author: MAXWELL, J., CARLTON, J.,

text:
    Grace West JENNINGS, Appellant v. Thomas S. SHULER, Individually, and McClure & Shuler, a Partnership, Composed of Thomas S. Shuler, James McClure, Jr., and James McClure, III, as Partners of the Partnership, Appellees.
    No. 2012-CA-01122-COA.
    Court of Appeals of Mississippi.
    Feb. 4, 2014.
    Rehearing Denied June 10, 2014.
    Certiorari Denied Sept. 25, 2014.

      Bruce S. Kramer, Elaine Sheng, Jackson, attorney for appellant. .
    Dan W. Webb, Norma Carr Ruff, Tupe-lo, attorneys for appellees.
   MAXWELL, J.,

for the Court:

¶ 1. In her appeal of the grant of summary judgment in favor of Thomas Shuler and his law partnership, Grace West Jennings argues the dispositive question is whether Shuler, as a matter of law, owed her a duty to file a financing statement to perfect an interest in collateral covered by a security agreement Shuler had drafted. The circuit court had granted summary judgment in Shuler’s favor based on its finding Shuler owed no duty, and without a duty, there could be no claim for legal malpractice.

¶ 2. We disagree with the circuit court that Shuler, as a matter of law, owed no duty to file a financing statement. Instead, we find that whether Shuler breached the duty of professional care owed to Jennings by not filing a financing statement is a question of fact, not resolvable on summary judgment. However, we also disagree with Jennings that this issue is dispositive and demands reversal.

¶ 3. We review the grant of summary judgment de novo. And in our de novo review, we must consider each ground for summary judgment raised by Shuler. Shuler had alternatively argued to the circuit court that even if Jennings’s evidence establishes a claim that he breached a duty, Jennings could not establish Shuler’s failure to file a financing statement proximately caused her injury. Shuler had also argued Jennings’s legal-malpractice claim was time-barred. After considering these alternative grounds, we find the circuit court properly dismissed Jennings’s legal-malpractice claim on summary judgment. Even if Jennings had made it past the hurdle of establishing a triable question of Shuler’s professional negligence by not filing a financing statement, she cannot show damages proximately caused by the failure to file. Further, her claim was filed outside the three-year statute of limitations. Thus, we affirm.

Background

I. Jennings Loaned More Than One-Half Million Dollars to Her Son

¶ 4. By the time Jennings retained Shu-ler to draft loan documents, she had already lent her son Luther Allen West more than $500,000, without requiring security. It was only when her other children found out about the loans — children who, along with Jennings and West, were partners in H & G Land Company, LP (H & G) — that they contacted Shuler on Jennings’s behalf.

¶ 5. At the direction of Jennings’s other son, Shuler drafted: (1) a promissory note; (2) a deed of trust on West’s real property; (3) a security agreement covering West’s nine percent interest in H & G, West’s share in the West Family Trust, and West’s interest in some farm equipment; and (4) an assignment to Jennings of West’s interest in the collateral upon default, until West paid off the debt. Specifically, the security agreement granted Jennings an interest in “[a]ll farm equipment now owned or hereafter acquired by [West], including but not limited to those items of equipment set forth on Exhibit ‘A’ attached hereto[.]” But there was no attached Exhibit A.

¶ 6. On December 31, 2002, the day Jennings and West came in to sign the documents, Shuler told them he would need West’s farm-equipment list in order to draft the exhibit and file a financing statement. Shuler promptly recorded the deed of trust in Panola County, Mississippi. But he did not file a financing statement with the Secretary of State’s Office, because he was waiting on West’s farm-equipment list. See Miss.Code Ann. § 75-9-501 (Rev.2002).

¶ 7. Instead of receiving the farm-equipment list, in April 2003 Shuler received a visit from Bill Fleming, a trust officer with First Security Bank (FSB). Fleming showed Shuler a document in which Jennings had transferred to FSB the right to receive the loan repayments West owed Jennings. The document named Fleming as custodian. And Fleming asked Shuler to hand over the original documents in connection with the Jennings-West loan.

¶ 8. The transfer-of-custody document acknowledged that the security agreement was missing Exhibit A, the list of farm equipment. Shuler told Fleming that because no farm-equipment list had ever been provided, no financing statement had been filed. Shuler encouraged Fleming to get the equipment list and file the financing statement with the Secretary of State’s Office. While West eventually gave Fleming the list in January 2004, no one told Shuler. And no financing statement was ever filed to perfect Jennings’s interest in the collateral.

II. Jennings’s Son Filed Bankruptcy

¶ 9. Despite West’s immediate default, Jennings continued to work with her son, instead of trying to seize the collateral from him, which was certainly her right under the assignment. In April 2004, she sent West a letter acknowledging his default, threatening to obtain a judgment against him, but giving her son another chance to work things out with Fleming.

¶ 10. According to Jennings, she believed this letter was sufficient notice of West’s default for the terms of the assignment to take effect, making her the outright owner of West’s nine percent interest in H & G and West’s interest in the West Family Trust. But none of the records of H & G reflected any transfer of ownership. Instead, the records showed West was still the owner of his nine percent interest and was paid distributions accordingly.

¶ 11. That is until December 2005, when the H & G partners amended their partnership agreement based on West’s filing bankruptcy — an event that under the terms of the partnership made West a limited partner, instead of a general partner. West did not in fact file bankruptcy until March 2006 — putting the change of West’s status from general to limited partner outside the ninety-day preferential-treatment period. At that time, H & G stopped making distributions to West — or more precisely West’s bankruptcy estate— but instead sent West’s portion to Jennings.

¶ 12. With Shuler’s aid, Jennings filed a proof of claim, asserting her status as a secured creditor. In November 2008, the bankruptcy trustee hired an attorney to investigate Jennings’s and H & G’s financial dealings with West pre-and post-bankruptcy. And Jennings retained new counsel to replace Shuler. In 2009, the trustee initiated an adversary proceeding — a lawsuit within the bankruptcy case to determine the validity of Jennings’s secured claims. In the adversary complaint, the trustee challenged Jennings’s status as a secured creditor, asserting that Jennings neither filed a financing statement to perfect her interest in West’s partnership interest in H & G nor took any steps, prior to West filing bankruptcy, to exercise any security interest she possessed in any of West’s assets. Further, H & G had continued to treat West, not Jennings, as owner of his nine percent interest. The adversary complaint also alleged that Jennings had violated the automatic stay, that she was an “insider” who had received voidable loan repayments within the year of West’s filing bankruptcy, and that she had failed to amend her proof of claim based on these repayments.

1113. Jennings claims that it was not until November 26, 2008 — when the bankruptcy trustee applied to hire an attorney to investigate her interest — that she learned that Shuler had never filed a financing statement. Jennings ultimately settled with the trustee in 2012, receiving $15,600 more than the appraised value of West’s interest in H & G. While the bankruptcy court had rejected Jennings’s assertion that she had an absolute assignment of West’s pledged assets, the court did find her claim to West’s share in the H & G partnership was superior to the bankruptcy estate’s.

III. Jennings Sued Shuler for Legal Malpractice

¶ 14. Before the adversary proceeding had concluded, Jennings sued Shuler for legal malpractice on November 22, 2011. In her complaint, she alleged Shuler had “negligently failed to execute the Uniform Commercial Code filings necessary to perfect [her] security interest in the collateral described in the Agreements with [West].” Consequently, her secured-interest status in West’s bankruptcy had been challenged in the adversary proceeding, requiring her “to engage counsel to defend her interests.” And “[i]f the Trustee prevails because Shuler failed to perfect her security interest or if the Bankruptcy Court determines there was no absolute assignment, [she] will not have the security or collateral she should have received, but for the negligence of Shuler.”

¶ 15. Shuler answered and filed a counterclaim against Jennings, H & G, FSB, Shuler’s liability insurer, and the attorney representing Jennings in the adversary proceeding, along with that attorney’s law firm and liability insurer.

¶ 16. In March 2012, Shuler filed a motion for summary judgment on Jennings’s claims. In this motion, Shuler asserted:

(1) based on the undisputed facts, Jennings could not show Shuler was negligent in failing to file the financing statement he prepared;
(2) even if Jennings could show negligent actions, Jennings could not show such negligence proximateiy caused a compensable injury; and
(3) Jennings’s legal-malpractice claim was barred by the three-year statute of limitations.

The circuit court agreed with the first reason. Because the court found that “Shuler had no duty to file the financing statement,” the court held Jennings’s evidence that Shuler did not file a financing statement could not support Jennings’s legal-malpractice claim.

¶ 17. The court granted summary judgment in Shuler’s favor, disposing of all of Jennings’s claims. The court certified its judgment as a final judgment under Mississippi Rule of Civil Procedure 54(b). And Jennings timely appealed this judgment when it became final.

Discussion

¶ 18. Jennings argues that, as a matter of law, Shuler owed her a duty to file a financing statement. And because Shuler admits he did not file a financing statement, Jennings asserts it was she, not Shuler, who was entitled to summary judgment on the issue of Shuler’s professional negligence.

¶ 19. We will not go as far as Jennings asks us and declare that, as a matter of law, a lawyer who does not file a financing statement in connection with any security agreement he or she has drafted has committed malpractice. But we do think the circuit court was wrong to go the opposite route to find that an attorney never owes a duty to his client to file a financing statement. Instead, whether an attorney was professionally negligent for not filing a financing statement is a case-by-case, fact-intensive question. And while it was undisputed that Shuler did not file a financing statement, it is disputed why he never did. So the question of whether Shuler breached a duty owed to Jennings by not filing the financing statement is not one that could have been resolved on summary judgment — in either party’s favor.

¶ 20. Still, the question of whether Shu-ler breached a duty owed to Jennings by not filing the financing statement is not the only question before us on appeal. We review the grant of summary judgment de novo. Evans v. Howell, 121 So.3d 919, 922 (¶ 14) (Miss.Ct.App.2013). And in our de novo review, we must consider each ground for summary judgment raised by Shuler. See Brocato v. Miss. Publishers Corp., 503 So.2d 241, 244 (Miss.1987) (holding that, on the plaintiffs appeal of summary judgment, the defendants were “entitled to raise any alternative ground based on the pleadings in the court below which would support the judgment”). Shuler had alternatively suggested to the circuit court that even if Jennings’s evidence establishes a claim that he breached a duty, Jennings could not show Shuler’s failure to file a financing statement proximately caused her injury. Shuler had also argued Jennings’s legal-malpractice claim was time-barred.

