author: LAMAR, Justice,

text:
    RIVERBEND UTILITIES, INC. v. MISSISSIPPI ENVIRONMENTAL QUALITY PERMIT BOARD and Harrison County Utility Authority.
    No. 2012-SA-00699-SCT.
    Supreme Court of Mississippi.
    Jan. 30, 2014.

      Harry R. Allen, Margaret P. McArthur, attorneys for appellant.
    Lisa Thompson Ouzts, Roy Furrh, Jackson, Theodore D. Lampton, III, James C. Simpson, Jr., Gulfport, attorneys for appel-lees.
    Before WALLER, C.J., LAMAR and PIERCE, JJ.
   LAMAR, Justice,

for the Court:

¶ 1. Riverbend Utilities, Inc., challenges the Mississippi Department of Environmental Quality Permit Board’s decision to grant two groundwater withdrawal permits to the Harrison County Utility Authority. Finding no error, we affirm the Permit Board’s decision.

FACTS AND PROCEDURAL HISTORY

¶ 2. Although the issues before this Court are limited, we find that a factual and historical background is helpful in understanding the issues presented for resolution. Following Hurricane Katrina, Governor Haley Barbour “directed that the Mississippi Department of Environmental Quality (MDEQ) develop a regional utility plan to recommend short-and long-term improvements for water, wastewater and stormwater infrastructure development” in the Counties of George, Hancock, Harrison, Jackson, Pearl River, and Stone (the Gulf Region). As a result, MDEQ contracted with the Mississippi Engineering Group, Inc. (MEG) in April 2006 to develop the Mississippi Gulf Region Water and Wastewater Plan (the Plan). On April 18, 2006, the Mississippi Gulf Coast Region Utility Act (the Act) was signed into law with the purpose of consolidating “water, wastewater and stormwater services in order to reduce costs, promote resilience in the event of a disaster, improve the quality of the natural environment, and improve the planning and delivery of quality water, wastewater and stormwater services” within the Gulf Region. Miss.Code Ann. § 49-17-703 (Rev.2012); see Miss Code Ann. §§ 49-17-701 to-775 (Rev.2012). To facilitate its purposes, the Act created the George, Hancock, Harrison, Jackson, Pearl River, and Stone County Utility Authorities.

¶ 3. In developing the Plan, MDEQ and MEG worked with stakeholders in the local communities including the “county utility authorities, public officials, ... leadership from the private sector, and state and regional agencies” in order to identify and prioritize the Gulf Region’s “most critical water, wastewater, and stormwater infrastructure needs.” “[0]ver 300 projects were identified that addressed the perceived infrastructure needs throughout the Gulf Region,” including projects W-13 and W-15 in Harrison County. W-13 was to create a “water supply system to serve the area north of 1-10, the DeLisle Community, and the cities of Pass Christian and Long Beach.” W-15 was to create a “water supply system from Lorraine-Cowan Road area in North Gulfport to Lyman Community.” The Harrison County Utility Authority (HCUA) received local engineering input for W-13’s conceptual design from Brown and Mitchell Engineering, Inc., and for W-15’s conceptual design from Knesal Engineering Services (KES).

¶ 4. After a draft of the Plan was published in November 2006, “a twenty-day public comment period was provided, during which time three public meetings were conducted in the Gulf Region [and i]nput from this public comment process subsequently was integrated into the Plan.” The Plan ultimately was adopted by the United States Department of Housing and Urban Development in 2007 and its adoption was not legally challenged.

¶ 5. The approved designs for W-13 and W-15 cover parts of Riverbend Utilities, Inc.’s (Riverbend) certificated service area. Riverbend is a privately owned, public utility company that has the exclusive right “to provide water services and wastewater treatment within an approximate twenty-three square mile area generally centered at the intersection of County Farm Road and Highway 53 in Harrison County, Mississippi,” pursuant to a certificate of public necessity and convenience from the Mississippi Public Service Commission.,

¶ 6. HCUA wanted to place two wells on land that it owned which was located in Riverbend’s certificated area as a means of providing water to the infrastructure created by projects W-13 and W-15. HCUA was required to get permits for the wells from the Mississippi Department of Environmental Quality Office of Land and Water Resources (MDEQ-OLWR). HCUA submitted the required applications, which Riverbend then protested.

¶ 7. Groundwater withdrawal permits are issued by a Permit Board created by Section 49-17-28 of the Mississippi Code., A hearing was held before the Permit Board on October 13, 2009, following which the Permit Board granted HCUA’s permit applications. Permit MS-GW-16614 (Permit 14) authorized a well that would provide water to W-13’s infrastructure while Permit MS-GW-16631 (Permit 31) authorized a well that would provide water to W-15’s infrastructure. Riverbend asked the Permit Board to reconsider its decision and requested a full evidentiary hearing. On December 11, 2009, the Permit Board notified the parties that a full evidentiary hearing was set for March 9, 2010.

¶ 8. MDEQ, HCUA, and Riverbend all submitted prefiled testimony through affidavits.' MDEQ submitted testimony from Jamie Crawford, the assistant director of MDEQ-OLWR. HCUA presented testimony from William T. Oakley, a consulting hydrologist for HCUA, and Marlin Lad-ner, the vice president of HCUA. River-bend presented testimony from Steven Day, the president and co-owner of River-bend, and James “Jim” Elliot, a consulting civil engineer for Riverbend. William “Bill” Knesal, a consulting civil engineer for Knesal Engineering Services, Inc., and Trudy Fisher, MDEQ’s executive director, were also called as witnesses by Riverbend.

¶ 9. Knesal testified that he proposed an alternative design for W-15 that would not have placed wells in Riverbend’s certificated area. Knesal claimed the original conceptual design was accepted instead of his alternative design so that a federal funding deadline could be met. To the contrary, Fisher testified that the conceptual design was selected for engineering reasons and that the federal funding deadline played no role in W-15’s design selection. MDEQ and HCUA repeatedly objected to Knesal’s and Fisher’s testimony regarding the selection of W-15’s design on the ground of relevance. The healing officer allowed Riverbend to pursue its theory but ultimately found that the approval of the Plan and the selection of W-15’s design were irrelevant to the appropriateness of the issuance of the groundwater withdrawal permits to HCUA.

¶ 10. At the hearing’s conclusion, the Permit Board affirmed its decision to issue the permits to HCUA and later detailed its reasoning in a ten-page Findings of Fact and Conclusions of Law decision. River-bend appealed the Permit Board’s decision to the Harrison County Chancery Court. After hearing oral arguments, the chancery court affirmed the Permit Board’s decision. Following the denial of its motion for reconsideration, Riverbend appealed to this Court and raised the following issues, which have been restated for purposes of clarity:

I. Whether the Permit Board’s decision to grant the Harrison County Utility Authority two groundwater withdrawal permits is sustainable.
II. Whether the permits granted to the Harrison County Utility Authority violate Riverbend’s certificate of public necessity and convenience from the Mississippi Public Service Commission.
Ill Whether the Permit Board erroneously excluded documents and testimony from the March 9, 2010, evidentiary hearing.

¶ 11. Finding no error, we affirm the decisions of the Harrison County Chancery Court and the Permit Board.

LAW AND ANALYSIS

¶ 12. Appeals from the Permit Board “shall be considered only upon the record as made before the Permit Board.” Generally, “trial courts and appellate courts will reverse the decision of an administrative agency only if the decision (1) was unsupported by substantial evidence; (2) was arbitrary and capricious; (3) was beyond the power of the administrative agency to make; or (4) violated the complaining party’s statutory or constitutional right.” However, an agency’s interpretation of a governing statute is subject to de novo review as “[t]he ultimate authority and responsibility to interpret the law, including statutes, rests with this Court.”

¶ 13. Substantial evidence is “something less than a preponderance of the evidence but more than a scintilla or glimmer. [This Court] is concerned only with the reasonableness of the administrative order, not its correctness.”

[A]n agency must clearly explain its fact finding and reasoning for a decision in order to facilitate review by the courts. Conclusory remarks alone do not equip a court to review the agency’s findings. Accordingly, findings on factual issues must be specific enough for the reviewing court to determine whether the decision is supported by substantial evidence.

¶ 14. A decision “is arbitrary or capricious if the agency entirely failed to consider an important aspect of the problem, or offered an explanation for its decision that runs counter to the evidence before the agency or is so implausible that it could not. be ascribed to a difference in view or the product of agency expertise.” “[UJnreasoned preference of one by definition is arbitrary... .We need to know something of the costs and risks associated with each of these conflicting interests before we can on judicial review intelligently consider whether the Board acted arbitrarily or capriciously or whether its decision was supported by substantial evidence.”

I. The Issuance of Harrison County Utility Authority’s Groundwater Permits

¶ 15. The parties disagree about the requirements for a groundwater withdrawal permit. Groundwater withdrawal permits are governed by Title 51, Chapter 3 of the Mississippi Code, namely Sections 51-3-1 and 51-3-13. Section 51-3-1 of the Mississippi Code declares the State’s policy on the conservation of water resources:

It is hereby declared that the general welfare of the people of the State of Mississippi requires that the water resources of the state be put to beneficial use to the fullest extent of which they are capable, that the waste or unreasonable use, or unreasonable method of use, of water be prevented, that the conservation of such water be exercised with the view to the reasonable and beneficial use thereof in the interest of the people, and that the public and private funds for the promotion and expansion of the beneficial use of water resources shall be invested to the end that the best interests and welfare of the people are served.

And Section 51-3-13 states:

Use of waters of the state shall not constitute absolute ownership or absolute rights of use of such waters, but such waters shall remain subject to the principle of beneficial use. It shall be the duty of the board to approve all applications made in such form as shall meet the requirements of this chapter and such rules and regulations as shall be promulgated by the board and which contemplate the utilization of water for beneficial purposes, within reasonable limitations, provided the proposed use does not prejudicially and unreasonably affect the public interest. If it is determined that the proposed use of the water sought to be permitted is not for beneficial purposes, is not consistent with standards established by the commission, or is detrimental to the public interest, it shall be the duty of the board to enter an order rejecting such application or requiring its modification.

A list of factors for the Permit Board to consider when considering a groundwater withdrawal permit is not provided by statute or regulation.

¶ 16. Riverbend focuses on Section 51-S-l’s mandate “that the waste or unreasonable use, or unreasonable method of use, of water be prevented.” It argues that a permit should not be issued unless the applicant shows (1) that there is a present need for the water and (2) that the requested well is part of the most efficient plan to satisfy the need. The Permit Board and HCUA focus on Section 51-3-l’s mandate “that the water resources of the state be put to beneficial use to the fullest extent of which they are capable.” They argue that need and efficiency are irrelevant and that the Permit Board has only to consider the proposed use of the water and the withdrawal’s effect on the aquifer and existing wells.

