author: CHANDLER, Justice, RANDOLPH, Justice,

text:
    DERR PLANTATION, INC. v. Thomas L. SWAREK and Thomas A. Swarek.
    No. 2007-IA-02031-SCT.
    Supreme Court of Mississippi.
    Aug. 6, 2009.
    Randolph, J., specially concurred, with opinion in which Waller, C.J., Carlson, P.J., and Lamar, Chandler, and Pierce, JJ., joined, and in which Graves, P.J., joined in part.

      Robert R. Bailess, Kenneth B. Rector, Vicksburg, attorneys for appellant.
    Bradley S. Clanton, Walker (Bill) Jones, Barry W. Ford, Charles Willis Pickering, Eric Wynn Hospodor, Jackson, attorneys for appellees.
    Before WALLER, C.J., RANDOLPH and CHANDLER, JJ.
   CHANDLER, Justice,

for the Court.

¶ 1. Thomas L. Swarek and Thomas A. Swarek (the Swareks) filed a complaint in the Chancery Court of Issaquena County against Derr Plantation, Inc. (DPI), a Mississippi corporation. The complaint alleged that DPI had breached a contract to lease and sell to the Swareks an operational farm including acreage, equipment, and livestock. The Swareks requested remedies including specific performance, a preliminary injunction, and compensatory and punitive damages. After the chancellor denied both parties’ summary judgment motions, the Swareks successfully petitioned the chancery court to transfer the case to circuit court.

¶ 2. This Court granted DPI’s petition for an interlocutory appeal of the transfer order. See Miss. RApp. P. 5. We find that because this case was within the jurisdiction of the chancery court, the chancery court erred by ordering its transfer to the circuit court. Therefore, we reverse the transfer order and remand this case to the Chancery Court of Issaquena County for further proceedings consistent with this opinion.

FACTS

¶ 3. In December 2004, Thomas L. Swar-ek entered into negotiations with DPI for the lease and purchase of an approximately 8,350-acre farm known as Derr Plantation, which lies in Issaquena and Sharkey Counties along the Mississippi River. The contemplated lease/purchase included real estate, equipment, and livestock. On March 1, 2005, the Swareks filed a complaint and a lis -pendens notice in the Chancery Court of Issaquena County. In the complaint, the Swareks asserted that the parties had negotiated a contract providing for the Swareks’ lease and purchase of Derr Plantation; the Swareks attached the contract documents to the complaint. These documents provided for a lease price of $750,000 payable over a two-year period and a sale price of 7.5 million dollars. The Swareks alleged that DPI had breached the contract after the Swareks refused to pay a higher price for the property, and that DPI’s actions regarding the breach were willful, intentional, and fraudulent.

¶ 4. The complaint stated that the Swar-eks were ready, willing, and able to perform the contract and were willing to close at the contract price either now or later, and that “[i]t is difficult to measure the damages for refusing to sell the property to Plaintiffs, hence Plaintiffs are requesting specific performance of the contract of sale and are filing a lis pendens with this complaint.” The complaint included the following counts:

COUNT ONE — SPECIFIC PERFORMANCE
7.Because of the nature of the breach of the contract herein, Plaintiffs are entitled to an order of this court directing specific performance ordering the Defendants to carry out the terms of the contract documents Exhibit A, B, and C.
COUNT TWO — PRELIMINARY INJUNCTION
8. Because the failure to permit the Plaintiffs to take possession of the property under the lease within the next 30 days will cause them immediate damage for which there is no adequate remedy at law, they are entitled to a preliminary injunction granting them a lease of the property according to the terms specified in the contract documents.
COUNT THREE — DAMAGES
9. Even if the Defendants go ahead and deliver the property according to the contract, the Plaintiffs have been damaged in that the cost of any loan will now be at least 1% per annum higher than it would have been had there been no breach. For breach of the agreement to lease, Plaintiffs are entitled to actual and consequential damages of not less than $500,000.00. For breach of the agreement to convey the equipment and cattle, Plaintiffs are entitled to actual and consequential damages of not less than $175,000.00. For breach of the agreement to sell the real estate, Plaintiffs are entitled to recover actual and consequential damages of not less than $1,000,000.00. By reason of its willful, intentional, and gross breach of this contract, [Plaintiffs] are entitled to recover punitive damages of not less than $5,000,000.00 together with reasonable attorneys fees and costs. Plaintiffs are entitled to pierce the corporate veil and are entitled to a judgment against the Defendants, jointly and severally.

The Swareks prayed for a preliminary injunction and for “specific performance according to the terms of the contract documents and/or award actual and consequential damages of $1,750,000.00 and punitive damages of $5,000,000.00 together with attorney’s fees and costs.... ”

¶ 5. DPI filed an answer without contesting the jurisdiction of the trial court, and a counterclaim for reasonable attorney’s fees and costs and for damages suffered as a result of the filing of the lis pendens notice. In the answer, DPI’s primary contention was that there was no breach of contract because the parties had never formed a contract. Some discovery ensued and, more than one year after filing them complaint, the Swareks filed a motion for partial summary judgment on April 8, 2006, on the limited question of whether a valid contract existed under Mississippi law. DPI responded and filed its own competing motion for summary judgment, asserting that there was no contract. On December 4, 2006, the chancellor denied both parties’ summary judgment motions, finding that there were genuine issues of material fact for trial. The Swareks petitioned this Court for an interlocutory appeal, which was denied.

¶ 6. On June 1, 2007, two years and three months after the Swareks initiated the case in chancery court, and after suffering adverse rulings from the chancery court and this Court, they filed a motion to transfer the case to circuit court. At the motion hearing, the Swareks acknowledged their complaint’s request for specific performance, but they contended that due to the passage of time, they now preferred the alternatively-pleaded remedy of compensatory and punitive damages. The Swareks argued that when they filed the complaint, their main issue for decision was enforcement of a contract, but once the purported contract’s validity came into question, the nature of the case changed to a legal claim for breach of contract. Invoking a right to a jury trial, the Swareks contended that the breach-of-contract issue appropriately should be tried by a jury in circuit court. DPI argued, inter alia, that the case should remain in chancery court because the Swareks’ complaint for specific performance was within the jurisdiction of the chancery court and the Swareks’ request for a transfer was belated.

¶ 7. The chancery court ruled that the complaint ultimately sounded in breach of contract, and that the chancery court lacked jurisdiction over breach-of-contract claims. The chancery court granted the motion to transfer, and it entered an order transferring the case to the Circuit Court of Issaquena County. This Court granted DPI’s petition for an interlocutory appeal on the question of whether the chancery court erred in granting the Swarek’s motion to transfer the case to circuit court.

STANDARD OF REVIEW

¶ 8. “Jurisdiction is a question of law, which this Court reviews de novo.” Issaquena Warren Counties Land Co. v. Warren County, 996 So.2d 747, 749 (Miss.2008) (citing Trustmark Nat’l Bank v. Johnson, 865 So.2d 1148, 1150 (Miss.2004)). The grant of a motion to transfer from chancery court to circuit court, or vice-versa, is a jurisdictional question that is subject to de novo review. Id. (citing RAS Family Partners v. Onnam Biloxi, LLC, 968 So.2d 926, 928 (Miss.2007)).

ANALYSIS

¶ 9. Under the Mississippi Constitution of 1890, circuit courts are courts of general jurisdiction, while chancery courts have limited jurisdiction over “all matters in equity” and other designated matters. See Miss. Const. art. 6 § 156 (granting circuit courts “original jurisdiction in all matters civil and criminal in this state not vested by this Constitution in some other court”); Miss. Const. art. 6 § 159, § 160, § 161. The constitution contains complementary provisions for the transfer of cases commenced in the wrong forum. Miss. Const. art. 6 § 157 (“[a]ll causes that may be brought in the circuit court whereof the chancery court has exclusive jurisdiction shall be transferred to the chancery court”); Miss. Const. art. 6 § 162 (“[a]Il causes that may be brought in the chancery court whereof the circuit court has exclusive jurisdiction shall be transferred to the circuit court”).

¶ 10. The jurisdiction of the chancery court is a question of subject matter jurisdiction that may be raised by either party at any time. Burnette v. Hartford Underwriters Ins. Co., 770 So.2d 948, 951 (Miss.2000). However, this Court is prohibited by the Mississippi Constitution from reversing on this issue after a final judgment. Id. (citing Miss. Const. art. 6 § 147). A party aggrieved by the trial court’s grant or denial of a motion to transfer may seek relief by pursuing an interlocutory appeal, as DPI has done here. Id.

¶ 11. “To determine whether a court has subject matter jurisdiction, we look to the face of the complaint, examining the nature of the controversy and the relief sought.” RAS Family Partners, 968 So.2d at 928 (citing Durant v. Humphreys Mem’l Hosp./Extended Care Facility, 587 So.2d 244, 250 (Miss.1991)). The reviewing court must look to the substance, not the form, of a claim to determine whether that claim is legal or equitable. Copiah Med. Assocs. v. Miss. Baptist Health Sys., 898 So.2d 656, 661 (Miss.2005). We have consistently held that if it appears from the face of a well-pleaded complaint that an independent basis for equity jurisdiction exists, our chancery courts may hear and adjudge law claims. RE/Max Real Estate Partners, Inc., v. Lindsley, 840 So.2d 709, 711-12 (Miss.2003); Tillotson v. Anders, 551 So.2d 212, 213 (Miss.1989) (citing Penrod Drilling Co. v. Bounds, 433 So.2d 916 (Miss.1983); Burnett v. Bass, 152 Miss. 517, 521, 120 So. 456 (1929)). In that circumstance, the legal claims lie within the pendent jurisdiction of the chancery court. Tillotson, 551 So.2d at 213. As long as the chancery court’s equity jurisdiction has attached, the chancery court has discretion to award legal and punitive damages. RE/Max Real Estate Partners, Inc., 840 So.2d at 712 (citing S. Leisure Homes v. Hardin, 742 So.2d 1088, 1090 (Miss.1999)).

¶ 12. Conversely, “if the complaint seeks legal relief, even in' combination with equitable relief,.the circuit court can have proper subject matter jurisdiction.” RAS Family Partners, 968 So.2d at 928 (citing IP Timberlands Operating Co. v. Denmiss Corp., 726 So.2d 96, 111 (Miss.1998)). In fact, if there is some doubt as to whether a case is within the jurisdiction of the chancery court, the case is better tried in circuit court because “it is more appropriate for a circuit court to hear equity claims than it is for a chancery court to hear actions at law since circuit courts have general jurisdiction but chancery courts enjoy only limited jurisdiction.” Burnette, 770 So.2d at 952 (quoting McDonald’s Corp. v. Robinson Indus., Inc., 592 So.2d 927, 934 (Miss.1991)). This Court also has cited the constitutional right to a jury trial as a reason for resolving doubtful cases in favor of circuit court jurisdiction. Burnette, 770 So.2d at 952; S. Leisure Homes, 742 So.2d at 1090. Nonetheless, a party cannot, by invoking the right to a jury trial, secure a transfer to circuit court of a case property within the chancery court’s jurisdiction. See Is- saquena Warren, Counties Land Co., LLC, 996 So.2d at 751.