¶ 21. After considering these alternative grounds, we find the grant of summary judgment in Shuler’s favor should be affirmed. See id. (disagreeing with circuit court that the claim was time-barred but nonetheless affirming the grant of summary judgment based on an alternative ground). We find that, even if Jennings established a triable question of Shuler’s professional negligence by not filing a financing statement, she cannot show damages proximately caused by the failure to file. Further, her claim was filed outside the three-year statute of limitations.

I. Jennings’s Failure to Establish Elements Essential to Her Claim

¶22. “Although summary judgment, in whole or in part, must be granted with great caution, it is mandated where the respondent has failed to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” See Mabus v. St. James Episcopal Church, 13 So.3d 260, 263 (¶ 6) (Miss.2009) (emphasis added and quotations and citations omitted). As the plaintiff in a legal-malpractice suit, Jennings not only bears the burden to prove the existence of the lawyer-client relationship (which Shuler conceeds) and Shuler’s breach of duty, but she also bears the burden to prove that Shuler’s breach of duty proximately caused her injury. See Crist v. Loyacono, 65 So.3d 837, 843 (¶ 15) (Miss.2011).

¶23. Here, the circuit court’s analysis did not go beyond the element of duty. Because the judge found, based on undisputed facts, that Shuler owed Jennings no duty to file a financing statement, the court held Jennings’s claim failed as a matter of law, without delving further into Shuler’s alternative claim that Jennings failed to establish the existence of proximate cause of the injury. But in our de novo review, even if we are satisfied — as the dissent is — that a factual dispute exists over whether Shuler owed and breached a duty, we cannot end our analysis there — as the dissent does. We must also determine if Jennings has established triable issues on the remaining elements of her legal-malpractice claim.

¶ 24. Mississippi recognizes two types of legal-malpractice claims — one based on the theory the attorney breached the duty of care (i.e., was neglient), the other based on the theory the attorney breached a fiduciary duty. Id. at 842 (¶ 15). Jennings brought a negligence-based claim of legal malpractice. “Because attorneys are afforded a degree of professional autonomy, proof of success in the underlying case is an appropriate test for proximate cause in a negligence-based action[.]” Id. at 843 (¶ 16). “[I]t ensures that attorneys are only held professionally liable where their failures to adhere to the standard of care actually impacted the plaintiffs interests in the case.” Id.

¶ 25. Here, Jennings’s interest in West’s partnership interest in H & G ultimately was not impacted by the lack of a filed financing statement, as Jennings succeeded in recovering from West’s bankruptcy estate more than the appraised value of the collateral that she claims that Shuler jeopardized by his negligence. See Lawrence v. Greenline Equip., Inc., 676 So.2d 291, 292 (Miss.1996) (dismissing appeal based on intervening ruling by bankruptcy court); see also Kruger v. Garden Dist. Ass’n, 208 F.3d 1006, 2000 WL 177915, *1 (5th Cir.2000) (unpublished) (holding intervening favorable decision by state court rendered current appeal moot).

¶ 26. Jennings’s legal-malpractice claim against Shuler was conditional, alleging “if the Trustee prevails because Shuler failed to perfect her security interest or if the Bankruptcy Court determines there was no absolute assignment, [she] will not have the security or collateral she should have received, but for the negligence of Shuler.” (Emphasis added). In the opinion dismissing the bankruptcy trustee’s claim against West, the bankruptcy court found West held a valid security interest in West’s nine percent interest in H & G and that her interest was superior to the bankruptcy trustee’s. Thus, the conditional injury that Jennings asserted may have been caused by Shuler’s negligence never resulted.

¶ 27. Despite not losing the value of her collateral to West’s bankruptcy estate, Jennings asserts she was nevertheless injured by Shuler’s inaction because it led to her being sued by the bankruptcy trustee in an adversary proceeding. Even if we characterize Jennings’s legal-malpractice claim as asserting a theory of breach of fiduciary duty, she still has not established a triable issue on whether it was Shuler’s failure to file a financing statement that proximately caused her claimed injury. See Crist, 65 So.3d at 843 (1116) (“[A]n attorney’s breach of his fiduciary duties to his client may cause injury to the client entirely separate from the merits of the underlying case.”).

¶ 28. “The proximate cause of an injury is that cause which in natural and continuous sequence unbroken by any efficient intervening cause produces the injury, and without which the result would not have occurred.” Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So.2d 413, 417 (Miss.1988) (emphasis added citation omitted). If “another acting independently and of his own volition puts in motion another intervening cause which efficiently leads in unbroken sequence to the injuries,” then the intervening cause “is the proximate cause.” Hoke v. W.L. Holcomb & Assocs., Inc., 186 So.2d 474, 477 (Miss. 1966) (citation omitted). As is clear from reading the bankruptcy trustee’s complaint, it was not simply the fact that no financing statement was filed that led to the adversary proceeding. Rather, H & G’s about-face—treating West as owner of the nine percent interest and paying him dividends until he filed bankruptcy, as well as its conveniently restricting West to a limited partner more than ninety days before he filed bankruptcy—had raised a significant red flag. The trustee’s concerns were compounded by Jennings’s own ambivalence towards the repayment and secured status of her loans, which led to no equipment list being provided to Shuler, despite his saying he needed it before filing a financing statement, and kept Jennings from taking more decisive measures in the three years between West’s default and filing bankruptcy, Further, after West filed bankruptcy, Jennings failed to amend her proof of claim, despite receiving almost $70,000 towards the repayment of West’s debt.

¶ 29. While Jennings successfully settled all claims of wrongdoing by the trustee, it was her actions, not Shuler’s, that led to the adversary proceeding. The most Jennings’s evidence establishes is that Shuler’s not filing a financing statement was a remote cause of her having to defend against an adversary proceeding. See Hoke, 186 So.2d at 477. Because Jennings failed to present sufficient evidence to establish that Shuler’s not filing a financing statement proximately caused her to lose the collateral or any other injury, summary judgment in favor of Shuler was proper.

II. Jennings’s Failure to File Her Claim Within the Statute of Limitations

¶ 30. Summary judgment was also proper because Jennings’s claim was time-barred. The three-year statute of limitations applied to Jennings’s legal-malpractice claim. See Bennett v. Hil-Boren, P.C., 52 So.3d 364, 369 (¶ 13) (Miss.2011) (citations omitted). It is undisputed that in April 2003 Shuler stopped his efforts to memorialize Jennings’s loans to her son and secure collateral for those loans. But Jennings did not file her legal-malpractice claim until more than eight years later, in November 2011.

¶ 31. In her complaint, Jennings insisted her claim was timely because she did not “discover” the fact that the financing statement had not been filed with the Secretary of State until November 2008, when the bankruptcy trustee hired an outside attorney to investigate Jennings’s dealings with her son. While the “discovery rule” does apply to legal-malpractice actions, Evans, 121 So.3d at 923 (¶ 19), here we find it does not excuse her untimely claims.

¶ 32. Under the discovery rule, “the statute of limitations begins to run on the date that the client learns or, through the exercise of reasonable diligence, should learn of his lawyer’s negligence.” Id. (citing Smith v. Sneed, 638 So.2d 1252, 1256 (Miss.1994)). Here, there is no question Jennings either learned or, had she exercised “reasonable diligence,” should have learned of Shuler’s alleged negligence — his failure to file a financing statement — by April 200B.

¶ 38. In the legal-malpractice context, the discovery rule applies when either “the plaintiff will be precluded from discovering harm or injury because of the secretive or inherently undiseoverable nature of the wrongdoing in question” or when “it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act.” Id. at 924 (¶ 22) (quoting Channel v. Loyacono, 954 So.2d 415, 421 (¶ 19) (Miss.2007)).

¶ 34. Just as in Evans, “there was nothing ‘secretive or inherently undiseoverable’ about [Shuler’s] preparation of [the loan documents].” Id. at (¶ 23). No one disputes that Shuler told Jennings he needed a list of the equipment to complete Exhibit A to the security agreement and prepare a financing statement. So regardless of whether Shuler had a duty to file a financing statement even without an equipment list, Jennings knew Shuler was not going to file a financing statement unless she provided him with an equipment list— which she never did. Instead, in April 2003, she directed Shuler to hand over his file to Fleming at FSB, because she had designated Fleming custodian of the loan repayments from her son. The transfer-of-custody document presented to Shuler in April 2003 acknowledged there was no list of equipment attached to the security agreement. Further, Shuler did not try to conceal that he had not filed a financing statement. Instead, he encouraged Fleming to get an equipment list so that a financing statement could be filed to secure the collateral for the loan repayments. Again, regardless of whether Shu-ler’s duty to file a financing statement was non-delegable, Jennings should have known by April 2003 that Shuler had not filed — and was not going to file — a financing statement.

¶ 35. Nor was it “unrealistic to expect [Jennings,] a layman[,] to perceive the injury at the time of the wrongful act.” Id. at (¶ 22). Jennings had hired Shuler to memorialize the hundreds of thousands of dollars in loans she had already made to her son and to secure as much collateral for the loans as possible. And Shuler had told her he could not complete the task until she provided him with an equipment list. As a layman, Jennings may not have understood the importance of filing a financing statement to protect her security interest as between her and other would-be creditors. But we cannot say it was “unrealistic” for Jennings, even as a layman, to perceive that she may be injured by the fact that, according to her attorney, the loan documents he had drafted were still incomplete when she requested they be transferred in April 2003. See id. (holding it was not unrealistic for a layman client to perceive a buyout agreement only covered the stock in one company, because none of the other mutually owned companies were mentioned).

¶ 36. Because the three-year statute of limitations began to run in April 2003, Jennings’s legal-malpractice claim filed in November 2011 is time-barred. For this additional reason, we affirm the circuit court’s grant of summary judgment in Shuler’s favor. See Brocato, 503 So.2d at 244.

¶ 37. THE JUDGMENT OF THE PA-NOLA COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS AND FAIR, JJ„ CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., AND JAMES, J.

CARLTON, J.,

dissenting:

¶38. I respectfully dissent from the majority’s opinion. Because I believe that a disputed issue of material fact exists as to the purpose, scope, and hence duties and negligent breach of the agreed-upon legal representation in this case, I would find that the circuit court erred in granting summary judgment. I would therefore reverse and remand the case to the Panola County Circuit Court for further proceedings.

