author: CARLTON, J.,

text:
    Kathy ALLEGREZZA, Appellant v. GREENVILLE MANUFACTURING COMPANY and the Travelers Insurance Company, Appellees.
    No. 2011-WC-00090-COA.
    Court of Appeals of Mississippi.
    Sept. 25, 2012.
    Rehearing Denied Feb. 26, 2013.

      ■ Charlie Baglan, Lawrence J. Hakim, Batesville, attorneys for appellant.
    Marjorie T. O’Donnell, Oxford, attorney for appellees.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Kathy Allegrezza suffered injuries to her wrists and back during her employment at Greenville Manufacturing Co. (Greenville Manufacturing) and filed a claim to receive workers’ compensation. After a hearing, the administrative-law judge (ALJ) found a permanent partial impairment in both upper extremities based on Allegrezza’s carpal tunnel syndrome claim. The ALJ awarded Allegrez-za temporary total disabilities benefits for six weeks, and permanent partial disability benefits for fifty weeks. As to her back-injury claim, the ALJ found that Allegrez-za failed to demonstrate a loss of wage earning capacity as a result of her injury, and the ALJ awarded no compensation.

¶ 2. The ALJ also denied Allegrezza’s motion to amend the petition to controvert to allege psychological overlay. The ALJ further determined that Allegrezza received treatment by three doctors who were outside the chain of referral. The ALJ found that the treatments Allegrezza received by these three doctors were not reasonable and necessary to Allegrezza’s recovery; therefore, payment for the treatments failed to fall under the financial responsibility of Greenville Manufacturing.

¶ 3. On appeal, the Mississippi Workers’ Compensation Commission affirmed .the ALJ’s order as to the findings and decision on the carpal tunnel claim and psychological overlay claim. However, with respect to Allegrezza’s back injury, the Commission concluded that her injury resulted in some percentage of loss of wage earning capacity due to restrictions placed upon her by a pain specialist. Allegrezza then appealed to the Washington County Circuit Court, which affirmed the Commission’s decision.

¶ 4. Employing our limited standard of review, we are unable to say the Commission erred as a matter of law or acted in an arbitrary and capricious manner. Therefore, we affirm.

FACTS

¶ 5. Allegrezza, forty-one years old at the time of her workers’ compensation claim, attended school in Greenville, Mississippi, through the seventh grade. She began working for Greenville Manufacturing beginning in May 1993 as a sewer in the sewing department, and she continued working there on and off throughout the years. Allegrezza was last hired at Green-ville Manufacturing in May 1997, where she worked in quality control. Allegrezza soon requested and received a transfer to the “cutter department,” where she obtained a pay increase.

¶ 6. After the transfer, Allegrezza claims that she began to experience pain and swelling in her hands and wrists. Alle-grezza sought treatment from her physician, Dr. Joe Pulliam at Family Medical Clinic in Greenville, for her bilateral upper extremities. Greenville Manufacturing and its insurance carrier, The Travelers Insurance Company (Travelers), referred Allegrezza for an evaluation by Dr. Jim Adams. The record shows that Dr. Adams first treated Allegrezza on September 5, 1997. Dr. Adams referred Allegrezza to Dr. Don Carpenter for electromyogram and nerve conduction studies (EMG/NCS) and to Dr. Aubrey Lucas, a hand specialist in Jackson, Mississippi.

¶ 7. Dr. Carpenter performed the EMG/ NCS on September 23, 1997, and the ALJ’s opinion stated that those studies reflected that Allegrezza suffered from bilateral carpal tunnel syndrome. Allegrez-za also received treatment from Dr. Lucas on the same day, and continued to be evaluated by Dr. Lucas until February 25, 2000. After Allegrezza continued to complain of pain, and due to her apparent lack of improvement with conservative treatment, Dr. Lucas recommended surgery (bilateral carpal tunnel releases) on Alle-grezza’s wrists. The record shows that Allegrezza also sought evaluation from Dr, Larry Field, an orthopaedic surgeon, and Dr. Shelby Brantley, both of whom confirmed .the bilateral carpal tunnel syndrome diagnosis and recommended surgery.

¶ 8. Dr. Lucas performed bilateral carpal tunnel releases on Allegrezza on January 8, 1998. Dr. Lucas recommended that Allegrezza recover from her surgery before returning to work. Dr. Lucas indicated that he placed Allegrezza at maximum medical improvement (MMI) as of April 2, 1998, and he released Allegrezza to return to her regular duties at work on April 3, 1998. Dr. Lucas continued treating Alle-grezza, and the record reflects that repeát EMG/NCS studies showed Allegrezza’s condition had improved. Dr. Lucas’s final restrictions stated that Allegrezza could return to regular work duty for two hours per day, but he cautioned that her repetitive work should be restricted for the remaining six hours of any work day.

¶ 9. On February 25, 2000, Allegrezza complained to Dr. Lucas of increased wrist pain resulting from using scissors as part of her job as a cutter. Dr. Lucas recommended Allegrezza refrain from working for six weeks due to a recurrence of carpal tunnel symptoms. Dr. Lucas then released Allegrezza after that time to return to work under the same previous restrictions, specifying that “the amount of repetitive and/or forceful work should be decreased or limited. Repetitive work is defined as any work in which the fundamental task is repeated every 15 seconds or less or any work in which greater than 50% of the work cycle time ... involves pinching, gripping, or grasping.”

¶ 10. In his deposition, Dr. Lucas testified that the permanent work restrictions were due to the recurrence of Allegrezza’s symptoms, his findings on her physical examination, the objective EMG/NCS study, and his expertise in the field of hand surgery. Dr. Lucas also assigned a five percent permanent partial impairment rating to each of Allegrezza’s upper extremities and testified that her work caused or aggravated her bilateral carpal tunnel condition to where it became symptomatic. Dr. Lucas admitted on cross-examination that he allowed Allegrezza to choose her own restrictions, but stated that he felt the restrictions were adequately appropriate.

¶ 11. The record reflects that on January 21, 1998, Allegrezza tripped over a pallet at the plant while walking with and talking to a co-worker. Allegrezza fell on her left side. She alleged at the time that she reinjured both wrists, and also injured her left shoulder, neck, and lower back. Allegrezza returned to Dr. Lucas on January 22, 1998, for an evaluation of her wrists after the fall. The record states that Dr. Lucas indicated that the fall did not change Allegrezza’s ultimate condition or worsen the condition of either wrist.

¶ 12. Allegrezza sought another evaluation from Dr. Adams and Dr. Pulliam. Dr. Pulliam diagnosed Allegrezza with back strain and subsequently referred her to Dr. Rodney Frothingham, a neurosurgeon, for her back injury. Dr. Frothingham ordered a lumbar MRI, which was read as negative, but demonstrated a degenerated disc at L4 and L5 without any evidence of nerve root compression. Based on Alle-grezza’s MRI results, Dr. Frothingham determined that Allegrezza was not a surgery candidate. However, in his testimony, he agreed that a fusion surgery and radiculopathy, which reduces back pain for a patient, would be considered a successful surgery for Allegrezza to undergo. The record shows that Allegrezza eventually underwent a lumbar fusion surgery in September 1999, performed by Dr. Adam Lewis.

¶ 18. Dr. Jo Travis, an anesthesiologist who also specialized in pain management, also treated Allegrezza. When Allegrezza received no apparent relief from treatment from Dr. Travis, he referred her to Dr. David Collipp, a physical medicine and rehabilitation specialist. Dr. Collipp diagnosed Allegrezza with a left sacroiliac (SI) joint problem, and recommended that Alle-grezza proceed with a facet and SI.joint injection. Allegrezza underwent the facet injection, receiving immediate relief, but she did not receive the SI injection. Alle-grezza continued to receive treatment from Dr. Collipp, who eventually referred Alle-grezza back to Dr. Frothingham for further evaluation of her back. Dr. Frothing-ham reexamined Allegrezza on August 6, 1998, when he recommended a lumbar my-elogram.

¶ 14. Greenville Manufacturing and Travelers requested that Dr. John Brophy perform an evaluation of Allegrezza on August 11, 1998. Dr. Brophy opined that sacroiliitis was the primary source of Alle-grezza’s current pain, with possible mild lumbar radiculopathy. Dr. Brophy agreed with Dr. Frothingham’s recommendation for a lumbar myelogram/CT scan. Dr. Brophy explained that his evaluation yielded no evidence of nerve root compression, and he recommended that Allegrezza continue with nonsteroidal anti-inflammatories and progress to “work hardening/work conditioning” so that she could return to her previous level of activity. He concurred that Allegrezza was not a surgery candidate.

¶ 15. Allegrezza underwent the lumbar myelogram/GT scan on August 17, 1998, which reflected no focal abnormalities and no focal disc herniation. As stated in the ALJ’s order, the scan provided essentially normal results. Allegrezza returned to Dr. Collipp, who explained that since the myelogram did not reflect any abnormalities, he believed the L5 damage resulted from the pyriformis muscle, and he recommended continued therapy. Dr. Collipp prescribed pain medicine for the numbness and tingling and recommended a SI joint injection.

¶ 16. Allegrezza complained that her condition failed to improve, and Dr. Collipp informed her that there was very little on the physical examination to support her complaints. Dr. Collipp suggested that Al-legrezza undergo a functional capacity evaluation (FCE). On November 3, 1998, physical therapist Christopher Menhard performed a FCE and later an on-site job analysis at Greenville Manufacturing. Based on the FCE and the on-site analysis, Menhard opined that Allegrezza could safely perform all aspects of the job assigned to her' to perform as a cutter. Menhard indicated that Allegrezza needed job restrictions, but opined that she could perform a light to light-medium duty job. Menhard found that Allegrezza’s position as a cutter was a medium to light-medium duty job. Further, he found that although some repetition was involved in the job, there was no forceful repetition. He found that Allegrezza was able to take several minutes to rest between actions. Based on Menhard’s testimony, the ALJ found that Allegrezza “could have performed the job provided to her by Greenville Manufacturing.”

¶ 17. Following the FCE, Dr. Collipp reviewed the results with Allegrezza and indicated that she could return to work at a light-medium duty job. Her placed her at MMI on November 19, 1998, and assigned a ten percent permanent partial impairment rating to her body as a whole.

