author: GRIFFIS, P.J., WESTBROOKS, J.,

text:
    John EUBANKS, Appellant v. Kim WADE d/b/a Kim Wade Real Estate, Appellee
    NO. 2015-CA-00811-COA
    Court of Appeals of Mississippi.
    05/16/2017

      HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, WINSTON L. KIDD, J.
    ATTORNEY FOR APPELLANT: RENEE M. PORTER
    ATTORNEYS FOR APPELLEE: JOE S. DEATON III, JOHN RICHARD MAY JR., DAVID FORD BERRY IV
   GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. This appeal considers whether the trial court properly granted a motion to dismiss. Finding reversible error, we reverse the Hinds Count Circuit Court’s judgment and remand for further proceedings consistent with this opinion.

¶2. In July 2009, John Eubanks and Kim Wade entered into an “exclusive authorization and right to sell listing agreement.” Eubanks authorized Wade to sell Eubanks’s real property and residence for a commission. Wade represented himself to Eubanks as a broker, agent, and member of the Jackson Mississippi Association of Realtors. Wade informed Eubanks that he would list Eubanks’s property online via the Multiple Listing Service (“MLS”).

¶ 3. In September 2009, Wade found a buyer who executed an offer to purchase Eubanks’s property. Wade presented the buyer’s offer to Eubanks with a contract accepting the buyer’s offer. Eubanks noticed the “as is” provision was stricken and initialed by the buyer. Wade admitted he added the “as is” provision to the contract, but the buyer refused to agree to such a provision. Eubanks acknowledged he and Wade never discussed a warranty provision, and there was no mention of the warranty provision in their contract.

¶ 4. The buyer’s mortgage application was denied by a lending institution and the closing scheduled for the next day was cancelled. Eubanks claims that he made numerous attempts to contact Wade. The “for sale” signs were removed from Eu-banks’s property. In November 2009, Eu-banks contends that the sale listing on MLS was removed without his knowledge or consent. He later learned that his property was listed on the MLS website with multiple inaccuracies. Eubanks also discovered that Melissa Reese, a woman with whom he had never met, was named in the listing as the agent. Further, Eubanks contends that these actions indicated that the agreement he had with Wade had expired.

¶ 5. In November 2009, Eubanks contacted the potential buyer. Eubanks and the buyer entered into a lease/purchase agreement in which the buyer agreed to lease the-property from November 2009 through March 2010, with a balloon payment for the balance payable March 2010, Wade removed the lock box from the residence, but refused to return the keys to Eubanks.

¶ 6. Wade contacted Eubanks and threatened to put a lien against the property for his commission in the amount of $5,137.50, preventing the ultimate sale of the home in March 2010. Eubanks refused to execute an extension of the original listing agreement, and Wade placed a lien against Eubanks’s property in this amount.

¶ 7. Eubanks filed a claim against Wade with the Mississippi Real Estate Commission. Then, Wade informed Eubanks that he would release the lien if Eubanks dismissed the complaint filed with the Commission. Eubanks asserts that he entered this agreement with Wade under duress. Regardless, in March 2010, Eubanks and Wade executed a “release and cancellation of lien.” As a result, Eubanks and the buyer closed on the sale of the property shortly thereafter. However, after the closing, no money was exchanged and Wade renewed his lien. Eubanks also renewed his claim with the Commission.

¶ 8. The Commission found that Wade committed several violations. The Commission executed an order in July 2010 that stated that Wade was not a participant in MLS or the Jackson Association of Realtors at the time Eubanks’s property was listed. The Commission further found clear and convincing evidence that Wade ■violated the Mississippi Real Estate Broker License Act, codified at Mississippi Code Annotated section 73-35-21(l)(a) (Rev. 2012), and the Commission’s rules and regulations. Wade was sanctioned and censured.

¶ 9. On July 2, 2010, Wade filed a complaint against Eubanks in the circuit court. The complaint alleged that Eubanks breached their agreement for the sale of Eubanks’s property. Apparently, no answer was filed. On December 29, 2010, the circuit judge entered a default judgment against Eubanks. This action was pending before a different circuit judge. Eubanks claimed that he was never served with the complaint and filed a motion to set aside the default judgment, which was still pending when the judgment was entered in this action. As part of the motion to set aside the default judgment, Eubanks also claims that the circuit court did not conduct a hearing on damages after the default was entered.

¶ 10. In August 2011, Eubanks filed a lawsuit against Wade and Melissa Reese in the circuit court. In the complaint, Eu-banks alleged that Wade committed negligence, gross negligence, extortion, fraud, breach of fiduciary duty, acting without authority, failure to communicate, and substantial misrepresentations in the sale of his property. Wade filed an answer and raised several affirmative defenses. However, the answer did not mention the default judgment against Eubanks.

¶ 11. In 2013, Wade filed a motion to dismiss Eubanks’s lawsuit. The motion argued that the circuit court should dismiss the complaint based on a theory of res judicata, because he received a default judgment against Eubanks in 2010. Eu-banks filed a response and a hearing was set on December 19, 2013. The hearing was continued and it was reset for a telephonic conference on January 13, 2014.

¶ 12. On April 6, 2015, the circuit court entered an order granting Wade’s motion to dismiss with prejudice. It is from this order that Eubanks now appeals.

ANALYSIS

¶ 13. Eubanks argues two issues in this appeal. In each issue, Eubanks asks this Court to vacate the April 6, 2015 order granting Wade’s motion to dismiss. In this order, the circuit court ruled:

THERE CAME ON FOR HEARING on the Motion of Defendant, Kim Wade d/b/a Kim Wade Real Estate, to dismiss the above-styled and numbered cause, and the Court, after hearing oral arguments and being fully advised in the premises and, after having fully considered said motion, finds that said motion is well-taken and should be and is hereby granted.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the above-styled and numbered cause be and hereby is dismissed with prejudice as to any and all claims of the Plaintiff, John Eubanks, against Defendant, Kim Wade d/b/a Kim Wade Real Estate.

¶ 14. Eubanks contends the circuit court erred in entering this order. Eu-banks correctly states that the order was silent as to the specific grounds for the dismissal. Eubanks argues that the circuit court was in error to rely on a matter outside of the complaint to grant, the dismissal and could only do this if the motion to dismiss was converted to a motion for summary judgment. From the order, we see no reason to conclude that the circuit court converted the motion to dismiss to a motion for summary judgment. As a result, we do not review this appeal on the summary judgment standard, but instead review this case on the standard of review for a motion to dismiss under Mississippi Rule of Civil Procedure 12(b)(6).

¶ 15. The standard of review following a circuit court’s dismissal for failure to state a claim is as follows:

In an appeal of a dismissal of a case under Rule 12(b)(6), we apply a de novo standard of review. This Court is not required to defer to the trial court’s judgment or ruling. A Rule 12(b)(6) motion to dismiss for failure to state a claim tests the legal sufficiency of the complaint. The allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond reasonable doubt that the plaintiff will be unable to prove any set of facts in support of, her claim.

Breeden v. Buchanan, 164 So.3d 1057, 1060-61 (¶ 13) (Miss. Ct. App. 2015) (internal citations and quotation marks omitted).

1Í16. Based on our review of the complaint, the amended complaint, and the motion to dismiss, it is clear that Wade’s motion to dismiss did not attack the legal sufficiency of the individual claims pled in the complaint. Instead, the motion to dismiss asserts that “[a]ll of Eubanks’[s] claims against Wade are barred by the doctrine of res judicata,” and it is based on

the preclusive effect of “the December 28, 2010 default judgment entered against Eu-banks.” A copy of the judgment was attached to -the motion to dismiss.

¶ 17. The Mississippi Supreme Court has offered us guidance on this issue. In Wholey v. Cal-Maine Foods Inc., 530 So.2d 136, 138-39 (Miss. 1988), the court said:

In Glass v. Armstrong, 330 So.2d 57 [, 58] (Fla. [Dist. Ct.] App. 1976), it was held that a trial court is not authorized to take judicial notice of cases pending or previously disposed óf in the same court but outside the record in the case before it. Further, the Glass case held that res judicata may not be first raised on a motion to dismiss, as in the present case, for the reason that res judicata is an affirmative defense requiring both pleading and proof. Res judicata is an affirmative defense which may not be raised on motion to dismiss unless allegations of a prior pleading in the case demonstrates its existence.

(Citations omitted).

¶ 18. Eubanks argues that it' was improper for the circuit court to convert the motion to dismiss to a summary judgment without giving notice. In Sullivan v. Tullas, 19 So.3d 1271, 1273 (¶¶ 5-6) (Miss. 2009), the court considered the following:

The various defendants subsequently filed a motion to dismiss under ... Rule 12(b)(6) without answering the heirs’ complaint. On November 3, 2006, the court held a hearing on the Rule 12(b)(6) motion filed by the defendants. During the hearingi the heirs introduced copies of the checks that Tullos had tendered to them as payment for the land sold to Pittman. The defendants introduced an appraisal from the time of the sale showing the value of the land to be $500 per acre. Thereafter, during the hearing on the motion to dismiss, the court transformed the Rule 12(b)(6) motion into a motion for summary judgment, under Rule 56 [of the Mississippi Rules of Civil Procedure], -without ordering a continuance to allow the heirs a reasonable time to present evidence -necessary for the proper adjudication of their claims as is required under the rule.
Subsequently, on November 30, the trial court entered a memorandum. opinion, finding that summary judgment should be granted to the defendants. An order granting summary judgment was then entered on February 9, 2007.

