author: DANIEL L. DYSART, Judge.

text:
    Daris D. McCORKLE v. MANAGEMENT SERVICES USA, INC., Harrah’s New Orleans Casino.
    No. 2012-CA-1609.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 24, 2013.
    Rehearing Denied May 15, 2018.

      Denise A. Vinet, Vinet & Day, Baton Rouge, LA, Mark David Plaisance, Thibo-daux, LA, for Plaintiff/App ellant.
    Richard Lee Seelman, Fontana & Seel-man, LLP, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

J^Daris McCorkle appeals a judgment dismissing his workers’ compensation claim. For the following reasons, we affirm.

FACTUAL BACKGROUND:

It is undisputed that Daris McCorkle (hereinafter “appellant”) was injured in the course and scope of his employment as a valet for Harrah’s New Orleans Management Company (hereinafter “Harrah’s”) on August 12, 2002. Appellant struck his head on an overhead concrete projection while retrieving a customer’s vehicle. It is also undisputed that appellant injured his cervical spine.

Appellant was originally diagnosed immediately after the accident with a neck sprain and was released to return to work on September 3, 2002. Because of continued problems, appellant consulted with Dr. Bradley Bartholomew, a neurosurgeon, who ordered an MRI. The test revealed a herniated disc at C4-5. Dr. Bartholomew performed an anterior cervical discectomy with a fusion of C4-5 in late May 2003.

| gin March of 2004, following continued complaints of pain from his neck to the elbow and numbness from his elbow to his wrist, Dr. Bartholomew ordered a second MRI. Dr. Bartholomew discussed a second fusion of C5-6 with appellant, but he declined. Dr. Bartholomew referred appellant to Dr. Karen Ortenberg, a board certified physical medicine and rehabilitation specialist, for pain management. Pri- or to treating with Dr. Ortenberg, appellant saw Dr. David Rosenfeld, who treated appellant with epidural steroid injections.

Appellant did not see Dr. Ortenberg until March 21, 2006. She recommended a multi-disciplinary treatment approach which included medicine management and a work-conditioning program. Additionally, Dr. Ortenberg referred appellant to Dr. Kevin Bianchini, a neuropsychologist, to learn behavioral pain management strategies. Dr. Ortenberg determined that appellant was at maximum medical improvement in 2006, and released him to light demand work, with restrictions.

Following filing his claim for reinstatement of temporary total disability benefits, appellant began treating with Dr. Kevin McCarthy, a Baton Rouge orthopedic surgeon, in October 2008. Initially, Dr. McCarthy ordered epidural steroid injections, administered by Dr. George Jiha. Additionally, in November 2008, appellant submitted to a cervical MRI, and in January 2009, had an EMG and nerve conduction study. A cervical myelogram and CT scan was conducted in June 2009, which Dr. McCarthy reported confirmed the C5-6 impingement first diagnosed by Dr. Bartholomew in 2003. Dr. McCarthy recommended surgery.

^Appellant amended his claim to include the denial of his surgery.

DISCUSSION:

A hearing on appellant’s claims was held on May 22, 2012. Stipulations were offered as to the date of injury, average weekly wage at time of injury, and the amount of the previously paid temporary total disability benefits. Following testimony, the OWCJ took the matter under advisement.

A judgment was rendered July 6, 2012, finding that appellant had failed to meet his burden of proving that Harrah’s incorrectly terminated his temporary total disability benefits, or that Harrah’s was obligated to reinstate those benefits. The judgment further provided that appellant was not entitled to any additional surgery or epidural steroid injections. Having found in favor of Harrah’s on both issues, the judgment stated that no penalties and attorney fees were warranted. Appellant’s claims were dismissed, with prejudice.

The standard of review of findings of fact in workers’ compensation claims is the manifest error/clearly wrong standard. Dean v. Southmark Constr., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117. Applying the standard requires the appellate court to determine whether the factfinder’s conclusions were reasonable, not whether the trier-of-fact was right or wrong. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7-8 (La.7/1/97), 696 So.2d 551, 556.

As in all civil cases, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court considers its own evaluations and inferences are as reasonable. Rosell v, \4ESCO, 549 So.2d 840, 844 (La.1989). Review of rulings on credibility of witnesses demands great deference to the trier-of-fact’s findings because only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on' the listener’s understanding and belief in what is said. Id.

Further, the manifest error/clearly wrong standard applies to findings regarding the necessity of medical treatment. Bell v. Mid City Printers, 10-0818, p. 10 (LaApp. 4 Cir. 12/22/10), 54 So.3d 1226, 1234.

Appellant assigns as error the OWCJ’s finding that he was not entitled to have his temporary total disability benefits reinstated. He argues that he proved by clear and convincing evidence that he is unable to engage in any employment or self-employment, and is therefore entitled to receive temporary total disability benefits.

This Court has held that a finding of a work-related injury does not also establish that a claimant is entitled to workers’ compensation disability benefits.

“While a showing that there is no work related disability is enough to deny benefits, the converse is not true.... It is not enough just to prove the inability to continue in the pre-injury job.” A claimant seeking any type of disability indemnity benefits — TTD or SEB— must meet an additional burden of proof.

Reinhardt v. City of New Orleans, 09-1116, p. 25 (La.App. 4 Cir. 1/13/10), 30 So.3d 229, 244, citing Rapp v. City of New Orleans, 95-1638, p. 5 (La.App. 4 Cir. 9/18/96), 681 So.2d 433, 438.

Appellant concedes that his burden of proof is by clear and convincing evidence, yet he ignores the fact that several physicians and other professionals | ¡-.agreed that he could return to work, albeit not the same type of job as the one he was performing at the time of injury.

Dr. Karen Ortenberg reviewed the first functional capacity evaluation (FCE) completed by appellant, and determined that as far back as 2005, appellant could perform some type of sedentary to light physical demand work. She recommended that he attend work conditioning sessions, which he did. Following completion of those sessions, Dr. Ortenberg found appellant to be at maximum medical improvement. She ordered another FCE in 2006, and after review of the results, released appellant to light demand work with restrictions. Her report indicated that appellant had no progressive neurologic signs involving range of motion, muscle weakness, deep tendon reflexes or sensation. Dr. Ortenberg noted that appellant had shown a positive reaction to the work conditioning program, and that she encouraged him to keep exercising. Lastly, she reported that appellant declined to participate in the behavioral pain management therapy that she had recommended.

Based on a report from Dr. Ortenberg, appellant’s then treating physician, Har-rah’s contacted Ty Pennington, a nationally licensed vocational rehabilitation counselor, to meet with appellant and to identify potential jobs suitable for his physical ability. The jobs were primarily entry level positions for which appellant already had appropriate skills to perform or which required training that appellant could accomplish. The list of jobs was sent to Dr. Ortenberg, who approved eight of the eleven jobs. Appellant concedes that he did not apply for any of the eight jobs.

| (¡According to Harrah’s, it terminated appellant’s temporary total disability benefits on March 8, 2008, because of the availability of jobs appropriate for appellant’s physical limitations and because the jobs would provide appellant with at least ninety percent of his average weekly wage. The termination of benefits prompted appellant’s claim for compensation.

In Reinhardt, supra, 09-1116, p. 26, 30 So.3d at 244-45, this Court stated:

A claimant who can perform light duty work is not entitled to TTD benefits. Holden v. International Paper Co., 31,-104, p. 2 (La.App. 2 Cir. 10/28/98), 720 So.2d 442, 444. “Thus the question is not whether the workers’ compensation claimant could perform the previous work but, rather, whether the claimant could perform some sort of work.” Pic-quet v. Teco Bulk Terminal, 08-793, p. 11 (La.App. 5 Cir. 4/28/09), 13 So.3d 208, 216.

Thus, the question is not whether appellant could return to work as a valet, but whether he could perform any type of work. There is sufficient medical evidence contained in the record to support the OWCJ’s finding that appellant was capable of performing some type of work, even if only light duty.

Accordingly, we cannot say that the OWCJ was manifestly erroneous/clearly wrong in finding that appellant was not entitled to have TTD benefits reinstated.

In another assignment of error, appellant argues that the OWCJ erred in giving greater weight to the testimony of two physicians who each evaluated him only once, rather than to the testimony of his treating physician who recommended further medical treatment.

