author: DICKINSON, Presiding Justice, RANDOLPH, Justice, KITCHENS, Justice,

text:
    Joseph Dewayne JOHNSON v. SYSCO FOOD SERVICES and New Hampshire Insurance Company.
    No. 2011-WC-01086-SCT.
    Supreme Court of Mississippi.
    May 3, 2012.

      Carlos Eugene Moore, Tangala Lanieee Hollis, Grenada, attorneys for appellant.
    Pamela S. Ratliff, Jefferson Pinckney W. Skelton, Ridgeland,. attorneys for appel-lees.
   DICKINSON, Presiding Justice,

for the Court.

¶ 1. Today we address the constitutionality of direct appeals from the Workers’ Compensation Commission (“Commission”) to this Court. We hold that they are constitutional, and that this Court has appellate jurisdiction over direct appeals from the Commission.

BACKGROUND

¶ 2. A 2011 amendment to Section 71-3-51 provides that, “from and after July 1, 2011,” decisions of the Mississippi Workers’ Compensation Commission may be appealed directly to this Court, rather than to the circuit court, as required under the previous version of the statute. On July 1, 2011, the Commission denied Joseph Dewayne Johnson’s claim for benefits, so he appealed here. We ordered the parties to brief two issues: whether Section 71-3-51, as amended, is constitutional; and whether this Court has appellate jurisdiction over direct appeals from the Commission.

ANALYSIS

¶ 3. When addressing a statute’s constitutionality, we apply a de novo standard of review, bearing in mind (1) the strong presumption of constitutionality; (2) the challenging party’s burden to prove the statute is unconstitutional beyond a reasonable doubt; and (3) all doubts are resolved in favor of a statute’s validity. When interpreting a constitutional provision, we must enforce its plain language.

¶ 4. After receipt of this appeal, this Court — on its own motion — ordered the parties to brief the questions of whether Article 6, Section 146 of the Mississippi Constitution prohibits direct appeals from the Commission to this Court, and whether this Court has jurisdiction over such direct appeals.

Section 71-3-51 is amended to allow direct appeals from the Commission to the Mississippi Supreme Court.

¶ 5. Before July 2011, a party wishing to appeal a Commission order was required to file the appeal in circuit court; and the party aggrieved by the circuit court’s decision could then appeal here. But in its 2011 session, the Mississippi Legislature enacted the following amendment to Section 71-3-51:

The final award of the commission shall be conclusive and binding unless either party to the controversy shall, within thirty (30) days from the date of its filing in the office of the commission and notification to the parties, appeal therefrom to the Supreme Court.

The matter at issue is whether this Court has jurisdiction to hear direct appeals from the Commission.

Article 6, Section 146 of the Mississippi Constitution sets forth this Court’s jurisdiction and authority to hear cases.

¶ 6. Prior to 1984, our Constitution set forth this Court’s jurisdiction in a single sentence: “The Supreme Court shall have such jurisdiction as properly belongs to a court of appeals.” While there were likely many opinions of what jurisdiction “properly” belonged to a court of appeals, our precedent records no serious challenges to this Court’s jurisdiction under the pre-1984 provision.

¶ 7. In 1984, the people of Mississippi amended Section 146 of their Constitution by retaining the prior language — “The Supreme Court shall have such jurisdiction as properly belongs to a court of appeals” — and adding the following language:

and shall exercise no jurisdiction on matters other than those specifically provided by this Constitution or by general law. The legislature may by general law provide for the Supreme Court to have original and appellate jurisdiction as to any appeal directly from an administrative agency charged by law with the responsibility for approval or disapproval of rates sought to be charged the public by any public utility. The Supreme Court shall consider cases and proceedings for modification of public utility rates in an expeditious manner regardless of their position on the court docket.

¶ 8. We find it compelling that the amended section retains the original language that grants this Court “jurisdiction as properly belongs to a court of appeal,” and this Court long ago held that phrase meant appeals of decisions rendered by a tribunal clothed with judicial power. And for reasons discussed below, we find the Commission is a quasijudicial body that renders judicial decisions. We also note that Section 71-3-51 is a general law, and Section 146’s language “or by general law” is difficult to misinterpret.

¶ 9. According to Black’s Law Dictionary, an appellate court “has jurisdiction to review decisions of lower courts or administrative agencies.” The Mississippi Workers’ Compensation Commission — unlike other commissions and agencies in state government — makes the final factual determination in a particular ease; there is no trial de novo. As this Court has said, “appellate jurisdiction necessarily implies that the subject matter must have been acted upon by [a] tribunal whose judgment or proceedings are to be reviewed.” And the Commission’s judgments may be — and often are — reviewed.

¶ 10. The cases brought before the Commission were cases heard in courts under the common law. The Legislature moved the venue of these suits filed by employees against their employers to the Commission. When the Commission decides a case in favor of the worker, the employer is ordered to make periodic payments to the employee. And when an employer whose right to an appeal has been exhausted fails to comply with the Commission’s award, Section 71-3-49 says that

the commission may declare the entire award, due and judgment may be entered in accordance with the provisions of this section. Such judgment shall be entered in the same manner, have the same effect, and be subject to the same proceedings as though rendered in a suit duly heard and determined by the circuit court, except that no appeal may be taken therefrom.

¶ 11. The Commission’s judgments are filed in the circuit clerk’s judgment roll; they do not pass through the circuit court or any other court. They are pursued and executed upon exactly the same as judgments rendered by the circuit court. Also compelling is that the Commission alone determines the facts of a workers’ compensation case.

¶ 12. Some argue that, for this Court to have jurisdiction, the case must first filter through the circuit court. But we fail to see how cases can be nonjudicial while pending before the Commission — the very tribunal where the facts are finally adjudicated, and whose decisions this Court actually reviews — and then suddenly become judicial cases upon appeal to circuit court, whose decisions are not even reviewed by this Court.

¶ 13. Before the amendment to Section 71-3-51, the Commission’s final decisions were appealed directly to circuit court, which sat as an appellate court. And after the brief pause in circuit court, the cases were appealed here. Upon receipt, we reviewed the Commission’s decision, not the circuit court’s. In fact, we seldom even mentioned the circuit court’s proceedings. For example, in Gregg v. Natchez Trace Electric Power Association, after the Commission rendered its decision, the case filtered through circuit court and the Court of Appeals before coming here. In reviewing the case, we stated:

This Court granted Gregg’s petition for certiorari to consider whether the Commission erred .... We reverse and remand to the Commission. ... This Court’s review of a decision of the Workers’ Compensation Commission is limited to determining whether the decision was supported by substantial evidence. ... The Commission erred by.... We reverse and remand this case to the Commission ....

¶ 14. In the entire opinion, the circuit court was mentioned only once, and then only to set forth the chronology of appeals. The circuit judge had no power to call witnesses, receive evidence, or adjudicate facts. The reality is that, under the previous statute, the circuit judge’s decision played no part in this Court’s review or disposition of a workers’ compensation case. For these reasons, we reject the notion that a circuit judge’s ruling is required to place a “judicial proceeding” tag on a workers’ compensation case.

¶ 15. To be clear, we do not hold today that this Court has direct appellate jurisdiction over all agency decisions. Today, we address only appeals of workers’ compensation cases from the Commission.

¶ 16. In a legitimate exercise of its constitutional authority, the Legislature created an inferior court when it gave the Commission the power and authority to make decisions that are “conclusive and binding.” Our opinion today is not inconsistent with Herring or Dodd. In Herring, we held that the statute at issue was unconstitutional, because it allowed an appeal where no final decision had been made. Here, the Commission’s decision on the merits is a final, appealable decision. And in Dodd, we reasoned that the Legislature had not conveyed the Railroad Commission “the power to apply the law to a state of facts and to make a final declaration of the consequences which follow....” In contrast, Section 71-3-51 states that “[t]he final award of the commission shall be conclusive and binding unless either party to the controversy shall, within thirty (30) days .... appeal therefrom to the Supreme Court.”

¶ 17. As expressed in Dodd, “ ‘[t]he tribunal from which an appeal lies need not be called a court; but it must be one having the attributes of a court — a tribunal where justice is judicially administered.’” Further, a judicial function occurs where a tribunal is the ultimate finder of fact, and where it is empowered to render a binding decision after applying the law to the facts. And the judicial power of a court includes “the power to hear and finally determine controversies between adverse parties.” Likewise, the Commission is the ultimate finder-of-fact, one whose judgment is binding after applying the law to the facts in cases involving adverse parties — a tribunal where justice is judicially administered.

CONCLUSION

¶ 18. Today’s narrow holding is that, pursuant to Article 6, Section 146 of the Mississippi Constitution, the Legislature is constitutionally empowered to confer appellate jurisdiction on this Court over direct appeals from the Commission and as with all workers’ compensation cases appealed to this Court, we assign this case to the Court of Appeals for decision, and the Clerk of Court is directed to issue a merits briefing schedule.

¶ 19. DIRECT APPEAL ASSIGNED TO THE COURT OF APPEALS.

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

RANDOLPH, Justice,

specially concurring.

¶20. The Mississippi Workers’ Compensation Commission is a unique agency, as briefly alluded to by the Majority. (Maj. Op.1110) (“The cases brought before the Commission were cases [once] heard in courts under the common law. The Legislature moved the venue of these suits filed by employees against their employers to the Commission.”). Specifically, the Commission “administer[s]” the statutorily created mechanism under which “most suits by injured workers against employers” have been removed from the tort system, with “[ejmployers receiving] fixed levels of potential liability which they can anticipate and treat as a general ‘cost of doing business’ ” in exchange for “[e]mployees receiving] guaranteed compensation for covered injuries, bypassing the civil-litigation risks of either no recovery or uncol-lectible judgments against insolvent employers.” Miss.Code Ann. § 71-3-1 (Rev. 2011); Franklin Corp. v. Tedford, 18 So.3d 215, 220-21 (Miss.2009) (quoting Note, Exceptions to the Exclusive Remedy Requirements of Workers’ Compensation Statutes, 96 Harv. L. Rev. 1641, 1641 (1983)). In its role as a “quasijudicial” tribunal, the Commission “renders judicial decisions[,]” such that this Court would be exercising “appellate jurisdiction ... over direct appeals from the Commission. ...” (Maj. Op.HH 8, 18). Accordingly, I concur with the Majority’s specific and narrow holding that Article 6, Section 146, of the Mississippi Constitution authorizes the Legislature to confer appellate jurisdiction upon this Court by general law, as in Mississippi Code Section 71-3-51. See Miss. Const, art. 6, § 146. I write separately, however, to note that a provision within Section 71-3-51 is problematic under constitutional sections not argued in this appeal. I point out this infirmity simply to bring it to the attention of the Legislature and to urge its alleviation through statutory amendment. See Smith v. Fluor Corp., 514 So.2d 1227, 1232 (Miss.1987) (“The law has been well settled that the constitutionality of a statute will not be considered unless the point is specifically pleaded.”).