¶ 19. In Sullivan, it was clear that the circuit court decided to convert the motion to dismiss to a motion for summary judgment. Id. at (¶ 5). Here, there is no indication that the circuit court considered this matter as a summary judgment. For that reason, we believe this matter must be considered only as a motion to dismiss under Rule 12(b)(6).

¶ 20. We find that Wholey correctly states the law and explains how a Rule 12(b)(6) motion to dismiss should be considered. We recognize that Wade has raised an important and- possibly valid affirmative defense. However, the prior judgment that Wade previously obtained against Eubanks is a matter outside the complaint that should not be considered in a motion to dismiss. For this reason, we find that the trial court committed reversible error when it granted the motion to dismiss, and the case must be remanded to the circuit court.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY MISSISSIPPI, FIRST JUDICIAL DISTRICT, IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

BARNES, ISHEE, FAIR, WILSON AND GREEENLEE, JJ., CONCUR. WESTBROOKS, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J., AND CARLTON, J. LEE, C.J., CONCURS IN RESULT ONLY •: WITHOUT SEPARATE WRITTEN OPINION.

WESTBROOKS, J.,

SPECIALLY CONCURRING:

¶ 22. I concur with the majority’s result that the judgment of the-circuit court should be reversed and remanded; however, I write separately, because in my opinion, the majority, fails to address Eu-banks’s ultimate issues on appeal.

I. Whether there was a hearing on Wade’s motion to dismiss.

¶23. The majority briefly mentions a hearing regarding the motion to dismiss; however, it does not conduct an analysis regarding whether such hearing actually occurred. It is important to address this issue on appeal, because during oral arguments before this Court, Eubanks maintained that the circuit court never held a hearing on Wade’s motion to dismiss. Eu-banks maintains that .there was a telephonic conference; however, he asserts that there was no formal hearing.

¶24. The trial court issued an-order granting Wade’s motion to dismiss, but the appellate record contains no transcript. The Mississippi Supreme Court has previously held that “in the absence of anything appearing in the record to the contrary, a judgment of [a] court of competent jurisdiction imports verity, and is presumed valid.” Vinson v. Johnson, 493 So.2d 947, 949 (Miss. 1986). “In the absence of anything in the record appearing to the contrary, [an appellant c]ourt will presume the trial court acted properly, and if evidence was necessary, that court heard sufficient evidence to support the judgment.” Id. (citations omitted). “In Wade v. Wade, 419 So.2d 584 [, 585] (Miss. 1982), [the supreme court] reverse[d] a case in which there was no transcript, but the record affirmatively revealed a failure on the part of the trial court to hold any hearing on a matter which required proof before a valid decree could be entered.” Vinson, 493 So.2d at 949 (emphasis omitted).

¶25. Therefore, I would address this issue, although it is not dispositive of the appeal. In this case, both parties stipulate that they participated in some form of a telephonic conference or hearing, and the record contains a signed order that references a telephonic hearing on this matter.

II. Whether the trial court erred in converting Wade’s motion to dismiss to a motion for summary judgment.

¶26. The majority sees no reason to conclude that the circuit court converted the motion to dismiss to a motion for summary judgment. As a result, the majority reviews this appeal on the standard of review for a motion to dismiss pursuant to Rule 12(b)(6). If the question presented before this Court was whether a trial court could grant a motion to dismiss based on a claim of res judicata, then the analysis would stop there: However, the issues are whether the trial court converted Wade’s motion to a motion for summary judgment, and whether Eubanks received notice of the conversion.

¶ 27. The majority cites Whaley v. Cal-Maine Foods Inc., 530 So.2d 136, 138-39 (Miss. 1988), as the correct statement of law explaining how a Rule 12(b)(6) motion should be treated, and finds no indication that the circuit court considered this matter as a summary judgment motion. However, I do not agree that Wholey governs this case. Wade asserted “res judicata” in his prayer for relief before the circuit court, and absent a transcript, that is how the circuit court appeared to have rendered its decision. However, absent a transcript, it is reasonable to conclude that the circuit court converted Wade’s motion to one for summary judgment.

¶ 28. “In reviewing a lower court’s grant of summary judgment, this Court employs a de novo standard of review.” Thomas v. Jones, 23 So.3d 575, 577 (¶ 7) (Miss. Ct. App. 2009). Furthermore, “[a] decision on appeal should be limited to a consideration of and ruling upon those issues necessary to a proper disposition of the appeal.” Foster v. State, 639 So.2d 1263, 1295 (Miss. 1994). Therefore, when an appeal is brought before this Court, this Court should properly address the issue presented before it.

¶ 29. In Delta MK LLC v. Mississippi Transportation Commission, 57 So.3d 1284, 1289 (Miss. 2011) (¶ 13), the supreme court stated:

Whenever a trial judge converts a Rule 12(b)(6) motion to dismiss into one for summary judgment by considering matters outside of the pleadings, the judge must give all parties ten days’ notice that he is converting the motion. Regardless of how baseless a plaintiffs claim appears to the trial court, our rules require that she be given 10 days’ notice once a motion to dismiss is converted into a motion for summary judgment.

(Internal citation, quotation marks and emphasis omitted).

¶ 30. Eubanks argues Wade’s motion to dismiss was converted to a motion for summary judgment, and he was not given proper notice of the conversion. Eubanks was given notice that Wade filed a motion to dismiss under Rule 12(b)(6); however, there is no evidence that he was given ten days’ notice that the motion to dismiss was to be treated as a motion for summary judgment as required by Rule 56(c). The record is without a transcript and silent on the court’s intent. The basis for granting the motion was the default judgment that was outside the pleadings and was extrinsic evidence. “A Rule 12(b)(6) motion to dismiss for failure to state a claim tests the legal sufficiency of the complaint.” Breeden v. Buchanan, 164 So.3d 1057, 1066 (¶ 42) (Miss. Ct. App. 2015) (citation omitted), cert. denied, 160 So.3d 704 (Miss. 2015). “The allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond reasonable doubt that the plaintiff will be unable to prove any set of facts in support of her claim.” Id. (citation omitted). When matters outside the record are considered, a motion to dismiss is converted to a motion for summary judgment and the notice requirements apply.

¶ 31. Further, “[the supreme court] specifically noted ... that no matter how baseless the claim may appear to be, the Mississippi Rules of Civil Procedure require that respondents to a converted summary-judgment motion be given 10 days’ notice once a motion to dismiss is converted to a motion for summary judgment.” Sullivan v. Tullos, 19 So.3d 1271, 1275-76 (¶ 18) (Miss. 2009) (citing Jones v. Regency Toyota Inc., 798 So.2d 474, 476 (¶ 9) (Miss. 2001) (quotation marks omitted)).

¶32. In Sullivan, the trial judge converted the defendants’ motion to dismiss into a summary-judgment motion, because two exhibits were admitted into evidence during the hearing on the motion to dismiss. Id. at 1275 (¶ 16). The majority argues that in Sullivan, it was clear that the circuit court decided to convert the motion to dismiss to a motion for summary judgment. The case was dismissed with prejudice, so it is not beyond reason to opine that the trial judge converted the motion to a motion for summary judgment and ruled on it as such.

¶ 33. Therefore, I would find that the circuit court’s consideration of extrinsic evidence went beyond the scope of Rule 12 and, therefore, Eubanks did not receive the required ten days’ notice of the conversion of the motion to dismiss to a motion for summary judgment. Accordingly, I agree to reverse the judgment of the circuit court and remand for further proceedings.

IRVING, P.J., AND CARLTON, J., JOIN THIS OPINION.

      . In Vinson, 493 So.2d at 947, "Gene D. Vinson ... appealed] from a decree of the chancery court of the Second Judicial District of Hinds County confirming a partition in kind of realty in which he owned an undivided one-fifth interest in fee.” The supreme court held, "If something happens in a trial court about which a party feels aggrieved, he will not be allowed to complain of it on appeal unless he gets it in the record.” Id. at 950.

        . In Wade, 419 So.2d at 585, a wife filed a complaint in 1971 against her husband for separate support and maintenance, which he answered. "The case was set for trial [in] March[] 1972, at which time the cause was continued." Vinson, 493 So.2d at 949. "Nine years later an order was entered setting the case for trial November 5, 1981.” Id. "On that date, a decree was entered awarding the wife the house of the parties, support money and attorney’s fees.” Id. "The decree failed to recite that it was heard on bill and answer or that the court considered oral or documentary evidence.” Id.


source: Caselaw Access Project

author: WILSON, J.,

license: Public Domain

text:
    Harry LANE, Appellant v. MISSISSIPPI DEPARTMENT OF TRANSPORTATION, SOUTHERN DISTRICT, Appellee
    NO. 2016-SA-00974-COA
    Court of Appeals of Mississippi.
    05/23/2017

      HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, HON. ROGER T. CLARK, JUDGE
    ATTORNEYS FOR APPELLANT: MICHAEL DUANE MITCHELL, SAMUEL S. CREEL JR.
    ATTORNEY FOR APPELLEE: TRACE D. MCRANEY
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   WILSON, J.,

FOR THE COURT:

¶ 1. The sole issue in this appeal is whether the plaintiffs pre-suit notice of claim was sufficient to satisfy the requirements of the Mississippi Tort Claims Act (MTCA), specifically, Mississippi Code Annotated section 11-46-11(2) (Rev. 2012). The circuit court concluded that the notice did not substantially comply with the statute’s requirements and granted summary judgment for the Mississippi Department of Transportation (MDOT) on that basis. For-the reasons that follow, we agree and affirm. . .