Louisiana Revised Statute 23:1203 A provides that the employer shall provide all necessary treatment, including “medical and surgical treatment, and any 17nonmedical treatment recognized by the laws of this state as legal.” The claimant must prove by a preponderance of the evidence that the expenses are reasonably necessary for treatment of a medical condition caused by the work injury. Bell v. Mid City Printers, Inc., supra, at 10-0818, p. 10, 54 So.3d at 1234, citing Schindler v. Orleans Regional Security, 03-0522, p. 9 (La.App. 4 Cir. 12/3/03), 862 So.2d 1032, 1039.

Appellant argues that the OWCJ gave too much weight to the opinions of Drs. Ferachi and Broussard. He specifically argues that it was error because Dr. McCarthy, appellant’s current physician, is more, credentialed than the other two doctors. Dr. McCarthy has a fellowship in spinal surgery, whereas the other two doctors are “general practice” orthopedic surgeons.

The general rule is that the testimony of a treating physician should be given greater weight than that of a physician who treated the patient only once or twice. Williams v. Wal-Mart Stores, Inc., 00-0863, p. 6 (La.App. 4 Cir. 5/16/01), 787 So.2d 1134, 1137. However, the treating physician’s testimony is not irrebuttable, and the trier-of-fact is required to weigh the testimony of all medical witnesses. Id., citing Celestine v. U.S. Fidelity & Guaranty Co., 561 So.2d 986, 991 (La.App. 4 Cir.1990). Thus, the jurisprudence supports appellant’s proposition that the OWCJ should give greater weight to the opinion of his treating physician; however, the OWCJ is not obligated to disregard the testimony of other physicians who have treated him.

|sIn this case, appellant was treated by numerous physicians since the date of injury and the records of those physicians were entered into evidence and reviewed by the OWCJ. Those records contain the differing opinions of Drs. McCarthy and Ferachi, which prompted the independent medical examination (IME) of Dr. Brous-sard.

The records indicate that Harrah’s ordered appellant to present for a second opinion with Dr. Larry Ferachi, a board certified orthopedic surgeon, following Dr. McCarthy’s surgery recommendation. After an examination of appellant and review of his prior medical records, Dr. Ferachi was of the opinion that appellant was not a candidate for surgery. He saw no evidence of nerve root impingement, radiculo-pathy, or degenerative disc disease. Dr. Ferachi recommended one additional cervical steroid injection before appellant could return to work in a sedentary demand job.

Because of the conflicting diagnoses, Harrah’s requested that an independent medical examination be conducted pursuant to La. R.S. 23:1123. The Office of Workers’ Compensation scheduled an appointment for appellant with Dr. Thad Broussard, also a board certified orthopedic surgeon. Dr. Broussard reviewed appellant’s medical records, including his diagnostic test results, and conducted a physical examination, following which he diagnosed degenerative disc disease at C5-6 and C6-7, without nerve root impingement. He opined that appellant had been at maximum medical improvement for some time. Dr. Broussard | Recommended intermittent doctor visits, medication as needed, and a possible psychological evaluation, but not surgery.

Because Drs. Ferachi and Broussard agreed that no surgery was necessary, Harrah’s declined to approve the anterior cervical discectomy and fusion recommended by Dr. McCarthy.

Based on our review of the medical records and the record testimony of the physicians, we cannot say that the OWCJ was manifestly erroneous/clearly wrong in finding that further surgery was not necessary.

Accordingly, for the reasons set forth herein, we affirm the judgment of the OWCJ.

AFFIRMED


source: Caselaw Access Project

author: CHANDLER, Justice,

license: Public Domain

text:
    Norma SLATER-MOORE v. Christian T. GOELDNER, Paige Ann McDowell and The Goeldner Law Firm Professional Corporation, f/k/a Goeldner & Gill, Attorneys at Law, Professional Corporation, f/k/a Goeldner, McDowell, Abbott & Gill, Attorneys at Law, Professional Corporation, f/k/a Goeldner, Porter & McDowell, Attorneys at Law, Professional Corporation, f/k/a Goeldner and Walsh, Attorneys at Law, Professional Association.
    No. 2012-CA-00145-SCT.
    Supreme Court of Mississippi.
    April 11, 2013.
    Rehearing Denied June 6, 2013.
    See also 46 So.3d 375.

      John B. Gillis, Oxford, attorney for appellant.
    Steven James Griffin, Flowood, J. Wyatt Hazard, Jackson, attorneys for appellees.
    Before RANDOLPH, P.J., LAMAR and CHANDLER, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. Norma Slater-Moore hired the Go-eldner Law Firm and its various attorneys to represent her in what ultimately was an unsuccessful lawsuit and its appeal. Slater-Moore and Goeldner entered into two separate contracts during the course of that litigation, both containing nearly identical provisions stating that any attorney-fee disputes would be submitted to arbitration. Slater-Moore later sued Goeldner for legal malpractice and breach of contract, disputing, among other allegations, the amount she was billed for attorney fees. Goeldner successfully moved the Circuit Court of DeSoto County to compel arbitration of the attorney-fee dispute, and Slater-Moore appeals that decision to this Court. Because we find no grounds for revocation of this valid agreement to arbitrate the fee dispute, we affirm the circuit court’s judgment.

FACTS

¶ 2. In June 2007, Slater-Moore entered into a contract for legal services with Go-eldner to represent her in a claim regarding the purchase of her home. The contract provided details for a mixed flat fee and hourly rate for Goeldner’s legal services. Page two of the contract contained an arbitration provision, which specified the following:

Dispute as to Attorney’s Fees/Collection of Fees.
Should a dispute as to the entitlement or the amount of legal fees arise, the parties agree to submit such a dispute [to] arbitration in accordance with the Mississippi Bar Fee Dispute Resolution Procedure. Any decision shall be final and binding on the parties. Each party shall bear its own costs and attorney’s fees through any such proceeding.

Two paragraphs below the arbitration provision, the contract states in bold-print and all-capital letters: “THIS CONTRACT WAS DISCUSSED IN DETAIL, ALL QUESTIONS ABOUT ITS CONTENT, MEANING AND SCOPE WERE ANSWERED, AND CLIENT ACKNOWLEDGES RECEIPT OF COPY.” Slater-Moore signed directly below this statement.

¶ 3. The trial court entered summary judgment against Slater-Moore in October 2008. That same month, Slater-Moore entered into another legal-services contract with Goeldner to handle her appeal of that decision. This contract contained an arbitration provision nearly identical to the June 2007 contract:

Dispute as to Attorney’s Fees/Collection of Fees.
Should a dispute as to the entitlement or the amount of legal fees arise, the parties agree to submit such a dispute to the Mississippi Bar Fee Dispute Resolution Procedure, whose decision shall be final and binding on the parties. Each party shall bear its own costs and attorney’s fees through any such proceeding.

The October 2008 contract also contained a provision identical to that in the June 2007 contract, stating that the contract had been discussed in detail and that all questions regarding its meaning and scope were answered. The provision was in boldface, in the same size font, and in the same location as in the June 2007 contract. Slater-Moore signed directly below the provision.

¶ 4. After losing her appeal, Slater-Moore sued Goeldner in the Circuit Court of DeSoto County for legal malpractice, also alleging breach of contract, misrepresentation, and bad faith. Further, Slater-Moore claimed that Goeldner had engaged in billing misconduct by billing her legal fees in excess of the mixed flat fee and hourly rates provided for in the contracts. The June 2007 contract had specified an hourly rate of up to $800 per hour for work not covered by the flat fee. It also stated that the flat fees did not cover costs and expenses, which would be billed separately. Slater-Moore seeks damages and a refund of the amount she previously paid Goeldner, including the retainer fee, administrative costs, and attorney fees paid under the June 2007 contract. Slater-Moore’s actual damages sought total $131,-655,61.

¶ 5. Goeldner filed a motion to compel arbitration of the claims regarding excessive or improper legal fees. On January 3, 2012, the circuit court granted the motion, finding that a valid arbitration agreement existed as to the fee dispute between the parties and that the Mississippi Bar Fee Dispute Resolution Committee was the appropriate arbitral forum for the fee dispute. The trial court reasoned that Slater-Moore had the burden to show she was excused from the arbitration agreement and that she did not meet that burden. In addition, the court stated that Slater-Moore’s remaining claims regarding legal malpractice, tortious conduct, and punitive damages would be litigated in circuit court if not arbitrable by the Mississippi Bar. Slater-Moore sought interlocutory appeal from the trial court’s order, and we determined her interlocutory appeal actually constituted a direct appeal and that her petition would be treated as a notice of direct appeal.

