source: Caselaw Access Project

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    T. JACKSON LYONS & ASSOCIATES, P.A. v. PRECIOUS T. MARTIN, SR. & ASSOCIATES, PLLC.
    No. 2011-CA-00167-SCT.
    Supreme Court of Mississippi.
    April 12, 2012.

      Lee Howell, attorney for appellant.
    Precious T. Martin, Sr., Saundra M. Thompson, attorneys for appellee.
    Before CARLSON, P.J., PIERCE and KING, JJ.
   CARLSON, Presiding Justice, for the Court:

¶ 1. Precious Martin and Associates, PLLC (Martin) contracted with T. Jackson Lyons & Associates, P.A. (Lyons) to handle appeal work on several of Martin’s cases. After Martin stopped paying for the work, Lyons filed a complaint in the County Court for the First Judicial District of Hinds County alleging breach of contract and claiming $14,543.19 owed on open account. The county court awarded Lyons $14,548.19 in damages and $4,847.78 in attorney’s fees. Martin appealed to the Circuit Court for the First Judicial District of Hinds County, claiming that the trial court erred in awarding attorney’s fees. The circuit court reversed the county court judgment on the basis that the agreement between the law firms was an oral contract, not an open account, such that attorney’s fees should not have been awarded. Aggrieved, Lyons has appealed to this Court.

FACTS AND PROCEDURAL HISTORY

¶ 2. From May 2006 through August 2007, Martin had contracted with Lyons for Lyons to perform certain appeal work on several of Martin’s cases. Martin had submitted payment in response to each invoice that Lyons sent until June 2007. At that time, Lyons was co-counsel with Martin on an appeal before the Mississippi Supreme Court. Lyons withdrew from the case because Martin had failed to pay for Lyons’s work and Lyons felt that he had a conflict of interest in the case. Lyons, and later his attorney, continued to seek payment from Martin to no avail.

¶ 3. On August 25, 2008, Lyons filed a complaint in the County Court for the First Judicial District of Hinds County for the amount owed. Lyons alleged breach of contract and claimed $14,543.19 was owed on an open account. Martin filed an answer in response to the complaint but did little else to participate in the proceedings. Martin failed to respond to interrogatories and requests for production of documents. He submitted insufficient, and apparently false, responses to requests for admission. He did not appear for a deposition and refused to provide alternative dates for the deposition. Martin did not respond to motions and failed to attend at least two hearings of which he had proper notice. Lyons’s attorney repeatedly attempted to reach Martin throughout the proceedings, but Martin would not accept or return his telephone calls or respond to correspondence.

¶ 4. Lyons filed a motion to compel, and the county court judge ordered Martin to respond to discovery and appear for a deposition. Martin filed a motion to reconsider, which was denied. Martin failed to comply with the order, and Lyons filed a motion seeking to prohibit Martin from introducing at trial anything that could have been produced in discovery. The court granted the motion. A bench trial was held on September 2, 2009, and both Lyons and Martin testified. The county court entered its judgment on November 12, 2009, awarding Lyons $14,543.19 in damages as well as $4,847.73 in attorney’s fees, plus interest and costs. Martin filed a motion for a new trial, which was denied on February 4, 2010. On the same day, Martin filed a notice of appeal to the circuit court.

¶ 5. On February 22, 2010, Martin filed his designation of the record on appeal and designated the entire record as necessary for the appeal. Martin gave $450 in cash to the court clerk for the estimated cost of preparing the record, and he filed a certificate of compliance in accordance with Mississippi Rule of Appellate Procedure 11(b)(1). However, Martin refused to pay for the trial transcript, so it was not included and was not available for the circuit court to review. Martin also filed a motion to waive supersedeas bond and for a stay or injunction as to execution of the county court judgment pending the appeal. In support of that motion, Martin claimed that he was unable to obtain a bond from his bonding company and that he had legitimate grounds for appeal. A hearing on this motion was held on February 25, 2010, and the county court entered an order requiring Martin to post a bond in the amount of $1,000. Martin gave the court clerk a check for $1,000.

¶ 6. On March 12, 2010, Lyons filed a motion to dismiss the case in the circuit court, claiming lack of subject matter jurisdiction on the grounds that Martin had not filed an appeal bond. Lyons claimed that the county court order regarding Martin’s motion to waive supersedeas bond did not state that the $1,000 bond would supersede the judgment. It was Lyons’s position that Martin did not submit any form of bond to the clerk for approval. Lyons asserted that, under Mississippi Code Section 11-51-79 (Rev.2002), Martin had thirty days from entry of the order denying his motion for a new trial to perfect his appeal in the circuit court, which included providing a bond, and that Martin had failed to do so. Martin responded that the $1,000 was sufficient and that the circuit court had jurisdiction. In his rebuttal, Lyons claimed that bonds are not cash; they are written obligations for which the Mississippi Rules of Appellate Procedure provide a form. Lyons again stated that bonds are jurisdictional and that the circuit court lacked jurisdiction due to Martin’s failure to post a bond. Lyons’s motion to dismiss was denied on June 7, 2010.

¶ 7. The appeal continued in the circuit court, and the parties submitted briefs. Martin’s sole issue on appeal was whether the trial court had erred in awarding attorney’s fees. Martin did not contest the damages awarded. Martin claimed that the agreement between the parties was contractual, not an open account, and that attorney’s fees are not available under Mississippi Code Section 11-53-81 (Rev. 2002) where the claim is based on a contract rather than on an open account. Lyons responded that, although the county court did not state the reason for the award of attorney’s fees, there were “at least three independent bases for the award.” Those bases were that (1) Lyons had proved that the matter dealt with an open account; (2) Martin’s contempt of court during the proceedings warranted sanctions under Mississippi Rule of Civil Procedure 37; and (3) Martin had failed to admit in his responses to requests for admission matters that later were proven at trial, thus an award of reasonable expenses was proper under Mississippi Rule of Civil Procedure 37(c).

¶ 8. On December 9, 2010, the circuit court entered its order reversing the county court judgment on the grounds that attorney’s fees should not have been awarded, because the agreement between the law firms, was an oral contract, not an open account. Lyons appealed to this Court.

DISCUSSION

¶ 9. Lyons presents two issues on appeal: (1) whether the circuit court had jurisdiction of the appeal from county court; and (2) whether the county court’s award of attorney’s fees was proper.

¶ 10. Factual determinations made by any trial judge (be it a county, circuit, or chancery judge) sitting without a jury are accorded the same deference as that given to a chancellor, thus, on review, this Court employs the substantial-evidence standard. See e.g., Setzer v. State, 54 So.3d 226, 230 (Miss.2011). “We will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous[,] or an erroneous legal standard was applied.” Classic Coach, Inc. v. Johnson, 823 So.2d 517, 520 (Miss.2002) (quoting Church of God Pentecostal, Inc. v. Freewill Pentecostal Church of God, Inc., 716 So.2d 200, 204 (Miss.1998)). However, jurisdictional matters are questions of law, which are reviewed de novo. Tyson Breeders, Inc. v. Harrison, 940 So.2d 230, 232 (Miss.2006). A trial judge’s award of attorney’s fees is reviewed under the abuse-of-discretion standard. Miss. Power & Light Co. v. Cook, 832 So.2d 474, 486 (Miss.2002).

I. Whether the circuit court had jurisdiction over the appeal from county court.

¶ 11. Lyons argues that filing an appeal bond in an appeal from county court is required by Mississippi Code Section 11-51-79 (Rev.2002), and that the circuit court does not have jurisdiction over a matter in which the appellant has failed to post the required bond. Lyons maintains that the record on appeal does not reflect that Martin filed any bond, therefore, the circuit court did not have subject matter jurisdiction, and the appeal should have been dismissed. Notably, Martin failed to address this issue in his reply brief.

¶ 12. Mississippi Code Section 11-51-79 applies to appeals made from county court, and it provides, in pertinent part:

.... Appeals from the law side of the county court shall be made to the circuit court, and those from the equity side to the chancery court on application made therefor and bond given according to law, except as hereinafter provided. Such appeal shall operate as a superse-deas only when such would be applicable in the case of appeals to the Supreme Court.... Appeals from the county court shall be taken and bond given within thirty (30) days from the date of the entry of the final judgment or decree on the minutes of the court....

Miss.Code Ann. § 11-51-79 (Rev.2002). According to this statute, a party seeking to appeal a county court judgment must do so within thirty days of the entry of the judgment. Id. Within that time, the appellant must file notice of the appeal and post a bond. Id.

¶ 13. The parties in this case use the term “appeal bond” interchangeably for “supersedeas bond” and “cost bond,” The same is true of the language used in prior cases. This is problematic, because these terms are not synonymous. The bond required to perfect an appeal is a cost bond, which is sometimes referred to as an appeal bond. The bond required to obtain a stay of execution of a judgment while the judgment is being appealed is a supersede-as bond, also referred to as an appeal bond. The following discussion of appeal bonds, cost bonds, and supersedeas bonds is intended to provide clarity.

A. Appeal Bonds, Cost Bonds, and Supersedeas Bonds

¶ 14. The purpose of a cost bond is to cover the cost of the appeal, including preparing the record from the court below. Title 11, Chapter 51 of the Mississippi Code sets forth the rules applicable to appeals. One such rule is that the appellant is required to prepay the costs of preparing the record on appeal. Miss. Code Ann. § 11-51-29 (Rev.2002). The Uniform Rules of Circuit and County Court Practice (URCCC) refer to this as the “cost bond” and include the same requirement that the appellant “shall pay all court costs incurred below and likely to be incurred on appeal.” URCCC 5.09. “Cost bond” is defined as a “bond given by a litigant to secure the payment of court costs.” Black’s Law Dictionary 200 (9th ed. 2009). Payment of the costs of preparing the record satisfies this “bond.” Sumner v. City of Como Democratic Executive Comm., 972 So.2d 616, 619 (Miss.2008). Because parties typically pay this cost rather than posting a bond for the amount, it has been said that there is no longer a “bond” for prepayment of costs. L. Mun-ford, Mississippi Appellate Practice § 7.2 (citing Miss. R.App. P. 7 cmt. and Miss. Code Ann. § 11-51-29).

¶ 15. Mississippi Code Section 11-51-79 provides that on appeal from county court, the appellant is required to file notice of the appeal and post a bond within thirty days of the entry of the judgment. That statute specifically states that the appeal does not operate as a supersedeas unless it would be before the Supreme Court. Miss. Code Ann. § 11-51-79 (Rev.2002). Thus, the bond required for appeals from county court is a cost bond, not a supersedeas bond. This cost bond is commonly referred to as an appeal bond. See Johnson v. Evans, 517 So.2d 570, 570-71 (Miss.1987) (referring to the bond required by Mississippi Code Section 11-51-79 as an appeal bond); Williams v. Michael, 319 So.2d 226, 227 (Miss.1975) (same); Parkman v. Miss. State Highway Comm’n, 250 So.2d 637, 638 (Miss.1971) (same).