¶ 17. In light of “the practical understanding that an agency far better understands its daily operations needs than the judiciary ever could,” the Permit Board was given statutory authority to establish requirements for water permits by regulation. The Permit Board has propounded several groundwater regulations which outline, but do not definitively establish, what the Permit Board . must- consider when reviewing groundwater withdrawal permit applications. Regulation LW-2(II)(C) identifies the basic requirements for a groundwater withdrawal permit application:

(1) The application must completely and accurately describe the purpose for the proposed use of water;
(2) Such use must not be prohibited by state or federal statutes or regulations; and
(3) The proposed source of water must be free of Commission-imposed restrictions that preclude processing of the application.

Regulation LW-2(II)(C) goes on to state that “Applications shall be completed using maximum volume of water required, estimated dates for initial use of the water, and estimated values for withdrawal or diversion rates.” The population’s need and efficiency are not mentioned. Section four of Regulation LW-2 specifically addresses groundwater withdrawals:

• LW-2(IV)(B) prioritizes the uses of groundwater withdrawals as follows: 1) public supply, 2) industrial/commercial, 3) livestock, 4) enhancement of wildlife habitat and other recreational uses, and 5) other uses.
• LW-2(IV)(C) addresses well spacing and provides minimum acceptable spacing distances and a means to request an exemption from the spacing requirements.
• LW-2(IV)(D) identifies “once-through, non-contact cooling water” and “uncontrolled free-flowing wells” as non-beneficial uses of water. It also states that “[t]he Permit Board may determine that other discharges/withdrawals of groundwater are not beneficial uses, constitute waste, and/or are prohibited to protect the public interest and may deny permits based on such determinations.” Notably, LW-2(IV)(D) does not state that a lack of need or efficiency constitutes waste.
“Waste” is not otherwise defined by statute or regulation.

The structure of the Groundwater Withdrawals section is telling. It contains subsections on beneficial use, well-spacing, and limitations on water uses but no sections on need or efficiency. Also, LW-2 does not list a change in the population’s needs as a reason to modify a permit. Moreover, MDEQ-OLWR did not have the authority to approve or reject the engineering designs for W-13, W-15, or any other project under the Plan. Design decisions were made by the Office of Pollution Control and the Mississippi Department of Health.

¶ 18. In its Findings of Fact and Conclusions of Law, the Permit Board stated that it is required to consider only the following factors when reviewing a groundwater withdrawal permit:

[WJhether the applicant owns or controls the land upon which the groundwater withdrawal wells will be placed, ... how the permit applicant plans to use the water, ... the amount of water requested, ... whether the wells will be spaced in a manner to avoid interference with existing wells, ... and the projected drawdown of the aquifer.

In light of the applicable statutes and regulations, we find that the factors considered by the Permit Board to analyze groundwater withdrawal permits are reasonable. The Permit Board made specific findings with regard to each of the five factors, and each of its findings was supported by substantial evidence.

1. Ownership of Land

¶ 19. The Permit Board found that “HCUA and/or Harrison County own the land upon which HCUA will install the two wells for the permitted groundwater withdrawal.” This finding was undisputed and was supported by the prefiled testimony of Crawford.

2. Use of Water

¶ 20. The Permit Board found that “HCUA plans to use the water for public water supply.” This is the highest-ranked beneficial use of water. The Permit Board’s finding was supported by the permits themselves and the prefiled testimony of Crawford.

3. Amount of Water

¶ 21. The Permit Board found that “the permits issued to HCUA allow HCUA to pump water at a maximum rate of 1,000 gallons per minute ... [and] only allow withdrawal of up to 350,000 gallons per day per well.” The Permit Board specifically found that “there is sufficient water in the aquifer to supply Riverbend’s and HCUA’s customers’ needs.” This finding was undisputed and was supported by the prefiled rebuttal testimony of Crawford.

4. Well Spacing

¶ 22. The Permit Board found that “the intended placement of the HCUA wells meets the regulatory recommendations for well placement ... [and] that the placement of the HCUA wells at the permitted sites is appropriate and there is no need to require further spacing.” This finding was supported by the prefiled rebuttal testimony of Crawford and the prefiled testimony of Oakley.

5.Drawdown of Aquifer

¶ 23. The Permit Board found that:

Spacing of HCUA’s wells in the permitted location should be sufficient such that aquifer drawdown will be acceptable and there should be no interference with Riverbend’s existing wells. MDEQ did not specifically consider the draw-down caused by Riverbend’s wells in determining the additional impact of the two HCUA wells on the aquifer. However, the water withdrawal permits Riv-erbend holds for its wells are for a relatively small amount of water. This area of Harrison County should not experience any heavy aquifer drawdowns in the near future.

¶ 24. The Permit Board went on to say “[t]here is no evidence that withdrawal of groundwater from the two HCUA wells within Riverbend’s certificated area would have a material adverse effect on the availability of water in the aquifer.” This finding was supported by Crawford’s and Oakley’s prefiled testimony.

¶ 25. Riverbend relies on McGowan v. Mississippi State Oil & Gas Board, 604 So.2d 312 (Miss.1992), and Mississippi State Department of Health v. Mississippi Baptist Medical Center, 663 So.2d 563 (Miss.1995), to argue that the Permit Board’s Findings of Fact and Conclusions of Law are insufficient to support its decision. Both cases are distinguishable the one at hand.

¶ 26. In McGowan, McGowan applied to the Oil and Gas Board to renew his existing permits and to seek issuance of new permits for several packerless saltwater disposal wells. After McGowan presented his case, the Board took the matter under advisement and received evidence from its staff opposing the issuance of the permits. McGowan was not notified that his applications were going to be opposed and was not given access to the opposing evidence. The Board denied McGowan’s applications through a series of orders that failed to explain the basis for its decisions. In contrast, Riverbend received a full evidentiary hearing before the Permit Board and a ten-page explanation of the Permit Board’s decision.

¶ 27. In Mississippi Baptist Medical Center, River Oaks Hospital and the Mississippi State Department of Health appealed the chancery court’s reversal of the Department of Health’s decision to issue River Oaks a certificate of need. In affirming the chancery court’s decision, this Court noted that:

[T]his is not a case where the Health Officer, faced with conflicting evidence, chose to credit that evidence favoring approval of the CON. Rather it appears to this Court a situation where the Health Officer simply chose to dismiss the overwhelming evidence indicating that criteria of need were not met and the CON as a result should have been denied.

The same cannot be said about the case at hand. Here, conflicting evidence was presented about the effect and the intended use of the groundwater withdrawal permits, and the majority of the evidence supported the Permit Board’s decision. Based on the foregoing, we find that the Permit Board’s decision was supported by substantial evidence, was not arbitrary and capricious, and should be affirmed.

II. Riverbend’s Certificate of Public Necessity and Convenience

Riverbend argues that the Permit Board’s decision violates its right to be the exclusive provider of water services in its certificated area because the two [permitted] wells and associated water mains are an “origination point” of water supply “to or for the public for compensation” and not an “extension” through its certificated area. Riverbend relies on Miss.Code Ann. [§ ] 77-8-12(2) which, in sum, provides that a utility system may extend “... its plant, lines, or other facilities in or through the certificated area of another utility for purposes other than providing services to or for the public for compensation in such certificated area....”

Riverbend’s certificate of public convenience and necessity gives it only the exclusive right to sell water in its certificated area. It does not give Riverbend the exclusive right to access the groundwater underlying its certificated area. HCUA’s groundwater withdrawal permits do not allow HCUA to sell water in Riverbend’s certificated area, and nothing in the record suggests that HCUA intends to do so. In fact, HCUA repeatedly acknowledges in the record and its briefs that it cannot sell water in Riverbend’s certificated area.

Riverbend also argues that HCUA’s plan to install fire hydrants adjacent to Riverbend’s fire hydrants is a same or similar service provided by Riverbend and is a violation of its right to be an exclusive provider within its certificated area.... Any water taken from HCUA fire hydrants will be without charge to residents of Riverbend’s certificated area.

Section 77-3-12 prohibits HCUA only from providing a similar service in Riv-erbend’s certificated area for compensation,, Again, nothing in the record suggests HCUA intends to use its groundwater withdrawal permits to sell water in Riverbend’s certificated area for compensation. Rather, the record suggests that HCUA intends to expand its regional water system by building wells on land that it owns in Riverbend’s certificated area and selling water to customers outside of Riverbend’s certificated area. HCUA’s plan is permissible.

¶ 28. Riverbend’s contention with HCUA stems from failed negotiations between the parties regarding the treatment of Riverbend’s wastewater. Riverbend blames HCUA for its inability to get a wastewater permit for its certificated area. MDEQ denied Riverbend’s wastewater permit request and told it to coordinate with HCUA. HCUA refuses to treat River-bend’s wastewater unless Riverbend agrees to buy “wholesale” water from it, which Riverbend could then mark up and sell to the residents in its certificated area at “retail” prices.

¶ 29. Riverbend argues that the parties’ wastewater negotiations illustrate HCUA’s intent to take its property — the exclusive right to sell water in its certificated area— without just compensation. HCUA and the Permit Board claim that the parties’ wastewater negotiations are irrelevant to the sustainability of the Permit Board’s decision to issue HCUA two groundwater ■withdrawal permits. We agree with HCUA and the Permit Board. The Permit Board’s decision does not violate any right of Riverbend and is affirmed.

III. The Hearing Officer’s Evidentiary Rulings

¶30. Riverbend subpoenaed Mississippi Engineering Group (“MEG”) on February 24, 2010, and MDEQ, HCUA, Knesal Engineering Services, Inc., and Brown and Mitchell Engineering, Inc., on March 3, 2010. All five subpoenas sought evidence regarding the Plan and W-13 and W-15. Riverbend requested documents from all the subpoenaed parties but MDEQ and commanded a witness be produced on behalf of all the subpoenaed parties but MEG.

¶ 31. On March 9, 2010, at the outset of the evidentiary hearing, MDEQ moved to quash'all five subpoenas, arguing the requests were untimely, given that they were issued- so close to the. hearing. MDEQ also claimed that the evidence sought by the subpoenas was irrelevant. The hearing officer - allowed the subpoenaed witnesses to testify but prohibited them from testifying “to items of evidence that may be contained in those subpoenas that [we]re not already in the record” before the hearing. Riverbend claims that the hearing officer abused his discretion in excluding evidence not produced prior to the hearing, while the Permit Board argues that the hearing officer’s rulings were acceptable. We agree with the Permit Board.