FACTS

¶ 39. This case arises from a legal-malpractice claim filed by Grace West Jennings against her attorney, Thomas S. Shuler, individually, and McClure & Shu-ler, a partnership composed of Shuler, James McClure Jr., and James McClure III (collectively Defendants). Over a period of several years, Jennings loaned money to her son, Allen West (West). In November 2002, Jennings secured the legal services of Shuler to perfect her interest in loans that she previously made to her son, and as stated in her affidavit, she relied on Shuler in all aspects related to securing her interest in these loans. With respect to the scope of legal representation, Jennings’s affidavit provides as follows:

I retained the law firm of McClure and Shuler to prepare documents evidencing loans I had extended to my son[,] Allen West. Pursuant to this engagement, Thomas Shuler of the law firm prepared a Promissory Note, Deed of Trust, Security Agreement^] and Assignment concerning the loans to Allen West. I relied on Mr. Shuler to handle all necessary legal aspects concerning this engagement with respect to my loans to Allen West.

¶ 40. In performing the legal tasks required to accomplish the goals of his legal representation of Jennings, Shuler prepared a note, deed of trust, assignment, and security agreement on a nine percent interest in H & G Land Company, Limited Partnership (H & G), West’s share in the West Family Trust, and West’s interest in some farm equipment. The security agreement granted Jennings a security interest in “[a]ll farm equipment now owned or hereafter acquired by [West], including but not limited to those items of equipment set forth on Exhibit ‘A’ attached hereto and ... referred to as ‘Collateral.’ ” Shu-ler advised Jennings that she would need to furnish him with the list of farm equipment mentioned in the security agreement, but Shuler never received the list of farm equipment referenced in the security agreement. Shuler argues on appeal that Jennings hired him merely to draft these specified documents, but the facts in the record support Jennings’s claim that securing her interest in West’s collateral was an objective of the legal matters entrusted to Shuler.

¶ 41. On December 31, 2002, West and Jennings executed the deed of trust, the assignment, and the security agreement. Shuler recorded the deed of trust in the Panola County records of deeds of trust on January 8, 2003, but he never filed a financing statement in accordance with Mississippi Code Annotated section 75-9-501 (Rev.2002) to perfect Jennings’s security interest. In asserting that he possessed no duty to file the financing statement, Shuler explains that he never received the farm-equipment list referenced in the security agreement that he requested from Jennings. Shuler asserts that he needed this list to prepare the financing statement for filing. He also argues that his duty to perform legal services procured by Jennings ceased when he transferred his file on the matter to First Security Bank (FSB) at Jennings’s request.

II42. On April 9, 2003, Bill Fleming, a trust officer with FSB, presented Shuler with a transfer agreement signed by Jennings that transferred custody of the loan documents into a trust account administered by FSB. Shuler informed Fleming that no financing statement had been filed to perfect Jennings’s interest because he had not yet received the list of farm equipment referenced. The documents transferred to the custody of FSB also reflect a notation about the lack of a farm-equipment list. The record reflects that FSB merely maintained custody of the loan documents, and at oral argument in this case, the parties asserted no argument claiming that FSB assumed any legal-representation duties in FSB’s capacity as custodian of the financial documents. West later provided FSB with the equipment list in January 2004.

¶ 43. Subsequently, in March 2006, West filed a Chapter 12 bankruptcy. Jennings again hired Shuler to represent her. During the bankruptcy proceeding, Jennings learned that her security interest in West’s collateral had not been perfected and that Shuler never filed a financing statement to protect her interest in West’s collateral. On May 14, 2009, the bankruptcy trustee filed an adversary proceeding against Jennings to challenge her interest in West’s H & G interest.

¶ 44. Shuler argues that the trustee would have disputed Jennings’s security interest even if the interest had been perfected. However, no evidence in the record exists to support this argument. Also, this argument involves factual issues affecting the proximate cause of any resulting damages, but this argument of an inevitable dispute with the trustee fails to relate to the scope and purpose of Shuler’s prior legal representation of Jennings. This argument further fails to impact the questions of whether Shuler possessed a duty to perfect Jennings’s security interest with the general description of “equipment” or “farm equipment” available to him and whether he possessed a duty to reasonably pursue outstanding information that he deemed necessary to complete the legal tasks falling within the scope and objectives of his legal representation of Jennings.

¶ 45. After learning of the adversary proceeding, Jennings engaged David Cocke to represent her in the adversary proceeding with the trustee, and Shuler withdrew as her attorney. Jennings and the bankruptcy trustee subsequently reached a settlement in which Jennings received $15,600 more than the appraised value of West’s interest in H & G.

¶ 46. Jennings then filed her complaint against Defendants on November 22, 2011, seeking to recover damages, including the attorneys’ fees she incurred during the adversary proceeding to defend her security interest in West’s collateral. Defendants filed a motion to dismiss or, in the alternative, a motion for summary judgment. A hearing commenced on the motion on April 20, 2012. At the conclusion of the hearing, the circuit court requested additional briefing on whether, under Mississippi law, a duty exists for an attorney to file a financing statement when a debt is secured by collateral. On June 14, 2012, the circuit court entered an order granting summary judgment in favor of Defendants, finding that no duty exists. On February 6, 2013, Defendants filed a motion to dismiss the appeal, which this Court denied.

DISCUSSION

¶ 47. This case involves an action for negligence against an attorney, Shuler, and assertions that he negligently failed to complete legal work required within the scope of representing his client, Jennings. Questions of material fact exist regarding whether Shuler possessed a duty to perfect Jennings’s security interest in collateral pledged by her son, West, and whether Shuler negligently breached that duty. To determine whether an attorney negligently handled his client’s affairs entrusted to him, first the scope and purpose of the legal representation between the parties must be factually determined. Also, facts must establish what legal tasks and “means” were required to be accomplished to achieve the objectives and purpose of the legal representation in this case to determine if Shuler possessed a duty to perform a specific legal task to achieve the purpose of the representation. Whether an intervening cause is substantial enough to relieve performance of a contractual duty constitutes a material question of law and fact.

¶ 48. In some past cases, precedent recognized that negligence per se existed because the law defined the attorney’s duty in handling the particular case or legal work. In Hickox ex rel. Hickox v. Holleman, 502 So.2d 626, 636 (Miss.1987) (superseded by rule on other grounds), the attorney failed to file an action within the statute of limitations, and the Mississippi Supreme Court found that such negligence constituted negligence as a matter of law. This case presents a fact question as to whether Shuler acted negligently in his legal representation of Jennings.

¶ 49. Agency theory applies when a client hires an attorney to perform certain legal work, and the comment to Mississippi Rule of Professional Conduct 1.3 provides that an attorney should carry through to conclusion a matter that the attorney has undertaken for the client. In this case the scope of representation defined the matters undertaken by Shuler pertaining to securing Jennings’s interest in West’s collateral. Statutes and precedent define the requirements to perfect and secure a creditor’s interests in the collateral involved in this case. See Miss. Code Ann. § 75-9-501.

¶ 50. Section 75-9-501 provides instruction on the proper place to file to perfect a security interest in the collateral involved in this case and requires a financing statement to be filed with the Secretary of State’s Office and with the chancery court of the county where the collateral is located. The collateral involved in this case included a nine percent interest in H & G, West’s share in the West Family Trust, and West’s interest in some farm equipment. Shuler prepared a note, deed of trust, assignment, and security agreement for Jennings, and he recorded the deed of trust in the Panola County records of deeds of trust. However, Shuler never filed a financing statement with the Secretary of State in accordance with section 75-9-501 to perfect Jennings’s interest in the collateral pledged to secure the deed of trust.

¶ 51. Shuler asserts that he possessed no duty to complete the steps required to perfect Jennings’s security interest because Jennings failed to provide him an itemized listing of the farm equipment to be secured. Shuler requested that Jennings provide this list, but she failed to provide it to him. Shuler therefore claims that Jennings’s intervening conduct of failing to provide this requested information relieved him of his duty to further perform. However, applicable statutes reflect that no such list is required to perfect the security interest in the collateral in this case.

¶ 52. In perfecting a security interest in accordance with section 75-9-501 with a sufficient description of collateral, Mississippi Code Annotated section 75-9-102(a)(33) (Supp.2013) defines the category of “equipment” as “goods other than inventory, farm products, or consumer goods.” Hence, the farm equipment involved as collateral in this case falls within the statutory definition of “equipment.” We also acknowledge that Mississippi Code Annotated section 75-9-108 (Rev.2002) provides that, with certain exceptions, a description of personal or real property is sufficient if the description reasonably identifies the property by category. Therefore, I would find that Shuler errs in arguing that he needed a list of itemized farm equipment to sufficiently describe the collateral securing the debt before he could file the financing statement. As established by section 75-9-108, the financing statement sufficiently describes the collateral by setting forth “equipment” as the appropriate category of the collateral.

¶ 53. With respect to statutory requirements to perfect a security interest, Shuler erred in asserting that an itemized list of the farm equipment was required before he could perform the legal work to perfect Jennings’s security interests therein. I would nonetheless find that Jennings’s failure to provide Shuler the requested list of farm equipment for his stated purpose of completing the financing statement creates a factual question as to his duty to complete that legal work of perfecting Jennings’s security interest and involves a question of what farm equipment Jennings sought as collateral, some or all. I would therefore find no negligence per se in this case even though section 75-9-501 clearly provides the statutory requirements defining the legal tasks to be performed to perfect a security interest in equipment. Due to Jennings’s failure to provide an itemized list of farm equipment for the stated need of completing the legal task, I would instead find that a question of material fact exists as to whether Shuler possessed a duty to complete the legal work of securing Jennings’s interest in the collateral in accordance with section 75-9-501, including the task of filing the financing statement. The determination of whether Shuler possessed such a duty involves a determination of whether Shuler should have reasonably known that the financing-statement description satisfied statutory requirements, that no specific equipment listing was required, and that the legal tasks of perfecting and filing the financing statement required no further information. The determination also involves a determination of whether Jennings sought to limit the farm equipment used as collateral to identified pieces of equipment or sought to use all West’s farm equipment as collateral.

¶ 54. The record reflects that the circuit court granted summary judgment in favor of Defendants, finding that no genuine issue as to any material fact for jury determination existed and that an attorney possesses no duty to personally file a financing statement to perfect a client’s security interest. However, the determination of whether such a duty exists springs from the factual question establishing the scope of representation between the attorney and client and the matters undertaken by the attorney to accomplish the objectives of the agreed-upon legal matters entrusted to his representation. The law fails to identify who must personally file a financing statement to perfect a security interest for collateral involved herein. However, the law indeed requires such a security interest to be filed, in accordance with the applicable statute, in two locations, the Secretary of State’s Office and the chancery court where the collateral is located.