¶ 16. The appellant is required to give a cost bond in all appeals to cover the cost of preparing the record. However, if the appellant hopes to supersede the judgment, a supersedeas bond must also be posted. URCCC 5.08 provides that “the perfecting of an appeal ... does not act as supersedeas.” Perfecting the appeal includes filing the notice of appeal and giving a cost bond. Thus, a supersedeas bond is required in addition to the cost bond when the appellant hopes to supersede the judgment. A supersedeas bond is meant to cover the entire amount of the judgment in the event that the appellant is not successful, while a cost bond is meant to cover only the cost of preparing the record.

¶ 17. “Supersedeas bond” is defined as “[a]n appellant’s bond to stay execution on a judgment during the pendency of the appeal.” Black’s Law Dictionary 202 (9th ed.2009). The purpose of the supersedeas bond is to ensure that the appellant will be able to pay the judgment if the appeal is unsuccessful. According to URCCC 5.08, the supersedeas bond must be posted in the amount of 125 percent of the judgment, but “[ujpon application the court may reduce the amount of the supersedeas bond.”

¶ 18. Breaking down the term even further, the word “supersedeas” means a “writ or bond that suspends a judgment creditor’s power to levy execution” on a judgment that is being appealed. Black’s Law Dictionary 1576 (9th ed.2009). A “bond” is a “written promise to pay money” upon the occurrence of a specified event or after a certain length of time. Black’s Law Dictionary 200 (9th ed. 2009). This Court has defined a “bond” as “a pledge or guarantee for the fulfillment of an undertaking.” Sumner, 972 So.2d at 619. Thus, a supersedeas bond is not cash, but instead, it is a written guarantee of payment that serves to stay execution of a judgment being appealed.

¶ 19. Appeals from county court “shall operate as a supersedeas only when such would be applicable in the case of appeals to the Supreme Court.” Miss. Code Ann. § 11-51-79 (Rev.2002). Procedural matters for appeals from county court that are not set forth in rules or statute are governed by the rules applicable to the Mississippi Supreme Court. Allen v. Mayer, 587 So.2d 255, 261 (Miss.1991). Supersedeas bonds are addressed in Mississippi Code Section 11-51-31 (Rev. 2002), which provides that “[a] supersedeas shall not be granted in any case pending before the Supreme Court, unless the party applying for it shall give bond as required by the Rules of the Supreme Court.”

¶ 20. Looking to the rules applicable to the Supreme Court (and the Court of Appeals), Mississippi Rule of Appellate Procedure 8 addresses supersedeas bonds. An appellant is entitled to a stay of execution of a judgment pending appeal only if the appellant provides “a supersedeas bond, payable to the opposite party ... of 125 percent of the amount of the judgment appealed from, conditioned that the appellant will satisfy the judgment complained of and also such final judgment as may be made in the case.” Miss. R.App. P. 8(a). The appellant then would file an “appeal bond with supersedeas” in the court from which the appellant appealed. Miss. R.App. P., Appendix 1, Form 5. Without this, the perfected appeal would proceed without a stay. Rule 11 is the “cost bond” rule, and it provides that the “appellant shall estimate the cost of preparation of the record on appeal” and pay that cost to the court clerk. Miss. RApp. P. 11(b). The appellant must also file a Rule 11 certificate of compliance showing that the cost has been paid. Id. Sample forms for the Rule 11 certificate and the appeal bond with supersedeas are located in the appendix to the rules. Miss. RApp. P., Appendix 1, Forms 3 and 5.

¶ 21. The rules and statutes discussed here do not provide that a supersedeas bond is a requirement of appeal; rather, it is a requirement of receiving a supersede-as writ and a stay of the proceedings. However, the cost bond, or payment of the cost of preparing the record, is a statutory requirement of appeal.

¶ 22. Statutory bond requirements are jurisdictional issues. Miss. State Pers. Bd. v. Armstrong, 454 So.2d 912, 915 (Miss.1984). See also Carney v. Moore, 130 Miss. 658, 94 So. 890, 891 (1923), and Humphreys v. McFarland, 48 So. 182, 182 (Miss.1909). This Court repeatedly has held that failure to post an appeal bond (being the cost bond required by Mississippi Code Section 11-51-79) within the time permitted by statute results in the circuit court’s lack of appellate jurisdiction. Johnson, 517 So.2d at 571; Williams, 319 So.2d at 227; Parkman, 250 So.2d at 638. This Court has also held in at least one instance that a supersedeas bond is a jurisdictional prerequisite. See Phillips Constr. Co. Inc. v. Miss. State Highway Comm’n, 420 So.2d 1374 (Miss.1982). However, in that case, the appeal was to the circuit court from an arbitration board under Mississippi Code Section 65-2-15, which specifically required giving a super-sedeas bond, making it a jurisdictional prerequisite under that statute. Phillips Constr., 420 So.2d at 1375; Miss.Code Ann. § 65-2-15(2) (Rev.2005).

¶ 23. A cost bond is jurisdictional because it is a statutory requirement for an appeal. A supersedeas bond is not jurisdictional, unless a statute governing a certain type of appeal specifically requires a supersedeas bond. See Phillips Constr., 420 So.2d at 1375-76. Thus, a cost bond (or evidence of payment of the cost of preparing the record) must always be filed to perfect an appeal properly, but where the statute does not require a supersedeas bond, it is not a prerequisite for acquiring appellate jurisdiction.

B. Satisfaction of the Bond Requirement

¶ 24. We now consider whether Martin’s payment of $450 for preparation of the record and payment of a $1,000 bond was sufficient to satisfy the bond requirement of Mississippi Code Section 11-51-79 (Rev.2002). Lyons claims that, because the record on appeal does not include evidence of Martin posting a bond, his appeal was not perfected and the circuit court did not have jurisdiction. Lyons uses the term “appeal bond” but refers to Martin’s motion to waive supersedeas bond and the $1,000 paid by Martin. In his motion to dismiss filed in circuit court, Lyons noted that the order allowing Martin to post bond in the amount of $1,000 did not state that the bond would supersede the judgment. While Lyons uses the term “appeal bond” for the bond requirement of Mississippi Code Section 11-51-79, he appears to be referring to a supersedeas bond. As discussed above, the cost bond required for an appeal and a supersedeas bond are not the same. A cost bond is jurisdictional and a supersedeas bond is not (unless it is required by statute).

¶ 25. The certificate of compliance required under Mississippi Rule of Appellate Procedure 11(b)(1) indicates that Martin paid $450 to the clerk of the county court to cover the cost of preparing the record. This Court has held that giving cash to satisfy a cost bond is sufficient. Sumner, 972 So.2d at 619. In Sumner, the petitioner sought judicial review of an election contest pursuant to Mississippi Code Section 23-15-927. That section requires the petitioner to “give a cost bond in the sum of Three Hundred Dollars ($300.00), with two (2) or more sufficient sureties conditioned to pay all costs in case his petition be dismissed....” Miss.Code Ann. § 23-15-927 (Rev.2007). When Sumner filed her petition, she provided $300 cash instead of a bond naming two or more sureties. Sumner, 972 So.2d at 618. This Court held that Sumner’s “$300 cash payment, in lieu of a promise to pay, satisfied the cost-bond requirement of Mississippi Code Annotated Section 23-15-927 in its entirety.” Id. at 619.

¶ 26. The county court’s order denying Martin’s motion for a new trial was entered February 4, 2010. Martin filed a notice of appeal the same day. Martin gave $450 cash to the court clerk for the estimated cost of preparing the record, and he filed a Rule 11 certificate of compliance on February 22, 2010, which evidenced the satisfaction of the statutory bond requirement. A literal “bond” was not needed, because the cost bond was satisfied in its entirety by the cash payment. Martin’s notice of appeal and evidence of satisfaction of the cost bond were filed within thirty days as required by Mississippi Code Section 11-51-79, and Martin’s appeal was properly perfected. Thus, the circuit court had appellate jurisdiction over the matter.

¶27. Although Martin’s appeal was perfected, “[t]he perfecting of an appeal does not act as supersedeas.” URCCC 5.08. Martin requested and received a reduction in the amount of the supersedeas bond, which is permitted under URCCC 5.08, but he did not file a certificate or any type of notice with the county or circuit court. Martin should have filed an appeal bond with supersede-as with the court clerk to evidence a stay of execution of the county court judgment. It is likely that the supersedeas bond was not properly evidenced in the record and that the stay of execution was not valid. However, that does not affect the circuit court’s appellate jurisdiction.

II. Whether the circuit court erred in reversing the county court’s award of attorney’s fees.

¶ 28. This Court reviews a trial judge’s award of attorney’s fees for abuse of discretion, and the award of attorney’s fees must be reasonable and supported by credible evidence. Cook, 832 So.2d at 486. The county court awarded attorney’s fees to Lyons in the amount of $4,847.73. On appeal to the circuit court, Martin argued that the county court’s award of attorney’s fees was in error because the parties’ agreement had been a contract, not an open account; therefore the trial court did not have authority to award attorney’s fees. Martin argued in the alternative that Lyons had failed to prove that he was entitled to attorney’s fees in the amount awarded, although no evidence was provided in support of that argument. The circuit court reversed the county court judgment on the grounds that attorney’s fees should not have been awarded because the agreement between the law firms was an oral contract, not an open account.

¶ 29. Attorney’s fees can be awarded where statutory authority or a contractual provision provides for an award of attorney’s fees or where punitive damages are also awarded. Id. Lyons maintains that, although the county court did not set forth a basis for the award of attorney’s fees, it had several grounds for the award. Lyons claims that he proved that the matter dealt with an open account, so attorney’s fees were permitted under Mississippi Code Section 11-53-81, which provides that a person who prevails in a suit for payment on an open account is “entitled to reasonable attorney’s fees to be set by the judge.” Miss.Code Ann. § 11-53-81 (Rev.2002). Lyons also claims that the attorney’s fees could have been a sanction, which would have been warranted under Rule 37 of the Mississippi Rules of Civil Procedure based on Martin’s contempt of court and his denial of matters in responses to requests for admission that were later proven at trial.

¶ 30. Both parties cited Mauldin Co. v. Lee Tractor Co. of Mississippi, Inc., 920 So.2d 513 (Miss.Ct.App.2006), which provides the following in regard to open accounts:

“ ‘Open account’ has been given various definitions, but it is generally held to mean an account based on continuing transactions between the parties which have not been closed or settled but are kept open in anticipation of further transactions.” Westinghouse Credit Corp. v. Moore, McCalib, Inc., 361 So.2d 990, 992 (Miss.1978). An open account is a “type of credit extended through an advance agreement by a seller to a buyer which permits the buyer to make purchases without a note of security and is based on an evaluation of the buyer’s credit.” Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 619 So.2d 908, 914 (Miss.1993). In Cox, our supreme court found an open account when the customer signed an agreement allowing him to make purchases over several years without engaging in separate transactions. Under Mississippi Code Annotated Section 11-53-81 (Rev.2002), Lee is entitled to recover attorney’s fees if the action is one to collect money owing on an open account.

