Glassco and Richardson are covered by the MTCA. Rather, Shanks argues that, as found by the trial court, Kimball Glassco and Richardson either waived their MTCA defenses, or they are estopped from asserting them by the MTCB letter.

¶ 12. Kimball Glassco and Richardson argue that the trial court erred by finding that they had waived their affirmative defenses by failing to timely and reasonably pursue those defenses while actively participating in the litigation. This Court has held that “[a] defendant’s failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver.” MS Credit Ctr., Inc. v. Horton, 926 So.2d 167, 180 (Miss.2006). To pursue an affirmative defense means “to plead it, bring it to the court’s attention, and request a hearing.” Estate of Grimes v. Warrington, 982 So.2d 365, 370 (Miss.2008) (citing Horton, 926 So.2d at 181). Because MTCA immunity is considered to be an affirmative defense, this Court has held that a governmental entity’s immunity under the MTCA is subject to waiver. Id.

¶ 13. In his brief, Shanks makes several admissions that both Kimball Glas-sco and Richardson raised their MTCA defenses on May 12, 2008. Nothing further transpired in the case until April 6, 2009, when Shanks noticed the service of discovery on the defendants, including interrogatories, requests for production of documents, and requests for admissions. On May 14 and May 22, 2009, the defendants served discovery responses on Shanks. The trial court’s order recites correspondence between the parties concerning the motion to dismiss as follows:

Correspondence dated June 27, 2008 from defense counsel to counsel for the Plaintiff reaffirmed the Defendant’s assertion of the statute of limitations defense. On January 13, 2009, counsel for the Defendants against fsic] asserted the same position and informed Plaintiffs counsel of his intent to set the motion for hearing. On April 8, 2009, available hearing dates were provided by defense counsel to counsel for the Plaintiff. After receiving no response from Plaintiffs counsel, on May 12, 2009, counsel for the Defendant again requested dates that Plaintiffs counsel could be made available for hearing. On May 21, 2009, Plaintiffs counsel responded by requesting additional dates for the following month. Finally, on June 4, 2009, counsel for both parties agreed on a hearing date. On June 8, 2009, Defendants formally noticed their Motion to Dismiss for hearing. On August 19, 2009, a hearing was held on Defendants’ Motion to Dismiss.

¶ 14. Thus, after the defendants had asserted their statute-of-limitations defense, the case lay dormant on the docket for approximately eleven months, from May 12, 2008, until April 6, 2009. During this dormancy period, on January 13, 2009, Kimball Glassco and Richardson asserted their statute-of-limitations defense in correspondence to Shanks. Approximately three months later, on April 6, 2009, Shanks served discovery on the defendants. Two days later, Kimball Glassco and Richardson proposed available hearing dates for the motion to dismiss. When they received no response from Shanks, they again requested proposed hearing dates on May 12, 2009. They responded to Shanks’s discovery requests on May 14 and May 22. On May 21, 2009, Shanks responded with proposed hearing dates. On June 4, 2009, both parties’ counsel agreed to a hearing date. Kimball Glassco noticed the hearing on the motion to dismiss on June 8, 2009, and it occurred on August 19, 2009.

¶ 15. In Horton, the defendants asserted their right to arbitration in their answer, but then they participated in the litigation by consenting to a scheduling order, engaging in discovery, and taking a deposition. Horton, 926 So.2d at 180. After eight months of substantial participation in the litigation, they filed a motion to compel arbitration. Id. This Court held that the defendants had waived their right to compel arbitration by substantially participating in the litigation for eight months. Id. at 181. The Court held that the determination of whether a delay in pursuing an affirmative defense is unreasonable is subject to a case-by-case analysis, and that no minimum number of days would constitute an unreasonable delay in every case. Id. The Court stated that:

[Ojrdinarily, neither delay in pursuing the right to compel arbitration nor participation in the judicial process, standing alone, will constitute a waiver. That is to say, a party who invokes the right to compel arbitration and pursues that right will not ordinarily waive the right simply because of involvement in the litigation process, and a party who seeks to compel arbitration after a long delay will not ordinarily be found to have waived the right where there has been no participation in, or advancement of, the litigation process.

Id. at 180. However, the Court stated that “[w]e do hold ... that — absent extreme and unusual circumstances — an eight month unjustified delay in the assertion and pursuit of any affirmative defense or other right which, if timely pursued, could serve to terminate the litigation, coupled with active participation in the litigation process, constitutes waiver as a matter of law.” Id. at 181.

¶ 16. Shanks admits that Kimball Glas-sco and Richardson timely raised the statute-of-limitations defense on May 12, 2008. The trial court found that they had waived the defense by failing to pursue it by timely noticing a hearing on the motion to dismiss. The record reveals an approximately eleven-month delay during which nothing occurred of record in the case. During this time, Kimball Glassco and Richardson requested that Shanks propose dates for a hearing on the motion to dismiss. Activity of record resumed on April 6, 2009, when Shanks served discovery requests on the defendants. At that point, the defendants promptly requested that Shanks propose hearing dates. Upon receiving no response to two requests for proposed hearing dates, the defendants responded to the discovery requests a few days after the thirty-day deadline for discovery responses had passed. See M.R.C.P. 33(b)(3), 34(b), 36. Finally, the parties agreed on a hearing date for the motion to dismiss.

¶ 17. The facts in this case do not indicate that Kimball Glassco and Richardson waived their MTCA defenses. Although there was an approximately eleven-month delay in the case, during the delay no party took any action to advance the litigation. During the delay, Kimball Glassco and Richardson pursued their affirmative defense by informing Shanks of their intent to seek a hearing on the motion to dismiss. When Shanks resumed activity in the case by filing discovery, Kimball Glassco and Richardson immediately resumed their effort to secure proposed hearing dates for the motion to dismiss. Although Kimball Glassco and Richardson responded to the discovery requests, they were required to do so by the Rules of Civil Procedure, and they simultaneously sought opposing counsel’s agreement on proposed hearing dates on the motion to dismiss. The record shows that Kimball Glassco and Richardson acted reasonably in pursuing the statute-of-limitations defense and that their conduct did not operate as a waiver.

B. Equitable Estop-pel

¶ 18. The trial court alternatively found that the MTCB’s letter equitably estopped Kimball Glassco and Richardson from asserting their MTCA defenses. In the letter, the MTCB informed Shanks that it had received the notice of claim which Shanks had directed to the Mississippi Department of Mental Health. The MTCB stated that the Mississippi Department of Mental Health had advised the MTCB that DCMHS was not a state agency or a department or division of the Mississippi Department of Mental Health. The MTCB stated that, for this reason, it was unable to consider the claim. The trial court held that Shanks detrimentally had relied upon this letter in concluding that DCMHS was not a governmental entity covered by the MTCA, and in waiting to sue Kimball Glas-sco and Richardson until after the expiration of the one-year statute of limitations under the MTCA.

