author: KITCHENS, Justice, COLEMAN, Justice,

text:
    Frank Sanders TIPTON v. STATE of Mississippi.
    No. 2013-CA-00415-SCT.
    Supreme Court of Mississippi.
    Oct. 30, 2014.
    Coleman, J., filed dissenting opinion in which Randolph, P.J., and Lamar and Pierce, JJ., joined.
    See also 41 So.3d 679.
    Thomas M. Fortner, Jackson, Ross Parker Simons, attorneys for appellant.
    Office of the Attorney General by Malis-sa Winfield, John R. Henry, Jr., attorney for appellee.
   KITCHENS, Justice,

for the Court:

¶ 1. The motion for rehearing is granted. The original opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. Frank Tipton was wrongfully convicted of extortion and was sentenced to one year in prison and two years of house arrest in Mississippi’s Intensive Supervision Program (ISP). After his conviction and sentence were vacated by this Court, Tipton brought this civil action seeking compensation for the 300 days he served in prison and the two years he served under house arrest in the ISP. The State has agreed that Tipton is entitled to compensation for the 300 days spent in prison, but argues that the time he spent in the ISP is not compensable. We find that an inmate who serves time under house arrest in the ISP and later is determined to have been wrongfully convicted is entitled to compensation for that time under our wrongful conviction compensation statutes.

FACTS AND PROCEDURAL HISTORY

¶ 3. Frank Tipton was convicted of extortion under Mississippi Code Section 97-11-33. Tipton’s circuit court sentencing order required him to spend one year in a Mississippi Department of Corrections (MDOC) prison facility and two years in the ISP house arrest program. The remainder of his sentence was suspended followed by two years of post-release supervision. Due to his trusty status, Tipton was released from the prison facility with sixty days deducted from his original sentence.

¶ 4. Following the ISP guidelines for house arrest, Tipton was required to establish a residence approved by his correctional officer, pay monthly fees, submit to inspection of his residence, and submit to testing for drugs and alcohol at the field officer’s discretion. See Miss.Code Ann. § 47-5-1013 (Rev. 2011). While under house arrest, Tipton was confined to his home unless attending work, school, community service, or given explicit permission by his correctional field officer. See Miss.Code Ann. § 47-5-1013(d) (Rev. 2011). Had Tipton failed to complete the ISP house arrest program to the satisfaction of his field officer, he would have been returned to an MDOC prison facility. See Miss.Code Ann. § 47-5-1003 (Rev. 2011).

¶ 5. While serving his sentence, Tipton appealed his conviction. This Court reversed and vacated Tipton’s conviction, holding that he was not guilty of the crime for which he had been convicted. Tipton v. State, 41 So.3d 679, 682-83 (¶ 14) (Miss.2010). Tipton filed a civil complaint for compensation under Mississippi Code Section 11-44-3 for his time served in the MDOC prison facility and under house arrest in the ISP. The State made an offer of judgment in the amount of $41,666 for the time Tipton had served in the MDOC prison facility, which he rejected. Tipton argued that he was entitled to $141,666, which included $100,000 for the time he had served in the ISP. After hearing motions for summary judgment from both parties, the trial court rejected Tipton’s compensation claim for his time served under house arrest in the ISP and granted the State’s motion for summary judgment, which Tipton appeals.

ANALYSIS

¶6. The decision of a circuit court to grant or deny a summary judgment is reviewed, de novo. Poppenheimer v. Estate of Coyle, 98 So.3d 1059,1062 (¶7) (Miss.2012) (citing Whitaker v. Limeco Corp., 32 So.3d 429, 433-34 (¶10) (Miss.2010)). Statutory interpretation is a question of law subject to de novo review. Arceo v. Tolliver, 19 So.3d 67, 70 (¶ 9) (Miss.2009). The State argues that Tipton should be compensated for the 300 days that he served in the prison facility operated by the MDOC, and that his confinement under house arrest in the ISP should not be compensable. Tipton contends that he should be compensated for his full sentence, which included the 300 days spent in a MDOC prison facility, and in addition, the two years that he spent under house arrest in the ISP.

¶ 7. We must determine whether a person wrongfully confined under house arrest in the ISP is “imprisoned” such that he or she may be compensated under Mississippi’s wrongful conviction compensation statutes. This is a question of law. This Court does not engage in statutory interpretation if a statute is plain and unambiguous. Miss. Methodist Hosp. & Rehab. Ctr., Inc. v. Mississippi Div. of Medicaid, 21 So.3d 600, 607 (¶ 18) (Miss.2009); (citing In re Guardianship of Duckett, 991 So.2d 1165, 1181 (Miss.2008)). However, statutory interpretation is appropriate if a statute is ambiguous or is silent on a specific issue. Methodist Hosp., 21 So.3d at 607 (¶ 18). The ultimate goal of the Court is to determine legislative intent. Id. (citing Allred v. Yarborough, 843 So.2d 727, 729 (Miss.2003)). This Court consistently has held that if a statute is ambiguous, the Court must “carefully review statutory language and apply its most reasonable interpretation and meaning to the facts of a particular case.” Caldwell v. N. Miss. Med. Ctr., 956 So.2d 888, 891 (¶ 10) (Miss.2007) (quoting Pope v. Brock, 912 So.2d 935, 937 (Miss. 2005)). In establishing the meaning of an ambiguous statute, this Court also may look to the historical background, its subject matter, and the purposes and objects to be accomplished. In re Guardianship of Duckett, 991 So.2d at 1182 (¶ 37).

¶ 8. The question of whether a wrongfully convicted inmate who served time in the ISP is entitled to compensation is an issue of first impression for this Court. To be eligible for compensation, a claimant must have (1) been charged with a felony; (2) been sentenced; (3) served either the full or a partial amount of that sentence; (4) and been released on grounds not inconsistent with innocence. Miss. Code Ann. § 11-44-3 (Rev. 2012). To be awarded compensation, Tipton must prove, by a preponderance of the evidence: (1) that he was convicted of one or more felonies and sentenced to a period of imprisonment which he has served in full or in part; (2) and that his judgment of conviction was reversed or vacated. Miss.Code Ann. § 11-44-7 (Rev. 2012). Tipton clearly has satisfied all of the requirements of compensation with one possible exception: whether he was sentenced “to a period of imprisonment” while under house arrest. Accordingly, the success of his claim turns on the interpretation of what it means to be subjected to a period of imprisonment, and whether someone under house arrest can be said to have been imprisoned during that period.

¶ 9. The purpose of the compensation statutes is to compensate innocent persons who have been uniquely victimized because they were wrongly convicted of felonies and subsequently imprisoned. Miss.Code Ann. § 11^14-1 (Rev. 2012). The definition of “imprisonment” is not limited to addressing only imprisonment in “brick and mortar” prisons. Webster’s Dictionary defines “imprison” as “to confine in or as if in 'prison.” Webster Random House Dictionary 963 (2001) (emphasis added). Black’s Law Dictionary defines “imprisonment” as “[t]he act of confining a person, esp. in a prison,” or “[t]he state of being confined; a period of confinement.” Black’s Law Dictionary 825 (9th ed. 2009). Accordingly, imprisonment may occur in an actual prison, but it also can include a state of confinement, which can occur anywhere and vary widely in degree. Indeed, this Court has long recognized that false imprisonment, compensable in tort, can occur in places as innocuous as a secondhand store, a casino, or even a field. So long as a person is confined “within boundaries fixed by the defendant,” that person is subject to imprisonment for the purposes of a false imprisonment claim. State for Use of Powell v. Moore, 252 Miss. 471, 478, 174 So.2d 352, 355 (1965) (quoting Prosser, The Law of Torts § 12 (3d ed. 1964)). The Legislature has recognized that false imprisonment can occur in settings outside of a prison, as it has specifically provided immunity from such a claim to store owners who detain customers whom they suspect of shoplifting. See Miss.Code Ann. § 97-23-95 (Rev. 2014). There was never a requirement in any of these civil cases that the imprisonment occur in an actual prison. Throughout our State’s history, if a person was confined within boundaries fixed by another party, that person has been considered to have been imprisoned.

¶ 10. To receive compensation, Tipton was required to show that he was “sentenced to a term of imprisonment.” Since “imprisonment” can mean confinement, and is not specific to being placed in an actual prison, we must look beyond the plain language of the statute to determine whether house arrest should be deemed “imprisonment” for the purposes of compensation. While this is an issue of first impression, there is Mississippi case law interpreting the status of inmates in the ISP as it relates to the MDOC’s classification of those inmates.

¶ 11. Although the ISP is called an “alternative to incarceration,” inmates in that program are under the complete jurisdiction of the MDOC. Miss.Code Ann. § 47-5-1003(3) (Rev. 2011). The Mississippi Court of Appeals has found that an inmate “participating in the house arrest program or serving time as an inmate in the general prison population was confined as a prisoner under the jurisdiction of the Mississippi Department of Corrections in the normally understood sense of that term.” Lewis v. State, 761 So.2d 922, 923 (¶ 5) (Miss.Ct.App.2000) (emphasis added). The Court of Appeals consistently has sided with the State’s argument that the removal of an inmate from the ISP to a prison facility involves no liberty interest, and instead is merely a “change in ... housing assignment and classification, which does not require a hearing since it does not involve a liberty interest.” Brown v. Miss. Dep’t of Corr., 906 So.2d 833, 835 (¶ 6) (Miss.Ct.App.2004), overruled on other grounds by Johnson v. State, 77 So.3d 1152, 1155 (¶ 10) (Miss.Ct. App.2012). Furthermore, the Court of Appeals defines house arrest as “an alternative form of confinement.” Ivory v. State, 999 So.2d at 420, 425 (¶ 11) (Miss.Ct.App. 2008) (citing Lewis, 761 So.2d at 923 (¶ 4)) (emphasis added). The statute establishing the ISP defines “house arrest” as “the confinement of a person convicted or charged with a crime to his place of residence under the terms and conditions established by the department or court.” Miss.Code Ann. § 47-5-1001 (Rev. 2011) (emphasis added). Imprisonment can mean confinement. The trial judge in Ivory best characterized the ISP by instructing the defendant to think of the ISP as “being in the penitentiary except sleeping at home.” Ivory, 999 So.2d at 423 (¶3).