¶ 13. The Swareks argue that the transfer to circuit court was appropriate because the substance of their complaint was breach of contract, a claim properly heard in circuit court. It is true that in several recent cases, this Court determined that the chancery court lacked jurisdiction over a breach-of-contract case, and that the circuit court had exclusive jurisdiction. See Tyson Breeders, Inc. v. Harrison, 940 So.2d 230, 234 (Miss.2006) (claim for breach of a contract for Tyson to provide Harrison with flocks of breeder hens); ERA Franchise Sys., Inc. v. Mathis, 931 So.2d 1278, 1283-84 (Miss.2006) (primary claims for various breaches of a contract governing the parties’ business relationship); Copiah Med. Assocs., 898 So.2d at 661 (claims of breach of contract and for specific performance of a lease agreement); Union Nat’l Life Ins. Co. v. Crosby, 870 So.2d 1175, 1182 (Miss.2004) (various claims of fraud and bad faith breach of insurance contracts); Burnette, 770 So.2d at 952 (claims of bad-faith breach of an insurance contract). Each of these cases involved a breach-of-contract claim for which damages, a legal remedy, was the appropriate remedy. See Tyson Breeders, 940 So.2d at 234 quoting Roberts v. Spence, 209 So.2d 623, 626 (Miss.1968) (“ordinarily a court of equity will not attempt to enforce a contract by specific performance where the parties have an adequate remedy at law to recover damages growing out of a party’s failure to carry out a contract’s terms”).

¶ 14. In Tyson Breeders, we were careful to distinguish cases involving a “unique matter such as real estate where specific performance is a particularly appropriate remedy.” Id..; see also Copiah Med. Assocs., 898 So.2d at 660 (citing Osborne v. Bullins, 549 So.2d 1337, 1340 (Miss.1989) (recognizing specific performance as a traditional remedy for breach of a land-sale contract, especially for a seller’s breach)). In Copiah, we determined that a lease agreement for continued occupancy and use of the premises for a specific period of time for a specific purpose was not subject to the equitable remedy of specific performance, because that remedy would require periodic court supervision. Id. at 660-61 (citing Sec. Builders, Inc. v. Sw. Drug Co., 244 Miss. 877, 885-86, 147 So.2d 635, 639 (1962)). Because specific performance was not an available remedy for the breach, we held that the case was appropriately transferred from the chancery court to the circuit court. Id. at 661. We distinguished the case from Osborne, which had recognized specific performance as a remedy for a breach of a land-sale contract. Id. at 660 (citing Osborne, 549 So.2d at 1340).

¶ 15. A claim for specific performance as a remedy for breach of contract is within the equity jurisdiction of the chancery court. Lee v. Coahoma Opportunities, Inc., 485 So.2d 293, 294-95 (Miss.1986). The Swareks’ complaint alleged that DPI had breached an agreement to lease and sell them a large farm, and they claimed that specific performance was the most appropriate remedy due to the unique nature of the real estate and accompanying livestock and farm equipment. Accordingly, they requested that the chancery court order DPI to perform the agreement by delivering the property according to the contract terms. They also requested a preliminary injunction entitling them to immediate possession of the property under the lease.

¶ 16. From our review of the nature of this controversy and the relief sought, it is apparent that the Swareks’ primary claim is for specific performance as a remedy for breach of a real estate contract, an equitable claim. The requested injunctive relief also is within the chancery court’s equity jurisdiction. Issaquena Warren Counties Land Co., 996 So.2d at 751. We are fully cognizant that the Swareks also prayed that the court award them compensatory damages as an alternative to, or in addition to, specific performance. In a suit for specific performance, the court may order specific performance along with damages for the defendant’s delay in performing the contract. McVay v. Castenara, 152 Miss. 106, 112, 119 So. 155, 156 (1928). Or, the court may, in its discretion, reject the plaintiffs claim that specific performance is the most appropriate remedy and instead award compensatory damages as the entire remedy for the breach. Frierson v. Delta Outdoor, Inc., 794 So.2d 220, 225 (Miss.2001). In a suit for specific performance, the possibility that the chancery court will reject specific performance and instead award compensatory damages does not defeat that court’s equity jurisdiction. This is because:

It has long been settled in this state, as one of the pre-eminent principles of equity procedure, that the Chancery Court having taken jurisdiction on any one ground of equity, will thereupon proceed in the one suit to a complete adjudication and settlement of every one of all the several disputed questions materially involved in the entire transaction, awarding by a single comprehensive decree all appropriate remedies, legal as well as equitable, although all the other questions involved would otherwise be purely of legal cognizance; and in this state, the rule goes even to the extent that if the ground of equity fail under the proof, the cause may still be retained to a complete final decree on the remaining issues although the latter present legal subjects only and the decree would cover only legal rights and grant none but legal remedies, — that having taken jurisdiction the power of the court to administer full relief is limited by nothing but justice itself.

McClendon v. Miss. State Highway Comm’n, 205 Miss. 71, 78, 38 So.2d 325, 327 (1949) (citation omitted).

¶ 17. The Swareks argue that their claim for punitive damages for willful and intentional breach of contract implicated the jurisdiction of the circuit court. We have stated that the fact that punitive damages are sought is a “strong indicator” that the matter is legal, rather than equitable. ERA Franchise Sys., Inc., 931 So.2d at 1282 (citing Crosby, 870 So.2d at 1179). However, the Swarek’s addition of a punitive-damages claim, which is an extraordinary remedy not favored in Mississippi law, Bradfield v. Schwartz, 936 So.2d 931, 936 (Miss.2006), does not outweigh their request for specific performance, which is recognized as a traditional and appropriate remedy for the wrong alleged. Osborne, 549 So.2d at 1340. Moreover, once the equity jurisdiction of the chancery court has attached, the chancery court has the power to award “legal and even punitive damages.” S. Leisure Homes, 742 So.2d at 1090.

¶ 18. Having filed an action for specific performance within the chancery court’s jurisdiction, the fact that the Swareks now express a preference for a legal remedy does not divest the chancery court of jurisdiction. In City of Starkville v. 4-County Electric Power Association, 909 So.2d 1094, 1101 (Miss.2005), Starkville argued that the case should have been transferred from chancery court to circuit court because, since the time of its filing, the suit had “become basically a breach of contract suit wherein Starkville seeks to recover compensatory and punitive damages from 4-County for its failure to comply with the terms of the 1963 Agreement.” This Court rejected Starkville’s argument. Id. at 1102. The Court looked to the prayer in the complaint which Starkville itself had filed in chancery court. Id. at 1101. The prayer requested relief that is parallel in many respects to that requested by the Swareks, including: (1) declaring the validity and enforceability of the contract; (2) specific performance of the contract; (3) a temporary and a permanent injunction; (4) actual and punitive damages, and (5) a prayer for general relief. Id. This • Court found that the fundamental substance of Starkville’s action was equitable. Id. at 1102. We stated:

When we review Starkville’s complaint in today’s case, we can state with confidence that the relief sought on specific performance of a contract is typically the type of relief to be considered by our chancellors sitting as a court of equity. Additionally, Starkville presumably made a knowing and conscious decision to commence this litigation in chancery court (as opposed to circuit court) when it filed its complaint in 1995. This case has been litigated in chancery court, appealed to this Court, and relitigated in chancery court. As we stated in Rogers [v. Eaves, 812 So.2d 208, 211-12 (Miss.2002)], because the chancery court had already heard extensive litigation in the case, it was certainly in the best position to hear and resolve the relevant issues in the related case which had been commenced. In fact, in today’s case, the same chancellor has been involved with the litigation of this case since its inception in 1995. Who was in a better position to fairly and correctly decide the issues in this case than the learned chancellor who had presided over all the proceedings in this case from the very beginning?

Id. (citations omitted). As in City of Starkville, the chancery court acquired jurisdiction over the Swareks’ complaint because the fundamental nature of their claim was for the equitable remedy of specific performance; additionally, the chancellor has presided over the matter through discovery and dispositive motions and she is thus well-positioned to fairly and correctly decide the issues to be tried.

¶ 19. The Swareks’ argument that their right to a jury trial would be infringed if this case remained in chancery court does not avail them. The Mississippi Constitution provides that “[t]he right of trial by jury shall remain inviolate.” Miss. Const. art. 3, § 31. “In ‘chancery court, with some few statutory exceptions, the right to jury is purely within the discretion of the chancellor, and if one is empaneled, its findings are totally advisory.’ ” Burnette, 770 So.2d at 952 (quoting Louisville & Nashville R.R. v. Hasty, 360 So.2d 925, 927 (Miss.1978)). However, no jury trial is required by section 31 for cases within the chancery court’s jurisdiction. Re/Max Real Estate Partners, Inc., 840 So.2d at 713. Chancellors historically have had jurisdiction over claims for specific performance of a real estate contract. McVay, 152 Miss. at 112, 119 So. at 156. It may be expected that the chancery court, in adjudicating a request for specific performance, also will be called upon to adjudicate the validity, construction, definiteness or enforceability of the purported contract. See Busching v. Griffin, 542 So.2d 860 (Miss.1989); Hutton v. Hutton, 239 Miss. 217, 119 So.2d 369 (1960); Keene v. Lowenthal, 83 Miss. 204, 35 So. 341 (1903). As we have discussed, the substance of the Swareks’ complaint was for specific performance of a real estate contract. Because this case was within the chancery court’s jurisdiction, the Swareks cannot secure a transfer to circuit court by requesting a jury trial.

CONCLUSION

¶ 20. The primary thrust of the Swar-eks’ complaint was a request for equitable relief in the form of specific performance of a real estate contract. Specific performance is a particularly appropriate remedy for breach of a real estate contract, and claims for specific performance are within the historic equity jurisdiction of the chancery court. Therefore, the chancery court had jurisdiction over this case, and it erred by granting the Swar-eks’ motion to transfer the case to circuit court. We reverse the transfer order and remand this case to the chancery court for further proceedings consistent with this opinion. If the chancellor in her discretion determines that the Swareks are entitled to relief but specific performance is not warranted, she is empowered to order appropriate legal or equitable relief.

¶ 21. REVERSED AND REMANDED.