¶ 21. Section 71-3-51 provides, in pertinent part, that:

[t]he Supreme Court shall review all questions of law and of fact. If no prejudicial error be found, the matter shall be affirmed and remanded to the commission for enforcement. If prejudicial error be found, the same shall be reversed and the Supreme Court shall enter such judgment or award as the commission should have entered.[]

Miss.Code Ann. § 71-3-51 (Rev. 2011) (emphasis added). In dictating the method of disposition, which is inherently judicial in nature, the Legislature failed to acknowledge that this Court has routinely remanded cases to the Commission for further proceedings, when warranted. See, e.g., Gregg v. Natchez Trace Elec. Power Ass’n, 64 So.3d 473, 474 (Miss.2011) (reversing and remanding “for a hearing on the issue of lost wage-earning capacity”); J.H. Moon & Sons, Inc. v. Johnson, 753 So.2d 445, 449 (Miss.1999) (remanding for further determinations regarding “rate of compensation”); ABC Mfg. Corp. v. Doyle, 749 So.2d 43, 47 (Miss.1999) (reversing and remanding following holding that statute of limitations was tolled). Directing this Court to reverse and render, in many instances, violates fundamental separation-of-powers principles. See Miss. Const, art. 1, §§ 1-2. First, the term “prejudicial error” begs the question, i.e., can any error exist which is not “prejudi-eial” to some degree? Does this mean that the existence of any error mandates that this Court reverse and render? If so, then the Legislature is improperly interfering with this Court’s role to determine whether an error is harmless. See, e.g., McGee v. River Region Med. Ctr., 59 So.3d 575, 580 (Miss.2011) (quoting Vaughn v. Miss. Baptist Med. Ctr., 20 So.3d 645, 654 (Miss.2009)) (“Unless we.can safely say that the trial court abused its judicial discretion in allowing or disallowing evidence so as to prejudice a party in a civil case ... we will affirm the trial court’s ruling.”) (emphasis added). Second, in the event that “prejudicial error” does exist, Section 71-3-51 inappropriately requires this Court to render “such judgment or award as the commission should have entered.” Miss.Code Ann. § 71-3-51 (Rev. 2011). I fail to see how this Court is equipped to render a proper “judgment or award” in all instances of “prejudicial error.” Id. For example, if the “prejudicial error” involves excluded evidence or witness(es), then the proper disposition would be to reverse and remand for a new hearing. This is no less true if a case is improperly dismissed on statute-of-limitations grounds or if further “lost wage-earning capacity” or “rate of compensation” determinations are necessary. Gregg, 64 So.3d at 474; J.H. Moon, 753 So.2d at 449; Doyle, 749 So.2d at 47. For these reasons, I urge that the constitutional infirmity in this provision should be remedied by the Legislature.

DICKINSON, P. J., LAMAR AND PIERCE, JJ., JOIN THIS OPINION.

KITCHENS, Justice,

dissenting:

¶ 22. Article 6, Section 146, of the Mississippi Constitution gives the Legislature authority to expand this Court’s jurisdiction by general law, but only for the performance of such functions as properly belong to a court of appeals. Article 6, Section 146, of the Mississippi Constitution reads, in pertinent part: “[t]he Supreme Court shall have such jurisdiction as properly belongs to a court of appeals and shall exercise no jurisdiction on matters other than those specifically provided by this Constitution or by general law.” “[Ajppel-late jurisdiction necessarily implies that the subject matter must have been acted upon by [a] tribunal whose judgment or proceedings are to be reviewed.” Glenn v. Herring, 415 So.2d 695, 697 (Miss.1982). A decision of the full Commission, however, is not equivalent to a final judgment of a court. Thus, under Mississippi Code Section 71-3-51 (Rev. 2011), this Court would not be exercising jurisdiction that “properly belongs to a court of appeals” in reviewing decisions of the Workers’ Compensation Commission, which is an administrative agency, not a court. See Miss. Const, art. 6, § 146. Direct appeals to the Mississippi Supreme Court from the Commission are inconsistent with our constitutionally mandated authority.

¶ 23. “This Court has long since recognized that the legislature may constitutionally create administrative agencies and confer upon such agencies fact finding and quasi-judicial powers....” Walters v. Blackledge, 220 Miss. 485, 506-07, 71 So.2d 433, 440 (Miss.1954). “Although exercising quasi-judicial powers,” such administrative agencies “do not have the final authority to decide and to render enforceable judgments .... ” Id. at 439 (citation omitted). There can be no execution, garnishment, or other collection action upon an order of the full Commission for the payment of money unless an employer defaults in the payment of compensation due an employee pursuant to a decision of the Commission. Miss.Code Ann. § 71-3-49 (Rev. 2011). Only then is the Commission’s decision enforceable by means of an entry of judgment by the circuit clerk of the county in which the injury occurred or of the county where the employer’s principal place of business is located. Id.

¶ 24. In 1984, an amendment to Article 6, Section 146, of the state Constitution granted the Legislature the authority to confer original jurisdiction upon this Court over appeals from a particular administrative agency. “The Legislature may by general law provide for the Supreme Court to have original and appellate jurisdiction as to any appeal directly from an administrative agency charged by law with the responsibility for approval or disapproval of rates sought to be charged the public by any public utility to accord to the Legislature the power to convey by general law.” Miss. Const, art. 6, § 146. This amendment, approved at the polls by the people of Mississippi, constitutionally established the only authority by which the Legislature, by general law, may confer original jurisdiction upon this Court with respect to appeals from governmental entities other than courts. Clearly, this authority pertains only to the Public Service Commission, not to the Workers’ Compensation Commission.

¶ 25. Finally, Section 71-3-51, as amended in 2011, is a statute similar to those struck down in Glenn v. Herring, 415 So.2d 695 (Miss.1982); and Illinois Central Railroad Company v. Dodd, 105 Miss. 23, 61 So. 743 (Miss.1913). In Herring, 415 So.2d at 697, this Court invalidated a statute which: (1) required a ehancel-lor or judge to issue a final decree six months after the later of either the date the matter was taken under advisement or the date set for final briefing or memoran-da of authority; and (2) provided the right to direct appeal to the Supreme Court should the trial court fail to issue a final decree within six months. A party appealing was to proceed “as if a final decree [had] been rendered adversely.” Id. In striking down the statute, this Court reasoned that, without a final judgment in the court below, we would be acting, not as an appellate court, but as a trial court, which ran afoul of Article 6, Section 146, of the state Constitution. Id. at 698. This Court concluded: “[I]t is clear that the function of trial courts is to render decisions in matters presented to them, and the function of this Court is to review and revise, if necessary, judicial decisions of inferior tribunals.” Id. In support of this premise, the Herring Court reasoned:

[Illinois Central Railroad Company v. Dodd, 105 Miss. 23, 61 So. 743 (Miss.1913)] clearly teaches that appellate jurisdiction necessarily implies that the subject matter must have been acted upon by the tribunal whose judgment or proceedings are to be reviewed. In the case at bar the trial court has not rendered a judicial decision on the subject matter of the case, so there is no judgment to be reviewed on appeal.

Herring, 415 So.2d at 697.

¶ 26. Just as in Herring, Section 71-3-51 would authorize direct appeal of the instant case from the full Commission, bypass the circuit court, and impermissibly require this Court to review an administrative determination that is in nowise a judicial decision. Under the previous version of Section 71-3-51, the circuit court has always served as the proper “intermediate court of appeals” for decisions of the full Commission. See Smith v. Jackson Const. Co., 607 So.2d 1119, 1124 (Miss.1992); Walker Mfg. Co. v. Cantrell, 577 So.2d 1243, 1247 (Miss.1991); Hardin’s Bakeries v. Dependent of Harrell, 566 So.2d 1261, 1264 (Miss.1990). This Court distinguished the role of the circuit court from that of this Court in Dodd, 61 So. at 745, as follows: “jurisdiction of the circuit court is very different from that of this [C]ourt. It may be that [the circuit court] was properly given the jurisdiction to review by certiorari the quasi judicial acts of a tribunal exercising quasi judicial powers.”

¶ 27. Since “appellate jurisdiction necessarily implies” that this Court’s proper role “is to review and revise, if necessary, judicial decisions of inferior tribunals,” and no judicial decision of a lower court has occurred in the instant case, Section 71-3-51 impermissibly would require this Court to act as a court of original jurisdiction. See Herring, 415 So.2d at 698. The Attorney General attempts to distinguish Herring from the instant case by arguing that, while Herring struck down a statute conferring original jurisdiction upon the Supreme Court over trial court matters where a final judgment had not been entered, this case involves a statute that seeks to confer appellate jurisdiction on this Court over final decisions of an administrative, nonjudicial agency. Section 71-3-51 cannot and does not impose appellate jurisdiction upon this Court. As such, Herring is not distinguishable from the case sub judice.

¶ 28. In Dodd, 105 Miss. 23, 61 So. 743 (Miss.1913), this Court struck down a statute which permitted direct appeal to this Court from any order of the Railroad Commission. In so doing, this Court reasoned:

“[A]ppellate jurisdiction,” spoken of in the Constitution, is that kind of appellate jurisdiction which had theretofore been exercised by the highest judicial tribunals of the respective states, and not an unlimited appellate jurisdiction over any matter or thing arising either in courts or out of courts which the wisdom or folly of any future Legislature might see fit to confer or impose upon it.