¶ 12. There is some precedent to the opposite effect, however. Ironically, it-comes from this Court’s decision in Tip-ton’s criminal appeal. There, this Court stated that the ISP is an alternative to incarceration, and therefore it is not incarceration. Tipton, 41 So.3d at 680 (¶ 1). The State argues that, if house arrest under the ISP is not incarceration, time in the ISP should not be compensable. However, Tipton’s criminal appeal confronted an entirely different issue than the civil suit now before us. That case involved whether Tipton technically was guilty of the crime of extortion, whereas here we are determining whether the State is civilly liable for the time Tipton spent as an inmate in the ISP. In Tipton’s extortion case, the statute under which he was wrongfully convicted and sentenced was reviewed under the “bedrock law in Mississippi that criminal statutes are to be strictly construed against the State and liberally in favor of the accused.” Id. at 682 (¶ 11) (quoting Coleman v. State, 947 So.2d 878, 881 (Miss.2006)). The Tipton criminal appeal does not control this case because it did not analyze the status of a person enrolled in a house arrest program, nor did it determine whether that status was equivalent to “imprisonment” to make such a person eligible for compensation if wrongfully convicted.

¶ 13. The several Court of Appeals cases analyzing ISP inmates’ status relative to the MDOC more aptly conform to the case before us. The statutory scheme of the ISP as well as several Court of Appeals decisions indicate that the purpose of the ISP is to confine inmates who are under the complete jurisdiction of the ISP. The State consistently ’ has argued that prisoners in the ISP are, for all intents and purposes, prisoners with the same liberty interests as those in actual prisons. House arrest required Tipton to submit completely to the MDOC, giving the State access to his home and his body; and he- was required to forego several significant constitutional rights enjoyed by free Americans. Further, our judicial history regarding the treatment of false imprisonment claims makes it abundantly clear that an imprisonment may occur outside of the walls of a prison. We find that the confinement that inmates experience in the ISP constitutes “imprisonment” under Mississippi’s wrongful conviction compensation statutes. Inmates who have served time in the ISP are entitled to compensation for that time if they were wrongfully convicted.

CONCLUSION

¶ 14. We find that a person who serves time in Mississippi’s Intensive Supervision Program (ISP) is entitled to compensation if wrongfully convicted. Tipton was wrongfully convicted, and he was sentenced to serve time in the Mississippi Department of Corrections and ISP. Mississippi Code Section 11-44-3 permits compensation for wrongful conviction and imprisonment. Until now, the MDOC and the State of Mississippi saw no difference between serving time under house arrest and serving time in prison. Tipton’s liberties were severely restricted while he was in the ISP, and his status as a prisoner in the MDOC did not change while under house arrest. We find that he is entitled to compensation under Mississippi Code Section 11-44-3 for his time served in the ISP. Accordingly, we reverse the trial court’s grant of summary judgment in favor of the State and render judgment in favor of Tipton.

¶ 15. REVERSED AND RENDERED.

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

COLEMAN, Justice,

dissenting:

¶ 16. I would hold that Mississippi Code Sections 11-44-1 to -7 do not entitle Tipton to compensation for being placed in the Intensive Supervision Program, commonly known as house arrest. I am of the opinion that, as a matter of law, house arrest does not equate to incarceration, and incarceration is one necessary requirement for receiving compensation. Therefore, with respect, I dissent.

¶ 17. “It is not the function of the court to determine and announce what, in its judgment, [a] statute should provide, but to ascertain, if there be ambiguity in its terms, what it does provide.” Russell v. State, 231 Miss. 176, 94 So.2d 916, 921 (1957). “Whether the statute is ambiguous, or not, the ultimate goal of this Court in interpreting a statute is to discern and give effect to the legislative intent” City of Natchez, Miss. v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992) (citing Anderson v. Lambert, 494 So.2d 370, 372 (Miss.1986)) (emphasis added). The majority states that the purpose of compensation statutes is to compensate innocent persons who have been uniquely victimized. The majority’s statement stops short. The purpose of the compensation statute is to compensate those who “have been uniquely victimized, [who] have distinct problems reentering society.” Miss.Code Ann. § 11-44-1 (Rev. 2012) (emphasis added). Mississippi Code Sections 11^14-1 to -7 create a statutory scheme designed to compensate “innocent persons who have been wrongly convicted of felony crimes and subsequently imprisoned.” Miss. Code Ann. § 11-44-1 (Rev. 2012) (emphasis added). According to Section 11^14-1, compensation addresses “the substantial horror of being imprisoned for a crime one did not commit.” Id. (emphasis added). In my opinion, the clear intent is to compensate those who have been victimized by being unable to have regular contact with the free world by being imprisoned.

¶ 18. “If the words of a statute are clear and unambiguous, the Court applies the plain meaning of the statute and refrains from using principles of statutory construction.” Lawson v. Honeywell Int’l, Inc., 75 So.3d 1024, 1027 (¶ 7) (Miss.2011). In order to be eligible for compensation, the Legislature states that the claimant must be “sentenced to a term of imprisonment,” and the claimant must be “wrongfully convicted and incarcerated.” Miss. Code Ann. § 11 — 44-7 (Rev. 2012) (emphasis added). Although I am in agreement with the majority that house arrest is a form of confinement, Mississippi legislation and case law have made it clear that there are different levels of confinement, and compensation was meant for offenders, as the plain language of the statute states, who were incarcerated or, alternatively, imprisoned. With respect to the majority, I cannot read the statute to provide compensation for any lesser form of confinement.

¶ 19. Mississippi Code Section 47-5-1003 defines the “intensive supervision program” as “an alternative to incarceration.” Miss.Code Ann. § 47-5-1003 (Supp.2014) (emphasis added). The Mississippi Legislature defined house arrest as “confinement of a person ... to his place of residence....” Miss.Code Ann. § 47-5-1001 (Supp.2014). Under house arrest, the Legislature has allowed for “approved absences from the home” which include but are not limited to absence for employment, seeking employment, medical treatment, schooling, community service related work, and for other compelling reasons. Miss. Code Ann. § 47-5-1005 (Supp.2014).

¶ 20. The majority relies on Lewis v. State, 761 So.2d 922 (Miss.Ct.App.2000), a Court of Appeals case that held that house arrest-is a form of confinement; therefore, moving an offender from house arrest to the “general prison population” is a “reclassification” that does not require a hearing. Id. at 923; see also Johnson v. State, 77 So.3d 1152, 1154 (Miss.Ct.App.2012); Brown v. Miss. Dep’t of Corr., 906 So.2d 833, 835 (Miss.Ct.App.2004), overruled on other grounds by Johnson, 77 So.3d at 1154. The majority is correct. House arrest is one form of confinement, but it is not the only form, the most severe form, or the form that the Legislature seeks to address with the compensation statutes.

¶ 21. We are not bound by decisions of the Court of Appeals, Stewart v. Stewart, 864 So.2d 934, 937 (Miss.2003), but I nevertheless address Lewis because I perceive flaws in the majority’s application of it to the case before us today. The Lewis Court considered the issue of whether an offender moved from house arrest to the general prison population should enjoy the due process rights afforded when one’s “probation, parole or conditional release has been unlawfully revoked.” Lewis, 761 So.2d at 923 (citing Miss.Code Ann. § 99-39-5(l)(g) (Supp.1999)). The court determined that, since the offender “would remain under a form of confinement” under the jurisdiction of the Mississippi Department of Corrections, the post-conviction relief provisions of Section 99-39-5(l)(g) were not available to the claimant. Lewis, 761 So.2d at 923. The Lewis Court based its holding on the Legislature’s wording in Section 47-5-1003, where the statute states:

(3) To protect and to ensure the safety of the state’s citizens, any offender who violates an order or condition of the intensive supervision program may be arrested by the correctional field officer and placed in the actual custody of the Department of Corrections. Such offender is under the full and complete jurisdiction of the department and subject to removal from the program by the classification hearing officer.

Miss.Code Ann. § 47-5-1003 (emphasis added); see Lewis, 761 So.2d at 923. Lewis cites the above quoted statute for the point that the offender remains under Department of Corrections jurisdiction; therefore, the offender is still confined and not released or able to claim post conviction relief. In other words, the court determined that “reclassification” of an offender within the jurisdiction of the Department to a different form of confinement did not constitute probation, parole, or conditional release.

¶ 22. Even were we bound to follow it, the Lewis Court’s holding makes it clear that there are different “classes” of confinement. The court tells us Lewis was reclassified; in order to reclassify an offender, there must be different classes of confinement. Moreover, the court stated multiple times house arrest is a “form of confinement.” Thus, there are different forms, or in the alternative, different classes of confinement. It follows that house arrest is one form of confinement and incarceration is another form of confinement. Because the compensation statute by its terms applies only to the most restrictive of the forms of confinement, imprisonment, the Lewis Court’s exploration of the meaning of confinement for reclassification purposes, even if it were binding precedent, has no application to the case sub judice.

¶ 23. The Legislature states that removal from house arrest requires the offender to be “arrested by the correctional field officer and placed in the actual custody of the Department of Corrections.” Miss.Code Ann. § 47-5-1003 (Rev. 2011). Therefore, under the plain meaning of the statute, the offender becomes more confined when moved to prison, so much so, that the offender must be “arrested” and “placed in the actual custody” of the Department. In other words, the offender is “reclassified” to a more intensive “form of confinement” or a higher level of confinement. See Lewis, 761 So.2d at 923. Therefore, following the reasoning of Lewis, Lewis was never released and was never able to claim relief under post conviction relief. He remained confined, but undeniably, Lewis became more confined, or in other words, incarcerated when moved from house arrest to prison.

¶ 24. Comparing the instant case to Lewis further highlights the distinguishing factors between the cases. Tipton compares house arrest with incarceration, arguing that house arrest is an alternative form of incarceration; essentially, he argues they are basically one and the same. Lewis provides little, if any, support for Tipton’s argument. Lewis stops short of defining house arrest as incarceration. Outside of echoing the Legislature that house arrest is a form of confinement, Lewis simply does not compare house arrest to incarceration, nor use the term incarceration to define house arrest, as doing so would be outside the issues presented. The court was asked to compare house arrest with parole, probation, or conditional release for purposes of Department of Corrections classifications, and the court concluded that house arrest was not parole, probation, or conditional release because Lewis was under Department jurisdiction.

¶ 25. Ironically, in his criminal appeal, Tipton — with success — utilized the above-described reasoning regarding the meaning of incarceration. Tipton v. State, 41 So.3d 679, 680 (Miss.2010). The majority distinguishes Tipton’s criminal appeal by stating “Tipton’s criminal appeal confronted an entirely different issue than the civil suit now before us.” (Maj.Op.A 12) In Tip-ton’s criminal appeal, the Court agreed with Tipton that “house arrest and incarceration services cannot be synonymous because Mississippi Code Section 47-5-1003(1) defines intensive supervision, commonly known as house arrest, as a program that may be used as an alternative to incarceration.” Tipton, 41 So.3d at 682. In other words, the intensive supervision program or house arrest, although a form of confinement, is not similar enough to incarceration in prison for the program to qualify as an “incarceration service.” Without question, Tipton takes a position directly opposing the position he successfully advanced in his criminal appeal. I find it disturbing, to put it mildly, that the Court allows him to succeed.