WALLER, C.J., CARLSON, P.J., LAMAR, KITCHENS AND PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. RANDOLPH, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., CARLSON, P.J., LAMAR, CHANDLER AND PIERCE, JJ.; GRAVES, P.J, JOINS IN PART. DICKINSON, J., NOT PARTICIPATING.

RANDOLPH, Justice,

specially concurring.

¶ 22. I agree with the Majority’s jurisdictional analysis and conclusion that the chancery court erred in granting the Swar-eks’ motion to transfer. I write separately to add that application of the doctrine of judicial estoppel and the underlying purposes of the Mississippi Rules of Civil Procedure should preclude a litigant from “testing the waters” in one court, suffering adverse rulings, then deciding that their initial declaration regarding jurisdiction was erroneous, and seeking transfer to a different court or judge.

¶ 23. On March 1, 2005, the Swareks filed their Complaint in the Chancery Court of Issaquena County. According to Mississippi Rule of Civil Procedure 11(a), this signed pleading “constitutes a certificate that the attorney has read the pleading or motion; that to the best of the attorney’s knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.” Miss. R. Civ. P. 11(a). On June 1, 2007, nearly two years and three months later, and following adverse rulings from the chancery court and this Court, the Swareks filed a motion to transfer the case to circuit court.

¶ 24. Without question, “[ujnder Rule 12(h)(3) a question of subject matter jurisdiction may be presented at any time, either by motion or answer. Further, it may be asserted as a motion for relief from a final judgment under MRCP 60(b)(4) or may be presented for the first time on appeal.” Miss. R. Civ. P. 12(h)(3) cmt. See also Burnette v. Hartford, Underwriters Ins. Co., 770 So.2d 948, 951 (Miss.2000) (“Miss. R. Civ. P. 12(h)(3) allows either party to move the court for a transfer based on lack of subject-matter jurisdiction”). Nonetheless, under the doctrine of judicial estoppel, a party is precluded:

“... from asserting a position, benefit-ting from that position, and then, when it becomes more convenient or profitable, retreating from that position later in the litigation.” Dockins v. Allred, 849 So.2d 151, 155 (Miss.2003). “Because of judicial estoppel, a party cannot assume a position at one stage of a proceeding and then take a contrary stand later in the same litigation.” Id.

In re Estate of Richardson, 903 So.2d 51, 56 (Miss.2005). Accordingly, litigants should be cautioned against volitionally commencing a suit in one court, proceeding to the point of adverse rulings, and only then, when said position is deemed inconvenient or unprofitable, retreating therefrom, see Dockins, 849 So.2d at 155, and seeking a motion to transfer to another court and judge. By creating the appearance of forum- or judge-shopping, the litigant risks application of the doctrine of judicial estoppel.

WALLER, C.J., CARLSON, P.J., LAMAR, CHANDLER AND PIERCE, JJ., JOIN THIS OPINION. GRAVES, P.J., JOINS THIS OPINION IN PART.

      . Although the right to a jury trial usually is raised by a defendant who is unhappy with the plaintiff's chosen forum, the Swareks did not waive their ability to raise their right to a jury trial by filing the case in chancery court. Burnette, 770 So.2d at 951-52.

      . Namely, "to secure the just, speedy, and inexpensive determination of every action.” Miss. R. Civ. P. 1.


source: Caselaw Access Project

author: CHANDLER, Justice,

license: Public Domain

text:
    Ann Odem HILLMAN v. William B. WEATHERLY.
    No. 2008-CA-00589-SCT.
    Supreme Court of Mississippi.
    Aug. 13, 2009.

      Carey R. Varnado, Hattiesburg, Shannon S. McFarland, attorneys for appellant.
    Luther T. Munford, Jackson, James Grady Wyly, III, William Crosby Parker, Thear I. Lemoine, Gulfport, attorneys for appellee.
    Before GRAVES, P.J., KITCHENS and CHANDLER, JJ.
   CHANDLER, Justice,

for the Court.

¶ 1. Ann Odem Hillman filed a complaint for legal malpractice against attorney William Weatherly on September 4, 2002. Hillman alleged that she was involved in a motor-vehicle accident on September 4, 1996. She alleged that on July 7, 1999, William Weatherly agreed to represent Hillman in a personal-injury action arising from the accident, but he failed to file suit before the running of the applicable statute of limitations. Hillman requested $250,000, representing the amount she would have been entitled to recover in the personal-injury suit but for Weatherly’s alleged malpractice.

¶2. On February 29, 2008, the circuit court dismissed Hillman’s complaint with prejudice for failure to prosecute under Mississippi Rule of Civil Procedure 41(b). Hillman appeals, arguing that the circuit court abused its discretion by dismissing her complaint with prejudice. We find that the circuit court applied the appropriate legal standard and committed no abuse of discretion. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Hillman filed her complaint on September 4, 2002. Two attorneys signed Hillman’s complaint: Greg L. Spyridon, who was licensed to practice law in Mississippi, and Camilo K. Salas III, who was licensed in Louisiana, but not in Mississippi. Hillman filed a “Notice of Motion and Ex Parte Motion for Leave to Appear Pro Hac Vice and for Limited Practice Admission” to allow Salas to represent Hillman in the case. Although the motion stated that attached to the motion were both Salas’s affidavit and a certificate of the Louisiana State Bar Association showing Salas was in good standing, these documents do not appear in the record.

¶ 4. Weatherly filed an answer on October 7, 2002. On December 16, 2002, Weatherly propounded his first set of interrogatories and document requests to Hillman, along with medical records and earnings authorizations for Hillman to sign. On March 11, 2003, Weatherly sent Hillman a good-faith letter requesting answers to discovery. Nothing occurred until February 4, 2005, when the circuit clerk moved to dismiss the case for want of prosecution, because there had been no action of record for the preceding twelve months. See Miss. R. Civ. P. 41(d)(1).

¶ 5. On March 4, 2005, Hillman propounded discovery and noticed Weatherly’s deposition. Weatherly served answers to Hillman’s first set of interrogatories on June 27, 2005. Weatherley sent two letters in June and July 2005, requesting that Hillman provide answers to discovery before the parties’ depositions occurred on August 25, 2005. In a July 19, 2005, letter, Salas represented that they expected to respond to discovery before August 20, 2005. However, Hillman did not provide the responses before the parties’ depositions occurred on August 25, 2005. In her deposition, Hillman stated that the car accident had caused problems with her left arm, that her only prior hospitalizations were for gallbladder surgery and rotovi-rus, that she had never experienced any broken bones, and that she had experienced episodes of stumbling or falling after the car accident, but not before.

¶ 6. On January 3, 2006, Weatherly again forwarded medical records and earnings authorizations to Hillman for execution. On March 15, 2006, Weatherly served Hillman with supplemental discovery, including interrogatories, requests for the production of documents, and medical and earnings authorizations. The supplemental discovery asked whether at any time before the accident, Hillman had sustained bodily injury of any kind through an accident, illness, sickness, disease, or surgical procedure, and requested all medical records pertaining to such injury or illness. On May 16, 2006, Weatherly served a subpoena duces tecum on State Farm Insurance Company, demanding its claim file pertaining to Hillman’s automobile accident.

¶ 7. A May 23, 2006, letter from Weath-erley’s attorney to Salas confirmed an agreement to postpone further discovery pending Hillman’s settlement demand. On May 23, 2006, State Farm moved for a protective order, prompting Weatherly’s attorney to request on June 13, 2006, that Hillman either make a settlement demand or forward signed authorizations so that discovery could proceed. Salas responded with a note promising he would send a settlement demand by the end of the week. However, the record reflects no further communication from Salas until October 2007.

¶ 8. On May 25, 2006, State Farm’s attorney forwarded documents to Salas in response to Weatherly’s subpoena, including a police report, a property damage estimate, medical records, and Hillman’s sworn statement. On December 12, 2006, Weatherly’s attorney communicated by letter that he had not yet received a settlement demand, and requested that Salas either make a settlement demand, or respond to the outstanding discovery. On March 7, 2007, Weatherly’s attorney notified Salas by letter that, because he had not received a settlement offer or discovery responses, he would file a motion to compel if discovery responses were not received by March 21, 2007. Although the letter included an enclosed draft motion to compel, Weatherly never filed a motion to compel.

¶ 9. On June 20, 2007, the clerk moved to dismiss for want of prosecution. On June 27, 2007, Hillman’s Mississippi counsel, Spyridon, moved to withdraw as counsel of record. On July 2, 2007, the court granted the motion, and ordered Hillman and Salas to associate other local counsel within thirty days. On July 5, 2007, Salas noticed the deposition of Hillman’s neurologist, Dr. Bertha J. Blanchard, which was never taken. On July 24, 2007, the circuit court granted Hillman’s motion for additional time to retain local counsel, and set the deadline as August 16, 2007. On August 22, 2007, the court granted a second motion for additional time, giving Hillman and Salas until August 31, 2007, to retain local counsel. On September 26, 2007, Weatherly moved to dismiss for want of prosecution under Mississippi Rule of Civil Procedure 41(b), or alternately, to strike all pleadings filed by Salas because he never had been admitted pro hac vice.

¶ 10. Having never retained local counsel, on October 2, 2007, Salas sent a letter to Weatherly’s counsel enclosing Hillman’s medical and earnings authorizations, which were signed and dated May 10, 2006. Salas stated that he had not forwarded these earlier due to his understanding that the parties were engaged in settlement negotiations.

¶ 11. In another October 2, 2007, letter, Salas enclosed the State Farm claim file and the medical records from Dr. Blanchard, and promised to forward discovery responses and a settlement demand. Dr. Blanchard’s records showed that Hillman had seen Dr. Blanchard beginning December 22, 1999, and Dr. Blanchard had diagnosed Hillman with “probable whiplash syndrome post motor vehicle accident.” However, Dr. Blanchard’s medical records also revealed that Hillman had undergone a prior left rotator cuff repair surgery, a 1983 surgery to remove a disc from her neck, and 1985 surgeries to repair injuries from a fall from a ladder, including a broken right arm and a crush injury to her right ankle. Thus, Dr. Blanchard’s rec-orcls conflicted with Hillman’s deposition testimony that she had had no prior hospitalizations other than for gallbladder surgery and rotovirus, and no prior broken bones.

¶ 12. On October 24, 2007, Weatherley’s counsel communicated that the medical and earnings authorizations dated May 10, 2006, now were too old to be accepted by the providers, and he requested that Hill-man execute new authorizations. On October 31, 2007, Hillman produced updated medical authorizations. A January 14, 2008, affidavit of a paralegal employed by Weatherly’s counsel detailed her unsuccessful attempts in 2005 and 2006 to contact the driver of the other automobile involved in the accident. The affidavit and attached documentation also indicated that some of Hillman’s medical providers had stated that her medical records had been destroyed due to the passage of time.