¶ 19. Kimball Glassco and Richardson argue that the trial court’s ruling was error because the elements of equitable estoppel were not met. Equitable es-toppel is generally defined as “the principle by which a party is precluded from denying any material fact, induced by his words or conduct upon which a person relied, whereby the person changed his position in such a way that injury would be suffered if such denial or contrary assertion was allowed.” Simmons Housing, Inc. v. Shelton, 36 So.3d 1283, 1287 (Miss. 2010) (quotation omitted). Because equitable estoppel is an extraordinary remedy, it is one that should be applied with caution. Id. “Inequitable or fraudulent conduct must be established to apply the doctrine of equitable estoppel to a statute of limitations,” including the statute of limitations under the MTCA. Trosclair v. Miss. Dep’t of Transp., 757 So.2d 178, 181 (Miss.2000).

¶ 20. For the doctrine of equitable estoppel to apply, the plaintiff must have relied on a misrepresentation by the defendant and not on a misrepresentation by some other individual or entity. For example, in Trosclair, this Court found that the Mississippi Department of Transportation (MDOT) was equitably estopped from asserting the MTCA statute of limitations because it erroneously had informed the plaintiff that certain roadwork had been performed by a private entity, when, in fact, it had been performed by MDOT. Id. Assuming for the sake of argument that Shanks can establish that the MTCB letter contained a misrepresentation, Shanks’s allegation is that it was the MTCB, not Kimball Glassco, Richardson, or her employer, DCMHS, that erroneously informed Shanks that DCMHS was a nongovernmental entity. And, according to the letter, it was the Mississippi Department of Mental Health, not Kimball Glassco, DCMHS, or Richardson that had provided the MTCB with that alleged misinformation. There was no showing of inequitable conduct on behalf of Kimball Glassco or Richardson. We find that no action by Kimball Glassco or Richardson reasonably could have induced Shanks to believe Kimball Glassco and Richardson were not entitled to the privileges and immunities of the MTCA. The trial court erred by finding that the doctrine of equitable estoppel prevented Kimball Glassco and Richardson from asserting the MTCA statute of limitations.

II. WHETHER THIS MATTER SHOULD BE REMANDED FOR A DETERMINATION OF LOIS’S COMPETENCY.

¶ 21. Before the briefing was completed, Shanks filed a motion to remand for a determination of unsoundness of mind concerning Lois. In support of the motion, Shanks filed copies of a 1999 court order committing Lois to the Mississippi State Hospital, medical records, and a 2000 court order for continued treatment through outpatient commitment. In the motion, Shanks argues that a determination of unsoundness of mind is required because, if Lois was under a disability on the date of her accident on April 15, 2005, then the one-year statute of limitations under the MTCA would not begin to run until the removal of the disability. Mississippi Code Section 11-46-11(4) provides:

From and after April 1, 1993, if any person entitled to bring any action under this chapter shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the action within the time allowed in this section after his disability shall be removed as provided by law. The savings in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years.

Miss.Code Ann. § 11-46-11(4) (Rev.2002). To invoke this statute, the claimant need not show a formal adjudication of incompetency, but may “present alternative evidence to prove that he lacked the requisite understanding for handling his legal affairs.” Rockwell v. Preferred Risk Mut. Ins. Co., 710 So.2d 388 (Miss.1998).

¶ 22. We find that Shanks’s motion is not well-taken. First, Shanks did not request a determination of unsoundness of mind from the trial court; issues not raised in the trial court are barred from consideration at the appellate level. Town of Terry v. Smith, 48 So.3d 507, 509 (Miss.2010). Second, because Shanks brought this action on behalf of Lois, and Lois is not the plaintiff in this case, Lois’s competence to assert her rights in this lawsuit is not at issue. See U.S. Fid. & Guar. Co. v. Conservatorship of Melson, 809 So.2d 647, 654 (Miss.2002). Shanks’s authority to assert Lois’s rights in this lawsuit has never been questioned. We deny Shanks’s motion to remand for a determination of unsoundness of mind.

CONCLUSION

¶ 28. We hold that the trial court erred by finding that waiver and estoppel barred Kimball Glassco and Richardson from asserting the statute of limitations under the MTCA. Shanks filed the complaint after the expiration of the one-year statute of limitations. Therefore, we reverse the denial of the motion to dismiss, and render a judgment in favor of Kimball Glassco and Richardson.

¶ 24. REVERSED AND RENDERED.

WALLER, C.J., RANDOLPH, PIERCE AND'KING, JJ., CONCUR. KITCHENS, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED BY CARLSON, P.J., AND LAMAR, J. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. LAMAR, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION.

KITCHENS, Justice,

Concurring in Result Only:

¶ 25. While I agree that the doctrine of equitable estoppel is not applicable in this case, I respectfully disagree with the majority’s reasoning. The majority finds that Kimball Glassco and Richardson are not equitably estopped from asserting the Mississippi Tort Claims Act’s (MTCA’s) one-year statute of limitations because it was the Mississippi Tort Claims Board, and not Kimball Glassco or Richardson, that made the alleged misrepresentation. However, the doctrine of equitable estoppel does not apply, because the board in fact never represented to the plaintiff that Delta Community Mental Health Service (DCMHS) was not covered by the Mississippi Tort Claims Act (MTCA).

¶ 26. The Tort Claims Fund was established in accordance with Mississippi Code Section 11-46-17, and distinguishes between “governmental entit[ies]” and “political subdivisions.” Subsection (1) provides that “each governmental entity other than political subdivisions shall participate in a comprehensive plan of self-insurance and/or one or more policies of liability insurance administered by the Department of Finance and Administration,” while subsection (3) requires “political subdivisions” to obtain insurance or establish insurance reserves on their own. Miss.Code Ann. § 11416-17 (Rev.2002) (emphasis added). “Political subdivision” is defined as “any body politic or body corporate other than the state responsible for governmental activities only in geographic areas smaller than the state, including but not limited to any county, municipality, school district, community hospital ..., airport authority, or other instrumentality thereof....” Miss.Code Ann. § 11^6-l(i) (Rev.2002). Thus, the state has its own claim fund separate and apart from those of its “political subdivisions,” and the Mississippi Tort Claims Board is vested with the authority to oversee and administer this fund. Miss. Code Ann. § 11-46-19 (Rev.2002). While the board may “review and approve or reject any plan of liability insurance or self-insurance reserves proposed or provided by political subdivisions,” it does not assign claims to attorneys or purchase insurance policies for the “political subdivisions.” Miss.Code Ann. § 11-46-19(d),(h),(l) (Rev.2002). See Maj. Op. n. 1.