FACTS AND PROCEDURAL HISTORY

¶2. The relevant' record facts can be summarized briefly. On October 2, 2015, Lane’s attorney filed a notice of claim with MDOT that stated as follows:

On or about October 11, 2014, as Mr. Lane was operating his motorcycle in a safe and prudent manner southbound on the ramp of MS 67, Mr. Lane lost control of his motorcycle and ran off the left side of the roadway, the motorcycle came to rest East of MS 67 facing east, that Mr. Lane hit a damaged area on the roadway causing him to lose control of his motorcycle.
This accident was caused by the negligence] for failure to properly inspect and maintain said roadway of [MDOT]. That [MDOT] has acted in reckless disregard to the members of the public who may have been operating their vehicles southbound of the ramp of MS 67.
That as a direct of [sic] proximate result of the aforesaid acts and failure to act Mr. Lane has suffered and continues to suffer damages in excess of $28,983.53, in personal and property damages, further regarding pain and suffering in the amount' to be determined by the Court. Therefore, the undersigned intends to bring suit, pursuant to Section 11-46-1, et seq. against [MDOT] for alleged neglect in reckless disregard for the safety of the driving public on the southbound ramp of MS 67, in Forrest County, Mississippi.

¶ 3. On January 27, 2016, Lane filed suit against MDOT in the Harrison County Circuit Court. His complaint repeated the allegations of his notice of claim. MDOT answered and on March 11, 2016, filed a motion for summary judgment arguing that the content of Lane’s pre-suit notice of claim failed to satisfy the requirements of section 11-46-11. Lane responded, MDOT replied, and the court heard oral argument on the motion. On June 23, 2016, the circuit court granted MDOT’s motion based on Lane’s failure to comply with the requirements of section 11^6-11. Lane filed a timely notice of appeal.

DISCUSSION

¶4. This Court applies a de novo standard of review to a grant of summary judgment and to issues involving the interpretation and application of the MTCA. Lee v. Mem’l Hosp. at Gulfport, 999 So.2d 1263, 1266 (¶ 8) (Miss. 2008).

¶ 5. At least ninety days prior to filing suit against a governmental entity, a plaintiff “must file a notice of claim with the chief executive officer of the governmental entity.” Miss. Code Ann. § 11-46-11(1). “Every notice of claim shall: (i) Be in writing; (ii) Be delivered in person or by registered or certified United States mail; and (iii) Contain a short and plain statement of the facts upon which the claim is based ....” Id. § ll-46-ll(2)(b). The statute expressly identifies Parker v. Harrison Cty. Bd. of Supervisors, 987 So.2d 435, 439 (¶ 18) (Miss. 2008) (quoting S. Cent. Reg’l Med. Ctr. v. Guffy, 930 So.2d 1252, 1257-58 (¶18) (Miss. 2006)).

seven required categories of information which must be included [in the notice of claim]. The seven required categories are as follows: (1) the circumstances which brought about the injury; (2) the extent of the injury; (3) the time and place the injury occurred; (4) the names of all persons known to be involved; (5) the amount of money damages sought; (6) the residence of the person making the claim at the time of the injury; and (7) the claimant’s residence at the time of filing the notice.

¶ 6. “[The Supreme] Court requires ‘substantial compliance’ with the MTCA notice provisions.” Fairley v. George Cty., 871 So.2d 713, 716 (¶ 8) (Miss. 2004). “Though substantial compliance with the notice provisions is sufficient, substantial compliance is not the same as, nor a substitute for, non-compliance.” Id. at 717 (¶ 8) (quotation marks, alteration omitted). “The determination of substantial compliance is a legal, though fact-sensitive, question.” Id. at (¶ 9) (quotation marks, alteration omitted). The defendant is entitled to summary judgment if the plaintiff failed to comply with the MTCA’s pre-suit notice provisions. Id. at 718 (¶ 15).

¶ 7. In Guffy, the Supreme Court recognized that its prior opinions on the issue of “substantial compliance” had generated “confusion.” Guffy, 930 So.2d at 1258 (¶ 19). The Court stated, “[This] confusion ... needs to be addressed by this Court today in order to provide direction and clarity to the courts and the bar.” Id. To that end, the Court wrote:

The confusion has arisen ... as to how much information is required by this Court under each of the seven categories .... As a practical example, the first category requires notice of the “circumstances which brought about the injury.” In order to comply with this requirement, the notice need not disclose every single fact, figure and detail, but rather the substantial details, in order to comply with the requirements of [section] 11-46-11(2). But, the failure to provide any of the seven statutorily required categories of information falls short of the statutory requirement and amounts to non-compliance with [section] 11-46-11(2). However, where some information in each of the seven required categories is provided, this Court must determine whether the information is “substantial” enough to be in compliance with the statute. If it is, the result is “compliance,” not “substantial compliance” with the requirements under [section] 11-46-11(2).

Id. at (¶ 20).

¶ 8. Two years later, the Supreme Court unmistakably reaffirmed Guffy’s guidance to the bench and bar. Parker, 987 So.2d at 439-40 (¶ 18). Indeed, in Parker, the Supreme Court stated: “this Court does not even reach the issue of whether a plaintiff substantially complied with the statute if all seven categories of information are not contained in the notice letter.” Id. at 440 (¶ 19). The Supreme Court also held that Guffy’s discussion of substantial compliance was “controlling” and “applied retroactively” to all cases awaiting trial or pending on appeal when it was decided. Id.

¶ 9. This line of cases soon took an unexpected turn. About four months after Parker handed down, the Supreme Court stated, in a footnote, that what Guffy had trumpeted as much-needed “direction and clarity to the courts and the bar” was actually only “dictum” that obviously had no “binding effect.” Lee, 999 So.2d at 1266 n.3. Not only that, the Court criticized “the trial court’s reliance on Guffy” as “misplaced.” Id.

¶ 10. The foregoing decisions are hard to reconcile. One purports to provide “direction and clarity to the courts and the bar,” while another criticizes a circuit judge for heeding that very direction. One holds that Guffy’s pronouncements apply retroactively and are “controlling,” while the next says that those pronouncements were only “dictum.” With “direction and clarity” downgraded to dicta to be relied on at our own risk, we will muddle through as best we can. We address each of the seven required categories of information in turn.

1. The circumstances that brought about the injury

¶ 11. MDOT concedes that Lane’s notice “arguably fully satisf[ies]” this requirement. We agree, although we note that Lane provided only slightly more information than the Supreme Court deemed insufficient in Fairley. See Fairley, 871 So.2d at 717-18 (¶¶ 12-13); id. at 719 (¶ 20) (Easley, J., dissenting).

2. The extent of the injury

¶ 12. Lane provided no information about the extent of his injuries. His notice stated only that he “ha[d] suffered and continue[d] to suffer damages in excess of $28,983.53, in personal and property damages,” and unspecified “pain and suffering” damages. Our Supreme Court has “recognize[d] ... that on occasion the full extent of such injuries may only become known at a later date. However, a plaintiff is required to reveal the extent of injuries known at the time the notice letter is sent.” Fairley, 871 So.2d at 718 (¶ 13). Here, Lane filed his notice of claim almost one year after the alleged motorcycle accident but provided no description of his alleged injuries or their extent, disclosing only the types of damages he claimed. Lane failed to satisfy the requirement. See id. (finding that notice of “personal injuries and/or property damage” failed to satisfy the requirement).

8. The time and place the injury occurred

¶ 13. MDOT disputes that Lane’s notice satisfied this requirement. MDOT emphasizes that the notice named the wrong county. The accident occurred in Harrison County, not Forrest County, as Lane’s notice of claim stated. In fact, Highway 67 is located entirely in Harrison County, so the accident could not have occurred on Highway 67 in Forrest County. MDOT also points out that Lane’s notice failed to state what time of day the injury occurred. However, in the circuit court, MDOT stated in its motion for summary judgment that Lane’s “notice ... provided information to satisfy” this particular requirement. Indeed, it would appear that MDOT had not noticed Lane’s mistake when it filed its motion for summary judgment. Lane first raised the issue when he acknowledged the mistake in his response. As such, it appears that MDOT knew and understood from the notice where the accident allegedly occurred. Therefore, we accept that Lane’s notice provided adequate facts as to this particular category of information.

A The names of all persons known to be involved

¶ 14. MDOT does not contend that Lane’s notice was insufficient with respect to this particular required category of information. The notice does not directly address this issue; however, the notice seems to describe a one-vehicle accident, and Lane cannot be expected to know the names of specific MDOT personnel involved in the road’s maintenance. While it would have been better for Lane’s notice to state directly whether he was aware of any other persons involved, we do not consider his failure to do so non-compliance.