¶ 13. Hillman finally retained Mississippi counsel on December 10, 2007, and she filed an opposition to the motion to dismiss on December 17, 2007. An affidavit executed by Salas accompanied the motion. In it, Salas swore that he had operated under the impression that the motion to admit him pro hac vice had been granted, noting that the clerk had never rejected any of his filings. He stated that he had been unable to retain local counsel. Salas averred that he had made his first settlement demand on October 11, 2007. Salas’s affidavit also contained legal arguments on why there were no grounds to strike his pleadings or to dismiss for failure to prosecute; he averred that the case was ready to be tried. On December 19, 2007, Salas moved to withdraw as counsel pro hac vice.

¶ 14. After a hearing on February 29, 2008, a date more than five years after the filing of the complaint, the circuit court dismissed the case with prejudice pursuant to Rule 41(b) for failure to prosecute. The circuit court found that there was a clear record of delay on the part of Hillman, that a lesser sanction than dismissal with prejudice was not in the interests of justice, and that aggravating factors were present that supported dismissal with prejudice. Also, the circuit court struck all pleadings filed by Salas, finding that Salas had never been admitted pro hac vice to practice law in Mississippi.

STANDARD OF REVIEW

¶ 15. This Court reviews a circuit court’s dismissal of an action for want of prosecution for abuse of discretion. Hill v. Ramsey, 3 So.3d 120, 122 (Miss.2009) (citing Cucos, Inc. v. McDaniel, 938 So.2d 238, 240 (Miss.2006)).

DISCUSSION

¶ 16. Hillman presents a single issue for the Court’s review:

DID THE CIRCUIT COURT ABUSE ITS DISCRETION BY DISMISSING THIS CASE WITH PREJUDICE UNDER MISSISSIPPI RULE OF CIVIL PROCEDURE 41(B)?

¶ 17. Mississippi Rule of Civil Procedure 41(b) states:

(b) Involuntary dismissal: effect thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a, defendant may move for dismissal of an action or of any claim against him. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court may then render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court may make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this stobdivision and any other dismissal not provided for in this rule, other than, a dismissal for lack of jurisdiction, for improper venue, or for failure to join a, party under Rule 19, operates as an adjudication upon the merits.

(Emphasis added.) Rule 41(b) embodies the tenet that “any court of law or equity may exercise the power to dismiss for want of prosecution. This power, inherent to the courts, is necessary as a means to ‘the orderly expedition of justice’ and ‘the court’s control of its own docket.’ ” Cucos, 938 So.2d at 240 (citing Walker v. Parnell, 566 So.2d 1213, 1216 (Miss.1990) (quoting Watson v. Lillard, 493 So.2d 1277, 1278 (Miss.1986))). However, the remedy of dismissal with prejudice “is an extreme and harsh sanction that deprives a litigant of the opportunity to pursue his claim, and any dismissals with prejudice are reserved for the most egregious cases.” Wallace v. Jones, 572 So.2d 371, 376 (Miss.1990). “What constitutes failure to prosecute is considered on a case-by-case basis.” Cox v. Cox, 976 So.2d 869, 874 (Miss.2008).

¶ 18. This Court has adopted the standard promulgated by the Fifth Circuit for review of dismissals with prejudice for failure to prosecute under Rule 41(b). Am. Tel. & Tel. Co. v. Days Inn of Winona, 720 So.2d 178, 181 (Miss.1998) (citing Rogers v. Kroger Co., 669 F.2d 317 (5th Cir.1982)). There is no set time limit for the prosecution of an action; a dismissal with prejudice will be affirmed only if there is a showing of a clear record of delay or contumacious conduct by the plaintiff, and where lesser sanctions would not serve the best interests of justice. Id. at 180-81. The propriety of a dismissal with prejudice is bolstered by the presence of aggravating factors, including: (1) “the extent to which the plaintiff, as distinguished from his counsel, was personally responsible for the delay,” (2) “the degree of actual prejudice to the defendant,” and (3) “whether the delay was the result of intentional conduct.” Am. Tel. & Tel. Co., 720 So.2d at 181 (quoting Rogers, 669 F.2d at 320).

A. Clear record of delay or contumacious conduct

¶ 19. The circuit court found that there was a clear record of delay, because Hill-man had been dilatory in the prosecution of her case from the date the complaint was filed. The circuit court noted that, after filing the complaint, Hillman’s first affirmative action was taken in response to the clerk’s first motion to dismiss for want of prosecution. The court also observed that, despite numerous requests from Weatherly, Hillman had failed to respond to discovery or to timely provide medical authorizations. As a result, many of the medical providers no longer had Hillman’s medical records because the providers were not obligated to maintain the records for more than ten years.

¶ 20. This Court finds that the more than five-year record in this case substantially supports the circuit court’s finding of a clear record of delay. Two clerk’s motions to dismiss for want of prosecution were filed in this case, each indicating that no action of record was taken for at least the previous twelve months. Hillman filed her complaint on September 4, 2002, but she did not initiate any action of record until after the clerk moved to dismiss the case on February 4, 2005, for want of prosecution. Thus, there was no action of record for more than two years, from December 16, 2002, when Weatherly filed discovery, until March 4, 2005, when Hillman filed discovery and noticed Weatherly’s deposition. In affirming a dismissal without prejudice for failure to prosecute, this Court has found that nineteen months of inactivity was “sufficient delay, standing alone, to warrant dismissal.” Hill, 3 So.3d at 122.

¶ 21. The record reflects that, throughout the course of the more than five-year period, Hillman was dilatory in responding to discovery. Despite the circuit court rule that discovery be completed within ninety days of the service of the answer by the defendant, Hillman did not respond to Weatherly’s discovery requests for the entire three-year period prior to the parties’ agreement to postpone discovery pending settlement. See Miss. Unif. Cir. & Cty. R. 4.04(A). In fact, Hillman never responded to Weatherly’s interrogatories. Although discovery was suspended pending settlement negotiations on May 23, 2005, Hill-man made no settlement demand until October 11, 2007, after Weatherly had filed the motion to dismiss. “[T]he pendency of negotiations is not an excuse where the delay is unreasonably long ... or if it continues after it is apparent that the negotiations would not be fruitful.” Cox, 976 So.2d at 875. Although Hillman eventually provided responses to Weatherly’s document requests, she did not do so until October 2, 2007, a date which was: (1) more than six months after Weatherly threatened to file a motion to compel Hill-man’s discovery responses, (2) after the clerk filed a second clerk’s motion to dismiss in June 2007, and (3) after Weatherly filed his motion to dismiss on September 26, 2007. We previously have considered the fact that a plaintiffs sole activity was reactionary in concluding that the record supported a finding of a clear record of delay. Hill, 3 So.3d at at 122.

¶ 22. Hillman admits that delay occurred, but she argues, without citation to precedent, that Weatherly should have filed a motion to compel discovery responses. However, when assessing the propriety of a Rule 41(b) dismissal, the Court consistently has applied the test enunciated in American Telephone and Telegraph Co., 720 So.2d at 181; see Hill, 3 So.3d at 122; Wilson v. Nance, 4 So.3d 336, 340-346 (Miss.2009); Cox, 976 So.2d at 874-880; Miss. Dep’t of Human Servs. v. Guidry, 830 So.2d 628, 633-34 (Miss.2002); Hoffman v. Paracelsus Health Care Corp., 752 So.2d 1030, 1033-1035 (Miss.1999). This test focuses on the plaintiffs conduct, not on the defendant’s efforts to prod a dilatory plaintiff into action. We hold that the record substantially supported the circuit court’s finding of a clear record of delay.

B. Lesser sanctions

¶ 23. This Court has held that a case should be dismissed with prejudice under Rule 41(b) only if lesser sanctions are inadequate. Wilson, 4 So.3d at 343. “Lesser sanctions include ‘fines, costs, or damages against plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings.’ ” Miss. Dep’t of Human Servs., 830 So.2d at 633 (quoting Wallace, 572 So.2d at 377). “Where there is no indication in the record that the lower court considered any alternative sanctions to expedite the proceedings, appellate courts are less likely to uphold a Rule 41(b) dismissal.” Hoffman, 752 So.2d at 1035 (citation omitted); Wilson, 4 So.3d at 343.

¶24. The circuit court explicitly-considered lesser sanctions, including fines, costs, or damages against Hillman or her counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, or explicit warnings. The circuit court found that Weatherly would be prejudiced if the matter were allowed to proceed, due to the obstruction of discovery by Hillman and Salas and the resultant unavailability and destruction of necessary medical records. Therefore, the circuit court determined that imposing a lesser sanction than dismissal with prejudice would not best serve the interests of justice.

¶ 25. We find that the record supported the circuit court’s determination. Evidence showed that Hillman obstructed discovery, because she was not truthful about her medical history at her deposition, which prejudiced Weatherly because it thwarted his timely acquisition of Hill-man’s medical records and his ability to identify and depose her treating physicians. And, Salas’s continued deflection of Weatherly’s good-faith written requests for Hillman’s discovery responses obstructed discovery. Although Hillman argues that the available medical records produced in October 2007 provided Weath-erly with ample information with which to defend the suit, it is evident that the complete medical records of Hillman’s preexisting conditions were unobtainable due to Hillman and Salas’s obstructive and dilatory conduct. Also, Weatherly was prejudiced because no witnesses to the car accident were available. “The unavailability of witnesses who could have provided valuable testimony may prejudice a defendant.” Cox, 976 So.2d at 877. This Court has affirmed a dismissal with prejudice when lesser sanctions could not cure the prejudice to a defendant caused by the delay. Id. at 876. Accordingly, we find that the circuit court did not abuse its discretion in concluding that dismissal with prejudice was required in the best interests of justice, especially in light of the evident prejudice to Weatherly.

C. Aggravating factors

¶ 26. The circuit court also found that aggravating factors were present that bolstered a dismissal with prejudice, citing the following evidence: (1) the whereabouts of key witnesses were unknown due to the passage of more than eleven years since the underlying car accident; (2) several of Hillman’s medical providers had advised Weatherly that the requested records had been expunged, including those of Hillman’s primary-care physician immediately following the accident; (3) Hillman’s pre-accident medical records were no longer available, which would hamper Weath-erly’s ability to determine if she had suffered from any pre-existing conditions; (4) during Hillman’s deposition, she failed to disclose prior significant medical and surgical history, thus implicating herself in the spoliation of evidence; (5) Hillman failed to respond to Weatherly’s discovery despite Weatherly’s numerous good-faith letters; (6) neither Hillman nor Salas provided a reasonable explanation for the delay; and (7) dismissal was warranted because Salas failed to comply with the court order to retain Mississippi counsel, and because all the pleadings Salas filed should be stricken because he was never admitted to practice in Mississippi courts.