¶ 27. The letter of July 28, 2006, from the MTCB simply stated that DCMHS was not covered by the state fund under Section 11-46-17(1); it did not foreclose, or even speak to, the question of whether DCMHS was a “governmental entity” entitled to immunity under Mississippi Code Section 11-46-11. The text of the letter, in its entirety, stated:

This will acknowledge receipt of your notice of claim letter directed to the Mississippi Department of Mental Health concerning the above referenced matter.
We have been in contact with the Mississippi Department of Mental Health concerning this matter and advised that Delta Community Mental Health Service is not a state agency nor is it a department or division of the Mississippi Department of Mental Health.
For these reasons, we will unfortunately be unable to consider this claim. We regret we will be unable to assist you or your client any further in this respect.

The board was merely notifying the plaintiff that it would not be handling the claim, but it never said that DCMHS was not entitled to the protections of the MTCA. Therefore, the plaintiff cannot rely on the doctrine of equitable estoppel because the board did not make any misrepresentation to the plaintiff. For these reasons, I respectfully concur in result only.

CARLSON, P.J., AND LAMAR, J., JOIN THIS OPINION.

DICKINSON, Presiding Justice,

Dissenting:

¶ 28. The majority’s claim that we employ a de novo standard of review is misleading. While we review de novo the grant or denial of a motion to dismiss, the real issue before this Court is whether Kimball Glassco and Richardson waived their Mississippi Tort Claims Act (MTCA) defenses, and we review waiver issues under an abuse-of-discretion standard.

¶ 29. Kimball Glassco and Richardson raised their MTCA defenses on May 12, 2008, but waited thirteen months to set them for hearing. The trial judge held the defenses were waived. Because the majority holds that the trial judge abused his discretion, I must dissent.

¶ 30. The majority’s sole basis for reversing the trial judge is some alleged correspondence from defense counsel to counsel for the plaintiff. I find it ironic that, in making his ruling, the trial judge referred to correspondence not found in the record; and the majority now relies on that same correspondence to reverse him, even though the trial judge had the opportunity to read the correspondence, and the majority didn’t. Because this alleged correspondence is not in the record, I find it highly improper for us even to consider it.

¶ 31. But even if the correspondence was in the record in exactly the same form as recited within the trial judge’s order, I would still hold the trial judge did not abuse his discretion in holding the defenses were waived. My reasons are these:

(1) The June 27, 2008, letter neither mentioned nor requested a hearing on the defenses;
(2) For seven months following the June 27 letter, defense counsel did nothing whatsoever to advance the defenses.
(3) In correspondence to the plaintiffs counsel dated January 13, 2009, the defendants still did not request a hearing date for the defense.
(4) On April 6, 2009, the plaintiff served discovery on the defendants, including interrogatories, requests for production of documents, and requests for admission.
(5) On May 14 and May 22, 2009, the defendants served discovery responses on Shanks, thereby participating in the litigation. Still, no notice of a hearing on their affirmative defenses.
(6) It was not until April 8, 2009 — eleven months after the defenses were asserted — that counsel for the defendants first provided available hearing dates to plaintiffs counsel.
(7) Then, the defendants waited another two months to set the matter for hearing.

¶ 32. The question is not whether the justices on this Court think these facts amount to a waiver; the question is whether the trial judge — having found a waiver — abused his discretion. I do not believe the record before us justifies a finding that he did. I would affirm the trial judge’s holding that the defendants waived their MTCA defenses. Because the majority holds otherwise, I respectfully dissent.

      . The powers and duties of the MTCB are codified at Mississippi Code Section 11 — 46-19 (Supp.2010). These powers and duties include, inter alia, overseeing the Tort Claims Fund, assigning litigated claims to attorneys where necessary, and purchasing insurance policies for the protection of the State. Id.

      . Shanks filed the notice of claim on April 4, 2006.

      . Although copies of this correspondence are included in Kimball Glassco's and Richardson's record excerpts, this correspondence was not made a part of the official record in this case. This correspondence and other extra-record documents included in the record excerpts are the subject of a motion to dismiss filed by Shanks. " '[Tjhis Court will not consider matters which do not appear in the record and must confine itself to what actually does appear in the record.' " Rushing v. State, 711 So.2d 450, 454 (Miss. 1998) (quoting Medina v. State, 688 So.2d 727, 732 (Miss.1996)). If a party believes that the appellate record contains errors or omissions, the proper procedure for "Correction or Modification of the Record” is outlined in Mississippi Rule of Appellate Procedure 10(e). See M.R.A.P. 10(e). This Court will not consider the extra-record materials filed with the record excerpts, and Shanks’s motion to strike these materials is granted. However, it is apparent from the trial court’s order that the correspondence was considered by the trial court in making its ruling. Because this order is a part of the official record, we are able to rely on its discussion of the correspondence in determining the issues on appeal.

      . In his brief, the plaintiff does not address this issue, although he did raise it in the trial court.

      .The majority is correct that “a regional mental health commission is a state agency,” for immunity purposes, but regional mental health commissions are created, funded, and governed at the county level. See Miss.Code Ann. §§ 41-19-31 to 41-19-43 (Rev.2009). Thus, DCMHS is a "political subdivision” that does not pay into the state Tort Claims Fund. Miss.Code Ann. § 11-46-17 (Rev.2002).

      . See MS Credit Ctr., Inc, v. Horton, 926 So.2d 167, 181 (Miss.2006).

      . See id. at 180 (defendant must pursue dis-positive affirmative defense); Estate of Grimes v. Warrington, 982 So.2d 365, 370 (Miss.2008) (defendant must plead dispositive affirmative defense, bring it to court’s attention, and request hearing).


source: Caselaw Access Project

author: WALLER, Chief Justice,

license: Public Domain

text:
    Leah Fulton DOOLEY; Kathryn Marie Fulton, a Minor, by and through her Mother and Next Friend, Leah Fulton Dooley; Peyton Dooley, a Minor, by and through his Mother and Next Friend, Leah Fulton Dooley; and All Heirs-at-Law of Jonathan Wayne Dooley, a Minor, Deceased; Dewey Dooley; and Kaitlyn Dooley, by and through her Mother and Next Friend, Keri Patrick v. Cedric BYRD and Independent Roofing Systems, Inc.
    No. 2009-CA-01830-SCT.
    Supreme Court of Mississippi.
    June 16, 2011.