STANDARD OF REVIEW

¶ 6. We review the grant or denial of a motion to compel arbitration de novo. East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (Miss.2002). Our sole function is to determine whether the claim is referable to arbitration. Terminix Int’l, Inc. v. Rice, 904 So.2d 1051, 1054-55 (Miss.2004) (citation omitted). We will not consider or weigh the merits of the dispute itself. IP Timberlands Operating Co., Ltd. v. Denmiss Corp., 726 So.2d 96, 108 (Miss.1998).

DISCUSSION

¶ 7. “We recognize that the use of arbitration to resolve disputes finds favor under federal and state law.” Covenant Health & Rehab, of Picayune, LP v. Estate of Moulds, 14 So.3d 695, 698 (Miss. 2009). Mississippi Code Section 11-15-1 allows competent parties to submit an existing dispute to an arbitrator. Miss.Code Ann. § 11-15-1 (Rev.2004). Moreover, in IP Timberlands, we overturned our prior cases holding that predispute arbitration clauses are unenforceable and “expressly state[d] that this Court will respect the right of an individual or an entity to agree in advance of a dispute to arbitration or other alternative dispute resolution. IP Timberlands, 726 So.2d at 103-04. Therefore, “[a]rticles of agreement to arbitrate, and awards thereon are to be liberally construed so as to encourage the settlement of disputes and the prevention of litigation, and every reasonable presumption will be indulged in favor of the validity of arbitration proceedings.” Id. at 106 (quoting Hutto v. Jordan, 204 Miss. 30, 42, 36 So.2d 809, 812 (1948)).

¶ 8. The Federal Arbitration Act governs the enforcement of arbitration contracts that evidence a transaction in interstate commerce. Id. at 107. In the present case, the Circuit Court found that the Federal Arbitration Act did not apply because the contracts did not affect interstate commerce. Since the IP Timber-lands decision, we have not had an opportunity to determine the enforceability of a predispute arbitration agreement that did not in some way involve interstate commerce. However, in University Nursing Associates, PLLC v. Phillips, we decided whether a party had waived its right to arbitrate a dispute arising from such a contract. University Nursing Associates, PLLC v. Phillips, 842 So.2d 1270 (Miss. 2008). We chose to “follow the case law which interprets the Act because the case law is based on sound principles which are easily transferable to non-interstate commerce litigation.” Id. at 1276 n. 6. We adopt the same approach in this case, and will follow the caselaw interpreting the Federal Arbitration Act to determine whether a contract that does not involve interstate commerce may be enforced.

¶ 9. Cases decided under the Federal Arbitration Act require a two-prong inquiry for analyzing a motion to compel arbitration: (1) “whether the parties intended to arbitrate the dispute,” and if so, (2) “whether legal constraints external to the parties’ agreement foreclosed the arbitration of those claims.” Scruggs v. Wyatt, 60 So.Bd 758, 766 (Miss.2011) (quoting Qualcomm Inc. v. Am. Wireless License Group, 980 So.2d 261, 268 (Miss. 2007)). In assessing the first prong, we first must determine whether there was a valid arbitration agreement, and then we must consider whether the dispute falls within the scope of that agreement. Scruggs, 60 So.3d at 766. Under the second prong, we will consider arbitration agreements to be “valid, irrevocable, and enforceable,” unless we determine that the contract is revocable “upon such grounds as exist at law or in equity for the revocation of any contract.” Id. at 776-77 (quoting Terminus Int’l, Inc. v. Rice, 904 So.2d 1051,1055 (Miss.2004)).

I. Whether the June 2007 and October 2008 arbitration agreements were valid and enforceable.

A. June 2007 Contract

¶ 10. Arbitration provisions and awards should “be liberally construed so as to encourage the settlement of disputes and the prevention of litigation, and every reasonable presumption will be indulged in favor of the validity of arbitration proceedings.” IP Timberlands, 726 So.2d at 106 (citation omitted).

¶ 11. Slater-Moore claims that the arbitration provision is unenforceable because neither a representative for the defendants nor any of the defendants signed the contract. A fundamental principle of contract law is that the mutuality of assent to the terms of a contract may be shown by the acts or conduct of the parties where a signature is lacking. See Turney v. Marion County Bd. of Educ., 481 So.2d 770, 774 (Miss.1985). It is undisputed that Goeldner drafted the contract. Slater-Moore signed on the last page of the two-page contract, directly above the typed name of the Goeldner firm. Further, after the contract was signed,- the parties proceeded with legal representation in accordance with the terms of the' contract through discovery, mediation, and pretrial motions. During this time, Slater-Moore paid Goeldner for its legal services. The parties’ actions make it clear that they intended to be bound by the terms of the written agreement.

¶ 12. Slater-Moore mistakenly relies on this Court’s decision in Byrd v. Simmons, 5 So.3d 384 (Miss.2009), to show that the arbitration agreement lacked mutual assent and is therefore invalid. She also argues that the arbitration agreement should be considered separately from the rest of the 2007 legal-services contract. In Byrd, we held that an arbitration agreement lacked mutual assent because the nursing home admitted that the plaintiff did not have an authorized representative sign the arbitration agreement. Id. at 389. We also found that the arbitration agreement in that case was a completely separate agreement from the admissions agreement. Id. Unlike in Byrd, however, Slater-Moore actually signed the two-page contract for legal services containing the arbitration provision on the second page. Slater-Moore’s argument is without merit.

¶ 13. Further contesting the validity of the arbitration clause, Slater-Moore also argues that the Mississippi Bar is an inappropriate forum because there is no post-dispute agreement to arbitrate. Slater-Moore relies on this Court’s decision in Magnolia Healthcare, Inc. v. Barnes, 994 So.2d 159 (Miss.2008). However, in Barnes, the contract containing the arbitration agreement stated that any disputes “shall be resolved exclusively by binding arbitration ... in accordance with the American Health Lawyers Association Alternative Dispute Resolution Service Rules of Procedure for Arbitration, which are hereby incorporated into this agreement.” Barnes, 994 So.2d at 161 (emphasis added). The rules of the American Healthcare Lawyers Association Alternative Dispute Resolution Service stated that no claims arising on or after January 1, 2004, would be arbitrated unless “all of the parties have agreed in writing to arbitrate the claim after the injury has occurred and a copy of the agreement is received by the Service.” Id. at 161. Because the parties did not agree to arbitrate after the injury, which occurred after January 1, 2004, we held that the contract did not operate as a valid arbitration agreement. Id. at 162.

¶ 14. The rules of the Mississippi Bar Fee Dispute Procedure do require both parties to sign, after a dispute arises, a “consent to Mediation or Binding Arbitration form” or else “the matter shall be closed because of lack of jurisdiction.” However, the arbitration agreement Slater-Moore signed states that if a fee dispute arises, “the parties agree to submit such a dispute [to] arbitration in accordance with the rules of the Mississippi Bar Fee Dispute Resolution Procedure.” When Slater-Moore signed the representation contract, she actually agreed to follow the procedure for submitting a fee dispute to the Mississippi Bar — that is, to sign the required consent form. There is no reason this Court should not compel a party to submit a post-contract dispute to arbitration if a valid arbitration agreement so requires. Because Slater-Moore and Goeldner entered into a binding contractual agreement to submit fee disputes before the Mississippi Bar for arbitration, Slater-Moore must comply with the circuit court’s order that she do so.

¶ 15. Finally, Slater-Moore says the arbitration provision is unenforceable because it does not contain the word “exclusive” and therefore constitutes a permissive forum-selection clause. We have held that forum-selection clauses are “presumptively valid and enforceable,” and that the resisting party has the burden of showing that the clause is unreasonable. Long Beach Auto Auction, Inc. v. United Sec. Alliance, Inc., 936 So.2d 351, 355 (Miss. 2006). However, Slater-Moore has failed to cite any legal authority supporting her position that the arbitration agreement operates as an impermissible forum-selection clause. We find no grounds upon which to invalidate the 2007 agreement.

B. October 2008 Contract

¶ 16. In addition to Slater-Moore’s previous arguments regarding the 2007 contract, she also argues that the October 2008 contract is unenforceable because it does not contain the word “arbitration.” However, the provision in the 2008 contract is nearly identical to the provision in the 2007 contract, which included the word “arbitration.” It is in the. same font size as the other paragraphs in the contract and requires disputes on legal fees to be submitted to the Mississippi Bar Fee Dispute Resolution Committee.' Further, the provision states that the committee’s decision will be “final and binding” on both parties. There is no other possible interpretation of the provision, as arbitration is the only fee-dispute resolution service provided by the Mississippi Bar that can be considered “final and binding.” In addition, Slater-Moore signed directly below the provision that stated she had discussed the contract in detail with her attorneys and that all questions about its content, meaning and scope were answered. This provision is unambiguous and should be construed as written. Whit-tington v. Whittington, 608 So.2d 1274, 1278 (Miss.1992).