Id. at 743. In Dodd, the Court’s analysis looked to the statute that had created the Railroad Commission, which the Court found had promulgated the existence of a “mere administrative agency” and had not conveyed to the Railroad Commission “the power to apply the law to a state of facts and to make a final declaration of the consequences which follow....” Id. at 744. The Dodd Court held that a decision of an administrative agency is not sufficient to confer jurisdiction upon the Supreme Court. Id. at 743. “The fact that there has been a decision ... is not sufficient; but there must have been a decision by a court clothed with judicial authority and acting in a judicial capacity.” Id. (citation omitted). Ultimately, the Supreme Court found that a statute aimed at conferring jurisdiction on this Court to review the validity of a decision of an administrative agency such as the Railroad Commission had the effect of calling upon the Court to “render an advisory opinion to one of the other departments of the state government,” which the state Constitution prohibits this Court’s doing. Id. at 745.

¶29. Sysco and the Attorney General argue that the Dodd decision is distinguishable because the statute at issue in that case allowed a direct appeal to this Court from the Railroad Commission, which was a rule-making agency charged with setting tariffs and rates (a legislative function, not a quasijudicial function). I fail to find Dodd distinguishable. While the full Commission is quasijudicial in nature and, thus, is imbued with some indicia of a court of record, its orders are not decisions rendered “by a court clothed with judicial authority and acting in a judicial capacity.” Dodd, 61 So. at 743.

¶ 30. The state Constitution does not provide the Legislature the authority to confer jurisdiction over direct appeals from the Commission to this Court. Our jurisdiction is “not an unlimited appellate jurisdiction over any matter or thing arising either in courts or out of courts which the wisdom or folly of any future Legislature might see fit to confer or impose upon” this Court. Dodd, 61 So. at 743. Consequently, this Court does not have jurisdiction over Johnson’s direct appeal. As such, the proper disposition is to dismiss this appeal. Otherwise, the Supreme Court of Mississippi will become the first, last, and only court to pass upon this and all future Mississippi workers’ compensation cases in which appeals from the Commission are taken.

WALLER, C.J., CARLSON, P.J., AND CHANDLER, J., JOIN THIS OPINION.

      . Miss.Code Ann. § 71-3-51 (Rev. 2011).

      . The order also granted the Attorney General of Mississippi leave to submit an amicus brief, under Mississippi Rule of Appellate Procedure 44, on the constitutionality of the statute.

      . Thoms v. Thoms, 928 So.2d 852, 855 (Miss.2006) (citing Austin v. Wells, 919 So.2d 961, 964 (Miss.2006)).

      . City of Starkville v. 4-County Elec. Power Ass'n, 909 So.2d 1094, 1112 (Miss.2005) (citing Richmond v. City of Corinth, 816 So.2d 373, 375 (Miss.2002)).

      . Smith v. Braden, 765 So.2d 546, 557-58 (Miss.2000) (citing Loden v. Miss. Pub. Serv. Comm'n, 279 So.2d 636, 640 (Miss.1973)).

      . Dye v. State ex. rel. Hale, 507 So.2d 332, 349 (Miss.1987) (emphasis omitted) (citing State ex. rel. Greaves v. Henry, 87 Miss. 125, 40 So. 152, 154(1906)).

      . Miss.Code Ann. § 71-3-51 (Rev. 2011).

      . Miss. Const, art. 6, § 146 (1983),

      . See Glenn v. Herring, 415 So.2d 695 (Miss.1982) (statute allowing parties to appeal if judge failed to enter final decree within six months violated Section 146 because it conferred appellate jurisdiction on Supreme Court when no final decree had been entered). See also Illinois Cent. R.R. Co. v. Dodd, 105 Miss. 23, 61 So. 743 (1913); Yazoo Cent. R.R. Co. v. Wallace, 90 Miss. 609, 43 So. 469 (1907).

      . Miss. Const, art. 6, § 146 (1984).

      . Dodd, 105 Miss. 23, 61 So. 743 (1913); Wallace, 90 Miss. 609, 43 So. 469 (1907).

      . Black’s Law Dictionary 405 (9th ed. 2009).

      . Glenn v. Herring, 415 So.2d 695, 697 (Miss.1982).

      . Miss.Code Ann. § 71-3-47 (Rev. 2011).

      . Miss.Code Ann. § 71-3-49 (Rev. 2011).

      .H.R. 1078, 2011 Leg., Reg. Sess. (Miss.2011). Article 6, Section 156 authorizes the Legislature to grant appellate jurisdiction to the circuit court. Miss. Const, art. 6, § 156 (1890).

      . Gregg v. Natchez Trace Elec. Power Ass'n, 64 So.3d 473, 474 (Miss.2011).

      . Id. at 474-78 (emphasis added).

      . Miss. Const. art. 6, § 172 (1890) ("The legislature shall, from time to time, establish such other inferior courts as may be necessary, and abolish the same whenever deemed expedient.”).

      . Miss.Code Ann. § 73-3-51 (Rev. 2011).

      . Herring, 415 So.2d at 697.

      . Dodd, 105 Miss. 23, 61 So. 743 (1913).

      . Miss.Code Ann. § 71-3-51 (Rev. 2011) (emphasis added).

      . Dodd, 61 So. at 743 (quoting State Auditor v. Atchison, T. & S.F.R. Co., 6 Kan. 500 (1870)).

      . Id.

      . I add that Mississippi is not unique in permitting direct appeals of workers’ compensation matters to the state supreme court. See Idaho Code Ann. § 72-724; Mont.Code Ann. § 39-71-2904; Neb. Rev. St. Ann. § 48-185; N.H.Rev.Stat. Ann. § 281-A:43(I)(c); 85 Okla. St. Ann. § 340(D).

      . The prior version of Section 71-3-51 used “circuit court” in place of "Supreme Court," but was otherwise identical to the quoted excerpt. Miss.Code Ann. § 71-3-51 (2010).

      . Given that I would characterize the Commission as a quasijudicial body, I reject the majority’s conclusion that, in passing Section 71-3-51, the Legislature created an inferior court under Article 6, Section 172, of the Mississippi Constitution when it granted the Commission the power and authority to make decisions that are “conclusive and binding.”


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Karen R. THOMPSON, Appellant v. DUNG THI HOANG NGUYEN, Appellee.
    No. 2009-CA-01147-COA.
    Court of Appeals of Mississippi.
    Feb. 1, 2011.
    Rehearing Denied Aug. 16, 2011.

      Kristopher W. Carter, Ocean Springs, attorney for appellant.
    H. Benjamin Mullen, Pascagoula, Jessica B. McNeel, attorneys for appellee.
    Before KING, C.J., BARNES and CARLTON, JJ.
   KING, C.J.,

for the Court:

¶ 1. This case arises from an automobile accident in which Karen Thompson was rear-ended at a stop light by Dung Thi Hoang Nguyen. Thompson filed suit against Nguyen seeking compensatory damages for injuries that allegedly resulted from the collision. A jury sitting in Jackson County Circuit Court found in favor of Thompson but awarded only a fraction of the requested damages. Subsequently, Thompson filed a motion to reconsider and to vacate the judgment, which was denied. Thompson has appealed raising the following issues: (1) whether the trial court erred by failing to grant her motion for a directed verdict on the issue of liability, (2) whether the trial court erred by failing to grant a motion for additur or, in the alternative, a new trial on damages alone, and (3) whether the trial court erred by refusing proposed peremptory jury instructions PIA and P7A regarding liability and refusing proposed jury instructions P9A, P10A, and P11A, explaining how to calculate damages.

¶ 2. Finding the trial court erred, we reverse, render, and remand for a new trial on damages.

FACTS

¶ 3. On March 14, 2002, while Thompson was stopped at a red light, Nguyen collided with Thompson’s rear bumper. Because there was no obvious vehicular damage or injury to either of the passengers, the parties exchanged information and left the scene of the accident. Later that day, Thompson contacted Nguyen and requested that they meet at the police station to prepare an accident report. Nguyen obliged. There was no further contact between the parties until Thompson filed suit against Nguyen.

¶ 4. A few days after the accident, Thompson began experiencing pain in her neck and made an appointment with her primary-care physician, Dr. James Martin. During the appointment, Dr. Martin realized that Thompson suffered from degenerative disc disease and recommended physical therapy. Thompson re-visited Dr. Martin claiming that physical therapy was not alleviating the pain; therefore, Dr. Martin referred Thompson to Dr. Oliver Lee Kesterson, a neurosurgeon. In an effort to alleviate Thompson’s pain, Dr. Kesterson performed two surgeries and prescribed another session of physical therapy for post-operative rehabilitation.

¶5. On June 17, 2004, Thompson filed her original complaint alleging that Nguyen negligently caused her vehicle to collide with Thompson’s vehicle. Thompson sought $234,316.49 in compensation for medical expenses and compensation for her pain and suffering resulting from her injuries allegedly caused by the collision. Thompson provided an itemization of her medical expenses as follows: hospital bills, $142,648.50; Dr. Kesterson, $50,310; Dr. Martin, $4,245; Physical Therapy Solutions, $9,131; rehabilitation expenses, $2,075; radiology expenses, $558; pharmacy expenses, $1,394.15; and expenses paid to doctors’s offices, $23,954.84. In her answer to the complaint, Nguyen admitted fault for the accident but contested the issues of causation and the amount of damages. The ease went to trial on May 11, 2009.

¶ 6. During trial, Thompson testified to being injured as a result of the automobile accident. Thompson stated that she did not have neck or shoulder pain prior to the accident. During cross-examination, Thompson admitted that she had been in a previous accident, but she believed the previous accident was irrelevant to the collision with Nguyen.

¶7. Thompson introduced the depositions of Dr. Kesterson, Dr. Martin, and the physical therapists at Physical Therapy Solutions, Ruth Bosarge and Ann Godfrey. Dr. Martin confirmed that Thompson had made no complaints of neck pain prior to the accident and that Thompson made an appointment with his office within four days after the accident. During the initial appointment, Dr. Martin documented abrasions typical of seat-belt trauma, referred Thompson to Physical Therapy Solutions for physical therapy in order to ease her neck pain, and prescribed an MRI that resulted in the discovery of disc degeneration. Dr. Martin testified to a reasonable degree of medical certainty that Thompson’s injuries were “caused or at least aggravated by that accident.” Godfrey and Bosarge testified that Thompson suffered from disc pain and muscle spasms. Finally, Dr. Kesterson testified that Thompson suffered from degenerative disc disease prior to the accident, but the symptoms that required the two surgeries were related to the accident.

