author: GREMILLION, Judge.

text:
    Mary Phyllis SOILEAU v. SMITH TRUE VALUE AND RENTAL, et al.
    No. 11-1594.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 2014.

      W. Glenn Soileau, Jacques P. Soileau, Soileau & Soileau, Breaux Bridge, LA, for Plaintiff/Appellee, Mary Phyllis Soileau.
    Anthony C. Dupre, Attorney at Law, Ville Platte, LA, for Defendant/Appellee, Smith True Value and Rental.
    Bradley C. Myers, John F. Jakuback, Kean, Miller, Hawthorne, D’Armond, McCowand & Jarman, Baton Rouge, LA, for Defendant/Appellee, Risk Management, Inc.
    Peter F. Caviness, Steven J. Bienvenu, Dauzat, Falgoust, Caviness & Bienvenu, L.L.P., Opelousas, LA, for Defendant/Ap-pellee, Louisiana Municipal Risk Management.
    J. Michael Percy, Andrew P. Texada, Stafford, Stewart & Potter, Alexandria, LA, for Defendants/Appellees, Deere and Company John Deere Limited.
    Richard J. Petre, Jr., Onebane Law Firm, Lafayette, LA, for Defendant/Appel-lee, Smith’s Hardware.
    Charles M. Lanier, Jr., Mary Beth Meyer, Christovich & Kearney, LLC, New Orleans, LA, for Defendant/Appellant, Hartford Insurance Company.
    Karen Day White, Louisiana Municipal Association, Baton Rouge, LA, for Defendant/Appellee: Louisiana Municipal Association.
    Rodney Janis, Wilson Elser Moskowitz Edelmen & Dicker LLP, West Palm Beach, FL, for Defendant/Appellee, Smith’s Hardware.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

|, The plaintiff, Mary Phyllis Soileau, and the defendant, Hartford Insurance Company, appealed a jury verdict in Soileau’s favor. On remand from the Louisiana Supreme Court, we address the merits. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Soileau sustained serious injuries following a November 2007 accident in which a John Deere front-end loader detached from a John Deere tractor and fell onto her leg, shattering it. Soileau filed suit in April 2008, against Deere & Company (Deere), the Town of Mamou (Mamou), and Harry Smith Jr., Claire Smith, Smith’s Hardware (collectively Smith’s), and Smith’s insurer, Hartford Insurance Company (Hartford). Smith’s rented the Deere equipment to Mamou, for whom Soileau was working supervising the cleaning out of canals with the front-end loader at the time the accident occurred.

In May 2009, Soileau entered into a “high/low” agreement with Hartford in which Hartford’s liability was capped at its policy limit of $2,500,000.00 regardless of the jury’s verdict. Soileau released Smith’s of any personal obligation to Soi-leau.

Soileau settled with Deere in August 2010, and proceeded to trial against Smith’s and Hartford. A jury trial was held over five days in October 2010. On the fourth day of trial, Soileau moved in open court to dismiss the Smiths personally and their company, Smith’s Hardware. That same day, Hartford moved for a directed verdict based on its policy language that obligated it to pay only those sums that the insured becomes legally obligated to pay. The trial court denied the motion. Hartford also filed a peremptory exception of no right of action, arguing that pursuant to the Louisiana Direct Action Statute, La.R.S. 22:1269, 2dismissal of Smith’s terminated Soileau’s action against it. The trial court denied Hartford’s exception.

The jury found in favor of Soileau, apportioning Smith’s with 15% of the fault, Mamou with 15%, and Deere with 70%. It awarded damages totaling $9,429,758.81. The trial court entered judgment against Hartford casting it with 15% of the damages, equaling $1,400,000.00. Hartford was ordered to pay $1,074,463.82 (Hartford received a credit for sums it already paid pursuant to the high/low compromise agreement). The trial court further cast Hartford with 50% of Soileau’s court costs.

Hartford filed a motion for judgment notwithstanding the verdict or, alternatively, for new trial,- re-urging that once Smith’s was dismissed Soileau had no claim against it under the language of its policy and under the direct action statute. Soileau also filed a motion for judgment notwithstanding the verdict regarding fault apportionment. The trial court denied Hartford’s and Soileau’s motions. Hartford and Soileau appealed. On appeal, we found that trial court legally erred in denying Hartford’s exception of no right of action, and we dismissed Hartford rendering the remaining assignments of error moot. Soileau v. Smith True Value and Rental, 11-1594 (La.App. 3 Cir.6/20/12), 95 So.3d 1214. However, the supreme court granted Soileau’s application for a writ of certiorari and/or review and reversed our holding, finding that Soileau’s action against Hartford was maintained despite the mid-trial dismissal of its insureds. Soileau v. Smith True Value and Rental, 12-1711 (La.6/28/13),-So.3d-, 2013 WL 3305265. The supreme court remanded the case to us with the instruction that we address the remaining assignments of error.

|,.ISSUES

The remaining assignments of error that we will address are Hartford’s contentions that:

1. The jury’s award of $7.5 million in General Damages is unreasonable and abusively high in light of the record reviewed in its entirety.
2. The jury’s verdict awarding $7.5 mil- " lion in General Damages should be reversed because the award was tainted by an improper appeal to the jury’s prejudice against insurance companies that prevented the jury from doing justice. Plaintiffs counsel dismissed Hartford’s insureds in front of the jury and then, against the Court’s warning, elicited testimony from plaintiff that she did not want to collect any money from the insureds and that money would be recovered solely from their insurance company, Hartford. Plaintiffs counsel then improperly informed the jury that plaintiff would not be able to collect money for any fault it assessed against Deere, the settling manufacturer, thereby encouraging the jury to increase its award of damages.
3. The jury’s award of $750,000 in future medical expenses is speculative and supported neither by medical testimony of specific care that will be needed nor of the probable cost of any such future care and is contrary to the testimony of the physicians that she is not expected to have surgery in the future and is only expected to need periodic office exams and some medication.

Soileau assigned as error:

1. The trial court was erroneous in failing to instruct the jury concerning the burden of proving and apportioning fault under the Louisiana Product Liability Act; and/or the jury was erroneous in apportioning fault amongst the parties.

DAMAGES

Soileau testified regarding the' impact the accident has had on her life. She held many elected positions in the town of Mamou, including as Chief of Police and City Councilwoman. She worked as the supervisor of Parks and Recreation and was appointed Street Commissioner at the same time. Soileau described her involvement as a member of the staff of the Mamou Cajun Music Festival for over | ¿twenty years, which involved cooking and other activities for the festival. She was a Mamou Girls Softball coach for more than twenty years and a coach for Grand Mam-ou Sports. Soileau said that she was ati the ball field every day during the summer. She was further involved in numerous high school sporting activities. Her days were filled with vigorous, physical activity as part of her job and her personal activities. Soileau described waking up to find the bucket on top of her leg. Soileau was transported by ambulance to the hospital, where she remained for sixty-five days undergoing twenty-two surgeries. Her twenty-third surgery occurred just one month prior to the trial. She testified that since the accident she has not gone a day without pain. Soileau said that she takes several pain and sleeping medications daily and. experiences daily swelling in her leg.

Soileau described being homebound following surgery for a month and then going outside only when the physical therapist started coming for approximately two months. Soileau then attended outpatient physical therapy three days a week. She testified that she is in pain about 95% of the time and that she is. unable to engage in any of her former activities.

Dr. Gregory M. Savoy, a board-certified surgeon for more than thirty-seven years, was qualified as an expert in the field of surgery and vascular surgery. Dr. Savoy described Soileau’s condition upon entering the emergency room: “She had severe injury to the ... right leg. She had ... a large laceration running down the medial aspect of that leg, and with the crush injury over the thigh and over the inside of the right calf. She also had ... multiple fractures of her foot.”

Dr. Savoy treated Soileau’s soft tissue injuries involving the upper and lower leg and performed twenty surgeries on her over the course of her hospital stay to remove dead tissue, treat infection, close lacerations, debride tissue, and perform skin grafts. Photographs were introduced into evidence depicting extensive 1 ¡¡injuries and disfigurement to the entirety of Soi-leau’s right leg and foot. Dr. Savoy testified that the injuries were serious and painful, resulting in permanent disability from which she will not be able to return to her prior work.

Dr. Savoy testified that Soileau would need periodic follow-up work. Although he said she was stable, he said there can be problems with skin grafts and that she had to be regrafted several times. Dr. Savoy said that Soileau’s leg will be ultra-sensitive to touch and clothing; she cannot stand for very long and she cannot walk without the assistance of a crutch or a cane. Further, she will experience permanent swelling.

Dr. Savoy used skin from Soileau’s left leg, leaving it scarred also. The scarring in both is permanent. Dr. Savoy said that he could not foresee Soileau sitting for more than forty-five minutes at a time nor walking more than thirty feet. Dr. Savoy has not recommended any further surgeries for soft tissue injuries, nor did he foresee the need for any future surgeries for soft tissue injuries.