¶ 17. The. arbitration agreements in both the 2007 and 2008 contracts were valid, and we must now look to whether the parties’ dispute falls within the scope of the arbitration agreements.

II. Whether Slater-Moore’s claims regarding excessive or improper legal fees fall within the scope of the arbitration agreements.

¶ 18. All doubts concerning the scope of arbitrable issues, the construction of the contract language, and asserted defenses to arbitration must be resolved in favor of arbitration. MS Credit Ctr., Inc. v. Horton, 926 So.2d 167, 175 (Miss.2006). Slater-Moore argues that there is no fee dispute at issue. We disagree. Although Slater-Moore’s complaint raises claims of legal malpractice, she specifically challenges the amount Goeldner charged for its legal services, which falls within the scope of the arbitration' provisions. She says that she should not have been charged more than $10,000 under the June 2007 contract and that Goeldner engaged in misconduct by charging more than that amount. The fee dispute in this case is clear — Slater-Moore’s complaint alleges that she was charged excessive or improper legal fees in the construction-defect litigation. Therefore, Slater-Moore’s argument that there is no fee dispute is without merit.

¶ 19. Slater-Moore also attempts to avoid the arbitration provision in regard to the fee dispute by stating that she also brought claims for breach of contract, deceit, misrepresentation, and bad faith, none of which is arbitrable in the present case. Specifically, she argues that, because those claims do not fall within the scope of the agreements, she should not be forced to arbitrate her claim regarding Goeldner’s alleged excessive legal fees. This argument is puzzling, as the trial court clearly explained in its order that Goeldner was “entitled to arbitration of the fee dispute and the fee dispute only.” The fact that Slater-Moore’s other claims fall outside thé scope of the arbitration provisions does not take the fee dispute outside the scope of the agreement.

¶ 20. Slater-Moore relies on Rogers-Dabbs Chevrolet-Hummer, Inc. v. Blake-ney, 950 So.2d 170 (Miss.2007), and argues that she could not have agreed to arbitrate fraud claims. This argument also is misplaced. Blakeney involved a civil-fraud claim against a car dealership and involved the use of personal and corporate identities to engage in criminal activity unrelated to the purchase agreement at issue. Id. at 172. We affirmed the trial court’s decision to sever the nonarbitrable civil-fraud claims from those which were arbi-trable. Id. at 178. The same principle is applicable in the present ease. The trial court ordered arbitration of only the fee dispute, which clearly falls within the scope of the arbitration provisions. The agreement does not require the non-fee-dispute claims to be submitted to arbitration, and Slater-Moore is free to pursue those claims through the courts.

¶ 21. Because there is a valid arbitration agreement regarding the fee dispute and the fee-dispute allegations fall within the scope of that agreement, the first prong of the FAA has been satisfied.

III. Whether external legal constraints prevented enforcement of the arbitration agreements.

¶ 22. After analyzing whether the parties intended to arbitrate, this Court must determine “whether legal constraints external to the parties’ agreement foreclosed the arbitration of those claims.” Scruggs, 60 So.3d at 766 (citations omitted). Slater-Moore must demonstrate that the arbitration agreement is revocable “upon such grounds as exist at law or in equity for the revocation of any contract.” Ter-minix Int’l, 904 So.2d at 1055.

¶ 23. Slater-Moore argues that the requirements of the arbitration agreements in the contracts are procedurally unconscionable. This Court has defined unconscionability as “ ‘an absence of meaningful choice on the part of one of the parties, together with contract terms which are unreasonably favorable to the other party.’” Cleveland v. Mann, 942 So.2d 108, 114 (Miss.2006) (quoting East Ford, 826 So.2d at 715). To prevail on a claim of procedural unconscionability, Slater-Moore must show “a lack of knowledge, lack of voluntariness, inconspicuous print, the use of complex legalistic language, disparity in sophistication or bargaining power of the parties and/or a lack of opportunity to study the contract and inquire about the contract terms.” Id. (quoting East Ford, 826 So.2d at 714).

¶ 24. The facts in Terminix are very similar to the present case. There, the plaintiffs said that the contract at issue was procedurally unconscionable because they were unaware of the arbitration clause in the contract and also unaware of its meaning. Terminix Int’l, 904 So.2d at 1055. We rejected plaintiffs’ argument, stating that the contract was only two pages long, and that the arbitration clause appeared under its own subheading in bold capital letters. Id. at 1056-57. Further, we stated that there was no evidence that the plaintiffs lacked an opportunity to inquire about the terms of the contract. Id.

¶ 25. Slater-Moore has shown no evidence that she was unaware of the terms of the agreement or that she was not allowed the opportunity to discuss the terns of the contracts before signing them. In fact, her signature is located directly below the following clauses in both contracts: “THIS CONTRACT WAS DISCUSSED IN DETAIL, ALL QUESTIONS ABOUT ITS CONTENT, MEANING AND SCOPE WERE ANSWERED, AND CLIENT ACKNOWLEDGES RECEIPT OF COPY.” Under Mississippi law, “a contracting party is under a legal obligation to read a contract before signing it” and will be charged with knowing the contract’s contents. Terminix Int’l, 904 So.2d at 1056. We find no procedural unconscionability in this contract.

¶ 26. In the alternative, Slater-Moore asks this Court to adopt a rule that arbitration agreements in attorney-client contracts are per se improper. In doing so, Slater-Moore refers to Mississippi Rule of Professional Conduct 1.8(h), which states that a lawyer “shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement.” Miss. R. Profl Conduct R. 1.8(h). Slater-Moore specifically argues that a lawyer should not be allowed to use an arbitration provision as a mechanism to avoid a jury trial when sued for breach of contract. However, that is not the issue in the present case. There are no limitations on Slater-Moore’s damages or in her filing of claims. The trial court reserved the right to hear the claims involving punitive damages, tortious conduct, and breach of contract. Therefore, Slater-Moore is required to arbitrate only her claims regarding Goeldner’s alleged excessive or improper legal fees, not her malpractice claims.

¶27. Slater-Moore acknowledges that the American Bar Association has stated that predispute arbitration agreements in attorney-client contracts are appropriate as long as the attorney complies with his fiduciary duty under ABA Rule 1.4(b). The rules require the attorney to give the client an adequate explanation by disclosing the advantages and disadvantages of arbitration. ABA Model Rules of Profl Conduct R. 1.4. (2012). Slater-Moore’s signature is on page two of the two-page contract, directly below a clause stating that the contract was discussed in detail. The arbitration provision also is on page two of the contract. There is no evidence that Goeldner breached his fiduciary duty to explain the arbitration agreement.

¶28. Further, the comments to ABA Rule 1.5 state the following in regard to disputes over fees:

If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by the bar, the lawyer must comply with the procedure when it is mandatory, and, even when it is voluntary, the lawyer should conscientiously consider submitting to it. Law may prescribe a procedure for determining a lawyer’s fee, for example, in representation of an executor or administrator, a class or a person entitled to a reasonable fee as part of the measure of damages. The lawyer entitled to such a fee and a lawyer representing another party concerned with the fee should comply with the prescribed procedure.

ABA Model Rules of Profl Conduct R. 1.5. cmt. (2012). The Mississippi Bar has established the Mississippi Bar Fee Dispute Resolution Committee as a forum for fee disputes such as this one. In Pre-Paid Legal Services, Inc. v. Battle, we upheld an arbitration agreement between the plaintiff and a defendant legal-services company. Pre-Paid Legal Services, Inc. v. Battle, 873 So.2d 79, 82 (Miss.2004). The Mississippi statute permitting prepaid legal-expense agreements allows for such agreements as long as they contain “[a] statement describing a procedure for settling disputes between or among the sponsor, paHicipating or staff attorneys, and the subscribers.” Id. at 82. (citing Miss. Code Ann. § 83^49-13(2)(f)) (emphasis added). We further noted that individuals and entities have the right to “agree in advance of a dispute to arbitration or other alternative dispute resolution.” Id. (citation omitted). The agreement is not unethical and we decline to adopt the per se rule Slater-Moore would have us apply.

¶ 29. The arbitration provisions are not procedurally unconscionable, and we find no external legal constraints which foreclose the arbitration of the fee dispute. Because the requirements of the two-prong test have been met, we affirm the trial court’s order compelling arbitration.