Mauldin, 920 So.2d at 515.

¶ 31. The evidence in this case shows that Lyons and Martin had one meeting in May of 2006 to discuss Lyons providing certain legal work for Martin on several cases. They agreed on a rate of $100 per hour for Lyons’s work. Martin employed Lyons to work on eight cases from May 2006 through August 2007. There is no indication that the parties discussed different terms for the work performed on each case. One meeting took place between the parties in advance of the transactions; the parties had one verbal contract regarding the terms and extent of the agreement; and continuous transactions followed that arguably would continue indefinitely until Martin no longer needed Lyons’s services. Lyons billed Martin on a regular basis, and Martin submitted payment after his receipt of each invoice. This conduct is sufficient evidence of an open account.

¶ 32. It has long been held that fees owed on unwritten contracts for professional services are owed on open account. In Michael S. Fawer v. Evans, 627 So.2d 829 (Miss.1993), this Court held that “an attorney’s action against his client for fees for professional legal services” was “on open account pursuant to an unwritten agreement” and was subject to a three-year statute of limitations rather than “the one-year limitation period prescribed by the same statute for actions based on an unwritten contract of employment.” Id. at 833. The same is true for medical services. See Franklin Collection Serv., Inc. v. Stewart, 863 So.2d 925, 930 (Miss.2003) (“accounts established by medical providers for services provided to their patients are open accounts within the purview of § 11-53-81”); Wise v. Gulf States Collection Servs., 633 So.2d 1025, 1027 (Miss.1994) (unpaid hospital bill was “an ordinary contract case involving a suit on an open account”).

¶ 33. In his brief, Martin sets forth the elements of a valid contract and states that “[b]ased on the testimony at trial, the existence of a contract is abundantly clear.” Martin does not cite the testimony or evidence to which he refers; however, it is not disputed that the parties had a verbal contract. Suits on open account are always contractual matters, because an underlying contract must exist for the open account to exist. It is well-established that “an open account is an unwritten contract.” McArthur v. Acme Mech. Contractors, Inc., 336 So.2d 1306, 1308 (Miss.1976) (citing Hembree v. Johnson, 119 Miss. 204, 80 So. 554 (1919)).

¶ 34. Martin argues that this could not have been an open account because there was no “final and certain agreement on price.”McLain v. West Side Bone & Joint Ctr., 656 So.2d 119, 123 (Miss.1995) (citing Stanton & Assocs., Inc. v. Bryant Constr. Co., Inc., 464 So.2d 499, 503 (Miss.1985)). Martin’s assertion is contrary to the evidence, which indicates that the parties agreed on a price of $100 per hour for Lyons’s services. Martin also claims that the agreement between the parties was a “series of contracts,” which is to be distinguished from an open account. Martin cites two out-of-state cases to support this position, Richards v. Gulfco Electronics Corp., 360 So.2d 609 (La.Ct.App.1978), and Smith Brothers Trucking of Mount Airy, Inc. v. Baker Truck Brokerage, Inc., 2008 WL 4681641 (M.D.N.C. Oct.21, 2008), neither of which are binding on this Court, nor can they reasonably be relied upon.

¶ 35. In Richards, the Louisiana Court of Appeals held that the claim was “for a series of contracts for professional services and cannot be considered an open account.” Richards, 360 So.2d at 610. The court did not give any details about the “series of contracts” that would allow this Court to make a comparison to the case at hand. In fact, the case ultimately was remanded for insufficiency of evidence. Id. In Smith Brothers, the court held that there was no showing of an open account where “each transaction was evidenced by a distinct contract.” Smith Bros., 2008 WL 4681641, at *4. In the case at hand, there was no written contract, much less a distinct contract for each case on which Lyons worked, therefore the holding by the North Carolina court in Smith Brothers cannot be applied to this case.

¶ 36. Martin did not cite any evidence from the record to support his claim that the agreement involved a series of contracts. Lyons, however, provided evidence that the agreement was one continuous contract, based on an initial conversation between the parties. The agreement was never memorialized; there was no written contract. Lyons invoiced Martin for each case; however, it appears that was a method for organizing the bills, not evidence that a separate contract existed for the work on each case. Martin’s argument that the parties’ relationship was based on series of contracts is without merit.

¶ 37. A person who prevails in a suit for payment on an open account is “entitled to reasonable attorney’s fees.” Miss.Code Ann. § 11-53-81 (Rev.2002). The determination of whether attorney’s fees are reasonable “rests within the sound discretion of the trial court.” Cook, 832 So.2d at 486. Lyons submitted a detailed billing statement indicating that his attorney’s fees in this matter totaled $9,906.85. The award of attorney’s fees in the amount of $4,847.73 was for approximately half of the amount of attorney’s fees proven by Lyons. The award of attorney’s fees was reasonable and supported by credible evidence. Martin’s argument that Lyons had failed to prove that he was entitled to attorney’s fees in the amount awarded is without merit.

¶ 38. The trial judge did not abuse his discretion in awarding attorney’s fees to Lyons. The evidence does not support the circuit court’s reversal of the county court’s decision. Thus, based on today’s discussion, the circuit court’s judgment is reversed, and the county court’s award of attorney’s fees reinstated.

CONCLUSION

¶ 39. The circuit court had proper appellate jurisdiction over this matter on appeal from the county court. However, the circuit court’s reversal of the award of attorney’s fees was not supported by the evidence. The county court’s award of attorney’s fees was supported by the credible evidence and was not an abuse of discretion. The judgment of the Circuit Court for the First Judicial District of Hinds County is reversed, and the judgment for attorney’s fees entered by the County Court for the First Judicial District of Hinds County is reinstated and affirmed.

¶ 40. THE JUDGMENT OF THE CIRCUIT COURT FOR THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS REVERSED AND THE JUDGMENT OF THE COUNTY COURT FOR THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS REINSTATED AND AFFIRMED.

DICKINSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR. WALLER, C.J., NOT PARTICIPATING.

      . Martín and Lyons are referred to as individuals because Precious Martin, Sr. and Jack Lyons were the two attorneys involved.

      . We note that Lyons timely filed his notice of appeal and designation of the record on January 4, 2011. After that time, issues arose with the preparation of the record by the Hinds County Circuit Clerk’s Office, which required action by this Court. On May 11, 2011, this Court was compelled to stay the briefing schedule pending correction of the record. Once a supplemental record was filed, the stay was lifted and the briefing schedule was reissued on August 4, 2011. See T. Jackson Lyons & Associates, P.A. v. Precious T. Martin, Sr. & Associates, PLLC, 83 So.3d 1284 (Miss.2012).

      . Although the parties refer to this as “subject matter jurisdiction,” it actually is an issue of appellate jurisdiction.

      . Rule 7 of the Mississippi Rules of Appellate Procedure has been omitted, and Rule 11 now covers the prepayment of costs. See infra ¶ 20.

      . In an appeal to the Mississippi Supreme Court, the payment of court costs under Rule 11 does not act as a supersedeas. Rule 8 of the Mississippi Rules of Appellate Procedure discusses supersedeas bonds. See infra ¶ 20.

      . "Appeal bond” has two definitions. One is similar to cost bond, and the other is similar to supersedeas bond. The first definition is: "[a] bond that an appellate court may require from an appellant in a civil case to ensure payment of the costs of appeal.” Black’s Law Dictionary 200 (9th ed. 2009). Payment of the cost of appeal would include "court costs incurred below and likely to be incurred on appeal” as set forth in the "cost bond” rule. URCCC 5.09. The second definition is: "a bond required as a condition to bringing an appeal or staying execution of the judgment appealed from,” which is like the definition of supersedeas bond. See infra ¶ 17. Thus, this Court and future litigants would be well served to use the terms "cost bond” and “su-persedeas bond” as appropriate and avoid using the term "appeal bond” to prevent confusion.

      . Both the Mississippi Rules of Appellate Procedure and the Uniform Rules of Circuit and County Court Practice have separate rules regarding prepaying costs on appeal and su-persedeas bonds. See Miss. R.App. P. 8 and 11; URCCC 5.08 and 5.09.

      . Martin's reliance on Mauldin is misplaced. That case dealt with a single transaction for the purchase of tractors; there was no evidence of continuing transactions. Mauldin, 920 So.2d at 515-16. Therefore, the Court of Appeals correctly held that there was not an open account.


author: CARLSON, PRESIDING Justice, for the Court. KITCHENS, Justice,

text:
    EMPIRE ABRASIVE EQUIPMENT CORPORATION, Unimin Corporation, Specialty Sand Company, Lone Star Industries, Inc., Pearl Sands, Inc., Pearl Specialty Sands, Inc., Clark Sand Company, Clemco Industries Corporation, Custom Aggregates And Grinding, Inc., Hanson Aggregates, Inc., Pangborn Corporation, Precision Packaging, Inc., Southern Silica Of Louisiana, Inc., And Mine Safety Appliances v. Henry S. MORGAN, Jr., Individually And On Behalf Of All Wrongful Death Beneficiaries Of Henry Morgan, Sr., Deceased Mine Safety Appliance Company, Specialty Sand Company, and Unimin Corporation v. Henry S. Morgan, Jr., Individually And on Behalf of All Wrongful Death Beneficiaries of Henry Morgan, Sr., Deceased Clark Sand Company, Inc., et al. v. Henry Morgan, Jr., Individually and on Behalf of All Wrongful Death Beneficiaries of Henry Morgan, Sr., Deceased.
    Nos. 2010-IA-00247-SCT, 2010-IA-00250-SCT, 2010-IA-00255-SCT.
    Supreme Court of Mississippi.
    May 3, 2012.

      Katharine McKee Surkin, Randi Pere-sich Mueller, W. Wright Hill, Jr., Clyde Lavel Nichols, III, Wade G. Manor, Jennifer Jones Skipper, Edwin S. Gault, Jr., Charles R. Wilbanks, Jr., Jackson, Ronald G. Peresich, W. Mark Edwards, Biloxi, Edward W. Mizell, J. Stevenson Ray, Ridgeland, Victor John Franckiewicz, Jr., George Martin Street, Jr., David A. Bar-field, Kimberly Paige Mangum, Madison, James Scott Rogers, Fred Krutz, III, Matthew Robert Dowd, attorneys for appellants.
    David Neil McCarty, Timothy W. Porter, Ridgeland, Patrick C. Malouf, John Timothy Givens, attorneys for appellee.
   CARLSON, PRESIDING Justice, for the Court.