      William W. Fulgham, Don H. Evans, James W. Smith, Jr., Erin S. Rodgers, Jackson, attorneys for appellants.
    James D. Holland, Jackson, Andrew J. Stubbs, George Martin Street, Jr., attorneys for appellees.
    Before WALLER, C.J., RANDOLPH and CHANDLER, JJ.
   WALLER, Chief Justice,

for the Court:

¶ 1. This case involves a wrongful-death action against Independent Roofing Systems, Inc., and Cedric Byrd for Jonathan Dooley’s death. Byrd, an Independent Roofing employee, attempted to drive his truck and trailer into the driveway of a house located on Highway 468 in Rankin County, Mississippi. Byrd misjudged the turn. As a result, he left part of his trailer on the road for a short period of time. The Chevy Malibu in which Jonathan traveled with his mother collided with the trailer. Jonathan died instantly.

¶ 2. Leah Dooley, Jonathan’s mother, filed this wrongful-death action against Byrd and Independent Roofing on behalf of Jonathan’s wrongful-death heirs. The jury returned a unanimous defense verdict. The trial court denied the heirs’ post-trial motions, and they appealed. Because the trial court denied two heirs the right to participate fully in the trial and improperly instructed the jury, we reverse and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 8. Cedric Byrd worked for Independent Roofing under Ike McLain’s supervision. During the early afternoon of September 29, 2003, McLain directed Byrd to pick up a piece of equipment from the home of Robert Smith, another Independent Roofing employee. Byrd left Independent Roofing’s office in a flat-bed truck, pulling a twenty-nine-foot trailer, eventually traveling southwest on Highway 468 toward Smith’s home. Not long after Byrd passed, Leah Dooley strapped two-year-old Jonathan into his car seat and began her trip, also southwest on Highway 468. En route, Jonathan climbed out of his car seat and into the front passenger seat. Around 2:35 p.m., as Byrd was attempting to turn into Smith’s driveway, the passenger side of Leah’s car collided with the left rear corner of his trailer, which was protruding approximately 5.5 feet into the southbound lane. Jonathan died instantly. Leah was not injured.

¶ 4. Leah hired Attorney Don H. Evans to file a wrongful-death suit on behalf of Jonathan’s heirs against Byrd and Independent Roofing. Jonathan left five wrongful-death heirs: Leah (mother), Dewey (father), Kaitlyn (half-sister), Kathryn (half-sister), and Peyton (brother). Eventually, Attorney William W. Fulgham filed a Motion for Joinder and Separate Representation on behalf of Dewey and Kaitlyn. The court granted the motion. Afterward, Evans and co-counsel James W. Smith Jr. represented Leah, Kathryn, and Peyton (collectively “Leah”). Fulg-ham and co-counsel Erin S. Rogers represented Dewey and Kaitlyn (collectively “Dewey”).

Leah’s version of the accident

¶ 5. The plaintiffs had alternative two theories of liability: (1) that Byrd had backed into Leah’s car, or (2) that Byrd had left his trailer in the road without warning the southbound traffic.

¶ 6. Leah testified that, on the day of the accident, she had placed Jonathan’s car seat on the left rear seat of her car, immediately behind the driver. Before leaving from her home, she had secured Jonathan in his car seat and had driven southwest on Highway 468 in Rankin County.

¶ 7. Leah estimated that she had been traveling from forty-five to fifty-five miles per hour, as she approached the scene. Her expert determined that her speed had been fifty-five miles per hour just before the accident. Halfway to the accident scene, Jonathan climbed out of his car seat and into the front passenger’s seat. Leah never reduced her speed.

¶ 8. Leah described the part of Highway 468 leading to the scene as a “straight shot,” with a clear view for about one mile. She explained that the truck and trailer had not been in the road as she had approached the scene. Leah had noticed Byrd’s trailer on the side of the road, but because of the shade along the highway, she could not see the trailer clearly. As she continued south, the trailer suddenly backed into the road, hooked into her car, and spun it into a ditch. According to Leah, the accident happened so quickly that she did not swerve or apply her brakes. She did not recall speaking with Byrd after the accident.

¶ 9. McLain, the Independent Roofing employee who supervised both Byrd and Keys, also testified for the plaintiffs. After learning of the wreck, McLain traveled to the scene. When he arrived, McLain saw grass and gravel spent around the truck’s front-pull axle, which indicated to him that the truck had been backing up. McLain pointed out the spent gravel to Independent Roofing safety director Russell Ramsey and offered his opinion of its significance. But, allegedly, Ramsey dismissed McLain’s concerns. Ultimately, McLain found it “obvious” that the truck had been backing up, but said that “everyone” had wanted to “cover it up.”

¶ 10. The plaintiffs called Rankin County Sheriffs Department Deputy Don Bryant and Sergeant Dan Warren as witnesses. Officer Bryant had driven upon the scene right after the accident. Deputy Bryant testified that the rear tires of Byrd’s truck looked like they had been spinning. Deputy Bryant believed that Byrd had attempted to back his truck up the incline in the driveway, but that the truck had gotten stuck.

¶ 11. Sergeant Warren testified that when he arrived at the scene, he could see the truck clearly. But because of the shadows, he could not see the trailer very well. Based on photographs from the accident scene, Sergeant Warren testified that the tires from Byrd’s truck had been spinning from Byrd’s attempts to back up or pull forward.

Byrd’s version of the accident

¶ 12. The defendants contended that Leah had rear-ended Byrd while he was completing his turn.

¶ 18. According to Byrd, he had followed fellow employee Patrick Keys to Smith’s home to pick up a piece of equipment. In turning into a driveway leading to Smith’s home, Byrd did not turn widely enough to the left to complete the right turn. As he attempted the turn, he went partially off the left side of the driveway; consequently, his left front wheel went into a ditch. Byrd stalled in this position, which left the left rear part of his trailer protruding in the road approximately five and a half feet. According to Byrd, he tried unsuccessfully to drive the truck and trailer in reverse to avoid hitting Smith’s mailbox.

¶ 14. Byrd explained that Keys already had parked and had walked toward Byrd’s stalled truck and trailer. Byrd testified that he asked Keys to check Smith’s mailbox to make sure that he would not hit it as he made the turn. According to Byrd, Keys walked toward the road, and in the process of checking the mailbox, he directed three cars to pass Byrd. Byrd testified that Keys returned to the front of Byrd’s truck and was guiding him into the driveway to ensure that he did not hit the mailbox. The accident happened about thirty seconds after Byrd began moving forward. Byrd testified that, after the accident, Leah approached him and said that she had not seen the trailer because she had been picking up Jonathan from the passenger’s side floorboard.