¶ 32. The parties were notified of the discovery deadlines for the March 9, 2010, evidentiary hearing on December' 11, 2009. Notably, the deadline for prefiled direct testimony was February 5, 2010, the deadline for prefiled rebuttal testimony was February 22,. 2010, and the deadline for producing exhibits was March 2, 2010. Despite having .three months’ notice of the hearing, Riverbend waited to issue the disputed subpoenas until after the prefiled rebuttal testimony and exhibit production deadlines and less than a week before the hearing. The Permit Board’s prefiling procedures are intended to expedite evi-dentiary hearings, and the hearing officer acted within his discretion when he prevented Riverbend from undermining the procedures’ intent with a series of last-minute subpoenas. Additionally, the subpoenaed evidence was irrelevant, as it pertained to the approval process for the Plan and W-l’s design, neither of which had bearing on the Permit Board’s decision to issue HCUA two groundwater withdrawal permits. Finding no error, we affirm the judgment of the Harrison County Chancery Court and the decision of the Mississippi Environmental Quality Permit Board.

¶ 33. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . The Harrison County Utility Authority consists of seven members: the mayors of Biloxi, D’Iberville, Gulfport, Long Beach, and Pass Christian and two members from the Board of Supervisors.

      . Miss.Code Ann. § 49-17-703 (Rev.2012).

      . The state agencies primarily involved in reviewing the Plan were the MDEQ Office of Pollution Control and the Mississippi Department of Health. Neither agency reviews applications for groundwater withdrawal permits.

      . Riverbend did not object to W-13’s or W-15’s design during the Plan's public-approval process.

      . Riverbend Utilities, Inc. v. Miss. Envtl. Quality Permit Bd., No. C2401-10-01275, (Harrison County Chancery Court, 1st Judicial District, January 19, 2012).

      . See Miss.Code Ann. § 77-3-12 (Rev.2009) (stating "[a] certificate of public convenience and necessity issued by the Public Service Commission authorizing public utility services to or for the public for compensation in an area grants an exclusive right to the public utility to provide that service in the certificated area”). According to the Mississippi Secretary of State website, Riverbend Utilities, Inc., was created on November 1, 1995. It has had its certificate since at least 1996.

      . See Miss.Code Ann. § 51-3-5 (Rev.2003).

      . The Permit Board was created:
      [F]or the purpose of issuing, reissuing, modifying, revoking or denying, under the conditions, limitations and exemptions prescribed in Section 49-17-29:(a) permits to control or prevent the discharge of contaminants and wastes into the air and waters of the state; (b) permits required under the Solid Wastes Disposal Law of 1974 (Title 17, Chapter 17); (c) permits required under Sections 51-3-1 through 51-3-55; (d) water quality certifications required by section 401 of the federal Clean Water Act; and (e) all other permits within the jurisdiction of the Permit Board.
      Miss.Code Ann. § 49-17-28(1) (Rev.2012).

      .The Permit Board consists of
      [T]he Chief of the Bureau of Environmental Health of the State Board of Health, or his designee; the Executive Director of the Department of Wildlife, Fisheries and Parks, or his designee; the Head of the Office of Land and Water Resources of the Department of Environmental Quality, or his des-ignee; the Supervisor of the State Oil and Gas Board, or his designee; the Executive Director of the Department of Marine Resources, or his designee; the Head of the Office of Geology and Energy Resources of the Department of Environmental Quality, or his designee; the Commissioner of Agriculture and Commerce, or his designee; a retired professional engineer knowledgeable in the engineering of water wells and water supply systems, to be appointed by the Governor for a term concurrent with that of the Governor and until his successor is appointed and qualified; and a retired water well contractor, to be appointed by the Governor for a term concurrent with that of the Governor and until his successor is appointed and qualified. The retired professional engineer and the retired water well contractor shall only vote on matters pertaining to the Office of Land and Water Resources.
      Miss.Code Ann. § 49-17-28(1) (Rev.2012).

      . Crawford has been a registered professional geologist in Mississippi since 1998. He was employed with MDEQ for twenty-four years and was with MDEQ-OLWR for fifteen of those years. He is the assistant director, and has previously been the director, of MDEQ-OLWR. His primary responsibility is to review and issue groundwater withdrawal permits. He also previously served as Chief of MDEQ’s Groundwater Planning Branch and as a hydrogeologist and Chief of MDEQ-OLWR’s permitting branch.

      . Oakley is a registered professional geologist in the State of Mississippi. Prior to his consultation with HCUA, Oakley was employed by the U.S. Geological Survey’s Water Resources Division for thirty-six years. He is also a member of the Mississippi Water Well Contractors Association, the Mississippi Geological Society, the National Ground Water Association, and the Mississippi Water Resources Advisory Council.

      . Elliot is a registered professional engineer in Mississippi, Louisiana, and Kentucky with more tiran forty-five years experience as a professional engineer and city planner. He was an engineering officer with the U.S. Navy and has served as the CEO, principal engineer, and chief planner of Diversified Consultants, Inc.

      . Knesal Engineering Services, Inc., was retained by MDEQ as a local engineer to provide input into the Plan.

      . Knesal and Fisher provided their testimony live, as they were not subpoenaed by Riv-erbend until March 3, 2010.

      . Miss.Code Ann. § 49-17-29(5)(b) (Rev. 2012).

      . W.C. Fore v. Miss. Dep’t of Revenue, 90 So.3d 572, 577 (Miss.2012) (internal quotations and citations omitted).

      . Id.

      . Miss. Dep’t of Envtl. Quality v. Weems, 653 So.2d 266, 280-81 (Miss.1995).

      . Sierra Club v. Miss. Dep't of Envtl. Quality Permit Bd., 943 So.2d 673, 681 (Miss.2006).

      . Sierra Club, 943 So.2d at 681 (internal citations omitted).

      . McGowan v. Miss. State Oil & Gas Bd., 604 So.2d 312 (Miss.1992), cert. denied, 506 U.S. 1052, 113 S.Ct. 976, 122 L.Ed.2d 130 (1993); see also Falco Lime, Inc. v. Mayor and Aldermen of City of Vicksburg, 836 So.2d 711, 721 (Miss.2002) (noting that "[wjhether a decision is arbitrary and capricious seems to have melted somewhat into the substantial evidence standard ... a holding which is supported by substantial evidence cannot be arbitrary and capricious”) (internal citations omitted).

      . Miss.Code Ann. § 51-3-1 (Rev.2003).

      . Miss.Code Ann. § 51-3-13 (Rev.2003).

      . Effective August 26, 2013, Mississippi's environmental regulations have been renumbered and reformatted pursuant to the amended Administrative Procedures Act passed by the state legislature. The regulations have not been substantively changed. In order to correspond with the record and the parties' briefs, this opinion references the regulations by their former citations. The new citations will also be provided in the footnotes.

      . "Beneficial use” is defined by regulation as "the application of water, excluding waste of water, to a purpose that produces economic or other tangible or intangible benefits to the state and its citizens. Such uses include, but are not limited to, diversions or withdrawals for public, industrial, or agricultural use.” Miss. Dep’t of Envtl. Quality Land and Water Resources Reg. LW-2(I)(E), Surface Water and Groundwater Use and Protection (2009), http://www.deq.state.ms.us/mdeq. nsf/pdf/legal — HMiss.Admin.CodePt.7Ch. l./$File/l 1% 20Miss.% 20Admin.% 20Code% 20Pt.% 207% 20Ch.% 20L.pdf? OpenElement (last visited Jan. 29, 2014); Miss. Admin. Code R. 11-7:1.1(E) (2013).

      . Wheeler v. Miss. Dep’t of Envtl. Quality Permit Bd., 856 So.2d 700, 704 (Miss.Ct.App.2003).

      . Miss.Code Ann. § 51-3-13 (Rev.2003) (authorizing the Permit Board to establish requirements for water permits by regulation so long as the regulations "contemplate the utilization of water for beneficial purposes, within reasonable limitations, provided the proposed use does not prejudicially and unreasonably affect the public interest”).

      . See Miss. Dep't of Envtl. Quality Land and Water Resources Reg. LW-2, Surface Water and Groundwater Use and Protection(2009), http://www.deq.state.ms.us/mdeq.nsf/pdf/ legal — 1 lMiss.Admin.CodePt.7Ch. 1 ,/$File/ 11% 20Miss.% 20Admin.% 20Code% 20Pt.% 207% 20Ch.% 201..pdf?OpenElement (last visited Jan. 29, 2014); Miss. Admin. Code R. 11-7:1.1-1.7(2013).

      . Miss. Dep’t of Envtl. Quality Land and Water Resources Reg. LW-2(II)(C), Surface Water and Groundwater Use and Protection (2009), http://www.deq.state.ms.us/mdeq.nsf/ pdf/legal — 11 Miss. Admin. CodePt.7 Ch. 1 ./$File/ 11% 20Miss.% 20Admin.% 20Code% 20Pt.% 207% 20Ch.% 201..pdf?OpenElement (last visited Jan. 29, 2014); Miss. Admin. Code R. 11-7:1.2(C) (2013).

      . Id.

      . Miss. Dep't of Envtl. Quality Land and Water Resources Reg. LW-2(IV)(B), Surface Water and Groundwater Use and Protection (2009), http://www.deq.state.ms.us/mdeq.nsf/ pdf/legal — 1 lMiss.Admin.CodePt.7Ch. 1 ./$File/ 11% 20Miss.% 20Admin.% 20Code% 20Pt.% 207% 20Ch.% 201..pdf?OpenElement (last visited Jan. 29, 2014); Miss. Admin. Code R. 11-7:1.4(B) (2013).

      . Miss. Dep’.t of Envtl. Quality Land and Water Resources Reg. LW-2(IV)©, Surface Water and Groundwater Use and Protection (2009), http://www.deq.state.ms.us/mdeq.nsf/ pdf/legal — 11 Miss.Admin.CodePt.7Ch. 1 ./$File/ 11% 20Miss.% 20Admin.% 20Code% 20Pt.% 207% 20Ch.% 201..pdf?OpenElement (last visited Jan. 29, 2014); Miss. Admin. Code R. 11-7:1.4(C) (2013).

      . Miss. Dep't of Envtl. Quality Land and Water Resources Reg. LW-2(IV)(D), Surface Water and Groundwater Use and Protection (2009), http://www.deq.state.ms.us/mdeq.nsf/ pdf/legal' — llMiss.Admin.CodePt.7Ch.l./$File/ 11% 20Miss.% 20Admin.% 20Code% 20Pt.% 207% 20Ch.% 201..pdf?OpenElement (last visited Jan. 29, 2014); Miss. Admin. Code R. 11-7:1.4(D) (2013).

      . See Miss. Dep't of Envtl. Quality Land and Water Resources Reg. LW-2(II)(G), Surface Water and Groundwater Use and Protection (2009), http://www.deq.state.ms.us/mdeq.nsf/ pdf/legal — 11 Miss.Admin.CodePt.7Ch. l./$File/ 11% 20Miss.% 20Admin.% 20Code% 20Pt.% 207% 20Ch.% 201..pdf?OpenElement (last visited Jan. 29, 2014); Miss. Admin. Code R. 11-7:1.2(G) (2013).

      . McGowan, 604 So.2d at 314.

      . Id. at 320.

      . Id.