¶ 30. Finally, Slater-Moore also argues that, assuming there was a valid arbitration agreement, she should be able to revoke the arbitration provision contained in the legal-services contract because she explicitly revoked the arbitration option through her suit against Goeldner and her response to the motion for arbitration. We again emphasize our decision in IP Timberlands which removed any uncertainty surrounding an individual’s choice to arbitrate, stating “that this Court will respect the right of an individual or an entity to agree in advance of a dispute to arbitration or other alternative dispute resolution.” IP Timberlands, 726 So.2d at 104. As a result, this Court rejected the line of caselaw allowing a contracting party to revoke an arbitration agreement if it did so before an award was made. Id. Slater-Moore is bound by her decision to arbitrate the fee dispute with Goeldner.

CONCLUSION

¶ 31. The legal-services contracts contain valid and enforceable arbitration agreements as to all disputes regarding legal fees. • Slater-Moore’s claims regarding excessive or improper legal fees fall within the scope of the arbitration agreements, and there are no external legal constraints that preclude enforcement of the arbitration provisions. We affirm the trial court’s order compelling arbitration of the fee dispute.

¶ 32. AFFIRMED.

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

      . The lawsuit was filed in DeSoto County Circuit Court, styled Slater-Moore v. Bailey, et at, Civil Action No. CV07-0170 C/D.

      . Moore v. Bailey, 46 So.3d 375 (Miss.Ct.App.2010).

      . Slater-Moore has paid only a portion of the amount billed in the June 2007 contract. The October 2008 contract required an initial payment of $3,500 to cover the costs of the appeal and an outstanding balance to the mediator. In regard to the October 2008 contract, Goeldner argues that Slater-Moore has paid only $2,215.05 toward the bills for her legal fees and still has a large outstanding amount due.

      . The Mississippi Bar, Fee Dispute Resolution Committee Rules of Procedure, http://www. msbar.org/media/247468/42b.pdf (last visited April 9, 2013).


author: COLEMAN, Justice, KITCHENS, Justice,

text:
    Kevin G. CLARK v. William E. KNESAL d/b/a Bill Knesal, Contractor and David Leva d/b/a David Leva Stucco.
    No. 2011-CA-01197-SCT.
    Supreme Court of Mississippi.
    May 16, 2013.

      Robert C. Williamson, Jr., Jackson, attorney for appellant.
    Scott Corlew, Pascagoula, Vincent J. Castigliola, Jr., Jim Davis, attorneys for appellee.
   COLEMAN, Justice,

for the Court:

¶ 1. The case at bar is the result of more than fifteen years of litigation pertaining to a contract dispute regarding the construction of Kevin Clark’s house. During the litigation, the contractor and counter-plaintiff, William Knesal, died. His defense attorney, provided to him by his insurance company upon commencement of the suit, filed a suggestion of death in the deceased’s name. When no substitution motion was filed within the prescribed ninety-day period, Knesal’s attorney moved to dismiss. Knesal filed the appropriate motion for substitution well after the mandatory ninety-day period, asserting that Knesal’s attorney had no standing to submit a suggestion of death and that, additionally, he never received proper notice of the filing until the motion to dismiss was served. The trial court dismissed the action, and Clark appealed. We are asked to determine who may file a suggestion of death with the trial court and what circumstances surrounding a failure to file an appropriate substitution motion within the statutory period constitute “excusable neglect.”

Facts and Procedural History

¶ 2. Kevin Clark hired William Knesal to construct a home in Harrison County in 1995. In 1996, Knesal sued Clark for $89,337, alleging nonpayment for the work performed. Clark then filed a counterclaim for damages, alleging that Knesal’s work was incomplete and defective. In response to the counterclaim, Knesal filed indemnity claims against several subcontractors who also performed work on Clark’s home. Tim Holleman represented Knesal in his claims against Clark, but Knesal’s insurance company had retained Vincent Castigliola and Scott Corlew of Bryan, Nelson, Schroeder & Banahan to defend Clark’s counterclaims. In August 2000, most of the circuit court proceedings were stayed when one of the third-party defendants, Reliant Building Products, Inc. (“Reliant”), filed for bankruptcy. Matters that were not adverse to Reliant were permitted to proceed.

¶ 3. On October 1, 2008, Knesal died intestate. On November 20 of that year, a hearing was held on Clark’s motion to lift the stay and for a scheduling order. At the hearing, counsel for Clark, Robert Williamson, reported that the two sides had discussed terms and conditions of a possible settlement. Participants in the settlement discussions included Holleman, Cas-tigliola, and Scott Corlew.

¶4. No further action was taken until nearly ten months later on September 11, 2009, when Corlew filed a suggestion of Knesal’s death on the record. The suggestion was properly served on all parties, including Williamson, a solo practitioner at the time, who was out of town on a two-month sabbatical. According to Williamson, he had set up a system in his home office to handle all the mail his practice would receive when he was gone by which letters and correspondence were scanned and e-mailed to him daily by a legal assistant. Here, the system failed him, and he did not become aware that the suggestion of death had been filed. On April 20, 2010, seven months after the filing of the suggestion of death, Corlew filed a motion to dismiss the case against Knesal. Williamson maintains he did not know the suggestion of death had been filed until Corlew filed the motion to dismiss.

¶ 5. On May 18, 2010, Clark filed a petition to open Knesal’s estate in the Harrison County Chancery Court. The petition was granted on June 9, 2010, issuing general letters of administration of Knesal’s estate to the Harrison County administrator, John G. McDonnell. McDonnell was authorized to administer all “the goods and chattels, rights and credits” of Knesal. On August 4, 2010, Clark filed an amended motion in the circuit court case to substitute parties, requesting McDonnell, as administrator of Knesal’s estate, be substituted for Knesal. Following a hearing on the motion to dismiss and the motion to substitute, the trial court granted the motion to dismiss in July 2011. The court held Clark’s motion to substitute was untimely, and that Knesal’s attorney of record had authority to file a suggestion of death on Knesal’s behalf. The order dismissing the case is the subject of the present appeal.

Discussion

I. Whether the filing of the suggestion of death triggered the ninety-day period for substitution under Rule 25 when: (1) the suggestion did not identify Knesal’s successors or representative; (2) the suggestion was not served on Knesal’s successors or representative; and (3) Knesal’s attorneys who represented him at his death filed the suggestion of death.

¶ 6. Mississippi Rule of Civil Procedure 25(a)(1) governs the procedure for substitution in the event of a party’s death:

If a party dies and the claim is not thereby extinguished, the court shall, upon motion, order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of summons. The action shall be dismissed without prejudice as to the deceased party if the motion for substitution is not made within ninety days after the death is suggested upon the record by service of a statement of the fact of the death as herein provided for the service of the motion.

M.R.C.P. 25(a)(1) (emphasis added). The rule is similar to Federal Rule of Civil Procedure 25(a) as it was amended in 1963. Clark cites many federal eases which support his view that the suggestion of death must identify potential heirs or representatives, that it must be served on those potential heirs and representatives, and that the attorneys for the deceased may not file the suggestion of death.

A. Whether the suggestion of death is sufficient to trigger the ninetg-dag period for substitution if it does not identifg any successors or representatives to be substituted.

¶ 7. Clark first argues that the suggestion of death was improper because it did not identify the successor or representative for Knesal, nor was it served on his successor or representative. We have never before addressed this question directly. However, given that our rules are patterned on those of the federal government, it is therefore proper for us to look to the federal courts for guidance on this question of interpretation. See Hood ex rel. State Tobacco Litigation, 958 So.2d 790 (Miss.2007); Shaw v. Shaw, 603 So.2d 287 (Miss.1992). Generally, under the Federal Rules of Civil Procedure, “[t]he statement noting the death must be in writing and identify the representatives to be substituted, and it must be served on the parties ... and upon persons not parties in the manner provided in Rule 4 for the service of a summons.” 7C Wright & Miller, Federal Practice and Procedure § 1955 (2008) (emphasis added).

¶ 8. In actuality, the federal courts are divided on the question. The Circuit Court for the District of Columbia found that allowing a suggestion to be filed by the defendant which did not identify the successors or representatives “would open the door to a tactical maneuver to place upon the plaintiff the burden of locating the representative of the estate within 90 days.” Rende v. Kay, 415 F.2d 983, 986 (D.C.Cir.1969) (“No injustice results from the requirement that a suggestion of death identify the representative or successor of an estate who may be substituted as a party for the deceased.”). Several courts have found that failure to identify the deceased’s successors or representatives in the suggestion of death rendered the suggestion insufficient to trigger the ninety-day time period for substitution. See Al-Jundi v. Rockefeller, 88 F.R.D. 244, 246-47 (D.C.N.Y.1980); see also Smith v. Planas, 151 F.R.D. 547, 549 (S.D.N.Y.1993); Hardy v. Kaszycki & Sons Contractors, Inc., 842 F.Supp. 713, 716 (S.D.N.Y.1993).