¶ 1. Henry Morgan, Sr., filed a personal-injury suit against eighty-eight defendants, claiming injuries related to silicosis. Morgan, Sr., died while the personal-injury case was pending, and the case eventually was dismissed. More than three years after Morgan, Sr.’s death, his son, Henry Morgan, Jr., filed a wrongful-death suit individually and on behalf of all wrongful-death beneficiaries of Morgan, Sr. The defendants filed a motion for summary judgment based on the running of the statute of limitations. The trial court denied the motion. Because the wrongful-death suit was filed more than three years after the death of Morgan, Sr., the statute of limitations bars any wrongful-death and survival claims. Accordingly, we reverse the trial court’s judgment and render judgment in favor of the defendants.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Henry Morgan, Sr., was diagnosed with silicosis on June 2, 2002. On September 9, 2002, Morgan, Sr., along with 141 other plaintiffs, filed a personal-injury suit against eighty-eight defendants in the Circuit Court for the Second Judicial District of Jones County, claiming silica-related injuries. The case was styled: Ellzey R. Arthur, et al. v. Pulmosan Safety Equip., et al, No.2002-227-CV9. Morgan, Sr., died five days later, on September 14, 2002. Despite Morgan, Sr.’s death, no suggestion of death was ever filed, nor was any amendment asserting a survival or wrongful-death action ever sought. As the trial court in the instant case stated in its order denying the defendants’ motions for summary judgment, “both plaintiffs and defendants in the multi-plaintiff Jones County action treated that case as if Henry Morgan, Sr.[,] had not died.... ”

¶ 3. More than a year later, on December 8, 2003, the defendants in Arthur filed a notice of removal to federal court. The case eventually was transferred to a multi-district litigation court in Texas. A little less than two years later, on September 30, 2005, Arthur was remanded back to state court. On May 23, 2006, all Arthur plaintiffs were dismissed based on this Court’s holding in Canadian National v. Smith, 926 So.2d 839, 845 (Miss.2006). This Court has summarized Smith as holding that:

all claims previously filed en masse for silicosis damages that were not filed in the proper venue should be severed as misjoined pursuant to Janssen Pharmaceutica v. Armond, 866 So.2d 1092 (Miss.2004), which requires each claim joined in a single lawsuit to arise from a “distinct, litigable event.” Smith, 926 So.2d at 845 (citing Armond, 866 So.2d at 1099). The Smith Court stated that such a dismissal would be “[as to] a matter of form,” for purposes of the savings statute, Mississippi Code Section 15-1-69. Smith, 926 So.2d at 845.

Clark Sand Co., Inc. v. Kelly, 60 So.3d 149, 153 (Miss.2011). The dismissal in Arthur was styled: “Agreed Order of Dismissal Without Prejudice.” No attempt was made to substitute the wrongful-death beneficiaries of Morgan, Sr., as real parties in interest in Arthur.

¶ 4. On May 23, 2007, exactly one year after Arthur was dismissed, Henry Morgan, Jr., filed a wrongful-death claim against thirty-two defendants in the Circuit Court of Adams County, claiming that Morgan, Sr.’s silica-related injuries had caused his death. Morgan, Jr., filed the wrongful-death complaint individually and on behalf of all wrongful-death beneficiaries of Morgan, Sr. Morgan, Jr.’s complaint did not provide Morgan, Sr.’s social security number, address, or other identifying information; nor did it mention either the date that he discovered his injury or the date of his death. At the hearing on the motion for summary judgment, defense counsel asserted that, until the plaintiffs had responded to discovery requests, the defendants had not been aware of the deceased’s identity. Indeed, the attorney for defendant Pangborn Corporation stated at the hearing that “[tjhere are 501 Henry Morgans in the social security death index. We had ten Henry Morgans just in our data base alone, four of which have confirmed social security numbers different from the decedent.”

¶ 5. On November 4, 2009, the defendants filed a motion for summary judgment, claiming that the statute of limitations for the wrongful-death suit had run on September 14, 2005, three years after Morgan, Sr.’s death. On January 21, 2010, the trial court entered an order denying the defendants’ motion for summary judgment, essentially finding that the one-year savings statute allowed for Morgan, Jr., to file the wrongful-death suit one year after the dismissal of Morgan, Sr.’s personal-injury suit. See Miss.Code Ann. § 15 — 1— 69 (Rev.2003). The defendants then filed a petition for an interlocutory appeal with this Court, which was granted.

DISCUSSION

¶ 6. This Court reviews a trial court’s grant or denial of summary judgment under a de novo standard. Clark Sand Co., 60 So.3d at 154 (citing Monsanto v. Hall, 912 So.2d 134,136 (Miss.2005)).

¶ 7. The defendants present one issue on appeal: Whether Henry Morgan, Jr.’s wrongful-death suit is barred by the statute of limitations. In response to the defendants’ argument, Morgan, Jr., contends that the defendants waived the statute-of-limitations defense.

I. Whether the defendants waived the statute-of-limitations defense.

¶ 8. Morgan, Jr., claims that the defendants waived the statute-of-limitations defense because they waited more than two years before pursuing them defense that the statute of limitations applied, and because they substantially participated in the litigation prior to asserting the defense. The defendants respond by claiming that, because Morgan, Jr., did not file a cross-appeal on this issue, he is precluded from raising it in his appellate brief. In the alternative, they argue that the defense was not waived. In its order denying the defendants’ motion for summary judgment, the trial court specifically held that the defendants had not waived the statute-of-limitations defense.

¶ 9. In MS Credit Center, Inc. v. Horton, 926 So.2d 167, 179-81 (Miss.2006), this Court held that the defendants waived their right to compel arbitration when they delayed in pursuing this right for eight months and substantially participated in the litigation. Although the facts of Horton related to waiver of the right to compel arbitration, this Court held that Horton’s waiver rule applied to all affirmative defenses:

Our holding today is not limited to assertion of the right to compel arbitration. 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 terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver.

Id. at 180. Horton also held that prejudice to the party resisting the motion is a factor to be considered. Id. at n. 7 (citations omitted).

¶ 10. The defendants in Horton asserted their right to compel arbitration in their answers. Id. at 180. But, instead of filing a motion to compel arbitration, the defendants engaged in litigation by consenting to a scheduling order, engaging in written discovery, and conducting Horton’s deposition. Id. This Court found that these actions, coupled with the eight-month period between the defendants’ answer and their motion to compel arbitration, constituted a waiver. Id. at 181.

¶ 11. This Court has applied Horton to a statute-of-limitations defense in two recent opinions: Spann v. Diaz, 987 So.2d 443, 446 (Miss.2008); and Jones v. Fluor Daniel Services Corporation, 32 So.3d 417, 420 (Miss.2010). In Spann, this Court found that the defendant did not waive his statute-of-limitations defense when he waited seventy-one days between answering an amended complaint and filing a motion for summary judgment, because the delay “did not constitute a substantial and unreasonable delay.” Spann, 987 So.2d at 448.

¶ 12. This Court also found that the statute-of-limitations defense was not waived in Jones. Jones, 32 So.3d at 420-21. The defendant in Jones stated that the plaintiffs’ claim “may be barred by statutes of limitations” in its original answer. Id. at 420. Early in the suit, the trial court granted summary judgment in favor of the defendants, finding that the plaintiffs had not sufficiently established their intentional-infliction-of-emotional-distress claim. Id. at 419. The plaintiffs appealed the trial court’s judgment, and this Court reversed and remanded the case. Id; see also Jones v. Fluor Daniel Servs. Corp., 959 So.2d 1044, 1050 (Miss.2007). Upon remand, the defendants again moved for summary judgment, arguing this time that the statute of limitations had run on the intentional-infliction-of-emotional-distress claim. Id. at 419. Although the litigation had lasted more than three years, when the trial judge granted the defendant’s motion for summary judgment, the trial judge specifically stated that the defendant had not waived the statute-of-limitations defense. Id. This Court affirmed the trial court, stating that “It cannot be said that the trial court abused the discretion given to it by this Court in Horton by ruling [that] the defendant had not waived the statute of limitations defense — particularly in light of [the] plaintiffs’ failure to state their claim clearly.” Id. at 421.

¶ 13. In today’s case, the wrongful-death complaint was filed on May 23, 2007. All of the defendants asserted the statute of limitations as an affirmative defense in their answers, which they filed separately. In every one of these answers, the affirmative defense of the statute of limitations appears in a boilerplate form alleging none of the specifics of this case. After the defendants first raised the statute of limitations as a defense in their answers, they waited more than two years before filing their motion for summary judgment based on the statute of limitations. However, it must be recalled that, since the initial complaint did not specifically identify the deceased and discovery had not yet been answered by the plaintiff, according to the defendants, they were unaware of Morgan, Sr.’s identity or of the date that the relevant statutes of limitations began to run. The motion for summary judgment was filed on November 4, 2009. The two-year delay in today’s case was lengthy. Thus, the relevant inquiry is whether the defendants substantially participated in the litigation and whether Morgan, Jr., was prejudiced by this delay.

¶ 14. In addition to the defendants’ answers, the record contains the following actions which occurred prior to the defendants’ filing their motion for summary judgment: a notice for service of discovery with the defendants’ interrogatories and request for production of documents; an agreed discovery order; a motion to compel the plaintiff to respond to the discovery served; a notice of hearing on the motion to compel; and a letter from the defendants’ attorneys to the plaintiffs’ attorneys requesting supplementation of discovery responses. The only actions the parties had taken prior to the filing of the motion for summary judgment essentially related to early stages of discovery. The defendants in Horton participated in the litigation by consenting to a scheduling order, engaging in written discovery, and conducting Horton’s deposition. Horton, 926 So.2d at 180. The level of participation in the litigation displayed by the defendants in the instant case and the defendants in Horton might therefore be characterized as similar on these facts alone. However, the different context of these cases must be taken into account.

¶ 15. Discussing Horton, in a specially concurring opinion joined by a six-member majority of this Court, we have held that “the defendant generally must timely raise all affirmative defenses, but if the defense is one which would terminate the litigation, the defendant must also timely pursue the enforcement of the defense.” Meadows v. Blake, 36 So.3d 1225, 1234 (Miss.2010) (Waller, C.J., specially concurring). However, “these requirements presuppose that the defendant knows or should know that the defense would (not could) terminate the case.” Meadows, 36 So.3d at 1234 (Waller, C.J., specially concurring) (emphasis in original). Here, the defendants assert they were unaware of Morgan, Sr.’s identity, his date of death, and other relevant information until Morgan, Jr., had complied with discovery. Indeed, the trial judge in today’s case found that the defendants had not waived their affirmative defenses, including the statute-of-limitations issue. This case is easily distinguishable from the arbitration provision at issue in Horton, since the defendants in Horton knew, or should have known, early in the proceedings, about the existence of the contract with Horton containing the arbitration provision.