5, The amount of money damages sought

¶ 15. As noted above, Lane’s notice of claim stated that he had' “suffered and continue[d] to suffer damages in excess of $28,983.53, in personal and property damages,” plus unspecified “pain and suffering” damages. The circuit court found that Lane “barely” “reach[ed] the level of substantial compliance” as to this component of his statement of claim. On appeal, MDOT argues that the information is insufficient. We agree that Lane fails to specify whether this amount reflects medical bills, damage to his motorcycle, both, or something else. Nonetheless, like the circuit court, we find that the information is “barely” sufficient with respect to the fifth required category of information.

6-7. The claimant’s residence at the time of the injury and at the time of filing the notice

¶ 16. The final two categories of information are related, so we address them together. Lane admits that his notice of claim completely failed to address either required category of information. Citing Lee, supra, Lane argues that his counsel’s letterhead was a substitute for compliance. We disagree.

¶ 17. In Lee, the plaintiff (Lee) alleged that she suffered injuries as a result of medical malpractice by employees of Memorial Hospital , at Gulfport (MHG). Lee, 999 So.2d at 1264 (¶3). Lee’s notice of claim included a detailed description of her alleged injuries and MHG’s alleged negligence. Id. Her notice also contained her attorney’s letterhead, her name and date of birth, and the "specific dates that she was treated at MHG. Id. One month after receiving Lee’s notice of claim, MHG informed Lee that it had reviewed her claim, that it found no deviation from the applicable standard of care, and that "her claim was denied. Id. at 1265 (if 3). The circuit court dismissed Lee’s subsequent complaint against MHG after finding that Lee failed to comply with section 11-46-11(2), as interpreted by Guffy, supra. Id. at 1266 (¶ 10). However, the . Supreme Court reversed on appeal. As noted above, the Court stated that the circuit judge’s reliance on Guffy was “misplaced.” Id. at 1266 n.3. The Court’s opinion first concluded that Lee’s notice of claim provided the first five categories of information required by section 11-46-11(2). Id. at 1267 (¶¶ 11-12). As to the final two required categories, the Court reasoned:

Last, the notice of claim contained the letterhead of Lee’s attorney, Lee’s name, and Lee’s date of birth. While Lee did not provide her residence at the time of the injury or at the time of the notice, we find the information provided to be in substantial compliance with the statutory requirements. While there may be some cases in which the claimant’s residence is a critical issue, clearly it was not in this case. The address of Lee’s counsel was provided, and Lee’s date-of-birth and dates of hospitalization were provided for identification purposes. Clearly, MHG was able to identify Lee as a patient and investigate and conduct a “review of the matter” as evidenced by its letter of denial.

Id. at (¶ 12).

. ¶ 18. This case is distinguishable from Lee. Lee failed to provide her address at the time of the injury or at the time she submitted her claim, but she provided ample information for “identification purposes” in the form of her date of birth and the dates of her hospitalization. Obviously, MHG was able to identify her — and review the merits of her claim — based on its own records of her treatment. The Supreme Court’s opinion seemed to view the information that- Lee provided as an imperfect substitute for, or attempt to comply with, section 11-46-11(2)⅛ sixth and seventh required categories of information, rather than a complete failure to comply with those sub-requirements. In contrast, the notice of claim in the present case provides absolutely no identifying information other than to show that the claimant’s name is “Harry R. Lane.”

¶ 19. In Lee, the Supreme Court went on to state that its decision “should not be interpreted as holding that the required elements [of section 11-46-11(2)] do not need to be explicitly stated in the notice of claim.” Lee, 999 So.2d at 1267 (¶ 13). The Court stated that it would “continue to apply a substantial compliance standard,” that the determination of substantial compliance was “fact-sensitive,” and that on the particular “facts and circumstances of [that] case,” Lee’s notice “substantially complied with the statutory requirements of [s]ection 11-46-11(2) and fulfilled the purpose of the statute as set forth in Reaves ex rel. Rouse v. Randall, [729 So.2d 1237 (Miss. 1998)].” Lee, 999 So.2d at 1267 (¶ 13). Per Reaves, the purpose of the notice requirement is to ensure that governmental entities'are on notice of claims against them and to permit prompt corrective action and settlement when appropriate. See Reaves, 729 So.2d at 1240 (¶9).

¶ 20. In summary, Lane’s notice of claim disclosed only that “[o]n or about” a date one year earlier he wrecked his motorcycle on Highway 67; that he suffered personal injuries and property damages; and that he was seeking damages “in excess of $28,983.53.” As discussed above, Lane’s notice of claim provided some information in four of the “seven required categories of information which must be included” in a notice of claim, Parker, 987 So.2d at 439 (¶ 18) (quoting Guffy, 930 So.2d at 1257-58 (¶ 18)), although the information in some of those categories was minimally sufficient at best. However, Lane’s notice provided no information to satisfy the other three requirements of section 11^46 — 11(2): the extent of the injury, his residence at the time of the injury, and his residence at the time of the claim. This information was absent even though the statute and multiple Supreme Court opinions had identified it as essential to a proper notice of claim. And unlike the claimant in Lee, Lane’s notice of claim failed to provide alternative identifying information. See Lee, 999 So.2d at 1267 (¶ 12). Rather, MDOT was informed only that someone named Harry Lane was making a claim against it based on a motorcycle wreck that occurred one year earlier.

¶21. In Lee, the Court reiterated that all “required elements” of section 11-46-11(2) do “need to be explicitly stated in the notice of claim.” Id. at (¶ 13). Lee also described its holding as “fact-sensitive” and “[bjased on the facts and circumstances of [that] case.” Id. We conclude that the facts of this case are materially different. For the reasons discussed above, we conclude that the notice of claim in this case reflects non-compliance, rather than substantial compliance, under the Supreme Court’s precedents. The Supreme Court has held that although “substantial compliance with the notice provisions is sufficient, substantial compliance is not the same as, nor a substitute for, non-compliance.” Fairley, 871 So.2d at 717 (¶ 8) (quotation marks omitted). Accordingly, we affirm the judgment of the circuit court.

¶ 22. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . As Lee states, “dictum” is never "binding,” retroactively or prospectively. This raises the question how dictum was deemed retroactively "controlling” in Parker. As it turns out, Parker engaged in an analysis, possibly the first of its kind, of the retroactivity of dicta.

      . We recognize that Lane provided a dollar-value for part of his claim; however, "the amount of money damages sought” is a separate and distinct category of required information, which we address below.


author: WILSON, J., FOR THE COURT:

text:
    Bertha M. TAYLOR, David D. Busha, and Steven C. Taylor, Heirs of Thomas E. Taylor, Deceased, Appellants v. RELIANCE WELL SERVICE, INC. and Liberty Insurance Corporation, Appellees
    NO. 2016-WC-01165-COA
    Court of Appeals of Mississippi.
    05/23/2017

      MISSISSIPPI WORKERS’ COMPENSATION COMMISSION
    ATTORNEYS FOR APPELLANTS: LAMPTON O’NEAL WILLIAMS JR., CORY MORRIS WILLIAMS
    ATTORNEY FOR APPELLEES: GINGER MOORE ROBEY
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. The claimant and the employer/carrier settled this workers’ compensation dispute and submitted a joint application for approval of the settlement to the Workers’ Compensation Commission. After the Commission received the application but before it approved the settlement, the claimant died. Two days later, the Commission approved the settlement, unaware that the claimant had passed away. The employer/carrier then moved to vacate the Commission’s prior order approving the settlement, arguing that the order was based on a mistake of fact — that the claimant was still alive — and should be set aside. The Commission agreed and vacated its prior order approving the settlement,

¶ 2. For the reasons explained in more detail below, we conclude that the Commission erred as a matter of law. Under the Mississippi Workers’ Compensation Law, the settlement agreement between the claimant and the employer/earrier was due to be approved by the Commission unless the Commission found that it was not in the best interest of the injured worker. An injured worker’s non-work-related death, after a settlement agreement has already been signed and presented to the Commission for approval, does not implicate this statutory basis for disapproving a settlement. Accordingly, there was no material mistake of fact that justified setting aside the Commission’s prior order approving the settlement. We reverse and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶3. On March 3, 2014, Thomas Taylor was in the scope and course of his employment at Reliance Well Service Inc., when a pipe fell and struck him in the head and neck. Taylor sustained compensable injuries to his shoulder, neck, and back. After Taylor reached maximum medical improvement, he was assessed permanent work restrictions and an impairment rating as to his body as a whole.

¶ 4. On May 3, 2016, Taylor and Reliance Well agreed to settle Taylor’s claim for a total sum of $71,659.43. On May 6, counsel for Reliance Well sent counsel for Taylor signed settlement documents, including an application to the Commission for-approval of the settlement. Taylor countersigned the application, and it was delivered to the Commission on May 13. On May 16, Taylor died. On May 18, the Commission approved the settlement, unaware that Taylor had passed away. On May 20, counsel for Reliance Well emailed the Commission to inquire whether the settlement had been approved. Counsel’s email stated that she had just learned that Taylor had died on May 16.