Dr. Stephen Nason, an orthopedic surgeon for more than forty years, treated Soileau from her admission to the emergency room. He described Soileau’s leg and ankle fractures as “crushing injuries” that would be very painful. He described placing pins in her ankle. Dr. Nason said Soileau will have a permanent limp and permanent shortening of her leg. He said that she would need to permanently use a brace on her ankle. Dr. Nason said there would always be some degree of pain. He testified that Soileau has a permanent disability that will require follow-up care for life. He prescribed anti-inflammatory medications and muscle relaxers for spasms. He said that she will never have a fully functional recovery from the injuries.

| ñGeneral Damages

Our jurisprudence has consistently held that in the assessment of damages, much discretion is left to the judge or jury, and upon appellate review such awards will be disturbed only when there has been a clear abuse of that discretion, Coco v. Winston Industries, Inc., 341 So.2d 832 (La.1977). And, “[i]t is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review be considered either excessive or insufficient,” Reck v. Stevens, 373 So.2d 498, 501 (La.1979). Appellate courts review the evidence in the light which most favorably supports the judgment to determine whether the trier of fact was clearly wrong in its conclusions. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Before an appellate court can disturb the quantum of an award, the record must clearly reveal that the jury abused its discretion. In order to make this determination, the reviewing court looks first to the individual circumstances of the injured plaintiff. Only after analysis of the facts and circumstances peculiar to the particular case and plaintiff may an appellate court con-elude that the award is inadequate. See Reck v. Stevens, supra; Cariere v. State Farm Insurance Co., 467 So.2d 867 (La.App. 2d Cir.1985).
Prior awards under similar circumstances serve only as a general guide. If the appellate court determines that an abuse of discretion has been committed, it is then appropriate to resort to a review of prior awards, to determine the appropriate modification of the award. In such review, the test is whether the present award is greatly disproportionate to the mass of past awards for truly similar injuries. See Reck v. Stevens, supra; Wactor v. Pickens Lumber Co., 505 So.2d 815 (La.App. 2d Cir.1987), writ denied, 508 So.2d 827 (La.1987). In instances where the appellate court is compelled to modify awards, the award will only be disturbed to the extent of lowering or raising an award to the highest or lowest point which is reasonably within the discretion afforded the trial court. American Motorist Insurance Company v. American Rent-All, Inc., 579 So.2d 429 (La.1991); Scott v. Hospital Service District No. 1 of the Parish of St. Charles, 496 So.2d 270 (La.1986); Carollo v. Wilson, 353 So.2d 249 (La.1977); Coco v. Winston Industries, Inc., supra.

Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993) (alteration in original).

The jury’s general damage award consisted of:

Emotional and mental anguish $1,000,000.00
Physical pain and suffering $4,500,000.00
Loss of enjoyment of life $1,000,000.00
|7Scarring and disfigurement $1,000,000.00

The trial court did not err in failing to grant Defendant’s motion for JNOV pertaining to damages. We find that the jury did not abuse its discretion in awarding Soileau $7,500,000.00 in general damages. Soileau’s life has been dramatically impacted by the serious injuries that she suffered. She was physically active in both her career and recreational activities, none of which she can participate in now. She has severe disability and ongoing pain in her leg and foot. She cannot walk or stand for an extended period of time and requires a cane, crutches, or a wheelchair. She relies on her sister to provide basic needs that she formerly provided for herself, such as cooking and cleaning. The photographs clearly indicate a severely disfigured leg that will not improve over time. For these reasons, while this award may seem on the high side, we do not find that the jury abused its discretion. Defendants further argue that awards for scarring, emotional and mental anguish, physical pain and suffering, and loss of enjoyment of life are duplicative. However, Hartford did not object at trial to the itemization of damages on the jury verdict form, and we will not entertain its objection now. La.Code Civ.P. arts. 1793 and 1812.

Special Damages

Special damages are those damages that may be determined with some degree of certainty and include past and future medical expenses and past and future lost wages. Wainwright v. Fontenot, 00-492 (La.10/17/00), 774 So.2d 70. The plaintiff bears the burden of proving entitlement to special damages by a preponderance of the evidence. Cormier v. Colston, 05-507 (La.App. 3 Cir. 12/30/05), 918 So.2d 541. The award of future medical expenses must' be supported by medical testimony indicating both their need and probable cost. Holliday v. United Servs. Auto. Ass’n, 569 So.2d 148 (La.App. 1 Cir. 1990).

IsThe jury’s special damage award consisted' of:

Past medical expense $458,758.81
Future medical expenses $750,000.00
Past lost wages $120,000.00
Future lost wages $601,000.00

Defendants argue there was no evidence to support a future medical award of $750,000.00. That Soileau will need future medical care for her injuries for life was uncontradicted at trial. Admittedly, though, there was no testimony pertaining to the future costs of such care. However, based on the past medical expense award of $458,758.81 and the consideration of Soi-leau’s future life expectancy of twenty-eight more years, we do not find the jury abused its discretion in awarding Soileau $750,000.00 for future medical expenses. The $750,000.00 award for a period of thirty years amounts to $25,000 per year. Again, although on the high side, we cannot say that the jury abused its discretion.

Finally, we do not find that the jury’s damage award was impermissibly tainted by the dismissal of the Smith’s. The jury’s damage awards are supported by the magnitude of Soileau’s injuries. Assignments of error one through three are without merit.

FAULT ALLOCATION

In the first part of this assignment of error, Soileau complains that the trial court erred in failing to instruct the jury on the burden of proving and apportioning fault under the Louisiana Product Liability Act. However, Soileau failed to object to the jury instructions although specifically given the opportunity to do so by the trial court. Thus, Soileau failed to preserve this issue for appeal. See La.Code Civ.P. art. 1793(C) and 1812.

|flNext, Soileau argues that the jury erroneously apportioned fault amongst the parties. Soileau argues that the lion’s share of the fault should have been apportioned to Smith’s because it allowed the tractor to be rented to Mamou despite the fact that the warning decal on the front-end loader that warned users that the front-end loader should not be operated without engaging the latch retainer, had worn away. Soileau argues that this alteration was the superseding cause of this accident and that Smith’s had the last clear chance to avoid the accident. Soileau further argues that Smith’s should have been assessed no less than 51% percent of the fault up to 95% of the fault. Further, Soileau argues that Mamou could not have been found to be at fault because it could not heed a warning that had worn away; thus, it had no actual or constructive knowledge of the inherent dangers of the loader. Accordingly, Mamou should be assessed with 0% fault.

We recently reviewed the standard applicable to the factfinder’s allocation of fault in Thibodeaux v. Ace American Insurance Co., 13-577, pp. 6-8 (La.App. 3 Cir. 11/27/13), 127 So.3d 132, 136-37:

The Louisiana Supreme Court, in Duncan v. Kansas City Southern Rail way Co., 00-66, pp. 10-11 (La.10/30/00), 773 So.2d 670, 680-681, stated that the standard of review applicable to comparative fault determinations is as follows:
This Court has previously addressed the allocation of fault and the standard of review to be applied by appellate courts reviewing such determinations. Finding the same considerations applicable to the fault allocation process as are applied in quantum assessments, we concluded “the trier of fact is owed some deference in allocating fault” since the finding of percentages of fault is also a factual determination. Clement v. Frey, 95-1119 (La. 1/16/96); 666 So.2d 607, 609, 610. As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault. Id.
|10As such, it is clear that a fact finder’s allocation of fault is subject to the manifestly erroneous or clearly wrong standard of review. Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). The findings of fact made by a jury will not be disturbed unless they are manifestly erroneous or clearly wrong. Id. “Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990).' “If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been siting as the trier of fact, it would have weighed the evidence differently.” Id. at 1112.
The factors to consider in an appellate review of an allocation of fault were addressed by the. Louisiana Supreme Court in Watson v. State Farm Fire & Casualty Insurance Co., 469 So.2d 967 (La.1985). Therein, the supreme court stated:
[Vjarious factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.
Id. at 974.
These factors are also relevant to an appellate court’s determination when ascertaining the highest or lowest percentage of fault that could reasonably be assessable to the respective parties. Clement, 666 So.2d 607. This court, in applying Clement, stated:
[T]he allocation of fault is not an exact science, nor is it the search for a precise ratio. Rather, much like that of quantum assessment, allocation of fault is the finding of an acceptable range and any allocation by the trier of fact within that range cannot violate the manifest error standard of review. When we look to the applicable laws and standard of review, this court is to make a determination of whether any reasonable person could have made the allocation of fault that the jury made under the facts of this case.
|11Layssard v. State, Dep’t of Pub. Safety and Com., 07-78, p. 4 (La.App. 3 Cir. 8/8/07), 963 So.2d 1053, 1058, writ denied, 07-1821 (La.11/9/07), 967 So.2d 511.
The jury apportioned fault as follows:
(A) Smith True Value 15%
(B) Deere and Company 70%
(C) Phyllis Soileau 0%
(D) Town of Mamou 15%
(E) Randy Toepfer 0%

The trial court instructed the jury that the fault of several parties had to be determined, assigning a percentage of fault to each party. The jury was informed that Deere had already been found to be partially at fault for the accident, but that it was the jury’s prerogative to determine the percentage of fault that should be attributed to Deere. See Soileau v. Smith’s True Value and Rental, 09-1066 (La.App. 3 Cir. 5/26/10), 40 So.3d 379.

Many witnesses testified on the issue of liability. Various Smith’s employees testified about the rental procedure including Timothy Estes, Nicholas Miller, and Eric Jackson.

James Williams testified that he was employed by Mamou and rented the tractor the day of the accident. He said that no one at Smith’s inspected it and that it was unloaded off of Smith’s trailer and loaded directly onto Mamou’s trailer. Williams said that he and other Mamou employees were using the tractor to clean the canal because it was stopped up. He said that they “cut the chain from the lower bar” and put it down the canal and started using the bucket to pick up trash. He said the tractor was slowly lowered into the canal by using a backhoe that was attached to the Deere tractor with a chain. Williams said that his coworker, Noel Sev-allis, pushed the trash into a pile with the front-end loader and then used the 112backhoe to scoop it out of the canal. Williams described easing the tractor out the canal and then unhooking the chain. He said that the front-end loader just popped off. He said that Soileau was standing about five or six feet away from the tractor. Williams stated that a safety meeting was conducted prior to use of the tractor reminding that no one should stand underneath the raised bucket. He said that everyone knew not to stand under the bucket regardless of whether there was a label indicating such.