¶ 26. The Court has defined the doctrine of judicial estoppel, stating that it “precludes a party from asserting a position, benefitting from that position, and then, when it becomes more convenient or profitable, retreating from that position later in the litigation.” Clark v. Neese, 131 So.3d 556, 560 (Miss.2013), reh’g denied (Feb. 20, 2014) (internal citations omitted). The goal of the doctrine is “to protect the judicial system and applies where intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.” Id. The three-part test for judicial estoppel states that it applies if: “(1) the position is inconsistent with one previously taken during litigation, (2) a court accepted the previous position, and (3) the party did not inadvertently take the inconsistent positions.” Id. (citing Kirk v. Pope, 973 So.2d 981, 991 (Miss.2007)).

¶ 27. Given that the Court has stated judicial estoppel applies generally to a suit and given that the goal of judicial estoppel is “to protect .the judicial system and applies where intentional self-contradiction is being used as a means of obtaining unfair advantage,” I would hold that in the instant case, judicial estoppel applies. Clark, 131 So.3d at 560. Tipton should be barred from making a self-contradicting argument where, in his criminal appeal, the argument reversed his conviction, and here, under the majority’s reasoning, the contradicting argument would give him compensation for the time he spent under house arrest while he was appealing the very same criminal conviction.

¶ 28. Under close review of Lewis, the statutes at issue, and the doctrine of judicial estoppel, I would hold that Tipton is not entitled to relief under Sections 11-44-1 to -7, or alternatively, that Tipton is barred by judicial estoppel from making a self-contradicting argument that the Court accepted once to his great benefit.

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

      . Tipton v. State, 41 So.3d 679, 680 (Miss. 2010).

      . "If any .... employee of any contractor providing incarceration services or any other officer, shall knowingly demand, take or collect, under color of his office, any money fee or reward whatever, not authorized by law, ... such officer, so offending, shall be guilty of extortion, and ... punished by fine not exceeding Five Thousand Dollars ($5,000.00), or imprisonment for not more than five (5) years, or both, and shall be removed from office.” Miss.Code Ann. § 97-11-33 (Rev. 2014).

      . In fact, the MDOC had the authority to remove Tipton from house arrest and place him back into a prison facility without holding any type of hearing whatsoever. See Brown v. Miss. Dep’t of Con., 906 So.2d 833, 835 (¶ 6) (Miss.Ct.App.2004), overruled on other grounds by Johnson v. State, 77 So.3d 1152, 1155 (¶ 10) (Miss.Ct.App.2012).

      . Mississippi Code Sections 11-44-1 to 11-44-7 work together to create a compensation scheme for claimants who have been wrongfully imprisoned.

      . Turner v. Hudson Salvage, Inc., 709 So.2d 425, 429 (¶ 20) (Miss.1998) (holding that a second-hand store was not immune from a suit for false detention when it held a customer in the manager’s office for questioning after a security guard already had determined that the customer did not shoplift).

      . Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d 709, 720 (¶¶ 28-31) (Miss.2001) (holding that a plaintiff could be falsely imprisoned when he was "detained by the casino employees," handcuffed, and held in a security office).

        .Whitten v. Cox, 799 So.2d 1, 9 (¶ 12) (Miss. 2000) (holding that evidence was sufficient to support a false imprisonment claim where the defendant held the plaintiffs at gunpoint and placed them under citizen's arrest).

      . Because the question before us centers squarely on statutory law, I respectfully disagree that the common-law tort of false imprisonment provides any relevant guidance.


source: Caselaw Access Project

author: COLEMAN, Justice, PIERCE, Justice,

license: Public Domain

text:
    BB BUGGIES, INC d/b/a Bad Boy Buggies and Textron, Inc. v. Vincent LEON, Individually, As Father and Next Friend, and As Administrator of the Estate of his Minor Child, Jean-Ah Leon, and Mandi Leon.
    No. 2012-IA-01876-SCT.
    Supreme Court of Mississippi.
    Oct. 30, 2014.

      LeAnn W. Nealey, Robert A. Miller, William P. Thomas, Kyle V. Miller, Ridge-land, attorneys for appellants.
    J. Chadwick Mask, Jim Warren, III, Jacob T.E. Stutzman, Jackson, Anthony A. Heidelberg, Natchez, Nicholas J. Greene, Jackson, attorneys for appellees.
   COLEMAN, Justice,

for the Court:

¶ 1. The motion for rehearing is denied. The original opinions are withdrawn and these opinions are substituted therefor. The instant interlocutory appeal arises from a default judgment entered against BB Buggies, Inc. and Textron, Inc. (the “Textron Parties”). The Textron Parties claim that the default judgment is void and should be set aside because they did not receive proper service of the amended complaint, they were not given notice of the default judgment, and the plaintiffs failed to state a claim against them. Additionally, the Textron Parties assert that the three-pronged balancing test for relief from default judgments requires that it be set aside because they have a colorable defense and the plaintiffs will not be prejudiced. We hold that the default judgment is not void, but it should be set aside under the three-pronged test.

Facts and Procedural History

¶ 2. In June 2011, fourteen-year-old Jean-ah Leon was seriously injured while operating a Bad Boy Buggy, an off-road vehicle used for hunting and outdoor recreation. One year later, in June 2012, Jean-alTs parents, Vincent and Mandi Leon, filed a products liability and personal injury lawsuit in Louisiana against the owner of the Bad Boy Buggy, who was a Louisiana resident. They also named the owner’s insurer, the Textron Parties, and several other entities and individuals. Within a few days, the Leons dismissed all parties except the vehicle owner and his insurer from the Louisiana case.

¶ 3. On June 11, 2012, the Leons filed suit in Adams County, Mississippi, against the Textron Parties and the others previously named in the Louisiana suit, seeking damages of “an amount not yet determined” but greater than $10,000,000. The Leons served the complaint and summonses on the Textron Parties through their registered agents in Mississippi on July 16, 2012. The Leons filed an amended complaint on July 25, 2012, adding claims for gross negligence and punitive damages. The Leons did not issue new summonses to the Textron Parties with the amended complaint; instead, they sent copies of the amended complaint to the Textron Parties’ headquarters by certified mail with accompanying letters addressed “To Whom it May Concern.” The Textron Parties’ attorney in the Louisiana case also requested and received a copy of the amended complaint by email.

¶4. The Textron Parties’ answer was due August 15, 2012, thirty days after they were served with the original complaint. They did not file an answer to the original complaint or the amended complaint. On August 23, 2012, the Leons sought a default judgment against the Textron Parties based on the amended complaint. An entry of default and default judgment were entered the same day. The judgment provided that damages would be determined at a subsequent hearing. Four days later, on August 27, the Textron Parties’ insurance carrier learned of the default judgment and engaged counsel for the Textron Parties; the Textron Parties’ attorney contacted the Leons’ attorney that day, On August 31, 2012, the Textron Parties filed a motion to set aside the default judgment, a motion for leave to answer the original complaint, and a motion to dismiss the amended complaint or, in the alternative, for leave to answer the amended complaint. A few days later, the Textron Parties filed a motion to vacate or set aside the default judgment asserting that the Leons had failed to state a claim upon which relief could be granted. After a hearing, the trial court denied all the Tex-tron Parties’ motions. The Textron Parties filed the instant interlocutory appeal.

Analysis

¶ 5. The Textron Parties claim that the trial court erred by refusing to set aside the default judgment against them. They claim that the default judgment is void and should be set aside because: the amended complaint was not properly served; the Textron Parties were not given notice of the entry of default; and the Leons failed to state a claim against the Textron Parties in the amended complaint. Additionally, the Textron Parties assert that the three-pronged balancing test under Mississippi Rules of Civil Procedure 55(c) and 60(b) requires that the default judgment be set aside because the Textron Parties have a colorable defense to the lawsuit, and the Leons failed to show they would be prejudiced by allowing the Textron Parties to file an answer.

¶ 6. Sufficiency of service of process is a jurisdictional issue, which is reviewed de novo. Fletcher v. Limeco Corp., 996 So.2d 773, 776 (¶ 8) (Miss.2008). “A court must have jurisdiction, proper service of process, in order to enter a default judgment against a party.... Otherwise, the default judgment is void- If a. default judgment is void, the trial court has no discretion and must set the judgment aside.” McCain v. Dauzat, 791 So.2d 839, 842 (¶ 7) (Miss.2001) (citations omitted). Once the procedural issues are satisfied, we apply an abuse of discretion standard of review to the circuit court’s decision on a motion to set aside a default judgment. American States Ins. Co. v. Rogillio, 10 So.3d 463, 467 (¶ 8) (Miss.2009). Where there is reasonable doubt as to whether “a default judgment should be vacated, the doubt should be resolved in favor of opening the judgment and hearing the case on its merits.” Id. (quoting McCain, 791 So.2d at 843).

I. Whether the default judgment against the Textron Parties is void as a matter of law due to improper service of the amended complaint.

¶7. The Textron Parties assert that the Leons failed to comply with the service requirements of Rule 4 of the Mississippi Rules of Civil Procedure because they did not include summonses with the amended complaint and did not address the certified mailing to any officer or agent of the Textron Parties. The Leons contend that new summonses were not required because the service provisions of Rule 5(a) and (b)(1) control.

¶ 8. When a complaint is filed, the clerk issues a summons, and .both the complaint and summons must be served on the defendant in accordance with Rule 4. Miss. R. Civ. P. 4(a)-(d). Rule 5 pertains to subsequent pleadings .and provides, in pertinent part:

(a) Service: When Required. Except as otherwise provided in these rules ... every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants ... shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided in Rule 4 for service of summons ....
(b)(1) Service: How Made. ... Service upon the attorney or upon a party shall be made by delivering a copy to him; or by transmitting it to him by electronic means; or by mailing it to him at his last known address, or if no address is known, by leaving it with the clerk of the court, or by transmitting it to the clerk by electronic means. Delivery of a copy within this rule means: handing it to the attorney or to the party; or leaving it at his office with his clerk or other person in charge thereof; or, if there is no on one in charge [sic], leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein . Service by mail is complete upon mailing.