¶ 8. After Thompson rested, Nguyen took the stand and accepted responsibility for causing the collision. According to Nguyen, Nguyen stopped her car behind Thompson’s at a red light. After stopping, Nguyen’s foot rolled off the brake pedal, causing her car to strike the rear of Thompson’s car. Nguyen testified that there was no visible damage to either car and that neither party claimed injury immediately after the accident. After Nguyen presented her defense, Thompson moved for a directed verdict. The trial court denied the motion and held that there were material facts in dispute as to whether all, or part of, Thompson’s damages were causally related to the accident with Nguyen.

¶ 9. After beginning deliberation, the jury submitted several questions to the trial court. The questions from the jury and responses from the trial court are as follows:

JURY: Can we see the police report?
COURT: You’ve received all the evidence that was introduced during the course of the trial. Please continue your deliberations.
JURY: Where [sic] the transcripts of the videos entered into evidence? If yes, we do not have [them].
COURT: Court procedure doesn’t allow transcripts of depositions read during trial to be introduced into evidence. These transcripts were not admitted.
JURY: Can we have a dictionary (preferably medical)?
COURT: No. Please continue your deliberations.
JURY: We feel we have too much information to fully & reasonably make a decision. Is there any chance that we can return for more careful and lengthy deliberations tomorrow?
(Jury dismissed overnight).
JURY: We would like to speak [with] you in private. Do we need to write two statements?
COURT: It would not be possible for the judge to meet privately with the jury after deliberations have begun. If you are - in need of further instructions or guidance please communicate your questions in writing and the court will respond if necessary.

¶ 10. After several hours of deliberation, the jury returned a verdict in favor of Thompson and awarded $9,131 in damages. The award of $9,131 is the exact amount Thompson requested as compensation for the total of her physical-therapy bills. Thompson filed a motion for an additur or, in the alternative, for a new trial on damages only. The trial court denied the motion, and Thompson filed this appeal.

ANALYSIS

I. Directed Verdict

¶ 11. Thompson argues that the trial court erred in denying her motion for a directed verdict on the issue of liability. Mississippi Rule of Civil Procedure 50 requires the trial court to grant a directed verdict if any verdict other than the one directed would be erroneous as a matter of law. Kussman v. V. & G Welding Supply, Inc., 585 So.2d 700, 702 (Miss.1991). A trial court must consider all of the evidence in the light most favorable to the non-moving party in making its determination. Fox v. Smith, 594 So.2d 596, 603 (Miss.1992). On review, an appellate court must determine “whether the evidence, as applied to the elements of a party’s case, is either so indisputable, or so deficient, that the necessity of a trier of fact has been obviated.” Solanki v. Ervin, 21 So.3d 552, 556 (¶ 8) (Miss.2009) (citations omitted). This Court will review the grant or denial of a motion for a directed verdict de novo. Id.

¶ 12. Thompson’s claim is a negligence action. The elements of negligence include (1) duty, (2) breach of duty, (3) causation, and (4) damages. Fisher v. Deer, 942 So.2d 217, 219 (¶ 6) (Miss.Ct.App.2006) (citation omitted). This Court has held that duty and breach establish negligence, while causation and damages establish that the plaintiff is entitled to recover on the basis of that negligence. Id.

¶ 13. Thompson presented evidence that when the accident occurred, she was stopped at a red light, and Nguyen collided with her rear bumper. Nguyen' testified that her negligence caused the accident and that she was willing to accept responsibility for her negligence. Because Nguyen testified that her negligence caused the collision, the trial court erred in denying Thompson’s motion for a directed verdict on the issue of Nguyen’s liability.

¶ 14. Nguyen argues that the denial of Thompson’s motion for a directed verdict should be considered harmless error because the jury subsequently returned a verdict in Thompson’s favor. Where a jury verdict on the point at issue provides the appealing party the most favorable result he could have received had the trial court handled the point correctly, errors in failing to provide a directed verdict or peremptory instruction regarding liability should be deemed harmless. Pickering v. Industria Masina I Traktora, 740 So.2d 836, 845 (¶ 43) (Miss.1999) (citation omitted).

¶ 15. Given the record before this Court, we are unable to say that Thompson received the most favorable result. The testimony was that Thompson had a pre-existing condition, which was asymptomatic until the auto collision. Thompson’s asymptomatic disc degeneration was aggravated by the automobile collision. Thompson incurred medical expenses in excess of $234,316.49 in treating the previously asymptomatic injury. The medical expenses were testified to as being reasonable and necessary. Additionally, the testimony was unrefuted that Thompson could now expect long-term problems from the previously asymptomatic injury.

¶ 16. There is a substantial discrepancy between the amount of damages proven by Thompson and the amount of damages awarded by the jury. The jury found in favor of Thompson but only awarded a portion of Thompson’s proven medical expenses. Thompson is entitled to all past, present and future medical damages and compensation for pain and suffering proximately caused by Nguyen’s negligence. See Sharp v. Odom, 743 So.2d 425, 432 (¶ 12) (Miss.Ct.App.1999). Thompson submitted medical bills equal to $234,316.49, but the jury only awarded $9,131. The discrepancy suggests that the verdict may have been unresponsive to the evidence, further suggesting that Thompson did not receive the most favorable result. See Dunn v. Jack Walker’s Audio Visual Ctr., 544 So.2d 829, 833 (Miss.1989). Accordingly, the trial court’s error in denying Thompson’s request for a directed verdict on the issue of liability cannot be considered harmless. We reverse and render on this issue.

II. Additur

¶ 17. Thompson argues that the damages awarded were insufficient compensation for her injuries suffered and that the trial court erred in failing to grant a motion for additur or, in the alternative, a new trial on the sole issue of damages. The law on the subject of additurs is stated within Mississippi Code Annotated section 11-1-55 (Rev.2002):

The supreme court or any other court of record in a case in which money damages were awarded may overrule a motion for a new trial or affirm on direct or cross appeal, upon condition of an addi-tur or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence. If such additur or remittitur be not accepted then the court may direct a new trial on damages only. If the additur or remitti-tur is accepted and the other party perfects a direct appeal, then the party accepting the additur or remittitur shall have the right to cross appeal for the purpose of reversing the action of the court in regard to the additur or remitti-tur.

¶ 18. In reviewing a trial court’s grant or denial of an additur, this Court applies an abuse-of-discretion standard of review. Maddox v. Muirhead, 738 So.2d 742, 743 (¶ 5) (Miss.1999). In this case, Thompson bears the burden of proving her damages, and this Court will view the evidence in the light most favorable to Nguyen. Id. The Mississippi Supreme Court has consistently held that: “Awards set by jury are not merely advisory and generally will not be ‘set aside unless so unreasonable as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous.’ ” Id. Additurs should never be employed without great caution. Gibbs v. Banks, 521 So.2d 658, 659 (Miss.1988).

¶ 19. Thompson testified to being injured as a result of the automobile accident. Thompson stated that she did not have neck or shoulder pain prior to the accident. Dr. Martin confirmed that there had been no complaints prior to the accident and that Thompson made an appointment with his office four days after the accident. During the initial appointment, Dr. Martin documented abrasions typical of seat-belt trauma, referred Thompson to Physical Therapy Solutions for physical therapy in order to ease her neck pain, and prescribed an MRI that resulted in the discovery of disc degeneration. Dr. Martin testified to a reasonable degree of medical certainty that Thompson’s injuries were “caused or at least aggravated by that accident.” Godfrey and Bosarge, both treating physical therapists, testified that Thompson suffered from disc pain and muscle spasms. Finally, Dr. Kesterson testified that Thompson suffered from degenerative disc disease prior to the accident, but the symptoms requiring the two surgeries were related to the accident. Dr. Kesterson testified that after he performed two surgeries, he referred Thompson to Physical Therapy Solutions for postoperative rehabilitation.

¶ 20. The law is clear that Thompson is entitled to all past, present, and future medical damages and compensation for pain and suffering proximately caused by Nguyen’s negligence. See Sharp, 743 So.2d at 432 (¶ 12). Thus, Thompson sought an additur claiming that the jury incorrectly awarded her only a portion of her reasonable and necessary medical bills and that the jury failed to include an award for pain and suffering.

¶ 21. “Each case involving the issue of additur must ‘necessarily be decided on its own facts.’ ” Leach v. Leach, 597 So.2d 1295, 1297 (Miss.1992). In this case, Thompson submitted medical bills equal to $234,316.49, but the jury only awarded Thompson $9,131. “It is the jury [that] determines the weight of the testimony and the credibility of the witnesses at trial[,] and it is the primary province of the jury to determine the amount of damages to award.” Teasley v. Buford, 876 So.2d 1070, 1075 (¶ 8) (Miss.Ct.App.2004) (citing Burge v. Spiers 856 So.2d 577, 580 (¶ 9) (Miss.Ct.App.2003)). During the trial, Thompson’s credibility was drawn into question because her testimony at trial and her deposition differed. Additionally, pictures of the vehicle, taken after the accident, were introduced into evidence and documented no damage. Thompson further testified that she had been in a previous accident, but she believed concealing that fact to be appropriate because she found the previous accident to be irrelevant in regard to the consequences of the accident with Nguyen.

¶ 22. Even so, we find the jury’s award to be unreasonable. The jury’s award was less than four percent of Thompson’s actual medical expenses, and the evidence seems to support Thompson’s argument that the jury failed to include damages for pain and suffering.

¶ 23. As an alternative to additur, Thompson requests a new trial on the sole issue of damages. “Proper bases for granting a motion for new trial are “when the verdict is against the overwhelming weight of the evidence, or when the jury has been confused by faulty jury instructions, or when the jury has departed from its oath and its verdict is a result from bias, passion, and prejudice.’ ” Knight v. Brooks, 881 So.2d 294, 297 (¶ 10) (Miss.Ct.App.2004) (citations omitted).