¶ 9. Conversely, the Second Circuit Court of Appeals has explicitly disagreed with that interpretation and found that no such requirement exists. Unicom Tales, Inc. v. Banerjee, 138 F.3d 467 (2d Cir. 1998). The Unicom Tales court held that it was unnecessary to identify the successors or representatives of the decedent in the suggestion of death because the language of the rule said nothing about such an identification and was thus sufficient to trigger the ninety-day period. Id. at 470. This interpretation has been embraced by the Fifth Circuit. See Ray v. Koester, 85 Fed.Appx. 983, 984 (5th Cir.2004) (cited in Keller v. Bennett, 103 So.3d 747, 753 (¶ 24) (Miss.Ct.App.2012)).

¶ 10. We find the reasoning of the Unicom Tales and Ray courts to be persuasive. Like the federal rule, the language of our rule makes no mention of a requirement to identify the successor or representative of the decedent in the suggestion of death. Nothing in the rule mandates including that information. The Rende court was concerned that a party could file the suggestion and place the burden on the opposition to find the successors or representatives within ninety days, but we agree with the Second Circuit that Rule 6(b), allowing enlargement of a prescribed procedural time limit, acts as an effective safeguard for any unfortunate party who cannot identify the successor or representative to be substituted for the decedent within ninety days.

¶ 11. Accordingly, we hold that no identification of the successors or representatives of the decedent is required and affirm the trial court’s determination that failure to identify the successors or representatives of Knesal’s estate did not toll the ninety-day time period for substitution.

1. Whether the suggestion of death was sufficient to trigger the ninetg-day period for substitution if it was not served on the non-party successors or representatives of the estate.

¶ 12. “The motion for substitution ... shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of summons.... [T]he death is suggested upon the record by service of a statement of the fact of death as herein provided for the service of the motion.” M.R.C.P. 25(a)(1). The language clearly requires service of the suggestion of death be made in the same manner that the rule mandates for service of the motion to substitute. The rule is unclear, however, as to which nonparties, if any, must be subjected to Rule 4 service of a suggestion of death. It is important that, in the case sub judice, Knesal’s heirs did not open an estate for him and no estate existed until well after the motion to dismiss was filed by Knesal’s attorneys. When the estate was opened, it was opened by Clark — not by Knesal’s heirs.

¶ 13. The Court dealt with the issue of service of a suggestion of death on a non-party in Hurst v. Sw. Miss. Legal Sens. Corp., 610 So.2d 374, 386 (Miss.1992), overruled on other grounds by Rains v. Gardner, 731 So.2d 1192 (Miss.1999). In Hurst, one of the plaintiffs, Josie Connerly, died during litigation. Hurst, 610 So.2d at 385. Southwest, one of the defendants, promptly filed a suggestion of death on the record and served it on the attorney for the plaintiffs. Id. An executrix was named for Connerly’s estate, and the plaintiffs attorney was retained to represent the estate. Id. Ninety-two days later, after no motion for substitution had been filed, Southwest moved to dismiss Connerly as a party. Id. The plaintiffs filed a motion for extension of time to file a substitution for Connerly’s estate, which the trial court granted, allowing the estate to be substituted and denying Southwest’s motion to dismiss Connerly as a party. Id. This Court held that the ninety-day period for substitution was never triggered because the executrix of Con-nerly’s estate, an interested nonparty moving for substitution, was never served properly with the suggestion of death as a nonparty under Rule 4. Id. at 386.

¶ 14. Hurst does not aid Clark, however, for the simple reason that in the instant case there existed no estate upon which or personal representative upon whom the suggestion of death could have been served. The record contains an affidavit from one of Knesal’s attorneys, wherein he avers that Knesal’s surviving family members had no desire to open an estate or to continue pursuing Knesal’s claims against Clark. Well after the motion to dismiss was filed, Clark acted through counsel to open an estate adversely, but — again—the estate was not in existence during the relevant time period. No court possesses so much authority as to be able to command a party to serve a nonexistent person or entity.

¶ 15. Our holding in the instant case comports with the recent holding of the Mississippi Court of Appeals in Keller v. Bennett, 103 So.3d 747 (Miss.Ct.App. 2012). Keller sued Bennett and Bennett’s daughter Clara Larish after Bennett struck Keller while driving Larish’s car. Id. at 749 (¶ 4). Bennett died while litigation was pending, and his counsel, who also represented Larish, filed a suggestion of death on the defendants’ behalf. Id. Keller did not move to substitute within ninety days, and defendants’ attorney moved to dismiss Bennett. Id. at 750 (¶ 5). Keller did not move for leave to file a motion for substitution until a year after the motion to dismiss had been filed. Id. at (¶ 6). The court denied the motion as untimely and granted the motion to dismiss Bennett. Id.

¶ 16. On appeal, Keller argued the ninety-day period never began to run because the executor of Bennett’s estate was never served under Rule 4 as a nonparty and Rule 25 mandates service of such a nonparty. Id. at 751 (¶¶ 11-15). The Court of Appeals held that the plain language of Rule 25 does not mandate a particular category of nonparties that must be served with the suggestion of death to trigger the ninety-day period. Id. at 751-21 (¶ 16). “¡TJnstead of judicially creating a category of non-parties that must be served in every case where death is formally suggested, we instead consider whose rights are being cut off by the ninety-day limit.” Id. at 751 (¶ 13). The Hurst Court properly distinguished between parties, such as Clark in the case sub judice, and interested nonparties, such as the estate in Hurst. Id. at 751 (¶ 14). Because Keller — like Clark in the instant case — was a party, Rule 5 service on his attorney was sufficient to trigger the time period, and no Rule 4 service on any non-party was necessary because no party’s rights were affected. Id.

¶ 17. The case sub judice presents the same issue as to service of the suggestion of death as in Keller. The estate of Knesal had not been opened until Clark’s counsel petitioned the chancery court on May 13, 2010 — more than one and a half years after Knesal’s death. Knesal’s successors had no interest in pursuing his claim. Moreover, Clark’s rights regarding the motion for substitution were not affected by the failure to serve Knesal’s successors. Accordingly, service was not mandatory, and the Rule 5 service executed upon Clark’s attorney was sufficient to trigger the ninety-day time period. Clark himself was properly served through his attorney of record, and he fails to demonstrate any prejudice or harm resulting from the failure to serve any other person or entity.

2. Whether the ninety-day time limit was trigyered when the suggestion of death was filed in the name of Knesal rather than his successor by one of Knesal’s attorneys of record who had not been retained to represent his successors or estate.

¶ 18. Clark argues that Knesal’s attorney was not a proper representative of the decedent because, as a result of Knesal’s death, he no longer had the authority to act on Knesal’s behalf. Rule 25, however, places no limits on who may properly file the suggestion of death. Some courts and commentators have concluded that counsel for the decedent does not have the authority to make the suggestion of death.

[T]he attorney for the deceased party may not make the statement noting the death since the attorney is not a party to the action and, since the attorney’s authority to represent the deceased terminated on the death, the attorney is not a representative of the decedent of the sort contemplated in the rule.

7C Wright & Miller, Federal Practice and Procedure § 1955 (2008).

¶ 19. However, the plain language of Rule 25 requires no authority to act on behalf of the decedent because there is no limitation in the Rule on who may file the suggestion of death. “[T]he death is suggested upon the record by service of a statement of the fact of the death.... ” M.R.C.P. 25(a)(1). Since the rule is silent as to who may file the suggestion of death, an attorney may file the suggestion for a deceased client. The dissent’s concern regarding the dismissal of Knesal’s claims against Dr. Clark and intimation that the deceased Knesal was somehow betrayed by his defense attorneys have no foundation in the record. There is no evidence in the record that Knesal’s heirs had any interest in continuing to pursue his claims against Dr. Clark. To the contrary, the record indicates the heirs had no interest in pursuing his claims. No heir or representative of Knesal’s estate has appeared to protest the dismissal.

¶ 20. The Second Circuit in Unicom Tales came to this same conclusion. “[T]he text of [federal] Rule 25(a)(1) contains no such restriction on who may file the statement [of the fact of death].” Uni-com Tales, 188 F.3d at 470. Again, in Keller v. Bennett, the Mississippi Court of Appeals held that “the express language of Rule 25(a)(1) does not restrict who may suggest death upon the record,” and held that the attorney for the decedent was permitted to suggest the death on the record. Keller, 103 So.3d at 752 (¶ 20).