¶ 6. On June 6, 2016, Reliance Well filed a motion to vacate the Commission’s order approving the settlement. Reliance Well made two arguments: First, “[bjecause the benefits paid to [Taylor] in the settlement [were] for permanent disability benefits, and because [Taylor] was in fact deceased at the time the [o]rder approving the settlement was entered, the settlement should be set aside, and the [o]rder vacated as. a matter of law.” Reliance Well characterized this as a “material mistake of fact.” Reliance Well further argued that such benefits were for the benefit of Taylor only and were not owed to his estate. Second, Reliance Well alleged that the settlement should be set aside based on a “misrepresentation of fact.” Specifically, Reliance Well alleged that, in the course of settlement discussions, Taylor represented that he would be unable to earn more than minimum wages due to his injuries and work restrictions, but reports of his death indicated that he was killed while working on the decommissioning of a cell phone tower.

¶ 6. In response, Taylor’s heirs argued that his death was not a basis for setting aside the settlement. They also submitted an affidavit from Taylor’s supervisor at the job site on the date of .his death. The supervisor stated that he was familiar with Taylor’s work restrictions and that, at the time of his death, Taylor was employed only on a limited and irregular basis “when jobs were available within his restrictions.”

¶ 7. On July 15, 2016, pursuant to' Mississippi Code Annotated section 71-3-53 (Rev. 2011), the Commission entered an order setting' aside its prior order approving the settlement. The Commission found that its prior order should be set aside because it “was issued based upon a mistake of fact that [Taylor] was still alive.” The Commission further stated that the settlement was for future disability benefits and medical expenses, which were intended to benefit only Taylor and were not owed to his estate.

STANDARD OF REVIEW

¶ 8. In general, our “review of a decision of the Workers’ Compensation Commission is limited to determining whether the decision was supported by substantial evidence, was arbitrary and capricious, was beyond the scope or power of the agency to make, or violated one’s constitutional or statutory rights.” Gregg v. Natchez Trace Elec. Power Ass’n, 64 So.3d 473, 475 (¶ 8) (Miss. 2011). In addition, we will not reverse the Commission’s decision to reopen a case pursuant to section 71-3-53 unless the decision was an abuse of discretion. Bennett v. United Parcel Serv., 382 So.2d 469, 472 (Miss. 1980); Armstrong Tire & Rubber Co. v. Franks, 242 Miss. 792, 799, 137 So.2d 141, 144 (1962). However,

[t]his Court affords de novo review to the Commission’s application of the law. The legal effect of the evidence, and the ultimate conclusions drawn by the Commission from the facts are questions of law, especially where .the facts are undisputed .... When the [Commission] has misapprehended a controlling legal principle, no deference is due, and our review is de novo.

Gregg, 64 So.3d at 475-76 (¶9) (internal citations, quotation marks, and alterations omitted),

DISCUSSION

¶ 9. Mississippi law favors voluntary agreements to compromise and settlé disputes. Estate of Cole v. Ferrell, 163 So.3d 921, 925 (¶ 18) (Miss. 2012); Parmley v. 84 Lumber Co., 911 So.2d 569, 573 (¶22) (Miss. Ct. App. 2005). A settlement is a contract, and like any other contract,' it will be enforced according to its terms based on general principles of contract law. Hastings v. Guillot, 825 So.2d 20, 23 (¶ 12) (Miss. 2002); Parmley, 911 So.2d at 572-73 (¶¶ 14, 21). As with any other contract, “for there to be a settlement there must be a meeting of the minds.” Hastings, 825 So.2d at 23 (¶ 12). Here, there is no dispute that there was a meeting of the minds prior to Taylor’s death. If this were an ordinary settlement, Taylor’s death would not affect the enforceability of the settlement.

¶ 10. However, workers’ compensation settlements differ from other types of settlements in one critical respect. The Workers’ Compensation Law states as follows:

Rules of the [C]ommission shall govern compromise payments where the prescribed schedules are not applicable and which, in its discretion, may be made in cases where it is not possible to determine the exact extent of disability, as for example in certain injuries to the back or head. ... Commutation and lump sum settlement payments shall be governed by rules of the [Cjommission, and shall not be made except when determined to be in the best interest of the injured worker or his dependents, the [Cjommission having final authority in such questions.

Miss. Code Ann. § 71-3-29 (Rev. 2011). Applying this provision, the Mississippi Supreme Court has held that both compromise and lump sum settlements require Commission approval and “shall not be made ‘except when determined [by the Commission] to be in the best interest of the injured worker.’ ” Bailey Lumber Co. v. Mason, 401 So.2d 696, 704 (Miss. 1981). Commission Procedural Rule 15 likewise makes clear that the Commission will not approve lump sum or compromise settlements unless the settlement is in the claimant’s best interest. See Miss. Admin. Code § 20-2-1:2.15.

¶ 11. Against this legal background, this case raises questions of whether Reliance Well had a right to back out of its agreement to settle Taylor’s claim because he died before the settlement was approved by the Commission and whether Taylor’s death was a valid reason for the Commission to set aside its prior order approving the settlement. These are issues of first impression in Mississippi, although courts in other states have addressed similar issues.

¶ 12. In Rojo v. Loeper Landscaping Inc., 107 N.M. 407, 759 P.2d 194, 197 (1988), the New Mexico Supreme Court held that an employer was not entitled to repudiate its lump sum settlement of a workers’ compensation claim simply because the claimant died before the settlement was approved by the state administrative agency. Similar to Mississippi law, New Mexico law provided that the settlement had to be approved by an administrative hearing officer and that the hearing officer should approve the settlement only if it was fair and equitable and in accordance with the law. See id. at 196-97. In Rojo, the New Mexico Supreme Court held that the hearing officer should have approved the settlement despite the claimant’s death because the claimant’s death did not “satisfy the sole [statutory] basis ... for disapproval' ... of the settlement” — i.e., his death did not render the settlement unfair or inequitable. Id. at 197; accord, e.g., Schuck & Sons Constr. v. Ind. Comm’n of Ariz., 192 Ariz. 231, 963 P.2d 310, 314-15 (Ariz. Ct. App. 1998) (“We find [Rojo’s,] reasoning persuasive and adopt it.”).

II13. Other courts have reached different conclusions under other states’ workers’ compensation statutes. It is possible to distinguish the facts of many of these cases. For example, some involve independent actions to enforce unapproved settlements rather than, as in this case, an appeal from an order vacating a prior order approving the settlement. See, e.g., Tate v. Liberty Mut. Ins., 185 So.3d 468, 470-73 (Ala. Civ. App. 2015) (holding that a deceased employee’s estate could not enforce a workers’ compensation settlement reached prior to his death because the settlement had not been approved by a court, as required by statute); see also id. at 473 n.1 (citing additional cases from other states that reached differing conclusions on similar issues). In Tate, the court’s reasoning and conclusion were similar to that of our Workers’ Compensation Commission in the present case: that the settlement was, “by statute, not valid for any purpose until approved by the court.” Id. at 473. Therefore, the court held that the settlement could not be enforced by the estate. Id.

¶ 14. Under Mississippi law, the Commission clearly has discretion to reopen a case in which it previously approved a settlement, if its prior order approving the settlement was based on a mistake of fact. See Miss. Code Ann. § 71-3-53; Metal Trims Indus., Inc. v. Stovall, 562 So.2d 1293, 1296 (Miss. 1990). The issue here is whether the mistake of fact in this case— the Commission’s assumption that Taylor was still alive when it approved the settlement — related to a valid reason for setting aside the prior order approving settlement. This depends on whether Taylor’s death, after the settlement was submitted to the Commission but prior to its approval, would have been a valid reason for the Commission to refuse to approve the settlement in the first instance.

¶ 15. We conclude that Taylor’s death was not a valid reason for Reliance Well to back out of the settlement, for the Commission to refuse to approve the settlement, or for the Commission to vacate its order approving the settlement. The Commission was authorized to refuse to approve the settlement only if it determined that settlement was not “in the best interest of the injured worker or his dependents.” Miss. Code Ann. § 71-3-53; see Bailey Lumber Co., 401 So.2d at 704; Miss. Admin. Code § 20-2-1:2.15. Reliance Well has not shown how Taylor’s death, after the settlement was already signed by the parties and submitted to the Commission, had any bearing on this issue. On this point, we agree with the reasoning of the New Mexico Supreme Court that the “death of a party after agreement has been reached” simply does not implicate “the sole [statutory] basis ... for disapproval of the settlement.” Rojo, 759 P.2d at 197. Accordingly, there was no mistake of any material fact that justified vacating the parties’ settlement, and the Commission erred as a matter of law when it vacated its prior order approving the settlement.

¶ 16. For the foregoing reasons, we reverse the Commission’s decision vacating its prior order approving the parties’ settlement. Because the Commission concluded that Taylor’s death required it to vacate the settlement, it did not address Reliance Well’s alternative allegation that the settlement was based on a misrepresentation of fact, namely, Taylor’s future wage-earning capacity. The Commission has limited authority to reopen a previously settled case based on a material misrepresentation of fact. See Bailey Lumber Co., 401 So.2d at 708. On appeal, the parties have not addressed this issue, which should be decided by the Commission in the first instance. We leave to the Commission to decide whether Reliance Well’s allegation of a misrepresentation is sufficient to warrant any further proceedings.