      . Id. at 314.

      . Mississippi Baptist Medical Center, 663 So.2d at 564.

      . Id. at 579.

      . Riverbend Utils., Inc. v. Miss. Envil. Quality Permit Bd„ No. C2401-10-01275, ¶ 15 (Harrison County Chancery Court, 1st Judicial District, filed January 19, 2012) (quoting Miss.Code Ann. § 77-3-12(2) (Rev.2009)).

      . Id.

      . Miss.Code Ann. § 77-3-12(2) (Rev.2009) (emphasis added).

      . The MEG subpoena commanded it to produce "[a]ny correspondence, emails or documents of any description relating to Projects W-13 and W-15 of the Mississippi Gulf Regional Water and Wastewater Plan of MDEQ, including but not limited to plans, specifications and design data sheets, including but not limited to conceptual and design data ... on or before March 8[, 2010] at 9:30 a.m.”
      The subpoenas to MDEQ, HCUA, Knesal Engineering Services, Inc., and Brown and Mitchell Engineering, Inc., asked each party "to produce one or more knowledge persons on its behalf” to give evidence regarding:
      The Gulf Regional Water and Wastewater Plan prepared by Mississippi Engineering Group; the Conceptual Design Booklet prepared by Mississippi Engineering Group on Project W-13 and W-15; Water Well Permit Nos. MS-GW-16614 and MS-GW-16631; all correspondence or emails exchanged between [the subpoenaed parties], HUD, and MDA, related to the foregoing subject matter.
      The subpoenas to HCUA, Knesal Engineering Services, Inc., and Brown and Mitchell Engineering, Inc., also ordered the parties to produce to Riverbend the aforementioned correspondence and emails before March 8, 2010, at 9:30 a.m.

      . The procedures for the evidentiary hearing stated that "[a]t least seven (7) days prior to the hearing, all parties involved shall exchange copies of all exhibits that will be introduced during the hearing indicating the party offering and the witness who will sponsor each.


source: Caselaw Access Project

author: GRIFFIS, P. J.,

license: Public Domain

text:
    In the Matter of TRANSFER OF STRUCTURED SETTLEMENT PAYMENT RIGHTS by Benny Ray SAUCIER: RSL Funding, LLC and RSL-5B-IL, Ltd, Appellants, v. Benny Ray Saucier, Appellee. In Matter of a Transfer of Structured Settlement Payment Rights by Benny Ray Saucier: RSL Funding, LLC and RSL-5B-IL, Ltd, Appellants, v. Benny Ray Saucier, Appellee.
    Nos. 2011-CA-01036-COA, 2010-CA-01222-COA.
    Court of Appeals of Mississippi.
    March 26, 2013.
    Rehearing Denied Sept. 17, 2013.
    Certiorari Denied Jan. 30, 2014.

      Kenneth S. Womack, Ridgeland, E. John Gorman, attorneys for appellants.
    Tamekia Rochelle Goliday, Shantrell Henderson Nicks, Gulfport, attorneys for appellee.
    Before GRIFFIS, P.J., ISHEE and ROBERTS, JJ.
   GRIFFIS, P. J.,

for the Court:

¶ 1. This appeal considers whether an arbitration provision in a contract for the transfer of structured settlement payment rights requires the arbitration of this dispute. The appellants argue that the parties’ agreement required that the dispute be resolved in arbitration and that the arbitrator decide the question of arbitrability of the dispute. The chancellor determined that the agreement, which contained the arbitration provision, was not effective under the Mississippi Structured Settlement Protection Act (“MSSPA”), Mississippi Code Annotated sections 11-57-1 through 11-57-1-15 (Rev.2012). We find no error and affirm.

FACTS

¶2. Because the dates of the various agreements, pleadings and orders are relevant to our consideration, we provide a detailed chronology.

A. The Structured, Settlement Agreement

¶ 8. Benny Saucier settled a personal-injury lawsuit. As part of the settlement, Saucier entered a contract for the future payment of an annuity with Aviva Life and Annuity Company (“Aviva”).

¶ 4. Under the structured settlement agreement, Saucier was entitled to receive two installments: (1) on August 30, 2010, Saucier was to be paid $150,000; and (2) on August 30, 2015, Saucier was due to be paid $200,000. These two payments, totaling $350,000, are disputed in this action and are referred to as the “Assigned Payments.”

B. The Original Transfer of the Assigned Payments to Woodbridge

¶5. Saucier decided to sell the Assigned Payments to Woodbridge Investments LLC (“Woodbridge”). Because Saucier was a resident of Harrison County, Mississippi, the chancery court of Harrison County must have approved the transfer of Saucier’s structured settlement payment rights. See Miss.Code Ann. § 11-57-7 (Rev.2012). Saucier was to receive $220,000 in consideration for the Assigned Payments.

¶ 6. On October 14, 2008, Woodbridge filed a “Petition for Approval of Transfer of Structured Settlement Payment Rights by and between Woodbridge Investments, LLC, Transferee, and Benny Ray Saucier, Transferor, Pursuant to Mississippi Code §§ 11-57-1, et seq.” In the petition, Wood-bridge represented that all of the requirements of the MSSPA had been met and asked the court to enter an order approving the transfer agreement. Attached to the petition were: (a) a declaration signed by Saucier, (b) the structured settlement annuity sale and assignment agreement that was signed by Saucier and Wood-bridge, (c) the disclosure statement, and (d) a list of Saucier’s dependents. On November 21, 2008, Woodbridge served notice, by priority mail, on all interested parties — Saucier, Aviva, and OneBeacon.

¶ 7. A hearing on the petition was held on December 12, 2008. Woodbridge’s counsel presented the petition, and Saucier testified. A transcript is included in the record. The chancellor then signed an “Order Approving the Transfer of Structured Settlement Payment Rights” (the “Transfer Order”). The Transfer Order stated that the chancellor had considered the terms of proposed transfer and had determined that the transfer met the requirements of the MSSPA. The chancellor approved the transfer and authorized Aviva and OneBeacon to pay the Assigned Payments to Woodbridge’s designated as-signee, the Bank of Internet (“BOI”). The Transfer Order also referred to the “purchase agreement” and stated that Wood-bridge had provided Saucier a “transfer disclosure statement in compliance with the [MSSPA].” The order did not state the amount of consideration Wood-bridge/BOI was to pay Saucier, but the amount of $220,000 was included in the disclosure, which was attached to the petition. According to the agreement, the consideration or payment was to be made to Saucier on the fifth business day after certain conditions precedent had been met.

¶ 8. Neither Woodbridge nór BOI paid Saucier the consideration approved in the Transfer Order. Instead, Woodbridge referred Saucier to RSL Funding LLC and RSL-5B-IL Ltd. (collectively, “RSL”).

C. The Transfer of the Assigned Payments to RSL

¶ 9. Just over a month later, on January 27, 2009, Saucier and RSL signed an “Amended Transfer Agreement (For Transfer of • Structured Settlement Payments).” Saucier agreed to sell the Assigned Payments to RSL in exchange for the payment of $212,000. The Amended Transfer Agreement included a handwritten deadline of February 6, 2009. It also obligated Saucier to transfer the Assigned Payments free and clear of any liens.

¶ 10. The Amended Transfer Agreement included an arbitration clause, which reads:

[Disputes under this Agreement of any nature whatsoever including but not limited to those sounding in constitutional, statutory, or common law theories as to the performance of any obligation, the satisfaction of any rights, and/or the enforceability hereof, including any claims that the Assignor has breached this agreement, shall be resolved through demand by any interested party to arbitrate the dispute under the laws of the State of Mississippi.

¶ 11. Saucier also signed, on January 27, an “Application” that contained an arbitration clause. Two days later, on January 29, RSL agreed to advance Saucier $6,500 in exchange for the execution of a promissory note. Saucier cashed RSL’s check on.or about February 3, 2009. The check included a handwritten note from Stewart A. Feldman, RSL’s chief executive officer, that reads, “Thank you for giving us sufficient time for the judge to rule which may be 1-2 ± weeks.” The promissory note included an arbitration clause:

Any dispute or disagreement arising under this Note or any of the other Loan Documents or any transfer agreement, of any nature whatsoever including but not limited to those disputes or disagreements sounding in constitutional, statutory, or common law theories as to the performance of any obligations, the satisfaction of any rights, and/or the enforceability of any agreement, shall be resolved through demand by any party and/or interested party to arbitrate the dispute in Texas in and under the laws of the state of Texas.

These arbitration provisions also stated that the issue of arbitrability would be resolved by the arbitrator.

¶ 12. On February 3, 2009, RSL filed a “Motion for Entry of Amended Order of Transfer.” The motion was dated January 30, 2009, and it included a certificate of service that indicated the motion was served, by first class mail, on Saucier, Woodbridge, Aviva, and OneBeacon. In a separate pleading, RSL filed and served, on the same dates, a notice of hearing that set the motion for hearing on March 5, 2009, at the Harrison County Chancery Court, in Biloxi, Mississippi.

¶ 13. The introductory paragraph of the motion states, “Because of the ongoing national financial crisis, Woodbridge has found it necessary to assign its rights, title and interests in the subject payments and its contract with Payee ... to RSL Funding, LLC, which in turn requests that the Court enter an Amended Order of Transfer.” The motion indicated that it was a transfer from Woodbridge to RSL, and attached was a copy of the “Assignment” from Woodbridge to RSL.

¶ 14. Another document, titled “Assignment,” was attached to the motion. This Assignment was signed by BOI. It did not “assign” BOI’s rights to RSL. Rather, it stated that BOI “irrevocably waives any and all rights, title and interest in and to or related to [in] any way the contemplated and/or pending transaction between Benny Ray Saucier and RSL .... ” (Emphasis added).

¶ 15. The motion also included: (a) an exhibit titled “Market Conditions Affecting Structured Settlements,” which included eleven pages of internet articles on the current conditions of the financial industry, (b) a disclosure statement signed by Saucier, (c) the Amended Transfer Agreement signed by Saucier and RSL, (d) a letter from Aviva to Saucier dated September 26, 2008, and (e) a statement where Saucier waived his right to independent professional advice.

¶ 16. On February 6, 2008, RSL’s counsel appeared ex parte before the chancellor and presented the motion to the chancellor. Saucier was not present at this hearing, and there is no transcript of this hearing in the record. The chancellor signed an “Order Granting Motion for Entry of Amended Order of Transfer” (“Amended Order I”).

¶ 17. In this order, the chancellor found that the motion was presented pursuant to the MSSPA; the court had jurisdiction; the transfer of the Assigned Payments was set forth in a transfer agreement and disclosure statement; and the transfer complied with MSSPA and was in the best interest of Saucier. In the order, the chancellor authorized the transfer of the Assigned Payments to RSL. The order was prepared and signed by RSL’s counsel.

¶ 18. The March 5, 2009 hearing, which was set in the notice of hearing, was not held.