¶ 21. We are further persuaded by the fact that the sentence preceding the description of the suggestion of death in Rule 25(a)(1), discussing the procedure for filing a motion for substitution, is very specific about who may make such a motion. To explain in detail who may move for substitution, and then to remain silent as to who may file the suggestion of death, suggests the intent to leave the latter unrestricted. Accordingly, we affirm the trial court’s determination that Knesal’s attorney could file the suggestion of death on the record.

II. Whether Knesal’s attorney had standing to file a motion to dismiss.

¶ 22. Eight months after the suggestion of death was filed, one of Knesal’s attorneys moved to dismiss Knesal as a party and to dismiss the case. Clark argues this was done long after any authority existed between Knesal and his attorneys, and that Knesal’s counsel had no standing or authority to make the motion to dismiss. However, Rule 25 does not require a motion to dismiss to be filed, nor does it limit who may file such a motion if one is filed.

¶ 23. Accordingly, the trial court had the authority to dismiss the case. The rule states that “[t]he action shall be dismissed without prejudice as to the deceased party if the motion for substitution is not made within ninety days after the death is suggested upon the record.” M.R.C.P. 25(a)(1). Given that the dismissal is not contingent upon the filing of a motion, the court acted in accordance with Rule 25 when it dismissed Knesal.

III. Whether the trial court erred in holding that the Rule 25(a) dismissal was mandatory after the ninety-day time period for moving for substitution had lapsed.

¶ 24. In its order granting the motion to dismiss, the trial court stated:

Dr. Clark also argues that “as stated in the comments to the Rule, dismissal is not mandatory.” Upon review of the language of Mississippi Rule of Civil Procedure 25 and the comments to Rule 25, the Court finds that Rule 25 provides that “the action shall be dismissed without prejudice as to the deceased party” if no motion for substitution is made within ninety days, and the Comment to Rule 25 clearly says that “as the rule states, the action will be dismissed without prejudice if a motion for substitution is not made within ninety days of the suggestion of death on the record.”

¶ 25. The order then granted the motion to dismiss without addressing Clark’s claims of excusable neglect or extension of time. Clark argues that the trial court erred by determining that the language of Rule 25 and its comment mandated dismissal after the lapse of the ninety-day period.

¶ 26. The trial court’s order did not address the second half of the paragraph quoted in the Comment to Rule 25, which states,

The general provisions of MRCP 6(b) apply to motions to substitute; accordingly, ... the court may allow substitution to be made after the expiration of the ninety day period on a showing that the failure to act earlier was the result of excusable neglect. MRCP 6(b)(2). See 7A Wright & Miller, Federal Practice and Procedure, Civil §§ 1951, 1955 (1972).

M.R.C.P. 25 cmt. Rule 6(b)(2) states that when an act is required to be done within a specific time, a court has the discretion “upon motion made after the expiration of the specified period [to] permit the act to be done where failure to act was the result of excusable neglect.” The comment to Rule 25, along with the language of Rule 6, indicates that a motion for substitution may be granted after the ninety-day period only upon a showing of excusable neglect.

¶ 27. At the hearing, the trial judge evidenced his understanding that the rule did not mandate dismissal if excusable neglect was found. The following exchange between the judge and one of Knesal’s attorneys demonstrates that he considered whether excusable neglect permitted a late filing of the motion to substitute.

Judge: ... Rule 25 says it shall be [dismissed], but if I find there’s excusable neglect, doesn’t that change it from shall to may?
Corlew: ... The comments to Rule 25, which have been approved, state that an extension can be granted for excusable neglect. So if you look at the comments and roll that in, then, yes, sir, I do agree with you.
Judge: So it just is waiting on a finding from me if there was excusable neglect or not?
Corlew: If you use that rationale, yes, Your Honor.

¶ 28. The Court applies an abuse of discretion standard to a trial court’s findings of fact concerning the existence or lack of good cause or excusable neglect. Long v. Mem’l Hosp. at Gulfport, 969 So.2d 35, 38 (¶ 5) (Miss.2007). We will reverse the trial court’s factual determination only when it is not supported by substantial evidence. Id. To the extent that the trial court’s excusable neglect determination involves the interpretation of legal principles, we will conduct a de novo review. Id.

¶ 29. This Court has not previously defined what constitutes excusable neglect in the context of Rule 25, but we have addressed it in the context of Rule 4. As we have held, simple inadvertence, mistake of counsel, or ignorance of the rules usually does not constitute excusable neglect. Stutts v. Miller, 37 So.3d 1, 4 (¶ 9) (Miss.2010); Holmes v. Coast Transit Auth., 815 So.2d 1183, 1186 (¶ 11) (Miss. 2002). Excusable neglect is “a very strict standard.” Webster v. Webster, 834 So.2d 26, 29 (¶ 11) (Miss.2002). Good cause and excusable neglect have been linked inexorably to one another, as a showing of good cause has been said to require at least as much as a showing of excusable neglect. Id. at 28 (¶ 4). In the context of appeals from state agencies, we have written, “Good cause is established when there is sufficient evidence to show that a party failed to receive the mailing due to delays in the mail or because of an act beyond the party’s control.” Several courts have held that a mistakes in handling the mail or otherwise do not constitute excusable neglect. Andrew Bihl Sons, Inc. v. Trembly, 67 Ohio App.3d 664, 667, 588 N.E.2d 172, 173 (1990); Airline Pilots in Service of Executive Airlines, Inc., Counsel No. 2, Union of Prof. Airmen v. Executive Airlines, Inc., 569 F.2d 1174 (1st Cir.1978); Pasquale v. Finch, 418 F.2d 627 (1st Cir. 1969).

¶ 30. At the time the suggestion of death was served in the instant case, counsel for Clark was on a lengthy sabbatical. Although he appears to have put in place a system for having his mail forwarded to him, in this instance, the system failed. Clark was able to plead his case for excusable neglect fully at the hearing on the motion for substitution and dismissal. It is clear from the hearing transcript that the trial court considered whether Clark’s failure to file a timely motion to substitute was the result of excusable neglect. Based on the record and our prior pronouncements concerning excusable neglect and good cause, we cannot conclude the trial court abused its discretion in not finding excusable neglect.

Conclusion

¶ 31. We find that the plain language of Rule 25 permitted Knesal’s attorney to file to suggestion of death without naming Knesal’s successors or representatives. Similarly, there is no requirement under the rule that a motion to dismiss be filed at all prior to dismissal, so the fact that a motion to dismiss was filed by Knesal’s attorneys does not provide grounds to overturn the trial court’s decision. We further find that the trial court did not abuse its discretion when it did not find Clark’s delay in responding to the suggestion of death resulted from excusable neglect. Therefore, the decision of the trial court is affirmed.

¶ 32. AFFIRMED.

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

KITCHENS, Justice,

dissenting:

¶ 33. I disagree with the majority’s holding that the attorneys for William Knesal had the authority to file a suggestion of death or a motion to dismiss on behalf of Knesal. The majority gives short shrift to the fact that Knesal was the original plaintiff in this action, and that he had maintained his claims against Clark for the entirety of the litigation. Because I find that Knesal’s attorneys acted without authority to • dismiss an action that Knesal clearly believed was justified and which Knesal showed every intention of pursuing, I respectfully dissent.

¶ 34. It is not clear what, if any, authority or standing the Bryan Nelson lawyers — Castigliola and Corlew — had to file the suggestion of death as it affected Knesal’s claim against Clark, the filing of which started the ticking of the 90-day clock, during which period the filing of a motion for substitution would have been necessary to avoid the dismissal of Knesal’s case. It goes without saying that the deceased Mr. Knesal did not authorize or direct these lawyers to file the suggestion of his death. At that time, Knesal’s estate had not been opened; so, there was no personal representative (executor or administrator) to direct or authorize the filing of the suggestion of death.