¶ 17. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS REVERSED, AND THIS CASE IS REMANDED TO THE COMMISSION FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, GREENLEE AND WESTBROOKS, JJ, CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . We refer to the employer and carrier collectively as "Reliance Well.”

      . This amount reflected $48,988.82 in disability compensation, $4,755,75 to provide for anticipated future medical expenses, and attorneys' fees of $17,914.86. The application reflected that Taylor's alleged average weekly wage at the time of his injury was $824.79 and that he had already received temporary total disability benefits in the amount of $32,718.

      . The record on appeal does not reflect a formal substitution of parties, and neither side has invoked the procedures for substitution of parties under Mississippi Rule of Appellate Procedure 43(a), Nonetheless, we will decide the appeal on its merits because Taylor’s “death does not foreclose our ability to grant the relief requested.” Timms v. Pearson, 876 So.2d 1083, 1084 n.1 (Miss. Ct. App. 2004).

      . In rebuttal, Reliance Well noted that the affiant, David Busha, was also Taylor’s brother.

      . In Alabama, workers’ compensation disputes are decided in circuit court, and settlements require circuit court approval. See Ala. Code §§ 25-5-56 &-88.


author: GRIFFIS, P.J.,

text:
    Ronald WEEKS, Appellant v. CITY OF BILOXI, Mississippi and its Civil Service Commission, Appellees
    NO. 2016-CC-00050-COA
    Court of Appeals of Mississippi.
    05/23/2017

      HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT, HON. LAWRENCE PAUL BOURGEOIS JR., J.
    • ATTORNEYS FOR APPELLANT: ANDREW AUSTIN CLARK, RUSSELL S. GILL
    ATTORNEYS FOR APPELLEES: GERALD HENRY BLESSEY, TERE R. STEEL, DANIELLE BREWER JONES
    BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
   GRIFFIS, P.J.,

FOR THE COURT:

¶ L Ronald Weeks appeals his termination as a police officer for the City of Biloxi. The Biloxi Civil Service Commission found that the City acted in good faith when it terminated Weeks for cause. Weeks appealed the decision to the Harrison County Circuit Court, which affirmed the Commission’s judgment. It is from this judgment that Weeks now appeals. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Weeks was employed as a police officer with the City of Biloxi from April 29, 1991, until he was terminated on October 31, 2007.

¶ 3. Weeks’s termination stemmed from the events that occurred shortly after his shift began on June 6, 2007. Immediately after the shift briefing, Weeks learned that his close friend had attempted suicide and was at Biloxi Regional Medical Center. Lieutenant Andrew Balius and Sergeant Michael Brumley, the shift supervisors, gave Weeks permission to leave work and go check on his friend’s condition. While responding to an unrelated call at the hospital, Lt. Balius observed Weeks crying.

¶ 4. While Weeks was at the hospital, the dispatch center received several calls for service. Weeks was needed in his patrol area. After Weeks remained at the hospital for approximately two hours, Sgt. Brumley radioed and asked him to return to work. Weeks did not immediately return. Instead, he remained at the hospital, where he met with medical staff and discussed possible commitment to a psychiatric institution. Sgt. Brumley, the evening-shift patrol sergeant, went to the hospital and instructed Weeks to return to the police station immediately.

¶ 5. Once he returned to the station, Sgt. Brumley met with Weeks to discuss the amount of time that Weeks had spent at the hospital. Sgt. Brumley was alarmed by Weeks’s behavior during the meeting. He drafted a narrative of the encounter. According to the narrative, Weeks had been visibly upset and emotional. Sgt. Brumley characterized Weeks’s behavior as an “emotional tirade,” which he described as a range of mood swings that occurred in a short period of time. At one point during the meeting, Weeks became angry and blamed the doctors for his friend’s bipolar diagnosis. Weeks also blamed a police investigator for his friend’s suicide attempt.

¶ 6. Sgt. Brumley further noted that Weeks’s demeanor changed from offensive to an aggressive body posture. He testified that Weeks’s tone had been angry and escalated at times. He also testified that Weeks cried and used profanity when he discussed his anger toward a fellow officer. Sgt. Brumley noted Weeks’s explanation that he had “white knight syndrome” and always wanted to help people.

¶ 7. According to Sgt. Brumley, Weeks had been too emotionally distraught to return to work. He did not believe that Weeks could put his friend’s suicide attempt aside and focus on the job as he patrolled the streets. Sgt. Brumley testified that he had never seen an officer behave so emotionally. The behavior caused Sgt. Brumley to question Weeks’s fitness for duty. Sgt. Brumley was especially concerned that Weeks was not a relative, yet he discussed the patient’s medical information. According to Sgt. Brumley, police officers are not permitted to discuss confidential information regarding patients. Sgt. Brumley was also alarmed that Weeks blamed the police department’s investigation for his friend’s suicide attempt. Sgt. Brumley testified that he felt that Weeks’s relationship with his friend coupled with his mental state could cause a liability issue for the City. As a result of Sgt. Brumley’s concerns, Weeks was sent home for the remainder of the day and instructed not to return to the hospital in his uniform. Sgt. Brumley’s documentation was forwarded up the chain of command.

¶ 8. Assistant Chief Rodney McGilvary and the director of the Biloxi Police Department, Bruce Dunagan, received the documentation. Asst. Chief McGilvary and Director Dunagan conducted a review of Weeks’s personnel file. They determined that Weeks’s recent behavior, coupled with numerous complaints made against him, raised “red flags.” The personnel file contained at least five complaints made against Weeks between November 1996 and April 2007. In each instance Weeks had been accused of exhibiting poor judgment when dealing with women. For his behavior, Weeks had received disciplinary actions including verbal counseling, three no-contact orders against him, a five-day suspension, and demotion from sergeant to patrol.

¶ 9. Asst. Chief McGilvary testified that all of the complaints against Weeks had been made by women. He also testified that a prior fitness-for-duty evaluation indicated that Weeks had moved from a low risk to a moderate risk for possible employment problems. The previous evaluation also concluded that without intervention Weeks would likely advance to a high-risk classification.

¶ 10. Asst. Chief McGilvary and Director Dunagan then found it necessary to request a psychological evaluation to ascertain Weeks’s continued fitness for duty. Director Dunagan consulted human resources for assistance with the matter. Director Dunagan testified that he met with Biloxi Mayor A.J. Holloway and briefed him about Weeks’s situation, Mayor Holloway approved Director Dunagan’s request to send Weeks for a fitness-for-duty examination.

¶ 11. Weeks was notified that he would undergo a fitness-for-duty exam on June 12, 2007. Dr. Julie Teaters, clinical psychologist, concluded that Weeks was unfit for duty as a police officer. The psychological-fitness-for-duty report provided:

Mr. Weeks appears to have a behavior pattern that involves his actions with women at work as well as away from work. The recent incident in April suggests that he has not changed his behavior toward women that was noted in previous complaints. His actions in June also raise concerns that he violated a hospital patient’s privacy regarding the status of her health. Both of the incidents suggest the abuse of his position of power as a police officer.... Mr. Weeks does appear to have a continuing problem with his judgment. It is reasonable that this problem will continue to lead to his inability to perform his essential job functions. Based on his long history of poor judgment (particularly involving women) it is felt that Mr. Weeks is NOT FIT FOR DUTY. Due to the lengthy history of repeated poor judgment it is felt that further efforts to correct his problem are likely to be ineffective.

¶ 12. In a letter, dated June 19, 2007, Director Dunagan informed Weeks that Dr. Teater found him unfit for duty. Consequently, Weeks remained on paid administrative leave from work. Director Duna-gan requested that Weeks provide Dr. Teater with psychological and/or psychiatric records from his primary treatment provider. In response to this request, Weeks’s primary-care physician, Dr. W.R. Fellows, submitted a letter to human resources. Dr. Fellows noted that Weeks’s medical problems had been treated with medication and were under control. Dr. Fellows further opined that nothing in the health of Weeks prevented him from fulfilling his duties as a Biloxi police officer.

¶ 13. After a review of Dr. Fellows’s records, Dr. Teater made no changes to her previous recommendation. In an addendum, Dr. Teater opined that Weeks appeared to have a continuing problem with his judgment, which she predicted would lead to an inability to perform his essential job functions. Due to the conflict of the. two opinions, Mayor Holloway requested a:third opinion. Weeks was sent to Dr. Mark Webb for a second fitness-for-duty exam. On August 16, 2007, Dr. Webb concluded that Weeks suffered from dys-thymia and dependent-personality traits. In his report, Dr. Webb provided , the following:

[WJeeks could definitely benefit from psychotherapy • on a long-term basis to help with these traits. He has a lot of issues to work . through. With Mr. Weeks’s dysthymia and dependent personality traits, he is not fit ,for duty. These illnesses in a person of significant power are a very lethal combination which has been borne out in multiple incidences during Mr, Weeks’s career as a police officer. ■

¶ 14. After he was declared unfit for duty by both a psychologist and a psychiatrist, Director Dunagan recommended Weeks’s termination. Weeks was informed that the final decision to terminate would be made by the mayor. He was also informed that he would have an opportunity to go before, the mayor and respond to the recommendation for termination. Two .days before the scheduled meeting, Weeks requested copies of the psychological reports of Dr, Teater and Dr. Webb.