¶ 19. On March 12, 2009, RSL’s counsel again appeared ex parte before the chancellor and presented a second order. RSL did not file an amended petition or serve the interested parties notice of this hearing. The record on appeal does not include a transcript of this hearing.

¶ 20. Nevertheless, on March 12, 2009, the chancellor signed an “Amended Order Approving of Transfer of Structured Payment Rights” (“Amended Order II”). In this order, the chancellor removed BOI as the recipient of the annuity payments and designated RSL as the sole assignee. The order also vacated and replaced the Transfer Order. Attached to the order was a nine-page “Stipulation”, which was signed by Saucier and representatives of RSL, Woodbridge, BOI, OneBeacon, and Aviva. The Stipulation provided, among other matters, that the Assigned Payments would be transferred from Saucier to RSL.

The Stipulation expressly provided that it would be governed by the law of the Commonwealth of Massachusetts. The Stipulation did not contain an arbitration provision.

¶ 21. During the ex parte appearances, RSL’s counsel told the chancellor that Saucier was aware of the hearing and voluntarily waived his appearance. Yet there was no waiver of service of process or joinder in the petition filed in the court file.

D. Saucier’s Challenge of the Transfer

¶ 22. In the months that followed, Saucier did not receive the payment contemplated in the Transfer Order, Amended Order I, or Amended Order II.

¶ 23. On June 11, 2009, Saucier filed a “Motion to Dissolve or Set Aside Order Granting Motion for Entry of Amended Order of Transfer” (the “Motion to Dissolve”). Saucier argued that Amended Order I did not comply with the MSSPA and that the Amended Transfer Agreement expired when it was not funded by the February 6, 2009 deadline. The court set the motion for hearing on August 6, 2009.

¶ 24. On August 3, 2009, RSL filed its “Motion to Stay, or in the Alternative, Response in Opposition to Motion to Dissolve or Set Aside Amended Order of Transfer.” RSL argued that it was entitled to clear title to the Assigned Payments and that RSL had delayed its required payment because of Saucier’s attempts to evade taxes. RSL claimed that the state and federal government had levied tax liens against the funds, and RSL had paid $15,653.13 to satisfy Saucier’s state tax liens.

¶ 25. At the August 6 hearing, counsel for Saucier and RSL argued: No testimony was presented. On September 8, 2009, the chancellor entered an order on the motion to dissolve. The chancellor found that: (1) RSL “failed to comply with all of the provisions of the [MSSPA],” and (2) RSL “did not give notice of the hearing to [Saucier] due to an alleged waiver ... [, and] notice cannot be waived pursuant to the [MSSPA].” The chancellor ordered “this matter to be set for a hearing on damages and all evidentiary matters.”

¶ 26. On September 18, 2009, RSL filed a motion to reconsider. RSL argued that “the Assignment by Woodbridge to RSL is not a transfer covered by the [MSSPA] because the [MSSPA] covered transfer occurred on December 12, 2008.” RSL claimed that the Transfer Order complied with the MSSPA, and as of December 12, 2008, the day the Transfer Order was entered, Saucier did not have any rights to the Assigned Payments. RSL also argued that its duty to pay Saucier was subject to the condition precedent that RSL, as the purchaser, had the right to clear the title to the payments.

¶ 27. Further, RSL argued it had no duty to perform because tax liens had been levied on the Assigned Payments. Thus, RSL claimed that it had only been able to partially clear the title because Saucier refused to provide any information about the state and federal tax liens. Finally, RSL contended Saucier was unjustly enriched because RSL paid off the state tax lien and advanced Saucier $6,500.

¶ 28. The chancellor held a hearing on the motion to reconsider on November 19, 2009. Counsel argued the motion, and no testimony was presented.

¶ 29. On January 15, 2010, the chancellor entered an order denying the motion to reconsider. The chancellor again found that RSL could not argue the MSSPA did not apply, because RSL’s pleadings asserted that all agreements and transactions adhered to the MSSPA’s requirements. In addition, the chancellor found that, in RSL’s motion, which resulted in Amended Order I, RSL stated that it had filed the motion pursuant to the MSSPA. RSL had also claimed venue was proper under the MSSPA and that the “Amended Disclosure Statement Transfer Agreement” met the MSSPA’s requirements.

E. RSL’s Efforts to Arbitrate and Saucier’s Challenge

¶ 30. In March 2010, RSL filed a demand for arbitration. RSL sought to resolve the dispute about damages that related to RSL’s breach-of-contract claim against Saucier. RSL also filed an inter-pleader action in federal court to determine the amount of the federal tax lien.

¶ 31. Saucier responded with a “Motion for Ex Parte Relief,” which was filed March 15, 2010. Saucier asked the court to grant a restraining order and direct RSL to stop pursuing the Texas arbitration proceedings and the federal court in-terpleader action. The chancellor issued an “Ex Parte Order” that granted the relief requested by Saucier. The chancellor prohibited “RSL from pursuing the arbitration proceeding it filed in Texas” and “the interpleader action” in federal court. The order also required Saucier to post a bond and stated that the order “will expire on March 25, 2010, subject to further order of the court.”

¶ 32. The chancellor held another hearing on May 7, 2010. The issue was whether Saucier was aware of RSL’s action on and after February 6, 2009. Saucier testified at that hearing that when RSL approached the court for an order on February 6, 2009, he was unaware of RSL’s actions. However, Saucier admitted that he had signed a sample order. But, Saucier testified that he did not know about the March 12 hearing. Saucier also admitted that he signed the Stipulation, which was presented to the court on March 12 and attached to Amended Order II.

¶ 38. Stewart Feldman, RSL’s chief executive officer, testified that the Stipulation was prepared by Aviva’s attorneys in late February or the beginning of March. Feldman testified that his notes indicated that Saucier faxed the signed Stipulation back on March 4, 2009. Feldman also testified that the only time after February 6, 2009 Saucier told him he did not want to go through with the transaction was in late March or early April. Feldman said that Saucier told him he would go through with the transaction if RSL would give him another $20,000.

¶ 34. On May 17, 2010, Saucier filed a supplemental brief that asked for a permanent injunction. Saucier argued that Amended Order II was vacated and replaced the Transfer Order. He also argued that the fact that Amended Order II was later set aside did not mean the Transfer Order was revived. Thus, the December 12th Transfer Order was void and further steps could not be taken to enforce the vacated judgment.

¶ 35. On May 20, 2010, RSL filed a “Brief in Support of [I]ts Request that Benny Ray Saucier’s Motion for Ex Parte Relief [B]e Denied.” RSL argued that a valid transfer order existed. RSL claimed that even if Amended Order II was set aside, the original Transfer Order was resurrected. If it was not set aside, RSL claimed that there was still a valid transfer because Amended Order II approved the transfer from Saucier to RSL. RSL’s point was that, because there was a valid transfer order, the arbitration provisions were valid as well. RSL also claimed that Saucier was aware of its actions on and after February 6, 2009, and cited the evidence gathered during the May 7, 2010 hearing to support that conclusion.

¶ 36. On June 22, 2010, the chancellor entered an order that denied RSL’s motion to set aside the ex parte order, and he extended the arbitration injunction. The chancellor found that when the court set aside the orders that approved the transfer, the agreement between Saucier and RSL became unenforceable, and the arbitration provisions became void. The chancellor further found that when the court overturned Amended Order II, and RSL did not appeal, the only issue left to resolve was the award of damages. The chancellor held that the Transfer Order was no longer in force as of March 12, 2009.

¶ 37. On July 21, 2010, RSL filed a notice of appeal with the Mississippi Supreme Court. RSL argued that it appealed the June 22, 2010 order and challenged the chancellor’s decision to vacate the Transfer Order and Amended Order II. The Clerk of the Supreme Court assigned docket no. 2010-CA-00122 to the appeal. By order dated November 18, 2010, the supreme court dismissed the appeal as interlocutory. Despite this dismissal, the supreme court docket indicates that the case has remained pending, because there are several orders signed by supreme court justices that grant extensions for briefing.

F. Saucier’s Motion for Declaratory Judgment

¶ 38. On November 23, 2010, Saucier filed a motion for a declaratory judgment. Saucier asked the chancellor to declare that the transfer was not valid, a transfer would not be in Saucier’s best interest; and Saucier was the exclusive owner of the annuity contract. Saucier also asked the chancellor to determine what damages, if any, he owed RSL and to rule that Saucier owed no duties to RSL under transfer agreement, Mississippi law, or federal law. Saucier also asked the chancellor to declare that RSL was liable to Saucier for costs, attorney’s fees, and interest payments because it had failed to comply with the MSSPA and had engaged in litigation abuse under Rule 11 of the Mississippi Rules of Civil Procedure.

¶ 39. On February 2, 2011, Saucier filed a motion for summary judgment on his declaratory — judgment action.

¶40. On March 4, 2011, RSL filed its response in opposition to Saucier’s motion for summary judgment and moved to stay the state court proceedings and refer the case to arbitration. RSL argued that Saucier was given notice and a valid transfer existed. RSL also claimed that it was entitled to the Assigned Payments and that the transfer was in Saucier’s best interest. RSL claimed that Saucier was liable to RSL for damages and that the issue of damages should be resolved by the arbitrator. Finally, RSL argued that its demand for arbitration was not frivolous and, as such, it did not owe Saucier damages.

¶ 41. On April 7, 2011, RSL filed a “Motion to Stay State Court Proceedings and Refer the Proceeding to Arbitration.” In this motion, RSL claimed that the transfer agreement and the Federal Arbitration Act required that the dispute be resolved in arbitration. RSL stated that the separability doctrine mandated arbitration even if the transfer agreement was found to be voidable or void. According to RSL, it is the arbitrator and not a Mississippi court who must decide whether or not a contract that contains an arbitration clause is illegal. RSL also argued that if it proceeded in state court, it would waive its right to arbitration.