¶ 55. The statute defining how to perfect fails to address “who” performs the physical acts required. The determination of responsibility to perform the legal tasks involved rests upon the factual determination of the scope of the particular legal representation between Shuler, as attorney, and Jennings, his client. The objectives of that particular agreed-upon scope of representation define the purpose of the legal representation, and the fact question of purpose of the legal representation defines legal tasks required to accomplish that purpose. The attorney determines the means to accomplish those objectives. The attorney must determine whether legal tasks required in order to fulfill the means and objectives entrusted to his representation are such that the attorney must fulfill those tasks personally or whether the attorney may supervise others or subordinate staff to accomplish tasks required to achieve the objectives of the representation.

¶ 56. After reviewing the record, I find that the circuit court erred in granting summary judgment in favor of Defendants because questions of material fact exist. In this appeal by Jennings, I find that a question of material fact exists as to the following: (1) whether Shuler, as Jennings’s attorney, possessed a duty to perfect her security interest; (2) the scope and purpose of his representation of her; and (8) whether he performed the legal tasks undertaken by him to perform the purpose and scope of the agreed-upon legal work or whether her failure to timely deliver the farm-equipment list relieved him of his duty to perform. I would therefore reverse the circuit court’s order granting summary judgment and remand this case for further proceedings consistent with this opinion.

LEE, C.J., AND JAMES, J., JOIN THIS OPINION.

      . Evans v. Howell, 121 So.3d 919, 922 (¶ 14) (Miss.Ct.App.2013).

      . See Brocato v. Miss. Publishers Corp., 503 So.2d 241, 244 (Miss.1987) (holding that, on the plaintiff's appeal of summary judgment, the defendants were "entitled to raise any alternative ground based on the pleadings in the court below which would support the judgment”).

      ; See 11 U.S.C. § 547(b)(4)(A) (2010) (empowering bankruptcy trustee to avoid transfers made by insolvent debtor within ninety days of filing bankruptcy).

        .See Fed. R. Bankr. P. 7001(2).

      . See 11 U.S.C. § 362 (2010) (putting into effect a stay of efforts by creditors to collect pre-bankruptcy debts the moment the debtor files for federal bankruptcy protection).

      . See 11 U.S.C. § 101(31) (2010) (defining "insider”); 11 U.S.C. § 547(b)(4)(B) (2010) (extending avoidable transfer period to one year for payments made to insiders).

      . In addition to suing Shuler as an individual, she also sued his law partnership, McClure and Shuler, which includes Shuler, James McClure Jr., and James McClure III. For simplicity, this opinion refers to the defendants collectively as “Shuler.”

      . Jennings had also filed a motion for partial summary judgment on the issues of duty and breach, claiming Shuler’s professional negligence had been established by the mere fact he never filed a financing statement.

      . Jennings also claims she lost the value of the farm equipment. But even if Shuler had filed a financing statement covering the equipment in December 2002, Jennings would not have had the first lien on the equipment and, consequently, could not have recovered the equipment or any portion of its value.

      . Mississippi Rule of Professional Conduct 1.2, entitled "Scope of Representation,” and its comment indicate that a client determines the purpose and objectives of the representation, and the attorney determines the means by which to accomplish the objectives. Often, though, the line is blurred.

      . We acknowledge that in Defendants’ brief they argue that FSB breached its duty to Jennings by failing to file the financing statement. However, no evidence in the record supports this argument or shows that Jennings engaged FSB for any legal representation.

      . Jennings argues that she did not discover the failure to file the financing statement until November 2008. On November 26, 2008, the bankruptcy trustee filed an application to hire an outside attorney to investigate claims that Jennings had converted assets from the bankruptcy estate. Jennings later filed her legal-malpractice claim against the Defendants on November 22, 2011, which was within the three-year statute-of-limitations window. See Bennett v. Hill-Boren, P.C., 52 So.3d 364, 369 (¶ 15) (Miss.2011) (citing Smith v. Sneed, 638 So.2d 1252, 1253 (Miss.1994)) (“Under the discovery rule, as applied in a legal-malpractice action, the [three-year] statute of limitations begins to run on the date that the plaintiff learns, or through reasonable diligence, should have learned, of the negligence of the lawyer.”).

      . See Fulton v. Miss. Farm Bureau Cas. Ins. Co., 105 So.3d 284, 289 (¶¶ 22-23) (Miss.2012) (citing Universal Life Ins. Co. v. Veasley, 610 So.2d 290, 295 (Miss. 1992)) (jury awarded attorney’s fees as extracontractual damages where Fulton pleaded economic damages, including attorney’s fees, as damages resulting from defendant’s negligence).

      . See generally Miss. R. Prof. Conduct 1.2 & cmt. (discussing the scope of an attorney’s representation); Singleton v. Stegall, 580 So.2d 1242, 1244-45 (Miss. 1991) (finding that an attorney owes his client duties falling into three broad categories).

      . See Byrd v. Bowie, 933 So.2d 899, 904-05 (¶¶ 16-18) (Miss.2006) (where negligence is established as a matter of law, then no expert testimony is needed to show duty and breach of the duty); Bowie v. Montfort Jones Mem'l Hosp., 861 So.2d 1037, 1042 (¶ 13) (Miss.2003) (attorney failed to file designation of expert witness within deadline set forth by Mississippi Rule of Civil Procedure 26 and the court).

      . See Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1215 (Miss.1996) (discussing the elements that a plaintiff must prove by a preponderance of the evidence to recover in a legal-malpractice case); Forbes v. St. Martin, 145 So.3d 1184, 1206 (¶ 56) (Miss.Ct.App.2013) (citing Wilboum in a discussion of claims for legal malpractice and breach of fiduciary duty).

      . See Century 21 Deep S. Props. Ltd. v. Corson, 612 So.2d 359, 374 (Miss.1992) (in applying gratuitous agency theory where attorney performed negligent title work, court concluded that purchasers who relied on defective title could recover damages; however, purchasers could not prove damages due to their failure to attempt to cure title); Higgins Lumber Co. v. Rosamond, 217 Miss. 1, 2-7, 63 So.2d 408, 408-10 (1953) (discussing the principal and agency relationship and the duty of the agent to the principal in a case involving a builder and an architect).

      . See Forbes, 145 So.3d at 1202 (¶ 58) (citing the Mississippi Supreme Court opinion in Hartford Accident & Indemnity Co. v. Foster, 528 So.2d 255, 284-85 (Miss.1988), and finding that "legal malpractice may be a violation of the standard of care of exercising the knowledge, skill, and ability ordinarily possessed and exercised by members of the legal profession similarly situated, or the breach of a fiduciary duty”).

      . See West Implement Co. v. First S. Prod. Credit Ass'n, 815 So.2d 1164, 1166-67 (¶ 11) (Miss.2002) (ruling that the terms "equipment and machinery” in the financing statement sufficiently described the collateral and put others on notice of the interest).

      . See Miss. R. Prof. Conduct 1.2 cmt. (in discussing scope of representation, acknowledging that the distinction between objectives and means to accomplish objectives of representation is often blurred; in many cases, a joint undertaking between the attorney and client is required, but the attorney should assume responsibility for technical and legal tactics); Waggoner v. Williamson, 8 So.3d 147, 154-55 (¶¶ 14-15) (Miss.2009) (court found genuine issues of material fact existed as to plaintiffs’ claim against attorney for breach of fiduciary duty).

      .See Mississippi Rules of Professional Conduct 1.1 and 1.3 for a discussion of the level of competence and diligence that a lawyer shall provide to his client. The comment to Rule 1.1 provides the factors for determining whether an attorney possesses the requisite knowledge and skill in a particular matter.

      . See Mississippi Rule of Professional Conduct 1.2 for a discussion of the scope of an attorney’s representation.

      . See Miss.Code Ann. § 75-9-501; see also Miss. R. Prof. Conduct 5.1 (responsibility of supervising attorneys); Miss. R. Prof. Conduct 5.3 (responsibilities toward non-lawyer assistants); In re Hammons, 614 F.2d 399, 405 (5th Cir.1980) (under Mississippi law a "secured party must determine the correct place in which to file his financing statement on the basis of the facts existing at the time when the last event necessary for the perfection of his security interest occurs”).

      . See Forbes, 145 So.3d at 1208 (¶ 1) (reversing chancellor’s grant of summary judgment to attorney in a legal-malpractice suit); see also Wilbourn, 687 So.2d at 1215 (discussing the elements that a plaintiff must prove by a preponderance of the evidence to recover in a legal-malpractice case); Singleton, 580 So.2d at 1244-45 (clarifying that an attorney owes his client duties falling into three broad categories, including a duty of care, a duty of loyalty, and any duties provided by contract); Foster, 528 So.2d at 284-85 (quoting Mallen and Levit, Legal Malpractice § 1 (2d ed.1981) in a discussion of the dual bases for attorney malpractice liability and finding that attorney malpractice could be defined as breach of the standard of care or standard of conduct).


source: Caselaw Access Project

author: JAMES, J.,

license: Public Domain

text:
    Ryan SAVINELL a/k/a Ryan Anthony Savinell, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00578-COA.
    Court of Appeals of Mississippi.
    April 29, 2014.
    Rehearing Denied July 15, 2014.
    Certiorari Denied Sept. 25, 2014.
    Ryan Savinell, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, C.J., ROBERTS and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Ryan Savinell pled guilty to armed robbery and was sentenced to twenty years in the custody of the Mississippi Department of Corrections, with eight years to be served on post-release supervision. Initially, Savinell filed a motion for post-conviction relief (PCR) that was dismissed. Savinell filed a second PCR motion that was also dismissed. Savinell appeals, raising the following issues: (1) whether the State misrepresented the evidence; (2) whether the State failed to comply with discovery; (3) whether his guilty plea was involuntary; (4) whether he received ineffective assistance of counsel; and (5) whether there was newly discovered evidence. Finding no error with the trial court’s decision, we affirm.

FACTS

¶ 2. On August 31, 2009, Savinell entered a plea of guilty to armed robbery. Savinell was sentenced to twenty years in the custody of the Mississippi Department of Corrections, with eight years of post-release supervision. Savinell filed a PCR motion, which was dismissed on January 5, 2012. Then he filed a motion for rehearing, which was denied on January 27, 2012. Savinell appealed the dismissal; however, the appeal was also dismissed because he failed to pay the costs associated with the appeal.