¶ 24. The behavior of the jury during deliberation suggests that the jury was confused by the jury instructions. On the day the trial concluded, the jury deliberated well into the evening and could not reach a conclusion. The jury requested more time, stating: “We feel we have too much information to fully [and] reasonably make a decision. Is there any chance we can return for more careful and lengthy deliberations tomorrow?” While in deliberation, the jury requested a copy of the police report, transcripts of the video testimony, a medical dictionary, and a private meeting with the judge.

If 25. The deliberation concluded with the jury finding in favor of Thompson and awarding a portion of the damages requested. “Generally, ‘the only evidence of corruption, passion, prejudice or bias on the part of the jury is an inference, if any, to be drawn from contrasting the amount of the verdict with the amount of the damages.’ ” Green v. Grant, 641 So.2d 1203, 1209 (Miss.1994) (citations omitted). In this case, the jury awarded the exact amount Thompson requested as compensation for her physical-therapy treatments. The amount requested for physical therapy combined two prescribed treatment sessions: the general rehabilitation prescribed by Dr. Martin and, later, postoperative rehabilitation prescribed by Dr. Kesterson. The verdict does not suggest that damages were awarded for visits to either doctor who would have had to prescribe the physical therapy, as compensation for any medical treatments besides physical therapy, or as compensation for pain and suffering.

¶ 26. The award constituting the exact amount attributed to physical therapy could be a coincidence; however, a logical inference.suggests that the jury may have intentionally awarded only the expenses attributed to physical therapy. The discrepancy between the amount of damages Thompson requested, $234,316.49, and the verdict, $9,131, coupled with the continuous requests from the jury while in deliberation, suggests that the jury was confused by the jury instructions or departed from its oath, and the verdict is a result of bias, passion, and prejudice. Therefore, the trial court erred in denying Thompson’s motion for a new trial on the sole issue of damages. Accordingly, we reverse and remand for a new trial on the issue of damages.

III. Jury Instructions

¶ 27. Thompson argues the trial court erred by failing to grant a peremptory jury instruction regarding liability and/or a jury instruction explaining how to calculate medical damages. When reviewing jury instructions on appeal, this Court must consider the instructions as a whole with no one instruction read alone or taken out of context. Teasley, 876 So.2d at 1078 (¶ 19) (citations omitted). When the instructions read as a whole “fairly announce the law of the case and create no injustice, no reversible error will be found.” Id.

¶28. Thompson claims that the trial court erred by failing to grant a peremptory instruction on the issue of liability. Specifically, Thompson alleges that the trial court erred in refusing the following jury instructions PIA and P7A, respectively, which stated:

“The Court instructs you to find for the Plaintiff, Karen R. Thompson.”
“We, the jury, find for the plaintiff, Karen R. Thompson, and assess her damages at $-.”

¶29. The trial court denied the above peremptory instructions, while granting jury instruction D8, which stated:

The Court instructs the jury that when any nine (9) or more of you reach a verdict, you may return that verdict as the verdict of the jury. The form of your verdict should be as follows:
1. If your verdict is for the Plaintiff, then the form of your verdict should be: “We, the jury, find for the Plaintiff, KAREN R. THOMPSON, and assess her damages $-.
2. If your verdict is for the Defendant, then the form of your verdict should be: “We, the jury, find for the Defendant, DUNG THI HOANG NGUYEN.”
You should write your verdict on a separate sheet of paper provided to you by the Court, but it need not be signed by any of you.

¶ 30. Nguyen admitted liability for the accident. “It is error for the court to grant instructions which are likely to mislead or confuse the jury as to the applicable law.” Fisher, 942 So.2d at 220 (¶ 11) (citation omitted). Since Nguyen admitted negligence and the uncontradicted testimony was that Thompson’s asymptomatic condition was, at the very least, aggravated by Nguyen’s negligence, the jury could not return a verdict in Nguyen’s favor.

¶ 31. Thompson further claims the trial court erred by refusing jury instructions explaining the applicable law to be applied in determining the award of damages. Specifically, Thompson alleges that the trial court erred in refusing the following jury instructions, P9A and P10A, respectively, which stated:

You are instructed that if you find that any of Karen Thompson’s injuries were proximately caused or exacerbated by the automobile accident that is the subject of this lawsuit, you must award Karen Thompson all reasonable and necessary medical expenses incurred as a result of such injuries.
You are instructed that if you award Karen Thompson medical expenses for injuries incurred or exacerbated as a result of the accident which is the subject of this lawsuit, you must award Karen Thompson damages for all pain and suffering that you find she experienced as a result of such injuries. This includes past, present and future pain and suffering.

¶ 32. Thompson is entitled to have jury instructions given which present her theory of the case. Coho Resources, Inc. v. McCarthy, 829 So.2d 1, 23 (¶ 69) (Miss.2002) (quoting Higgins v. State, 725 So.2d 220, 223 (¶ 16) (Miss.1998)). Both parties stipulate that jury instructions P9A and P10A are accurate statements of law, but Nguyen claims the error in refusing to grant the instructions was harmless because the jury was fully and fairly instructed by other instructions. Id.

¶ 33. A review of the record reveals no other instruction was granted to explain the applicable law as to what damages must be awarded. The law is clear in that the jury must award compensatory damages, inclusive of reasonable and necessary medical expenses and pain and suffering, proximately caused by the act of negligence. See Matkins v. Lee, 491 So.2d 866, 868 (Miss.1986). Jury instruction P6A was granted regarding how to award damages, but it instructs the jury to consider past, present, and future physical pain and suffering and past, present, and future reasonable and necessary medical expenses.

¶ 34. , Jury instruction P6A stated:

You are instructed that just and fair compensation is a decision to be made by the jury. Your discretion as to the measure of damages is wide, but not unlimited, and you may not act arbitrarily. Exercise- your discretion as to the amount of damages reasonably, intelligently and in harmony with the evidence of the case and the Court’s instructions. The damages for personal injury cannot be assessed by any fixed rule, but you are the only judge as to the measure of damages in this case.
You may consider the following factors to determine the amount of damages to award as may be shown by a preponderance of the evidence:
1. The type of injuries to the plaintiff and their duration;
2. Past, present and future physical pain and suffering and result in loss of enjoyment of life, if any; and
3. Reasonable and necessary medical expenses already incurred and those which are reasonably probable to be incurred in the future, if any.

¶ 35. Finally, Thompson claims that the trial court erred in refusing jury instruction P11A, which provided the jury with a special-verdict form. The language of the instruction was as follows:

Please fill out the form below for all of Karen Thompson’s damages that you find were proximately caused or exacerbated by the accident that is the subject of this litigation:
1.Past Medical expenses:
2.Future Medical expenses:
3.Past Pain and Suffering:
4.Future Pain and Suffering:
5.TOTAL of the above:
Your verdict should read as follows: “We, the jury, award the Plaintiff, Karen R. Thompson, damages in the amount of $ — .”

¶ 36. Mississippi Rule of Civil Procedure 49(b) provides for special jury instructions and allows submission to the jury of “any issue of fact raised by the pleadings or by the evidence.” Jones v. Westinghouse Elec. Corp., 694 So.2d 1249, 1251 (Miss.1997). An instruction pursuant to Rule 49(b) may have eliminated any confusion as to how to calculate damages. See Larkin v. Perry, 427 So.2d 138, 139 (Miss.1983).

¶ 37. Had the trial court adopted Thompson’s form of the special-verdict jury instruction, there would be no question as to the basis of the jury’s action. A proper basis for granting a new trial is when the jury has been confused by faulty jury instructions. Knight, 881 So.2d at 297 (¶ 10). Considering the facts of this case and in reading the instructions as a whole, the trial court erred by refusing a peremptory jury instruction regarding liability and refusing a jury instruction explaining how to calculate damages. Furthermore, the jury continuously posing questions to the court during deliberation suggests that the jurors were confused by the instructions. For the foregoing reasons, we reverse and remand for a new trial on damages.

¶ 38. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY IS REVERSED, RENDERED, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE AND MYERS, P.JJ., IRVING, ISHEE AND CARLTON, JJ„ CONCUR. GRIFFIS, ROBERTS AND MAXWELL, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. BARNES, J„ CONCURS IN RESULT ONLY WITHOUT SEPARATE OPINION.


author: ROBERTS, J.,

text:
    Phillip Earl YOUNG, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00825-COA.
    Court of Appeals of Mississippi.
    Aug. 9, 2011.
    Rehearing Denied Jan. 10, 2012.
    Certiorari Denied April 19, 2012.

      Erin Elizabeth Pridgen, Martin Bradley Mills, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. A jury sitting before the Rankin County 'Circuit Court found Phillip Young guilty of felony evasion and burglary of an automobile. The circuit court found that Young qualified for enhanced sentencing as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev.2008) and sentenced Young to life in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole or probation. Following his unsuccessful post-trial motions, Young appeals. Young argues that there was insufficient evidence to find him guilty of burglary of an automobile. Additionally, Young claims that the overwhelming weight of the evidence indicated that he was guilty of misdemeanor fleeing, instead of felony evasion. Finally, Young contends that the circuit court erred when it sentenced him as a habitual offender pursuant to section 99-19-83. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. This appeal stems from events that were set into motion when Young decided to siphon fuel from an eighteen-wheeler that was parked near Roses Discount Store in Pearl, Mississippi. That eighteen-wheeler belonged to Ricky Sherman. Sherman had left his eighteen-wheeler in the parking lot while he and his wife, Deborah, took a trip on their motorcycle. As they were returning home, the Sher-mans went past Roses Discount Store. He saw another eighteen-wheeler parked unusually close to his. Sherman pulled into the parking lot to investigate.

¶ 3. Sherman discovered that Young was using an electric pump to siphon the fuel from Sherman’s eighteen-wheeler. Young fled when Sherman confronted him. The Shermans called 911 as they followed Young through several neighborhoods and eventually onto 1-20, where several law-enforcement officers began to follow Young. For the next forty minutes, law-enforcement officers followed Young as he drove his eighteen-wheeler in a counterclockwise loop around Jackson, Mississippi. Young traveled west on 1-20, then north on 1-55, and finally south on 1-220. On multiple occasions, law-enforcement officers attempted to flatten Young’s tires with spike strips, but Young drove around them. However, as Young approached the Clinton Boulevard exit off of 1-220, law-enforcement officers put out a set of spike strips that Young was not able to avoid. With his tires disabled, Young attempted to flee on foot. He was quickly detained by law-enforcement officers.