¶ 18. Allegrezza then returned to Dr. Pulliam, who referred her to Dr. Michael Steuer, a physician board certified in physical medicine and rehabilitation. The ALJ noted in her opinion that Allegrezza failed to obtain authorization from Greenville Manufacturing or Travelers to begin treatment with Dr. Steuer. The ALJ found that Allegrezza could have requested authorization from Greenville Manufacturing and Travelers to be treated by Dr. Steuer, or, “if [Greenville Manufacturing and Travelers] declined to authorize the treatment[,] ... then [Allegrezza] had the option of coming before the Commission and having the Commission authorize future treatment that [Allegrezza] might choose.” The ALJ found that the record contained no evidence that Allegrezza ever sought authorization from the Commission to receive treatment from Dr. Steuer. The ALJ further opined that in light of the medical testimony accumulated prior to the referral to Dr. Steuer, “it does not seem that [Allegrezza] went without any reasonable or necessary medical treatment.” Instead, it seemed “merely that she was dissatisfied with the results of some of the treatment she received.”

¶ 19. The record shows that Dr. Steuer referred Allegrezza to Dr. Margaret Cas-sada, a board-certified psychiatrist, for psychological treatment. Dr. Cassada opined that Allegrezza suffered from depression and problems with her psychosocial environment. Prior to her hearing before the ALJ, Allegrezza filed a motion to amend the petition to controvert to allege psychological overlay. The record shows that- in support of her motion, Alle-grezza offered the testimony of Dr. Cassa-da.

¶ 20. The ALJ ultimately denied Alle-grezza’s motion to amend the petition to controvert, finding the treatment provided by Dr. Steuer and Dr. Cassada, and also by Dr. Lewis, outside the chain of referral. The ALJ further found that the treatment by these doctors was not the financial responsibility of Greenville Manufacturing or Travelers, and that the treatment was not reasonable and necessary to Allegrezza’s recovery. When addressing the medical testimony later in the opinion, the ALJ stated that “[s]ince the issues of Dr. Steuer’s treatment and all following treatment for the back and alleged psychological injuries have been previously addressed, no further medical testimony regarding those issues will be considered.”

¶ 21. Allegrezza testified that her last day of work at Greenville Manufacturing was February 9, 2000. Allegrezza claims that Greenville Manufacturing terminated her because she did not have the ability to perform her job. The record reflects that at the time of the hearing, Greenville Manufacturing’s plant had been closed down for a period of time; therefore, Greenville Manufacturing provided no testimony on its own behalf. Allegrezza testified that she had conducted a job search, and the ALJ’s order reflects the finding that Alle-grezza met her burden in that regard. On her job applications, Allegrezza explained that she left her prior employment because of her placement on leave due to medical conditions. The ALJ further noted that at the hearing, Allegrezza admitted that no doctor instructed her that she could not work, including Doctors Steuer, Cassada, and Lewis (the doctors whose care the ALJ did not recognize as reasonable and necessary).

¶ 22. After the hearing, the ALJ entered an order on October 2, 2002, finding that with regard to carpal tunnel syndrome, Allegrezza had sustained a com-pensable workplace injury under Mississippi Code Annotated section 71-3-1 (Rev. 2011). The ALJ found that Allegrezza reached MMI on April 2, 1998, and assigned a five percent permanent partial impairment rating to each upper extremity, which amounts to an industrial loss of use of twenty-five weeks per extremity, for a total of fifty weeks. With regard to the lower-back injury, the ALJ found that Al-legrezza sustained a compensable injury on January 22, 1998. However, the ALJ stated that, based on the testimony provided, Allegrezza did not demonstrate a loss of wage earning capacity as a result of the fall and back injury, and thus was entitled to no compensation for this injury.

¶ 23. Based on her findings, the ALJ ordered that Greenville Manufacturing and Travelers provide Allegrezza the following: temporary total disability benefits of $224 for six weeks beginning February 25, 2000; permanent partial disability benefits of $224 for fifty weeks, with credit allowed for benefits previously paid; medical treatment, services, and supplies pursuant to section 71-3-15 for such period as Alle-grezza’s injury and the process of her recovery required, but limited to such charges as prevail in the same community for similar treatment and subject to regulation by the Commission and its fee schedule.

¶ 24. Allegrezza appealed to the full Commission. After a hearing on August 18, 2003, the Commission entered an order affirming the order of the ALJ in part and reversing and rendering in part. Specifically, the Commission affirmed the ALJ?s order on the issue of Allegrezza’s carpal tunnel claims and the issue of psychological overlay, where the ALJ denied Alle-grezza’s motion to amend the petition to controvert. In affirming the ALJ’s order in part, the Commission also determined that sufficient evidence existed showing that Allegrezza was capable of employment despite her injury. However, the Commission reversed the ALJ’s order in part on the back-injury claim, finding that Alle-grezza’s injury resulted in some percentage of loss of wage earning capacity due to restrictions set forth by Dr. Collipp. The Commission determined that Allegrezza was entitled to $67.20 per week for a period of 450 weeks, commencing November 19,1998.

¶ 25. Allegrezza appealed the Commission’s decision to the circuit court. After reviewing the record, the circuit judge affirmed, holding that Allegrezza failed to present evidence to support her claims that the Commission erred in its determination. The circuit judge also found that no evidence of psychiatric complaints existed prior to Allegrezza being released to return to work under the limitations provided by Dr. Collipp.

¶ 26. Allegrezza now appeals, claiming: (1) the Commission failed to apply correct legal standards to her claim; (2) the Commission erred in finding that Allegrezza reached MMI before her back surgery; (3) she is permanently and totally disabled for wage-earning purposes; (4) she is permanently and totally disabled as a result of her back injury; and (5) the Commission erred by failing to consider her psychological overlay claim.

STANDARD OF REVIEW

¶ 27. This Court employs a limited standard of review in a workers’ compensation appeal. We must determine only “whether the decision of the Commission is supported by substantial evidence.” Casino Magic v. Nelson, 958 So.2d 224, 228 (¶ 13) (Miss.Ct.App.2007) (citing Westmoreland v. Landmark Furniture, Inc., 752 So.2d 444, 447 (¶ 7) (Miss.Ct.App.1999)). “The Commission sits as the ultimate finder of facts; its findings are subject to normal[,] deferential standards upon review.” Id. (citing Natchez Equip. Co. v. Gibbs, 628 So.2d 270, 273 (Miss.1993)). Because our review is limited, this Court “will only reverse the Commission’s rulings where findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious.” Id. (citing Westmoreland, 752 So.2d at 448 (¶ 8)). We maintain this deferential standard of review even if we would have been persuaded to rule otherwise if we had been the fact-finder. Vance v. Twin River Homes, Inc., 641 So.2d 1176, 1180 (Miss.1994).

DISCUSSION

¶ 28. Allegrezza claims that the opinions of the ALJ and the Commission are contrary to the overwhelming weight of the lay and medical evidence presented at the hearing. She contends that the Commission failed to resolve doubt in her favor, but resolved doubt in favor of Greenville Manufacturing on most issues, Allegrezza submits that the Commission erred in determining that Allegrezza reached MMI on April 2, 1998. Allegrez-za claims that she did not reach MMI until after her back surgery on September 9, 1999.

¶ 29. She further asserts that the ALJ and Commission failed to apply the correct legal standard, submitting that the Worker’s Compensation Act must be construed liberally in favor of claimants. See Meridian Prof'l Baseball Club v. Jensen, 828 So.2d 740, 744 (¶ 10) (Miss.2002) (stating that workers’ compensation statutes are to be given “broad and liberal construction,” and doubtful cases should be resolved in favor of compensation).

¶ 30. With regard to workers’ compensation claims, this Court has recognized:

An employer is to pay for medical treatments that are reasonable and necessary and that result from the work-related injury. In addition, there are procedural safeguards involved with the incurring of medical costs. The Workers’ Compensation Act requires that an employer provide medical services to the injured employee commensurate with the “nature of the injury or the process of recovery.” Miss.Code Ann. § 71-3-15(1) (Rev.2000). We summarize this statute’s requirements. An employee may choose a personal physician or accept a physician chosen by the employer. The employer is also responsible for expenses of a physician to whom the claimant is referred by the original treating physician. An employee is allowed referral to one physician practicing “within a specialty or subspecialty area.” Id. Referrals to additional physicians must be approved by either the employer or the employer’s insurance carrier. Treatment rendered by a physician or referrals from a physician other than the original treating physician that have not been approved are not the responsibility of the employer or its insurance carrier.

Wesson v. Fred’s Inc., 811 So.2d 464, 467 (¶ 9) (Miss.Ct.App.2002).

¶ 31. Although Allegrezza attacks the legal standards applied by both the ALJ and Commission, we must recognize that the Commission sits as the ultimate fact-finder. Casino Magic, 958 So.2d at 228 (¶ 13). Additionally, the Mississippi Supreme Court has stated that the Commission may consider medical testimony and lay-witness testimony in deciding the percentage of loss assigned to an injury, and the probative value of any witness’s testimony is determined by the fact-finder. McGowan v. Orleans Furniture, Inc., 586 So.2d 163, 167 (Miss.1991). At the hearing before the ALJ, the ALJ heard testimony from Allegrezza, and the ALJ. considered deposition testimony and affidavits from physicians who treated Allegrezza. Based on the evidence presented, the ALJ found, in the decision affirmed by the Commission, that the treatments provided by Doctors Steuer, Cassada, and Lewis did not constitute reasonable and necessary treatment. Further, the record reflects that Allegrezza failed to seek permission from Greenville Manufacturing or Travelers before receiving treatment from these three physicians. The ALJ thus held (and the Commission affirmed this determinar tion) that the testimony provided by these doctors would not be considered when -determining whether Allegrezza was entitled to compensation.