¶ 3. On November 2, 2012, Savinell filed a second PCR motion. The trial court dismissed the motion, finding that it was procedurally barred because of res judica-ta, and the motion was a successive writ under Mississippi Code Annotated section 99-39-23(6) (Supp.2013). Savinell appeals.

STANDARD OF REVIEW

¶ 4. Generally, “[w]e review the dismissal or denial of a PCR motion for abuse of discretion.” Hughes v. State, 106 So.3d 836, 838 (¶ 4) (Miss.Ct.App.2012). The trial court’s factual findings will not be disturbed unless they are clearly erroneous. Id. However, the standard of review for questions of law is de novo. Id.

DISCUSSION

¶ 5. Savinell raises five issues on appeal. However, the dispositive issue is whether the trial court made an erroneous decision in dismissing Savinell’s second PCR motion. On January 5, 2012, Savi-nell’s first PCR motion was dismissed. He filed a motion for rehearing that was denied on January 27, 2012. Savinell appealed, and the appeal was dismissed because he failed to pay the costs of the appeal. On November 2, 2012, Savinell filed a second PCR motion. The trial court found that the second PCR motion was a successive writ and had no merit. We agree and affirm the judgment of the trial court.

¶ 6. According to the Uniform Post-Conviction Collateral Relief Act (UP-CCRA), “any order dismissing the petitioner’s motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article.” Miss.Code Ann. § 99-39-23(6). As the petitioner, Savinell carries the burden of “proving by a preponderance of the evidence that his claims are not barred as successive writs.” Williams v. State, 110 So.3d 840, 843 (¶ 13) (Miss.Ct.App.2013).

¶ 7. The trial court observed that in the second motion, Savinell asserted two of the same arguments as he did in his first PCR motion. We have held that “[a]n issue that has been addressed in a final judgment with specific findings of facts and conclusions of law may not be raised again by a PCR movant.” Ratcliff v. State, 120 So.3d 1058, 1060 (¶5) (Miss.Ct.App.2013). Thus, the previous arguments made by Savinell are barred by res judicata. However, it is a well-settled rule that “[e]rrors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA.” Williams, 110 So.3d at 843 (¶ 15). Nevertheless, Sa-vinell’s motion does not fall under any exception to the procedural bar.

¶ 8. Savinell also raises new issues in his second PCR motion. Failure to raise a claim when there was an earlier opportunity to do so constitutes a waiver of that claim. Miss.Code Ann. § 99-39-21(1) (Rev.2007). Thus, Savinell is barred from asserting the new issues raised in the motion.

CONCLUSION

¶ 9. Savinell’s second PCR motion is procedurally barred as a successive writ. Savinell failed to prove that any of the exceptions applied to his motion. Accordingly, we affirm the decision of the trial court dismissing the PCR motion.

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

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


author: IRVING, P.J., CARLTON, J.,

text:
    Sara PULLIAM, Appellant v. MISSISSIPPI STATE HUDSPETH REGIONAL CENTER and Mississippi State Agencies Workers’ Compensation Trust, Appellees.
    No. 2013-WC-00409-COA.
    Court of Appeals of Mississippi.
    May 20, 2014.
    Rehearing Denied Sept. 23, 2014.

      W. Howard Gunn, Aberdeen, attorney for appellant.
    Ginger Moore Robey, Oxford, attorney for appellées.
   IRVING, P.J.,

for the Court:

¶ 1. On January 23, 2007, Sara Pulliam filed a petition to controvert with the Mississippi Workers’ Compensation Commission (Commission), alleging that she had sustained compensable injuries to her back, right shoulder, and body as a whole on March 26, 2006, while working as a direct care worker (DCW) for the Mississippi State Hudspeth Regional Center (Hudspeth). Hudspeth admitted that Pul-liam had sustained compensable injuries to her back and right shoulder, but disputed the nature and severity of those injuries, including Pulliam’s contention that her Chiari malformation and cervical-spine problems were causally related to her work injury.

¶ 2. A hearing was held before an administrative judge (AJ), who found that Pulliam had reached maximum medical improvement (MMI) on July 1, 2006; that Pulliam failed to prove that she suffered permanent disability as a result of her injuries; that Pulliam’s average weekly wage at the time of the injury was $296.01; that Pulliam’s cervical spine and Chiari issues were not causally related to her work injuries; that Pulliam’s other claims were barred by the statute of limitations; and that Hudspeth is responsible for medical expenses associated with Pulliam’s injuries to her right shoulder and the lumbar area of her spine. Pulliam requested that the Commission review the AJ’s decision. The Commission affirmed the AJ’s decision and clarified that the AJ “found that [Pulliam’s] lumbar [injury], thoracic [injury], and right[-]shoulder [injury were] compensable.”

¶ 3. Feeling aggrieved, Pulliam appeals and argues that: (1) the Commission erred in upholding the AJ’s erroneous decision to admit a medical report into evidence; (2) the Commission’s findings were not supported by substantial evidence; (3) the Commission erred in finding that “Pul-liam’s claims other than [the] injury to her back and right shoulder are barred by the statute of limitations”; and (4) the Commission erred in finding that Hudspeth was not responsible for certain medical expenses.

¶ 4. After a thorough review of the record, we affirm the Commission’s finding that Pulliam’s Chiari symptoms and cervical-spine issues were not causally related to her work-related injury. We also affirm the Commission’s finding that Hudspeth shall only be responsible for the medical expenses associated with Pulliam’s com-pensable injuries. However, we find that the AJ erroneously considered unauthenticated medical evidence. Because the AJ’s findings regarding Pulliam’s MMI date and her entitlement to permanent disability benefits, if any, rested largely on the erroneously considered evidence, we reverse the findings as to those issues and remand this case to the Commission for further proceedings consistent with this opinion.

FACTS

¶ 5. Pulliam began working for Hud-speth as a DCW in 2004. Prior to working for Hudspeth, Pulliam worked as a factory worker and a teacher’s aide. On March 26, 2006, Pulliam assisted two coworkers with a patient to prevent the patient from falling. After helping her coworkers with the patient, Pulliam began to feel pain in her lower back and right shoulder. She reported the incident to her supervisor, Ruby Glover, and completed an accident report. On the following day, Pulliam presented to Dr. Charles Ozborn, a family practitioner, and told him about the incident at work. Dr. Ozborn diagnosed Pul-liam with lumbar strain. Pulliam re-injured her back and shoulder in April 2006 while assisting a patient during the sounding of the fire alarm.

¶ 6. During the hearing in front of the AJ, Pulliam testified that her job responsibilities included assisting Hudspeth patients through the rehabilitative process. According to Pulliam, approximately forty percent of her job as a DCW involved lifting, prolonged periods of walking, and frequent squatting and bending. Pulliam insists that she was able to perform all of her job duties without assistance prior to her injury.

¶ 7. Pulliam stated that she missed a few days of work as a result of her injury, and she received workers’ compensation benefits for approximately one month af-terwards. When she returned to work at Hudspeth, Hudspeth transferred Pulliam to an earlier shift. Working the earlier shift required Pulliam to perform more lifting and more walking, with little opportunity to rest or take breaks. Because of her injury and the pain that she experienced while trying to perform her new job duties, she was ultimately unable to continue to work. Hudspeth eventually terminated Pulliam after she exhausted her leave time.

¶ 8. Pulliam testified that after Hud-speth terminated her, she conducted a job search, including contacting at least forty potential employers, but she was unable to find a job. She revealed during cross-examination that she completed only five out of forty job applications because some of the employers told her that they were not accepting applications. Pulliam stated that she continues to experience pain in her shoulder and back. She cannot sit for more than sixty minutes and cannot stand for more than twenty minutes. She takes medicine, but it does not help with the pain.

¶ 9. Glover testified that she was Pul-liam’s supervisor at Hudspeth while Pul-liam worked the night shift. Glover affirmed Pulliam’s contention that Pulliam did not have any problems performing her job duties prior to her injury. According to Glover, approximately seventy percent of the job as a DCW involves standing and approximately sixty percent of the job involves stooping and bending. DCWs that work the morning shift stand for approximately ninety percent of their shifts because the patients are involved in numerous activities during the morning shift, and the DCWs must accompany the patients to those activities.

¶ 10. Although Dr. Ozborn did not testify at the hearing before the AJ, the medical records completed by him were admitted into evidence, and he testified by deposition regarding the contents of the medical records. During his deposition, Dr. Ozborn noted that he had served as Pulliam’s primary physician for at least twenty years. Pulliam visited his office on March 27, 2006, the day after her on-the-job injury, complaining of pain located primarily in her lower and mid-back. Dr. Ozborn diagnosed Pulliam with lumbosa-cral strain and released Pulliam to return to work on March 28, 2006.

¶ 11. Pulliam returned to Dr. Ozborn’s office on April 17, 2006, with complaints of increased pain in her back. Pulliam informed Dr. Ozborn that her “lifting a patient at the Kilmichael [njursing facility” led to an increase in the pain in her back. After conducting a physical examination, Dr. Ozborn assessed Pulliam’s condition as a thoracic strain and a lumbosacral strain, which he classified as “an exacerbation or renewed strain compatible with the same type of injuries [that] she had initially[.]”

¶ 12. Dr. Ozborn examined Pulliam again on November 13, 2006. At this time, Pulliam complained of radicular pain, which radiated down her left leg. Prior to this time, Pulliam had started physical therapy, but was continuing to have difficulty with back pain. She visited Dr. Oz-born several more times. On January 3, 2007, Dr. Ozborn ordered an MRI based on the “persistence of her pain and the fact that she’d had th[e] new development of radicular pain.” The MRI revealed a disc protrusion that “could be symptomatic.” Dr. Ozborn opined that “in view of [Pulliam’s] history, and in view of the fact that she had pain that was compatible with this,” the disc protrusion could be the cause of the pain in Pulliam’s leg. The MRI also revealed a Chiari malformation. Dr. Ozborn explained that an irritation of the spine could pull the Chiari “further down and [make the Chiari] become symptomatic.” He placed Pulliam at MMI on September 18, 2007. Dr. Ozborn opined, to a reasonable degree of medical certainty, that Pulliam was “totally disabled to do any kind of work activity.”