¶ 15. On September 25, 2007, Weeks met with Mayor Holloway and submitted a written response to Director Dunagan’s recommendation for termination. At that time, Weeks requested additional time to obtain an independent psychological evaluation. Mayor Holloway granted Weeks’s request and gave him until October 15, 2007, to submit an independent psychological evaluation on his fitness for duty. On October 8, 2007, Mayor Holloway informed Weeks that he would be permitted to read and review Dr. Teater’s and Dr. Webb’s psychological evaluations. On October 9, 2007,, Weeks visited Director Dunagan’s office, where he reviewed the reports and took notes. Weeks was not given copies of the reports at that time. On October 11, 2007, Weeks submitted a letter to Mayor Holloway and informed him that he had difficulty finding a doctor to reevaluate his fitness for duty because he did not have copies of the reports drafted by Drs. Teat-er and Webb. Once again, Weeks requested additional time to obtain an independent psychological evaluation. Weeks did 'not submit any additional documentation before the October 15,2007 deadline.

¶ 16. In a hand-delivered letter, dated October 19, 2007, Mayor Holloway refused Weeks’s request for additional time to obtain another evaluation. Mayor Holloway noted that Weeks had been given ample time, since June 19, 2007, to obtain a diagnosis from a mental health provider of his choice. Weeks was further informed that his employment with the City was terminated, effective October 31, 2007. Weeks was notified that his suitability for employment had been evaluated under section 5.12(b) of the City’s rules and regulations. Section 5.12(b) provided:

An individual entering the classified service may be required to receive a satisfactory health exam report before the candidates’s appointment can be made. The [appointing [authority may require any member to meet the same requirements when there are reasonable grounds to question said employee regarding the candidate’s mental and physical suitability for continued employment ....

Mayor Holloway noted that the decision had been reached after both a psychologist and a psychiatrist opined that Weeks was unfit for duty. Weeks was further advised that he had ten days to request that the Commission review the City’s decision.

¶ 17. Weeks timely-appealed the City’s decision to the Commission. An appeal hearing was scheduled for July 29, 2008. Prior to the hearing, Weeks obtained an independent psychological evaluation from Dr. William Gasparrini, a clinical psychologist. Weeks submitted two separate copies of Dr. Gasparrini’s report to the Commission. The first report, labeled “Gasparrini-2,” was submitted prior to the deadline for submission of exhibits on July 22, 2008.

¶ 18. At Weeks’s request, the hearing was continued to October 20, 2008. The parties were given a new deadline in which to submit additional exhibits for review by the Commission. In response to the new deadline, Weeks’s attorney removed the first report, labeled Gasparrini-2, from his exhibits and replaced it with a second report, labeled “Gasparrini-1.” The City then submitted the retracted report as one of its own exhibits.

¶ 19. Weeks’s appeal hearing was continued on four separate occasions. On March 26, 2009, the initial hearing convened but was postponed, yet again, after the parties agreed to stay the appeal while Weeks pursued a claim for medical-disability retirement benefits through the Public Employees’ Retirement System of Mississippi (PERS). Approximately three years later, Weeks notified the Commission that his request for PERS disability benefits had been denied. On August 9, 2012, Weeks requested that his appeal hearing be rescheduled. The appeal hearing was rescheduled.

¶ 20. After a four-day hearing, the Commission issued its findings of fact and conclusions of law on September 12,2013. The

Commission found that the evidence presented at the hearing was sufficient to establish reasonable grounds to recommend Weeks for a fitness-for-duty exam. The Commission concluded that no credible evidence was presented to show that the decision to send Weeks for a fitness-for-duty evaluation was ordered as a pretext or was politically motivated. The Commission further found that the City had good cause to terminate Weeks’s employment.

¶ 21. Aggrieved by the Commission’s decision, Weeks filed a notice of appeal to the circuit court. On December 10, 2015, the circuit-court judge affirmed the Commission’s decision favoring the City’s termination of Weeks. The circuit-court judge found that the Commission’s decision was made in good faith for cause. The circuit-court judge further found that the Commission’s findings were supported by substantial evidence, and therefore, were not arbitrary or capricious. Aggrieved by the circuit court’s judgment, Weeks now appeals to this Court.

STANDARD OF REVIEW

¶ 22. This Court employs a limited standard of review. In an appeal from a civil service commission’s decision, our standard of review is as follows: ' '

[T]he question before the appellate court is whether or not the action of the Civil Service Commission was in good faith for cause. Intertwined with this question is whether or not there was substantial evidence before the Civil Service Commission to support its order and whether [the decision] is arbitrary, unreasonable, confiscatory, and capricious.

Necaise v. City of Waveland, 170 So.3d 616, 618 (¶ 9) (Miss. Ct. App. 2015) (citations omitted).

¶23. “We are prohibited from substituting our judgment for the City’s.” Renfro v. City of Moss Point, 156 So.3d 913, 917 (¶ 19) (Miss. Ct. App. 2014). Further, this Court is “prohibited from making credibility determinations of the evidence or testimony that was presented to the ... [Commission.” Id. (citation omitted). As an appellate court, we “[are] not called upon to determine issues of fact regarding whether an employee actually committed the alleged misconduct that led to his ... termination.” Id. Rather, we are charged only with determining “whether the [C]ommission acted in good faith based on the evidence before it.” Id.

ANALYSIS

I. Fitness-for-Duty Exam

¶ 24. Weeks first claims 'that the Commission’s finding that the City had reasonable grounds to require a fitness-for-duty exam was unsupported by substantial evidence. According to Weeks, the City had no reasonable grounds to question his fitness for duty on June 6, 2007. He argues that the City acted inappropriately when it considered his personnel file in reaching a decision to order the fitness-for-duty exam. He further contends that there was not substantial evidence to support the City’s justification that a fitness-for-duty exam was necessary because Weeks posed a potential liability to the City.

¶ 25. We find there was substantial evidence to support the Commission’s finding that the City had reasonable grounds to request that Weeks undergo a fitness-for-duty exam. Weeks argued that he broke no rules when he visited his friend in the hospital. However, the hospital visitation alone did not cause Asst. Chief McGilvary and Director Dunagan to conclude that a fitness-for-duty exam was necessary. The record indicates that Sgt. Brumley, Asst. Chief McGilvary, and Director Dunagan were all concerned that Weeks’s emotional behavior on June 6, 2007, was unusual for a police officer. The record further indicates that Weeks was overly emotional, irate, and angry toward fellow officers, and accusatory of the police department for a suspect’s suicide attempt.

¶ 26. The decision to send Weeks for a psychological evaluation was not made without consideration. Director Dunagan testified that he and Asst. Chief McGil-vary were concerned that Weeks was unfit for duty. As a result of this concern, Director Dunagan testified that he followed standard procedure and conducted a full review of Weeks’s personnel file before making any further decisions. Director Dunagan further testified that Weeks’s personnel file contained numerous prior incidents in which Weeks had displayed poor judgment with regard to women, Weeks’s behavior toward the female friend on June 6, 2007, while on duty, indicated a continuation in the pattern of poor judgment.

¶27. Further, Weeks’s personnel file contained a prior fitness-for-duty evaluation, wherein a psychologist concluded that Weeks had advanced from a low to a moderate risk for employment problems. In the prior evaluation, the psychologist had predicted that, without intervention, Weeks would become a high risk for employment problems. Both Director Duna-gan and Asst. Chief McGilvary testified that Weeks’s behavior, coupled with his prior history of poor judgment and the potential liability to the City, constituted reasonable grounds to send Weeks for a fitness-for-duty exam.

¶ 28. Director Dunagan testified that he consulted the City’s human-resources department prior to taking any action. He then proceeded with disciplinary action under section 5.12(b), which required that the City’s appointing authority request the mental evaluation. Mayor Holloway testified that he met with Director Dunagan and received information regarding the situation. Mayor Holloway further testified that he, as the appointing authority, authorized the fitness-for-duty examination of Weeks to determine Weeks’s mental suitability for continued employment.

¶ 29. Mayor Holloway had reason to believe that Weeks’s emotional state had compromised his ability to perform his duties as a patrolman. A review of the personnel file indicated that Weeks had a history of poor judgment and prior psychological indicators that could jeopardize the City. By authorizing the fitness-for-duty exam, Mayor Holloway acted in the best interest of both the public and the City. Thus, Mayor Holloway had reasonable grounds to question Weeks’s mental suitability for continued employment and to authorize the fitness-for-duty exam.

II. Due Process

¶ 30. Weeks next argues that the Commission erred when it determined that the City acted in good faith and followed the correct procedures under section 5.12(b). Weeks contends that he was given limited or no due process under section 5.12(b). He contends that the Commission analyzed his due-process argument under the incorrect standard. He asserts that his argument should have been assessed under “disciplinary actions” rather than “mental evaluations.”