¶ 32. Allegrezza also argues that the evidence presented at the hearing supports her allegation that, contrary to the Commission’s findings, she was a surgical candidate. Allegrezza contends that the Commission ignored the fact that Dr. Steuer performed discograms on Allegrez-za, which, led to further surgery by Dr. Lewis. Allegrezza argues that undisputed proof exists that she achieved significant improvement from the surgery, which refutes the testimony of the doctors who had opined that the back surgery was not warranted or reasonable and necessary. Alle-grezza submits that all medical testimony is to be considered and weighed appropriately; therefore, the Commission should have considered the testimony of Doctors Steuer, Cassada, and Lewis.

¶ 33. Our review of the record shows that the ALJ also found that with regard to the carpal tunnel claim, Allegrezza sustained a compensable injury pursuant to section 71-3-1. The Commission affirmed this ALJ’s order on this claim. The'ALJ’s order reflected that Allegrezza reached MMI on April 2, 1998, and Allegrezza received a five percent permanent partial impairment rating to each upper extremity. The ALJ noted that this impairment rating required an industrial loss of use of twenty-five weeks per extremity, for a total of fifty weeks. The ALJ thus awarded Allegrezza temporary total disability benefits of $224 for six weeks, beginning February 25, 2000. The ALJ also awarded permanent partial disability benefits of $224 for fifty weeks, with credit allowed for benefits previously paid. As stated, the Commission then affirmed the ALJ’s order in part with regard to the carpal tunnel claim, but the Commission reversed in part regarding Allegrezza’s back injury and ultimately awarded Allegrezza compensation for her back injury.

¶ 34. Regarding Allegrezza’s argument that the Commission erred by failing to consider her psychological overlay claim, the record reveals Allegrezza alleged her claim of psychological overlay based on the diagnosis and treatment of Dr. Cassada. As previously noted, Allegrezza failed to seek permission from Greenville Manufacturing or Travelers to receive treatment from Dr. Cassada. Further, regarding this claim, the ALJ stated that no evidence of psychiatric complaints existed in the record prior to Allegrezza’s release to return to work under the restrictions and limitations provided by Dr. Collipp.

¶ 35. We recognize that for workers’ compensation purposes, treatment rendered by a physician, other than the original treating physician, who has not been approved by the employer or its insurance carrier is not the responsibility of the employer or insurance carrier. See Wesson, 811 So.2d at 467 (¶ 9). Therefore, we find no error in the Commission’s decision to disregard the testimony of Doctors Steuer, Cassada, and Lewis or in the Commission’s decision to affirm the ALJ’s denial of Allegrezza’s motion to amend her petition to claim psychological overlay. The record reflects that Allegrezza failed to provide evidence showing that she sought approval from Greenville Manufacturing or Travelers before undergoing treatment with these doctors.

¶ 36. Additionally, we find the record replete with medical testimony from Allegrezza’s treating physicians. Upon review, we find this testimony supports the circuit court’s decision affirming the Commission’s award of benefits, as well as the finding that Allegrezza reached MMI on April 2, 1998, prior to her back surgery.

¶ 87. Finally, Allegrezza argues that she is permanently and totally disabled for wage earning purposes. Alle-grezza claims that her back injury alone renders her permanently and totally disabled, but she also alleges that the Commission should have found her permanently and totally disabled based on her upper-extremity injuries, even without consideration of the medical reports and doctors’ opinions appearing in the record. Alle-grezza also cites to Foamex Products, Inc. v. Simons, 822 So.2d 1050, 1055 (¶ 19) (Miss.Ct.App.2002), where this Court found that since the claimant suffering from carpal tunnel syndrome suffered the loss of use of a scheduled member, she was entitled to compensation for total loss of use of the member.

¶ 38. Allegrezza also claims that Green-ville Manufacturing failed to rebut her pri-ma facie case proving total disability, and that she was terminated because she could not perform her job. However, the record reflects that Greenville Manufacturing provided no testimony regarding this allegation because the plant had been closed for years prior to the hearing.

¶ 39. Further, we note that the testimony of Menhard, a physical therapist, reflects that he performed an on-site job analysis and opined that with proper safety techniques, Allegrezza could perform all aspects of the job assigned to her by Greenville Manufacturing. As a result, we find substantial credible evidence supports the Commission’s finding that Allegrezza was capable of being employed despite her injury. See Casino Magic, 958 So.2d at 228 (¶ 13). We thus affirm the circuit court’s judgment affirming the Commission’s order regarding the award of compensation for Allegrezza’s back injury and carpal tunnel injury, as well as regarding her loss of wage earning capacity.

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

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

      . The record reflects that at the hearing before the ALJ on May 14, 2002, all medical testimony from the doctors who treated Alle-grezza was provided via deposition or by affidavit.

      . As noted previously, the Commission affirmed the ALJ’s order in part on Allegrezza’s carpal tunnel and psychological overlay claims. The Commission failed to make any additional factual findings in its order regarding these claims.


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    In the Matter of the ESTATE OF Theodore Clark WEILL, Deceased: Janelle Skinner Weill, Appellant, v. Terry Paul Weill, Appellee.
    No. 2011-CA-00222-COA.
    Court of Appeals of Mississippi.
    Nov. 6, 2012.
    Rehearing Denied April 9, 2013.
    Certiorari Denied Sept. 19, 2013.

      Margaret Williams Holmes, Marcus Alan McLelland, Petal, attorneys for appellant.
    Robert T. Jackson Jr., Derek Royce Ar-rington, Hattiesburg, attorneys for appel-lee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. This appeal considers when a decedent’s spouse can renounce a will. Janelle Skinner Weill, the decedent’s spouse, filed a motion to renounce the will. The chancellor denied the motion. On appeal, Janelle argues that it was error for the chancellor to: (1) find no renunciation of the will by operation of law; (2) find the decedent’s spouse did not timely renounce the will; and (3) deny the motion to disqualify the executor. We find no error and affirm.

FACTS

¶ 2. This case arises from the death of Theodore (“Ted”) Clark Weill. Ted died testate on November 20, 2009, in Pike County, Mississippi.

¶ 3. Ted was survived by his wife, Janelle Skinner Weill. Janelle lived at her home in Nebraska but also spent time in the couple’s homes in Mississippi and Michigan. Before Ted’s death, Janelle had filed for divorce in the State of Nebraska. The petition for divorce was dismissed after Ted’s death.

¶ 4. Ted was also survived by six adult children from a previous marriage: Kathryn Louise Long, Susan Marie Weill, Eric Noel Weill, Jefferey Alan Weill, Timothy Clark Weill, and Terry Paul Weill.

¶ 5. On November 24, 2009, Janelle filed a petition for letters of administration in the Chancery Court of Pike County, Mississippi, Cause No.2009-632. Janelle claimed Ted died intestate and sought appointment of an administratrix.

¶ 6. On November 25, 2009, Terry, an attorney, filed a petition for the probate of Ted’s will and appointment of an executor in the Chancery Court of Pike County, Mississippi, Cause No.2009-635. According to the will submitted for probate by Terry, Ted’s will appointed his daughter Kathryn and Terry to serve as co-executors of his estate. For reasons not relevant to this appeal, Kathryn executed a notice of declination to serve as a co-executor of Ted’s estate and requested that Terry be appointed as sole executor of the estate. Thereafter, Terry proceeded as the sole executor of his father’s estate.

¶ 7. On December 21, 2009, Terry filed an objection to the petition for letters of administration filed by Janelle in Cause No.2009-632.

¶ 8. On January 7, 2010, the chancellor held a telephone conference. Counsel for both Janelle and Terry participated in the conference. Janelle alleges that during this telephone conference, the chancellor and attorneys discussed Janelle’s intent to renounce Ted’s will.

¶ 9. By order dated January 13, 2010, the chancellor ruled that Ted’s will was valid and admitted it to probate. The chancellor ordered that letters testamentary be issued to Terry, as the executor of Ted’s estate. The effect of this order was to consolidate the separate petitions filed by Janelle and Terry, and the litigation proceeded with all pleadings filed in Cause No.2009-635.

¶ 10. Terry proceeded with the administration of the estate. On February 1, 2010, Terry filed an affidavit of notice to creditors. The notice was published in the Pike County newspaper for three consecutive weeks. On February 24, 2010, Terry filed an inventory of money, debts due the decedent, and property not appraised. The inventory contained all of Ted’s assets that were known by the executor and family members at the time of Ted’s death. Terry also responded to several motions made against the estate which are not relevant to this appeal.

¶ 11. On May 28, 2010, Janelle filed a motion to renounce the will. In the motion, Janelle asserted:

[O]n or about January 7, 2010, soon after petition(s) had been filed regarding the estate of Theodore Clark Weill, a telephone conference was held whereby widow, Janelle’s attorney, formally renounced the will to both the honorable Judge and to the attorney for the executor/estate.
... An affidavit has been attached further supporting the widow’s continued intentions to do the same.

¶ 12. In the affidavit, Janelle stated:

I hereby renounce the provisions made for me in the will regarding any gift of dogs and a small amount of money in which to utilize in transporting them to Nebraska. In lieu of that gift, I am asking for a widow’s share as if intestate.
... [M]y attorney, Margaret Holmes, during a phone hearing on or about January 7, 2010 to determine which petition would be utilized in my late husband’s estate proceedings, ... declared on my behalf to the honorable judge and the attorney for the estate/executor that I was at that time indeed renouncing that portion of the will.

¶ 13. On September 14, 2010, the chancellor entered an order that denied Janelle’s motion to renounce the will and held that “the [ejstate shall proceed with Janelle ... taking as a beneficiary under the terms and conditions of ... [Ted’s will], probated herein.”

¶ 14. On November 16, 2010, Terry filed the first and final accounting and the petition for approval of the accounting and to close estate.

¶ 15. On November 22, 2010, Janelle filed a motion to disqualify Terry as the executor of Ted’s estate and alleged he had breached various fiduciary duties. Janelle also filed a motion, pursuant to Rule 60(a)-(b) of the Mississippi Rules of Civil Procedure, for relief from the order denying her motion to renounce Ted’s will. On December 2, 2010, Janelle filed an objection and motion to strike the executor’s petition for a first and final accounting and to close the estate.

¶ 16. On January 24, 2011, Janelle filed a motion for a declaratory judgment finding by operation of law renunciation of the will unnecessary or, in the alternative, that the previous renunciation was perfected.