¶ 42. On June 17, 2011, the chancellor ruled:

1.This Court has previously found that RSL violated the provisions of the Mississippi Structured Settlement Protection Act when it failed to provide Saucier with statutorily required notice of the hearings on February 6, 2009, and March 12, 2009, to approve transfer of the structured settlement to RSL.
2. This Court has previously held that there is no valid order from this Court approving transfer of the future payments Saucier would otherwise receive from Aviva to RSL in exchange for specified payment(s) to Saucier.
3. This Court has previously held that RSL is entitled to damages as a result of the expenses it incurred and/or paid to or on behalf of Saucier.
4. The Court finds that the actions of RSL in this forum have not been established as a matter of fact to be of such a nature as would allow under [Rule] 11 the payment of attorneys fees and costs. The Court finds that there is a substantial issue of material fact on this opinion.
5. When the Court vacated the original order (from December, 2008) approving the transfer of the structured settlement, the factual underpinnings upon which the original order of December 2008 was predicated no longer existed. That Order approved the transfer as between Saucier and Woodbridge. In its “Stipulation” (see Exhibit B in RSL’s Response to the Motion for Summary Judgment) RSL refers to its agreement with Saucier as a Transfer Agreement^] which by definition would require appropriate notice to Saucier, which this Court has already found was not given prior to obtaining the February 6, 2009[ ] Order.
6. The efforts of RSL to enforce its arbitration clause in this matter violate state law [because they were], as stated by the United States Court of Appeals for the Fifth Circuit, “a device to bring about an otherwise unlawful transfer.” See Symetra Life Ins. v. Rapid Settlements, Ltd., [567] F.3d 754 (5th Cir.2009).
7. This Court finds that the Motion of RSL to Stay Court Proceedings and Refer Proceeding to Arbitration should be and is hereby DENIED.
8. This Court further finds that the Motion for Permanent Injunction Prohibiting Arbitration should be and is hereby GRANTED.
9. This Court further finds that the Motion for Summary Judgment filed by Saucier should be DENIED as regards any finding of entitlement of Saucier to Rule 11 sanctions.

¶ 43. On July 8, 2011, RSL filed its notice of appeal. On July 19, 2011, the chancellor entered a corrected order, and it provided that it was nunc pro tunc to June 17, 2011. The Clerk of the Supreme Court assigned docket no. 2011-CA-01036 to this appeal.

ANALYSIS

I. Whether this Court has appellate jurisdiction over this issue.

¶ 44. This Court must first consider whether it has jurisdiction to consider this appeal. We recognize that the chancellor has yet to enter a final judgment. The June 17, 2011 order was not a final order. Paragraph 3 specifically states that RSL is entitled to an award of damages. In addition, paragraphs 4 and 9 indicate that the issue of Rule 11 sanctions has not been determined; instead, the chancellor only decided that summary judgment was not proper.

¶ 45. We also note that the June 17, 2010 order does not contain a Mississippi Rule of Civil Procedure 54(b) certification, which is required for an appeal of a judgment as to “fewer than all of the claims and parties.” Despite the failure to include a Rule 54(b) certification in the June 17, 2011 order, we acknowledge that the supreme court has twice by order denied a request to remand these cases to the chancellor for a Rule 54(b) certification or to strike interlocutory references in the June 17 order.

¶ 46. We have jurisdiction to consider this appeal because the Mississippi Supreme Court has held that “any final decision with respect to arbitration is appeal-able to this Court pursuant to Mississippi Rules of Appellate Procedure 3 and 4.” Sawyers v. Herrin-Gear Chevrolet Co., 26 So.3d 1026, 1034 (¶ 19) (Miss.2010). This appeal is limited to a review of whether the chancellor erred in the June 17, 2011 order when he denied RSL’s motion to compel arbitration and issued a permanent injunction against further efforts to arbitrate. We do not address the issue of damages or attorney’s fees allowed under Rule 11 of the Mississippi Rules of Civil Procedure; such claims are remanded to the Chancery Court of Harrison County for further proceedings consistent with this opinion.

II. Whether Saucier and RSL must arbitrate their dispute.

¶ 47. The review of the grant or denial of a motion to compel arbitration is de novo. East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (¶9) (Miss.2002). We are not required to show deference to the chancery court. IP Timberlands Operating Co. v. Denmiss Corp., 726 So.2d 96, 104 (Miss.1998).

¶ 48. The Mississippi Supreme Court has adopted the definitive federal policy that calls for rigorously enforcing arbitration agreements. East Ford, 826 So.2d at 713 (¶ 11) (Miss.2002). As a matter of public policy, Mississippi courts have long upheld and enforced agreements to arbitrate. IP Timberlands Operating Co. v. Denmiss Corp., 726 So.2d 96, 103-04 (¶ 28) (Miss.1998).

¶49. The question we must decide is whether there was a valid and enforceable agreement to arbitrate between Saucier and RSL. “The first prong is two-fold in that the court considers whether there is a valid arbitration agreement and then whether the parties’ dispute is within the scope of the arbitration agreement.” Greater Canton Ford Mercury, Inc. v. Ables, 948 So.2d 417, 421 (¶ 9) (Miss.2007) (citation omitted). The answer to this question decides the issue.

¶ 50. RSL makes two separate arguments. Both fail. First, RSL claims that the MSSPA does not govern this transaction because it was a “reassignment.” Second, RSL claims that it obtained approval of the chancery court in Amended Orders I and II.

A. Whether the transfer to RSL was a “reassignment.”

¶ 51. RSL argues that the MSSPA does not apply here because it was a “reassignment.” Thus, RSL was merely substituted as Woodbridge’s or BOI’s assignee.

¶ 52. RSL agrees that the MSSPA governs an original transfer of structured settlement payment rights by the payee (Saucier) and requires court approval after notice to all interested parties. Thus, RSL agrees that the original Transfer Order was required. See Miss.Code Ann. § 11-57-7.

¶ 53. RSL argues that the Transfer Order authorized Saucier’s transfer of the Assigned Payments to Woodbridge/BOI. We agree. RSL then claims that it stepped in, or was substituted, to take BOI’s place as Woodbridge’s “designated assignee.” RSL concludes that the Transfer Order authorized a “reassignment” of Woodbridge’s rights.

¶ 54. So the first question for this Court to decide is whether the “assignment” to RSL was an original assignment or a reassignment.

¶ 55. We begin with the Transfer Order between Saucier and Woodbridge/BOI. In the original agreement, authorized by the chancellor in the Transfer Order, there was no arbitration provision to enforce. As a result, RSL may not claim that a right to arbitrate the dispute arose from the “reassignment” of Woodbridge/BOI’s rights under the Transfer Order.

¶ 56. Next, we recognize that a reassignment of Woodbridge/BOI’s rights under the Transfer Order would not require Saucier’s consent or approval. The only interested parties to a reassignment of the Transfer Order would be Woodbridge, BOI, RSL, Aviva, and OneBeacon. If it were a reassignment, the original transfer would have removed Saucier as the payee, and he would have had no further interest in the Assigned Payments.

¶ 57. Such was not the case here. The Transfer Order obligated Woodbridge/BOI to pay $220,000 to Saucier. Wood-bridge/BOI did not make the payment. If it were only a reassignment, the consideration for the reassignment would require a payment from RSL to Woodbridge/BOI. The fact that RSL replaced BOI, before the original transfer agreement had been funded, indicates that the original transfer had not been completed.

¶ 58. Finally, the doctrine of judicial estoppel applies here. “Judicial estop-pel is a doctrine of law applied by a trial court to a situation where a party asserts one position in a prior action or pleading but then seeks to take a contrary position to the detriment of the party opposite.” Miss. Power & Light Co. v. Cook, 882 So.2d 474, 482 (¶ 22) (Miss.2002) (citations omitted).

¶ 59. In its first pleading filed with the chancery court, RSL invoked jurisdiction and venue under the MSSPA, citing Mississippi Code Annotated Section 11-57-ll(l)(Rev.2012). RSL also claimed that it “timely provided to Payee an Amended Disclosure Statement, in compliance with Section 11-57-5,” and the “Payee executed an amended transfer agreement for transfer of the Assigned Payments to RSL Funding, which constitutes a Transfer Agreement as that term is defined under the [MSSPA].” More importantly, RSL’s motion stated:

RSL Funding requests that the Court find that, except for this Court’s Order dated December 12, 2008, none of the Annuity Owner, Annuity Issuer, Wood-bridge, RSL Funding ... and Payee have sold, assigned, [orjconveyed ... these Assigned Payments and that Payee has all right, title and interest in the Assigned Payments with full authority to make this transfer to RSL Funding.

(Emphasis added). RSL concludes with the request that the chancellor grant “the Amended Application and approv[e] the terms of the amended Transfer Agreement and the Assignment and/or Transfer of Payee’s Assigned Payment to RSL Funding, LLC....”

¶ 60. Having once asked the court to conclude that this transaction must be approved under the MSSPA, RSL is judicially estopped from claiming that the transaction does not need to be approved under the MSSPA. RSL’s motion clearly indicated that RSL sought approval of an original transfer, which involved Saucier as the payee, and the transaction was not a reassignment among funding companies.

¶ 61. For these reasons, we reject RSL’s claim that this was a reassignment and, as such, was not governed by the MSSPA.

B. Whether the transfer was approved by the chancellor.

¶ 62. We move to the questions of whether RSL complied with the MSSPA and the arbitration provisions were effective.

¶ 68. RSL seeks to enforce arbitration provisions that were contained in (a) the January 27, 2009 Amended Transfer Agreement, (b) the January 27, 2009 Application, and (c) the January 29, 2009 promissory note. RSL submitted the Amended Transfer Agreement and the Application to the chancellor when the chancellor approved Amended Order I, on February 6, 2009, and Amended Order II, on March 12, 2009. Both orders amended the Transfer Order to delete BOI as the recipient of the annuity payments and name RSL as the sole “assignee” for payment. Both orders also approved the terms of the transfer, which were contained in the Amended Transfer Agreement.

¶ 64. On January 30, 2009, RSL served the Motion for Entry of Amended Order of Transfer and a notice of hearing on Saucier and other interest parties. The notice of hearing was served by mail and set a hearing on the motion for March 5, 2009, at 9:30 a.m. No hearing was held on March 5. Instead, RSL’s counsel appeared ex parte before the chancellor on February 6 and March 12, 2009 and presented orders. The chancellor was told that Saucier was aware of the hearing and voluntarily waived his appearance. Yet no waiver of process or joinder was filed with the clerk.

¶65. RSL claims that these amended orders were required by Aviva’s desire that its records reflect the correct payment recipient — RSL, not Woodbridge or BOI. Thus, RSL claims that, at Aviva’s insistence, Amended Order II, which named RSL as the assignee, further “vacated and replaced” the Transfer Order “approving the transfer” to Woodbridge “and ultimately to” BOI. Aviva then notified Saucier that RSL would now receive payment, a change to which Saucier objected.

¶ 66. Saucier’s Motion to Dissolve attacked the validity of these orders. Saucier cited noncompliance with the MSSPA and fraud. Also, Saucier alleged that the original transfer agreement expired when the funding did not occur. RSL countered with an argument that it was entitled to receive clear title to the Assigned Payments and was entitled to additional time to fund the agreement in trying to work out the state and federal tax liens levied against Saucier.

¶ 67. The chancellor determined that RSL had failed to follow the MSSPA. The MSSPA specifically requires notice be given. Mississippi Code Annotated Section 11-57-11(2) (Rev.2012), in relevant part, provides:

Not less than twenty (20) days prior to the scheduled hearing on any application for approval of a transfer of structured settlement payment rights under Section 11-57-7, the transferee shall file with the court ... and serve on all interested parties a notice of the proposed transfer and the application for its authorization, including with such notice:
(a)A copy of the transferee’s application;
(b) A copy of the transfer agreement;
(c) A copy of the disclosure statement required under Section 11-57-5;
(e) Notification that any interested pariy is entitled to support, oppose or otherwise respond to the transferee’s application, either in person or by counsel, by submitting written comments to the court ... or by participating in the hearing; and
(f) Notification of the time and place of the hearing and notification of the manner in which and the time by which written responses to the application must be filed which shall be not less than fifteen (15) days after service of the transferee’s notice in order to be considered by the court or responsible administrative authority.