¶ 13. Pulliam presented to Dr. John Davis, at Hudspeth’s request, for an employer medical examination on April 2, 2008. Dr. Davis analyzed Pulliam’s medical records and conducted a physical examination of her. After conducting the physical examination and studying medical records from Dr. Ozborn and Dr. Hunt Bobo, Dr. Davis opined, to a reasonable degree of medical certainty, that Pulliam’s Chiari malformation and the issues with her cervical spine were “completely unrelated in any way to any work injury[.]” He additionally opined that Pulliam’s ongoing pain in “her thoracic region and down into [the] lumbar region” as well as her “left leg discomfort .... [were] causally related to [her] work injury[.]” He also noted that he “would defer all questions about work[-]status restrictions, impairment[,] and MMI to a treating physical[-]medicine and rehab[-]medicine physician.” (Emphasis added).

¶ 14. Over Pulliam’s objections, the AJ also considered a report from Dr. David Collipp, who performed a second independent medical examination of Pulliam on November 21, 2008. Dr. Collipp opined that Pulliam suffered “a lumbar strain injury with some thoracic involvement.” According to Dr. Collipp, Pulliam’s back injury

did not lead to an aggravation of the pre-existing T6-7 disc protrusion, or the pre-existing Chiari I malformation. With consideration of the available medical records, this injury appears to have reached MMI within about three months, by July 1, 2006, although she never had complete resolution of her pain.

Dr. Collipp also assigned Pulliam a permanent-partial impairment rating of two percent for her consistent pain complaints. Further, Dr. Collipp found that while Pul-liam had considerable restrictions due to other medical issues, Pulliam had not suffered any permanent restrictions as a result of the lumbar or thoracic strain. He opined that

based upon a reasonable degree of medical probability, and her present physical examination, ... Pulliam is physically capable of performing light-medium work, with a maximum lift of about 35 pounds. This is not related to her physical complaints, or her report of . prior surgery. This is not related to her work injury. This is related to her .physical examination, and her overall habitus.

Pulliam objected to the admission of Dr. Collipp’s report because the report was notattached to an affidavit from Dr. Col-lipp or his medical-records custodian authenticating the report.

¶ 15. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 16. Our standard of review in workers’ compensation cases is well settled. This Court’s review “is limited to determining whether the [Commission’s] decision was supported by substantial evidence, was arbitrary and capricious, was beyond the scope or power of the agency to make, or violated [the claimant’s] constitutional or statutory rights.” Gregg v. Natchez Trace Elec. Power Ass’n, 64 So.3d 473, 475 (¶ 8) (Miss.2011) (citing Short v. Wilson Meat House LLC, 36 So.3d 1247, 1250 (¶ 17) (Miss.2010)). We remain mindful that “the Commission is the ultimate fact-finder and judge of the credibility of ... witnesses”; therefore, we “may not reweigh the evidence [that was] before the Commission.” Id. (citing Short, 36 So.3d at 1251 (¶ 23)).

I. Admission of Dr. Collipp’s Report

¶ 17. Pulliam argues that the AJ committed reversible error by allowing into evidence Dr. Collipp’s report without proper authentication as required by Procedural Rule 9 of the Rules of the Mississippi Workers’ Compensation Commission. Hudspeth contends that the AJ properly admitted the report, as it was attached to Dr. Davis’s report, which Hudspeth submitted with an affidavit from Dr. Davis’s medical-records custodian.

¶ 18. Mississippi Code Annotated section 71-3-61 (Rev.2011) grants the Commission the power to write and enforce its own rules “conformable to [the] law which may be necessary to enable [it] effectively to discharge the duties of [its] office.” The Commission also has the “discretion to enlarge the scope of the record and relax [the] rules of discovery applicable to hearings.” Robinson Prop. Grp. v. Newton, 975 So.2d 256, 260 (¶ 8) (Miss.Ct.App.2007) (quoting Bermond v. Casino Magic, 874 So.2d 480, 484 (¶ 11) (Miss.Ct.App.2004)). In spite of the Commission’s discretion in applying and interpreting its own rules, “[d]ue process dictates that the Commission ... follow its own procedural[-]due[-]process principles in conducting its duties of administering workers’ compensation claims.” Id. (citing Bermond, 874 So.2d at 485 (¶11)).

¶ 19. Procedural Rule 9 provides, in pertinent part:

The medical records of examining or treating physicians, including narrative office notes, reports dictated by the physician in the ordinary course of his or her practice, and other records composed by the physician in his or her practice, may be introduced into evidence in lieu of direct testimony taken at the hearing or by deposition upon the following eonditions[:]
1.The party wishing to introduce such medical records shall notify opposing parties and the Commission by written notice served at least thirty (30) days prior to the scheduled hearing. The prehearing statement may suffice as notification under this rule.
2. A copy of the medical records shall be attached to the written notice.
3. There shall be submitted with the medical records a sworn statement of either the physician or the physician’s medical-records custodian stating that the attached medical records are a true and correct copy of the medical records of the physician as kept in the regular course of the physician’s medical practice.
4. The contents of the medical reports shall be subject to the same objections as to relevancy and competency as the testimony of the reporting physician had he or she been personally present to testify at the hearing. Any objection to the use of an affidavit must be made within fifteen (15) days after receipt by the objecting party of a notice of intent to use such affidavit.

(Emphasis added).

¶20. Here, Hudspeth gave sufficient notice to Pulliam that it intended to introduce Dr. Collipp’s report into evidence. However, according to the transcript provided on appeal, neither an affidavit nor Dr. Collipp’s report was attached to the notice. The notice that was given was á sentence incorporated in Hudspeth’s pre-hearing statement that Hudspeth intended to introduce Dr. Collipp’s report. At the hearing, Hudspeth presented an exhibit that contained both Dr. Davis’s and Col-lipp’s reports. An affidavit from Dr. Davis’s medical-records custodian, dated October 6, 2008, was attached to this exhibit. There was no affidavit attached to the exhibit from Dr. Collipp or his medical-records custodian, or a statement that Dr. Davis’s and Dr. Collipp’s medical-records custodian were one and the same person. The affidavit that was attached reads, in part, as follows:

PERSONALLYAPPEARED BEFORE ME, ... [custodian’s name], medical[-]records custodian for John D. Davis IV, M.D., who, upon his/her oath, stated that the attached records are a true and correct copy of the medical records relating to the examination, evaluation, and/or treatment of the above-named claimant as generated in the regular course of medical practice of John D. Davis IV, M.D.

¶ 21. The record does not inform us as to how Dr. Collipp’s medical report became attached to Dr. Davis’s report. However, it is clear that it was not attached by Dr. Davis or his medical-records custodian. It is also clear that Dr. Davis did not refer Pulliam to Dr. Collipp. He did, however, suggest that the discomfort that Pulliam was experiencing in her lower back, thoracic region, and left leg “would best be treated by a board[-]certified or board[-] eligible physical or rehab[-]medicine doctor!,] as well as at least a trial of epidural[-]steroid injections by an inter-ventional[-]pain[-]management physician.” Pulliam saw Dr. Collipp after the Commission granted Hudspeth’s motion to compel her to do so. After Dr. Collipp completed his report, he sent a copy to Hudspeth’s attorney, who apparently compiled and presented the exhibit that contained both Dr. Davis’s and Dr. Collipp’s reports.

¶ 22. When Pulliam objected to the use of Dr. Davis’s medical-records custodian’s affidavit to authenticate Dr. Collipp’s report, Hudspeth noted that Dr. Davis and Dr. Collipp practice in the same clinic. Alternatively, Hudspeth argued that Pul-liam waived her challenge to the admission of Dr. Collipp’s report because she did not object to the use of the above-referenced affidavit within fifteen days of receiving notice that Hudspeth intended to use the affidavit. However, both of Hudspeth’s arguments fail.

¶23. First, it is clear that the affidavit from the medical-records custodian authenticates only Dr. Davis’s report, and not, as Hudspeth contends, Dr. Col-lipp’s report as well. Also, the record contains no evidence that Dr. Collipp sent a copy of his report to Dr. Davis, Therefore, it could not have been included by Dr. Davis or unintentionally commingled by him. While it is true that Dr. Davis and Dr. Collipp practice at the same medical clinic, it cannot be denied that they do not specialize in the same area of medicine. Furthermore, Hudspeth failed to present any evidence that the medical-records custodian who provided the affidavit attached to Dr. Davis’s report also serves as the medical-records custodian for Dr. Collipp. The fact that the doctors work in the same building does not eliminate Hudspeth’s responsibility to obtain authentication of the reports of both doctors through affidavits either from the doctors themselves or from their medical-records custodians.

¶24. Second, in spite of Hud-speth’s argument that Pulliam has waived her challenge to the admission of Dr. Col-lipp’s report, we find that Pulliam did not waive her objection to the use of the affidavit from Dr. Davis’s medical-records custodian to authenticate Dr. Collipp’s report. Procedural Rule 9 requires that any objection to the use of an affidavit to authenticate medical records or reports be made within fifteen days of the notice of intent to use the affidavit. It is clear from the record that Pulliam was not aware that Hudspeth intended to use the affidavit from Dr. Davis’s medical-records custodian to authenticate Dr. Collipp’s report until the day of the hearing before the AJ. Therefore, the fifteen days that the rule grants to Pulliam to object to the use of the affidavit had not expired prior to the day of the hearing before the AJ, and her objection to Hudspeth’s use of the affidavit to authenticate Dr. Collipp’s report was timely. As stated, when Pulliam first received notice that Hudspeth was intending to use Dr. Collipp’s medical report, neither an affidavit nor the report was attached.

¶ 25. As such, we find that the AJ erred in admitting Dr. Collipp’s report into evidence without proper authentication of the report from either Dr. Collipp or his medical-records custodian. With all due respect, we must say that the dissent’s suggestion — that Pulliam waived objection to the admission of Dr. Collipp’s medical report at the hearing because she did not timely object after being notified of Hud-speth’s intent to use the report — is just not supported by the record. Because the AJ relied heavily on Dr. Collipp’s report in determining whether Pulliam was entitled to disability benefits and in assessing impairment ratings, the Commission’s decision affirming the AJ’s findings is reversed, and this case is remanded to the Commission for it to determine Pulliam’s disability benefits, if any, using properly admitted evidence.

II. Disability Benefits

¶26. Pulliam contends that the AJ erred in finding that she had failed to prove that she was permanently disabled, that she had not reached MMI, and that her injuries, except the lumbar strain, thoracic strain, and the right[-]shoulder injury, were causally related to her work-related injuries.