¶ 17. On January 26, 2011, the chancellor entered separate orders that: (a) denied Janelle’s motion for reconsideration of the order denying her motion to renounce the will; (b) denied Janelle’s Rule 60(a)-(b) motion for relief from the order denying her motion to renounce; (c) denied Janelle’s motion to disqualify Terry as executor; (d) denied Janelle’s objection and motion to strike the petition for first and final accounting and to close the estate; (e) denied Janelle’s motion for a declaratory judgment; and (f) entered judgment that approved the first and final accounting and closed the estate. Janelle filed her notice of appeal on February 8, 2011.

STANDARD OF REVIEW

¶ 18. This Court will not reverse the chancellor’s judgment unless we conclude that the chancellor’s findings of fact were clearly erroneous, manifestly wrong, or the chancellor applied an incorrect legal standard. In re Estate of Thornton, 922 So.2d 850, 852 (¶ 6) (Miss.Ct.App.2006). We will review legal questions de novo. Id.

ANALYSIS

1. Whether Janelle was entitled to renounce Ted’s will.

A. Whether renunciation occurred by operation of law.

¶ 19. The chancellor determined that Janelle was a beneficiary under Ted’s will by virtue of a specific bequest contained in Item 5 of the will. Janelle argues that Ted’s will failed to make any provision for her and that the chancellor erred in the denial of her motion for renunciation.

¶ 20. Janelle relies on Mississippi Code Annotated section 91-5-27 (Rev.2004), which provides:

If the will of the husband or wife shall not make any provision for the other, the survivor of them shall have the right to share in the estate of the deceased husband or wife, as in case of unsatisfactory provision in the will of the husband or wife for the other of them. In such case a renunciation of the will shall not be necessary, but the rights of the survivor shall be as if the will had contained a provision that was unsatisfactory and it had been renounced.

She claims that she was not required to take any action to affirmatively renounce Ted’s will. In Tillman v. Williams, 403 So.2d 880, 881 (Miss.1981), the supreme court held that section 91-25-27 “specifically relieves the surviving spouse from taking any affirmative action and the law automatically renounces the will.” (Citation omitted).

¶ 21. The chancellor determined that Janelle was a beneficiary under Ted’s will by virtue of Item 5, which provided:

My wife Janelle Skinner Weill has requested this date (08/25/2008) that she not be included in any way, shape, or form in my Will, except that she receive my seven beloved dogs to care for. She is to be offered $25,000 from my assets to effect the transfer of my dogs to her home, wherever that may be at the time of my death.

¶ 22. Janelle argues that neither the dogs nor the $25,000 cash payment constitutes a bequest or provision to her from Ted’s will. Hence, she argues that Item 5 of the will does not make her a beneficiary under the will, and she is entitled to renounce the will pursuant to Mississippi Code Annotated section 91-5-27.

¶ 23. Janelle also cites Phillips v. Estate of Holzmann, 740 So.2d 1 (Fla.Dist.Ct.App.1998), for the proposition that Item 5 of Ted’s will was not sufficient to make Janelle a beneficiary under the will. In Phillips, the estate sought the return of $25,000 that was paid to a friend of the testator under the terms of a will “for the care and shelter of ... two dogs.” Id. at 2. Because the testator’s dogs were put to sleep shortly after the testator died, the testator’s parent sought the return of the $25,000. Id. The court ordered the return of the money on the basis that it could not be used for the designated purpose, i.e., the continuing care of the dogs, since the dogs had been put to sleep. Id.

¶ 24. Here, unlike Phillips where the money was paid for the continuing care of the dogs, the provision for a $25,000 cash payment to Janelle was a specific and absolute bequest. Janelle was to receive Ted’s seven dogs and $25,000 for the transfer of the dogs to her home, wherever she may live at the time of Ted’s death. This bequest was not in the form of a trust for the future care and shelter of Ted’s dogs, but was to be paid to Janelle for the transfer of the dogs to her home. Thus, unlike Phillips, even had Ted’s dogs not survived the transfer to Janelle’s home, the bequest of the $25,000 was absolute.

¶ 25. For reasons that were his alone, Ted decided to leave Janelle his seven dogs. Even though Item 5 of the will stated that Janelle requested that she not be “included in any way, shape, or form,” the will still provided for her through the bequest of the dogs and a $25,000 cash payment for the transport of the dogs to her home.

¶26. We find no error in the chancellor’s conclusion that Janelle was a beneficiary under Ted’s will. As a result, we agree with the chancellor that section 91-5-27 does not apply to renounce Ted’s will by operation of law.

B. Whether Janelle affirmatively renounced her provision under the will.

¶ 27. Janelle claims that she timely renounced the will. Assuming Janelle could have renounced the will under any circumstances given the record in this case, she would have been required to do so within a statutory time period. Mississippi Code Annotated section 91-5-25 (Rev.2004) provides:

When a husband makes his last will and testament and does not make satisfactory provision therein for his wife, she may, at any time within ninety (90) days after the probate of the will, file in the office where probated a renunciation to the following effect, viz.: “I, A B, the widow of C D, hereby renounce the provision made for me by the will of my deceased husband, and elect to take in lieu thereof my legal share of his estate.” Thereupon she shall be entitled to such part of his estate, real and personal, as she would have been entitled to if he had died intestate, except that, even if the husband left no child nor descendant of such, the widow, upon renouncing, shall be entitled to only one-half CP) of the real and personal estate of her deceased husband. The husband may renounce the will of his deceased wife under the same circumstances, in the same time and manner, and with the same effect upon his right to share in her estate as herein provided for the widow.

(Emphasis added).

¶ 28. To support her argument, Janelle cites Gettis v. McAllister, 411 So.2d 770 (Miss.1982). In Gettis, the wife of the testator filed her renunciation of the will prior to an order admitting the will to probate or granting letters testamentary. Id. at 771. The chancellor allowed the renunciation, and the supreme court held that “[i]n this case the widow’s renunciation, albeit before formal probate, had the effect of advising the court and all parties of her election the same as they would have been advised if timely made after probate. In our opinion, this conforms with the legislature’s intention and in no wise prejudices any of the parties to this suit.” Id. at 772.

¶ 29. Here, Janelle’s written renunciation was filed more than ninety days after the chancellor admitted Ted’s will to probate. The chancellor entered the order that admitted Ted’s will to probate on January 13, 2010. Janelle filed her motion to renounce Ted’s will on May 28, 2010. Janelle’s motion was beyond the ninety-day statutory period set forth in Mississippi Code Annotated section 9-5-25. Gettis offers no authority to support Janelle’s position.

¶ 30. Janelle also claims thát her counsel orally renounced Ted’s will in the telephone conference. Janelle contends that this statement in the telephone conference placed all parties on notice of her intent to renounce the will. The telephone conference is not part of the record. Section 91-5-25 does not provide for an oral notice to renounce the provisions of a will. Instead, the statute specifically requires written renunciation of the will with the clerk within ninety days after the probate of the will. The statute even states the necessary language that must be used. Id.

¶ 31. Based on the record before us, there is no evidence that Janelle renounced the will as required by section 91-5-25. Accordingly, we find that the chancellor correctly determined that, to the extent that renunciation was permissible, Janelle’s motion was not timely. We find no error in this decision.

2. Whether the chancellor erred in failing to disqualify Terry as executor.

¶ 32. Janelle next argues the chancellor erred in the denial of her motion to disqualify Terry as executor. Janelle claims that Terry breached his fiduciary duties to the estate by: (1) failing to produce a complete and accurate list of assets in the estate’s inventory; (2) failing to complete an audit or appraisal on the business owned by the estate, leading to undervaluation; and (3) delaying the spreading of the Ted’s ashes pursuant to the will.

¶ 33. “[T]he chancellor enjoys great discretion in the decision of whether to appoint or remove an executor.” In re Estate of Carson, 986 So.2d 1072, 1077 (Miss.Ct.App.2008). Here, the estate had sufficient assets to pay Janelle the specific bequest of seven dogs and $25,000. The chancellor determined that Janelle would not have benefitted from an accounting of assets or an appraisal of the business. Even if another accounting had been conducted, Janelle’s bequest would not have been affected.

¶ 34. Janelle also argues that Terry breached his fiduciary duty as executor when he delayed the spreading of Ted’s remains as set forth in the will. Item 3 of the will provided:

When I die, my remains are to be cremated and spread throughout my 160 acre farm at Sears, Michigan. However, if there is a need for any good body organs that I might have, they should be donated to an organ bank or individuals as determined by the executors of my estate.

Ted’s will did not mandate a time frame to scatter his ashes in Michigan. During the January 26, 2011 hearing, Terry advised the chancellor that April 9, 2011 had been set for the ceremony in Michigan and that Janelle had been notified. Janelle did not object to the April 9, 2011 ceremony. The chancellor subsequently approved the date to spread Ted’s ashes in Michigan.

¶ 35. Janelle’s argument to this Court does not explain how the delay in spreading Ted’s ashes was a violation of the executor’s fiduciary duty such that would require his removal. We note that Ted’s will did not provide a time frame for the executor to carry out this duty. Terry explained that due to the distance involved, weather considerations, and the number of people who needed to be invited, the proposed date was reasonable. This matter was discussed at a hearing, and the chancellor’s January 26, 2011 judgment affirmed the date to spread Ted’s ashes. We can find no error with the chancellor’s decision.

¶ 36. Accordingly, we find this issue to be without merit and affirm the chancellor’s judgment.

¶ 37. THE JUDGMENT OF THE CHANCERY COURT OF PIKE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . On December 28, 2010, the chancellor signed an agreed order to consolidate Cause No.2009-632 and Cause No.2009-635. The record on appeal includes the consolidated files from the chancery court. There appears to be no claim of error due to the separate court files.


text:
    Kenneth G. HAIK and Diana W. Haik, Appellants/Cross-Appellees v. James D. GAMMILL, Britton D. Gammill, John T. Ball, Eileen Ball and The Estate of Reuben Lee Harper, Jr., Appellees/Cross-Appellants.
    No. 2011-CA-00975-COA.
    Court of Appeals of Mississippi.
    Feb. 26, 2013.
    Rehearing Denied June 11, 2013.
    Certiorari Denied Sept. 19, 2013.