Mitchell Fontenot testified that he worked for the street department in Mam-ou at the time of the accident. He stated that he had used Mamou’s small tractors to clean out ditches before, but that this was the first time they used a front-end loader. He testified that the small, town-owned tractor “had burned up,” and that is why they rented the Deere. He also described using a chain to hook the Deere tractor to the bucket of the backhoe in order to lower the tractor into the ditch. Fontenot stated that they had lowered the tractor into the ditch and taken it out about three times that day to clean out different areas. He said that in order to get the tractor out of the ditch, the bucket had to be lifted so that it would not hit a cement wall. Fontenot said that the tractor was located about twenty to thirty feet from the canal on level ground. He said that another employee, Johnny Logue, went to unhook the chain connecting the tractor and the backhoe, but that it was stuck. They tried to remove a pin that was stuck in the hook. Fontenot said that he used a hammer and a “punch” to accomplish this. He said that when the pin was removed the front-end loader fell forward and landed on top of Soileau.

Fontenot testified that they did not lower the bucket while they were trying to unhook the chain, and in hindsight, it would have been a good idea. He recalled having a safety meeting in which they were advised to be careful. He denied | ^reading any of the warning labels on the tractor. He said that as long as the hydraulic hoses were in place, the front-end loader should have never fallen.

Johnny Logue, a laborer for Mamou at the time of the accident, testified that they lowered the tractor into the canal for cleaning by chaining the rear of the Deere to the front bucket of the backhoe. He said they removed the Deere from the ditch by chaining the rear bucket of the backhoe to the bumper plate on the front-end loader. He described how the chain was “in a bind” when they tried to remove it and how they first attempted to unhook the chain by moving it around. He also confirmed that the front-end loader was lifted before removal from the ditch so that it would not get scraped on the sidewalk. He testified that Soileau’s boss, Mr. Spencer, suggested they use a punch and a hammer. They removed the cotter pin from the retainer pin for the hook and punched the retainer out. He said that the entire front-end loader mechanism fell off at an angle and landed on Soileau.

Leonard Hammond, the supervisor of public works for the city of Opelousas, described using a similar method with a chain to lower the tractor to clean out canals.

Roger Allison, a backhoe operator for Mamou for fifteen years, testified to the procedure of lowering the tractor into the ditch with a chain connected to the backhoe. He described how the entire front-end loader mechanism fell off.

Sevallis was also working for Mamou the day of the incident. He similarly described lowering the tractor into the ditch and removing it. He described the struggle with the chain and how Logue had been positioned underneath the front-end loader trying to get the chain off. Sevallis said that once the pin became dislodged the entire bucket mechanism fell forward.

Mark Rougeau had rented tractors from Smith’s since 1996. On October 5, 2007, he rented a tractor to work on some family plots. He said that after fifteen | i4minutes of using the front-end loader to push some chicken trees a hydraulic line broke. He called Smith’s but they couldn’t come until the next day, so Rougeau went and purchased a hydraulic hose and replaced it himself. He said the front-end loader would raise but not lower. He further testified that the right side of the front-end loader bucket later dropped. When asked if he was able to reattach the bucket to the front of the tractor, Rougeau stated: ‘Tes sir I was [sic]. I walked back to my truck, got my bottle jack and when I walked back I found the pin that apparently held the ... the bucket together in the front and us ... I used something. I can’t remember what I used probably a nail or something to put in with the lost pin.” Rougeau testified that when he returned the tractor he informed Smith’s that the bucket had fallen off.

Keith Wyble, a carpenter, rented a tractor with a shredder from Smith’s in October 2007. Wyble said that while he was shredding the shredder blade came off and fell to the ground. He called and reported it, and Smith’s told Wyble that he could bolt the shredder back on.

Randall Topher, a welder fabricator for more than thirty-four years, testified that he does welding work for Smith’s quite often; however he said that he did not do any welding on the tractor involved in this accident.

The jury heard testimony from and reviewed the reports of two expert engineers. Stephen Killingsworth, a mechanical engineer for more than thirty-three years, testified for the plaintiff. Jeremy Hoffpauir, a forensic engineer, testified for the defendants.

Killingsworth, a registered professional mechanical engineer for more than forty years and a retired Professor of Engineering at USL, was qualified as an expert in the areas of heavy equipment and has testified in approximately forty-five cases per year for thirty-five years. Killings-worth, who inspected the tractor | ^involved in this accident, discussed his written report of his findings that ultimately concluded that both Smith’s and Deere bore some fault in causing this accident.

He testified that Deere “had a problem with the design from the beginning.” He said that Deere had conducted some testing and the front-end loaders were falling off, so Deere added a latch-plate retainer. Deere realized that this was not working properly; thus, Deere provided a kit for units that were sold before the redesign. The kit relied upon a certain size pin to hold the latch plate retainer in place. If an end-user changed the size of the pin, the kit would not work correctly. Plus, various other end-user conditions, such as using a tow chain as the Mamou employees did here, could alter the functionality of the plate. Killingsworth testified:

John Deere had problems with the design when it started and they made corrections and the corrections fixed many of the problems but didn’t resolve the separation, totally resolve the separation of the latch plate from the unit. There were operating conditions that would happen. Was that operating condition in this particular case we haven’t nailed an exact test on it but more probable not, yes. However, we’ve got other problems that John Deere couldn’t overcome in a sense that by design and their maintenance.

Killingsworth said that Deere could have provided a towing mechanism such as hooks or instructions regarding the proper towing method; instead, it was up to the user to determine how to go about towing. Other things Deere could have done would be to provide two latch-plate retainers so that one would act as a back-up and provide chained pins on the latch-plate retainer as an extra safety measure to ensure that the proper pin was used. Killings-worth testified that Deere could have provided better warnings alerting the user that factory pins had to be used. Killings-worth said the tractor was a defective design even though sometimes it would operate properly.

11fiRegarding Smith’s fault, Killingsworth said that Smith’s attempted to repair some wear to square tubing that supported the weight of the claws. However, he said that the welding was improperly done. Deere had provided a repair kit in the form of different sized shims along with instructions for their installation to address the wear of the claws and the square tubing. However, Killingsworth said that Smith’s did not perform the repair in accordance with Deere’s specifications. This resulted in improper loading on the claws which increased the likelihood of unwanted detachment. Killingsworth also opined that Smith’s failed to provide proper instruction on using the tractor and front-end loader and failed to provide proper pins for the latch-plate retainer. Killings-worth rented the tractor from Smith’s five months after the accident and testified that the wrong pin was in the unit. He also discussed some bent plates on the tractor, concluding that Smith’s should not have rented the tractor out in that condition. He also noted that the factory warning label indicating that the front-end loader should not be used without engaging the latch retainer had worn off.

Hoffpauir testified that he inspected the tractor within a week of the accident. He said that it was missing the pin that holds the latch plate in place. Hoffpauir testified that the latch-plate retainer was bent. He also stated that the warning label had worn off over time. He reviewed several instances in which other people were injured when the bucket fell off, and various tests that were conducted by Deere in which the bucket fell off. In his report, which was submitted into evidence, Hoff-pauir gave ' several conclusions including that Soileau would not have been injured if the loader bucket had been lowered to the ground before the employees starting working on it; Soileau would not have been injured if she was not standing beneath or within a few feet of the raised loader (decals warning against walking or working beneath a raised loader were locate on both sides); the operator’s manual 117did not give instruction relating to the method to be used to secure the tractor with the loader. Thus, Smith’s method was reasonable, anticipated, and not prohibited by the manufacturer, and Smith’s rental procedures did not contribute to the subject injury.

Hoffpauir testified that when the tractor was being pulled out of the ditch it caused the latch plate to go forward and come off causing the whole bucket assembly to rotate downwards. He said that the chain used by Mamou caused the latch plate to move forward. The force applied by the chain caused gouge marks consistent with the force that caused the latch plate retainer to come loose when the pin popped out. Hoffpauir said that the sloppy welding did not cause the accident. Hoffpauir opined that if the bucket had been lowered to the ground before the Mamou employees had started trying to remove the chain, the chain most likely would have come loose on its own because the load would have been taken off it and nothing would have fallen.

Hoffpauir said that it was his opinion “that working underneath that raised loader, especially a hammer trying to get things off is what caused this injury.” However, he agreed that Deere should have put a warning label on the bucket indicating that the entire assembly could dislodge.

Eric Jackson, the rental and hardware manager at Smith’s, testified that they kept Deere parts in stock and had a bin of replacement Deere pins ready for use. He testified that he had never seen a pin like the one Killingsworth testified to and that he would never approve a pin such as that one used in the latch-plate retainer. Jackson said that in his almost eleven years at Smith’s he had never used any pin other than Deere ones. However, Jackson admitted that he was not there the afternoon that the tractor was rented to Mamou.

| iSHaving reviewed the evidence, we find that the jury did not manifestly err in its allocation of fault. Obviously, the jury found Killingsworth’s testimony more persuasive. Reasonable people could have concluded that Deere bore the majority of fault for this accident because of its knowledge of the problems with the loader, the product recalls, and its failure to fix the problems. There was conflicting testimony about the nature of the pin holding the latch plate in place and its contribution to the accident. Further, although Smith’s had allowed the warning decal to wear away, there was testimony that the Mam-ou employees likely would not have seen it anyway when the front-end loader was in the raised position. We find that the jury could have easily found that this accident would have occurred even if the warning label had been completely legible. Moreover, we do not agree that the missing label was the superseding cause of the accident.. Reasonable people could find that the primary causes of this accident were the faulty construction of the latch-plate retainer and Deere’s failure to provide other mechanisms and instructions for towing the tractor, an expected occurrence. Further, it was not error for the jury to conclude that Mamou bore a small percentage of the liability based on the testimony that it would have been wiser to lower the bucket before attempting to dislodge the chain. Accordingly, we cannot say that the jury manifestly erred in its assessment of fault. This assignment of error is without merit.

CONCLUSION

The jury verdict in favor of Soileau awarding her $9,429,758.81 is affirmed. All costs of this appeal are assessed against Hartford Insurance Company.

AFFIRMED.