¶ 4. Young was later indicted on five counts: felony evasion, two counts of aggravated assault of a law-enforcement officer, aggravated assault, and automobile burglary. The prosecution opted to dismiss one of the two counts of aggravated assault of a law-enforcement officer. On March 23, 2010, Young went to trial. The jury found Young not guilty of aggravated assault of a law-enforcement officer and aggravated assault. However, the jury found Young guilty of felony evasion and burglary of an automobile. The circuit court sentenced Young to one sentence of life in the custody of the MDOC without eligibility for parole or probation. Following his unsuccessful post-trial motions for a judgment notwithstanding the verdict (JNOV) or a new trial, Young appeals.

ANALYSIS

I. BURGLARY OF AN AUTOMOBILE

¶ 5. Young argues that there is insufficient evidence to find him guilty of automobile burglary. According to Young, because he did not enter Sherman’s eighteen-wheeler when he siphoned Sherman’s fuel, the jury could have only found him guilty of larceny. Young requests that we reverse the judgment of conviction for automobile burglary and render a judgment of acquittal.

¶ 6. “A motion for a [JNOV] is a challenge to the sufficiency of the evidence.” Gilbert v. State, 934 So.2d 330, 335 (¶ 9) (Miss.Ct.App.2006). As our Mississippi Supreme Court has stated:

in considering whether the evidence is sufficient to sustain a conviction in the face of a motion for ... [a JNOV], the critical inquiry is whether the evidence shows beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.... [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Should the facts and inferences considered in a challenge to the sufficiency of the evidence point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render.

Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citations and quotations omitted). However, this Court will determine that there was sufficient evidence to sustain the jury’s verdict if the evidence was “of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense.” Id. (internal citations and quotations omitted).

¶ 7. Count V of the indictment charged Young with burglary of Sherman’s eighteen-wheeler. Mississippi Code Annotated section 97-17-33(1) (Rev.2006) provides as follows:

Every person who shall be convicted of breaking and entering, in the day or night, any ... automobile, truck or trailer in which any goods, merchandise, equipment or valuable thing shall be kept for use, sale, deposit, or transportation, with intent to steal therein, or to commit any felony ... shall be guilty of burglary, and imprisoned in the penitentiary not more than seven (7) years.

The precise issue is whether siphoning fuel from a vehicle qualifies as burglary of an automobile. This is a case of first impression in Mississippi. Young claims the circuit court should have granted his motion for a JNOV because he never “entered” Sherman’s eighteen-wheeler when he siphoned Sherman’s fuel from an exterior fuel tank. Young cites Smith v. State, 881 So.2d 908, 910-11 (¶ 11) (Miss.Ct.App.2004) and draws our attention to the fact that, in that case, the theft of rims was sufficient to convict a defendant of grand larceny. Young argues that the theft of fuel from an exterior fuel tank must likewise be grand larceny. Young finds further support of his position from the fact that one is guilty of petit larceny if he adds fuel to his vehicle and then drives away from a gas station without paying for that fuel. Miss.Code Ann. § 97-17-43 (Rev.2006).

¶ 8. Young also cites decisions from other states in which convictions for theft or larceny were upheld after defendants siphoned fuel from vehicles. See People v. Caraballo, 188 A.D.2d 607, 591 N.Y.S.2d 76 (N.Y.App.Div.1992); Hensley v. State, 497 N.E.2d 1053 (Ind.1986); Stackowitz v. State, 68 Md.App. 368, 511 A.2d 1105 (1986); State v. Smith, 470 A.2d 793 (Me.1984); Larson v. State, 613 P.2d 1251 (Ala.1980). In R.E.S. v. State, 396 So.2d 1219, 1220 (Fla.Dist.Ct.App.1981), the Florida Court of Appeals held that, under Florida’s burglary statute, siphoning fuel from the tank of a vehicle did not constitute an entry because Florida’s burglary statute contemplated only vehicle compartments “which can be entered either wholly or partially by a person; e.g., engine and passenger compartments, trunks, etc.”

¶ 9. However, the New Mexico Court of Appeals recently distinguished the decision in R.E.S. when it held that “it is apparent that burglary in Florida contemplates the entry of a vehicle compartment large enough to accommodate at least a part of a person and that the theft actually occurred within the vehicle. Not so in New Mexico, where a slight entry by use of an instrument is sufficient.” State v. Muqqddin, 148 N.M. 845, 242 P.3d 412, 416 (2010) (internal citation omitted). The New Mexico Court of Appeals further elaborated that: “A fuel tank — attached as it is, to a vehicle — is unquestionably a part of that vehicle and absolutely necessary for its primary function as a mode of transportation. Any penetration of a vehicle’s perimeter is thus a penetration of the vehicle itself.” Id. at 415.

¶ 10. Although the decision in Muqqddin is not controlling in Mississippi, we find the reasoning in that decision to be persuasive. Particularly in light of our own precedent that “any effort, however slight, such as the turning of a door knob to enter, constitutes a breaking.” Templeton v. State, 725 So.2d 764, 766 (¶ 5) (Miss.1998) (quoting Alford v. State, 656 So.2d 1186, 1190 (Miss.1995)). “It does not matter that the opening used is not intended for human access.” Goldman v. State, 741 So.2d 949, 952 (¶ 8) (Miss.Ct.App.1999). Sherman testified that Young would have had to “push down on [the gas cap] and click it to open [it].” Sherman also testified that Young “had a pump with a long stem stuck down into my tank.” Consequently, the jury heard sufficient evidence that Young’s actions in opening Sherman’s gas cap and inserting a pump into Sherman’s fuel tank qualified as “breaking and entering.” It follows that there was sufficient evidence to find Young guilty of burglary of an automobile. We, therefore, find no merit to this issue.

II. FELONY EVASION

¶ 11. In this issue, Young argues that his conviction for felony evasion is contrary to the overwhelming weight of the evidence. Young claims that the evidence supports a conviction for misdemeanor fleeing in violation of Mississippi Code Annotated section 97-9-72(1) (Rev. 2006), instead of felony evasion in violation of Mississippi Code Annotated section 97-9-72(2) (Rev.2006). Young requests that we reverse the judgment of the circuit court finding him guilty of felony evasion and remand this matter for a new trial.

¶ 12. We are mindful that, as we review the circuit court’s decision to deny a motion for a new trial, this Court “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). The supreme court has further instructed that, when reviewing a trial court’s decision to deny a motion for a new trial:

The motion ... is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather, ... the court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

Id. (footnote and internal citations and quotations omitted).

¶ 13. Section 97-9-72(1) sets forth as follows:

The driver of a motor vehicle ... who willfully fails to obey [a law-enforcement officer’s command to stop a motor vehicle] shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine not to exceed One Thousand Dollars ($1, 000.00) or imprisoned in the county jail for a term not to exceed six (6) months, or both.

Section 97-9-72(2) sets forth as follows:

Any person who is guilty of violating subsection (1) of this section by operating a motor vehicle in such a manner as to indicate a reckless or willful disregard for the safety of persons or property, or who so operates a motor vehicle in a manner manifesting extreme indifference to the value of human life, shall be guilty of a felony, and upon conviction thereof, shall be punished by a fine not to exceed Five Thousand Dollars ($5,000.00), or by commitment to the custody of the Mississippi Department of Corrections for not more than five (5) years, or both.

Accordingly, the determinative feature regarding whether Young was guilty of misdemeanor fleeing or felony evasion is whether the weight of the evidence supports the conclusion that Young drove either “in such a manner as to indicate a reckless or willful disregard for the safety of persons or property” or “in a manner manifesting extreme indifference to the value of human life.”

¶ 14. Young notes that Officer Pat Walker testified that Young did not drive faster than seventy to seventy-five miles per hour during the pursuit. Young also notes Sherman’s testimony that Young did not drive faster than sixty-five to seventy miles per hour. Young concludes that he was not involved in a “high-speed” chase. Young also notes that he neither hit nor attempted to hit any other vehicles. According to Young, “[ejxcept when avoiding spike strips, ... Young stayed in his lane of traffic.” Young draws our attention to the fact that he had been accused of trying to hit a police officer, but the jury found Young not guilty of aggravated assault of a law-enforcement officer.

¶ 15. Next, Young argues that his “last minute decision to take the Interstate 55 exit off of Interstate 20 does not constitute reckless endangerment.” Young further argues that his last-minute decision to take the 1-55 exit “did not result in any accidents and, given ... Young’s normal rate of speed, this decision does not amount to a willful disregard for the safety of others.”

¶ 16. Finally, Young discusses the fact that the circuit court noted that Young ran through a stop sign as he exited and entered the interstate at the Industrial Drive exit off of 1-220. According to Young, “[gjiven that there was no traffic in the area, this is simply too weak evidence.” Young concludes that the “police pursuit does not ‘upgrade’ from a misdemeanor fleeing case to a felony [evasion] case simply because [he] failed to pull over for nearly forty minutes.”

¶ 17. The State’s entire argument under this heading is that: “It is the State’s clear and concise position that the testimony of Officer [Ernie] Scarber and the video (DVD) of his pursuit presented an abundance of credible, legally sufficient evidence by which the jury could find the defendant guilty of felony [evasion].” Notwithstanding the State’s minimal argument under this issue, the evidence at trial indicated that, at the interchange where 1-20 meets 1-55, Young suddenly “snapped” his truck north toward 1-55. When Young did so, multiple law-enforcement vehicles were forced to evade Young and each other. Officer Scarber of the Pearl Police Department testified that he attempted to deploy spike strips, but Young evaded them. As Officer Scarber attempted to get ahead of Young by passing him on Young’s left, Young crossed into Officer Scarber’s lane and prevented Officer Scarber from passing him. Officer Scarber was fifteen to eighteen feet from Young when Young moved into Officer Scarber’s lane. Officer Scarber testified that Young would have hit his patrol car if he had not avoided Young.

¶ 18. Viewed in the light most favorable to the verdict, the jury could have found that Young’s driving evidenced a reckless or willful disregard for the safety of others. Consequently, the jury’s verdict of guilty for felony evasion does not constitute an unconscionable injustice that would warrant a reversal of the circuit court’s decision to deny Young’s motion for a new trial. It follows that we find no merit to this issue.