      Kenneth B. Rector, Allison McDonald Brewer, Vicksburg, attorneys for appellants.
    Robert C. Latham, John T. Ball, Lucien C. Gwin Jr., Natchez, attorneys for appel-lees.
    Before GRIFFIS, P.J., CARLTON, MAXWELL and FAIR, JJ.
   CARLTON, J.,

for the Court:

¶ 1. This appeal stems from a complaint filed in the Adams County Chancery Court by Kenneth G. Haik and Diana W. Haik, alleging that James D. Gammill, Britton D. Gammill, John T. Ball, and Eileen Ball possessed no right to access their respective properties by use of an existing driveway (hereinafter “Service Road”) on the Haiks’ property. The Gammills and Balls filed counterclaims and amended counterclaims asking the chancellor to determine that the Gammills and Balls had an easement over the Service Road to access their respective properties.

¶ 2. The chancellor found the Gammills and Balls were entitled to an implied easement by necessity, providing a non-exclusive easement for all purposes of ingress and egress on the existing gravel Service Road. The record shows that the grantee of the estate conveyed this easement along the Service Road in 1967 when subdividing commonly owned lots that were part of her dominant estate. The chancellor found the entitlement to an implied easement by necessity existed after determining that the Haiks’ property, along with the Gammills’ and Balls’ properties, constituted subdivided parts of a previously commonly owned estate. The chancellor further determined that the Gammills and Balls possessed no access to their properties except by using the implied easement by necessity along the Service Road.

¶ 3. With respect to the cross-appeal, the chancellor found no abandonment of an express easement conveyed in 1968 by adjacent property owners for the building of a dedicated road to access South Union Street. The chancellor found no abandonment of this express easement even though no such road had even been built. In his judgment, the chancellor also ordered the Gammills and Balls to maintain the Service Road.

¶ 4. Finding substantial evidence in the record supporting the decision and judgment of the chancellor, we find no abuse of discretion and affirm. See Johnson v. Hinds Cnty., 524 So.2d 947, 956 (Miss.1988).

FACTS

¶ 5. The Haiks filed a complaint in the Adams County Chancery Court alleging that the Gammills and Balls possessed no right to access each of their respective properties by use of the Service Road located on the Haiks’ property. The Gam-mills and Balls responded by filing a counterclaim and amended counterclaim requesting the chancellor to determine that the Gammills and Balls possessed an easement over the Service Road, allowing them to access their respective properties.

¶ 6. None of the parties disputed that an express easement for ingress and egress existed over the Service Road, granted by the Haiks’ predecessors in title pursuant to the terms of a deed executed on January 5, 1968. However, the Haiks contended that the easement over the Service Road is appurtenant, by its express terms, only to a certain 2.3-acre lot owned by Pat Doherty and Bill Crews. The Haiks asserted that the easement failed to convey a right of ingress or egress to the properties owned by the Gammills and Balls. The Haiks argued that the Gammills and Balls should be required to access their properties over a separate easement (hereinafter referred to as the Dedicated Road easement) abutting their respective lots and also conveyed by the January 1968 deed.

¶ 7. The record reflects that Louise Met-calfe Williams, the prior owner of the property at issue, subdivided her property in 1967 and conveyed a 2.3-acre tract of land to her nephew and his wife, William and Isabel Adams. The 2.3 acres of land did not abut a public road. The deed stated:

And for the same consideration, I do hereby give and grant unto the Grantees a right-of-way and easement through the “Ravenna” property, extending from the easterly end of Ravenna Road as shown on the map of survey hereto attached, and running alongside of and parallel to the existing gravel and macadam access and service road to the tract of land hereby conveyed, which right-of-way and easement is for the purpose of installing and maintaining gas, electricity, water, sewage and other utility services from existing service connections on Ravenna Road to the tract of land hereby conveyed.

Williams then built a house on a 3.1-acre lot where the Service Road is located (known as the “Ravenna house lot”).

¶ 8. The Gammills and Balls each subsequently received a separate and distinct easement for an adjacent property to access a public roadway, South Union Street. With respect to this alternate access to the Gammills’ and the Balls’ properties, the chancellor’s findings reflect that on January 5, 1968, both Williams and Roane Fleming Byrnes, the owner of the adjacent Ravenna property known as “Ravenna-side,” conveyed to Williams and Isabel Adams, and their heirs and assigns, a “perpetual, non-exclusive right[-]of[-]way and easement” across Ravenna and Raven-naside from South Union Street. The right-of-way and easement conveyance also contained the following language:

Until such time as a roadway is built and completed on the right-of-way here-inabove described, for the same consideration herein expressed, the undersigned Mrs. Louise Metcalfe Williams does hereby give and grant unto [William and Isabel Adams], their heirs, successors, and assigns, a non-exclusive easement for all purposes of ingress and egress in, on, over and across the presently existing gravel and macadem access and service road extending from the east end of Ravenna Road as shown on the plat hereto attached to the 2.3[-]acre tract of the Grantees as shown on the plat hereto attached.

The chancellor stated that this conveyance “did not say who was to build the roadway or when the roadway was to be built.” The chancellor also noted that the minutes of the Natchez Planning Commission reflected that the property owners did not want to have the new street constructed and wanted to access their lots through the service road as previously conveyed to the Adamses.

¶ 9. The record reflects that from 1971 to 1973, Williams further subdivided the Ravenna property by conveying three additional common lots to the Adamses. These three lots did not include, or reference, a conveyance of the right-of-way across the Dedicated Road easement conveyed by Williams and Byrnes (the property owner of the adjacent Ravennaside). Additionally, the 1971 to 1973 conveyances of additional common lots failed to include an express easement along the Service Road; instead, “all recorded rights[-]of[-]way, easement roadways, power lines and railroads appearing of record or observable on the ground” were expected from all three conveyances.

¶ 10. The Adamses later sought permission from the Natchez Planning Commission to divide one of the common lots into two separate lots. The Adamses then conveyed one of those lots to Donald and Lynn Ogden in 1981. The- Ogdens later conveyed the tract of land back to the Adamses.

¶ 11. After the Adamses passed away, their heirs conveyed all four tracts to the Gammills by a deed dated July 5, 1994. The deed conveyed the Service Road easement as well as the Dedicated Road easement. In 1998, the Gammills conveyed one of the tracts to the Balls, and this conveyance also included the Service Road easement and Dedicated Road easement. From 2002 to 2007, tracts of the property were conveyed to Billie F. Dean, Reuben Harper, Patrick Doherty, and Bill Crews Jr. All of the conveyances included the Service Road and Dedicated Road easements and rights-of-way.

¶ 12. The Ravenna house lot, where the Service Road is located, was conveyed to Malian and Catherine Morgan, and then to Melody Thayer, and then finally to the Haiks. This conveyance was made subject to any and all utility, drainage, or other easements, whether of use or of record.

¶ 13. The chancellor stated that when he viewed the Ravenna property, he found that the Dedicated Road Easement “has been enclosed and fenced by [Reuben Harper].” The chancellor also observed that past the fence “a deep ravine or large gully ... runs along and almost completely across” the Dedicated Road easement.

¶ 14. During a trial held September 15-16, 2010, the chancellor heard testimony from Duke Edwards, Robert Green, James Gammill, George Ward, David Huber, Reuben Harper, and Robert Hensley. After the Haiks rested, the Gammills, the Balls, and Harper presented testimony in support of then- counterclaims. Harper argued that the Dedicated Road easement had been abandoned. The Haiks admitted that no road has been constructed on the Dedicated Road easement.

¶ 15. The Gammills and Balls presented expert witnesses to testify regarding the cost of building a road over the Dedicated Road easement in 2001 and in present day. The Haiks objected to the testimony of Duke Edwards, Robert Green, and David Huber as expert witnesses. The chancellor overruled the objections as to Edwards and Green, but sustained the objection as to Huber and allowed him to testify as a fact witness. At trial, Edwards provided testimony that the cost of building a road over the Dedicated Road easement could exceed $98,000. Edwards opined that had a road been built in 2001, the cost of construction would have been substantially less. Green, a registered land surveyor, provided testimony to bolster Edwards’s contention that the cost of the alterative access over the Dedicated Road easement would be necessarily increased since the Dedicated Road easement crossed a gully or ravine. Huber, testifying as a fact witness, provided testimony as to the cost to remove certain improvements from the Dedicated Road easement.

¶ 16. On July 22, 2011, the chancellor entered a judgment dismissing the Haiks’ complaint with prejudice and finding that the Gammills and Balls possessed an easement over the Service Road for ingress and egress to their lots.. Specifically, the chancellor stated that at the time of the execution of the warranty deed to the Adamses, the only access or right-of-way to the property was along the driveway leading from Ravenna Street, which would have been an implied easement. The chancellor found that the January 5, 1968 “perpetual, non-exclusive right[-]of[-]way and easement” to the Adamses’ property constituted an “expressed easement to continue until the happening of an event. The event being the building and completion of a roadway along ... the Dedicated Road [easement].” The chancellor ultimately held that the Gammills and Balls and their heirs, successors, and assigns were granted the following:

a[n] implied easement by necessity to a non-exclusive easement for all purposes of ingress and egress in, on, over, and across the existing gravel and macadem access and service road extending from the east end of Ravenna Road to the place where said road intersects the north boundary of [the Gammills’] lot. It is [also] ordered ... [that] the above described easement is to be [16 feet] wide and is to continue along the original road bed of the Service Road.

¶ 17. The chancellor further ruled that the Dedicated Road easement had not been abandoned, and concluded that the easement over the Service Road would terminate if the Haiks or anyone else built a road on the Dedicated Road easement. After hearing testimony regarding the considerable' price increase within a span of less than ten years, the chancellor deduced in his judgment that “the gully or ravine [on the Dedicated Road easement] is washing and widening at a rapid pace.” The chancellor stated that no time limit is set out in the deed as to when the roadway is to be completed or who is to build and complete the roadway. The chancellor ordered that the Gammills and Balls were required to maintain the Service Road at their expense. The chancellor then dismissed the Gammills and Balls’ counterclaims with prejudice, including the claim that the Dedicated Road easement had been abandoned.