Miss. R. Civ. P. 5(a), (b)(1). An amended complaint is a pleading. Miss. R. Civ. P. 7(a); Miss. R. Civ. P. 15(a). Because it is a pleading “subsequent to the original complaint,” its service falls squarely within the scope of Rule 5 with one exception — if an amended complaint adds new or additional claims and the new claims are against a party who is in default, then service must be made under Rule 4. In the instant case, the Textron Parties were not in default when the Leons served their amended complaint fifteen days after the Textron Parties were properly served with the summons and original complaint, so the one exception to Rule 5(a) did not apply.

¶ 9. The circuit court could exercise personal jurisdiction over the Tex-tron Parties because the first complaint and summons had been properly served. “The existence of personal jurisdiction depends upon reasonable notice to the defendant.” Mansour v. Charmax Indus., Inc., 680 So.2d 852, 854 (Miss.1996) (citing Noble v. Noble, 502 So.2d 317, 320 (Miss. 1987)). “The principal purpose of process is to give to the party to whom it is addressed notice of the proceeding to be defended.” Mid-South Pipeline Contractors, Inc. v. Citizens Nat’l Bank of Meridian, 239 Miss. 621, 124 So.2d 697, 700 (1960). It is undisputed that the Leons properly served the Textron Parties with a summons and the original complaint, putting them on notice of the case proceeding against them. The Leons filed the amended complaint closely on the heels of the original in the same civil action, of which the Textron Parties had notice via service of the summons and the original complaint. The Textron Parties also received the amended complaint — they received it by mail at each company’s headquarters, and it was emailed to their Louisiana attorney, who forwarded it to their insurance company. Therefore, it is undisputed that the Textron Parties had notice of the litigation.

¶ 10. Whether Rule 4 or Rule 5 applies to service of an amended complaint is an issue of first impression in Mississippi. Because our rules are generally modeled after the Federal Rules of Civil Procedure, we often consider federal authority when construing similar rules. Gray v. Gray, 562 So.2d 79, 82 (Miss.1990). However, we are not bound by federal authority when interpreting our procedural rules. Johnson v. Boydston, 605 So.2d 727, 731 (Miss.1992) (“While the reasoning of the federal courts with respect to similar rules’ provisions are given due regard; their authority is persuasive only.”) (citations omitted). The Textron Parties cited two federal cases in support of their position: Fluor Engineers and Constructors, Inc. v. Southern Pacific Transportation Co., 753 F.2d 444 (5th Cir.1985) and Anunciation v. West Capital Financial Services Corp., 97 F.3d 1458 (9th Cir.1996) (unpublished). Both cases discuss former Federal Rule 5(a), which is now Rule 5(a)(2) of the Federal Rules of Civil Procedure. The language in Federal Rule 5(a)(2) is essentially the same as Rule 5(a) of the Mississippi Rules of Civil Procedure. Federal Rule 5(a)(2) provides: “No service is required on a party who is in default for failing to appear. But a pleading that asserts a new claim for relief against such a party must be served on that party under Rule 4.” Fed. R. Civ. P. 5(a)(2).

¶ 11. In Fluor Engineers, one defendant filed a cross-claim against a second defendant and attempted to effect service under Federal Rule 5 by hand delivering a copy of the cross-claim to the second defendant’s attorney. Fluor Engineers, 753 F.2d at 447. On appeal, the second defendant argued that, because it had not yet appeared in the action, service of the cross-claim was insufficient unless accompanied by a summons. Id. at 449. The Fifth Circuit Court of Appeals agreed and held that the second defendant should have been served with a summons pursuant to Federal Rule 4. Id. Noting that Federal Rule 5(a)(2) requires service under Federal Rule 4 when “new or additional claims for relief’ are asserted against parties in default for failure to appear, the Fifth Circuit found that: “Parties who have not yet appeared to defend an action ought to be afforded the same notice for new or additional claims such as the cross-claim asserted here....” Id. Even if the facts in Fluor Engineers were analogous to the situation in the case sub judice, the Fifth Circuit’s holding in Fluor Engineers does not jibe with the plain language of Mississippi’s Rule 5(a). To apply Fluor Engineers as the Textron Parties ask us to would effectively amend Rule 5 to require Rule 4 service not only upon defaulting parties when the complaint adds new claims, but upon all nonappearing parties, regardless of whether they already have been properly served.

¶ 12. In Anunciation, the plaintiff filed an amended complaint against the defendant after the defendant failed to respond to the original complaint. Anunciation, 97 F.3d 1458, *1. The amended complaint was almost identical to the original complaint, but it added a new cause of action. Id. at *1. The plaintiff served the defendant with the amended complaint but did not serve another summons. Id. After the defendant failed to respond to the amended complaint, the plaintiff requested and was granted a default judgment on the amended complaint. Id. On appeal, the Ninth Circuit held that the district court did not have personal jurisdiction over the defendant for purposes of the amended complaint, because the “combination of Rules 4 and 5 require a summons to be served together with a copy of the amended complaint.” Id. at *2. The situation in Anunciation is precisely what Rule 5 applies to — the amended complaint included a new claim and the defendant was in default because the time to respond to the original complaint had passed. It is undisputed that, when the Textron Parties were served with the amended complaint, they still had time to respond to the original complaint; thus, they were not in default.

¶ 13. Mississippi’s Rule 5 clearly requires Rule 4 service of a summons with a subsequent pleading only if (1) the opposing party is in default and (2) the subsequent pleading contains new claims against the party in default. The Leons’ amended complaint included new claims, but the Textron Parties were not in default when the amended complaint was filed. Therefore, according to the language of Rule 5, service of a new summons under Rule 4 was not required. We hold that the Leons properly complied with Rule 5 of the Mississippi Rules of Civil Procedure when they filed their amended complaint, and the default judgment against the Tex-tron Parties is not void for failure to properly serve the amended complaint.

II. Whether the Textron Parties received insufficient notice of the entry of default against them.

¶ 14. Rule 55(b) of the Mississippi Rules of Civil Procedure provides, “[i]f the party against whom judgment by default is sought has appeared in the action, he (or if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three days prior to the hearing of such application.” Miss. R. Civ. P. 55(b). The Textron Parties claim that the default judgment should be set aside because they were not provided notice prior to the default judgment being entered. The Tex-tron Parties admit that they had not formally appeared in the case when the amended complaint was filed. However, they claim that they had appeared for the purpose of Rule 55; thus, they were entitled to notice.

¶ 15. On August 6, 2012, Andy Braun, a Louisiana attorney who was representing Bad Boy Buggies in the Louisiana case, called the Leons’ attorney, Jim Warren. Braun followed up with an email to Warren, which read:

Thanks for calling me back this morning. As discussed, we were asked to represent one or more of the “Bad Boy Buggies, Inc. Defendants” in the lawsuit that was originally filed against them and others in Shreveport, Louisiana. We understand from Ken Mascagni that the Shreveport suit has been amended to take out the “Bad Boy Buggies, Inc. Defendants” and that you have filed a separate suit against them in Mississippi. Can you please forward to us a copy of the lawsuit you filed (and any other information you can provide us with at this time) so that we can get instructions regarding how to proceed? That would be most helpful.

The Textron Parties argue that the email shows an intent to defend the Mississippi lawsuit, and that it satisfies the relaxed appearance requirement of Rule 55. Naturally, the Leons’ position is that the email was not a sufficient appearance and that notice was not required. The trial court found in favor of the Leons on the issue, concluding that the Textron Parties had not appeared for Rule 55(b) purposes.

¶ 16. For Rule 55(b) purposes, the appearance requirements are “relaxed considerably,” and a formal filing in court or a court appearance is not required for one to be entitled to notice under Rule 55(b). Rogillio, 10 So.3d at 475 (¶ 30); Holmes v. Holmes, 628 So.2d 1361,1363 (Miss.1993).

“[Traditionally, for an action to constitute an appearance, one had to file documents in or actually physically appear before a court.” Holmes v. Holmes, 628 So.2d 1361, 1363 (Miss.1993) (citations omitted). However, “those requirements have been relaxed considerably for Rule 55 purposes.” Holmes, 628 So.2d at 1363 (citations omitted). “Once a party has made an indicia of defense or denial of the allegations of the complaint such party is entitled to at least three days[’] written notice of the application for default judgment.” Wheat v. Eakin, 491 So.2d 523, 525 (Miss.1986). This Court has noted that “informal contacts between parties- may constitute an appearance.” Holmes, 628 So.2d at 1364 (citing various cases in which written documents that were exchanged between parties or filed with the court, or conversations initiated ' by defendants’ counsel, indicated an intent to defend the action arid thus constituted an appearance).

Rogillio, 10 So.3d at 475 (¶ 30). “The focus of the inquiry is on whether the non-movant has manifested to the movant a clear intent to defend the suit.” Dynasteel Corp. v. Aztec Indus., Inc., 611 So.2d 977, 981 (Miss.1992). See also Holmes, 628 So.2d at 1362-65 (defendant had appeared for Rule 55(b) purposes where counsel had exchanged letters that showed defendant intended to defend); Chassaniol v. Bank of Kilmichael, 626 So.2d 127,129-32 (Miss.1993) (defendant had appeared where he filed an answer to the original complaint but not the amended complaint); Wheat v. Eakin, 491 So.2d 523, 524-26 (Miss.1986) (pro se defendant’s answer, although the form and language were less formal than customary, included a general denial of the claims against him, and he was entitled to Rule 55(b) notice); Tucker v. Williams, 7 So.3d 961, 967-68 (¶¶ 23-24) (Miss.Ct.App. 2009) (correspondence between attorneys in which defendant’s attorney said defendants intended to file a counterclaim was “obviously a statement indicative of intent to defend a claim,” and defendants were entitled to Rule 55(b) notice). But see Kumar v. Loper, 80 So.3d 808, 813-14 (Miss.2012) (letter sent before case was filed and one phone call from former attorney did riot constitute an appearance); Rogillio, 10 So.3d at 475-76 (¶¶ 30-36) (one phone conversation between insurance company’s claims specialist and plaintiffs attorney, the content of which was disputed, did not constitute an appearance); Williams v. Kelly, 872 So.2d 783, 785-86 (¶¶ 11-14) (Miss.Ct.App.2004) (defendant had not appeared for Rule 55(b) purposes even though he attended a deposition pursuant to a subpoena prior to being named as a party in the case, and even though his attorney attempted to contact plaintiffs attorney).