¶ 16. In today’s case, the only actions taken by the defendants were actions related to early discovery. No depositions had been taken, the case had not been set for trial, and the only hearing related to the summary-judgment motion. Importantly, we must consider the actions taken in context. This case was derived from a mass-tort case (Ellzey) involving hundreds of defendants, that was still in its early stages. The requirements for meeting the substantial participation test in a suit like that at issue here will be far greater than those in a suit similar to the one described in Horton.

¶ 17. Furthermore, in Kinsey v. Pang-bom, 78 So.3d 301, 307 (Miss.2011), we analyzed a factually similar situation deriving from the same mass tort litigation in Texas and found no substantial participation. In that case, the initial complaint was insufficient to decipher the relationship between the original plaintiff and survival-claims plaintiff. Id. The only significant delay was caused by Kinsey, the survival plaintiff, failing to provide timely responses to discovery. Id. When Kinsey finally responded to discovery, the defendants pursued the affirmative defense of the statute of limitations forthwith. Id. This Court concluded that the defendants had not substantially participated in the lawsuit, and that the defendants had not waived them statute of limitations defense. Id. at 308.

¶ 18. In the instant case, the only significant delay was Morgan, Jr.’s delay in responding to written discovery. Responses to this discovery were necessary for the defendants to determine the nature of their defense. As discussed above, Morgan, Jr.’s discovery responses provided the defendants, for the first time, with such vital basic information as Morgan, Sr.’s social security number and address, allowing the defendants to determine Morgan, Sr.’s identity. Nor did the complaint allege the date of Morgan, Sr.’s discovery of his injury or the date of his death, making it impossible for the defendants to calculate whether the statute of limitations had run until Morgan, Jr., had complied with discovery. In addition to this basic information, discovery was very broad, containing fifty-eight interrogatories and seventy-two requests for production. After Morgan, Jr., finally responded to discovery on October 2, 2009, the defendants filed their Motion for Summary Judgment on November 7, 2009.

¶ 19. Significantly, from the questions and comments posed by the trial judge at the hearing, it was obvious that he was very familiar with the record in this case, including the procedural history. After the trial judge heard counsels’ arguments on the motion for summary judgment, he commenced his bench ruling as follows:

Okay. All right. First of all, the Court specifically finds that there’s been no waiver by the defendants of an affirmative defense in this matter. That’s one of the positions argued by the plaintiffs. I want to make that clear at the outset.

The record before us supports the trial judge’s ruling on this issue.

¶ 20. Also, Morgan, Jr., has failed to show that he was prejudiced by the defendants’ delay. Morgan, Jr., asserts in his brief that the delay in today’s case is inherently prejudicial and claims that the defendants have “flooded” him with procedural motions to remove the case to federal court and sever the case. These motions, however, relate to Morgan, Sr.’s personal-injury case, not Morgan, Jr.’s wrongful-death case.

¶ 21. In response to Morgan, Jr.’s argument that the defendants waived the statute-of-limitations defense, the defendants contend in their reply brief that Morgan, Jr., must file a cross-appeal for this issue. This Court’s precedent does not support this contention. See Dunn v. Dunn, 853 So.2d 1150, 1152 (Miss.2003) (holding that “an appellee should not be required to file a cross-appeal unless he or she is aggrieved by the trial court’s judgment”); see also Presley v. City of Senatobia, 997 So.2d 235, 238 (Miss.Ct.App.2008) (citing Dunn, 853 So.2d at 1152) (“[Cjross-appeal is neither required nor expedient where its only purpose is to urge alternative grounds for affirmance.”).

¶ 22. Although the time between the complaint and the defendants’ motion for summary judgment was lengthy, we find that the defendants did not waive the defense, because they did not substantially participate in the litigation, and Morgan, Jr., was not prejudiced by the delay.

II. Whether Morgan, Jr.’s wrongful-death action is barred by the statute of limitations.

¶ 23. In their initial brief, the defendants present one issue: “Is this wrongful-death action barred by the statute of limitations?”

A. The Statute of Limitations in Wrongful-Death Cases

¶ 24. Mississippi Code Section 11-7-13 (Rev.2004) governs wrongful-death actions. This Court has held that Section 11-7-13 “encompasses all claims — including survival claims which could have been brought by the decedent, wrongful-death claims, estate claims, and other claims— resulting from a tort which proximately caused a death.” Caves v. Yarbrough, 991 So.2d 142, 150 (Miss.2008); see also Clark Sand Co., 60 So.3d at 161 (“[a]n action for wrongful death includes the decedent’s ‘survival-type’ claims, such as claims for his ... medical and funeral expenses, and the wrongful-death claimants’ so called ‘wrongful-death’ claims, such as loss of consortium, society, and companionship ....”) (citation omitted). Generally, wrongful-death actions are predicated on an underlying tort, and the action is limited by the statute of limitations which is applicable to that tort. Caves, 991 So.2d at 148 (citing Jenkins v. Pensacola Health Trust, 933 So.2d 923, 926 (Miss.2006)). In today’s case, the three-year limitations period in Mississippi Code Section 15-1-49 (Rev.2003) applies. The various claims that may be brought in a wrongful-death case all are subject to them own statutes of limitations. Caves, 991 So.2d at 150 (“where death is not an immediate result of the tort, the limitation periods for the various kinds of claims may not begin to run at the same time.”). For example, the statute of limitations for “survival-type” claims that may have been brought by the decedent begins to run when the decedent could have pursued a claim. Id. at 148. The statute of limitations for other “wrongful-death” claims, such as loss of consortium, will not begin to run until death. Id. at 149.

¶ 25. In today’s case, Morgan, Jr., asserted “survival-type” and “wrongful-death” claims in his complaint. The limitations period for the survival claims began to run on the date of Morgan, Sr.’s diagnosis — June 2, 2002. In the absence of any tolling, the statute of limitations for these “survival-type” claims expired on June 2, 2005. Also, without considering any tolling, the statute of limitations for other “wrongful-death” claims expired on September 14, 2005 — three years after Morgan, Sr.’s death. Morgan, Jr.’s wrongful-death complaint was not filed until May 23, 2007. Thus if there are no applicable tolling periods, Morgan, Jr.’s wrongful-death action will be time-barred.

B. The statute of limitations for the wrongful-death claim was not tolled by the personal-injury claim or the savings statute.

¶ 26. This Court recently has addressed whether the filing of a personal-injury suit will toll the statute of limitations for a later-filed wrongful-death suit arising from the same facts. In Clark Sand, the decedent, David Bozeman, and fifty-four other plaintiffs filed a personal-injury suit against silica manufacturers and distributors {McBride suit) on September 23, 2002. Clark Sand, 60 So.3d at 152. The McBride complaint included claims for the plaintiffs’ personal injuries, but also included wrongful-death claims on behalf of wrongful-death beneficiaries. Id. On March 11, 2005, Bozeman died while McBride was pending. Id. After Boze-man’s death, there was no attempt to amend the complaint in Bozeman’s McBride claim or to substitute a wrongful-death beneficiary as the real party in interest. Id. at 153. On March 10, 2006, McBride was dismissed without prejudice pursuant to Canadian National, 926 So.2d at 845. Id.

¶ 27. On March 5, 2007, Ruby Kelley, Bozeman’s live-in girlfriend and purported common-law wife, filed a wrongful-death action as executrix of Bozeman’s estate and on behalf of Bozeman’s wrongful-death beneficiaries. Id. In the wrongful-death complaint, Kelley contended that the wrongful-death suit was simply a continuation of Bozeman’s personal-injury suit in McBride. Id. As such, Kelley averred that the savings statute allowed her to bring the wrongful-death action within one year of the McBride dismissal. Id. See also Miss.Code Ann. § 15-1-69 (Rev.2003). The defendants filed two motions for summary judgment, arguing both times that Kelley’s claim was time-barred by the three-year statute of limitations and that the savings statute did not apply, because Kelley’s wrongful-death action was distinct from Bozeman’s personal-injury action. Clark Sand, 60 So.3d at 153-54. The trial court denied the defendants’ motions, finding that Kelley’s suit was filed within the statute of limitations because the savings statute resulted in a one-year tolling period from the McBride dismissal. Id. at 154.

¶ 28. On appeal, Clark Sand presented the following issue: “Does the provision in Mississippi’s saving statute allowing one year to refile apply to a second suit which differs from the original in both the identity of parties and the identity of claims?” Id. This Court found that the savings statute did not apply to Kelley’s wrongful-death suit, because Kelley had not been appointed as Bozeman’s executrix when she filed the wrongful-death suit, and she had not been substituted as a party plaintiff while the McBride suit was still pending. Id. at 162. Accordingly, this Court found that Kelley’s action “must be a new and independent wrongful-death action, brought by Kelley without the saving statute and separate and distinct from Boze-man’s personal-injury claim in McBride.” Id. at 162. Because Kelley’s claims were considered “separate and distinct” from Bozeman’s personal-injury suit, this Court found that the “survival-type” claims in Kelley’s complaint were time-barred because Kelley’s complaint was filed more than three years after Bozeman’s diagnosis. Id. As to Kelley’s “wrongful-death” claims, this Court found that they were not time-barred, because Kelley had filed her complaint within three years of Bozeman’s death. Id.

¶ 29. Kinsey is also factually analogous to the instant case. Kinsey, 78 So.3d at 302-03. In Kinsey, the decedent, Ted Watkins, was diagnosed with silicosis on October 4, 2002. Id. at 302. On December 26, 2002, Watkins and several other plaintiffs filed a personal-injury suit against various silica producers and distributors (Spencer case). Id. at 302-3. Watkins died on July 28, 2003. Id. at 303. No attempt was made to file a suggestion of death or to substitute Kinsey, the executrix of Watkins’s estate, as a real party in interest in Spencer. Id. at 303. Spencer was dismissed as to some defendants on January 30, 3006. Id. at 303-04. The remaining Spencer defendants were dismissed on April 27, 2006. Id. at 304. On April 27, 2007, Kinsey filed a wrongful-death action on behalf of Watkins’s wrongful-death beneficiaries. Id. at 304. Kinsey addressed both “survival-type” claims and “wrongful-death” claims. Id. at 306. Kinsey states:

The “survival-type” claims accrued upon Watkins’s diagnosis with silicosis on October 4, 2002. Any “wrongful-death” claims accrued, at the latest, on the date of Watkins’s death on July 28, 2003. See Clark Sand, 60 So.3d at 161; Caves, 991 So.2d at 148. Therefore, in the absence of tolling, the statute of limitations for “survival-type” claims ran on October 4, 2005 (and for “wrongful-death” claims, on July 28, 2006).

Id. at 307. Kinsey concludes by citing Clark Sand and finding that Kinsey’s wrongful-death suit is a “new and independent wrongful-death action” and is barred by the statute of limitations. Id. at 308.