¶ 15. Keys provided a similar description of the events. According to Keys, Byrd had no reason to back up, and he did not recall whether Byrd attempted to back up. Keys did recall that two to three cars had passed before the accident, but he denied that he had directed the cars to pass around the trailer. According to Keys, he had watched the cars pass when he had walked to the truck’s rear-passenger-side tires to check the mailbox. He denied that he had walked behind Byrd’s trailer.

¶ 16. The jury unanimously found that Byrd and Independent Roofing were not liable. The trial court denied Leah’s and Dewey’s alternative motions for a judgment notwithstanding the verdict (JNOV) or a new trial, and they appealed.

ISSUES

¶ 17. Leah and Dewey assert the following issues, which we rephrase for clarity:

I. Whether the lower court abused its discretion by granting Dewey’s joinder motion and in handling Dewey’s request for separate representation.
II. Whether the lower court erred in refusing proposed jury instructions P-21, P-36, P-40, P-44A, and P^4B and in granting jury instruction numbers 7, 10, and 11.
III. Whether the verdict was against the overwhelming weight of the evidence.
IV. Whether the lower court erred in failing to grant Leah’s and Dewey’s Motions for Judgment Notwithstanding the Verdict.

We limit our review to the first two issues. See M.R.A.P. 17.

DISCUSSION

I. Motion for Joinder and Separate Representation

A. Joinder

¶ 18. Leah contends that the trial court erred in granting Dewey’s motion for joinder. Evans, who represented Leah (mother), Kathryn (half-sister), and Peyton (brother) (collectively “Leah”), filed this suit on behalf of all of Jonathan’s wrongful-death heirs. Approximately one and a half years later, Fulgham filed a Motion for Joinder and Separate Representation on behalf of Dewey (father) and Kaitlyn (half-sister) (collectively “Dewey”), citing Long v. McKinney, 897 So.2d 160 (Miss.2004), as authority. In response, Leah urged the trial court to deny Dewey’s request and argued the following points, which we rephrase:

• Dewey had repeatedly blamed Leah for the accident.
• Dewey’s current wife, “the same person [whom] he left and abandoned Leah ... and their children for,” attempted to have Leah indicted.
• Dewey had assisted Byrd and Independent Roofing’s attorneys in defending the claim.
• Dewey repeatedly had contended that Jonathan had died because Leah did not have him in his car seat.
• Dewey only wanted to join the case “to get inside information” for Byrd and Independent Roofing’s attorneys.
• Dewey did not qualify as an heir under the statute because he had abandoned his children and was more than $6,000 behind in alimony and child-support payments.
• Dewey had brought his girlfriend, “who he ... deserted his family for,” to Jonathan’s visitation and funeral, which showed “total disrespect” for Leah and their deceased son.
• Kaitlyn did not qualify as a wrongful-death beneficiary, as there was no proof that she was Dewey’s daughter.

Later, Leah filed an amended response with the same arguments for denial. The amended response included a copy of Leah’s letters of appointment from the chancery court and further explained that she had retained Evans’s law office to represent the wrongful-death heirs in this suit. The record does not indicate when, but the trial court granted the motion.

¶ 19. Leah asserts that she and the other heirs were prejudiced, because the jury heard the negative and inflammatory assertions she outlined in her response to Dewey’s motion for joinder. Leah also contends that William Partenheimer, the expert hired by Dewey, presented a “join-der issue problem,” because he testified that Leah had held some responsibility for the accident.

¶ 20. Long v. McKinney clarified the procedural rules governing wrongful-death claims. Long v. McKinney, 897 So.2d 160, 171 (Miss.2004) (“The resolution of this case requires only that we address appropriate practice and procedure in wrongful death litigation. No substantive law is involved.”). The Court held, in relevant part, that all wrongful-death claims must be litigated in one suit. Id. at 174; see also Smith v. Holmes, 921 So.2d 283, 286 (Miss.2005) (“[I]f a wrongful death beneficiary wishes to join a wrongful death lawsuit, his motion to join should be granted....”).

¶ 21. Here, the trial court properly granted Dewey’s joinder motion. Not only was the trial court’s decision correct, but Long and the wrongful-death statute also mandated that outcome. See Miss.Code Ann. § 11-7-13 (Rev.2009); Long, 897 So.2d at 174.

¶ 22. The remaining “joinder issue problems” argued by Leah also lack merit. Although Leah objects to Partenheimer’s participation as an expert witness to argue against joinder, she relied on his opinion throughout her briefs to support her other arguments. In light of Long, we also must reject her argument that the trial court’s disposition of the joinder motion somehow could have prevented the jury from hearing the inflammatory information included in her response to Dewey’s joinder motion.

B. Separate Representation

¶23. Dewey relies on Long and River Region Medical Corp. v. Patterson, 975 So.2d 205, 208 (Miss.2007), to argue that the trial court denied his right to examine key witnesses and to present his theory of the case. Dewey contends that Long “clearly supports” the substantive rights of individual beneficiaries over any procedural rules.

¶24. In response, Byrd and Independent Roofing contend that the trial court acted within its discretion in allowing all the beneficiaries to participate. Further, they request that this Court consider only the briefs filed by Leah.

¶ 25. The attorneys began arguing about their respective roles before completion of opening statements. Following Leah’s opening statement, Dewey attempted to give his own opening, and the defendants promptly objected. Citing Long v. McKinney, Dewey argued that he had an absolute right to his own attorney. The court allowed Dewey to give an opening statement.

¶26. However, peace was short-lived when, in the second day of trial, Dewey requested the court’s permission to question Byrd after Leah had completed her examination of him. Dewey contended that Long’s guarantee of participation was not limited to presenting separate proof of damages; the case also authorized each beneficiary’s attorney to question witnesses on liability. Since he had a different trial strategy and a different theory of the case, Dewey argued that allowing only one plaintiffs’ lawyer to question each witness would violate his right to participate fully in the trial.

¶27. After hearing additional arguments, the court determined that both sets of plaintiffs would have an opportunity to participate, although Long and Patterson did not mandate the extent of that participation. The trial court reminded the attorneys that, under the wrongful-death statute, the attorney who had first filed the suit owed a duty to all the wrongful-death heirs. The trial judge stated that, before trial, Leah, Dewey, and their attorneys should have decided their theories of liability and discussed who would ask questions to prove those theories. Further, the trial judge reasoned that allowing multiple attorneys to question every witness would confuse the jury. Thus, for the rest of the proceedings, the court instructed Leah and Dewey to cooperate and to work together in presenting their cases on liability. At the least, the attorneys would present evidence on the individual damages of their respective clients.