¶ 35. Today, this Court, for the first time, determines who may properly file a suggestion of death, holding that anyone may do so and that the suggestion need not identify or be served upon the successors or representatives of the decedent. Certainly, there are many situations in which this rule would not be prejudicial to anyone involved. It is ironic, then, that the majority chooses to apply such a rule in a situation in which the rights and interests of a decedent are so clearly prejudiced. Mississippi Rule of Civil Procedure 25 requires that the action must be “dismissed without prejudice as to the deceased party....” M.R.C.P. 25(a) (emphasis added). While the dismissal clearly benefitted the insurance company that had hired Knesal’s attorneys by making Clark’s counterclaim go away, it was patently prejudicial to Knesal in at least two significant respects: 1) it extinguished the $89,337 claim that had prompted him to file the suit in the first place, then maintain it for twelve years, and 2) even assuming that the claim could be refiled and litigated, the case lost its position on the crowded docket of the Harrison County Circuit Court. Thus, Rule 25’s requirement that dismissal, if any, be accomplished without prejudice to the deceased party was not satisfied.

¶ 36. This Court provided a thorough analysis of an attorney’s duties to an insured when the attorney was hired by the insurer in Hartford Accident & Indemnity Co. v. Foster, 528 So.2d 255 (Miss.1988). The Court found that there was “no question” that the lawyer owed a duty of “absolute loyalty” to the interests of the insured. Id. at 268. When the interests of an insured and insurer are in conflict, it is the lawyer’s duty to preserve the interests of both clients, and the lawyer “certainly is prohibited from taking any action which may injure either client.” Id. at 270.

¶ 37. By fully dismissing Knesal’s case, including the original cause of action that he himself had gone to the trouble and expense of filing and litigating, his attorneys appear to have disregarded Knesal’s interest in pursuing his claim against Clark, in essence “throwing out the baby with the bath water” in order to .benefit their other client, an insurance company. At the time these actions were taken, the only client Castigliola and Corlew had that was capable of giving them instruction or authorization to take such action was the only one that would benefit from it: the insurance company. Being dead, Mr. Knesal could neither give nor withhold his consent to this strategy, and his administrator had not yet been appointed. While the insurance policy may very well have authorized Castigliola and Corlew to proceed in the manner they did on behalf of the insurance carrier, such action clearly was.prejudicial to the interest of Knesal in the prosecution of his claim against Clark, which he steadfastly had pursued during his lifetime. In my view, these lawyers had no standing or authority to effect the dismissal of that claim, notwithstanding that Knesal did benefit, along with the carrier, from the dismissal of Clark’s counterclaim.

¶ 38. Tim Holleman was the attorney who represented Knesal in his prosecution of his claims against Clark. The record does not indicate that he took any part in the proceedings concerning the suggestion of death and dismissal motion. Interestingly, Scott Corlew’s Certificate of Service attached to the Suggestion of Death indicates that a copy was sent to Mr. Williams as attorney for Clark, to two other lawyers who represented two of the third-party defendants, to Harry Allen as attorney for Hancock Bank, and, finally, to Tim C. Hol-loman [sic], without listing him as anyone’s attorney. It cannot be determined from the record whether Holleman had become inactive in the case, or, more likely, whether he recognized that, with Mr. Knesal in his grave and without an executor or administrator, he was a lawyer without a client. Similarly, when Castigliola filed the motion to dismiss more than eight months later, he certified that he had copied Holleman (spelled correctly this time), but did not note that Holleman represented any party. Significantly, perhaps, both Corlew in his certificate and Castigliola in his motion to dismiss identified themselves as “attorney for the PlaÁnfÁff/Gounter-De-fendant, William E. Knesal. (Emphasis added.) So, they appear to have recognized that they had assumed the role and responsibility of acting for the dead Mr. Knesal in his capacity as plaintiff in the case, and they seemed perfectly comfortable in effecting the dismissal of a $90,000 claim that no one had authorized them to handle.

¶ 89. William Knesal was clearly committed to this lawsuit. He hired a lawyer, instituted the action against Clark and maintained it for the last twelve years of his life, never giving any indication that he was willing for his original claim against Clark to be dismissed. Castigliola and Corlew have never contended that Knesal instructed or authorized them to dismiss his claim against Clark, which involved a substantial amount of money that Knesal clearly had believed he was entitled to collect. The filing of the suggestion of death and the subsequent dismissal of the suit clearly prejudiced Knesal’s interest in pursuing what he thought to be a valid claim. The attorneys who filed it had no authority to do so, and were actively operating against their deceased client’s interests. After Knesal died, his attorneys had a duty of loyalty to protect his interests, and instead acted to protect the interests of another client. Because I find that Knesal’s attorneys had no authority to file the suggestion of death, and that the rules of legal ethics prevented them from doing so, I would reverse the dismissal of the claims between Clark and Knesal and remand for further proceedings. Therefore, I respectfully dissent.

CHANDLER AND KING, JJ., JOIN THIS OPINION.

      . The mandate in Keller was issued on December 11, 2012, and, on January 11, 2013, the Court of Appeals dismissed the appellant’s motion to recall the mandate and for additional time to file a motion for rehearing.


author: KITCHENS, Justice,

text:
    Dondrego BOLTON v. STATE of Mississippi.
    No. 2011-CT-00161-SCT.
    Supreme Court of Mississippi.
    May 16, 2013.

      Office of State Public Defender by Justin Taylor Cook, Leslie S. Lee, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, Scott Stuart, attorneys for appellee.
   KITCHENS, Justice,

for the Court:

¶ 1. Dondrego Bolton was charged with burglary of a dwelling in 2010. He was found guilty in the Circuit. Court of the First Judicial District of Hinds County and sentenced to twenty years in prison. Bolton’s indictment originally charged him with breaking and entering a dwelling with the intent to commit larceny. At trial, the jury was instructed on burglary of a dwelling and the lesser-included offense of trespassing. The jury was told that if it found that Bolton had broken and entered into the home “[w]ith the intent to commit the crime of larceny or any other crime,” (emphasis added) he was guilty of burglary. Bolton did not object to the jury instructions at the time.

¶2. The Court of Appeals found these jury instructions to be sufficient. Bolton v. State, 113 So.3d 573, 576-77 (Miss.Ct. App.2012). That court found that “the State did not have to prove — and the jury did not have to find — Bolton committed larceny.” Id. While this is correct, under this Court’s recent holding in Daniels v. State, 107 So.3d 961 (Miss.2013), the jury did have to find that Bolton had intended to commit larceny, since that was the intended offense specified by the grand jury. Here, however, the Court of Appeals found it sufficient that “[t]he jury found beyond a reasonable doubt that Bolton intended to commit a crime in Vance’s house.... ” Bolton, 113 So.3d 573, at 577 (emphasis added).

¶ 3. Bolton filed a petition for certiora-ri with this Court, alleging that the jury instructions were improper because they permitted the jury to convict him of burglary if it found that he had intended to commit any crime while inside the dwelling. This Court initially denied the petition. However, before the mandate issued, we handed down our unanimous decision in Daniels, holding that the State must “offer proof of the intent to commit some specific crime as the second element of burglary.” Daniels, 107 So.3d at 964. The intent to commit a specific crime charged in the indictment must be proven beyond a reasonable doubt, and the jury must be so instructed. Because the holding in Daniels directly contradicted the Court of Appeals’ holding in Bolton, we vacated the denial of certiora-ri and granted the petition.

ANALYSIS

¶ 4. In Daniels, we held that “the trial court’s failure to instruct the jury properly on the essential elements of the crime of burglary requires reversal.” /¿(emphasis added). There, the jury was instructed that Daniels was guilty of burglary if it found beyond a reasonable doubt that, once he had broken inside the dwelling, he “intended ... to commit a crime therein, which is a crime under the laws of Mississippi....” Id. at 962-68. We held that the instructions were “fatally flawed” and we remanded for a new trial. Id. at 962. Bolton’s jury instructions were “fatally flawed” in exactly the manner as Daniels’s: the jury was permitted to convict him of burglary if it found he had intended to commit any crime while inside the dwelling, and the prosecution therefore was relieved of its obligation of proving his intent to commit a particular crime. “One of the essential elements of the crime of burglary is the intent to commit a specific crime.” Id. at 964. Although Bolton did not object to the jury instruction, the “[fjailure to instruct the jury on the essential elements of the crime is plain error.” Rogers v. State, 95 So.3d 623, 632 (Miss. 2012) (citing Berry v. State, 728 So.2d 568, 571 (Miss.1999)). Under Daniels, Bolton’s jury instructions failed to instruct the jury on all of the essential elements of burglary, and that omission constitutes plain error.

CONCLUSION

¶ 5. Because the jury was improperly instructed on the essential elements of burglary consistent with this Court’s recent decision in Daniels v. State, we reverse the decisions of the Court of Appeals and the Hinds County Circuit Court and remand Dondrego Bolton’s case to the trial court for proceedings consistent with this decision.

¶ 6. REVERSED AND REMANDED.

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