¶ 17. In Rogillio, a claims specialist for American States Insurance Company spoke with Rogillio’s counsel by phone. Rogillio, 10 So.3d at 476 (¶ 35). American States claimed that its claims specialist “clearly advised Rogillio’s attorney that after Rogillio had served American States, American States would enter an appearance, defend this matter, and contest coverage.” Id. Rogillio admitted that the conversation took place but disputed the exact content of the conversation, claiming that American States did not unequivocally express an intent to defend. Id. After reviewing precedent cases in which the Court had considered what constituted an appearance for Rule 55(b) purposes, the Court held:

Based on this Court’s prior caselaw, we find that American States did not enter an appearance in the action when its claims specialist spoke over the telephone with Rogillio’s attorney. Although an appearance need not be a formal entry of appearance or a physical presence in court, in the illustrative cases summarized above, the defendants either 1) served or sent a document to the plaintiff indicating in writing the defendant’s intent to defend, 2) filed a document with the court indicating in writing the defendant’s intent to defend, or 3) had counsel communicate to opposing counsel the defendant’s intent to defend. Here, there is no evidence of American States' informing Rogillio or the court in writing or through counsel of its intent to defend the suit. Al- ’ though it argues that its claims specialist, Anderson, advised Rogillio of its intent to defend on March 15, 2007, there is no written or audio record of this phone conversation and there is no follow up confirmation letter to indicate what transpired during that conversation. American States has not shown that it made an appearance in this action such that Rogillio was required to provide at least three days’ notice to American States of its application for default judgment. Accordingly, this Court concludes that the default judgment is not void for failure to comply with Rule 55(b).

Rogillio, 10 So.3d at 476 (¶ 36).

¶ 18. In Kumar v. Loper, in addition to one letter sent before they filed the case, defehdants’ attorney had contacted plaintiffs’ attorney by telephone to say that he no longer represented the defendants and that someone else might take over the case. Kumar, 80 So.3d at 814 (¶ 21). The Court held that was not an appearance, writing, “That telephone call did not include indicia of defense or denial of the allegations of the complaint. It did not meet the requirements of a Rule 55(b) appearance.” Id. The one phone call and one email between the Textron Parties’ Louisiana attorney and the Leons’ attorney is similar to the attorneys’ telephone conversation in Kumar. The Textron Parties’ Louisiana attorney acknowledged that the claims against his clients in the Louisiana case had been dropped, and he asked for a copy of the Mississippi complaint so they could decide how to proceed. The Leons’ attorney sent him a copy of the amended complaint, but there was no other response or communication before the time to file an answer expired.

¶ 19. The one phone call and one email from the Textron Parties’ Louisiana attorney, who did not represent them in the Mississippi case, did not indicate a clear intent to defend and did not constitute an appearance for Rule 55(b) purposes. In the precedent cases in which the courts found that the parties had appeared for Rule 55(b) purposes, the attorneys had extended conversations, exchanged multiple letters, discussed the need for more time to answer, or the parties actually filed something with the court. Under the facts of the instant case, we hold that the Tex-tron Parties had not appeared for Rule 55(b) purposes and were not entitled to notice.

III. Whether the Leons failed to state a claim against the Tex-tron Parties in the amended complaint.

¶ 20. The Textron Parties assert that the default judgment is void and should be set aside because the Leons failed to state a claim against them. They maintain that, because they did not actually manufacture the vehicle at issue, the only claim the Leons can have against them is based on product line successor theory. The Leons’ allegations related to successor liability in the amended complaint were vague and conclusory statements, saying simply that the Textron Parties were successors to Bad Boy Enterprises because they had purchased the company and now produced the off-road vehicles. Thus, the Textron Parties argue that the Leons did not satisfy the pleading standard of Rule 8 of the Mississippi Rules of Civil Procedure. The Leons respond that successor liability is not their only valid claim and that the relevant inquiry is whether they can prove any set of facts that would support their claims.

¶ 21. Rule 8 requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Miss. R. Civ. P. 8(a). The purpose of Rule 8 is to put parties on notice of the claims against them. We have said that Rule 8 does not require any magic words, “it is only necessary that the pleadings provide sufficient notice to the defendant of the claims and grounds upon which relief which is sought.” Estate of Stevens v. Wetzel, 762 So.2d 293, 295 (¶ 11) (Miss.2000) (quoting Dynasteel Carp. v. Aztec Indus., Inc., 611 So.2d 977, 984 (Miss.1992)). The trial court found that the amended complaint satisfied the notice pleading requirements of Rule 8 of the Mississippi Rules of Civil Procedure. We agree. We decline to address the viability of each of the Leons’ claims or whether successor liability is the only possible claim, as the Textron Parties suggest. However, we find that the amended complaint contains a sufficient statement of the facts and grounds underlying the claims and provides sufficient notice of the claims against the Textron Parties, which satisfies the liberal pleading standards of Rule 8.

IV. Whether the three-pronged test for setting aside a default judgment requires the default judgment to be set aside.

¶ 22. Although we hold that the default judgment is not void for the procedural reasons argued by the Textron Parties, requests for relief from a default judgment also should be analyzed under Rules 55(c) and 60(b). The Court has been clear that “default judgments are not favored.” McCain, 791 So.2d at 843 (¶ 10); Guar. Nat’l Ins. Co. v. Pittman, 501 So.2d 377, 387-88 (Miss.1987). “[T]rial courts should not be grudging in ... vacating such judgment where showings within the rules have arguably been made.” Guar. Nat’l Ins. Co., 501 So.2d at 387-88 (citing Bell v. City of Bay St. Louis, 467 So.2d 657, 666 (Miss.1985)). The Court has instructed that a trial court’s discretion in deciding whether to vacate a default judgment “must be exercised in accordance with the provisions of Rules 55(c) and 60(b) as well as the supplementary criteria given validity in the decisions of this Court.” Guar. Nat’l Ins. Co., 501 So.2d at 388.

¶ 23. According to Rule 55(c), a default judgment may be set aside “[f|or good cause shown” and in accordance with Rule 60(b). Miss. R. Civ. P. 55(c). The Court has articulated a three-pronged balancing test to apply in deciding whether to set aside a judgment pursuant to Rule 60(b): the trial court must consider “(1) the nature and legitimacy of the defendant’s reasons for his default, i.e. whether the defendant has good cause for default, (2) whether the defendant in fact has a color-able defense to the merits of the claim, •and (3) the nature and extent of prejudice which may be suffered by the plaintiff if the default judgment is set aside.” Rogil-lio, 10 So.3d at 468 (¶ 10) (citations omitted).

A. Good cause for default

¶ 24. The Textron Parties claim that their failure to file an answer was an unintentional mistake, but they concede that they did not have good cause for failing to answer the complaint. The trial court found that there was no good cause for the Textron Parties’ failure to answer the complaint. We agree, and the factor weighs against the Textron Parties. However, lack of good cause alone will not prevent the Court from setting aside a default judgment if the other two factors weigh in favor of setting it aside. See Am. Cable Corp. v. Trilogy Commc’n, Inc., 754 So.2d 545, 556 (¶ 44) (Miss.Ct.App.2000) (“The procedural mis-steps by American Cable, which are grounds for finding the first factor in the default analysis against them, are not sufficient by themselves to permit the upholding of the trial court’s denial of the motion to set aside the default.”).

B. Colorable defense

¶ 25. We have held unequivocally that “the second factor, the presence of a color-able defense, outweighs the other two, and we have encouraged trial courts to vacate a default judgment where ‘the defendant has shown that he has a meritorious defense.’ ” Allstate Ins. Co. v. Green, 794 So.2d 170,174 (¶ 9) (Miss.2001) (citing Bailey v. Georgia Cotton Goods Co., 543 So.2d 180, 182 (Miss.1989)). See also Flagstar Bank, FSB v. Danos, 46 So.3d 298, 307 (¶ 32) (Miss.2010) (“colorable-defense prong is the most important factor”) (citing Rogillio, 10 So.3d at 469 (¶ 16)). Regarding a trial court’s discretion in setting aside default judgments, the Court has held: “[T]he importance of litigants having a trial on the merits should always be a serious consideration by a trial judge in such matters. Thus, any error made by a trial judge should be in the direction of setting aside a default judgment and proceeding with trial.” Green, 794 So.2d at 174 (¶ 9) (quoting Clark v. City of Pascagoula, 507 So.2d 70, 77 (Miss.1987)).

¶26. The trial court found that the Textron Parties had colorable defenses to the claims against them, and we agree. Textron Parties’ defenses include that they did not design, manufacture, or distribute the vehicle in question, which was manufactured in 2009 by Bad Boy Enterprises. BB Buggies purchased certain assets from Bad Boy Enterprises in 2010, and they signed an asset purchase agreement, which provided that Bad Boy Enterprises retained liability for claims arising out of products it manufactured. As to the Leons’ successor liability claim, the Tex-tron Parties assert that the Leons cannot prove the elements required to subject them to liability for Bad Boy Enterprises’s products, specifically, they cannot prove that Bad Boy Enterprises is a mere corporate shell. Finally, the Textron Parties have the defenses of misuse and negligent operation of the vehicle. Jean-ah was only fourteen years old, but the owner’s manual says the vehicle should not be operated by anyone under eighteen.

¶ 27. The Leons argued in their brief and on rehearing that this Court should not consider the Textron Parties’ argument about Jeah-ah’s alleged misuse of the vehicle, because the owner’s manual is not in the record. The Leons are correct that the Textron Parties did not put the owner’s manual into evidence at the hearing. However, the Textron Parties’ attorney read directly from the manual, which provides that “[t]he buggy should never be operated by a persons eighteen years of age or under.” That statement was read into the record without objection from the Leons. During the argument about colorable defenses, the Textron Parties again referred to the manual in asserting the possible defense of misuse of the vehicle. In their motion for rehearing, the Leons wrote that counsel’s arguments are not evidence and that the Textron Parties “should not be allowed to create a defense out of thin air.” We will not relegate the representations of counsel, officers of the court, to pulling something “out of thin air.”