¶ 30. Based on Clark Sand and Kinsey, we hold that Morgan, Jr.’s wrongful-death action is time-barred. Clark Sand held that subsequently-filed, wrongful-death actions are “separate and distinct” from previously filed, personal-injury actions. Id. at 162. Like the plaintiff in Clark Sand, Morgan, Jr., had not been appointed executor of Morgan, Sr.’s estate prior to filing the wrongful-death action, nor had Morgan, Jr., been substituted as a party plaintiff in Morgan, Sr.’s Arthur suit. Because the savings statute does not apply and the two actions are “separate and distinct,” the statute of limitations was not tolled and began to run for “wrongful-death” type claims on the day of Morgan, Sr.’s death— September 14, 2002. Morgan, Jr.’s wrongful-death claim should have been filed by September 14, 2005 — three years after Morgan Sr.’s death. The statute of limitations for “survival-type” claims began to run on June 2, 2002 — the date of Morgan, Sr.’s diagnosis — and expired on June 2, 2005. Morgan, Jr.’s survival claims were not filed until May 23, 2007, and are barred by the three-year statute of limitations.

¶ 31. No attempt was made to file a notice of death to amend the Arthur complaint to include Morgan, Jr.’s wrongful-death claims, or to substitute Morgan, Jr., as the real party in interest in Arthur. More than four and one half years after Morgan, Sr., died, Morgan, Jr., filed this wrongful-death suit. According to Clark Sand, Morgan, Jr.’s action is “separate and distinct” from Morgan, Sr.’s action. Because they are distinct actions, Morgan Sr.’s personal-injury action did not toll the statute of limitations for Morgan, Jr.’s wrongful-death action. Also, the savings statute does not apply, because the claims are separate. Accordingly, Morgan, Jr.’s wrongful-death action is barred by the statute of limitations.

CONCLUSION

¶ 32. Morgan, Jr.’s wrongful-death action is time-barred. Accordingly, we reverse the Adams County Circuit Court’s judgment denying summary judgment and render judgment here in favor of the defendants.

¶ 33. REVERSED AND RENDERED.

WALLER, C.J., DICKINSON, P.J., RANDOLPH, LAMAR AND PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER AND KING, JJ.

KITCHENS, Justice,

Dissenting.

¶ 34. For the reasons stated in my separate opinion in Clark Sand v. Kelly, 60 So.3d 149, 164-65 (Miss.2011), I respectfully dissent. As in Clark Sand, the wrongful death action encompassed the decedent’s previous personal injury claims; thus the statute of limitations was tolled while the personal injury action was pending. Id. at 165. In his order denying summary judgment, the trial court correctly held:

That both plaintiffs and defendants in the multi-plaintiff Jones County action treated that case as if Henry Morgan, Sr. had not died, and during that period of time the statute of limitations that defendants contend ran against the plaintiff on the wrongful death claim was tolled.
That there could have been certain actions taken while the Jones County litigation was still pending by either side, but none were undertaken. Therefore, because this action was filed within one year, this action was saved by virtue of Section 15-1-69 in a fair and liberal reading of that statute.

Based on the arguments at the hearing, the trial court was referring to Mississippi Rule of Civil Procedure 25(a)(1), which says:

If a party dies and the claim is not thereby extinguished, the court shall, upon motion, order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of summons. The action shall be dismissed without prejudice as to the deceased party if the motion for substitution is not made within ninety days after the death is suggested upon the record by service of a statement of the fact of the death as herein provided for the service of the motion.

(Emphasis added.) Notably, the rule does not place the burden of filing the suggestion of death upon either party. Therefore, under the circumstances presented in this case, the trial court did not err in denying the defendants’ motion for summary judgment.

CHANDLER AND KING, JJ„ JOIN THIS OPINION.

      . Ruby Kelly was also known as Ruby Kelley. The official Southern Reporter citation appears as “Clark Sand Co., Inc. v. Kelly." But throughout the body of the opinion in Clark Sand, the plaintiff is referred to as Kelley and not Kelly. Thus, in our discussion, we will refer to her as Kelley.

      . The majority also cites Kinsey v. Pangborn, 78 So.3d 301 (Miss.2011), a decision in which I concurred. I find a notable distinction between Kinsey and the present case in that, in Kinsey, the decedent’s estate had been closed and the plaintiff had been discharged as executrix for nearly three years before attempting to bring the wrongful death suit. Id. at 308.


author: DICKINSON, Presiding Justice, for the Court: CHANDLER, Justice,

text:
    Jeffrey Keller DAVIS v. STATE of Mississippi.
    No. 2010-CA-01770-SCT.
    Supreme Court of Mississippi.
    May 3, 2012.

      Office of Capital Post-Conviction Counsel by Glenn S. Swartzfager, Louwlynn Vanzetta Williams, Amy Strickland, attorneys for appellant.
    Office of the Attorney General by Marvin L. White, Jr., attorney for appellee.
   DICKINSON, Presiding Justice, for the Court:

¶ 1. In 1992, Jeffrey Davis was convicted of murder and sentenced to death. After we affirmed his conviction and sentence on direct appeal, he filed a petition for post-conviction relief, claiming, among other things, that he was denied effective assistance of counsel at the sentencing phase of his trial. Based on the evidence produced by Davis’s new counsel-that was available to, but never discovered or produced by, his trial counsel-we reverse the trial court’s denial of post-conviction relief and remand for a new sentencing trial.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. In 1991, after turning himself over to the Greene County Sheriffs Office for murdering his friend Linda Hillman, Davis waived his Miranda rights, cooperated with police, and was indicted for capital murder. The trial court appointed George Shaddock to represent and defend Davis at trial.

¶ 3. After learning the State would seek the death penalty, Shaddock had only two meetings with Davis, the second of which took place the day before trial. Almost all of Shaddock’s interviews of mitigation witnesses and preparation for the penalty phase of Davis’s trial took place the day before trial. Shaddock made no attempt to obtain and review Davis’s medical, school, or military records; he never interviewed any of the prison personnel where Davis was incarcerated prior to trial; and he did not produce any evidence that described the alleged abuse Davis had suffered as a child, at the hands of his father.

The Sentencing Hearing

¶ 4. After Davis was found guilty of capital murder, the matter proceeded to a sentencing hearing at which Shaddock made no opening statement. The total, combined testimony of mitigation witnesses consumed less than fifteen pages of transcript.

¶ 5. One of those witnesses — Davis’s mother — met with Shaddock only twice. At the first meeting, they met for an hour and, according to Davis’s mother, talked about “a lot of nothing.” At their second meeting, which took place the day before sentencing, Shaddock simply told her to “get up there and beg for [your] son’s life.” Shaddock called Davis’s sister, with whom he met once for ten minutes the day before sentencing.

¶ 6. Shortly after Davis was convicted, Shaddock asked him for the names of any other witnesses he (Davis) could have at the sentencing hearing. Davis mentioned his landlord, Clayton Evans, who appeared and testified with no preparation whatsoever. Evans’s testimony concerning Davis amounted to a single page of the transcript. At the evidentiary hearing, Shad-dock had no notes and no recollection of these events.

¶ 7. As his final witness, Shaddock called an investigator with the Mississippi Highway Patrol to testify to Davis’s criminal record. The penalty phase closed, and the jury sentenced Davis to death.

¶ 8. After this court affirmed Davis’s conviction and sentence on direct appeal, Davis filed a petition for post-conviction relief in this Court. In his petition, Davis raised sixteen issues — including: (1) Davis’s claim that his trial counsel was ineffective for failure to properly investigate, prepare, and present mitigation evidence at sentencing; and (2) that Davis’s counsel was ineffective for failing to communicate a plea bargain tendered by the State. We found that those two claims had sufficient merit to warrant an eviden-tiary hearing and remanded the case to the circuit court. We denied the petition on the remaining issues.

The Evidentiary Hearing

¶ 9. Davis obtained new counsel to represent him at the post-conviction proceedings. His counsel called eleven witnesses, many of whom clearly had been available to Shaddock.

Betty Cochran

¶ 10. Betty Cochran testified to her long relationship with the Davis family. Cochran worked as a nurse for Davis’s family doctor and lived in the same trailer park as Davis’s family. She became close friends with Davis’s mother, and their children grew up together. As Davis grew older and moved out on his own, Cochran lived in his neighborhood and talked to Davis on a daily basis. Davis had keys to Cochran’s home, and Davis would house-sit when she was out of town for work. Cochran also testified that Davis helped and ran errands for everyone in the neighborhood, including a crippled, elderly widow who could not leave her house.

¶ 11. When Shaddock first met with Davis’s mother, Cochran was present and had been introduced to Shaddock as a lifelong friend of Davis’s family. But after the introduction, Shaddock never interviewed Cochran or asked about her again. Cochran was present at the trial, and even passed Shaddock in the halls of the courthouse. Still, Cochran was never asked to testify on Davis’s behalf.

Linda Davis

¶ 12. Linda Davis, who worked as the office deputy at the George County Sheriffs Department where Davis was held before trial, saw him every day. She testified that Davis attained the status of trusty and “went around doing errands and all for the jail during the day.” She stated that Davis never caused trouble while he was there, characterizing him as “a very nice and polite fellow.”

¶ 13. She also testified that Davis often was allowed to go outside the confines of the jail — unescorted—in civilian clothes, and that he was allowed to drive patrol cars around the corner, again unescorted, to a facility where he would change the oil in the cars. She stated that Davis and his family were allowed to take family pictures in the courthouse in front of the Christmas tree.

¶ 14. According to Davis, Shaddock never contacted her about Davis’s conduct while incarcerated, or about testifying on Davis’s behalf. She stated that, if asked, she would have testified.

Cynthia Mizell

¶ 15. Davis’s sister, Cynthia Mizell, testified that their father was an abusive alcoholic and that “[i]t was a turmoil childhood.” She further testified:

There were a lot of things that went on in our household that people that don’t understand, that haven’t been raised in a household like that, we had a lot of situations to where we would be at home and my father was bad to not come home ... and you never knew at the time when he came in, what kind of mood he was going to be in. So we all tried to tip toe around, and just be as quiet as we could.

¶ 16. Mizell went on to describe a night when her father began strangling their mother. Davis — at age twelve — tried to save his mother by jumping on his father’s back, but his father threw him off, so he ran to a neighbor’s house to get help. When he returned, his father threatened to kill him and forced him to sleep outside. Cynthia testified that this “happened regularly at least every weekend.”

Other Witnesses

¶ 17. In addition to Davis’s mother, sister, and Betty Cochran, post-conviction counsel called seven other witnesses: a deacon at Davis’s church; the husband of Davis’s Sunday-school teacher; three of Davis’s past employers; Davis’s ex-brother-in-law; and one of Davis’s long-time neighbors. These witnesses testified that Davis was always willing to volunteer around his community, including church events, running errands for an elderly widow, and helping neighbors with house work. Like Betty Cochran, Davis’s neighbor Darryl Cooley often had Davis house-sit while Cooley was out of town. All testified to his nonviolent behavior, good work ethic, and that, had Shaddock asked them to testify at sentencing, they would have.