      . The bright orange warning label stated "DO NOT operate loader without engaging latch retainer. Failure to engage retainer could result in loader detaching from tractor causing serious bodily injury or death.”


source: Caselaw Access Project

author: CHANDLER, Justice, KITCHENS, Justice,

license: Public Domain

text:
    Sacory BROWN a/k/a Cory a/k/a Sacory Gene-Earl Brown v. STATE of Mississippi.
    No. 2012-KA-01544-SCT.
    Supreme Court of Mississippi.
    Nov. 14, 2013.
    Rehearing Denied Feb. 13, 2014.

      Office of the Public Defender by George T. Holmes, Phillip Broadhead, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before DICKINSON, P.J., KITCHENS and CHANDLER, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. This is a direct appeal of Sacory Brown’s conviction for burglary of a dwelling. (Brown received a twenty-five year sentence, with eighteen years to serve and seven years suspended with five of those years on post-release supervision). On appeal, Brown argues that the Miranda warning he was given before making an inculpatory statement to the police was insufficient because it did not explicitly inform him of his right to stop talking to the police at any time. He also argues that the twenty-five-year sentence is grossly disproportionate in violation of the Eighth Amendment. Finally, he argues that the evidence supporting the verdict was legally insufficient and the verdict was against the overwhelming weight of the evidence. Finding no error, we affirm Brown’s conviction and sentence.

FACTS AND PROCEEDINGS BELOW

¶ 2. On November 8, 2010, Cheryl McFarland was on her cell phone with her husband as she arrived back home from a doctor’s visit. She observed a strange red or maroon car in the carport. No one was in the car. Thinking perhaps that missionaries might have stopped by, which was common, she walked around to the front of the house to see if anyone was there. When she observed no one, she walked back around to the carport, where she observed that the door had been kicked in. She remained on the phone with her husband, reporting her observations to him. At that time, two men came running out the door. One had dreadlocks and the other a very short haircut. The one with dreadlocks came out first, choked her, and threw her across the carport. One of the men (she could not tell which because she was facedown on the carport) kicked her and hit her on the head with what turned out to be a .22 pistol taken from inside the house. The men got into the car and drove away. McFarland was bleeding from the head. Her cell phone had broken in the fall, so she went inside and called her husband from the landline. He called 911.

¶ 3. The .22 pistol was recovered after ambulance personnel observed it when driving away after treating McFarland. The suspects apparently had thrown it into the yard as they drove away. Part of the trigger guard (later found in the carport) was broken off. The police found no fingerprints on the scene matching Brown or his cousin. The checkered handle of the .22 was not analyzed for fingerprints because the investigator believed it was unlikely to yield any prints. McFarland stated that the color of the men’s car was in the “red” family, maroon or burgundy, and that she thought it was either a Honda or a Hyundai. After the burglary, she looked up car emblems online and came to believe that the car she had seen was a Hyundai.

¶ 4. Brown was developed as a suspect after the Jones County Sheriffs Department provided the Forrest County investigators with a car tag number associated with a similar recent burglary. That car belonged to Brown’s mother, Mary Brown. Investigator Clifford Rutter pulled over Mary Brown while on his way to her house to investigate the lead. The police learned from Mary Brown that her son, Sacory, frequently drove the car. The car was a Mazda. Mary Brown described it as candy-apple red. She agreed to put her son in touch with the police, and later drove Brown to the police station to be interviewed.

¶ 5. On Thursday, November 11, 2010, Investigator Rutter interrogated Brown after reading him the standard “Miranda Warning Form,” which contained the following statements:

YOU HAVE A RIGHT TO REMAIN SILENT.
ANYTHING YOU SAY CAN BE USED AS EVIDENCE AGAINST YOU IN COURT.
YOU HAVE A RIGHT TO TALK TO A LAWYER BEFORE QUESTIONING AND HAVE HIM PRESENT DURING QUESTIONING.
IF YOU CANNOT AFFORD A LAWYER, ONE WILL BE APPOINTED FOR YOU BEFORE QUESTIONING, IF YOU WISH.

Brown signed the waiver form in two places, indicating that he understood each of these rights and that he voluntarily waived them. He then handwrote the following statement:

My cousin asked if i would take him & his friend to see a chick. When we arrived my cousin friend went to knock and got no answer. So he decided that he wanted to go in since no one was there. He went in and when he came out, he pushed the lady down and we pulled off. I asked what was they doing and they said nothin just drop his friend off. Then my cousin told me that he didn’t get anything. Then I told’em they better not get me in trouble when The dude & Robert went in the dude kicked the door in. My cousin name is Robert Brown when she fell she screamed and they jumped in and we pulled off. They wanted me to pull off faster then normal.

¶ 6. After writing the statement, Brown was placed under arrest. Seven months after the burglary, McFarland failed to identify Brown in a photo lineup. But at trial, she identified him as the person who came out of the house first and choked her. She reiterated at trial that she saw only two men and that no one was in the strange car.

¶ 7. Both Brown and his cousin Robert Pickens Brown were indicted for burglary of a dwelling and aggravated assault. However, Brown was tried alone on both counts. A pretrial hearing was held in January 2012 on Brown’s motion to dismiss the indictment and suppress his incul-patory statement.

¶ 8. Brown’s mother, Mary Brown, testified that Brown had been diagnosed with a “Slow Learning Disability.” Although enrolled in special education classes, Brown graduated from Petal High School. He took care of himself on a day-to-day basis, and she trusted him to use her car frequently. Investigator Rutter stated that Brown struck him as very intelligent. Brown’s attorney questioned Rutter regarding the contents of the Miranda warnings, submitting that they were deficient because they did not contain an explicit warning that the defendant has the right to stop answering questions after interrogation has begun. Brown’s attorney attempted to renew this line of questioning at trial. The court sustained the State’s objection, saying, “[sjustained ... that has already been decided. That’s an issue of law and not an issue of fact.”

¶ 9. The court denied both the motions to dismiss and to suppress from the bench at the start of trial. Brown’s attorney requested, but never received, a written finding of fact as to why the motions were denied. The jury could not agree on the charge for aggravated assault and so a mistrial was declared on that count. After sentencing, Brown filed a motion for judgment not withstanding the verdict (JNOV) or, in the alternative, a new trial. He appeals the denial of these motions.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT BROWN WAIVED HIS MIRANDA RIGHTS.

¶ 10. We will not reverse a trial court’s finding that a Miranda waiver was valid where the finding was based on appropriate principles of law and is supported by substantial evidence. Chim v. State, 972 So.2d 601, 604 (Miss.2008); Holland v. State, 587 So.2d 848, 860 (Miss.1991). This standard is a mixed question of law and fact. Id. We review questions of law de novo. Rowland v. State, 42 So.3d 503, 506 (Miss.2010). Where the trial court has not made specific findings of fact, we review the record and make our own independent determination of the circumstances surrounding the defendant’s waiver of his constitutional rights. Holland, 587 So.2d at 860 (Miss.1991).

¶ 11. Brown argues that he did not make a valid waiver of his Miranda rights. In Miranda v. Arizona, the United States Supreme Court held that, when in custody, an individual “... must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The waiver must be made “voluntarily, knowingly and intelligently.” Coverson v. State, 617 So.2d 642, 647 (Miss.1998); see Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). “A waiver is voluntary if it is ‘the product of a free and deliberate choice rather than intimidation, coercion or deception.’ ” Coverson, 617 So.2d at 646. Additionally, “a waiver is knowing and intelligent if it is ‘made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.’ ” Id. “The judge must consider the totality of the circumstances to determine if a defendant intelligently, knowingly, and voluntarily waived his Miranda rights.” Scott v. State, 8 So.3d 855, 862 (Miss.2008).

¶ 12. Brown argues that an adequate Miranda warning must include explicit notice of the suspect’s right to cease the interrogation at any time. But Miranda does not require, and this Court has never required, that a defendant be explicitly informed of the right to stop answering questions. Smith v. State, 394 So.2d 1367, 1369 (Miss.1981); Bell v. State, 443 So.2d 16, 21 (Miss.1984). Rather, “the ‘four-fold’ warning, required by Miranda, ‘comprehends and includes the right of a suspect to terminate his questioning at any time he wishes.’ ” Smith, 394 So.2d at 1369 (quoting Robinson v. State, 228 So.2d 373, 376 (Miss.1969)). This Court has further stated that “(a)n individual has the right to stop the interrogation at any time he wishes, but it is not required that he must be so informed.” Interest of Wilder, 347 So.2d 520, 521 (Miss.1977).

¶ 13. Here, Brown was given the fourfold warning required by Miranda. The standard “Miranda Waiver Form” used throughout Forrest County included the four required warnings. These rights were read out loud to Brown, and Brown then waived those rights by signing the form in two different places. Because this four-fold warning inherently incorporates the right of a suspect to- stop answering questions and to cease the interrogation at anytime he wishes, the absence of an explicit warning of that right did not affect whether Brown’s waiver was knowing, intelligent, and voluntary.

¶ 14. Brown also argues that the judge’s failure to provide specific findings of fact should make the judge’s denial of the motions “clearly erroneous per se.” This Court stated in Gavin v. State that, “[pragmatically speaking it is essential that we have from our trial courts findings of fact upon which we may rely,” but went on to find that “[sjensitive to our inability to make findings of fact where the evidence is in substantial dispute, it nevertheless appears clear from the record before us that the [Miranda ] waiver was voluntary.” Gavin v. State, 473 So.2d 952, 955 (Miss.1985). In the absence of specific findings of fact from the trial court, “[tjhis Court must first conduct an independent review of the totality of the circumstances discoverable in the entire record in order to resolve the questioned validity of a confession or incriminating statements.” Coverson v. State, 617 So.2d 642, 647 (Miss.1993). This review includes consideration of the defendant’s “experience with the police and familiarity with warnings; intelligence, including I.Q.; age; education; vocabulary and ability to read and write in the language in which the warnings were given; intoxication; emotional state; mental disease, disorder or retardation.” Id.