¶ 28. In Long, we held that each beneficiary who so chooses may retain an attorney to represent his or her separate interest and join in the litigation. Long, 897 So.2d at 174. We further rejected the notion that the first to file the wrongful-death suit would “ ‘control the litigation’ to the exclusion of participation by other heirs who wish to join with other counsel of their choosing.” Id. at 178. Finally, we determined that the trial court would maintain broad discretion to decide joinder issues, to manage litigation-control matters, and to determine the participation of separate attorneys. Id.

¶29. We make clear today that each wrongful-death beneficiary has a right to participate fully in all aspects of this trial. Long authorizes each beneficiary’s right to separate representation, which includes the inherent right to participate in each part of the litigation. See Long, 897 So.2d at 174. And Patterson requires each beneficiary to prove her individual claim for certain damages. See Patterson, 975 So.2d at 208. Here, as in any other case that involves multiple plaintiffs, Dewey had a right to question all the witnesses. The defendants cross-examined Leah on the negative information about Dewey and Kaitlyn in Leah’s response to the joinder motion, but Dewey had no opportunity to address the validity of that information. Further, Dewey was denied the right to question Leah, Byrd, and Keys — the only witnesses who were present when the accident occurred. The alleged jury confusion or prejudice from different trial strategies must yield to each wrongful-death beneficiary’s right to participate fully in the litigation with her chosen counsel. The trial court committed reversible error in denying Dewey’s right to question all the witnesses. See Patterson, 975 So.2d at 208; Long, 897 So.2d at 174.

¶ 30. When, as here, there are individual claims on liability and damages, our rules of civil procedure must guide the actions of the respective beneficiaries and the trial court. See, e.g., M.R.C.P. 16, 26, 47, 51. And if the circumstances require that the court grant additional peremptory challenges or jury instructions to each beneficiary, the court shall grant the same to the defendants. See, e.g., M.R.C.P. 47, 51. Likewise, our rules of evidence apply with full force during such proceedings. Thus, the concerns on cumulative testimony and jury confusion should be handled through a proper objection. See M.R.E. 403. The trial court maintains discretion to control the mode and order of testimony as authorized under Mississippi Rule of Evidence 611. M.R.E. 611. But Rule 611 does not authorize the trial court to deny completely a party’s right to question a witness. On remand, the trial court is directed to protect each beneficiary’s right to participate in every part of this litigation, subject to the court’s need to allow for orderly and rational progress of the trial.

II. Jury Instructions

¶ 31. Leah and Dewey contend that the trial court improperly refused several proposed instructions that addressed negligence per se, traffic-safety rules, and an alternate theory of the case.

¶32. Generally, a trial court should grant any requested jury instruction if “it concerns a genuine issue of material fact and there is credible evidence to support the instruction.” Mariner Health Care, Inc. v. Estate of Edwards ex rel. Turner, 964 So.2d 1138, 1155 (Miss. 2007). The trial court may refuse an instruction that incorrectly states the law, that addresses a theory covered in other instructions, or that lacks a foundation in evidence. Burr v. Miss. Baptist Med. Ctr., 909 So.2d 721, 726 (Miss.2005). The denial of an instruction does not warrant reversal unless the appellant demonstrates “that the instructions, taken as a whole, do not fairly present the applicable law.” Mariner Health Care, Inc., 964 So.2d at 1156.

¶ 33. Negligence per se renders a defendant liable without proof of reasonable care when the plaintiff proves the defendant violated an applicable statute. Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 796 (Miss.1995). In negligence-per-se actions, the party must prove the following: (1) that the party belongs to the class of people the statute intends to protect, (2) that the party suffered the type injuries the statute was designed to avoid, and (3) that the offender’s violation of the statute proximately caused the party’s injuries. Utz v. Running & Rolling Trucking, Inc., 32 So.3d 450, 477 (Miss.2010); Thomas v. McDonald, 667 So.2d 594, 597 (Miss.1995). When the statute applies, the court may instruct the jury that the defendant is negligent for violating the statute, but the jury must find that the violation caused or contributed to the party’s injury. Utz, 32 So.3d at 477 (“[A] violation of a statute ... does not dictate that either (1) the violation was the proximate or contributing cause of an injury suffered by a party, or (2) recovery for damages is imminent.”). See also Gallagher Bassett Servs., Inc. v. Jeffcoat, 887 So.2d 777, 787 (Miss.2004).

¶ 34. Leah and Dewey contend that the trial court improperly denied P-36 and P-44B, which they maintain were based on Mississippi Code Section 63-7-71. See Miss.Code Ann. § 63-7-71 (Rev.2004). Leah and Dewey cite cases that interpret Section 63-7-71 to support their contention that they were entitled to these instructions on negligence per se. See Thomas, 667 So.2d at 597; Stong v. Freeman Truck Line, Inc., 456 So.2d 698, 701, 704-05 (Miss.1984).

P-36 (warning devices)

¶ 35. Instruction P-36 provided:

The Court instructs the jury that whenever a truck and trailer combination such as the one in this case is stopped upon the highway at the time of day as in this case, the driver or person in charge of such vehicle shall place upon the highway in a standing position red flags, one at a distance not less than one hundred feet to the rear of the vehicle and one not less than one hundred feet in advance of the vehicle and the third upon the roadway side of the vehicle. The Court further instructs that the flags in such circumstances should be set out with such reasonable and proper diligence, or promptly under all the facts and circumstances of the case. Consequently, the Court instructs that if you find that either (a) the truck did not contain any flags, or (b) that the truck had flags on board but that Cedric Byrd had not been trained on when and how they should be used, then you shall find the Defendants guilty of negligence and determine causation in accordance with the other instructions.
If however, you find that (a) flags were on board and (b) Byrd had been trained on the proper usage of the flags, but you further find that Byrd did not act with reasonable and proper diligence, or promptly under the facts and circumstances of the case, then you shall find the Defendants guilty of negligence and determine causation in accordance with the other instructions.