¶ 18. The Haiks appealed this judgment. The Gammills and Balls perfected a cross-appeal of the chancellor’s determination that the Dedicated Road easement had not been abandoned and that the easement over the Service Road would terminate in the event that a road is built on the Dedicated Road easement.

¶ 19. On appeal, the Haiks assert the following assignments of error: whether the chancellor erred by determining that the Service Road is appurtenant to the Gammills’ and the Balls’ properties; whether the chancellor erred by determining that the Gammills and Balls possess an easement by necessity over the Service Road; whether the Gammills and Balls failed to establish an implied “enjoyment easement” over the Service Road; whether the chancellor erred by admitting expert testimony not properly disclosed under Mississippi Rule of Civil Procedure 26, as well as testimony from experts not properly designated; and whether the chancellor erred in granting the Gammills and Balls’ request to relocate the Service Road.

¶ 20. In their cross-appeal, the Gam-mills, the Balls, and Harper argue that the chancellor erred in finding that the Dedicated Road Easement had not been abandoned. The Gammills and Balls also submit that they should only be required to pay a pro rata share of the expense to maintain the Service Road.

STANDARD OF REVIEW

¶ 21. “A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous.” Sanderson v. Sanderson, 824 So.2d 623, 625 (¶ 8) (Miss.2002) (citation omitted). We will affirm the chancellor’s findings if they are supported by substantial evidence in the record. Johnson, 524 So.2d at 956.

DISCUSSION

(1) Whether the chancellor erred by determining that the Gammills and Balls possess an easement by necessity over the Service Road.

¶ 22. The Haiks argue that the chancellor erred in finding that the Gammills and Balls possess an implied easement by necessity over the Service Road. The Haiks submit that Mississippi law provides that an access easement by necessity arises only when there is no other means of access. The Haiks assert that the Gam-mills and Balls have other access to the properties over the Dedicated Road easement; therefore, access to their properties by the Service Road is not “strictly necessary” as required by law.

¶ 23. The Haiks further assert that the chancellor failed to address whether or not the Gammills and Balls might possess an implied enjoyment easement over the Service Road. The Haiks submit that an implied easement, which is essential to enjoyment of the land, fails to require a showing of strict necessity; rather, evidence that this easement is “reasonably necessary” is sufficient.

¶ 24. However, the Gammills and Balls argue that the evidence and testimony at trial support the chancellor’s determination they were entitled to an easement by necessity, explaining that without use of the Service Road, they would have no access to their properties. The Gammills and Balls further submit that even if this Court finds no express easement or easement by necessity over the Service Road, the Gammills and Balls have shown that they are entitled to an implied easement for the beneficial enjoyment of their property.

¶ 25. The Mississippi Supreme Court addressed the issue of easements by necessity in the case of Broadhead v. Terpening, 611 So.2d 949, 953 (Miss.1992):

It is well[ Jestablished that an easement by necessity arises by implied grant when a part of a commonly[ Jowned tract of land is severed in such a way that either portion of the property has been rendered inaccessible except by passing over the other portion or by trespassing on the lands of another.

(Internal citations omitted). We recognize that the owner of the dominant estate fails to possess a permanent right in the easement; the easement continues only as long as the necessity exists. See Taylor v. Hays, 551 So.2d 906, 908-09 (Miss.1989); see also Pitts v. Foster, 743 So.2d 1066, 1068-69 (¶ 8) (Miss.Ct.App.1999).

¶ 26. The claimant seeking an easement by necessity (here, the Gammills and Balls) bears the burden of proving that he is “implicitly entitled to the right[-]of[-]way across another’s land.” Leaf River Forest Prods., Inc. v. Rowell, 819 So.2d 1281, 1284 (¶ 11) (Miss.Ct.App.2002). To satisfy this burden, the Gam-mills and Balls must show strict necessity; that they possess no other means of access to their property. Broadhead, 611 So.2d at 953. The Gammills and Balls must also prove that their property and the Haiks’ property “were at one time part of a larger, commonly[ Jowned parcel of land.” Leaf River, 819 So.2d at 1284 (¶ 11). Finally, the Gammills and Balls must show that the right to use the Service Road “arose at the time of the initial severance from the common owner.” Id. (citing Wills v. Reid, 86 Miss. 446, 453, 38 So. 793, 795 (1905)).

¶ 27. Here, it is undisputed that the parties to this appeal hold land that was part of a larger tract owned by Louise Williams. The chancellor found that “at the time the three additional lots [were] purchased by the [Adamses] from [Louise] Williams, no access existed to these three lots, except along the Service Road.” The chancellor further determined “the three lots had been severed from the commonly owned tract[,] and this severance was done in such a way as to render the three lots inaccessible except by passing over the other portion of the land they were severed from.” Additionally, the chancellor noted that expert witnesses provided testimony explaining that the cost to build a roadway along the Dedicated Road Easement could cost in the range of $49,000 to over $98,000.

¶ 28. Based the chancellor’s determination that the Gammills and Balls possessed no access to their property except along the Service Road, we find no error in the determination that the Gammills and Balls are entitled to an easement by necessity over the Service Road.

(2) Whether the chancellor erred in determining that the Service Road is appurtenant to the Gammills’ and the Balls’ properties.

¶ 29. The Haiks next argue that the easement over the Service Road, conveyed to the Adamses by Louise Williams, is appurtenant only to the 2.3-aere tract referred to in the deed, which is now owned by Pat Doherty and Bill Crews. Thus, the Haiks submit that the Gammills and Balls possess no easement rights over the Service Road.

¶ 30. The Haiks further argue that the chancellor’s findings are unsupported by the record. The Haiks allege that it is clear that the “three additional lots” have at all times had access to South Union Street over the Dedicated Road easement, claiming that the fact that no road had been constructed on the easement is of no legal consequence. The Haiks also argue that the conveyance by Louise Williams to the Adamses of an easement over the Service Road does not grant any right of access to any of the other subdivided lots on the Ravenna property.

¶ 31. However, the Gammills and Balls argue that the easement over the Service Road was not merely appurtenant to the 2.3-acre tract, but rather, it constituted an independent grant of an express right-of-way. The Gammills and Balls submit that Mississippi law states that where an owner of property subdivides a potion of his property and conveys a portion to a third party, that owner implicitly conveys a right-of-way for ingress and egress to the third party.

¶ 32. The Mississippi Supreme Court has explained that “an easement appurtenant runs with the land and transfers with the land upon grant or conveyance of such land in fee simple.” Wis. Ave. Props., Inc. v. First Church of Nazarene, 768 So.2d 914, 918 (¶ 16) (Miss.2000). Additionally, we have affirmed the chancellor’s finding that the Gammills and Balls possess an easement by necessity over the Service Road; we recognize that “basements of way by necessity are appurtenant to the dominant tenement and run with the land.” Broadhead, 611 So.2d at 954; see also Quin v. Sabine, 183 Miss. 375, 375, 183 So. 701, 701 (1938).

¶ 33. In the chancellor’s judgment, he held:

When the court looks at the Right-of-Way and Easement herein, the court looks at the four corners of the instrument and determines the intent of the parties was to grant a means of access to the remaining real property owned by [Louise Williams] as well as to the [2.3-]aere tract already deeded to the [Adamses]. This part of the instrument is not unclear or ambiguous....
This [c]ourt is of the conclusion at the time the first lot, being the [2.3-]acre tract[,] was conveyed by [Louise] Williams to the [Adamses], an implied easement was granted to the [Adamses] for access to the lot. When [Louise] Williams sold to the [Adamses] the three other lots, for a total of ... 12.4 ... acres, all of said lots joined and did not have any access to the lots, except by way of the Service Road[;] both [Louise Williams] and [the Adamses] decided to use the Service Road, rather than to build the roadway over the Dedicated Road. The [c]ourt concludes the implied easement along the Service Road attached to the other three lots purchased by the [Adamses] from [Louise] Williams.

¶ 34. Specifically addressing the Haiks’ argument that the easement along the Service Road runs appurtenant to the 2.3-acre tract, and that the Gammills’ conveyance of the tract voided the easement, the chancellor stated:

The court above has already determined at the time the three additional lots [were] purchased by the [Adamses], from [Louise] Williams, no access existed to these three lots, except along the Service Road, so at the time each lot was purchased from [Louise] Williams, an implied easement along the Service Road[ ] attached to each lot.

¶ 35. We review a chancellor’s findings of fact under our “manifest error/substantial evidence” standard. Biddix v. McConnell, 911 So.2d 468, 474 (¶ 17) (Miss.2005). After reviewing the record, we find that the chancellor’s determination that the easement over the service road runs appurtenant to the Gammills’ and the Balls’ properties is supported by substantial credible evidence.

(3) Whether the chancellor erred by admitting expert testimony not properly disclosed under Mississippi Rule of Civil Procedure 26, as well as testimony from experts not properly designated.

¶ 36. The Haiks assert that the chancellor erred in allowing Duke Edwards, Robert Green, and David Huber to provide testimony as expert witnesses. The Haiks submit that the Gammills and Balls failed to respond to expert interrogatories related to Duke Edwards’s testimony, as ordered by the chancellor. The Haiks argue that only documentation they received regarding Edwards’s testimony was a one-page document containing a proposal to construct a road on the Dedicated Road easement. The Haiks assert that the chancellor’s November 5, 2009 order directed the Gammills and Balls to provide the Haiks with the substance of the facts and opinions to which Edwards was expected to testify and a summary of the grounds for his opinions, and the Haiks claim that they never received any of this information.

¶ 37. The Gammills and Balls assert that they indeed complied with the discovery request for expert designation, explaining that they delivered to the Haiks the only information they possessed from Edwards — a copy of the written estimate provided by Edwards detailing the cost of constructing a road across the Dedicated Road easement. The Gammills and Balls point out that at the hearing on a motion to compel, the chancellor stated that if the written estimate provided by Edwards was the only testimony that Edwards would give, then the Gammills and Balls had complied with Rule 26.