¶ 15. Here, the record before this Court contains enough facts for us to find that Brown’s waiver was knowing, intelligent, and voluntary, despite the absence of specific findings of fact from the trial court. Brown came voluntarily to the police station to be interrogated. He was adequately informed of his Miranda rights before he signed the waiver. The interrogating officer thought he was very intelligent, and Brown voluntarily handwrote his own statement for the police.

¶ 16. Brown argues that his learning disability was not sufficiently considered as part of the totality of the circumstances in determining whether his waiver of his Miranda rights was knowing, intelligent, and voluntary. A suppression hearing to determine the admissibility of statements given during police interrogations should inquire into the mental capacity of an accused with limited intelligence to determine whether the accused had the mental capacity to understand and waive his Miranda rights. Coverson, 617 So.2d at 650.

¶ 17. Our independent review of the record shows that Brown’s learning disability does not rise to the level of mental disability required to have interfered with his ability 'to waive his rights. This Court has found valid waivers from defendants with much more severe disabilities and disadvantages than Brown. See McGowan v. State, 706 So.2d 231 (Miss.1997). In McGowan, the defendant knowingly, intelligently, and voluntarily waived his Miranda rights even though he was only 17, had a low I.Q., and read at fourth-or-fifth grade level. Id. at 284. And like Brown, McGowan waived his rights by signing a standard waiver form after the form was read to him by the interrogating officers. Id. Nineteen-year-old Brown graduated from high school, took care of himself, drove himself around town, and demonstrated literacy and an adult command of the English language by handwriting his inculpatory statement to the police. Brown possessed the capacity to waive his rights. Our review of the totality of the circumstances apparent from the record indicates the trial court did not err in finding Brown’s rights waiver to be knowing, intelligent, and voluntary.

II. THE TWENTY-FIVE YEAR SENTENCE WAS NOT GROSSLY DISPROPORTIONATE IN VIOLATION OF THE DEFENDANT’S EIGHTH AMENDMENT RIGHTS.

¶ 18. The Eighth Amendment’s prohibition on cruel and unusual punishment protects citizens from disproportionately lengthy sentences. Solem v. Helm, 463 U.S. 277, 286, 103 S.Ct. 3001, 3008-09, 77 L.Ed.2d 637 (1983). Determining whether a lengthy sentence is unconstitutional is a two-step process. First, the person seeking relief must show that the sentence itself “leads to an inference of ‘gross disproportionality.’ ” Nichols v. State, 826 So.2d 1288, 1290 (Miss.2002) (citing Hoops v. State, 681 So.2d 521, 538 (Miss.1996) (discussing Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991))). Generally, sentences that do not exceed the maximum punishment allowed by statute will not be considered grossly disproportionate and will not be disturbed on appeal, but in some circumstances, proportionality review of sentences is required. Hoops, 681 So.2d at 537. Second, if an inference of gross disproportionality is shown, the Court will conduct an analysis of the sentence under the three Solem factors, which are “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentence imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Solem, 463 U.S. at 290-92, 103 S.Ct. 3001.

¶ 19. Brown argues that his age, learning disability, lack of previous convictions, the lack of physical evidence tying him to entry of the property, the inability of McFarland to identify him in the lineup, and the lack of evidence that he committed any act of violence all lead to a reasonable inference that the maximum sentence of twenty-five years is grossly disproportional. However, when compared to relevant cases decided by this Court and the Court of Appeals, Brown’s circumstances do not warrant an inference of gross dispropor-tionality. In Hoops, this Court found no gross disproportionality for a thirty-year sentence with the possibility of parole when the defendant had shot two people. Hoops, 681 So.2d 521. Most recently, in Mosley v. State, a majority of this Court found that a total sentence of 126 years without the possibility of parole for a subsequent drug offender was not grossly disproportionate given the nature of the offense, and that the sentence did not exceed the maximum allowed by law. Mosley v. State, 104 So.3d 839, 840 (Miss.2012).

¶ 20. The Court of Appeals has approved twenty-five-year sentences for dwelling-house burglaries on a number of occasions. See Magee v. State, 966 So.2d 173 (Miss.Ct.App.2007) (a twenty-five-year sentence for burglary was within statutory limits, and a threshold comparison of defendant’s sentence with his crime failed to raise an inference of gross disproportionality); Martin v. State, 954 So.2d 535 (Miss.Ct.App.2007) (twenty-five years for burglary of a dwelling affirmed); McCollins v. State, 952 So.2d 305 (Miss.Ct.App.2007) (twenty-five years for burglary of a dwelling affirmed).

¶ 21. Although Brown received the maximum sentence, Brown’s sentence is within the amount allowed by statute. Brown was afforded a sentencing hearing after a presentence investigation and report. Additionally, seven years were suspended with five years on post-release supervision. Although Brown was not a repeat offender, when compared with the facts of multiple similar criminal convictions and sentences, Brown’s sentence is not grossly disproportionate; therefore, an extended proportionality review under the Solem factors is not necessary.

III. THE EVIDENCE PRESENTED AT TRIAL WAS NOT LEGALLY INSUFFICIENT, AND THE VERDICT WAS NOT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 22. Brown argues that the evidence presented at trial was not legally sufficient to support a guilty verdict, and that the verdict was against the overwhelming weight of the evidence. On appellate review for challenges to the legal sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (Miss.2005) (citing Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979)). When reviewing the weight of the evidence, “we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844.

¶ 23. To support his argument that the evidence is legally insufficient, Brown points to the absence of physical evidence that he entered the house or was at the scene. Brown’s fingerprints were not found at the scene. Brown further argues that McFarland’s testimonial evidence was unreliable and contradictory, particularly because she failed to identify him in a photo lineup. She also believed that the car driven by the perpetrators was a maroon Hyundai, when, in fact, the car linked to Brown was a bright red Mazda.

¶ 24. But Brown admitted to being at the scene in his statement to the police. Also, “[t]he absence of physical evidence does not negate a conviction where there is testimonial evidence.” Graham v. State, 812 So.2d 1150, 1153 (Miss.Ct.App.2002), cert. denied 828 So.2d 200 (Miss.2002). “The jury has the duty to determine the impeachment value of inconsistencies or contradictions as well as testimonial defects of perception, memory, and sincerity.” Jones v. State, 381 So.2d 983, 989 (Miss.1980); see also Hill v. State, 199 Miss. 254, 24 So.2d 737 (Miss.1946). The photographs admitted included pictures of the ransacked house, the broken door-frame, McFarland’s bloodied head, the gun in the grass, and Mary Brown’s red car. This was in addition to the testimony of McFarland and the statement Brown gave to the police admitting that he was present but that he had stayed in the car while two other people went in. From this evidence, a jury could reasonably find credible McFarland’s testimony that only two people broke into her home, that only two people came out of the house, and that Brown was one of those two people. A jury reasonably could accept that McFarland failed to identify Brown because the photo lineup occurred more than half a year after the incident. Viewing the evidence in the light most favorable to the prosecution, the evidence was legally sufficient for a rational trier of fact to find all the elements of the crime established beyond a reasonable doubt.

¶25. And finally, the weight of the evidence supports the guilty verdict. When reviewing the weight of the evidence, “the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Bush, 895 So.2d at 844. Such an extraordinary case is not present here. As discussed above, the evidence presented at trial supported a finding that Brown broke into the McFarland home. Brown gave an inculpatory statement to the police, and the victim identified him at trial. He drove a car generally consistent with the description of the suspects’ car. We will not reverse a jury verdict on these facts. The evidence weighs in favor of a guilty verdict, rather than against it.

CONCLUSION

¶ 26. Law-enforcement officers are not required to inform suspects that they have the right to cease interrogation at any time. Brown’s maximum sentence of twenty-five years, with seven years suspended, does not violate the Eighth Amendment. The testimonial and crime-scene evidence presented at trial was sufficient for a rational trier of fact to find that all of the elements of burglary were met, and the verdict was not against the overwhelming weight of the evidence.

¶ 27. CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF TWENTY-FIVE (25) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH EIGHTEEN (18) YEARS TO SERVE AND THE SEVEN (7) YEAR BALANCE SUBJECT TO FIVE (5) YEARS OF POST-RELEASE SUPERVISION, WITH CONDITIONS, AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, PIERCE, KING AND COLEMAN, JJ., CONCUR. KITCHENS, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND KING, J.

KITCHENS, Justice,

specially concurring:

¶ 28. I fully concur with the reasoning and result of the majority’s opinion. I write separately only to discuss the adequacy of the varied Miranda warnings employed across this state. More than fifty-seven years ago, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), announced basic warnings that must be given before custodial interrogation is undertaken by police, and its consequences and nuances still are being debated today. While the Supreme Court has established a floor — a minimum standard — for sufficient warnings regarding an accused’s Fifth Amendment rights, beneath which the State may not descend, nothing prohibits the states’ strengthening and even elevating the obligations of their law enforcement officers in ensuring that those whom they question have clearly and unequivocally been informed concerning the vested constitutional rights they enjoy before and during police questioning, and the consequences of foregoing them.

¶ 29. The majority correctly holds that the warning given to Brown met the minimum procedural safeguards required by the United States Constitution as outlined in the Miranda decision. Brown was told that he had the right to remain silent, that if he waived that right his statement could be used against him, that he had the right to an attorney, and that he would be provided an appointed attorney if he could not afford one. This encompasses the “ ‘fourfold’ warning, required by Miranda. ...” Smith v. State, 394 So.2d 1367, 1369 (Miss.1981). Brown argues, in essence, that there should be a fifth: the State should have informed him that he had the right to a cessation of questioning at any time. While this unarguably is a component of Brown’s right to silence, because the Forrest County Miranda waiver form advised Brown of his rights to the absolute constitutional minimum, I cannot say that his statement was obtained in violation of the Fifth Amendment.