III. SENTENCE AS A HABITUAL OFFENDER

¶ 19. Young argues that the circuit court erred when it sentenced him to life imprisonment pursuant to section 99-19-88. According to Young, the circuit court erred when it found that Young’s previous conviction for carjacking was a crime of violence. Young claims that the prosecution failed to present any authority that “unarmed carjacking” should be considered a violent crime for the purposes of enhanced sentencing as a habitual offender as set forth in section 99-19-88.

¶ 20. Section 99-19-83 provides as follows:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Young correctly asserts that Mississippi law distinguishes armed carjacking and what Young characterizes as “unarmed carjacking.” However, just because a carjacking does not qualify as “armed carjacking” does not preclude the possibility that violence occurred during the commission of the offense. Mississippi Code Annotated section 97-3-117(1) (Rev.2006) provides as follows:

Whoever shall knowingly or recklessly by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, or attempting to do so, or by any other means shall take a motor vehicle from another person’s immediate actual possession shall be guilty of carjacking.

(Emphasis added). Accordingly, “unarmed carjacking” may qualify as a “crime of violence” for the purposes of enhanced sentencing pursuant to section 99-19-83. One may argue that an accused may properly be convicted of carjacking under section 97-3-117(1) if he “knowingly by sudden or stealthy seizure ... or by any other means” takes a motor vehicle from another person’s “immediate actual possession” without any requirement that the prosecution prove that the accused employed violence, force, or the threat of force. Such is of no consequence to Young, because the prosecution proved that in Young’s prior unarmed carjacking felony conviction, Young employed violence and force against the victims of that crime.

¶ 21. During the bifurcated sentencing proceeding, the prosecution noted that Young had appealed his prior conviction for “unarmed carjacking.” The prosecution further noted that Young’s appeal had been affirmed by this Court in Young v. State, 962 So.2d 110 (Miss.Ct.App.2007). The facts of Young’s previous conviction were discussed at length in that decision. To be precise, the facts of Young’s prior conviction for carjacking are as follows:

Martha Grant testified that she and Jerry Parker, her boyfriend at the time and husband at the time of trial, were washing their vehicles at the Double Quick car wash on Highway 82 in Indianola, Mississippi, on November 9, 2001. Grant’s vehicle, a white Bonneville, was parked in one stall and both Grant and Parker were washing it and the green Maxima, Parker’s vehicle, was parked in the stall next to them. At the time of the carjacking, Parker had asked Grant to get some more change from the Maxi-ma so that they could finish washing the Bonneville. Grant testified that after she retrieved the change from the Maxi-ma, she was approached by Young from behind and as she turned around Young shoved her and said “give me those damn keys.” Grant then testified that Young “snatched them out of her hand ” and she ran to tell Parker what had happened. Grant further testified that the Maxima stalled as Young tried to drive off and she and Parker had a clear view of Young and he was “grinning at them.” According to Grant, she and Parker then got in the Bonneville and pursued the Maxima down Highway 82 toward Greenville and then onto Road 448 going toward Shaw. At some point on 448, the driver of the Maxima turned off the road and parked briefly, but then turned around and met the Bonneville head on and hit the passenger side of the Bonneville before continuing toward Shaw. No one involved was injured. Grant testified that as she and Parker followed the Maxima they shouted to a friend passing, “Somebody stole Jerry’s car. Call the police.” Grant further stated that after the Maxima had hit them they stopped at a lady’s house somewhere on Road 448 and called the police. According to Grant, the police said they had already received a call about the incident and they were “on their way out there looking for him.” Grant said next they went to the Indian-ola Police Station to give their statements. While at the station, the police brought in Young, in handcuffs, and Grant testified that she stated, “that’s him.” She further stated that no one at the station specifically pointed Young out to her or asked her to identify him. Grant further identified Young in court as the man who had shoved her and driven off in the Maxima from the Double Quick, and as the same man who ran into her and Parker on the county road while they were in pursuit of the Maxi-ma.
The State then presented testimony by Parker, who corroborated Grant’s testimony regarding his and Grant’s presence at the Double Quick on Highway 82 and that a man drove off in the Maxima while they were there attempting to wash their cars. Specifically, Parker testified that after Grant told him that someone had just stolen his car, he ran to the stall where the Maxima was parked and that the car had stalled as Young was attempting to drive off. Parker stated, “I was standing in front of the car. I was looking at the guy that was in the car, and he was looking at me laughing.” He stated that once the car quit stalling, Young drove right toward him and he had to jump out of the way to keep from being hit. Parker testified that he was about five feet from the front of the Maxima when Young drove off and that he got a good look at the driver for about fifteen seconds. Parker further corroborated Grant’s testimony regarding their pursuit of the Maxima and also testified that Young was the driver of the Maxima as it side-swiped them on the county road. Parker testified that after they abandoned their pursuit and called the police, they went to the Indianola Police Station and that while they were there the police brought Young in, in handcuffs. Parker testified that upon seeing Young at the police station, “I told the police officer, the guy that I made the report out to, I told him ‘that’s the guy that stole my car.’ ” Parker also identified Young in the courtroom as the man who drove off in his car at the Double Quick and the same driver as was out on the county road.

Id. at 112-13 (¶¶ 3-4) (emphasis added).

¶ 22. During the bifurcated proceeding, the prosecution informed the circuit court of the facts discussed in Young. As the circuit court held that Young qualified for enhanced sentencing as set forth in section 99-19-83, the circuit court noted that, in Young, Young had shoved the victim from behind and snatched the keys out of her hand. Consequently, the circuit court acted appropriately when it held that Young’s previous conviction for “unarmed carjacking” had been a crime of violence. It follows that we find no merit to this assignment of error.

¶ 23. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, FELONY EVASION, AND COUNT V, AUTOMOBILE BURGLARY, AND SENTENCE OF LIFE AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

LEE, C.J., GRIFFIS, P.J., MYERS, BARNES, ISHEE, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR. IRVING, P.J., NOT PARTICIPATING.


author: GRIFFIS, P.J.,

text:
    Stephen NEWTON, Appellant v. LINCOLN COUNTY, Mississippi, Appellee.
    No. 2010-CA-01675-COA.
    Court of Appeals of Mississippi.
    March 27, 2012.
    Gerald Lee Kucia, attorney for appellant.
    Robert 0. Allen, Brookhaven, John Chadwick Williams, attorneys for appellee.

      Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Stephen Newton filed a lawsuit against Lincoln County, Mississippi and Deputy John Branton based on personal injuries sustained in a car wreck. The circuit court granted a motion for summary judgment filed by Lincoln County and Deputy Branton. Newton now appeals and argues that it was error for the circuit court to grant summary judgment because he substantially complied with the notice requirement of the Mississippi Tort Claims Act (“MTCA”) or Lincoln County and Deputy Branton waived the procedural protections of the MTCA. We find no error and affirm.

FACTS

¶ 2. On July 25, 2008, Newton was driving his vehicle southbound on South First Street, in Brookhaven, Mississippi, near the intersection of Booker Street. Deputy Branton, acting in his official capacity, was driving his vehicle southbound directly behind Newton. The two vehicles collided when Deputy Branton attempted to pass Newton as Newton attempted to make a turn.

¶3. On September 23, 2008, Newton’s attorney sent a letter to Tina Tracy with Zurich North America. The letter stated that the attorney represented Newton in a claim for damages as a result of an accident on July 25, 2008. Newton’s attorney asked for information from Zurich including: the name of insurer(s), name of each insured, certified copies of limits of liability coverage, a statement of any policy or coverage defenses available, and a certified copy of any and all policies. The letter indicated that any prior medical authorizations by Newton were void.

¶ 4. On August 17, 2009, Newton filed a complaint. Lincoln County and Deputy Branton filed a motion to dismiss and, in the alternative, a motion for summary judgment. The circuit court granted the motion for summary judgment, finding that Newton failed to substantially comply with the notice requirements of the MTCA, under Mississippi Code Annotated section 11-46-11 (Rev. 2011).

STANDARD OF REVIEW

¶ 5. The standard of review of an order that grants summary judgment is de novo. Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 546 (¶ 5) (Miss.2009). “The trial court’s decision to grant summary judgment will be affirmed if the record before the Court shows that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law.” Id. at 547 (citations omitted).

ANALYSIS

1. Whether Newton complied, or substantially complied, with the notice requirements of the MTCA.

¶ 6. The MTCA requires that a claimant, who wants to bring a claim against a governmental entity or employee, give the governmental entity notice of the claim. Mississippi Code Annotated section 11-46-11(1) provides:

After all procedures within a governmental entity have been exhausted, any person having a claim for injury arising under the provisions of this chapter against a governmental entity or its employee shall proceed as he might in any action at law or in equity; provided, however, that ninety (90) days prior to maintaining an action thereon, such person shall file a notice of claim with the chief executive officer of the governmental entity. Service of notice of claim may also be had in the following manner: If the governmental entity is a county, then upon the chancery clerk of the county sued; if the governmental entity is a municipality, then upon the city clerk.

(Emphasis added.)

¶ 7. In Arthur v. Tunica County, 31 So.3d 653, 655 (¶ 4) (Miss.Ct.App.2010), this Court held:

In Bunton v. King, 995 So.2d 694, 695 (¶ 7) (Miss.2008) (quoting Mississippi Department of Public Safety v. Stringer, 748 So.2d 662, 665 (¶ 11) (Miss.1999)), our supreme court held that “[t]he notice-of-claim requirement ‘imposes a condition precedent to the right to maintain an action.’ ” The Bunton court further held “the ninety-day notice requirement under section 11-46-11(1) is a hard-edged, mandatory rule which [an appellate court] strictly enforces.” Id. at 696 (¶ 8) (quoting Univ. of Miss. Med. Ctr. v. Easterling, 928 So.2d 815, 820 (¶ 23) (Miss.2006)).

There, the plaintiff failed to provide notice to Tunica County. Arthur, 31 So.3d at 654 (¶ 3). The county filed a motion to dismiss, which the trial court granted. Id. This Court ruled that Arthur failed to provide evidence that he gave the county the required notice, and we affirmed the dismissal of the claim.