¶ 38. Mississippi Rule of Civil Procedure 26(b)(4) provides:

Discovery of facts known and opinions held by experts, otherwise discoverable under subsection (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

¶ 39. The record reflects that the chancellor overruled the Haiks’ objection, and accepted Edwards as an expert witness on building the type of road that would be necessary to run on the Dedicated Road easement. The chancellor ruled that the document provided by Edwards “does state out the substance and facts and opinions to which [the] expert is expected to testify in that it does state what he is going to do.”

¶ 40. The Haiks also submit that the Gammills, the Balls, and Harper failed to properly designate Robert Green and David Huber as expert witnesses in response to the Haiks’ interrogatories, although the Haiks admit that Harper did state in his response to the interrogatories that Green might have discoverable knowledge. The Haiks assert that the Gam-mills, the Balls, and Harper also failed to designate Green and Huber as expert witnesses within the time required by Uniform Chancery Court Rule 1.10. See UCCR 1.10(A) (“Absent special circumstances the [chancellor] will not allow testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least sixty days before trial.”).

¶ 41. The record reflects that the chancellor excluded Huber from testifying as an expert witness, but allowed Huber to testify as a fact witness and provide testimony regarding the cost to build a road on the Dedicated Road easement. The chancellor noted that Harper failed to provide the Haiks with notice of Huber’s testimony until two weeks before the trial. However, the chancellor overruled the Haiks’ objection to Green’s expert testimony, explaining that since Green performed the survey showing the location of the Dedicated Road easement, he needed Green’s testimony to explain the location of the Dedicated Road easement and the ravine on the plat of the property at issue. The chancellor expressed that despite the Haiks’ objection, he was allowing Green’s testimony so that he could make “an adequate and intelligent decision concerning where ... the fifty[-]foot right-of-way is [located].”

¶ 42. We review the trial court’s admission or exclusion of expert testimony for abuse of discretion. Poole ex rel. Poole v. Avara, 908 So.2d 716, 721 (¶ 8) (Miss.2005) (citing Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34 (¶ 4) (Miss.2003)). Our supreme court has explained that for a case to be reversed on the admission of evidence, “it must result in prejudice and harm or adversely affect a substantial right of a party.” K-Mart Corp. v. Hardy, 735 So.2d 975, 983 (¶21) (Miss.1999) (citation omitted). “To apply the harmless[-]error analysis ... [the appellate court] must determine whether the weight of the evidence ... is sufficient to outweigh the harm done by allowing admission of [the] evidence.” Fuselier v. State, 702 So.2d 388, 391 (¶ 9) (Miss.1997). The record reflects that Green performed the survey on the property at issue, and provided testimony explaining the location of the ravine and Dedicated Road easement on the survey plat. We find that such testimony providing a description of the property at issue failed to “result in prejudice or harm or adversely affect a substantial right” of the Haiks. See K-Mart Corp., 735 So.2d at 983 (¶ 21). We find no abuse of discretion in the chancellor’s admission of Edwards’s, Green’s, or Huber’s testimony.

(4) Whether the chancellor erred in granting the Gammills and Balls’ request to relocate the Service Road.

¶ 48. The Haiks assert that in addition to committing error in determining that the Gammills and Balls possess an easement over the Service Road, the chancellor erred in concluding that the Gammills and Balls have the right to move the Service Road to a location of their choice. However, the Haiks allege that the record contains insufficient evidence to show that the Service Road was moved.

¶ 44. In contrast to the Haiks’ argument, the Gammills and Balls explain that they seek to reestablish the Service Road to its original location, where it had been located for 42 years. Gammill testified regarding the location of the original road, as shown in one of the photographs in Exhibit DG-007. The Gammills and Balls also submit that the location of the original road was reflected in Exhibit H-28, the September 1971 survey of the property.

¶ 45. After hearing the testimony from the witnesses and examining the evidence, the chancellor found that “[t]he Service Road had been moved in one spot, which allowed it to be further away from the house yard of the Haiks’ house.” The chancellor then ordered that the “Service Road is to be placed back in it’s original location. It is to be moved from the relocation area done by the Haiks and placed back in the original Service Road bed.” In keeping with our standard of review, we cannot say that the chancellor’s finding clearly was erroneous. Sanderson, 824 So.2d at 625 (¶ 8).

(5) Cross-Appeal: Whether the chancellor erred in finding that the Dedicated Road Easement had not been abandoned.

¶ 46. In their cross-appeal, the Gam-mills and Balls argue that the chancellor erred in finding that the Dedicated Road easement had not been abandoned. The Gammills and Balls submit that the Haiks failed to provide testimony at trial to negate the following facts in support of a finding that the Dedicated Road easement had been abandoned: no roadway or right-of-way had ever been built on the Dedicated Road easement, and the Dedicated Road easement had never been used for access to the Gammills and Balls’ properties. The Gammills and Balls therefore argue that the easement had been abandoned. The Gammills and Balls further submit that they offered testimony showing that fencing, trees, and a bayou crossed the Dedicated Road easement and blocked access to it.

¶ 47. In Bivens v. Mobley, 724 So.2d 458, 461-62 (¶¶ 11-13) (Miss.Ct.App.1998), this Court recognized that abandonment is a question of fact, which requires non-use for an extended period of time as well as the intent to abandon. Additionally, evidence of abandonment must be “full and clear.... [TJhere must be some clear and unmistakable affirmative act or series of acts indicating a purpose to repudiate ownership.” Columbus & Greenville Ry. Co. v. Dunn, 184 Miss. 706, 720, 185 So. 583, 586 (1939). “[P]rotracted non-use for an extended period of time” manifests a “ ‘presumption of abandonment.’ ” Bivens, 724 So.2d at 461 (¶ 11) (quoting R & S Dev., Inc. v. Wilson, 534 So.2d 1008, 1010 (Miss.1988)). The presumption is stronger if an intent to abandon can be shown. Id. (citation omitted).

¶ 48. Here, the chancellor stated in his judgment that he:

has heard no testimony concerning the intent of any of the parties to abandon their rights to the Dedicated Road [easement]. It was apparent when the court viewed the property ... Harper[ ] has erected an iron gate and expensive fencing and landscaping over and across the Dedicated Road [easement;] the court determined these acts of [Harper were] done at his own peril.

The chancellor, therefore, held that the parties had not abandoned the Dedicated Road easement.

¶ 49. Because we find that there was substantial evidence to uphold the chancellor’s finding that the parties did not abandon the Dedicated Road easement, we find no error as to this issue. See Stone v. Lea Brent Family Invs., L.P., 998 So.2d 448, 456 (¶¶ 32-35) (Miss.Ct.App.2008). Because we also find substantial evidence in the record supporting the judgment, we affirm.

¶ 50. THE JUDGMENT OF THE ADAMS COUNTY CHANCERY COURT IS AFFIRMED ON DIRECT AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANTS/CROSS-APPELLEES AND ONE-HALF TO THE APPELLEES/CROSS-APPEL-LANTS.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., NOT PARTICIPATING.

      . We refer to these individuals collectively as "the Gammills and Balls.” This collective designation also includes the estate of Reuben Harper, whom the chancellor ordered joined as a defendant at a later point in the litigation.

      . The record reflects the property was previously known as "Ravenna.”

      . The minutes of this meeting shed light on why the Dedicated Road was never built.

      . Dean conveyed his tract to Harper, who later conveyed the tract to the Gammills.

      : During the course of the litigation, the chancellor discovered that Harper had constructed a fence partially on the Dedicated Road easement; as a result, the chancellor ordered that Harper be joined as a defendant.

      . In Quin, 183 Miss. at 375, 183 So. at 701, the supreme court held:
      When the owner of lands, abutting upon a public highway, conveys to another all that portion of said lands which so abut, and retains the interior portion, from which interior lands he would have no way to reach a public highway except permissively over the lands of strangers, the law reserves to the grantor, as an appurtenance to the reserved lands, the easement of a right[-]of[-]way over the exterior lands thus conveyed, and from the interior lands to the public highway first aforesaid; and this right of easement continues so long as the necessity therefor continues, which is to say, so long as the owner or owners of the interior lands to reach a public highway[ ] would have to resort to the permissive use of a roadway other than the reserved easement.

      . As explained previously, Edwards provided testimony stating that the cost of building a road over the Dedicated Road easement could run in excess of $98,000. Edwards opined that had a road been built in 2001, the cost of construction would have been substantially less. Green, a registered land surveyor, provided testimony on the issue of the cost to construct alternate access to the properties at issue. Green’s testimony was offered to bolster Edwards's contention that the cost of the alterative access over the Dedicated Road easement would be necessarily increased since the Dedicated Road easement crossed a gully or ravine. Huber testified as an expert relating to the cost to remove certain improvements from the Dedicated Road easement.

      . As previously explained, this Dedicated Road easement was conveyed in 1967 and provided a potential alternate access to the Gammills and Balls’ properties by providing access along South Union Street. The chancellor found that the instrument conveying the Dedicated Road easement failed to provide who was to build the road or when the road was to be built.


author: ISHEE, J.,

text:
    John F. GUSSIO, Jr., Broker; Gregory Joseph Gussio, Broker/Salesperson and Gussio Realty, Inc., Appellants v. MISSISSIPPI REAL ESTATE COMMISSION, Appellee.
    No. 2012-CC-01089-COA.
    Court of Appeals of Mississippi.
    Sept. 17, 2013.

      David M. Sessums, Vicksburg, attorney for appellants.
    John L. Maxey II, William Holcomb Hussey, Jackson, attorneys for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. John F. Gussio Jr. and Gregory (Greg) Joseph Gussio (the Gussios), realtors with Gussio Realty Inc., appeal the temporary suspension of their real estate licenses by the Mississippi Real Estate Commission (MREC). The MREC found that the Gussios made substantial misrepresentations to Timothy Keen and Darla Davis by leading them to believe a home was available for sale when the home was under contract with another buyer. The MREC also found that the Gussios failed to cooperate with the investigation of this matter. The decision of the MREC was affirmed by the Madison County Circuit Court.