¶ 28. This Court has written that, to satisfy the colorable defense prong, “a party must show facts, not conclusions, and must do so by affidavit or other sworn form of evidence.’ ” Capital One Servs., Inc. v. Rawls, 904 So.2d 1010, 1016 (¶ 19) (Miss.2004) (quoting Rush v. North Am. Van Lines, Inc., 608 So.2d 1205, 1210 (Miss.1992)). In Rush, the Court wrote: “Next is the matter of a defense on the merits. Here the law demands more than a mere wish and a prayer. To show a creditable [sic] defense in the present setting, a party must show facts, not conclusions, and must do so by affidavit or other sworn form of evidence.” Rush, 608 So.2d at 1210. Rush relied on four federal district court decisions and Wright & Miller. Id. The only Mississippi authority it referenced was Rule 56, the summary judgment rule. Id. The federal cases cited by the Rush Court stop far short of requiring affidavits or sworn proof. In fact, in one case, the court acknowledged that argument of counsel could be considered by the txial judge. Trueblood v. Grayson Shops of Tenn., Inc., 32 F.R.D. 190, 196 (E.D.Va. 1963). The Rush Court misread the authorities it cited and wrongly imported the Rule 56 requirement for sworn proof into the default judgment context. In Capital One, the Court merely cited Rush for that proposition without any discussion.

¶ 29. To the extent that Capital One and Rush stand for the proposition that sworn affidavits are required to show a colorable defense on a motion to set aside default judgment, we overrule those cases. An officer of the Court reading directly from the owner’s manual at the hearing to support a potentially valid defense, is a far cry from a “wish and prayer” or creating a defense “out of thin air.” While the evidence would not satisfy the Rule 56 requirements of admissibility in the summary judgment context, it is sufficient for a motion to set aside default judgment. A vast degree of evidence falls oh the spectrum between a “wish and a prayer” and “sworn affidavits,” and while more than a “wish and prayer” is required, sworn affidavits are not.

¶ 30. The colorable defense factor weighs in favor of the Textron Parties. We have held that the colorable defense factor alone “should often be sufficient to justify vacation of a judgment entered by default.” Guar. Nat’l Ins. Co., 501 So.2d at 388.

C. Prejudice to the Leons

¶31. The third prong of the balancing test requires consideration of the extent of prejudice, if any, that the Leons would suffer if the default judgment was set aside. The trial court found that a delay in the damages trial would be prejudicial to the Leons. The trial court’s order included the following rationale for that conclusion:

The [c]ourt finds that the delay in a damages trial that would result if the [d]efault [j]udgment were set aside would be prejudicial to Jean-ah Leon, who needs immediate medical treatment, therapy[,] and rehab for her serious injuries. Every day that passes prior to trial creates additional prejudice. The [c]ourt notes other prejudice to Ms. Leon, including the potential for loss of available insurance should this matter be delayed and the fact that but for the [d]efault [j]udgment she would be required to litigate against the other defendants. As things stand, with the [d]efault [j]udgment, she can prove her damages case and conclude the matter without going through additional litigation.

The Textron Plaintiffs contend that the need to litigate is not grounds for finding prejudice. We agree. We have held repeatedly that the fact that the plaintiffs would be required to litigate their case and prove their claims is not “cognizable prejudice.” Kumar, 80 So.Sd at 816 (¶ 29) (citing Bailey, 543 So.2d at 188). “The mere fact [that] the plaintiff may have to try and prove his case does not stay the judicial hand. That is not the sort of prejudice the rule contemplates.” Rush v. North American Van Lines, 608 So.2d 1205, 1211 (Miss.1992). The Textron Parties correctly assert that prejudice does not result from “the loss of rights that were obtainable only by default.” In re Estates of Gates, 876 So.2d 1059, 1065 (¶ 18) (Miss.Ct.App.2004).

¶ 32. We have recognized that the delay in resolving a claim can constitute prejudice to an injured plaintiff in cases involving sexual harassment. Kumar, 80 So.3d at 816 (¶ 29). In addition, the passage of time is relevant in cases involving car accidents or other similar incidents that hinge on “witnesses’ memories regarding a split second event,” which fade over time. Guar. Nat’l Ins. Co., 501 So.2d at 388. We do not deny that Jean-ah has been injured and needs resolution of her claims. However, her claims are not of a sensitive nature like the sexual harassment claims in Kumar. The instant case does involve a vehicle accident, but the defendants’ alleged liability is based on their manufacturing and selling of the vehicle, not on the accident itself, as in Guaranty National. Further, in the instant case, the trial court lifted the stay on discovery as to all defendants while the interlocutory appeal is pending, so the parties have continued to litigate the case, and they will not start from scratch if the default judgment is set aside. That being so, the common claim in support of a finding of prejudice, that memories fade and evidence may be lost over time, is not applicable here either. In addition, the default judgment at issue provided that a trial on damages would take place at a later date. Thus, the Leons did not obtain complete resolution with the default judgment because the damages trial still has to occur.

¶ 33. The Leons did not file suit until a year after the accident. Then, they voluntarily dismissed most of the defendants in the Louisiana case and refiled in Mississippi. Thus, any initial delays were caused by the Leons. The Leons filed suit in Mississippi on June 11, 2012, and they served the Textron Parties a month later on July 16. The default judgment was entered on Thursday, August 23, 2012. By Monday, August 27, just four days after the default judgment was entered, the Textron Parties had learned of the default judgment and retained an attorney, who contacted the Leons’ attorney that day. The Textron Parties’ motion to set aside the default judgment was filed August 31, two weeks after their answer was due and only eight days after the default judgment was entered. The trial court held a hearing on October 23, 2012, and denied the motion to set aside the default judgment from the bench. The trial court’s order and opinion was entered November 1, 2012, three and a half months from the date the Textron Parties were served with the original complaint.

¶ 34. Less than four months from commencement of the action to resolution on the motion to set aside the default judgment — with only eight days between entry of the default judgment and the motion to set aside — is a very short amount of time compared to the time lapse in cases where we have found that the delay caused by the defendants was prejudicial to' the plaintiffs. See Kumar, 80 So.3d 808 (complaint filed and served December 9, 2008; default judgment entered February 24, 2009; damages awarded June 11, 2009; and motion to set aside filed June 17, 2009, four months after default judgment was entered); Rogillio, 10 So.3d 463 (more than a month elapsed from date default judgment entered until motion to set aside filed, and more than fourteen months elapsed from time complaint was filed and served until motion to set aside default judgment was denied); Stanford v. Parker, 822 So.2d 886 (Miss.2002) (fourteen months from time defendants were served until resolution on motion to set aside default judgment; motion to set aside filed nearly a year after default judgment entered); Guar. Nat’l Ins. Co., 501 So.2d 377 (motion to set aside filed four months after default judgment entered; motion to set aside denied thirteen months after complaint was filed and served).

¶ 35. Although the Textron Parties missed the deadline for filing an answer, they acted promptly after discovering the default judgment. Discovery has been ongoing, which precludes claims for loss of evidence and will save the parties time if the case is remanded. The trial court’s primary reason for finding prejudice was that the Leons would be required to go to trial and prove their case. That alone is not a sufficient reason for a finding of prejudice. Taking all of this into consideration, we cannot find that the delay was prejudicial to the Leons.

¶ 36. With the outcome in the instant case, we do not, in any way, mean to undermine the principle that the duty to answer timely is of utmost importance. We emphasize that “the duty to answer must be taken seriously.” Guar. Nat’l Ins. Co., 501 So.2d at 389. Litigants must understand that, “[a]t some point[,] the train must leave” the station. Id. However, under the facts of this case — where only two weeks elapsed from the date the answer was due to the date the motion to set aside the default judgment was filed— we cannot find prejudice to the Leons. When the trial court ruled on the motion to set aside, less than four months had passed since the litigation commenced. Allowing the Textron Parties to answer the complaint at that point would not have resulted in prejudice to the Leons. The trial court’s decision on this prong amounted to an abuse of discretion. The instant factor weighs in favor of the Textron Parties.

¶ 37. Two of the three factors — color-able defense and prejudice — weigh in favor of the Textron Parties and, thus, in favor of setting aside the default judgment. Therefore, we hold that the trial court abused its discretion in failing to set aside the default judgment. The default judgment against the Textron Parties is set aside, and the case is remanded for proceedings consistent with the instant opinion.

Conclusion

¶ 38. We hold that the default judgment is not void for the reasons argued by the Textron Parties — the Leons properly served their amended complaint under Rule 5; the Textron Parties had not appeared for Rule 55(b) purposes, so they were not entitled to notice of the default; and the amended complaint was sufficient under Rule 8. However, the default judgment is set aside because the Textron Parties have a colorable defense and the Leons will not suffer prejudice.

¶ 39. REVERSED AND REMANDED.

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

PIERCE, Justice,

concurring in result ■ only:

¶ 40. I agree with the majority that the default judgment in this instance should be set aside. In my opinion, however, the judgment entered against the. Textron Parties was void based on the Leons’ failure to serve their amended complaint, which added new claims for gross negligence and punitive damages against the Textron Parties, under the service requirements prescribed by Rule 4 of the Mississippi Rules of Civil Procedure. Therefore, I concur in result only.

¶ 41. A party cannot avail itself of the more relaxed service standards prescribed by Rule 5 of the Mississippi Rules of Civil Procedure, with regard to amended complaints asserting new claims, unless the defendant has made an appearance in the case. In Mississippi, an “appearance” for purposes of the rules is synonymous with a “general appearance.” See, e.g., McCoy v. Watson, 154 Miss. 307, 122 So. 368 (1929) (reiterating that where there has been no valid process in the case or no “general appearance” by defendant, no jurisdiction has been acquired by the court).

¶ 42. As noted by the majority, both Rule 4 and Rule 5 of the Mississippi Rules of Civil Procedure are modeled after the Federal Rules of Civil Procedure. While certainly not controlling authority for our procedural rules, federal cases and treatises speaking to and interpreting federal rules that are counterparts to our own provide persuasive authority. The leading treatise- on federal practice and procedure, Wright & Miller, speaks to Federal Rule 5 as follows: “The service of paper provisions of [Federal] Rule 5 apply only to parties who have appeared. Thus it is clear that amended or supplemental pleadings must be served on parties who have not yet appeared in the action in conformity with [Federal] Rule 4.” See 4A Charles Alan Wright & Authur R. Miller, Federal Practice and Procedure § 1146 (3d ed. 2002).

¶ 43. As a general rule, an amended complaint supersedes the original complaint. See, e.g., King v. Dogan, 31 F.3d 344, 346 (5th Cir.1994) (per curiam) (“An amended complaint supersedes the original complaint and renders it of no legal effect.”) Like the original complaint, the amended complaint also must be served upon the defendant under Rule 4 requirements, unless the defendant already has made an appearance in the case — otherwise, the court has no jurisdiction over the amended complaint.

¶44. As the Textron Parties had not made an appearance in the case, the circuit court had no jurisdiction to enter a judgment against them on the amended complaint asserting new claims against the Textron Parties. • Accordingly, I would hold that judgment is void.