¶ 27. This Court has reiterated thát in workers’ compensation claims, a claimant does not have to prove with absolute medical certainty that his work-related injuries were the cause of his disability. All that is necessary is that the medical findings support a causal connection. A causal connection may be established so long as there is medical testimony that supports a finding of disability.

Wayne Farms LLC v. Weems, 105 So.3d 1178, 1181 (¶ 8) (Miss.Ct.App.2012) (internal citations and quotation marks omitted) (quoting Frito-Lay Inc. v. Leatherwood, 908 So.2d 175, 180 (¶24) (Miss.Ct.App.2005)).

¶ 28. In spite of the erroneous admission of Dr. Collipp’s report, we cannot say that the AJ erred in finding that Pul-liam’s Chiari symptoms and cervical-spine issues were unrelated to her work-related injury, as Pulliam failed to present medical evidence that these issues were associated with or aggravated by her work-related injuries. Regarding the Chiari, Dr. Oz-born never opined that the Chiari was caused or aggravated by Pulliam’s work-related injury. He only stated that trauma to the spine could have made the Chi-ari symptomatic. Dr. Davis, on the other hand, opined, to a reasonable degree of medical certainty, that Pulliam’s Chiari and the issues with her cervical spine were not related to her work-related injury. Pulliam failed to present any medical evidence to rebut Dr. Davis’s opinions that her Chiari and cervical-spine problems were not connected to her work-related injuries. Therefore, we find that the Commission had substantial evidence to determine that Pulliam’s Chiari and cervical-spine issues were not causally related to her work-related injuries.

¶ 29. Regarding whether and when Pulliam had reached MMI, the AJ relied on Dr. Collipp’s report to find that Pul-liam reached MMI on July 1, 2006. However, as previously discussed, Dr. Collipp’s report was not properly authenticated and, consequently, should not have been considered by the AJ. Within the properly admitted medical evidence, both Dr. Davis and Dr. Ozborn offered opinions regarding whether and when Pulliam had reached MMI. Dr. Ozborn opined that Pulliam reached MMI on September 18, 2007. Dr. Davis stated in his report that he did “not believe that [Pulliam] ha[d] reached MMI yet,” but that he would “defer all questions about work[-]status restrictions, impairment^] and MMI to a treating physical[-]medicine and rehab[-]medicine physician.” Because the AJ determined Pulliam’s MMI date based on improperly admitted evidence, without any consideration of the medical evidence that was properly admitted, we reverse the AJ’s finding that Pulliam reached MMI on July 1, 2006, and remand this case to the Commission for a determination of whether and when Pulliam reached MMI from her injuries.

¶ 30. The Mississippi Supreme Court has stated that a workers’ compensation claimant is not entitled to permanent disability benefits until the claimant has reached MMI from her compensable injuries. Barber Seafood, Inc. v. Smith, 911 So.2d 454, 460 (¶25) (Miss.2005). It follows, then, that without a proper determination regarding whether Pulliam has reached MMI, it cannot be said that she is not entitled to permanent disability benefits. As such, we reverse the Commission’s finding that Pulliam is not entitled to permanent disability benefits and remand this case to the Commission for a proper determination of whether Pulliam is entitled to permanent disability benefits once an MMI date has been determined.

III. Statute of Limitations

¶ 31. In her third assignment of error, Pulliam argues that the AJ erred in finding that her “thoracic[-]injury [claim] and other claims were barred by the statute of limitations.” However, a review of the AJ’s order and the final order from the full Commission, reveals that the AJ determined that Pulliam’s injury to the thoracic region of her spine was compensable. Additionally, it is not clear from the record what “other claims” were barred by the statute of limitations. Accordingly, this issue is without merit.

TV Medical Expenses

¶ 32. As her final issue on appeal, Pul-liam asserts that the AJ erred in determining that Hudspeth is not responsible for the payment of medical expenses incurred “in connection with treatment of the Chiari I malformation, the disc herniation at T6-7, and the cervical spine.” This Court has stated that “[a]n employer is to pay for medical treatments that are reasonable and necessary and that result from the work-related injury.” Wesson v. Fred’s Inc., 811 So.2d 464, 467 (¶9) (Miss.Ct.App.2002). Here, as previously stated, Pulliam failed to present medical evidence that her Chiari issues, her disc herniation, and her cervical-spine issues resulted from her work-related injuries. Therefore, the AJ did not err in finding that Hudspeth would not be responsible for the medical expenses associated with the treatment of these injuries.

¶ 33. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED IN PART AND REVERSED IN PART, AND THIS CASE IS REMANDED TO THE COMMISSION FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEES.

LEE, C.J., GRIFFIS, P.J., FAIR AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES, ISHEE AND ROBERTS, JJ. MAXWELL, J., NOT PARTICIPATING.

CARLTON, J.,

dissenting:

¶34. I respectfully dissent from the majority’s opinion in this case. As provided by Mississippi Workers’ Compensation Commission Procedural Rule 9(4), Pulliam possessed fifteen days to object to the affidavit at issue after receiving Hud-speth’s notice of intent to use the affidavit to admit Dr. Collipp’s medical report into evidence at the hearing before the AJ. Pulliam failed, however, to timely object to the use of the affidavit to admit the attached medical reports into evidence as required by Procedural Rule 9(4), and she thus failed to preserve the issue for appellate review. Therefore, our standard of appellate review is limited to whether the Commission’s decision is supported by the evidence or whether the Commission’s decision erroneously applied the law. See Ga. Pac. Corp. v. Taplin, 586 So.2d 823, 826 (Miss.1991); see also Raytheon Aerospace Support Servs. v. Miller, 861 So.2d 330, 335 (¶ 9) (Miss.2003) (finding that the Court of Appeals exceeded its permissible scope of review and that “the courts may interfere only where the agency action is arbitrary and capricious”).

¶ 35. The AJ’s opinion in this case reflected that Pulliam failed to object within fifteen days of receipt of notice and in advance of the hearing as required by Procedural Rule 9(4), and instead, she waited until the hearing to object. The AJ ruled on the objection raised by Pulliam at the hearing, and the AJ set forth in her written opinion that the report was properly offered and admitted into evidence. As acknowledged by Mississippi Workers’ Compensation Law § 6.33:

In workers’ compensation matters, there is no hard and fast hearsay rule. There are no jurors’ ears to protect from untrustworthy testimony, and the Commission and administrative judges have the experience and expertise to evaluate the reliability and probative value of the various kinds of evidence that arise in workers’ compensation matters.

John R. Bradley & Linda A. Thompson, Mississippi Workers’ Compensation Law § 6.33 (2013). The Commission is not bound by the formal rules of evidence that govern proceedings in courts of law. 7d In the case before us, the AJ clearly possessed the discretion and flexibility to determine whether the records at issue were properly offered and admitted at the hearing. This is particularly true in light of Pulliam’s failure to timely object in advance of the hearing in accordance with Procedural Rule 9(4). We must therefore review the record to determine'whether the decision of the Commission is supported by the evidence or whether the Commission erroneously applied the law. See Ga. Pac. Corp., 586 So.2d at 826; see also Walker Mfg. Co. v. Butler, 740 So.2d 315, 323 (¶¶ 37-39) (Miss.Ct.App.1998) (finding that the admission of an unsworn doctor’s note was not error and caused no substantial prejudice and citing the proposition that “[ejrrors along technical lines in the conduct of the hearing before the [Cjommission are not sufficient on review to cause a reversal unless substantial prejudice can be shown”) (citation omitted).

¶ 36. In applying our limited scope of review to this case, I acknowledge that the Commission, as an executive administrative agency, promulgates general rules as well as procedural rules. In the present case, Pulliam claims error resulting from a procedural rule of the Commission and not a general rule. In determining whether the Commission erroneously applied the law in this case, we must recognize that, with respect to the Commission’s procedural rules, the Commission possesses broad discretionary authority to relax, import flexibility to, and deviate from its own procedural rules “where in its judgment such is necessary to implement and effect its charge under the Mississippi Workers’ Compensation Act.” Delta Drilling Co. v. Cannette, 489 So.2d 1378, 1380 (Miss.1986). As the Mississippi Supreme Court stated in Delta Drilling Co., “It is a rare day when we will reverse the Commission for an action taken in the implementation and enforcement of its own procedural rules.” Delta Drilling Co., 489 So.2d at 1380-81. I respectfully submit that the record in the present case reflects no basis for such a rare occasion.

¶ 37. I will now turn to the facts of the case that are relevant to this analysis and that support the decision by the AJ and the Commission. The record reflects that Pulliam received sufficient advance pre-hearing notice of the affidavit at issue and of Hudspeth’s intent to use the affidavit to admit the attached medical records, which included Dr. Collipp’s report, at the hearing before the AJ. In accordance with the goals and principles underlying Procedural Rule 9, this prehearing notice by Hudspeth provided Pulliam with ample opportunity to object to the affidavit prior to the hearing. The prehearing notice reflected the use of the affidavit to admit Dr. Collipp’s medical report and resulted in no substantial prejudice to Pulliam. The sufficiency of the prehearing notice was reflected in Hudspeth’s prehearing statements, the medical records and affidavit filed therewith, and the procedural history leading to the AJ’s order for an employer’s medical evaluation (EME) of Pulliam. Dr. Davis first performed the EME but then referred Pulliam to Dr. Collipp, a physical-medicine specialist in his practice, for complaints outside the scope of Dr. Davis’s expertise. Dr. Collipp performed a onetime EME of Pulliam by order of the AJ after Hudspeth filed a motion on October 20, 2008, to compel the EME. Pulliam objected to the examination, but on November 8, 2008, the AJ ordered Pulliam to attend the EME with Dr. Collipp. On December 30, 2008, Hudspeth filed a motion for continuance of the hearing on the merits since Dr. Collipp’s EME had not yet been received and was necessary to determine whether a vocational expert would be retained and a functional capaeity evaluation (FCE) would be performed. Over Pulliam’s objection, the AJ granted Hudspeth’s motion and delayed the hearing.