¶ 8. Here, there is no evidence that Newton complied with section 11^46-11(1). There is no evidence that Newton sent a notice of claim to the Lincoln County Chancery Clerk. Indeed, Newton does not argue that he met the notice requirement of section 11-46-11(1).

¶ 9. Rather, Newton claims that he substantially complied with the notice requirement when his attorney sent a letter to an insurance-company representative. On September 23, 2008, Newton’s attorney sent this letter addressed to Tina Tracy, Zurich North America:

Re: Our Client: Stephen Newton
Your Insured: Lincoln County Sheriffs Dept.
Date/Loss: 7/25/2008
Claim: 4710118593
Dear Ms. Tracy:
This firm has been retained to represent the above referenced client in a claim for damages against your insured resulting from an accident which occurred on the above date. Please furnish us with copies of any statements that you have obtained from our client concerning this accident. You are required by law to furnish said copies.
Please provide the undersigned with the following information with regard to each known policy of insurance, including excess or umbrella coverage, which may provide liability insurance coverage for this claim.
1. Name of the insurer(s);
2. Name of each insured;
3. Certified copy of limits of liability coverage:
a. personal injury,
b. property damage,
c. medical expenses,
d. personal injury protection,
e. uninsured motorist and any other coverage
4. A statement of any policy or coverage defense which your company reasonably believes is available; and
5. Certified copy of any and all policies.
The requested information must be provided within thirty (30) days from the date of this letter and must include a statement under oath by a corporate officer.
If you have a medical authorization executed by our client, be advised that it is to be considered void as of this notice of representation.Failure to comply with this request will result in further action.
Please direct any further communications with our client regarding this matter to my office to the attention of my Case Manager,....

According to Newton’s response to the motion, on October 13, 2008, Zurich North American notified Newton’s counsel that the claims had been denied.

¶ 10. Newton argues that this letter was sufficient to satisfy the MTCA notice requirement. “The plaintiff must substantially comply with the provisions of the statute ... however, we can hardly afford relief under the applicable statutes when there is no effort to comply with the procedural mandates.” Little v. Miss. Dep't Human Services, 835 So.2d 9, 12-13 (¶ 15) (Miss.2002). We must consider whether this letter was “substantial compliance with the notice requirement of section 11-46-11(1).

¶ 11. Newton’s argument focuses on the purpose of the notice provision. The supreme court has ruled:

The purpose of the notice statute being to advise the city of the accident so that it may promptly investigate the surrounding circumstances, we see no need to endorse a policy which renders the statute a trap for the unwary where such purpose has in fact been satisfied.

Carr v. Town of Shubuta, 733 So.2d 261, 263 (¶ 9) (Miss.1999) (quotation omitted) (overruled on other grounds by Stuart, 21 So.3d at 550 (¶ 11)).

¶ 12. In Stuart, the supreme court determined that strict compliance was not always required. The supreme court held ruled that “[t]he notice requirements in the MTCA are substantive requirements, which are no more or less important than a statute of limitations. The notice requirements in the MTCA are not jurisdictional ... and, therefore, waivable.” Stuart, 21 So.3d at 550 (¶ 11). However, Stuart did not alter the duty to comply with the notice requirement. See id. We will consider waiver in the next section. For now, we consider whether Newton substantially complied with the notice requirement of the MTCA.

¶ 13. The MTCA does not state exactly what governmental entities are to do with the notice. It is reasonable to expect the governmental entity would use the notice to allow it an opportunity to investigate the claim alleged and consider the possibility of settlement prior to the lawsuit being filed.

¶ 14. In Parker v. Harrison County Board of Supervisors, 987 So.2d 435, 439 (¶ 18) (Miss.2008) (quotation omitted), the supreme court held:

Pursuant to Miss.Code Ann. § 11-46-11(2), there are seven required categories of information which must be included. The seven required categories are as follows: (1) the circumstances which brought about the injury; (2) the extent of the injury; (3) the time and place the injury occurred; (4) the names of all persons known to be involved; (5) the amount of money damages sought; (6) the residence of the person making the claim at the time of the injury; and (7) the claimant’s residence at the time of filing the notice. See Miss.Code Ann. § 11^16-11(2). The language of Mississippi] Code Annotated section] 11-46-11(2) clearly states that “every notice of claim shall contain a short and plain statement” addressing these seven categories of information or facts upon which the claim is based and this “shall be in writing.” See Miss.Code Ann. § 11-46-11(2). As such, the language contained in Mississippi] Code Ann[otated section] 11-46-11(2) is mandatory.

The supreme court analyzed two letters sent by the plaintiff to the Harrison County Board of Supervisor’s insurance provider that the plaintiff argued substantially complied with the statute. Parker, 987 So.2d at 439 (¶ 16). The letters failed to contain five out of the seven categories mentioned in Mississippi Code Annotated section 11-46-11(2). Id. at 441 (¶ 21). The supreme court held: “[an appellate court] does not even reach the issue of whether a plaintiff substantially complied with the statute if all seven categories of information are not contained in the notice letter.” Id. at 440 (¶ 19) (citing S. Cent. Reg'l Med. Ctr. v. Guffy, 930 So.2d 1252, 1258 (¶ 19) (Miss.2006)).

¶ 15. Here, the September 23rd letter failed to include the information required in the seven categories. The letter failed to state: (1) any facts regarding the extent of the injury, (2) the place the injury occurred, (3) the names of all persons known to be involved, (4) the amount of money damages sought, (5) Newton’s residence at the time of the injury, and (6) Newton’s residence at the time of the filing. Newton has failed to provide any information for six of the seven required categories. “[T]he failure to provide any of the seven statutorily required categories of information falls short of the statutory requirement and amounts to non-compliance with Mississippi] Code Annotated section] 11-46-11(2).” Id. at 440 (¶ 8).

¶ 16. Accordingly, we find the circuit court did not err in finding that Newton failed to substantially comply with the notice requirements provide in the MTCA. This issue is without merit.

2. Whether the procedural protections of the MTCA were waived.

f 17. Newton also claims that the procedural protections of the MTCA were waived because the purpose of the notice provisions was satisfied. Newton argues that the September 23, 2008, letter to the insurance carrier informed the insurance carrier that he intended to sue Lincoln County and Branton.

¶ 18. In Stuart, the supreme court overruled prior cases that required strict compliance with the notice requirements of section 11-46-11(11). Stuart, 21 So.3d at 550 (¶ 11). Stuart failed to provide the University of Mississippi Medical Center (“UMMC”) the required ninety-day notice in section 11-46-11(1). Id. at 546 (¶ 1). The trial court granted summary judgment and this Court affirmed. Id. The supreme court considered the fact that UMMC engaged in written discovery, depositions and expert disclosures, and waited two and a half years before it filed a motion for summary judgment and claimed that the complaint should be dismissed for failure to comply with the notice provision of the MTCA. Id. at (¶¶ 2-3). It should be noted that the UMMC served an answer that “reserve[d] all rights and defenses accorded to it pursuant to Mississippi] Code Ann[otated section] 11-46-11” but did not specifically assert a defense for failure to provide sufficient notice or request a. stay for the remainder of the statutory period. Stuart, 21 So.3d at 547-48 (¶¶ 7-9). The supreme court ruled:

However, we now take the opportunity to overrule [City of Jackson v.] Lumpkin [697 So.2d 1179 (1999)] and Carr and their progeny, to the extent that these cases characterize the notice requirements set out in Section 11-46-11 as jurisdictional requirements. The notice requirements in the MTCA are substantive requirements, which are no more or less important than a statute of limitations. The notice requirements in the MTCA are not jurisdictional, and we now hold them to be nonjurisdictional and, therefore, waivable.

Stuart, 21 So.3d at 550 (¶ 11). The supreme court concluded that “UMMC waived its objection to Stuart’s noncompliance with Section 11 — 46-11(1).” Id. at 550 (¶12).

¶ 19. Here, we must again begin with the fact that the record does not indicate that Newton complied or substantially complied with the notice provision of section 11-46-11(1). Newton’s complaint was filed on August 17, 2009. Lincoln County and Branton answered on September 30, 2009, and raised as a defense “each and every provision of the [MTCA] Miss. Code Ann. § 11-46-1 et seq., including all conditions precedent, statutes of limitations and immunities contained therein.” On April 7, 2010, Lincoln County and Branton filed their motion to dismiss or, in the alternative, for summary judgment on the ground that Newton failed to comply with the notice provision. It appears that Lincoln County and Branton adequately pled their defense.

¶ 20. Newton did not send notice to the Lincoln County Chancery Clerk. Newton’s attorneys contacted Zurich North American and sent the September 23rd letter. On October 13, 2008, Zurich North American responded:

Based on the facts as reported in this accident, the Mississippi Tort Claims Act provides immunity for police and fire protection employees acting within the scope and course of their duties. Under Mississippi Code Annotated § ll-46-9(c), a governmental entity is exempted from liability for any incident “arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety or well-being of any person not engaged in criminal activity at the time of injury.” As such, we must respectfully deny your claim.

On August 17, 2009, the complaint was filed.

¶ 21. The record here does not contain any evidence that Lincoln County was put on notice of the claim by the insurance carrier. The supreme court has held that “[t]he actions of the carrier may be sufficient to estop the defendant from asserting lack of actual notice.” Smith County Sch. Dist. v. McNeil, 743 So.2d 376, 379 (¶ 17) (Miss.1999). However, in McNeil, the insurance carrier initiated the investigation into the alleged accident occurring at the high school. Id. at (¶ 11). The supreme court found “[i]t is unlikely that the insurance company would have contacted [the plaintiff] without someone from the school district having known about a potential claim and asking the insurance company to check into it.” Id.

¶22. Here, Newton testified that the sheriff gave Newton the insurance company’s number and he gave it to his attorneys. Newton’s attorney contacted the insurance company. The letter does not include the information required. The insurance company stated that the claim was denied and there was no ongoing investigation. There is simply no evidence to indicate that Lincoln County and Branton waived the notice requirements of Mississippi Code Annotated section 11-46-11(1). We find the circuit court did not err in finding the procedural protections of the MTCA applicable to Lincoln County and Branton. This issue has no merit.

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

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