¶ 18. At the close of the hearing, the circuit denied Davis’s petition for post-conviction relief, holding that Davis’s counsel was not ineffective. Davis now appeals the circuit court’s decision, raising the following issues: (1) Shaddock’s failure to investigate, prepare, and present mitigation evidence amounted to ineffective assistance of counsel; (2) Shaddock’s failure to communicate a plea bargain to Davis amounted to ineffective assistance of counsel; and (3) the circuit judge’s refusal to allow an addictionologist to testify at the evidentiary hearing constitutes reversible error. While we affirm the circuit court as to the plea-bargain issue, we hold that Shaddock’s performance was deficient for failing to properly investigate, prepare, and present mitigation evidence and that such deficiency was prejudicial. We therefore reverse Davis’s death sentence and remand for resentencing. Because we reverse Davis’s sentence regardless of the addictionologist’s testimony, we need not reach that issue.

ANALYSIS

¶ 19. It is settled law that we “will not disturb the factual findings of a trial court in denying [a] petition [for post-conviction collateral relief] unless such findings are clearly erroneous.... ‘However, where questions of law are raised the applicable standard of review is de novo.’ ”

1. Davis’s counsel failed to conduct an independent investigation for mitigation evidence, and he failed to prepare properly for the sentencing phase of the trial.

¶ 20. A defendant alleging ineffective assistance of counsel bears the burden of showing “that counsel’s representation fell below an objective standard of reasonableness.... The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Another benchmark for determining whether counsel’s representation was unconstitutionally deficient, is “[w]hether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”

¶ 21. It is correct that “[j]udicial scrutiny of counsel’s performance must be highly deferential ...,” and courts have rightly “upheld decisions not to put on mitigating evidence where the decision resulted from a sound trial strategy.” Counsel often fail to call witnesses because they conclude the witness will do more harm than good. But no trial strategy was involved here. It takes no deep legal analysis to conclude that an attorney who never seeks out or interviews important ■witnesses and who fails to request vital information was not engaging in trial strategy-

¶ 22. Shaddock had a duty to conduct a reasonable, independent investigation to seek out mitigation witnesses, facts, and evidence for the sentencing phase of Davis’s trial. Instead, he conducted no independent investigation, relying on witnesses whom Davis suggested, and whom Shaddock failed to properly prepare.

¶ 23. Shaddock blames his failure to conduct an independent investigation on his incorrect understanding that Davis was not from the local community. In fact, except for his service in the military, Davis had lived in the local community his entire life. Bearing in mind the standards of review stated above, we now proceed to apply the law to these facts.

¶ 24. In evaluating claims of ineffective assistance of counsel in death-penalty cases, we are bound by federal law and particularly, by the United States Constitution and cases decided by the United States Supreme Court. The Constitution guarantees every criminal defendant effective assistance of counsel. The line between effective and ineffective assistance of counsel is not always clear. But the United States Supreme Court — through its precedent — has established certain principles that must guide our decisions. We begin with a case with facts similar to those before us today.

Williams v. Taylor

¶ 25. During the sentencing phase in Williams v. Taylor, the defendant offered the testimony of his mother, two neighbors, and a psychiatrist (very similar to the evidence presented by Shaddock). The witnesses primarily discussed how the defendant was not prone to violence and was well-behaved as a boy. In post-conviction proceedings, however, evidence was discovered that the defendant had had an abusive childhood, had mental issues (although fit for trial and capital punishment), had thrived in the structured environment of prison, and was thought not to pose a future danger to society. This substantial mitigation evidence failed to impress the Supreme Court of Virginia, which held that it was merely cumulative to what the jury had heard at sentencing.

¶ 26. On appeal, the United States Supreme Court reversed, holding that defense counsel’s failure to discover and introduce evidence of the defendant’s abusive childhood or testimony from prison officials that defendant coped well in a structured environment as well as counsel’s failure to properly prepare for sentencing, could not be considered tactical.

Wiggins v. Smith

¶ 27. In Wiggins v. Smith, defense counsel failed to produce evidence of the defendant’s life history or family background. After the defendant’s death sentence was affirmed on direct appeal, post-conviction counsel discovered evidence that Wiggins had suffered physical and sexual abuse as a child. Wiggins’s trial counsel claimed they knew of Wiggins’s abusive past, but decided — as a matter of strategy — not to present it.

¶ 28. The Maryland Court of Appeals found that Wiggins’s trial counsel made a tactical decision to concentrate on the guilt aspect instead of Wiggins’s life history. The United States Supreme Court reversed the death sentence, holding that counsel’s failure to uncover and present the mitigating evidence on Wiggins’s behalf could not be justified as a tactical decision. The Court stated: “Strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Stated another way, there is no strategy involved in neglecting to investigate and failing to ask questions of potential witnesses.

¶ 29. In both Williams and Wiggins, the United States Supreme Court found that counsel’s failure to discover and introduce evidence of child abuse and the ability to cope in the structured environment of prison amounted to deficient performance. The Court further held that, had such evidence been entered, there was “a reasonable probability that at least one juror would have struck a different balance.” Therefore, the deficient performance was prejudicial and required reversal of the death penalty. Numerous other courts have reached the same conclusion.

¶ 30. Despite the clear law announced in Williams and Wiggins, the State and the dissent argue that the mitigation evidence Shaddock failed to uncover and produce was cumulative and therefore not prejudicial. Both the State and the dissent are simply incorrect.

Skipper v. South Carolina

¶ 31. The dissent cites — out of context — a snippet from the United States Supreme Court’s decision in Skipper v. South Carolina, while completely ignoring its holding. In fact, the decision in Skipper leads to the inescapable conclusion that Davis’s death sentence must be reversed.

¶ 32. In Skipper, at his sentencing hearing, the defendant introduced testimony from his ex-wife, mother, sister, and grandmother concerning the circumstances of his childhood. He then attempted to introduce the testimony of prison officials that he was well-behaved in prison, had a record of good conduct, and adjusted well to prison life. The trial court — characterizing the testimony as cumulative — refused to allow Skipper to call the witnesses. In reversing the trial court, the United States Supreme Court stated that

characterizing the excluded evidence as cumulative and its exclusion as harmless is implausible on the facts before us. The evidence petitioner was allowed to present on the issue of his conduct in jail was the sort of evidence that a jury naturally would tend to discount as self-serving. The testimony of a more disinterested witness — and, in particular of jailers who would have had no particular reason to be favorably predisposed toward one of their charyees— would quite naturally be yiven much yreater weiyht by the jury.

¶ 33. The portion of the decision emphasized above obviously is necessary to an understanding of the importance of the case. Yet the dissent omits this critical language and surgically removes the phrase: “was the sort of evidence that a jury naturally would tend to discount as self-serving ...,” in an attempt to support the incorrect proposition that an attorney’s failure to present mitigation evidence from relatives can never be prejudicial. The import of Skipper is not about the testimony of relatives, but rather is about the testimony of “jailers” who observed a death-penalty defendant’s conduct while incarcerated.

¶ 34. The purpose of the phrase about the testimony of relatives was to contrast testimony from jailors who, according to the Supreme Court, “would have had.no particular reason to be favorably predisposed toward one of their charyees ” and whose testimony “would quite naturally be yiven much yreater weiyht by the jury.” And nowhere did the Skipper Court even imply that failure to obtain testimony from a family member could not found to be prejudicial.

¶35. Skipper clearly stands for the proposition that testimony from disinterested prison personnel about an inmate’s conduct is highly probative. In fact, the Skipper Court specifically held that the trial judge’s refusal to allow such testimony (even though it was “cumulative”) was reversible error.

¶ 36. Applying Skipper to the case before us, we must conclude that Shaddock’s representation was ineffective. Linda Davis — the deputy sheriff who worked at the jail where Davis was incarcerated, and who had observed him on a daily basis— could have, and would have (had she been asked), testified that she had observed Davis’s good conduct in prison, and that he had achieved trusty status and had adjusted well to the prison environment. And, even though the Court in Skipper — a case that should be familiar to any counsel representing a defendant in a death-penalty case — reversed the death penalty because defense counsel failed to uncover and produce the “testimony ... of jailers,” Shad-dock never interviewed Linda Davis or any of Davis’s other jailers, and he never sought to produce any evidence of Davis’s conduct while incarcerated.

¶ 37. Furthermore, neither Linda Davis’s testimony concerning Davis’s conduct while incarcerated, nor Mizell’s testimony about his abuse, was cumulative of any evidence produced at the sentencing phase of Davis’s trial. No witness testified about his history of child abuse, his adjustment to incarceration, or his status as a trusty. We emphasize that entirely new, unheard testimony is not cumulative.

¶ 38. Davis also claims that the circuit court erred at the evidentiary hearing by not preventing addictionologist Dr. James J. Kramer from testifying. But, because we reverse and remand Davis’s death sentence regardless of this testimony, we need not reach this issue. Davis also claims that Shaddock was ineffective for failing to discover and produce his medical and school records. But, because those records are not in the record before us, and because we reverse on other grounds, we decline to address the issue.

2. Because Davis has failed to show that the State tendered a plea offer, we cannot hold that his counsel was deficient for failure to communicate the offer to Davis.

¶ 39. Davis also argues that his counsel was ineffective for failure to communicate a plea offer tendered by the State the day before Davis’s trial. But the affidavits submitted with Davis’s post-conviction-relief petition contain conflicting accounts regarding whether the State actually tendered a plea offer. Former District Attorney Dale Harkey stated in an affidavit:

Prior to the trial ..., I tendered to the Defendant, Jeffrey K. Davis, a plea offer whereby in exchange for a plea of guilty to Murder and Armed Robbery, the State of Mississippi would recommend a sentence of Life imprisonment for Murder, and ten (10) or (20) years imprisonment, consecutive, for Armed Robbery. This offer was not reduced to writing, but communicated to the attorney of record for Jeffrey K. Davis.

Shaddock states by affidavit that he “was not offered a plea bargain by the State of Mississippi prior to his conviction.”

¶ 40. The circuit court summarized the testimony produced at the post-conviction evidentiary hearing:

[Davis] testified that he recalled an offer being relayed by Shaddock from [District Attorney Dale Harkey] to plead and receive a sentence of twenty years day for day on each count to run consecutively; it was not an offer he was willing to accept. Shaddock remembers receiving an offer of what he thinks may have been twenty and twenty. Harkey testified that he does not recall specifically, but he thinks he may have made an overture to Shaddock about the possibility of a plea. Harkey’s testimony made it clear that there was no true plea offer on the table. There was basically discussion about the possibility of talking about a plea offer. He does recall there being a discussion along the lines of if there was going to be a plea offer it may be in the realm of life plus twenty years.