¶ 30. But, why not return one tried- and-true sentence to the waiver form to make it crystal clear to suspects in custody whom the police wish to question that, once the accused has begun to speak, he still may exercise his right to silence or to the assistance of an attorney at any time? The majority correctly states that the Miranda warning “comprehends and includes the right of a suspect to terminate his questioning at any time he wishes.” Smith, 394 So.2d at 1369 (quotation omitted). The Supreme Court said that its goal in promulgating the warnings was “to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process.” Miranda, 384 U.S. at 469, 86 S.Ct. 1602. “Miranda in flat and unambiguous terms requires that questioning ‘cease’ when a suspect exercises the right to remain silent.” Michigan v. Mosley, 423 U.S. 96, 115, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) (Brennan, J. dissenting). Undeniably, the right to silence would mean little if it evaporated upon the earliest utterance of a statement, or if an attorney could no longer be obtained once an accused had begun speaking with police. To safeguard these Fifth Amendment rights, individuals necessarily must understand that they have the right to demand at any time that questioning cease.

¶ 31. We jurists have the benefit of legal educations and the luxury of comfortable courthouse reposes from which to deduce the foregoing conclusion. However, many accused persons of multitudinous backgrounds, intellects, and educations, in the context of custodial interrogations with their inherent stresses and strains, are not as well equipped to make that logical leap with no more information than that contained in the four-fold, minimal warning mandated by Miranda. It would be much simpler and clearer if, before any questioning, every accused in this state were given the standard four-fold warning, and also informed, in one more sentence, that he or she had the right to terminate the questioning at any time.

¶ 32. This Court clearly recognized the wisdom of such a procedure in 1979 when it adopted the Mississippi Uniform Criminal Rules of Circuit Court Practice. One of those rules outlined this Court’s preferred Miranda warning. Rule 1.03 of the former Mississippi Uniform Criminal Rules of Circuit Court Practice provided:

Prior to any questioning, a person must be warned that:
(1) He has the right to remain silent;
(2) Any statement he does make may be used as evidence against him;
(3) He has the right to the presence of an attorney;
(4) If he cannot afford an attorney, the court will appoint one for him;
(5) He may request that the questioning cease at any time; and
(6) He may waive any of these rights.

(Emphasis added.)

¶ 33. The 1979 criminal rules were adopted because they would “assist the Circuit Court Judges of the state in the efficient and expeditious disposition of the business of the circuit courts.” Smith, 394 So.2d at 1369. Our circuit courts frequently are called upon to decide the adequacy of an accused’s Miranda waiver, and the warnings given, if any, may vary widely from case to case and from place to place within our state. At present, depending upon where the questioning occurs, the accused may or may not be told that he or she has the right to end the questioning at any time. This right is implicit in the Supreme Court’s holding in Miranda, and in certain counties and cities, one simple sentence makes that clear. Yet, in other jurisdictions in our state, where only the “four-fold” warning is given, the accused must discern on his own his right to stop the questioning at any time. A statewide unified form which recites the four-fold Miranda requirements while also informing the accused of the inherent right to terminate the questioning at any time would, in my view, drastically reduce the amount of time that Mississippi’s Bench and Bar spend arguing about and striving to determine whether a Mi randa warning was constitutionally sufficient.

¶ 34. Clearly, the best practice is to inform an accused of all of his applicable rights, including his ability to invoke them at any time throughout the interrogation process. While the rights protected by the decision in Miranda must be available to an accused at all times during questioning, a clear one-sentence instruction to that effect in a waiver form eliminates the necessity for the accused to extrapolate this implicit truth from his or her own reading of the four-fold Miranda requirements. In this case, Brown’s waiver scraped the constitutional floor established by Miranda in safeguarding his rights. However, I question whether the floor is where those invaluable rights ought to be.

DICKINSON, P.J., AND KING, J., . JOIN THIS OPINION.

      . My reference is to the rights to silence and assistance of counsel that attach during a custodial interrogation and are protected by the Fifth Amendment right against self-incrimination. These rights are present before and during a custodial interrogation, but before adversarial proceedings have been instituted against the accused. The right to counsel is protected under the Sixth Amendment once adversarial proceedings have begun against an accused, and its protections can begin as soon as an accused is arrested pursuant to a warrant. See Nicholson v. State, 523 So.2d 68, 74 (Miss.1988) ("If ... [the defendant] was arrested pursuant to warrant at the time of the voice lineup, his right to counsel had attached.”); see also Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) (holding that the Sixth Amendment right to counsel attaches when judicial proceedings have been instituted against the accused, which is the point at which "the government has committed itself to prosecute....”). The Fifth Amendment protects an individual from incriminating himself, while the protections of the Sixth Amendment work to ensure that the proceedings and trial against an individual are fair.

      . These rules were replaced in 1995 by the Uniform Rules of Circuit and County Court Practice. There is no corollary to Rule 1.03 in our current rules; the Uniform Rules of Circuit and County Court Practice govern court proceedings but do not address criminal investigations.


author: PIERCE, Justice,

text:
    Matthew LADNER v. ZACHRY CONSTRUCTION and Zurich American Insurance Company.
    No. 2012-CT-00403-SCT.
    Supreme Court of Mississippi.
    Jan. 30, 2014.

      Garner Wetzel, James Kenneth Wetzel, Gulfport, attorney for appellant.
    Walter J. Eades, Gulfport, attorney for appellees.
   ON WRIT OF CERTIORARI

PIERCE, Justice,

for the Court:

¶ 1. The Workers’ Compensation Commission (Commission) dismissed Matthew Ladner’s petition to controvert and motion for payment of benefits because it found the statute of limitations had expired. The Harrison County Circuit Court and a majority of the Court of Appeals affirmed the Commission’s decision. Ladner petitioned for writ of certiorari, which we granted. We reverse the Commission’s decision, as well as the judgments of the circuit court and the Court of Appeals, based on our finding that there is insufficient evidence to support it.

FACTUAL BACKGROUND

¶ 2. Ladner began working for Zachry Construction in 2001, a company which does subcontracting (maintenance) work for the Dupont/DeLisle facility in Pass Christian, Mississippi. Ladner’s duties primarily consisted of erecting and dismantling scaffolding and “jet riding,” which involved draining chemicals at the facility and required Ladner to wear a protective suit. Ladner testified that on December 27, 2006, while dismantling scaffolding, he felt something “pop” in his back, and he immediately fell to the ground. Ladner reported the accident to his supervisor, Gary Freek. Ladner was taken to see the company’s safety director, Frank Young, and was then taken to the safety/first-aid trailer, where he remained for the rest of the day. Ladner thereafter missed a few days of work. Upon returning to work, Ladner’s symptoms worsened. He informed Young that he needed to see a doctor. Ladner testified that, after two or three weeks of sitting in the safety trailer during work hours, he eventually saw Dr. Kevin Cooper on January 31, 2007. Dr. Cooper later referred Lad-ner to Dr. Lee Kesterton, a neurosurgeon. Dr. Kesterton treated Ladner until Ladner reached maximum medical improvement (MMI) on May 20, 2008. Ladner, along with a number of other employees, was laid off from Zachry Construction in December 2008. Ladner filed a petition to controvert with the Commission on August 24, 2009, alleging that he had suffered a work-related injury to his back and legs on December 27, 2006. Zachry Construction admitted the injury; but, the company asserted that Ladner had filed his petition to controvert after expiration of the two-year statute of limitations prescribed by Mississippi Code Section 71-3-35(1) (Rev.2011).

¶ 3. A hearing was conducted in front of an administrative judge (AJ) in March 2010. At the hearing, Ladner testified that he had continued to work during his treatment and was paid his regular wages from the date of the injury until he reached MMI. Ladner stated that he did not perform his regular job responsibilities during that period; instead, he “basically sat or lay” in the safety trailer during work hours. Ladner acknowledged on cross-examination that he occasionally did light-duty work assignments such as filing paperwork, “hole watch” duty, and “standby attendant” during safety audits, but he maintained that ninety-five percent of the time, he sat in the safety trailer watching television until he reached MMI.

¶ 4. Zaehry Construction presented two witness in its case, Young and Ian Devlin, safety supervisor for Zaehry Construction at the DuponVDeLisle facility. Young testified that Ladner reported to him on December 27 that he had injured his back, for which he was treated with aspirin and topical pain reliever. Young said Ladner never indicated to him that he needed to see a doctor. According to Young, they eventually offered to take Ladner to Dr. Cooper, a company doctor, for a medical examination. Dr. Cooper released Ladner to light duty or regular duty without restrictions. Young said he knew that Dr. Cooper had referred Ladner to Dr. Kes-terton. Young could not say what type of work Ladner did “100 percent of the time” after being released by Dr. Cooper and while he was under the care of Dr. Kester-ton; but he knew that Ladner had performed duties such as “standby attendant, filing, scaffold-yard hole watch, and bag-house hole watch.” Young said Ladner was not the only employee who had performed such duties; “iron workers, scaffold builders, pipe fitters, all crafts could do that sort of thing.” When Young was asked about Ladner’s testimony that he spent ninety-five percent of the time in the safety trailer; Young stated: “I don’t think that’s accurate[,] ... because [I] saw [Ladner] out in the work force.”

¶ 5. On cross-examination, Young maintained that Ladner did not stay in the safety trailer all day every work day. But Young acknowledged that he had seen Ladner in the trailer, and he had no knowledge as to how much time Ladner had spent in the trailer. Young further acknowledged that he never spoke to any of Ladner’s supervisors to confirm whether Ladner was in the trailer for most of the work days while under Dr. Kesterton’s care. And Young did not know if anyone at the company would know how much time-Ladner spent in the trailer or out in the field, working.

¶ 6. Devlin testified that he conducted the investigation into Ladner’s injury, and it was he who took Ladner to Dr. Cooper. When asked about Ladner’s testimony that he spent most of each work day in the safety trailer for approximately eight months, Devlin said he did not know whether that was an accurate statement or not.

¶ 7. The AJ concluded in a written order that Ladner had received wages in lieu of compensation, thereby tolling the statute of limitations. Zaehry Construction appealed the order to the Commission. The Commission reversed the AJ’s order, based on its finding that Ladner’s post-injury work activities were not “so little” that he did not “earn” his wages. The Commission determined that, since Ladner had earned his wages, such wages did not constitute “wages in lieu of compensation”; thus, Ladner’s claim was time-barred.