¶ 27. The aggravating factors to be considered include: (1) “the extent to which the plaintiff, as distinguished from his counsel, was personally responsible for the delay,” (2) “the degree of actual prejudice to the defendant,” and (3) “whether the delay was the result of intentional conduct.” Am. Tel. & Tel. Co., 720 So.2d at 181 (quoting Rogers, 669 F.2d at 320). The facts identified by the circuit court strongly implicate two of the three aggravating factors.

1. Plaintiffs personal responsibility for the delay

¶ 28. Hillman argues that there was no evidence that she was personally responsible for the delay, which she attributes solely to Salas’s malfeasance. However, the record amply supports the circuit court’s finding that Hillman was personally responsible for spoliation of the evidence, because she did not disclose her prior medical history at her deposition, which prevented Weatherly from acquiring Hill-man’s medical records before their destruction. This finding indicates that Hill-man bore some personal responsibility for obstructing discovery. A plaintiffs willful and prejudicial failure to disclose pre-exist-ing conditions at her deposition has been held to support a dismissal under Rule 37 as a sanction for discovery violations. Scoggins v. Ellzey Beverages, Inc., 743 So.2d 990, 997 (Miss.1999). Certainly, the record reflects that Hillman had some degree of personal responsibility for the delay in prosecution.

2. Degree of actual prejudice to the defendant

¶ 29. The record strongly supports the circuit court’s finding that Weatherly would suffer actual prejudice if this case were permitted to go to trial. The underlying car accident occurred in 1996, eleven years before Weatherly filed the motion to dismiss. Due to the delay, medical records from the physician who treated Hill-man immediately following the accident had been destroyed, as had much of the medical history pertaining to Hillman’s pre-existing medical conditions. Also, Weatherly was unable to locate the key witness to the car accident. These deficiencies in the evidence caused by the delay substantially supported the circuit court’s decision that Weatherly was actually prejudiced by the delay.

S. Whether the delay ivas the result of intentional conduct

¶ 30. Weatherly argues that the delay was the result of intentional conduct, because Hillman never provided any reason for the delay and because Salas never was admitted pro hac vice. However, the circuit court made no specific finding that Hillman’s dilatory conduct was intentional. This Court perceives nothing in the record that suggests the conduct identified by Weatherly was intentional rather than negligent, although we note that Hillman’s dishonesty at her deposition indicates intention. Nonetheless, as discussed above, the propriety of the dismissal with prejudice was supported by the presence of the two aggravating factors found by the circuit court.

CONCLUSION

¶ 31. We hold that the circuit court was within its discretion in finding that there was a clear record of delay, that the interests of justice required no lesser sanction than dismissal with prejudice, and that aggravating factors were present in the form of Hillman’s personal responsibility for the delay and actual prejudice to Weatherly. Therefore, we hold that the trial court did not abuse its discretion by dismissing Hillman’s complaint with prejudice under Rule 41(b) for failure to prosecute.

¶ 32. AFFIRMED.

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

      . It is undisputed that the circuit court never entered an order authorizing Salas's appearance pro hac vice. Nonetheless, all of the documents that were filed after the complaint on Hillman's behalf were signed by only Salas until December 17, 2007.

      . In all civil actions wherein there has been no action of record during the preceding twelve months, the clerk of the court shall mail notice to the attorneys of record that such case will be dismissed by the court for want of prosecution unless within thirty days following said mailing, action of record is taken or an application in writing is made to the court and good cause shown why it should be continued as a pending case. If action of record is not taken or good cause is not shown, the court shall dismiss each such case without prejudice.
      Miss. R. Civ. P. 41(d)(1).

      . Thai offer, in the amount of $250,000, was rejected.


author: KING, C.J.,

text:
    Daniel Ray WEATHERS, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, Appellee.
    No. 2007-CA-01180-COA.
    Court of Appeals of Mississippi.
    July 22, 2008.
    Rehearing Denied Oct. 28, 2008.

      John A. Owens, Dudley H. Carter, Columbus, Susie Taylor Carver, attorneys for appellant.
    Sheryl Bey, Jackson, attorney for appel-lee.
    Before KING, C.J., GRIFFIS and CARLTON, JJ.
   KING, C.J.,

for the Court.

¶ 1. Daniel Ray Weathers (Weathers) filed suit against Metropolitan Life Insurance Company (MetLife) in the Circuit Court of Lowndes County, alleging fraud, breach of contract, and negligent supervision. The circuit court granted MetLife’s motion for summary judgment. Aggrieved, Weathers appeals, raising the following issue:

Whether the trial court erred by granting MetLife’s motion for summary judgment, finding no genuine issue of material fact, where Weathers presented evidence that:

(1) MetLife breached its contract with Weathers;
(2) MetLife defrauded Weathers and fraudulently concealed the alleged fraud;
(3) MetLife prevented Weathers from discovering his claim, thereby tolling the statute of limitations; and
(4) MetLife negligently trained and supervised its agent, Jim McKie.

¶ 2. Finding Weathers’s claim time-barred, we affirm the circuit court’s grant of summary judgment in favor of MetLife.

FACTS AND PROCEDURAL HISTORY

¶ 3. Weathers purchased a life insurance policy from McKie, then a MetLife insurance agent. McKie gave Weathers a presentation on how to obtain a $500,000 life insurance policy that would accrue cash value over time. McKie explained that Weathers could leave the dividends in the policy, take the cash out, or use the dividends to pay future premiums on the policy. The “Stop and Go” illustration demonstrated how Weathers would make premium payments for only ten years; after which, the policy would become self-sustaining. Weathers applied for the insurance policy, and MetLife delivered a policy to him on February 1, 1994, for $376,550.

¶ 4. After receiving the policy, Weathers gave it a cursory read and had a few concerns with its provisions. One, the policy was entitled “Life Paid Up at 98”; and two, the policy stated that Weathers had to make premium payments for fifty-six years. Weathers then contacted McKie and inquired as to what those terms meant and if his payments would still cease after ten years. McKie explained to Weathers that he could pay the policy until he turned ninety-eight years old, and the policy would simply build more value; or Weathers could stop paying the premiums out of pocket after ten years, as demonstrated by the illustration, and use the annual dividends to pay the premiums thereafter.

¶ 5. In 1999, Weathers received a notice of a class-action lawsuit against MetLife regarding the “vanishing premiums” life insurance policies. Again, Weathers called McKie for clarification. McKie advised Weathers that the policy might not perform as promised and that he should contact MetLife. Weathers alleged that he contacted MetLife on multiple occasions; however, MetLife failed to provide him a clear explanation regarding the problems with his insurance policy. Upon the advice of his attorney, Weathers opted out of the class-action lawsuit on October 19, 1999, and filed a lawsuit against MetLife in 2001 in the Circuit Court of Lowndes County, asserting claims of fraud, breach of contract, and negligent supervision.

¶ 6. MetLife filed a motion for summary judgment on February 13, 2007, and oral argument on the motion was heard on May 25, 2007. The trial court found that there was no genuine issue of material fact and granted summary judgment in favor of MetLife on June 15, 2007. The trial court reasoned the following: (1) Weathers failed to prove fraudulent concealment, which would have tolled the three-year statute of limitations; and (2) Weathers was under an obligation to read the contract prior to signing it, and he will not be heard to complain of an oral misrepresentation that would have been corrected by reading the contract.

¶ 7. Aggrieved, Weathers timely filed this appeal.

STANDARD OF REVIEW

¶ 8. An appeal from the grant of a motion for summary judgment is reviewed de novo. Allen v. Mac Tools, Inc., 671 So.2d 636, 640 (Miss.1996) (citing Pace v. Fin. Sec. Life of Miss., 608 So.2d 1135, 1138 (Miss.1992)). “When reviewing an award of summary judgment, this Court views all evidence in the light most favorable to the non-movant, including ‘admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.’ and will presume that all evidence in the non-mov-ant’s favor is true.” Id. (quoting Downs v. Choo, 656 So.2d 84, 85 (Miss.1995)). The trial court’s grant of summary judgment will stand if there is no genuine issue as to any material fact. Id.

ANALYSIS

¶ 9. As a threshold issue, this Court must first determine whether Weathers’s claim is time-barred. Weathers argues that the statute of limitations was tolled until 1999 when he received the class-action notice because, in 1994, MetLife fraudulently concealed the misrepresentations when McKie reassured Weathers that he did not have to pay premiums out of pocket after ten years. Conversely, MetLife argues that Weathers’s claim is time-barred because the statute of limitations accrued when the sale of the policy was complete on February 1,1994.

¶ 10. “This Court uses a de novo standard of review when passing on questions of law including statute of limitations issues.” Stephens v. Equitable Life Assurance Soc’y of the U.S., 850 So.2d 78, 82(10) (Miss.2003) (quoting ABC Mfg. Corp. v. Doyle, 749 So.2d 43, 45(10) (Miss.1999)). Mississippi Code Annotated section 15 — 1— 49 (Rev.2003) provides a three-year statute of limitations for claims of fraud. See also Warren v. Horace Mann Life Ins. Co., 949 So.2d 770, 772(8) (Miss.Ct.App.2006). The statute of limitations accrues upon the completion of the sale of the insurance policy. See Stephens, 850 So.2d at 81(9). However, the statute of limitations can be tolled for claims of fraudulent concealment. Id. at 83 (17-18). Mississippi Code Annotated section 15-1-67 (Rev.2003) provides:

If a person liable to any personal action shall fraudulently conceal the cause of action from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence might have been, first known or discovered.

A plaintiff must show two things to prove fraudulent concealment: (1) an affirmative act by the defendant that prevented discovery of the claim, and (2) the plaintiff exercised due diligence to discover the defendant’s concealed fraud. See Warren, 949 So.2d at 772-73(10) (citing Stephens, 850 So.2d at 83-84(18)).

¶ 11. MetLife delivered Weathers’s life insurance policy on February 1, 1994. Therefore, Weathers had three years from February 1, 1994, to file the lawsuit unless he can prove that MetLife fraudulently concealed the cause of action, thereby tolling the statute of limitations. In an attempt to prove fraudulent concealment, Weathers contends that MetLife committed an affirmative act that prevented his discovery of the claim when McKie reassured him that he did not have to pay premiums out of pocket after ten years. Further, Weathers argues that he was unaware that the illustrations and oral representations were false until he received the class-action notice in 1999. At this point, Weathers claims that he exercised due diligence to determine the truth and filed his lawsuit in 2001, within the three-year statute of limitations. We disagree and find that Weathers failed to exercise due diligence.