¶ 41. We affirm the circuit court’s finding that trial counsel’s performance was not deficient for failure to communicate a plea offer because Davis has failed to prove that the State tendered a plea offer. The evidence presented reveals no more than pretrial posturing by the State and counsel for the defendant. The circuit court correctly concluded that no enforceable plea offer was made and that the preliminary conversations were merely a “discussion about the possibility of talking about a plea offer.” Given the contradictory accounts in the record and the lack of a written agreement, we likewise cannot conclude that a plea offer existed. And, even assuming that a plea offer existed, we cannot ascertain its terms. Therefore, we conclude that Davis has not shown his counsel’s performance fell below an objective standard of reasonableness in this regard. We affirm the circuit court’s conclusion that “[t]he evidence before the Court does not show there was a plea offer to discuss with the plaintiff or that he was prejudiced by the actions of his attorney. This issue is without merit.”

CONCLUSION

¶42. Davis’s counsel failed to conduct an independent investigation which would have revealed substantial mitigating evidence. And as the United States Supreme Court held in Wiggins, had such evidence been entered, there was “a reasonable probability that at least one juror would have struck a different balance.”

¶ 43. We therefore hold that Shad-dock’s failure to conduct an independent investigation, and his failure to discover and present readily-available mitigation evidence of Davis’s abuse as a child, and his conduct while incarcerated, amounted to ineffective assistance of counsel. Therefore, we reverse the judgment of the Greene County Circuit Court denying post-conviction relief and remand the ease to the trial court to vacate Davis’s death sentence and hold a new trial on sentencing.

¶ 44. REVERSED AND REMANDED.

WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, KITCHENS AND KING, JJ., CONCUR. CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY PIERCE, J.

CHANDLER, Justice,

dissenting:

¶ 45. I respectfully dissent. Under Strickland, Davis must prove both deficiency and prejudice. Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052, 2055, 80 L.Ed.2d 674 (1984). Certainly, Davis’s counsel rendered deficient performance by failing to investigate and develop mitigation evidence. But I would find from the mitigation evidence presented at the evidentiary hearing that there is no reasonable probability of a different outcome had the evidence been presented in the penalty phase of Davis’s trial. See id. Therefore, I would affirm the denial of post-conviction relief.

¶ 46. Davis claims that his trial counsel performed deficiently in (1) failing to obtain his military, school, or medical records; and (2) failing to investigate, develop, and present mitigation witnesses at the sentencing phase of his trial. I agree with the majority’s finding that counsel’s performance in these areas “fell below an objective standard of reasonableness.” Id. There is a strong presumption that “counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. If counsel’s decision not to present mitigating evidence resulted from sound trial strategy, then counsel’s decision was not deficient performance. Havard v. State, 988 So.2d 822, 334 (Miss.2008) (citations omitted). We have held that, for an attorney’s conduct to fall within the wide range of reasonable assistance:

at a minimum, counsel has a duty to interview potential witnesses and to make independent investigation of the facts and circumstances of the case. The decision not to interview witnesses, particularly your own, cannot be considered an effective strategic choice.

Johns v. State, 926 So.2d 188, 196 (Miss.2006) (citations omitted) (emphasis in original). “While counsel is not required to exhaust every conceivable avenue of investigation, he or she must at least conduct sufficient investigation to make an informed evaluation about potential defenses.” Ross v. State, 954 So.2d 968, 1005 (Miss.2007) (citation omitted). Applying these standards, the failure of Davis’s counsel, Shaddock, to obtain his client’s military, school, and medical records was deficient performance.

¶ 47. Also, Davis showed that Shad-dock’s inquiry into potential mitigation witnesses, development of mitigation-witness testimony, and presentation of mitigation-witness evidence constituted deficient performance. Davis testified that Shaddock had inquired about mitigation witnesses for the first time on the day before the sentencing hearing, but confirmed Shad-dock’s account that, in response, he had identified only his mother, his sister, and Clayton Evans. Davis’s mother and sister testified that Shaddock never had asked them about additional mitigation witnesses. Thus, Shaddock made no independent investigation into the existence of mitigation witnesses. Especially in light of Davis’s eligibility for the death penalty, this was not an adequate investigation into mitigating evidence. “When counsel makes choices of which witnesses to use or not to use, those choices must be based on counsel’s proper investigation.” Johns, 926 So.2d at 196.

¶ 48. Yet, a showing of deficient performance does not meet the Strickland test unless the petitioner also has made a sufficient showing that he was prejudiced by the deficiency. Strickland, 466 U.S. at 669, 104 S.Ct. 2052. This Court determines prejudice by comparing the mitigating evidence presented in post-conviction-relief proceedings with the mitigating evidence actually presented at the sentencing hearing. Neal v. Puckett, 286 F.3d 230, 241 (5th Cir.2002). We then determine whether the “additional mitigating evidence [is] so compelling that there is a reasonable probability at least one juror could reasonably have determined that, because of [the defendant’s] reduced moral culpability, death was not an appropriate sentence.” Id.

¶ 49. At the evidentiary hearing, Davis failed to present the military, school, and medical records he contends Shaddock should have obtained. Therefore, the prejudicial effect of counsel’s failure to obtain these records before Davis’s sentencing hearing could not be ascertained. And, as the circuit court determined, the testimony of the mitigation witnesses Davis presented at the evidentiary hearing was cumulative of the testimony that was, in fact, presented at the sentencing phase of his trial. Therefore, “even if [Davis’s] counsel performed deficiently by failing to dig deeper, he suffered no prejudice as a result[,]” because “the[ hearing witnesses’] testimony would have added nothing of value.” Bobby v. Van Hook, — U.S. -, 130 S.Ct. 13, 19, 175 L.Ed.2d 255 (2009).

¶ 50. Davis’s mitigation evidence at trial included the testimony of a police investigator that Davis had no prior felony offenses, and testimony from his mother, sister, and childhood landlord regarding Davis’s employment history, military service, and nonviolent, generous character. At the evidentiary hearing, Davis presented the testimony of friends, family, former employers, and a sheriffs department employee who had met Davis when he was incarcerated. The sheriffs department employee testified about Davis’s trusty status while incarcerated, and the remaining witnesses testified about Davis’s childhood with an abusive father and his nonviolent, generous character, based on their experiences with Davis years before he murdered Hillman. I find that the witnesses’ testimony “in this post-conviction proceeding contain[s] information that is cumulative of the testimony given at trial.” Havard, 988 So.2d at 337. Further, as this Court recognized in Havard, testimony by a defendant’s friends and family is “the sort of evidence that a jury naturally would tend to discount as self-serving.” Id. at 339 (quoting Skipper v. South Carolina, 476 U.S. 1, 8, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986)). Thus, I agree with the circuit court’s holding that:

the Court does not find that it was the type of evidence that would make a difference in the jury’s original verdict. In other words, the evidence was not so overwhelming or different than the jury heard at the trial in this matter.... Without more the Court finds that there has been no undermining of the confidence in the outcome in this case when all circumstances are taken into account.

Because the potential mitigation witnesses’ testimony was repetitive of the testimony offered at Davis’s sentencing hearing, I would find that Davis has failed to show prejudice. I believe there is no reasonable probability that at least one juror reasonably could have determined that, because of Davis’s reduced moral culpability, death was not an appropriate sentence.

PIERCE, J„ JOINS THIS OPINION.

      . Davis v. State, 684 So.2d 643 (Miss.1996).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Davis v. State, 684 So.2d 643 (Miss.1996).

      . Davis v. State, 743 So.2d 326 (Miss.1999).

      . Linda Davis is not related to Jeffrey Davis.

      . Rowland v. State, 42 So.3d 503, 506 (Miss.2010) (citations omitted) (quoting Lambert v. State, 941 So.2d 804, 807 (Miss.2006)).

      . Strickland v. Washington, 466 U.S. 668, 688, 691, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984).

      . Id. at 686, 104 S.Ct. 2052.

      . Id. at 689, 104 S.Ct. 2052.

      . Havard v. State, 988 So.2d 322, 334 (Miss.2008).

      . Strickland, 466 U.S. at 691, 104 S.Ct. 2052.

      . See id. at 684-87, 104 S.Ct. 2052; Stringer v. State, 454 So.2d 468, 476-77 (Miss.1984).

      . Strickland, 466 U.S. at 686, 104 S.Ct. 2052.

      . Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

      . Id. at 369, 120 S.Ct. 1495.

      . Id. at 370-71, 120 S.Ct. 1495.

      . Id. at 371, 120 S.Ct. 1495.

      . Id. at 395-99, 120 S.Ct. 1495.

      . Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

      . Wiggins, 539 U.S. at 516, 123 S.Ct. 2527.

      . Id. at 516, 123 S.Ct. 2527.

      . Id. at 517, 123 S.Ct. 2527.

      . Id. at 518, 123 S.Ct. 2527.

      . Id. at 522, 528, 123 S.Ct. 2527.

      . Wiggins, 539 U.S. at 537, 123 S.Ct. 2527.

      . Boyde v. Brown, 404 F.3d 1159 (9th Cir.2005) (death sentence reversed for counsel’s failure to develop and present mitigating evidence of child abuse); Lewis v. Dretke, 355 F.3d 364 (5th Cir.2003) (petitioner’s death sentence reversed for counsel’s failure “to investigate mitigating evidence of his abusive childhood.”); Douglas v. Woodford, 316 F.3d 1079 (9th Cir.2003); Karis v. Calderon, 283 F.3d 1117 (9th Cir.2002); Silva v. Woodford, 279 F.3d 825 (9th Cir.2002); Jennings v. Woodford, 290 F.3d 1006 (9th Cir.2002); Brownlee v. Haley, 306 F.3d 1043 (11th Cir. 2002); Ainsworth v. Woodford, 268 F.3d 868 (9th Cir.2001); Mayfield v. Woodford, 270 F.3d 915 (9th Cir.2001); Lockett v. Anderson, 230 F.3d 695 (5th Cir.2000); Collier v. Turpin, 177 F.3d 1184 (11 Cir.1999) (counsel ineffective because jury not "presented with the particularized circumstances of his past”); Dobbs v. Turpin, 142 F.3d 1383 (11th Cir.1998) (counsel ineffective for failing to pursue and present evidence of petitioner's unfortunate childhood).

      . Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986).

      . Skipper, 476 U.S. 1, 2-3, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986).

      . Id. at 3, 106 S.Ct. 1669.

      . Id. at 7, 106 S.Ct. 1669 (emphasis added).

      . Id. at 7, 106 S.Ct. 1669.

      . Davis testified that he had refused the offer of two twenty-year sentences and had told Shaddock that, "for me at that time, that was a death sentence, and that I wouldn't take it.”

      . Harkey testified that he had postured a potential plea of a life sentence plus ten or twenty years, to run consecutively.

      . Wiggins, 539 U.S. at 537, 123 S.Ct. 2527.