(Emphasis added). The MSSPA does not provide for a waiver of notice. All interested parties are required to be notified of certain matters, including the time and place of the hearing. Id.

¶ 68. The MSSPA does not specify the appropriate notice that is required section 11-57-11(2). Because the MSSPA requires court approval, “[a] civil action is commenced by filing a complaint with the court.” M.R.C.P. 3(a). To obtain personal jurisdiction over an interested party, service of process is required consistent with either Rule 4 or Rule 81 of the Mississippi Rules of Civil Procedure. Although the MSSPA is not included among the actions subject to Rule 81(a), reading section 11-5-11(2), we interpret notice to require a return for a date certain similar to the procedure authorized in Rule 81(d)(5). At a minimum, once the original notice is provided to an interested party, notice of subsequent proceedings must comply with Mississippi Rule of Civil Procedure 5.

¶ 69. The fact that RSL served, on January 30, 2009, a notice of hearing that set RSL’s Motion for Entry of Amended Order of Transfer to be heard on March 5, 2009 at 9:30 a.m., and then did not have the scheduled hearing, evidences a lack of notice. Further, RSL’s ex parte appearance before the chancellor on February 6 and March 12, 2009, also evidences that RSL failed to comply with the MSSPA.

¶ 70. We agree with the chancellor that RSL’s failure to provide Saucier with notice, as required under section 11-57-11(2), requires that Amended Order I and Amended Order II be vacated and set aside. Because any assignment by Saucier of his rights to receive structured settlement payments must be approved by the court to be effective, we find that RSL failed to comply with the MSSPA, and the Amended Transfer Agreement was not “effective.” Miss. Code Ann. § 11-57-7. Hence, there was no arbitration provision to be enforced.

¶ 71. The United States Court of Appeals for the Fifth Circuit has addressed whether arbitration may be used to collect damages if there is no valid transfer order. Symetra Life Ins. Co. v. Rapid Settlements, Ltd., 567 F.3d 754, 754 (5th Cir.

[u]sing arbitration to effect a transfer of all or part of an annuitant’s future payments, when a state court has either refused to approve such a transfer under the applicable state structured settlement protection act or such approval has not been pursued or obtained, is contrary to the laws of 43 states.

Symetra Life Ins. Co. v. Rapid Settlements, Ltd., 599 F.Supp.2d 809, 838 (S.D.Tex.2008).

¶ 72. Accordingly, we affirm the chancellor’s order that denied RSL’s Motion to Stay Court Proceedings and Refer the Proceeding to Arbitration.

¶ 73. Further, because we have found that the Amended Transfer Agreement was not “effective,” this Court need not address whether the chancellor or the arbitrator should decide the question of arbi-trability.

¶ 74. Finally, we find no merit to RSL’s argument that the chancellor improperly granted a permanent injunction because Saucier never requested a permanent injunction. On May 14, 2010, Saucier filed a supplemental pleading that requested a permanent injunction.

¶ 75. Having fully and finally decided all issues regarding arbitration, we remand this case to the chancery court for further proceedings consistent with this opinion.

¶ 76. THE JUDGMENT OF THE HARRISON COUNTY CHANCERY COURT IS AFFIRMED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE OPINION.

      . A “[structured settlement” is defined as "an arrangement for periodic payment of damages for personal injuries or sickness established by setdement or judgment in resolution of a tort claim_” Miss.Code Ann. § ll-57-3(m)(Rev.2012). The "'[structured settlement agreement’ means the agreement, judgment, stipulation or release embodying the terms of a structured settlement.” Miss. Code Ann. § 1 l-57-3(n) (Rev.2012).

      . Aviva was the "[ajnnuity issuer,” which is defined as "an insurer that has issued a contract to fund periodic payments under a structured setdement. Miss.Code Ann. § 11 — 57— 3(a) (Rev.2012). OneBeacon America Insurance Company ("OneBeacon”) was the "[s]tructured settlement obligor,” which is defined as “the party that has the continuing obligation to make periodic payments to the payee under a structured settlement agreement or a qualified assignment agreement." Miss.Code Ann. § ll-57-3(o)(Rev.2012). Avi-va and OneBeacon are not parties to this litigation.

      . Saucier was the "[pjayee,” which is defined as "an individual who is receiving tax-free payments under a structured settlement and proposes to make a transfer of payment rights thereunder." Miss.Code Ann. § 11-57-3(h)(Rev.2012).

      . These payments were "[sjtructured settlement payment rights,” which are defined as "rights to receive periodic payments under a structured settlement, whether from the structured settlement obligor or the annuity issuer ” Miss.Code Ann. § 11-57-3(p)(Rev.2012).

      . A “[tjransfer” is defined as "any sale [or] assignment ... of structured settlement payment rights made by a payee for consideration....” Miss.Code Ann. § 11 — 57— 3(r)(Rev.2012).

      . Woodbridge is the "[transferee,” which is defined as “a party acquiring or proposing to acquire structured settlement payment rights through a transfer.” Miss.Code Ann. § 11-57-3(u)(Rev.2012).

      . This litigation was filed in the Chancery Court of Harrison County, Mississippi. The clerk assigned this litigation cause no. C2401-08-02649(4). All pleadings filed with the chancery clerk were filed in this case file. There are two separate appellate case numbers because there were two notices of appeal filed at different times.

      . The consideration to be paid is defined under the MSSPA as the " ‘[n]et advance amount!,]' [which] means the gross advance amount less the aggregate amount of the actual and estimated transfer expenses required to be disclosed under Section 1 l-57-[5](e).” Miss.Code Ann. § ll-57-3(g) (Rev.2012).

      .As of February 6, 2009, Saucier admitted tax liens existed but believed the liens were expired.

      . There is no issue in this appeal as to the validity or effect of the corrected order. The language used in the corrected order is almost identical to that in the June 17, 2010 order.


author: CARLTON, J., LEE, C.J.,

text:
    Matthew LADNER, Appellant v. ZACHRY CONSTRUCTION and Zurich American Insurance Company, Appellees.
    No. 2012-WC-00403-COA.
    Court of Appeals of Mississippi.
    May 14, 2013.
    Rehearing Denied Aug. 27, 2013.

      James Kenneth Wetzel, Gulfport, attorney for appellant.
    Walter J. Eades, Gulfport, attorney for appellees.
   CARLTON, J.,

for the Court:

¶ 1. Matthew Ladner appeals the Harrison County Circuit Court’s decision affirming the Workers’ Compensation Commission’s (Commission) order denying Ladner workers’ compensation benefits. Finding no error, we affirm the judgment.

FACTS

¶2. Ladner had performed work as a scaffold builder for Zachry Construction since 2001. In addition to working as a scaffold builder, Ladner performed other tasks, including jet riding, which required him to wear a large protective suit and drain chemicals. Ladner testified that while tearing down scaffolding on December 27, 2006, he felt something pop in his back and immediately fell to the ground. Ladner stated that he reported this accident to his supervisor, and Ladner remained in the safety/first-aid trailer for the rest of the day.

¶ 3. Ladner testified that he missed a couple of days of work following his injury. Ladner stated that upon returning to work, his symptoms progressively worsened, and he informed his safety director, Frank Young, that he needed to see a doctor. Ladner testified that after two or three weeks of sitting in the safety trailer during work, he eventually saw Dr. Kevin Cooper on January 31, 2007. Dr. Cooper referred Ladner to Dr. Lee Kesterton, a neurosurgeon. Dr. Kesterton treated Ladner until Ladner reached maximum medical improvement (MMI) on May 20, 2008. During his treatment, Ladner continued to work, performing fight-duty tasks.

¶ 4. Ladner testified that from the date of his injury until he reached MMI, he “basically sat or lay” in the safety trailer during his work hours. However, Ladner later reneged his statement that he sat in the safety trailer all day doing nothing and admitted that he indeed performed various work duties during this time. Ladner stated he would perform “hole watch,” occasionally file, and act as a standby attendant during safety audits. Zachry Construction provided testimony that Ladner also unloaded and stacked material. Za-chry Construction asserts that Ladner failed to mention any problems performing his work and never asked to return to the doctor. Young testified that he witnessed Ladner working during this time, and as safety director, Young insisted that he would have known if Ladner had remained in the safety trailer for eight to ten hours a day.

¶ 5. Zachry Construction eventually laid off Ladner in December 2008. On August 24, 2009, Ladner filed a petition to controvert alleging that on December 27, 2006, he received a work-related injury to his back and legs. Zachry Construction admitted the injury; however, Zachry Construction stated that Ladner had filed his petition to controvert after expiration of the statute of limitations. Zachry Construction also asserted that Ladner’s pay was for work performed, and Ladner never missed any time from work as a result of his injury. Zachry Construction explained that Ladner’s pay was not in lieu of compensation for his injuries; thus no tolling of the statute of limitations occurred in this case. Zachry Construction further argued that since the statute of limitations expired before the fifing of the petition to controvert, Ladner failed to qualify for workers’ compensation benefits other than medical expenses. On December 14, 2009, Ladner filed a motion for medical treatment and payment of compensation benefits. On January 6, 2010, Zachry Construction filed a motion to dismiss denying the compensability of the injury because the statute of limitations had expired on the matter.

¶ 6. On .March 31, 2010, the administrative judge (AJ). held a hearing to determine the following issues: (1) whether Ladner’s claim is barred by the two-year statute of limitations, and (2) if Ladner’s claim is not barred, whether Ladner is entitled to reasonable and necessary medical treatment by a physician of his choice.

¶ 7. Contrary to the Zachry Construction’s position, on July 13, 2010, the AJ handed down his order concluding that Ladner had received his wages' in lieu of compensation, thereby suspending the statute of limitations. Zachry Construction appealed the order of the AJ to the Commission. On January 19, 2011, the Commission entered an order reversing the order of the AJ, finding that Ladner’s post-injury work activities were not “so little” that he did not earn his wages. The Commission determined that since Ladner had earned his wages, such wages failed to constitute “wages in lieu of compensation,” thus barring Ladner’s claim based on the statute of limitations. Ladner then appealed the Commission’s order to the Harrison County Circuit Court, which affirmed the Commission’s order. The Commission’s order referenced the testimony of Ian Devlin, a safety supervisor at Zachry Construction, and Young — who both testified on behalf of Zachry Construction — in its finding that Ladner had earned his wages and in finding that Ladner lacked credibility.