WALLER, C.J., AND RANDOLPH, P.J., JOIN THIS OPINION.

      . The other parties are not involved in the interlocutory appeal.'

      . We point out that the Fifth Circuit found the matter harmless, however, because the first defendant had later re-served the second defendant with a summons and a copy of the cross claim.

      . Under the product line successor theory, a successor corporation that manufactures the same product as its predecessor corporation can be "liable for injuries caused by defects in that product and inherit the liabilities associated with the product even if sold and manufactured by the predecessor corporation.” Huff v. Shopsmith, Inc., 786 So.2d 383, 387 (¶ 10) (Miss.2001). However, the successor company will be liable for the products of its predecessor only if the following elements are present: (1) the successor produces the same product under a similar name; (2) the successor acquired substantially all of predecessor corporation’s assets, leaving only a corporate shell; (3) the successor holds itself out as a mere continuation of the predecessor; and (4) the successor benefits from the predecessor's good will. Id. at 387 (¶ 12).

      . See supra footnote 3.


author: CARLTON, J., for the Court:

text:
    LEGGETT & PLATT and Fidelity and Guaranty Insurance Company, Appellants v. Victor BRINKLEY, Appellee.
    No. 2014-WC-00051-COA.
    Court of Appeals of Mississippi.
    Oct. 14, 2014.

      Phillip Perkins Embry, Courtney Elizabeth McAlexander, attorneys for appellants.
    Ned McDonald III, Tupelo, attorney for appellee.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   CARLTON, J., for the Court:

¶ 1. Leggett and Platt (Leggett), and its insurance carrier, Fidelity and Guaranty Insurance Company (Fidelity), appeal the order of the Mississippi Workers’ Compensation Commission (Commission) finding that Victor Brinkley timely filed his petition to controvert. Finding that the Commission erred in its determination that Brinkley filed his petition to controvert within the one-year statute of limitations, we reverse and render the full Commission’s order.

FACTS

¶ 2. Victor Brinkley sustained a com-pensable right-thumb injury on January 15, 2011, while operating a riveting machine during the course and scope of his employment at Leggett. That same day, Brinkley received treatment for his injury at the North Mississippi Medical Center, where doctors diagnosed him with a distal right thumb, rivet injury. Dr. Alan Pritchard, a plastic surgeon, treated Brinkley and performed an amputation revision of the right thumb at the interpha-langeal joint level. Dr. Pritchard discharged Brinkley on January 15, 2011, the same day as his injury. Following discharge, Brinkley continued to receive treatment from Dr. Pritchard.

¶ 3. On May 23, 2011, Dr. Pritchard released Brinkley at maximum medical improvement (MMI), and he assigned an eleven percent impairment rating to the right upper extremity with no work restrictions. Leggett, Brinkley’s employer, and Fidelity, Leggett’s insurance carrier, paid Brinkley $8,806.60 in permanent partial disability benefits, representing a payout of the eleven percent impairment to the upper extremity. Leggett and Fidelity authorized no medical treatment for Brinkley since Brinkley’s last evaluation by Dr. Pritchard on May 23, 2011.

¶ 4. On October 20, 2011, Fidelity sent a Form B-31, Notice of Final Payment, to Brinkley for execution. When Brinkley failed to return the signed Form B-31, Fidelity sent another letter via certified mail on November 2, 2011, requesting execution of the enclosed Form B-31. When Brinkley failed to return the second B-31, Fidelity filed an unsigned Form B-31 on November 23, 2011, with the Commission. Following receipt of the stamped-filed copy from the Commission, Fidelity sent a letter dated December 1, 2011, to Brinkley via certified mail, return receipt requested, providing him with the stamped-filed Form B-31 and referring Brinkley to the section on the Form B-31 regarding the one-year statute of limitations. The certified-mail documentation confirms that the post office left notice of delivery on December 5, 2011.

¶ 5. On December 12, 2011, Fidelity sent the Commission a copy of the December 1, 2011 letter that it sent Brinkley via certified mail. Then, on January 27, 2012, Fidelity received a signed Form B-31 from Brinkley, and the date on the Form B-31 reflected that Brinkley signed the form on January 25, 2012. Fidelity sent the Form B-31 signed by Brinkley on January 25, 2012, to the Commission on January 27, 2012. Following its receipt of this stamped-filed Form B-31 from the Commission, Fidelity sent a copy to Brinkley via certified mail, return receipt requested, on February 2, 2012. The post office attempted delivery on February 6, 2012, and again on February 9, 2012.

¶ 6. On January 30, 2013, Brinkley filed his petition to controvert alleging a right-thumb injury sustained on January 15, 2011, while operating a riveting machine in the course and scope of his employment. Thereafter, Leggett and Fidelity filed their answer admitting liability for the subject claim, but averring that the one-year statute of limitations set forth in Mississippi Code Annotated section 71-3-53 (Rev. 2011) barred the claim. In addition, Leggett and Fidelity filed their motion to dismiss the claim, arguing that the one-year statute of limitations barred the claim.

¶ 7. The parties attended a hearing on July 12, 2013, and presented their arguments related to the motion to dismiss before an administrative judge (AJ). On July 15, 2013, the AJ granted the motion to dismiss, and entered an order dismissing the claim on July 31, 2013. On August 9, 2013, Brinkley filed his petition for review of the AJ’s decision before the full Commission.

¶ 8. On November 4, 2013, the full Commission heard oral arguments from both parties. The full Commission then entered an order reversing the AJ’s decision to dismiss the claim and remanded the matter to the AJ for further proceedings consistent with the order. The full Commission stated that the limitations period under Mississippi Code Annotated section 71-3-53 begins upon the proper filing of the Form B-31. The full Commission found that in the present case, Brinkley failed to receive actual notice of Leggett and Fidelity’s November 23, 2011 filing of the unsigned Form B-31, since the postal-service tracking notification stated that on December 5, 2011, the post office attempted delivery of the notice of the filing but without success. The Commission found that actual notice of final payment was not shown until January 27, 2012, when Leggett and Fidelity received in the mail a Form B-31 containing Brinkley’s signature. Leggett and Fidelity filed the signed Form B-31 with the full Commission on January 30, 2012. The full Commission held that this filing started the running of the one-year limitations period, even though Brinkley acknowledged that he received the Form B-31 three months before he signed and returned it.

¶ 9. The full Commission acknowledged that Brinkley filed his petition to controvert the claim on January 30, 2013, 366 calendar days (including the starting/ending dates) after the January 30, 2012 filing of the signed Form B-31. The full Commission stated in its opinion that according to the Mississippi Administrative Procedures Law, the one-year limitation period began to run on the day following the January 30, 2012 filing of the signed Form B-31. Accordingly, the full Commission held that Brinkley timely filed his petition to controvert before the expiration of the one-year limitations period.

¶ 10. Leggett and Fidelity now appeal the full Commission’s decision.

STANDARD OF REVIEW

¶ 11. This Court utilizes a substantial-evidence standard of review to resolve a workers’ compensation case. Hugh Dancy Co. v. Mooneyham, 68 So.3d 76, 79 (¶ 6) (Miss.Ct.App.2011). However, this Court employs a de novo standard of review to questions of law, including statute-of-limitations issues. Jordan v. Pace Head Start, 852 So.2d 28, 30 (¶ 4) (Miss.Ct.App. 2002). “We defer to the Commission’s decision and reverse only when the Commission’s decision is not supported by substantial evidence.” Cook v. Home Depot, 81 So.3d 1126, 1128 (¶ 7) (Miss.Ct.App.2011).

DISCUSSION

¶ 12. Leggett and Fidelity argue that the full Commission erred in finding that Brinkley’s claim was not barred by the one-year statute of limitations. Leggett and Fidelity state that they provided Brinkley with a Form B-31 on October 20, 2011, and again on November 2, 2011, and both times Brinkley failed to sign or return the form. After Leggett and Fidelity filed an unsigned Form B-31 with the Commission on November 23, 2011, they then provided Brinkley with notice of the filing of the unsigned Form B-31 and a letter dated December 1, 2011, via certified mail. Leggett and Fidelity assert that Brinkley received notice of service of the certified mail on December 5, 2011, as documented by the post-office confirmation of delivery notice, and thus the one-year statute of limitations began to run when Brinkley received notice of delivery on December 5, 2011, and not January 30, 2012, as found by the full Commission. Leggett and Fidelity further claim that the Commission failed to cite any additional rules or cases that provide clarification as to any additional steps that could have been taken by them to provide adequate notice to Brinkley.

¶ 13. Brinkley argues, however, that the statute of limitations began to run on January 30, 2012, the date of the filing of the Form B-31 that he signed on January 25, 2012. Regarding the attempt to deliver notice of the filing to Brinkley, Brinkley claims that “[n]othing in the record suggests [he] knew the certified mail was from [Leggett and Fidelity] when he failed to claim it.” Brinkley also asserts that the record reflects no misconduct on his part. Brinkley further asserts that he returned the signed Form B-31 to Leggett and Fidelity three months after he received it. Brinkley further claims that “nothing in the record indicates that [Brinkley] was given a deadline to sign and return the [Form] B-31 when he received it in October 2011.”

¶ 14. We acknowledge that in Nowell v. Taylor Machine Works, MWCC No. 98-12242-H-2494, 2003 WL 21043110, at *1 (Miss.Work.Comp.Comm’n 2003), the Commission recognized that the claimant was responsible for returning the Form B-31 within a reasonable time. We also acknowledge that in the present case, the record reflects that Leggett and Fidelity mailed Brinkley the Form B-31 on October 20, 2011, and also on November 2, 2011, providing Brinkley an opportunity to sign the form to acknowledge final payment and settlement. Leggett and Fidelity filed the unsigned form with the Commission only after failing to receive a timely response from Brinkley after mailing the Form B-31, notice of final payment, to him twice. Leggett and Fidelity then sent a copy of the filed unsigned form to Brinkley by certified mail with a letter dated December 1, 2011. The record shows that Brinkley not only failed to timely respond to the notice of the certified mail, but also failed to respond to the previous October 20, 2011 and November 2, 2011 mailings of the Form B-31 requesting that he execute the form for acknowledgment of final payment of compensation and settlement. Moreover, the Form B-31 and information mailed to Brinkley informed him of the statute of limitations and clearly reflected that the form acknowledged final payment of compensation and final settlement.

¶ 15. When reviewing whether a claim is barred by the one-year statute of limitations, the Mississippi Supreme Court has held that section 71-3-53, Mississippi Code Annotated section 71-3-37(7) (Rev. 2011), and Mississippi Workers’ Compensation Commission Procedural Rule 17, “must be considered together.” Staple Cotton Servs. Ass’n v. Russell, 399 So.2d 224, 226 (Miss.1981).