¶ 36. P-36 contains inconsistent and incorrect statements of the law regarding Section 63-7-71. First, and foremost, Section 63-7-71 does not require that a driver place warning devices immediately; rather, he or she must act with “reasonable promptness and diligence under the facts and circumstances of the particular case....” Stong, 456 So.2d at 710 (Miss. 1984). The jury must decide whether the driver placed the warning devices with reasonable promptness. Id. at 710-11. The first paragraph of P-36, which appears to be a statement of the law, made it possible for the jury to impose liability without considering the reasonableness of Byrd’s actions under the circumstances. True, the second paragraph begins by stating that the flags should be set out with “reasonable and proper diligence, or promptly” under the facts of the case. But the second sentence of that paragraph directs the jury to find the defendants negligent if the truck did not have flags, or if it had flags but Byrd did not receive training on how they should be used. In other words, flags without training equals negligence — no consideration of reasonableness or proper diligence is required. The final paragraph carries forward the preeminence of Byrd’s training. It states that if flags were onboard, and if Byrd had been trained on their use, the jury should impose liability if it finds that Byrd had not acted with reasonable and proper diligence. The problem, once again, is that the reasonableness of Byrd’s actions is never reached if the jury finds that he had not been trained. Under P-36, a finding of negligence could very well hinge solely upon whether or not Byrd had received training. The instruction, therefore, was inconsistent, an improper statement of the law, and, arguably, peremptory. Burr, 909 So.2d at 726.

¶ 37. Thomas does not provide Leah and Dewey any support for the granting of P-36. In Thomas, the defendants involved in the accident had admitted that their vehicle lacked any warning devices. Thomas, 667 So.2d at 597. At trial, the plaintiff requested, but the trial court denied, negligence-per-se instructions based on Section 63-7-71. Id. at 597-98. On appeal, the Court held that the Section 63-7-71 negligence-per-se instruction should have been given. Id. at 597. Since the defendants had admitted that their vehicle lacked any warning devices, they could not argue that they would have complied with Stong’s reasonable-promptness standard. Id.; see also Stong, 456 So.2d at 710.

¶ 38. At trial, Byrd and Keys estimated that the trailer had protruded into the road for three to five minutes before the accident happened. Keys thought that the truck had contained warning devices, but both Byrd and Keys acknowledged that no cones, flags, or other warning devices had been placed in the road. Because Byrd had stopped for only a short period of time before resuming his turn, he did not see the need to place any warning devices in the road. McLain added that Independent Roofing trucks had boxes for carrying warning devices, but the devices did not consistently remain in the trucks.

P-44B (warning devices)

¶ 39. Instruction P-44B stated:

The Court instructs the jury that the Defendants were negligent as a matter of law in failing to have warning devices available on the vehicle as required. If you find that this failure was the proximate cause or a proximate contributing cause of the accident, then it shall be your sworn duty to enter a verdict in favor of the Plaintiffs, and you shall assess damages in accordance with the remaining instructions.

P-44B is improper because it was peremptory and would have held the defendants liable without allowing the jury to consider Stong’s reasonable-promptness standard. See Thomas, 667 So.2d at 597; Stong, 456 So.2d at 710. In other words, reasonable minds could have differed as to whether Byrd should have placed warning devices in the three-to-five minutes that his trailer was on the road. While Leah and Dewey were entitled to a properly drafted instruction per Stong, P-44B incorrectly stated the law, so the trial court properly refused it. Burr, 909 So.2d at 726.

P-44A (commercial driver’s licenses)

¶ 40. Leah and Dewey contend that the trial court improperly denied P-44A, which would have held the defendants negligent as a matter of law because Byrd lacked a commercial driver’s license.

¶ 41. P-44A stated:

The Court instructs the jury that the Defendants were negligent as a matter of law in failing to have the required license. If you find that this failure was the proximate cause or a proximate contributing cause of the accident, then it shall be your sworn duty to enter a verdict in favor of the Plaintiffs, and you shall assess damages in accordance with the remaining instructions.

¶ 42. Leah and Dewey argue that Byrd acted negligently by failing to execute a proper turn into the driveway or by using the wrong driveway to access the property. They further argue that undisputed trial evidence proved that Byrd needed a Class D license to operate the truck and trailer, and that with the proper license and training, he would not have attempted an unsafe turn.

¶ 43. Leah and Dewey refer to different commercial driver’s license statutes to support their positions. Leah points to Section 63-1-211 as authority. See Miss.Code Ann. § 63-1-211 (Supp.2010) (commercial driver’s licenses, generally). Dewey cites Sections 63-1-74, 63-1-77, and 63-1-82. See Miss.Code Ann. §§ 63-1-74 (purpose of commercial driver’s license statutes), 63-1-77 (requirement to have commercial driver’s license, generally), 63-1-82 (commercial driver’s licenses, generally) (Rev. 2004) (all three statutes repealed 2009).

¶ 44. At trial, McLain testified that his boss had instructed him to have Byrd pick up the equipment from Smith’s house on the day of the accident. Out of concern, McLain had verified the request with Independent Roofing safety director Russell Ramsey. McLain knew the trip to Smith’s home would have been difficult for an experienced driver, and he also thought that Byrd had been unfamiliar with loading equipment.

¶ 45. Ramsey testified that he did not recall authorizing Byrd to pick up the equipment. Ramsey had known that Byrd did not have a commercial driver’s license, and that he had not been trained to drive trucks. Ramsey testified that he thought that Byrd would have needed a Class D license to drive the truck and trailer. He explained that the Class D license would have required a written test, rather than a skills tests.

¶ 46. Byrd acknowledged that he lacked a commercial driver’s license. And while he was experienced in driving eighteen-wheelers, Independent Roofing had not trained him to drive the truck and trailer he had used to haul Independent Roofing’s materials.

¶ 47. Smith held a Class A commercial driver’s license at the time of the accident, which he testified would have covered the truck and trailer that Byrd had driven. Smith had taken the piece of equipment to his home using the same truck and trailer driven by Byrd, but he had used an alternate gravel road nearby to access his property.

¶ 48. Here, the cited commercial driver’s license statutes do not apply. The accident occurred on September 29, 2003, and the effective date of Section 63-1-211 was July 1, 2009. Miss.Code Ann. § 63-1-211 (Supp.2010). See City of Starkville v. 4-County Elec. Power Ass’n, 909 So.2d 1094, 1109 (Miss.2005) (noting that statutes do not apply retroactively absent a clear statement from the Legislature). Further, Leah and Dewey failed to show that the Legislature had enacted Sections 63-1-74, 63-1-77, or 63-1-82 to address the type of harm that occurred in this case. Most importantly, the plaintiffs failed to prove a connection between the injury and Byrd’s lack of a particular license. Therefore, the trial judge properly refused instruction P-44A. Gallagher Bassett Servs., Inc., 887 So.2d at 787; Burr, 909 So.2d at 726. See also Utz, 32 So.3d at 477.

P-I0 (safe turns)

¶49. Leah and Dewey contend that the court should have granted P-40, which addressed a driver’s responsibility to execute safe turns from the roadway. ¶ 50. P-40 stated:

The Court instructs the jury that if you find that a reasonably prudent person would not have attempted to maneuver the type of flat bed truck and 29 foot gooseneck trailer as that used by the Defendants from a highway into a narrow, private drive of the dimension and character as the one in this case, in the manner employed by the Defendants, then you shall find that the Defendants were negligent. If the jury so finds, then you shall then decide whether such negligence proximately caused or contributed to the accident and death of Jonathan Dooley, and shall do so in conjunction with the remaining instructions given.