¶8. Ladner now appeals to this Court, arguing that the circuit court erred in affirming the Commission’s order reversing the AJ. Ladner asserts that the circuit court’s order was arbitrary and capricious and not supported by substantial evidence.

STANDARD OF REVIEW

¶ 9. This Court adheres to a limited standard of review when determining whether the Commission erred as a matter of law or made findings of fact contrary to the overwhelming weight of the evidence. Clements v. Welling Truck Serv., Inc., 739 So.2d 476, 478 (¶7) (Miss.Ct.App.1999) (citing Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988)). In a workers’ compensation case, the Commission is the trier and finder of facts. Radford v. CCA-Delta Corr. Facility, 5 So.3d 1158, 1163 (¶ 20) (Miss.Ct.App.2009). “Reversal is proper only when a Commission order is not based on substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law.” Weatherspoon v. Croft Metals, Inc., 853 So.2d 776, 778 (¶ 6) (Miss.2003). When the Commission’s decision is supported by substantial evidence, then it must be upheld. Vance v. Twin River Homes, Inc., 641 So.2d 1176, 1180 (Miss.1994).

DISCUSSION

¶ 10. Ladner argues that the Commission and circuit court erred as a matter of law and acted arbitrarily and capriciously in failing to determine that Zachry Construction’s payment of regular wages and salary to Ladner tolled the statute of limitations. Ladner claims that Zachry Construction paid Ladner his regular salary from the date of injury to the date of MMI without requiring Ladner to “earn” his wages. Ladner submits that payment of regular wages under these circumstances constitutes a “payment in lieu of indemnity benefits,” prescribed by the Worker’s Compensation Act, and is sufficient to suspend the two-year statute of limitations.

¶ 11. Mississippi Code Annotated section 71-3-35(1) (Rev.2011) of the Worker’s Compensation Act mandates that:

No claim for compensation shall be maintained unless, within thirty (30) days after the occurrence of the injury, actual notice was received by the employer or by an officer, manager, or designated representative of an employer.... Regardless of whether notice was received, if no payment of compensation (other than medical treatment or burial expense) is made and no application for benefits filed with the [Commission within two years from the date of the injux-y or death, the right to compensation therefor shall be barred.

¶ 12. Ladner sustained his work-related injury on December 27, 2006. He filed his petition to conti'overt on August 24, 2009, and his application for benefits on December 14, 2009. Although Ladner filed his petition to controvei’t after the expiration of the two-year statute of limitations, he asserts that the statute of limitations fails to apply because Zachry Construction continued to pay him his regular salary in lieu of compensation from December 27, 2006, the date of his injury, through May 20, 2008, the date of MMI. Ladner submits that this action by Zachry Construction suspended the statute of limitations just as if statutory workers’ compensation benefits had been paid.

¶ 13. The Mississippi Supreme Court has stated that wages paid to an injured worker in lieu of worker’s compensation benefits are sufficient to erase the two-year statute of limitations under section 71-3-35(1). See Brown v. F.W. Woolworth Co., 348 So.2d 236, 240 (Miss.1977). In Parchman v. Amwood Products, Inc., 988 So.2d 346, 349 (¶ 9) (Miss.2008), the supreme court held:

Unless there exists an agreement “that the wage is a gratuity in addition to workers’] compensation,” when a claimant “is paid his usual salary and does no work for a given period or does so little work that he really does not earn his wage[,]” the continued payment of the claimant’s salary “will be considered as having been in lieu of compensation.”

(Emphasis added) (quoting Vardaman S. Dunn, Mississippi Workmen’s Compensation § 45 (3d ed. 1982)).

¶ 14. In the present case, the Commission held that Ladner’s claim was barred by the two-year statute of limitations. In its order, the Commission quoted testimony from Devlin, a safety supervisor at Zachry Construction, who testified that he remembered seeing Ladner engaged in work activities outside of the safety trailer during the period in question, as well as testimony from Young, the safety director, who stated that he also saw Ladner performing work duties outside of the safety trailer during this time. The Commission also acknowledged that Ladner himself “testified that he participated in post-injury work activities during the period of time he alleges he was paid wages in lieu of compensation, including hold watch, safety audits, standby attendant duties, and other paperwork.” After hearing testimony, the Commission, quoting Parchman, 988 So.2d at 349 (¶ 9), found that Ladner’s “post-injury work activities were not ‘so little that he really [did] not earn his wage.’ ” The Commission then dismissed Ladner’s claim, determining that “based on the evidence as a whole, including the testimony outlined above, ... [Ladner] was not paid wages in lieu of compensation by [Zachry Construction] for this injury.”

¶ 15. Ladner disputes the Commission’s findings and decision, claiming that from the date of injury to the date of MMI, he arrived to work each day, where he remained in the safety trailer watching television the majority of his time on the job. Ladner states that during the other “five percent of the time” that he did not spend in the trailer, he spent his time “hole watching,” occasionally performing filing duties, and acting as a standby attendant during safety audits. Ladner cites to Parchman, 988 So.2d at 349 (¶ 9), and insists that he failed to earn wages during this time, claiming that Zachry Construction’s payment of his salary constituted wages in lieu of compensation.

¶ 16. Unlike the present case, we recognize that the claimant in Parchman missed work for approximately five months, yet continued to receive his salary. Id. at 350 (¶ 12). In Parchman, the supreme court found that there was:

clear evidence that Parchman did not continue to “earn” his full wages. It is an erroneous conclusion that Parchman was still performing the essential functions of his job and therefore continued to “earn” his full salary when he was absent from work for three weeks in February, five weeks in April-May 2002, and for the [three months] that he missed in the summer of 2002.

Id.

¶ 17. Here, we find nothing in the record to show that Ladner’s physicians restricted him from working during the period of time in question. Additionally, Zaehry Construction insists that it did not pay Ladner his wages in recognition of a compensable disability, but rather in return for work he performed. See Lindsay Logging Inc. v. Watson, 44 So.3d 388, 396 (¶ 29) (Miss.Ct.App.2010). The record in the case also reflects that Ladner missed no work due to his injury, and that the Zaehry Construction told Ladner that if he missed work, then he would not be paid.

¶ 18. We acknowledge the supreme court’s instruction that “workers’ compensation law is to be liberally and broadly construed, resolving doubtful cases in favor of compensation so that the beneficial purposes of the act may be accomplished.” Fin. Inst. Ins. Serv. v. Hoy, 770 So.2d 994, 997 (¶ 6) (Miss.Ct.App.2000) (citing Marshall Durbin Cos. v. Warren, 633 So.2d 1006, 1010 (Miss.1994)). However, we are limited by our standard of review of Commission decisions, which mandates that “[fjindings of fact made by the full Commission are binding on this Court provided they are supported by substantial evidence.” Hoy, 770 So.2d at 997 (¶ 6). Therefore, since the determinative issues in this case involve questions of fact, and not the construction of law, we must yield to the finding of disputed facts made by the fact-finder — the Commission.

¶ 19. When applying the applicable law to our appellate review of the Commission’s findings of fact and conclusions of law in the present case, we find substantial evidence supports the Commission’s order finding that Ladner’s claim was barred by the two-year statute of limitations and that Ladner’s salary failed to constitute wages in lieu of compensation. Accordingly, we affirm the judgment of the circuit court.

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

GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. LEE, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J., AND JAMES, J.

LEE, C.J.,

dissenting:

¶ 21. With respect to the majority, I must dissent. I agree with the AJ’s decision that Ladner was paid his wages in lieu of compensation, thus tolling the two-year statute of limitations. The issue here is not whether Ladner had a compensable injury but rather whether Ladner will be allowed to file his petition to controvert.

¶ 22. Although Ladner did not remain in the safety trailer all day, the evidence was clear that he did remain in the safety trailer for much of the time he was injured. The jobs Ladner purportedly performed while receiving compensation basically consisted of occasional busywork and odd jobs. One of these jobs was filing paperwork, which only took approximately thirty minutes to complete.

¶ 23. As the majority states from Parchman v. Amwood Products, Inc., 988 So.2d 346, 349 (¶ 9) (Miss.2008):

Unless there exists an agreement “that the wage is a gratuity in addition to workers’] compensation,” when a claimant “is paid his usual salary and does no work for a given period or does so little work that he really does not earn his wage[,]” the continued payment of the claimant’s salary “will be considered as having been in lieu of compensation.”

(Citation omitted). This is clearly a case where the claimant has done “so little work that he really does not earn his wage.” Ladner testified that any work he did when not confined to the safety trailer was sporadic at best, and he often had little or nothing to do during the day. The only testimony to refute Ladner’s testimony was that of Young and Devlin. Young testified that he did see Ladner working outside the safety trailer but also saw Lad-ner in the safety trailer. Young stated Ladner was a good employee who never caused problems. Devlin testified he would see Ladner outside the safety trailer but admitted it was not on a daily basis. Devlin had no knowledge of how long Lad-ner stayed in the safety trailer during the day. Neither was able to state with specificity a job description for Ladner. It was clear that Ladner’s previous job was to assemble scaffolding. Surely if Ladner was being paid a salary for his work, there were at least two supervisors who could have testified as to the nature of the work he performed. No such testimony was provided.

¶ 24. We are to construe our workers’ compensation laws “liberally and broadly” and resolve “doubtful cases in favor of compensation so that the beneficial purposes of the act may be accomplished.” Fin. Inst. Ins. Serv. v. Hoy, 770 So.2d 994, 997 (¶ 6) (Miss.Ct.App.2000) (citation omitted). I recognize that we are limited by our standard of review of Commission decisions and must affirm if these decisions are supported by substantial evidence. Id. However, I simply cannot find substantial evidence existed to support the Commission’s decision. I would reverse the Commission’s decision and affirm the AJ’s decision finding Ladner’s claim was not barred by the two-year statute of limitations.

IRVING, P.J., AND JAMES, J., JOIN THIS OPINION.

      . The insurance carrier, Zurich American Insurance Company, is also an appellee. Collectively, we will refer to both Zachry Construction and Zurich American Insurance Company as "Zachry Construction.”

      . Young testified that Ladner did "take some days off between the time of his injury and the time he was laid off [due to family problems].” Young testified that he informed Ladner that "when those days come up, that ... he was not to be compensated^] and [Ladner] agreed to that.”

      . We note that this rule has been superseded by statute. See Miss.Code Ann. § 71-3-1. However, the old rale applies to this case because Ladner’s injury occurred before the effective date of the statute.

      . Mississippi Code Annotated section 71-3-1(1) (Supp.2012) was recently amended to state the following: "[N]otwithstanding any common law or case law to the contrary, this chapter shall not be presumed to favor one party over another and shall not be liberally construed in order to fulfill any beneficent purposes.” However, this amendment only applies to injuries occurring on or after July 1, 2012. Ladner’s injury occurred on December 27, 2006; thus, the new language does not apply in this case. ■