¶ 16. Section 71-3-53 states, in pertinent part:

Upon its own initiative or upon the application of any party in interest on the ground of a change in conditions or because of a mistake in a determination of fact, the commission may, at any time prior to one (1) year after date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one (1) year after the rejection of a claim, review a compensation case, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation.

¶ 17. Mississippi Code Annotated section 71-3-37(7) provides:

Within thirty (30) days after the final payment of compensation has been made, the employer shall send to the commission a notice in accordance with a form prescribed by the commission, stating that such final payment has been made, the total amount of compensation paid, the name of the employee and of any other person to whom compensation has been paid, the date of the injury or death, and the date to which compensation has been paid.... No case shall be closed nor any penalty be assessed without notice to all parties interested and without giving to all such parties an opportunity to be heard.

(Emphasis added).

¶ 18. Workers’ Compensation Commission Procedural Rule 17 states:

The requirement for the filing of Commission Form B-31, shall be deemed to have been met upon receipt by the Commission of such form, signed by the claimant, provided however, that the form so filed is in accordance with the requirements of section 71-3-37(7) of the Act and contains the information specified therein. In the event Form B-31 is not signed by claimant, the unsigned form shall be filed with the Commission with notice of such filing thereafter given to the claimant by the employer or carrier by certified mail. Should the original or any subsequent Form B-31 be filed that does not furnish all medical or other information required, another Form B-31 containing complete information shall be filed as soon as possible thereafter as provided in section 71-3-37.

¶ 19. The supreme court, in Staple, 399' So.2d at 227, cited Dunn’s Mississippi Workmen’s Compensation 2d ed. § 256 (Supp.1978) and listed the necessary conditions to start the running of the one-year statute of limitations:

One requirement of the employer is that a notice be filed with the commission stating that final payment has been made, the amount paid and certain other information identifying the case. Other procedural requirements are noted below.
Provision is made that no case shall be closed without giving notice to all parties interested and without giving to all parties an opportunity to be heard. But when the required form is signed by the claimant and filed with the Commission, no formal hearing or order is necessary to start the running of the time limitation and no other or further notice need be given the claimant.
Where the required form is presented to the claimant and he neglects or refuses to sign the receipt, the employer or carrier may state the failure or refusal as a reason and the filing is effective without the claimant’s signature, and the running of time under the limitation section of the Act will begin; provided, however, that the employee is given due notice that the unsigned form has been actually filed with the Commission. Two absolute requirements have been emphasized as essential to compliance with due process of law: (1) the employee must be given an opportunity to sign the form before it is filed and (2) notice of the filing of the form without the employee’s signature must be given to the employee not before but after the notice has been filed with the Commission. No specific form for proof of notice is required. A distinction is made as between a form that is signed by the claimant and one that is unsigned. If the claimant signs the form, no other notice is required.

¶ 20. In Mississippi courts and cases before the Commission, precedent reflects that notice may be provided by service through mail. In its order, the full Commission herein cited sections 71-3-53 and 71-3-37, and stated that the one-year statute of limitation begins upon, “and is wholly dependent upon,” the proper filing of the Form B-31. The full Commission stated that the Form B-31 provides actual notice to the employee that his or her rights to benefits may be lost if the matter remains dormant for the next year.

¶ 21. The full Commission found that Leggett and Fidelity’s November 23, 2011 filing of an unsigned Form B-31, and mailing notice thereof to Brinkley, failed to start the running of the one-year statute of limitations. The full Commission explained that Brinkley did not receive actual notice of the November 23, 2011 filing of the form, since the postal-service tracking notification reflecting an unsuccessful delivery of the filing notice. We have recognized that “[f]or complete but unsigned [Form B-31s], the one-year statute of limitations begins to run when the claimant is notified by the employer that the unsigned form has been filed with the Commission.” McCrimon v. Red Arrow Car Wash, 859 So.2d 395, 398 (¶ 10) (Miss.Ct.App.2003) (citations omitted); see also McLemore v. Jackson Tile Mfg. Co., 252 So.2d 781, 783 (Miss.1971) (“[I]n order to start the running of time under the limitation, the employee ... must be given notice that the unsigned form has been actually filed with the Commission.”).

¶ 22. We turn to a review of precedent discussing the requirement of providing sufficient notice to a claimant in order to start the running of the one-year statute of limitations. In Carter v. Wrecking Corp. of America, 234 Miss. 559, 562, 107 So.2d 116, 118 (1958), the insurance carrier mailed the employer a check for the last payment of compensation benefits and two copies of Form B-31. The claimant, Carter, testified that he recalled receiving one copy of the Form B-31. Id. The resident claim manager for the employer filed one copy of the Form B-31 final report and settlement receipt with the Commission on March 15, 1950. Id. at 563, 107 So.2d at 118. Over three years later, on June 14, 1953, Carter filed with the Commission a Form B-ll, in which he asked that the case be listed as a controverted matter and set for a hearing to determine the amount of compensation owed to him, as well as the amount of permanent disability suffered by him. Id. Upon review, the Commission dismissed Carter’s claim for compensation on the ground that the Commission lacked jurisdiction at that time to review the case, since Carter failed to file his application for review before the expiration of one year after the date of the last payment of compensation. Id. at 564, 107 So.2d at 119.

¶ 23. Carter appealed, arguing that the employer and its insurance carrier failed to provide Carter with notice, as required by statute, that the case would be closed. Id. The supreme court, on review, determined that the information provided to Carter in the Form B-31 “was. sufficient to satisfy the [statutory] requirements ... relating to the notice which should be sent to the [C]mmission.” Id. at 566, 107 So.2d at 120. The supreme court found that Carter admitted that he had received the following: a copy of the Form B-31 report, entitled “Final Report and Settlement Sheet,” which showed the total compensation payments made to him, a check for final payment of benefits, a form “Final Receipt” for the final payment, as well as a letter from the insurance carrier, requesting him to sign the final receipt and return it to the carrier. Id. The supreme court held that Carter received “ample notice” that the check mailed to him with the Form B-31 constituted final payment, and that the case was being closed. Id.-, see also Brown v. F.W. Woolworth Co., 348 So.2d 236, 238-39 (Miss.1977) (distinguishing the facts in Carter from the facts in McLemore).

¶ 24. In contrast, in McLemore, 252 So.2d at 784, the supreme court held that insurance carrier’s mailing of a final report and Form B-31 to both the claimant and Commission with the notation stating “original hereof this date mailed to Commission” failed to provide the claimant with sufficient notice that the notice of final payment and settlement had actually been filed with the Commission. The supreme court found that McLemore did not receive the notice as contemplated and required by section 71-3-37(7). Id. The McLemore court explained that due process is provided only if a claimant receives notice of the filing of the unsigned Form B-31 after it is filed with the Commission. Id. In Brown, the supreme court further explained that notice by mail in McLemore was found to be insufficient because the Form B-31 and notice failed to clearly reflect that the Form B-31 constituted final payment and settlement. Brown, 348 So.2d at 238-39.

¶ 25. Similar to the facts in Carter, in Nowell, 2003 WL 21043110, at *1, a published Commission decision, the Commission held that the Form B-31 mailed to the claimant, Nowell, was clearly entitled “final report and settlement,” and that No-well received the Form B-31 mailed by the employer, but he “failed or refused to sign and return [the Form B-31] within a reasonable period of time.” Id. The employer then filed the Form B-31 notice of final payment with the Commission without No-well’s signature. Id. The employer sent Nowell a certified letter on August 29, 2000, advising him that the Form B-31 notice of final payment had been filed with the Commission on April 21, 2000. Id. On October 10, 2000, the employer filed with the Commission a copy of the certified letter it had previously sent Nowell. Id. On October 10, 2001, Nowell filed a petition to controvert. Id. Upon review, the Commission held that the one-year statute of limitations under section 71-3-37(7) began to run on August 31, 2000, the date Nowell was provided notice by mail that the employer filed the unsigned Form B-31 notice of final payment with the Commission. Id. at *2.

¶ 26. As stated, in the present case, on October 20, 2011, Fidelity sent a Form B-31 notice of final payment to Brinkley for execution. When Brinkley failed to return the signed Form B-31, Fidelity sent another letter via certified mail on November 2, 2011, requesting execution of the enclosed Form B-31. When Brinkley failed to return the first or second Form B-31 notice of final payment, Fidelity filed an unsigned Form B-31 with the Commission on November 23, 2011. Following receipt of the stamped-filed copy from the Commission, Fidelity sent a letter dated December 1, 2011, to Brinkley via certified mail, return receipt requested, providing him with the stamped-filed Form B-31, and referring Brinkley to the section on the Form B-31 regarding the one-year statute of limitations. The certified mail documentation confirms that the post office left notice of delivery on December 5, 2011.

¶27. In this case, the record reflects that Fidelity provided Brinkley notice on December 5, 2011, via certified mail that the Form B-31 notice of final payment had been filed with the Commission. Similar to Nowell, 2003 WL 21043110, at *1, the notice in the instant case delivered via certified mail on December 5, 2011, met the statutory requirements under section 71-3-37. As in Carter, 234 Miss, at 566, 107 So.2d at 120, the record herein reflects that Brinkley received ample opportunity to sign the form before it was filed, but he failed to respond within a reasonable time after receipt of the Form B-31. We further acknowledge that the record reflects Brinkley’s admission to receiving the Form B-31 notice of final payment three months before he signed and returned the form to Fidelity.

¶ 28. With respect to notice by service by mail, we have recognized that

both the United States and Mississippi Supreme Court have considered the effect of written notice by mail in a court proceeding which permitted such a communication. The courts have uniformly recognized that there is a presumption that mail properly directed and deposited is timely delivered to the individual to whom it was addressed. Moreover, mere denial of receipt is insufficient to create a triable issue of fact.

Pennington v. U.S. Gypsum Co., 722 So.2d 162, 165 (IT 15) (Miss.Ct.App.1998) (citations and quotation marks omitted).

¶ 29. Accordingly, we find the one-year statute of limitations began to run when Brinkley received notice of delivery on December 5, 2011, of the mailed copy of the filed, unsigned Form B-31 notice of final payment. Brinkley failed to file his petition to controvert within the one-year statute of limitations. We therefore reverse and render the judgment of the full Commission.

¶ 80. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . At the time of the Staple opinion, Commission Procedural Rule 17 was titled Commission Rule B-17.