¶ 51. Here, Leah and Dewey requested, and the trial court granted, another instruction that covered a driver’s responsibility to turn safely. Jury instruction number 13 instructed the jury to return a verdict in the plaintiffs’ favor if it found that Jonathan’s death was caused by-Byrd’s failure in attempting to turn from a direct course on the highway into Smith’s driveway, when the turn could not be done or was not done with reasonable safety. Thus, the trial court properly refused P-40, as it would have been cumulative. Burr, 909 So.2d at 726.

P-21 (alternate theory)

¶ 52. Dewey contends that the trial court improperly denied P-21, which imposed liability if Byrd negligently had allowed his vehicle to “stop in a lane of travel on the highway when it was possible or reasonably practicable for him to steer his vehicle down the driveway and out of the highway....” Dewey argues that refusing the instruction prohibited the jury from hearing this alternate theory of the case.

¶ 53. Neither the transcript nor the record shows where the court refused P-21. The copy provided by Dewey does not indicate that the instruction was offered or that the court refused the instruction. The record is otherwise silent as to whether the instruction was even considered by the trial court. Thus, the Court has no duty to address his contention. M.R.A.P. 28.

Jury Instruction Number 7 (car-safety seat)

¶ 54. Dewey asserts that the trial court erred in granting the “instruction regarding the car safety seat-” Dewey contends that the instruction excused Byrd and Independent Roofing’s negligent actions because it authorized the jury to consider that Jonathan had gotten out of his car seat for “other purposes under Mississippi law....”

¶ 55. We assume that Dewey refers to Byrd and Independent Roofing’s proposed car-seat instruction, D-22, which the trial court ultimately denied. In fact, the trial court granted the plaintiffs’ requested car-safety-seat instruction, P-20A. Jury instruction number 7 (P-20A) specifically stated that the jury could not consider whether Jonathan was buckled in his car seat as evidence of contributory negligence on behalf of Leah or Jonathan. Because Dewey is mistaken about the instruction the jury received, his claim lacks merit. Mariner Health Care, Inc., 964 So.2d at 1156.

Jury Instruction Numbers 10 and 11 (shadows and driveway)

¶ 56. Leah and Dewey challenge the trial court’s grant of jury instruction numbers 10 and 11, which prohibited the jury from apportioning fault for the dark shadows along the roadway or the alleged narrow and steep condition of Smith’s driveway.

¶ 57. Jury instruction number 10 stated:

If you find from a preponderance of the evidence that the condition of the driveway contributed to the accident then such contribution is not attributable to any party in this case.

¶ 58. Jury instruction number 11 stated:

If you find from a preponderance of the evidence that the condition of the shadows contributed to the accident, then such contribution is not attributable to any party in this case.

At trial, Leah and Dewey argued that both were vague and would confuse the jury. On appeal, they add that the shadows and the driveway should have been considered by the jury. Leah and Dewey imply that the fault for both should be apportioned to Byrd and Independent Roofing.

¶ 59. Issues regarding shadows or the driveway are factual considerations that should have been available to the jury. Because jury instructions numbers 10 and 11 improperly removed fact issues from the jury’s consideration, the trial court erred in granting both instructions. Mariner Health Care, Inc., 964 So.2d at 1156.

CONCLUSION

¶ 60. Because the wrongful-death beneficiaries were not allowed to fully participate in this wrongful-death action, and because the jury was not properly instructed, we reverse the trial court’s judgment in Byrd and Independent Roofing’s favor, and remand this case to the trial court for further proceedings consistent with this opinion.

¶ 61. REVERSED AND REMANDED.

CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, CHANDLER AND PIERCE, JJ., CONCUR. KITCHENS AND KING, JJ., NOT PARTICIPATING.

      . The plaintiffs tendered Tim Corbitt as an expert in crash data retrieval. After analyzing the "black box” from Leah’s car, Corbitt determined that, five seconds before the accident, Leah's speed had been fifty-five miles per hour.

      . McLain was no longer employed at Independent Roofing at the time of the trial.

      . The responses to Dewey’s motion for join-der resurfaced during Leah’s cross-examination. The defendants’ counsel cross-examined her extensively on the responses and entered the document into evidence.

      . Mississippi Code Section 63-7-71 provides, in relevant part:
      (1) Whenever any motor truck or bus is stopped upon the highway except for the purpose of picking up or discharging passengers, ... and such motor truck or bus cannot immediately be removed from the main traveled portion of a highway outside of a business or residence district, the driver or other person in charge of such vehicle shall cause such flares, fusees, reflectors, or other signals to be lighted or otherwise placed in an operating condition and placed upon the highway, one at a distance of approximately one hundred feet to the rear of the vehicle, one approximately one hundred feet in advance of the vehicle and the third upon the roadway side of the vehicle....
      (2) Whenever any motor truck or bus is stopped upon the highway except for the purpose of picking up or discharging passengers between the hours of one half hour before sunrise and one half hour after sunset, the driver or person in charge of such vehicle shall place upon the highway in a standing position red flags, one at a distance not less than one hundred feet to the rear of the vehicle and one not less than one hundred feet in advance of the vehicle and the third upon the roadway side of the vehicle....
      Miss.Code Ann. § 63-7-71 (Rev.2004).

      . Jury instruction number 13 stated:
      The Court instructs the jury that no person shall turn from a direct course upon the highway unless and until they may do so with reasonable safety.
      If you find from a preponderance of the evidence that Cedric Byrd did not act with reasonable safety in making the turn, and that such failure was the proximate cause or a proximate contributing cause of the death of Jonathan Wayne Dooley, then you shall find in favor of the Plaintiffs.

      . P-21 stated:
      The Court instructs the jury that according to Mississippi law no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of any highway, unless it is impossible to avoid stopping in the roadway.
      Therefore, if you End from a preponderance of the evidence in this case that Cedric Byrd allowed his truck and trailer to stop in a lane of travel on the highway when it was possible or reasonably practicable for him to steer his vehicle down the driveway and out of the highway, then the Court instructs the jury that such act constitutes negligence on behalf of the Defendant, Cedric Byrd, and if you find from a preponderance of the evidence that such negligence was the sole proximate cause of the accident, injuries, and death of Jonathan Dooley, Deceased, then it is your sworn duty to return a verdict for the Plaintiffs and against the Defendants, Independent Roofing Systems [and] Cedric Byrd.