¶ 12. In his deposition, Weathers admits that he did not read the entire policy; but undeniably, Weathers read enough of the policy to be alarmed and voice concern over some of its provisions. “[A] person is under an obligation to read a contract before signing it, and will not as a general rule be heard to complain of an oral misrepresentation the error of which would have been disclosed by reading the contract.” Anderson v. Equitable Life Assurance Soc’y of the U.S., 248 F.Supp.2d 584, 590 (S.D.Miss.2003) (quoting Godfrey, Bassett & Kuykendall Architects, Ltd. v. Huntington Lumber & Supply Co., Inc., 584 So.2d 1254, 1257 (Miss.1991)). Further, “knowledge of the contents of a contract are imputed to the parties thereto, even where they have not read the contract.” Id. (citing Cherry v. Anthony, Gibbs, Sage, 501 So.2d 416, 419 (Miss.1987)). Weathers had a duty to read the insurance policy, and he is therefore imputed with knowledge of its contents.

¶ 13. Weathers stated that he realized the following upon a cursory reading of the contract:

Well, it scared me on the front of the policy where it says, “Life paid up at 98.” So, we had — I wanted to make sure that this was going to be paid in ten years. And he reassured me that this was going to be — after I paid this for ten years,....

Once “a person has knowledge of such facts as to excite the attention of a reasonably prudent man and to put him upon guard and thus to incite him to inquiry, he is chargeable with notice, equivalent in law to knowledge, of all those further relevant facts which such inquiry, if pursued with reasonable diligence, would have disclosed.” First Nat’l Bank of Laurel v. Johnson, 177 Miss. 634, 643, 171 So. 11, 14 (1936). The quoted statement taken from Weathers’s deposition undoubtedly shows that Weathers was put on notice that the policy’s language was contrary to the illustrations and oral representations that he had received from McKie. As such, we find that Weathers failed to exercise due diligence to discover his cause of action.

CONCLUSION

¶ 14. We find that the trial court did not err in granting MetLife’s motion for summary judgment because Weathers’s claim was time-barred. The statute of limitations began to run on February 1, 1994, after Weathers read his insurance policy and expressed concern over its provisions. At that time, Weathers was on notice that the policy’s language was contrary to the information he received from McKie. Weathers unreasonably relied upon McKie’s reassurance and failed to exercise due diligence to address his concerns. Therefore, the statute of limitations was not tolled, and Weathers’s claim was time-barred when he filed suit against MetLife in 2001. Since this issue is dispositive, we do not address Weathers’s remaining assignments of error.

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

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


author: ISHEE, J., IRVING, J.,

text:
    COVENANT HEALTH & REHABILITATION OF PICAYUNE, LP and Covenant Dove, Inc., Appellants, v. ESTATE OF Mittie M. MOULDS, By and Through James BRADDOCK, Administrator for the use and Benefit of the Estate and Wrongful Death Beneficiaries of Mittie M. Moulds, Appellee.
    No. 2007-CA-01250-COA.
    Court of Appeals of Mississippi.
    Aug. 19, 2008.
    Rehearing Denied Dec. 9, 2008.

      John L. Maxey, Paul Hobart Kimble, Jackson, attorneys for appellants.
    F.M. Turner, Hattiesburg, attorney for appellee.
    Before KING, C.J., GRIFFIS, ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the Court.

¶ 1. James Braddock, on behalf of his deceased mother, Mittie M. Moulds, filed suit against Covenant Health and Rehabilitation of Picayune (Covenant Health) for wrongful death relating to his mother’s stay at one of their facilities, the Picayune Convalescent Center. Covenant Health subsequently sought to compel arbitration based on the arbitration clause found in the admissions agreement governing Moulds’s stay in that facility. The circuit court refused to compel arbitration, finding that Braddock lacked the power to enter into an arbitration agreement on behalf of Moulds and that the admissions agreement, as a whole, was substantively unconscionable. Aggrieved, Covenant Health appeals, seeking enforcement of the arbitration provision.

¶ 2. In response, Braddock asks this Court to refuse to compel arbitration because: (1) he did not have the legal capacity to bind his mother to arbitration; (2) the arbitration clause in the admissions agreement was not supported by consideration; (3) the arbitration clause is void due to fraud in the inducement; (4) the admissions agreement, as a whole, is substantively unconscionable; and (5) the designated arbitral forum is unavailable.

¶ 3. Finding error, we reverse the judgment of the circuit court and remand this case with instructions to enforce the arbitration clause of the admissions agreement and compel arbitration.

FACTS

¶ 4. Moulds was admitted to the Picayune Convalescent Center on November 16, 2000. At that time, she was suffering from Alzheimer’s disease, dementia, and depression. Due to these illnesses, her son, Braddock, signed the admissions agreement on her behalf as her healthcare surrogate. The admissions agreement contained an arbitration clause requiring both parties to submit to binding arbitration in the event of any dispute.

¶ 5. Moulds left the Picayune Convalescent Center on September 20, 2004, and was admitted to a local hospital shortly thereafter. She died in the hospital on October 2, 2004. Braddock sued Covenant Health on behalf of his mother’s estate for wrongful death, claiming that the injuries she suffered while in the care of the Picayune Convalescent Center contributed to her death. After the initiation of the lawsuit, Covenant Health sought to stay proceedings in the circuit court and moved to compel arbitration pursuant to the arbitration clause in the admissions agreement. The circuit court denied the motion, and it is from that ruling that Covenant Health now appeals.

DISCUSSION

¶ 6. This Court reviews an order denying a motion to compel arbitration de novo. Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507, 513(¶ 9) (Miss.2005). Although not directly raised by either party in this case, as a threshold issue this Court must determine whether the Federal Arbitration Act (FAA) controls the arbitration agreement presented here.

¶7. Our supreme court has previously held that “singular agreements between care facilities and care patients, when taken in the aggregate, affect interstate commerce.” Id. at 515(¶ 16). In this case, as in Vicksburg Partners, “since the arbitration clause is a part of a contract (the nursing home admissions agreement) evidencing in the aggregate economic activity affecting interstate commerce, the Federal Arbitration Act is applicable.... ” Id. at 515-16(¶ 18).

¶ 8. Having made the determination that the arbitration agreement in this case is governed by the FAA, we must next determine if that arbitration agreement is valid. Again we are guided by the supreme court, which has stated that “[i]n determining the validity of a motion to compel arbitration under the Federal Arbitration Act, courts generally conduct a two-pronged inquiry. The first prong has two considerations: (1) whether there is a valid arbitration agreement and (2) whether the parties’ dispute is within the scope of the arbitration agreement.” East Ford, Inc. v. Taylor, 826 So.2d 709, 713(¶ 9) (Miss.2002). The second prong involves an inquiry into “whether legal constraints external to the parties’ agreement foreclosed arbitration of those claims.” Id. at 713(¶ 10) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)).

¶ 9. With respect to the first prong of the analysis outlined above, “[t]o determine whether the parties agreed to arbitration, we simply apply contract law.” Terminix Int’l, Inc., Ltd. P’ship v. Rice, 904 So.2d 1051, 1055(¶ 9) (Miss.2004). Regarding this prong of our inquiry, Braddock asserts that he lacked the capacity to consent to arbitration as his mother’s health-care surrogate or, in the alternative, that the arbitration clause is void because it lacked sufficient consideration. We address each of these issues below.

1. Braddock possessed the capacity to bind his mother to arbitration.

¶ 10. Braddock asserts that he did not have the capacity to bind his mother to arbitration while acting as her health-care surrogate under the Uniform Health-Care Decisions Act. Miss.Code Ann. §§ 41-41-201 to -229 (Rev.2005). Braddock does not dispute that he was, in fact, acting as his mother’s health-care surrogate for the purposes of the Uniform Health-Care Decisions Act when she was admitted to the Picayune Convalescent Center.

¶ 11. Our supreme court recently addressed this very issue in Covenant Health Rehab. of Picayune, L.P. v. Brown, 949 So.2d 732 (Miss.2007). In Brown, the plaintiffs, as administrators of the estate of their deceased mother, filed a wrongful death suit against the nursing home in which their mother resided prior to her death. Id. at 735(¶ 1). An adult daughter of the decedent signed the admissions agreement as the “responsible party” for her mother upon admission to the facility. Id. The defendants filed a motion to compel arbitration based on the admissions agreement, and the trial court denied that motion. On appeal, the supreme court held that the adult daughter of the patient, acting as a health-care surrogate, had the authoi’ity to contractually bind her mother in health-care matters under our Uniform Health-Care Decisions Act. Id. at 736-37(¶ 10).

¶ 12. In reversing the trial court’s denial of the motion to compel arbitration in Brown, the supreme court implicitly held that the surrogate’s authority to bind the patient extended to the arbitration clause in the admissions agreement. In this case, because Braddoek does not dispute that he was acting as his mother’s health-care surrogate for the purposes of the Uniform Health-Care Decisions Act, we see no reason to depart from the supreme court’s holding in Brown. Therefore, we find that a health-care surrogate, acting under the provisions of the Uniform Health-Care Decisions Act, is capable of binding his or her patient to arbitration. Accordingly, we find that Braddock’s argument on this issue is without merit.

2. The arbitration dame does not fail for lack of consideration.

¶ 13. Braddoek also asserts that the arbitration clause should fail for lack of consideration. He relies solely on the affidavit of Keri Ladner, the facility administrator for Covenant Health, in making this argument. Braddoek points to Ladner’s statement that his mother would not have been refused admission to the facility had he objected to the arbitration agreement as evidence that the arbitration clause lacked consideration; therefore, the arbitration clause should have been stricken from the admissions agreement.

¶ 14. We first note that Ladner’s statements are irrelevant to the issue of consideration. The only thing her statements represent is an admission that, in retrospect, Braddoek could have entered into a more beneficial contract for his mother had he bargained for it. Simply because one party to a contract later admits that the other party could have successfully bargained for more beneficial terms at the time the contract was formed does not mean that the element of the contract not bargained for is void for lack of consideration. In any contract, “[a]ll that is needed to constitute a valid consideration to support an agreement or contract is that there must be either a benefit to the promissor or a detriment to the promisee. If either of these requirements exist, there is a sufficient consideration.” Theobald v. Nosser, 752 So.2d 1036, 1040(¶ 15) (Miss.1999).