¶ 2. On appeal, the Gussios argue: (1) no cause of action exists because a contract was not formed; (2) the MREC’s decision was not supported by substantial evidence; (3) they complied with the investigation; and (4) the MREC did not have jurisdiction over this matter. We find the MREC had jurisdiction, and its decision was supported by substantial evidence. Accordingly, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. Keen and his fiance, Davis (his wife at the time of the proceedings in circuit court), met with Becky Hathcock of Century 21, Moselle and Associates to search for a home in the Florence, Mississippi area. The couple decided to make an offer on a home located at 114 Carriage Lane in Florence. The property was listed by Lexus Homes Inc., with Greg as the builder/realtor. Hathcock contacted Greg, who informed her that the house was under contract. Keen and Davis continued their property search.

¶ 4. On March 29, 2010, Greg informed Hathcock that the existing contract on 114 Carriage Lane would expire the following day, and he asked if Keen and Davis were still interested in making an offer. Keen and Davis were interested, and after negotiating the price with Greg, Keen entered into a contract with Lexus Homes on April 2, 2010, for $156,500. Greg requested $500 earnest money, and Keen delivered the check for $500 to Hathcock. The closing was set for on or before April 28, 2010.

¶ 5. On April 5, 2010, Greg faxed Keen what Keen believed to be the final contract. In preparation for the closing, Keen paid $200 for loan processing and $300 for a home inspection. In order for the home to be inspected, the utilities had to be turned on, and Hathcock contacted Greg to arrange this. Keen made a punch list of items to be completed on the home and gave it to Hathcock.

¶ 6. On April 15, 2010, Davis drove by the property at 114 Carriage Lane and saw people moving into the home. She spoke to them and found out that they had a contract on the home and were closing that day. Davis informed Keen, who then contacted Hathcock. Hathcock attempted to call Greg, but he did not answer. However, she was able to communicate with him by text message that day. Greg sent Hathcock a text message asking her to send him a good faith estimate. He never mentioned that someone else had a contract on the home. The closing with the other buyer went through on April 15, 2010, with a purchase price of $150,750.

¶7. On April 16, 2010, Keen filed a complaint with the MREC. The MREC notified the Gussios and Hathcock of the complaint and asked them to submit responses and documentation. Hathcock provided the requested documentation. However, the Gussios asked for additional time to review the matter. On May 26, 2010, the MREC received a letter from Gussio Realty that simply stated: “This transaction did not go through Gussio Realty, and was not in MLS. Therfore [sic], please close this matter.” The letter was signed by John and Greg. Another letter was received that day from Greg denying that he entered into a contract with Keen. Still, no documentation was submitted. On July 6, 2010, John sent the MREC an incomplete copy of the contract between Lexus Homes and the purchaser of the Carriage Lane home. The MREC attempted to contact John at the telephone number he had provided, but it was not the correct number.

¶ 8. After a hearing, the MREC found that Greg had violated the rules governing real estate brokers by making substantial misrepresentations to Keen and Davis. Further, the MREC found that the Guss-ios’ failure to comply with the investigation was “a serious violation of the relationship between the [MREC] and its licensees.” The MREC then suspended the Gussios’ real estate licenses for sixty days, with the second thirty days to be held in abeyance. Following the suspension held in abeyance, the Gussios were ordered to complete four hours of continuing education in contract/license law in addition to the hours normally required for renewal of their licenses.

¶ 9. The Gussios appealed their suspension to the Madison County Circuit Court. The circuit court found substantial evidence to support the MREC’s decision, and affirmed. We likewise affirm.

STANDARD OF REVIEW

¶ 10. “Judicial review of an administrative decision is limited.” McFadden v. Miss. State Bd. of Med. Licensure, 735 So.2d 145, 151 (¶ 20) (Miss.1999). “[A]n agency’s decision will not be disturbed on appeal absent a finding that it ‘(1) was not supported by substantial evidence, (2) was arbitrary or capricious, (3) was beyond the power of the administrative agency to make, or (4) violated some statutory or constitutional right of the complaining party.’ ” McDerment v. Miss. Real Estate Comm’n, 748 So.2d 114, 118 (¶ 9) (Miss.1999) (quoting Miss. State Tax Comm’n v. Mask, 667 So.2d 1313, 1314 (Miss.1995)).

DISCUSSION

I. Contract Formation

¶ 11. The Gussios go into great detail as to whether a contract was formed with Keen, arguing that without a valid contract, there can be no claim against them for misrepresentation. Specifically, the Gussios assert that no contract was formed because they did not agree to a handwritten contingency added by Hath-cock. We find this argument misses the point.

¶ 12. The MREC found, and we agree, that it was irrelevant whether a contract was formed. Rather, what is key is that substantial evidence existed to show that Greg represented that a contract had been formed. Keen proceeded under this belief when he paid his earnest money, obtained financing, and paid for a home inspection.

¶ 13. Mississippi Code Annotated section 73-35-21(l)(a) (Rev.2012) states:

(1) The commission may, upon its own motion[,] and shall[,J upon the verified complaint in writing of any person, hold a hearing for the refusal of license or for the suspension or revocation of a license previously issued, or for such other action as the commission deems appropriate. The commission shall have full power to refuse a license for cause or to revoke or suspend a license where it has been obtained by false or fraudulent representation, where the licensee in performing or attempting to perform any of the acts mentioned herein, is deemed to be guilty of:
(a) Making any substantial misrepresentation in connection with a real estate transaction[.]

¶ 14. Nothing in section 73-35-21(l)(a) requires the formation of a contract; rather, it gives the MREC authority to suspend a broker’s license over “any substantial misrepresentation in connection with a real estate transaction.” (Emphasis added). There is no dispute that the interactions between the Gussios, Keen, Davis, and Hathcock were “in connection with a real estate transaction.” Thus, regardless of whether a contract was formed, the MREC had the authority to find that the Gussios engaged in prohibited conduct. This issue is without merit.

II.Substantial Evidence

¶ 15. The Gussios next argue that Greg did not make any misrepresentations to Keen and Davis regarding the availability of the Carriage Lane home for sale. The Gussios cite to a provision in the contract that states: “Buyer to provide a proof of a firm commitment letter to seller within ten days and home to remain on market.” The Gussios argue that since no firm commitment letter was sent, Keen and Davis should have known that the home was still on the market and could be sold to another buyer. However, the issue here is that Greg continually represented to Keen and Davis that they could purchase the home, even on April 15, 2010— the day the home was sold to another buyer. This is shown by the text messages that were sent on April 15, 2010, between Hathcock and Greg:

Hathcock: Just faxed [yo]u repairs requested] for 114 [C]arriage[.] [L]et me know if [yo]u get it[.] I can also scan an email[.]
Greg: Can you send me a good faith estimated]
Hathcock: Faxed it and emailed it[.] [G]ive me a call[.]

¶ 16. The MREC clearly had adequate evidence to support its decision that Greg made substantial misrepresentations in his dealings with Keen and Davis. Greg accepted an earnest-money check from Keen and kept silent while Keen obtained financing and paid for a home inspection. Even on the day the home was sold, Greg continued to mislead Keen and Davis by asking for Hathcock to send a good faith estimate. This issue is without merit.

III. Compliance with the Investigation

¶ 17. The Gussios were found to be in violation of Rule IV.A.6. of the MREC’s Rules and Regulations, which states:

Any licensee who fails in a timely manner to respond to official Mississippi Real Estate Commission written communication or who fails or neglects to abide by Mississippi Real Estate Commission’s Rules and Regulations shall be deemed, prima facie, to be guilty of improper dealing.

¶ 18. The Gussios deny they violated this rule. They admit that they initially delayed the investigation: they first asked for additional time to review the matter; then they sent a letter asking for the matter to be closed. But they assert that they eventually complied and sent the requested documentation to the MREC on July 6, 2010. They argue that, after this date, no further requests were made. However, the MREC had attempted to request additional documentation because some of the pages were missing from the first documents. The Gussios then blame an outdated telephone listing for the MREC’s failure to reach them. This argument does not explain why the correct documents were never sent to the MREC. This issue is without merit.

IV. MREC’s Jurisdiction

¶ 19. The Gussios argue that the MREC lacked jurisdiction because Greg did not act as a real estate broker under Mississippi Code Annotated section 73-35-3(1) (Rev.2012).

¶ 20. Section 73-35-3(1) (Rev.2012) states that the term “real estate broker” includes:

[P]ersons ... who for a fee, commission or other valuable consideration, or who with the intention or expectation of receiving or collecting the same, list, sell, purchase, exchange, rent, lease, manage or auction any real estate, or the improvements thereon, including options; or who negotiate or attempt to negotiate any such activity; or who advertise or hold themselves out as engaged in such activities; or who direct or assist in the procuring of a purchaser or prospect calculated or intended to result in a real estate transaction.

¶ 21. The Gussios assert that they did not expect Gussio Realty to receive a commission from Keen; thus, they did not come under the jurisdiction of the MREC. Rather, they argue that Greg, who built the home, was acting on his own behalf through his company, Lexus Homes. The Gussios admit that the Carriage Lane home was originally listed on the MLS through Gussio Realty. However, they argue that on February 4, 2010, they removed the home from the MLS, and it was not relisted. They assert that any offers made after this date were made to Greg, individually, and not to Gussio Realty. This assertion is without support as it is clear that Greg held himself out to be a real estate broker with Gussio Realty in this transaction. As evidence of this, the offer shows Gussio Realty as the listing agent, and Gussio Realty received a $5,000 commission when the home was sold to the other buyer.

¶ 22. Even if we were to find that Greg listed the home as an individual rather than a broker, he would still fall under the MREC’s jurisdiction. See Miss. Real Estate Comm’n v. Hennessee, 672 So.2d 1209, 1216-17 (Miss.1996) (finding that “a licensed realtor [is] subject to disciplinary actions by his state licensing commission for acts committed while selling property wholly owned by the realtor acting as the seller”). Likewise, John, as Greg’s responsible broker, was correctly held liable.

¶28. We find substantial evidence existed to support the MREC’s decision. Therefore, we affirm the decision of the Madison County Circuit Court affirming the MREC’s disciplinary action against the Gussios and Gussio Realty.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., NOT PARTICIPATING.

      . Although John was not directly involved in this transaction, he was Greg’s responsible broker, and under MREC’s Rules and Regulations IV.A. 1 and IV.A.2, a responsible broker is liable for his affiliate broker’s actions.