¶ 38. The record reflects that Pulliam enjoyed far more than the thirty-day advance notice required by Mississippi Workers’ Compensation Commission Procedural Rule 9(1) of Hudspeth’s intent to use the affidavit to admit Dr. Collipp’s medical report in lieu of his live testimony. The AJ held the hearing on the merits and received evidence on March 24, 2011. With respect to the sufficiency of prehear-ing notice, the record shows that Pulliam first received notice of Hudspeth’s intent to admit Dr. Collipp’s report several years earlier on March 6, 2009, from Hudspeth’s amended prehearing statement that contained Dr. Collipp’s report and opinions. The amended prehearing statement cited the report and opinions of Dr. Collipp and attached a copy of his report as an exhibit. Hudspeth then filed a second amended prehearing statement on June 17, 2009, which cited the opinions of Dr. Collipp. Hudspeth also filed the medical-records affidavit for Dr. Davis’s records, which contained Dr. Collipp’s medical report reflecting the evaluation referred to him by Dr. Davis and ordered by the AJ. Pul-liam possessed ample opportunity to cross-examine or depose Dr. Collipp regarding his medical opinions, but she chose not to do so.

¶ 39. As permitted by the Commission’s procedural rules, Pulliam could have conducted a cross-examination deposition of Dr. Collipp, or she could have chosen to have him subpoenaed to testify at the hearing before the AJ. Despite having prehearing notice for over a year of Hud-speth’s intent to use the affidavit to admit Dr. Collipp’s report with Dr. Davis’s records, and despite having prehearing notice for almost two years of the contents of Dr. Collipp’s EME report, Pulliam still failed to file her objection in advance of the hearing as required by Procedural Rule 9(4). As acknowledged, Pulliam failed to raise any objection to the affidavit until the day of the hearing. Logically, a timely objection filed pursuant to Procedural Rule 9(4) provides an opportunity for deficiencies in the affidavit to be cured. The record reflects that Pulliam received sufficient advance notice and that the AJ’s decision to admit Dr. Collipp’s report was consistent with the Commission’s procedural rules and the procedural-due-process principles set forth therein.

¶40. As stated, in my view, Pulliam failed to timely object to the use of the affidavit to admit Dr. Collipp’s report. However, even if Pulliam’s claim of error had been preserved, I submit that Pul-liam’s claim of reversible error would still lack merit under the Commission’s relaxed procedural rules and in light of the facts of this case. Hudspeth’s motion to compel Pulliam to undergo an EME with Dr. Col-lipp reflected that Dr. Davis previously recommended that Pulliam be medically evaluated by Dr. Collipp, a physical-medicine specialist. The AJ also acknowledged that Dr. Davis first conducted an EME of Pulliam on April 2, 2008. The AJ’s opinion further acknowledged Dr. Davis’s opinion that some of Pulliam’s complaints exceeded the scope of his medical practice and, as to those matters and any related opinions, that Dr. Davis would defer to a physical-medicine specialist. An EME as to those complaints was therefore conducted by Dr. Collipp, a physical-medicine specialist in Dr. Davis’s own medical practice. Clearly, Dr. Davis’s records reflected that Pulliam required referral to a physical-medicine specialist for those issues pertaining to her ongoing cervical-spine pain complaints. Dr. Davis’s report concluded with a recommendation that Pulliam be evaluated by a physical-medicine doctor since her initial complaints of ongoing neck pain began a full eight months after her injury. Dr. Davis’s report also reflected his belief that Pulliam’s cervical-spine pain was not causally related to her work injury.

¶ 41. Upon the AJ’s order and Dr. Davis’s referral, Dr. Collipp evaluated Pul-liam. Dr. Collipp opined that Pulliam’s lower-back pain was not causally related to her work injury, and he answered the medical-diagnostic question raised by Dr. Davis in his evaluation. The first page of Dr. Collipp’s medical report reflected that he was part of the same practice as Dr. Davis and that Pulliam was referred to him. The first page of Dr. Collipp’s report also acknowledged that the EME in this case was ordered by the AJ. Dr. Collipp signed the last page of his report, which was filed with Hudspeth’s amended pre-hearing statement in March 2009. Hud-speth’s second amended prehearing statement was filed on June 17, 2009. This filing included as a “proposed exhibit” the medical-records affidavit for Dr. Davis’s medical records, which contained Dr. Col-lipp’s report. The affidavit was signed by the medical-records custodian for Dr. Davis’s medical records, and as reflected in the record, both Dr. Davis and Dr. Collipp were members of the same medical group and had the same medical-records custodian.

¶ 42. As previously acknowledged, the record also shows that Dr. Davis performed the initial EME and then recommended that Pulliam be further evaluated by his partner, Dr. Collipp, a physical-medicine and rehabilitation specialist. The referring doctor’s report would logically contain the report or results of the referral recommended by him to complete the diagnostic process, particularly where both the referring physician and the physician receiving the referral practice with the same medical group. The AJ possessed sufficiently broad discretion to determine that the records at issue in this case were properly offered and admitted. However, as acknowledged, the sufficiency of the affidavit is not properly before us on appeal since Pulliam failed to preserve her claim of error by advance objection in accordance with Procedural Rule 9(4) as to the admission of Dr. Collipp’s report via the disputed affidavit. Cf. Riddle, 592 So.2d at 42-43.

¶ 43. Because the record contains sufficient evidence to support the decision by the Commission and by the AJ, I would affirm. I therefore respectfully dissent from the majority’s opinion.

BARNES, ISHEE AND ROBERTS, JJ., JOIN THIS OPINION.

      . Dr. Bobo is a neurosurgeon who evaluated and treated Pulliam’s Chiari malformation.

      . We also note that, according to the hearing transcript, the AJ never ruled on Pulliam’s objection. In fact, she admitted the exhibit containing Dr. Davis’s and Dr. Collipp’s reports for identification purposes only. However, it is clear that the AJ and the Commission relied upon Dr. Collipp’s report to reach their decisions in this case.

      . Mississippi Workers’ Compensation Commission Procedural Rule 8 provides that the rules of evidence are relaxed at evidentiary hearings. Procedural Rule 9(4) provides an objecting party with fifteen days to object after receipt of notice of an intent to use an affidavit to admit medical records. See also Miss.Code Ann. § 71-3-47 (Rev.2011) (providing details for the adjudication of claims before the Commission); Miss.Code Ann. § 71-3-61 (Rev.2011) (stating the Commission’s authority to conduct proceedings).

      . The medical reports by Dr. Davis and Dr. Collipp were attached to the affidavit.

      . See Binswanger Mirror v. Wright, 947 So.2d 346, 351 (¶ 14) (Miss.Ct.App.2006); see also Sonford Prods. Corp. v. Freels, 495 So.2d 468, 473 (Miss. 1986) (overruled on other grounds) (finding no merit in an argument regarding the reliability of an expert opinion where the argument on appeal was not presented to the AJ).

      . Cf. Riddle v. Miss. State Bd. of Pharmacy, 592 So.2d 37, 42-43 (Miss.1991) (holding that the admission of prescribing physicians’ affidavits was not error where the defendant pharmacist had been informed of his procedural-due-process rights); see also Greenwood Utilities v. Williams, 801 So.2d 783, 790 (¶ 23) (Miss.Ct.App.2001) (acknowledging the broad discretion and procedural flexibility that an AJ possesses); Miss.Code Ann. § 71-3-47 ("The [Cjommission shall have full power and authority to determine all questions relating to the payment of claims for compensation!.]”); Miss.Code Ann. § 71-3-55(1) (Rev. 2011) (“In making an investigation or inquiry or conducting a hearing, the [Cjommission shall not be bound by common law or statutory rules of evidence or by technical or formal rules or procedure, except as provided by this chapter!.]”).

        .See also Miss. Workers’ Comp. Comm’n P.R. 8; Miss. Workers' Comp. Comm’n P.R. 14 (providing that the Commission or the AJ may allow deviation from the procedural rules).

      . See Flowers v. Panola Mills Inc., 749 So.2d 1104, 1105 (¶ 8) (Miss.Ct.App.1999) ("This Court will reverse the decision of the Commission only if it is a product of manifest error, an abuse of discretion, and does not enjoy support in the substantial evidence.”) (citation omitted).

      . See Miss. Workers' Comp. Comm'n P.R. 9(1) ("The party wishing to introduce ... medical records shall notify opposing parties and the Commission by written notice served at least thirty (30) days prior to the scheduled hearing. The prehearing statement may suffice as notification under this rule.”); see also Jeffrey Jackson & Mary Miller, 9 Encyclopedia of Mississippi Law § 76:141 (2002) (providing a discussion of the introduction of medical records and affidavits into evidence at a Commission hearing).

      . See Walker Mfg. Co., 740 So.2d at 323 (¶¶ 37-39).

      . See Miss.Code Ann. § 71-3-15(1) (Rev. 2011) (stating the purpose of an EME); Jeffrey Jackson & Mary Miller, 9 Encyclopedia of Mississippi Law § 76:107 (2002) ("The employer has the right to have the worker examined by a physician for the purpose of evaluating the extent of disability or need for medical treatment.”).

      . See Miss.Code Ann. § 71-3-15(6) (Rev. 2011) ("All findings pertaining to a second opinion medical examination, at the instance of the employer!,] shall be reported as herein required within fourteen (14) days of the examination. ... All findings pertaining to an independent medical examination by order of the [Commission shall be reported as provided in the order for such examination.”).

        .See Miss. Workers’ Comp. Comm’n P.R. 5 (providing that prehearing statements are required before a matter can be set for a hearing on the merits and must be completed with all documents attached); Miss. Workers' Comp. Comm’n P.R. 7 (stating that all cases shall be completed at one hearing before the AJ, and all evidence shall be introduced at such hearing; the Commission possesses discretion to allow additional evidence to be thereafter presented to the full Commission).

      . See Miss. Workers’ Comp. Comm'n P.R. 9(5); Jackson & Miller, at § 76:141.

      . Dr. Collipp's EME report was also referenced in Hudspeth’s motion for a status conference and in the third and fourth pre-hearing statements. Hudspeth argues that the EME had been produced to Pulliam's attorney and filed with the Commission on multiple occasions, and such an argument is consistent with Mississippi Workers’ Compensation Commission Procedural Rule 20, which requires copies of pleadings to be sent to each party once the case is controverted. After Hudspeth completed its pre-hearing statements, Pulliam requested additional continuances, and the AJ held a hearing on the merits on March 24, 2011. The record therefore reflects that Pulliam possessed approximately two years of pre-hearing notice of the affidavit and its intended use to admit Dr. Collipp’s report.

      . Cf Legacy Hall of Fame Inc. v. Transp. Trailer Serv., Inc., 2012-CA-01978-COA, 139 So.3d 105, 107, 2014 WL 211718, at *3 (¶ 16) (Miss.Ct.App. Jan. 21, 2014) (acknowledging that the treating physician’s medical records, which were admitted into evidence, included a consultation report from another physician).