¶ 15. Second, even if Ladner’s statements were relevant to this issue, this Court would be prevented from considering them by the parol evidence rule. It is a well-settled principle of contract law that “as an evidentiary matter, parol evidence to vary the terms of a written contract is inadmissible.” Carter v. Citigroup, Inc., 938 So.2d 809, 818(1141) (Miss.2006) (quoting Stephens v. Equitable Life Assurance Soc’y of the United States, 850 So.2d 78, 82(¶ 14) (Miss.2003)). Although parol evidence is sometimes admissible when there has been, among other things, a showing that a contract contains ambiguous language, here there has been no such showing. Neither party has even suggested that there is any ambiguity in the agreement.

¶ 16. Without such a showing, we must look to the agreement of the parties in order to determine whether there was sufficient consideration. Again, in any contract, “[a]ll that is needed to constitute a valid consideration to support an agreement or contract is that there must be either a benefit to the promissor or a detriment to the promisee. If either of these requirements exist, there is a sufficient consideration.” Theobald, 752 So.2d at 1040(¶ 15).

¶ 17. Here, there is clearly sufficient consideration to support the arbitration agreement. Both parties undertook duties toward one another under the admissions agreement. Covenant Health promised to provide care and assistance to Moulds. Braddock, on behalf of his mother, promised to pay Covenant Health for its service. The arbitration clause was one portion of that exchange, and it obligated both parties to arbitrate any dispute between them. The mutuality of exchange found throughout the admissions agreement provides ample evidence that there was sufficient consideration to support the arbitration clause; therefore, we find that the arbitration clause does not fail for lack of consideration.

3. The dispute is within the scope of the arbitration clause.

¶ 18. Although not directly addressed by either party in this appeal, under our standard of review in this case, this Court must determine that the dispute between the parties falls within the scope of the arbitration agreement in order to compel arbitration. To do so, we look to the language of the arbitration clause itself. In this case, that language is very clear. The arbitration clause states that “[t]he Resident and Responsible Party agree that any and all claims, disputes, and/or controversies between them and the Facility or its Owners, officers, directors, or employees shall be resolved by binding arbitration.... ” Clearly, the arbitration clause was meant to apply to any dispute, regardless of its nature, that arose between the facility and Moulds, including her son’s current claim for wrongful death on behalf of her estate. Consequently, we find that the dispute between Braddock and Covenant Health falls within the scope of the arbitration clause.

A The arbitration clause does n.ot violate any external legal constraints.

¶ 19. Having determined that a valid arbitration agreement exists, and that the current dispute falls within the scope of that agreement, we now turn to the second prong of the test set out in East Ford, which involves an inquiry-into “whether legal constraints external to the parties’ agreement foreclose arbitration of those claims.” East Ford, 826 So.2d at 713(¶ 10) (quoting Mitsubishi Motors Corp., 473 U.S. at 628, 105 S.Ct. 3346). The supreme court has stated that under the second prong of the East Ford test, “applicable contract defenses available under state contract law such as fraud, duress, and unconscionability may be asserted to invalidate the arbitration agreement without offending the Federal Arbitration Act.” Id.

¶ 20. Specifically, Braddock asserts two of the defenses listed above, fraud and substantive unconscionability, in his argument to sustain the ruling of the circuit court and void the arbitration clause.

A. Braddock tuas not fraudulently ind,uced into signing the admissions agreement.

¶21. Braddock argues that he was fraudulently induced into signing the admissions agreement. He again relies on the affidavit of Ladner, the facility administrator, and the fact that Ladner stated that acceptance of the arbitration clause was not a necessary precondition to Mould’s admittance to the facility. This statement does not give rise to a defense of fraud. As a contract defense, “[flraud in the inducement arises when a party to a contract makes a fraudulent misrepresentation, i.e., by asserting information he knows to be untrue, for the purpose of inducing the innocent party to enter into a contract.” Lacy v. Morrison, 906 So.2d 126, 129(116) (Miss.Ct.App.2004).

¶ 22. The defense of fraud in the inducement would be appropriately raised if, for instance, Ladner had made material misrepresentations to Braddock when he signed the admissions agreement, and those misrepresentations had been meant to, and did, induce Braddock to sign the agreement. However, the facts indicate that this is not what happened. As we noted above, all that Ladner’s statements demonstrate is that Braddock could have potentially bargained for a better deal from the facility, i.e., one that did not include the arbitration clause. However, the admissions agreement itself did not contain any false information, it simply contained terms that could have been altered had Braddock attempted to do so. The fact that he failed to bargain for those terms does not constitute fraud in the inducement any more than it constitutes a lack of consideration. We therefore find that Braddock was not fraudulently induced into signing the admissions agreement.

B. The arbitration clause is substantively conscionable.

¶ 23. Braddock asserts that the admissions agreement contains several provisions that previously have been found unconscionable by our supreme court, and as a consequence, this Court should void the entire admissions agreement. In the alternative, Braddock argues that the terms of the arbitration clause itself are unconscionable and that we should strike the arbitration clause from the admissions agreement. Although this Court has serious misgivings about the language included in the admissions agreement, we are compelled to confirm the substantive con-scionability of the admissions agreement and the arbitration clause.

¶ 24. Braddock correctly points out that the admissions agreement that he signed contains several clauses that have exactly the same language as clauses in other nursing home admissions agreements that our supreme court has explicitly held are unconscionable. In fact, the admissions agreement in this case appears to be identical to the one at issue in Brown, discussed above. Specifically, (1) the language in section C5 requiring forfeiture by the resident for all claims except those for willful acts, (2) the language in section C8 waiving liability for the criminal acts of individuals, (3) the “grievance resolution process” set out in sections E5 and E6, (4) the language limiting the recovery of actual damages in section E7, (5) the language limiting the recovery of punitive damages in section E8, (6) the language in section E12 requiring the resident to pay all costs if the resident attempts to avoid or challenge the grievance resolution process, and (7) the language of section E16 that purports to change the statute of limitations was all held to be unconscionable in Brown. Brown, 949 So.2d at 738-41 (¶¶ 16-21). Moreover, the last line of the arbitration clause itself contains language identical to language the supreme court struck from the arbitration clause that was at issue in Brovm. Id. at 741(¶ 23).

¶25. Seeing no reason to depart from the supreme court’s findings in Brovm, we agree with Braddock’s assertion that these clauses in his mother’s admissions agreement contain unconscionable language as well. We therefore strike the offending language of clauses C5, C8, E5, E6, E7, E8, E12, and E16, as well as the last line of the arbitration clause from the admissions agreement.

¶26. We cannot, however, agree with the remainder of Braddock’s argument that because of these unconscionable provisions, we must void the entire contract, or that the arbitration clause as a whole should be voided. In Brotvn, when faced with exactly the same unconscionable language, the supreme court chose to merely sever the unconscionable portions of the admissions agreement and the. offending portion of the arbitration clause and enforce the remaining sections, including compelling the parties to arbitrate. Given the striking similarity of these two cases, including the fact that they involve substantially identical admissions agreements, we are compelled to do the same here as the supreme court did in Brotvn. Accordingly, we find that the admissions agreement, absent the offending language, is substantively conscionable, and the parties are bound by it, including its arbitration clause.

5. The arbitration clause is not void for lack of an arbitral forum.

¶ 27. Finally, Braddock asserts that arbitration cannot be compelled, as no suitable arbitral forum now exists. In support of this argument, Braddock points to a policy statement by the American Arbitration Association (AAA) made in June 2002. That statement indicates that the AAA no longer administers health-care arbitrations in cases where the parties have not executed a post-dispute agreement to arbitrate. In other words, the AAA will now only arbitrate health-care disputes where the parties are not contesting arbitration.

¶ 28. Covenant Health points to the fact that a related professional organization, the American Health Lawyers Association, made a similar policy statement, which they later amended by saying that they would agree to participate in arbitrations where no post-dispute agreement had been made so long as a court of competent jurisdiction had ordered the parties to arbitrate. The AAA has apparently not made a similar statement.

¶ 29. This Court does not need to speculate, however, on whether or not the AAA might agree to arbitrate this case even though no post-dispute agreement has been executed. The arbitration clause included in the admissions agreement provides for just the sort of eventuality the parties now face. The arbitration clause states that “[i]f the agreed method of selecting an Arbitrator(s) fails for any reason ... the appropriate circuit court, on application of a party, shall appoint one Arbitrator to arbitrate the issue. An arbitrator so appointed shall have all the powers of the one named in this agreement.” Therefore, even if the AAA refuses to arbitrate this dispute, the agreement between the parties contains an alternative method for selecting an arbitrator and administering the arbitration. Accordingly, we find that the arbitration clause does not fail for lack of an appropriate arbitral forum, and Braddock’s argument on this issue is without merit.

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

IRVING, J.,

Dissenting.

¶ 31. In this case, the majority relies upon Covenant Health Rehabilitation of Picayune, L.P. v. Brown, 949 So.2d 732 (Miss.2007) to find that James Braddock’s execution of the admission agreement, in his capacity as the health-care surrogate for his mother, legally bound her to an arbitration provision contained in the agreement. In Trinity Mission of Clinton, LLC d/b/a Clinton Health & Rehabilitation Center v. Barber, 988 So.2d 910 (¶ 52) (Ct.App.2007) (Irving J., concurring in part dissenting in part) (cert. granted, 977 So.2d 1144 (Miss.2008); appeal dismissed, 2008 Miss. LEXIS 185, at *1 (Miss. April 17, 2008)), I agreed with the majority that Brown indeed states that a health-care surrogate has the authority to bind a patient to an arbitration provision contained in an admission agreement. However, I also explained that no such authority is granted to a surrogate under Mississippi’s Uniform Health-Care Decisions Act. Id. at (¶¶ 53-54). I further explained that the Brown court did not address the statutory definition of a surrogate and that because of that omission, I did not believe the Brown decision should be given the precedential value that otherwise would be due. Id. at (¶ 55). Finally, I stated my belief that “had our supreme court considered the statutory meaning of a health care decision, along with the concomitant power of a surrogate in light of that meaning, its decision in [Brown ] may very well have been different.” Id,.

¶ 32. Therefore, for the reasons expressed in my dissent in Trinity Mission, I respectfully dissent, as the facts here are identical to the facts in Trinity Mission, with only the names of the surrogate and the patient being different.

      . See Brown, 949 So.2d at 737-41 (¶¶ 14-25) for an exhaustive discussion of why these particular aspects of the admissions agreement are unconscionable, including the language of the offending clauses. See also Vicksburg Partners, 911 So.2d at 525(¶ 48) and Pitts v. Watkins, 905 So.2d 553, 555-58 (¶¶ 9-20) (Miss.2005) for discussions of the unconscionability of similar terms found in other admissions agreements.

      . The general docket indicates that the appeal was dismissed pursuant to a motion to dismiss that was filed by the Appellees and joined by the Appellants.