¶ 8. Ladner appealed the Commission’s order to the Harrison County Circuit Court, which affirmed the order. The Court of Appeals, in a seven-three decision, affirmed the Harrison County Circuit Court. Ladner v. Zachry Construction, 130 So.3d 1121 (Miss.Ct.App.2013). We thereafter granted Ladner’s petition for certiorari.

DISCUSSION

¶ 9. Our standard of review in workers’ compensation cases is limited to determining whether the Commission’s decision was supported by substantial evidence, was arbitrary and/or capricious, was beyond the Commission’s authority to make, or whether a claimant’s constitutional or statutory rights were violated. Gregg v. Natchez Trace Elec. Power Ass’n, 64 So.3d 473, 475 (Miss.2011). We review de novo the Commission’s application of the law. Id.

¶ 10. Section 71-3-35(1) of the Workers’ Compensation Act states that:

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

Miss.Code Ann. § 71-3-35(1) (Rev.2011).

¶ 11. In Parchman v. Amwood Prods., 988 So.2d 346, 350 (Miss.2008), we held that

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

(quoting Dunn, Mississippi Workmen’s Compensation § 45 (3d ed.1982)). Voluntary payment of compensation under these circumstances constitutes waiver of a formal claim. Martin v. L. & A. Contracting Co., 249 Miss. 441, 448, 162 So.2d 870, 873 (1964). This tolls the statute of limitations “if [payments of wages] were made on account of a recognition of compensation liability.” Id. (citing 2 Larson, Workmen’s Compensation Law, §§ 78.43(c), 78.70 (1952)). “Since there is seldom any evidence on whether such an intention lay behind the payment, it must be inferred from the circumstances surrounding the payment.” George S. Taylor Constr. Co. v. Harlow, 269 So.2d 337, 338 (Miss.1972). “[I]f the payment of wages was intended to be in lieu of compensation, credit for the wages is allowed.” Id.

¶ 12. Here, the Commission found that Ladner was not paid wages in lieu of compensation by Zachry Construction for his injury, noting that Ladner testified that he had participated in post-injury work activities during the period of time he contended he was paid wages in lieu of compensation, which included hole watch, safety audits, standby attendant duties, and filing paperwork. The Commission noted that both Young and Devlin testified that Ladner had performed these duties. Thus, according to the Commission, based on this testimony, the wages paid to Lad-ner were “in return for work done or services rendered.”

¶ 13. Based on our review of the record, however, we find that Zachry Construction failed to sufficiently rebut Ladner’s claim otherwise. The record shows that Zachry Construction continued to pay Ladner’s full wages until Ladner reached MMI status. Ladner acknowledged that he performed certain post-injury work activities during this period, but he maintained throughout that he spent the majority of the time in the safety trailer doing nothing. Neither Young nor Devlin could attest to how much time Ladner spent inside the trailer. And neither could state with specificity Ladner’s post-injury job description. As the Court of Appeals dissent noted, at least two supervisors could have testified as to the type of work Ladner performed following his injury. Ladner, 130 So.3d at 1127 (¶ 23). But no such testimony was provided.

¶ 14. In short, despite the fact that Ladner performed some post-injury duties for Zachry Construction, no evidence was presented in this case from which one reasonably could conclude that Ladner actually “earned” his wages during the period he was under Dr. Kesterton’s care. Accordingly, we find there is insufficient evidence to support the Commission’s decision.

CONCLUSION

¶ 15. We find that Zachry Construction’s continued payment of Ladner’s wages until Ladner reached MMI status constituted payment of wages in lieu of workers’ compensation benefits. Therefore, we find the petition to controvert filed in August 2009 was not barred by the statute of limitations. We reverse the judgments of the Court of Appeals, the Harrison County Circuit Court, and the Commission. We remand the case to the Commission for a hearing on the merits.

¶ 16. REVERSED AND REMANDED.

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


text:
    JOSHUA PROPERTIES, LLC, Performance Sports Academy, LLC and Chris Snopek v. D1 SPORTS HOLDINGS, LLC.
    No. 2012-IA-01467-SCT.
    Supreme Court of Mississippi.
    Jan. 30, 2014.

      Terris Catón Harris, Dennis C. Sweet, III, Jackson, William (BO) Roland, attorneys for appellants.
    Christopher Lamar Wansley, Armin J. Moeller, Jr., Jackson, attorneys for appel-lee.
    Before RANDOLPH, P.J., PIERCE and KING, JJ.
   PIERCE, Justice,

for the Court:

¶ 1. Joshua Properties, LLC; Performance Sports Academy, LLC; and Chris Snopek (all referred to as “Snopek”), filed suit against St. Dominic Health Services, Inc. (St.Dominic); Dl Sports Holdings, LLC (Dl TN); and Dl Sports Training of Mississippi, LLC (Dl MS) in the Circuit Court of the First Judicial District of Hinds County, Mississippi. ' Dl TN moved for dismissal based on lack of personal jurisdiction and failure to state a claim. After a hearing on the matter, the trial court entered an order granting Dl TN’s motion based on a lack of personal jurisdiction over the party. Snopek subsequently was granted this interlocutory appeal seeking this Court’s ruling on whether personal jurisdiction exists in Mississippi over Dl TN. We find that personal jurisdiction does exist over Dl TN.

¶ 2. Dl TN relies on Public Employees’ Retirement System v. Hawkins, 781 So.2d 899, 900-01 (Miss.2001), in which this Court, in the interest of justice, considered issues that were not raised in the petition for interlocutory appeal, to assert in the alternative that this case should be dismissed for failure to state a claim pursuant to Mississippi Rule of Civil Procedure 12(b)(6). Dl TN properly raised this issue before the trial court, however, the trial court did not rule on the issue; therefore, we will not address this issue for the first time on appeal.

STATEMENT OF THE FACTS

¶ 3. In 2007, Snopek proposed to St. Dominic the concept of working together in opening a multi-use sports complex for the Jackson metropolitan area. Through Joshua Properties, LLC, land was located for the complex in Madison County, Mississippi. After Snopek and St. Dominic collaborated over the designs and plans for the complex, the parties entered into a letter of intent. The letter of intent included the purchase of property located through Joshua Properties, LLC, but the letter was subject to expiration on February 28, 2008. The property was never acquired, and the letter of intent expired. However, Snopek alleges that the parties continued to move forward with the project together.

¶ 4. In December 2009, Snopek contacted Dl TN, a limited liability company formed under Tennessee state law, which has its principal place of business in Tennessee, and is not qualified to conduct business in the state of Mississippi. Sno-pek proposed to Dl TN the idea of becoming involved in the development of the sports complex by aiding with the sports and fitness aspects of the project, since Dl TN’s business focuses on custom sports-training programs, expert coaching, and sports therapy. Dl TN displayed an interest in becoming involved in the endeav- or.

¶ 5. Snopek provides that it thereafter introduced Dl TN to St. Dominic, and all of the parties together moved forward with the opening of the sports complex. Dl TN states that it discussed the project with Snopek only one time, in December 2009. Dl TN further states that it was contacted by St. Dominic around September 2010 about collaborating to create a sports-training facility in Madison County, Mississippi.

¶ 6. St. Dominic and Dl TN worked together to form Dl MS, which was created to manage the operations of St. Dominic’s sports-training facility. Dl MS’s members are comprised of St. Dominic and Dl TN. In late 2011, St. Dominic published its collaboration with Dl TN in undertaking the building of a sports-training facility in Madison, Mississippi.

¶ 7. Thereafter, Snopek initiated suit against St. Dominic, Dl MS, and Dl TN, alleging-breach of fiduciary duties, misappropriation of trade secrets, tortious interference with prospective advantage, unfair competition, civil conspiracy, and usurpation of business opportunity. On Dl TN’s motion to dismiss, the trial court ruled that personal jurisdiction did not exist over Dl TN in Mississippi for the purposes of this action. Snopek then filed a motion for interlocutory appeal with this Court.

ANALYSIS

Whether personal jurisdiction exists in Mississippi over Dl Sports Holdings, LLC.

¶ 8. Jurisdictional issues are reviewed pursuant to a de novo standard of review. McDaniel v. Ritter, 556 So.2d 303, 308 (Miss.1989) (citing MISS CAL 201, Ltd. v. Upchurch, 465 So.2d 326, 330 (Miss.1985)). Jurisdiction is decided based on the existing facts at the time the action is commenced. Estate of Jones v. Phillips ex rel. Phillips, 992 So.2d 1131, 1137 (Miss.2008) (citing Euclid-Mississippi v. Western Cas. & Sur. Co., 249 Miss. 547, 554, 163 So.2d 676, 679 (1964)).

¶ 9. Determining whether personal jurisdiction can be exercised over a nonresident defendant involves a two-part analysis. Phillips, 992 So.2d at 1137 (citing Sorrells v. R & R Custom Coach Works, Inc., 636 So.2d 668, 671 (Miss.1994)). First, we must analyze and decide if the Mississippi long-arm statute is applicable to D1 TN. Phillips, 992 So.2d at 1137 (citing Sorrells, 636 So.2d at 671). Second, we must determine if applying the long-arm statute to Dl TN comports with the Due Process Clause of the Fourteenth Amendment and the U.S. Constitution. Id.

1. Mississippi Long-Arm Statute

¶ 10. Mississippi Code Section 13-3-57 sets forth the following occurrences which subject a nonresident to personal jurisdiction within the state of Mississippi:

Any nonresident person, firm, general or limited partnership, or any foreign or other corporation not qualified under the Constitution and laws of this state as to doing business herein, who shall make a contract with a resident of this state to be performed in whole or in part by any party in this state, or who shall commit a tort in whole or in part in this state against a resident or nonresident of this state, or who shall do any business or perform any character of work or service in this state, shall by such act or acts be deemed to be doing business in Mississippi and shall thereby be subjected to the jurisdiction of the courts of this State.