      . At one point in my dissent in Barber, I mistakenly referred to the Uniform HealthCare Decisions Act as the Health Care Surrogate Act. Barber, 2005-CA-02199-COA at (¶ 52). The Act is codified as Mississippi Code Annotated sections 41-41-201 through 41-41-229 (Rev.2005).


author: CHANDLER, J.,

text:
    Herman PRATHER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-CP-01452-COA.
    Court of Appeals of Mississippi.
    Oct. 14, 2008.
    Rehearing Denied July 21, 2009.

      Herman Prather, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, C.J., IRVING and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Herman Prather pleaded guilty to sexual battery on December 1, 2005. Thereafter, Prather filed a motion entitled “petition for post-conviction collateral relief act [sic]” with the Circuit Court of Tippah County, which was denied on January 19, 2007. Prather then filed his notice of appeal on August 14, 2007, with the circuit court. Prather argues that the trial court erred by denying his petition and asserts multiple assignments of error. We find that Prather’s notice of appeal was not timely filed and dismiss his appeal for lack of jurisdiction.

FACTS

¶ 2. After Prather pleaded guilty in December 2005, he was sentenced to serve thirty years, with fifteen years suspended, in the custody of the Mississippi Department of Corrections. Prather filed a motion for post-conviction relief (PCR) in the trial court in November 2006 and such petition was denied by that court on January 19, 2007. Prather then filed his notice of appeal with the trial court on August 14, 2007.

ANALYSIS

¶ 3. Mississippi law requires that a “notice of appeal ... shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment.” M.R.A.P. 4(a). Any appeal which violates the thirty-day requirement of Mississippi Rule of Appellate Procedure 4 “shall be dismissed.” M.R.A.P. 2(a)(1). A pro se prisoner’s PCR motion is considered filed on the date that he delivers the papers to the prison authorities for mailing. Sykes v. State, 757 So.2d 997, 1000-01(¶14) (Miss.2000). This is known as the prison mailbox rule. Id.

¶ 4. The trial court issued its order denying Prather’s PCR motion on January 19, 2007. The thirty-day period for filing an appeal would have ended on Sunday, February 18, 2007. The following Monday, February 19, 2007, was George Washington’s birthday, a state holiday for which the clerk’s office was closed. Consequently, Prather had until Tuesday, February 20, 2007, to timely file his appeal. See M.R.A.P. 26(a). Prather’s notice of appeal was received and filed by the trial court on August 14, 2007. It was forwarded to the supreme court and filed by the supreme court on August 23, 2007. Further, the accompanying “affidavit of poverty” was not signed by the notary until August 9, 2007. This was considerably outside Prather’s thirty-day deadline to file an appeal. Thus, Prather’s appeal was not timely filed under the prison mailbox rule because he failed to deliver the notice of appeal for mailing on or before February 20, 2007.

¶ 5. While it is true that “this Court may suspend Rule 4, for good cause shown, and allow out-of-time appeals in criminal cases ... [t]he party seeking an out[-]of[-]time appeal carries the burden of persuasion regarding the lack of a timely notice.” Andrews v. State, 932 So.2d 61, 62(¶ 5) (Miss.Ct.App.2006) (citing M.R.A.P.4). Prather has shown no good reason as to why his notice of appeal was not filed until August 2007. This was more than six months after the trial court had denied his PCR motion and over five months after his thirty-day deadline for filing a notice of appeal had expired. Prather claimed in his “notice to show cause” that he is unable to read or write and relies on other inmates to help because the law library does not provide any form of assistance. He has been able to file every other document in a timely fashion such as his response to show-cause notice. It was filed with the court only eight days after the show-cause notice was sent to Prather by the supreme court clerk. He also claims that he timely delivered his notice of appeal for mailing to the Marshall County Correctional Facility’s legal assistance clerk and so his appeal should be considered timely filed under the mailbox rule. However, he does not provide any dates as to when he “timely filed” his papers. The signature of the notary proves that the notice of appeal was not signed until months after the thirty days to file the notice of appeal had expired.

¶ 6. It is evident that Prather’s notice of appeal was untimely filed. Thus, this Coui't has no jurisdiction to consider the appeal.

CONCLUSION

¶ 7. We find that Prather’s notice of appeal was untimely filed. Therefore, we dismiss Prather’s appeal for lack of jurisdiction.

¶ 8. THIS APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TIPPAH COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


author: CARLTON, J.,

text:
    Jonathan McGRIGGS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CP-00370-COA.
    Court of Appeals of Mississippi.
    Jan. 27, 2009.
    Rehearing Denied May 26, 2009.
    Certiorari Denied Aug. 6, 2009.

      Jonathan McGriggs, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, C.J., GRIFFIS and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. This case is before the Court on appeal from the Copiah County Circuit Court’s dismissal of Jonathan McGriggs’s third motion for post-conviction relief. McGriggs raises the following four errors in his appeal: (1) his guilty plea was not voluntary; (2) he received ineffective assistance of counsel; (3) the trial court exceeded its authority in sentencing him to life in prison; and (4) his motion for post-conviction relief is not procedurally barred. However, we need not reach McGriggs’s issues on the merits, because we find McGriggs’s third motion to be time-barred and procedurally barred as a successive writ. As a result, we affirm the trial court’s dismissal of McGriggs’s third motion for post-conviction relief.

FACTS

¶2. McGriggs was indicted for capital murder pursuant to Mississippi Code section 97-3-19(2) (Rev.2006) in Copiah County on June 6, 2000. On March 5, 2001, McGriggs pled guilty to a reduced charge of murder and was sentenced pursuant to Mississippi Code Annotated section 97-3-21 (Rev.2006). McGriggs stated in his guilty plea petition that he expected to receive life with parole for his guilty plea to murder.

¶ 3. However, the trial judge informed McGriggs that parole was not guaranteed and that he would receive a life sentence. The trial judge told McGriggs, “[N]o one can assure you early release, parole, good time or anything else.... You may be required to stay in jail the rest of your life. Do you understand?” McGriggs v. State, 877 So.2d 447, 450(8) (Miss.Ct.App.2003). McGriggs said he understood and accepted the reduced plea to murder. Id.

¶4. On November 21, 2002, McGriggs filed a pro se motion for post-conviction relief which was denied and never appealed. Id. at 449(6). Copies of McGriggs’s November 21, 2002, motion could not be found. Id. McGriggs filed a second successive post-conviction relief motion on December 3, 2002, which was dismissed by the trial court on December 23, 2002. Id.

¶ 5. In the trial court’s dismissal of McGriggs’s second post-conviction relief motion on December 23, 2002, the trial court referenced its prior denial of McGriggs’s November 21, 2002, motion for post-conviction relief. Id. This Court found that although there was no record to support or deny the existence of McGriggs’s November 21, 2002, motion for post-conviction relief, that the trial court’s reference in its December 23, 2002, dismissal of MeGriggs’s November 21, 2002, motion was “sufficient to take judicial notice of its existence and to rule that the successive motion was improper.” Id. The Court affirmed the trial court’s dismissal of McGriggs’s second motion because it was successive and lacked merit. Id. at 450(9).

¶ 6. On February 12, 2008, McGriggs filed his third post-conviction relief motion. The trial court dismissed McGriggs’s motion on February 20, 2008, on the basis that McGriggs was proeedurally barred from making successive writs. On May 12, 2008, McGriggs appealed.

DISCUSSION

¶ 7. A trial court’s dismissal of a motion for post-conviction relief will not be disturbed unless the trial court’s factual findings were clearly erroneous. Williams v. State, 872 So.2d 711, 712(¶2) (Miss.Ct.App.2004). Questions of law, however, are reviewed de novo. Robinson v. State, 904 So.2d 203, 204(¶ 3) (Miss.Ct.App.2005).

¶ 8. In the case of a guilty plea, a motion for post-conviction relief must be filed within three years after entry of the judgment of conviction. Miss. Code Ann. § 99-39-5(2) (Rev.2007). If a petitioner files subsequent motions after expiration of the statute of limitations, they will not be proeedurally barred under the statute if he can show: (1) there has been an intervening decision of the United States Supreme Court or of the Mississippi Supreme Court that would have adversely affected the outcome of his conviction or sentence; (2) there now exists new evidence that was not discoverable at the time of trial; (3) his sentence has expired; or (4) his probation or parole has been unlawfully revoked. Id.

¶ 9. For example, in Sykes v. State, 919 So.2d 1064, 1066 (¶¶6-8) (Miss.Ct.App.2005), Sykes’s second post-conviction relief motion was proeedurally barred because Sykes raised the same issues in his second post-conviction relief motion as he had raised in his first post-conviction relief motion. Thus, Sykes’s second post-conviction relief motion was proeedurally barred as a successive writ and res judicata. Id. at (8). Additionally, Sykes’s second motion was time-barred because it was filed more than ten years after his guilty plea was entered. Id. at (¶ 11).

¶ 10. In contrast, in Stevenson v. State, 674 So.2d 501, 505 (Miss.1996) the Court found Stevenson’s third motion for post-conviction relief was not proeedurally barred because the sentence of life without parole for murder, which was imposed when the governing statute did not permit such a sentence, was an unenforceable sentence and, thus, plain error capable of being addressed.

¶ 11. Similar to the situation in Sykes, McGriggs’s third motion is proeedurally barred as a successive writ and it raises essentially the same issues McGriggs addressed in his second motion for post-conviction relief. See Sykes, 919 So.2d at 1066 (¶¶ 6-8); see also Miss.Code Ann. § 99-39-27(9) (Rev.2007) (stating that the dismissal or denial of successive attempts to obtain post-conviction relief “is a final judgment and shall be a bar to second or successive application under this [statute]” provided the successive writ does fall under any of the listed exceptions provided under the statute). Also, as in Sykes, McGriggs’s third motion is time-barred because it was filed approximately seven years after McGriggs’s guilty plea was entered. See id. at (11).

¶ 12. Moreover, unlike in Stevenson, where the petitioner raised a fundamental, constitutional issue that was determined to be plain error, McGriggs’s motion raises no such issues. See Stevenson, 674 So.2d at 505. Therefore, because McGriggs’s third post-conviction relief motion does not fall under any of the listed exceptions under sections 99-39-5(2) or 99-39-27(9) and is time-barred and procedurally barred as a successive writ, we affirm the trial court’s dismissal of McGriggs’s third motion for post-conviction relief.

¶ 13. THE JUDGMENT OF THE CO-PIAH COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ, CONCUR.

      . McGriggs's three post-conviction relief motions were filed on the following dates: (1) November 21, 2002; (2) December 3, 2002; and (3) February 12, 2008.