Miss.Code Ann. § 13-3-57 (Rev.201-2).

¶ 11. Snopek alleges that Dl TN committed a tort in the state, entered into a contract in the state, and conducted business within the state. Because we find that Dl TN was “doing business” within the state in accordance with the long-arm statute, we will not address whether Dl TN committed a tort or entered into a contract in the state. Phillips, 992 So.2d at 1139.

¶ 12. Before the long-arm statute was amended in 1991, the “doing business” element of the statute could not be applicable to a nonresident defendant without a connection between the cause of action and the business, work, or service taking place within the state. Phillips, 992 So.2d at 1139 (citing Mladinich v. Kohn, 250 Miss. 138, 147, 164 So.2d 785, 790 (1964)). After the statute was amended, the “nexus” requirement between the cause of action and the business being conducted .within the state was eliminated. Phillips, 992 So.2d at 1139 (citing Gross v. Chevrolet Country, Inc., 655 So.2d 873, 878 (Miss.1995)). Currently, “... the long-arm statute, by its plain terms, applies to any person or corporation performing any character of work in this state.” Phillips, 992 So.2d at 1139; see ITL Int’l, Inc. v. Constenla, S.A., 669 F.3d 493, 498 (5th Cir.2012); Davenport v. Hansaworld USA, No. 2:12-CV-233-KS-MTP, 2013 WL 5406900, at *4 (S.D.Miss. Sept. 25, 2013).

¶ 13. Dl TN contends that it is “joint owners” of -Dl MS with St. Dominic. As previously mentioned, Dl TN and St. Dominic are the members of Dl MS, an LLC. Dl TN created the LLC with St. Dominic via telephone and email communication. Dl TN executed the documents to create Dl. MS and electronically provided the documents to St. Dominic. Will Bartholomew, on behalf of Dl TN, traveled to Mississippi on the following occasions: (1) to meet with medical professionals at Mississippi Sports Medicine and Orthopedic Center, (2) to meet with St. Dominic regarding the creation of Dl MS, (3) to further discuss, the creation of Dl MS with St. Dominic, (4) to finalize the creation of Dl MS with St. Dominic, (5) to discuss real estate options for the location of Dl MS, and (6) to attend the ground breaking for Dl MS.

¶ 14. Dl TN argues that it is not conducting business within the state so as to render it amenable to suit under the state long-arm statute because Dl TN has never conducted the following transactions within the state: (1) held an office or place of business, (2) solicited business on behalf of itself or through an agent, (3) contracted on behalf of itself or through an agent to supply goods and services, (4) maintained a Mississippi bank account, (5) obtained a telephone listing, (6) paid income taxes, (7) owned any real property, or (8) purposefully solicited, marketed, or promoted itself. D1 TN cites Roxco, Ltd. v. Harris Specialty Chemicals, Inc., 133 F.Supp.2d 911, 916 (S.D.Miss.2000), in which that court held the defendants made “transient” visits within the state to inspect products, but were not “doing business” within Mississippi because they did not sell products directly to residents, did not obtain a bank account in state, did not have a telephone listing, and did not own or lease real property. We find this argument to be without merit.

¶ 15. Looking to the plain language of the long-arm statute, we find that Dl TN was conducting business within the state and that it subjected itself to suit, considering the sum of its activities. Dl TN collaborated with St. Dominic about creating a sports-training facility in the state, communicated and planned with St. Dominic furthering its formation, participated in meetings in the state, substantially participated in the actual creation of Dl MS, and subsequently became members or “joint owners” of Dl MS. Finding the long-arm statute applicable to Dl TN, we must now determine whether the application offends the Due Process Clause of the Fourteenth Amendment.

2. Due Process

¶ 16. To ensure that the application of the long-arm statute over a nonresident corresponds with the requirements of due process, it must be shown that there are sufficient minimum contacts with the state such that allowing suit within the state “... does not offend ‘traditional notions of fair play and substantial justice.’ ” Phillips, 992 So.2d at 1139 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940))). “Conduct in connection with the forum state must be such that he ‘should reasonably anticipate being haled into court’ in the forum state.” Internet Doorway, Inc. v. Parks, 138 F.Supp.2d 773, 778 (S.D.Miss.2001) (citations omitted); see World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). Due process requires minimum contacts with the forum state to prevent nonresidents from becoming bound by judgments in a state where “... no meaningful ‘contacts, ties, or relations’ ” have been established. Internet Doorway, 138 F.Supp.2d at 778 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985)).

¶ 17. Minimum contacts with the forum state may trigger either specific personal jurisdiction or general personal jurisdiction. American Cable Corp. v. Trilogy Commc’ns, Inc., 754 So.2d 545, 550 (Miss.Ct.App.2000) (citations omitted); see Phillips, 992 So.2d at 1140; Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-415 nn. 8-9, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); Burger King Corp., 471 U.S. at 473 n. 15, 105 S.Ct. 2174. General personal jurisdiction is appropriate over a nonresident when no nexus exists between the defendant’s activities in the forum state and the litigation, and the contacts with the state are “systematic and continuous.” Phillips, 992 So.2d at 1141 (citing Helicopteros, 466 U.S. at 415-418, 104 S.Ct. 1868, 80 L.Ed.2d 404). Specific personal jurisdiction is exercised over a nonresident when a nexus exists between the litigation and the activities within the state. Id. See Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579, 53 L.Ed.2d 683 (1977).

¶ 18. Here, the cause of action arises because of Dl TN’s contacts with St. Dominic of Mississippi and the creation of and membership in a Mississippi LLC. “A single act by the defendant directed at the forum state ... can be enough to confer personal jurisdiction if that act gives rise to the claim being asserted.” Horne v. Mobile Area Water & Sewer Sys., 897 So.2d 972, 980 (Miss.2004) (citing Med. Assurance Co. of Miss. v. Jackson, 864 F.Supp. 576, 578-79 (S.D.Miss.1994) (quoting Ruston Gas Turbines, Inc. v. Donaldson Co., Inc., 9 F.3d 415, 419 (5th Cir.1993))). Minimum contacts may be sufficient under specific jurisdiction when the nonresident’s act or acts “... purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Med. Assurance Co. of Mississippi, 864 F.Supp. at 579 (quoting Ruston Gas Turbines, 9 F.3d at 419).

¶ 19. In Medical Assurance Co. of Mississippi, the court found specific personal jurisdiction could be exercised over the nonresident defendant even though he had never been physically present within the state. Med. Assurance Co. of Miss., 864 F.Supp. at 579. The defendant negotiated a settlement on behalf of his client through two letters and two telephone conversations, which the court found were sufficient minimum contacts with the forum state such that the defendant purposefully availed itself of the benefits of the state. Id. at 579-80.

¶ 20. In comparison, Dl TN purposefully availed itself of the forum state by becoming a member of an LLC that is subject to the benefits and protections of the State of Mississippi. Dl TN becoming a member of an LLC through in-state and out-of-state negotiations, combined with its substantial participation in the formation of the LLC, are sufficient minimum contacts with the forum. Further, Dl TN is a member of an LLC formed for the purpose of overseeing a sports-training facility in the State of Mississippi.

¶ 21. Lastly, we must determine whether subjecting Dl TN to suit in Mississippi will offend “traditional notions of fair play and substantial justice” by considering the following factors: (1) Mississippi’s interest in settling the case, (2) the potential hardship on Dl TN, (3) Snopek’s concern with receiving “convenient and effective relief,” (4) “the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and (5) “the shared interest of the several States in furthering fundamental substantive social policies.” Burger King Corp., 471 U.S. at 477, 105 S.Ct. 2174 (citing World-Wide Volkswagen Corp., 444 U.S. at 292, 100 S.Ct. 559).

¶ 22. Ultimately, Dl TN provides that no minimum contacts exist between it and Mississippi. Dl TN argues .that the above factors need not be considered individually. Rather, only the fairness of exercising jurisdiction over it should be considered in determining whether “traditional notions of fair play and substantial justice” would be offended through exercising jurisdiction. However, the case Dl TN cites provides that “fairness” is determined by considering the aforementioned factors. Allred v. Moore & Peterson, 117 F.3d 278, 286 n. 7 (5th Cir.1997). Dl TN asserts that exercising jurisdiction oyer it would be burdensome because it is a Tennessee LLC and its principal place of business is in Tennessee. Further, Dl TN alleges that Snopek does not have a valid interest in any relief because Sno-pek fails to present any tortious or wrongful conduct by Dl TN in Mississippi.

¶ 23. Because Dl TN purposefully availed itself of the benefits of the State of Mississippi by becoming members of and aiding in the formation of an LLC in the state via telephone and electronic communications and by traveling to the state, we are unpersuaded by Dl TN’s assertion that its physical location in Tennessee, alone, would subject it to an undue burden if required to appear in court in Mississippi. Further, Mississippi has an interest in overseeing the adjudication of the case, because Dl TN is a component part of a Mississippi LLC, which also is a defendant in the impending litigation. Lastly, Sno-pek obtains an interest in obtaining “convenient and effective” relief in Mississippi because the harm it alleges stems from the actions and contacts that Dl TN has within the state.

¶ 24. Accordingly, the “doing business” prong of the Mississippi long-arm statute is applicable to Dl TN. Further, Dl TN has established sufficient minimum contacts with Mississippi, and subjecting it to personal jurisdiction in the state would not violate the Fourteenth Amendment of the United States Constitution.

CONCLUSION

¶ 25. The trial court’s dismissal for lack of personal jurisdiction over Dl TN is reversed because exercising personal jurisdiction over the defendant does not violate the Mississippi long-arm statute or the Fourteenth Amendment of the United States Constitution. This case is remanded to the First Judicial District of Hinds County, Mississippi for proceedings consistent with this opinion.

¶ 26. REVERSED AND REMANDED.

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