¶ 31. Director Dunagan testified that no disciplinary action was initiated under article 10 of the Civil Service Rules and Regulations because Weeks’s employment action was not disciplinary in nature; rather, it was medical and governed by section 5.12(b). The Commission found that the Civil Service Rules and Regulations allow an agency’s chain of command to decide the appropriate type of action in employment cases. Here, the City possessed the power to pursue a disciplinary action, or if reasonable grounds existed, to send Officer Weeks for a fitness-for-duty exam. Director Dunagan testified that Weeks’s emotional state raised concerns regarding his mental suitability for continued employment. Therefore, the City elected to pursue action under section 5.12(b), which governed medical requirements.

¶ 32. Weeks asserts that the Commission misunderstood his position when it found that the City followed the correct procedures required by section 5.12(b). He contends that section 5.12(b) had less-stringent termination rules than article 10, which prevented him from receiving a good-faith pretermination hearing. This is a mischaracterization of the Commission’s findings. The Commission noted that the City had discretion to determine which route it would pursue regarding the employment action. The Commission further noted its obligation to abide by the Civil Service Rules and Regulations, which prohibits a reviewing body from substituting its own judgment for the City’s judgment.

¶33. Further, the Commission considered Weeks’s argument that he had been denied due process under the disciplinary process outlined in Mississippi Code Annotated section 21-31-23 (Rev. 2015). The Commission established that each element of due process was met. First, Weeks was given written notice of the intended termination, reasons for the termination, and an opportunity to respond. In a meeting with Mayor Holloway, Weeks did in fact respond to Director Dunagan’s recommendation for termination. Thus, the first element of due process was met. Second, Weeks was notified, in writing, by the official charged with making the decision. After the meeting with Mayor Holloway, Weeks was notified of his termination in a letter dated October 9, 2007. This satisfied the second element of due process. Last, Weeks was allowed to file an appeal with the Commission after the disciplinary action was taken. Both Director Dunagan and Mayor Holloway sent letters informing Weeks that he had ten days, from the date of the Mayor’s decision, to request an investigation by the Commission. Weeks did in fact file a notice of appeal with the Commission on October 25, 2007. Accordingly, the final element of due process was met. The Commission’s finding that the City acted in good faith and provided Weeks with due process was supported by substantial evidence.

Ill, Psychological Evaluations

¶34. Weeks next argues that the Commission’s determination that he failed to provide a sufficient mental evaluation was not supported by substantial evidence. He contends that the Commission erred when it found that the City correctly relied on the. opinions of Drs. Teater and Webb. He further contends that the Commission disregarded Dr. Fellows’s letter and clinical psychologist Dr. Stefan Massong’s testimony, which deemed him fit for duty. Weeks also argues that the City denied him access to the psychological evaluations that it relied on when making the decision to terminate him.

¶ 35. Weeks argues that the Commission overlooked Dr. Fellows’s opinion that “nothing in the health of Officer Weeks ... would prevent his fulfilling his duties as a Biloxi Police Officer.” However, the fact remains that Mayor Holloway only requested a third opinion after Dr, Teater, a psychologist, and Dr. Fellows, Weeks’s primary-care physician, submitted conflicting opinions. The third opinion, submitted by Dr. Webb, was in line with Dr. Teater’s opinion that Weeks was unfit for duty. Thus, the Commission’s finding that the medical opinions of Drs. Teater and Webb were the only two available to Mayor Holloway when he made his decision, was supported by substantial evidence.

¶ 36. Of the three opinions available to Mayor Holloway at the time of his decision, only one found Weeks fit for duty. Mayor Holloway, in his letter of termination, informed Weeks that the termination was based on the opinions of a psychologist and a psychiatrist. Further, Weeks had been given more than four months to obtain his own psychological evaluation regarding his fitness for duty. In that time frame, Weeks had only provided a two-sentence letter from his primary-care physician. Thus, at the time of his decision, Mayor Holloway had no other psychological evaluations to rely upon while considering Weeks’s termination.

¶37. Weeks did finally obtain his own psychological evaluation. However, the Commission determined that Dr. Gasparri-ni’s report, dated February 20, 2008, confirmed Drs. Teater and Webb’s earlier opinions. Dr. Gasparrini opined that Weeks was unfit to perform his job as a police officer unless and until he completed psychological counseling to develop boundaries between his personal and professional life.

¶ 38. Dr. Gasparrini passed away prior to the appeal hearing. Weeks was permitted to obtain another expert to testify at the hearing. At the hearing, Dr. Massong, clinical psychologist, opined that Weeks was fit for duty at the time of Dr. Gaspar-rini’s evaluation, which was performed four months after Weeks’s termination. The Commission recognized Dr. Massong’s report and opinion. However, the Commission found that Dr. Massong’s January 30, 2013 report and opinion were not available to Mayor Holloway in 2007. Dr. Massong could not state, with certainty, that his evaluation of Weeks would have been the same if the evaluation had been performed five years earlier, in 2007.

¶ 39. The Commission found that the relevant point for an inquiry into whether or not Weeks was fit for duty was in 2007, when the termination decision was made. Based on the record, the Commission determined that Weeks was terminated because both a psychologist and a psychiatrist found him unfit for duty. The Commission’s finding that the City acted in good faith when it terminated Weeks for cause was supported by substantial evidence.

IV. Irrelevant Evidence

¶ 40. Finally, Weeks claims that the Commission relied on irrelevant evidence to affirm the termination. He argues that the Commission erroneously admitted both a draft and final version of Dr. Gasparri-ni’s psychological evaluation. He further contends that the Commission mischarac-terized Dr. Gasparrini’s findings.

¶ 41. Prior to the appeal hearing, Weeks submitted Dr. Gasparrini’s report as one of his exhibits. After the hearing was postponed, the Commission set a new deadline for the submission of exhibits. In response to the new deadline, Weeks removed the initial report, labeled Gasparrini-2, and replaced it with a second report, labeled Gasparrini-1. The City then submitted Gasparrini-2 as its own exhibit. Weeks claimed that Gasparrini-2 was a draft report that was inadvertently placed with the exhibits filed with the Commission.

¶42. In response to Weeks’s challenge to the City’s use of the retracted psychological evaluation, the Commission first noted that there was no indication that the report, labeled Gasparrini-2, was intended as a “draft.” The report contained no such language and did not bear a “draft” stamp. Further, the report was typed on letterhead and signed by Dr. Gasparrini. The Commission also found that the City had not acted improperly by obtaining the information contained within the report. Therefore, the Commission found that the City was free to refer to the report as evidence. The Commission noted that it was Weeks’s own counsel that had submitted both of the reports, and accordingly, it would consider both reports.

¶ 43. The Commission further noted that the content of Dr. Gasparrini’s two reports was identical until the last page. The final page of Gasparrini-2 contained the following language, which was not contained in the report labeled Gasparrini-1:

[C]onfusing the power dynamics of his role as a uniformed police officer on duty with his dating relationships has repeatedly led to difficulties for him in his career. These should be addressed through further counseling before he tries to resume work as a police officer or in a similar position. At present Mr. Weeks is highly motivated to return to work for the police department. He is hopeful that he can win his case in court and regain his job. He may be capable of working successfully as a police officer if he carefully separates his work roles from his social life.

¶ 44. We find that the Commission’s decision to consider both versions of Dr. Gasparrini’s reports was based on substantial evidence. Weeks provided no testimony or evidence to support his claim that the report, labeled Gasparrini-2, was intended as a draft version of a final report.

¶45. To summarize, Weeks was observed behaving in a manner inconsistent with the type of behavior expected of a trained police officer. After reviewing Sgt. Brumley’s narrative and Weeks’s personnel file, Director Dunagan had reasonable grounds to question Weeks’s mental state. Director Dunagan followed the City’s rules and regulations by referring the matter to human resources and Mayor Holloway. Mayor Holloway, as the appointing authority, ordered a fitness-for-duty examination. After the findings of a psychologist and a psychiatrist, Weeks was terminated and given an opportunity to appeal the City’s decision. It follows that there was substantial evidence to support the Commission’s decision. Weeks’s claim to the contrary is without merit.

¶ 46. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . Notably, Weeks’s friend was the subject of an ongoing criminal investigation where she had been accused of stabbing her husband, a City of Biloxi firefighter, during an argument.

      . Dr, Webb defined dysthymia as a low grade,; nondisabling form of depression. .


text:
    In the MATTER OF the LAST WILL TESTAMENT OF Dorothy TRUE, Deceased: Patricia Ann True Schmidt and Mary Juanita True Hegwood, Appellants v. James T. "Jim" True, Appellee
    NO. 2016-CA-00718-COA
    Court of Appeals of Mississippi.
    05/23/2017
    YALOBUSHA COUNTY CHANCERY COURT, SECOND JUDICIAL DISTRICT, VICKI B. DANIELS, J.
    ATTORNEY FOR APPELLANTS: DARRIN JAY WESTFAUL
    ATTORNEY FOR APPELLEE: KIRKLAND CALDWELL WILLING-HAM
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   WILSON, J.,

FOR THE COURT:

¶ 1. Patricia Ann Schmidt (Ann) and Mary Hegwood appeal from a judgment denying their petition to contest the will of their mother, Dorothy True. The record shows that necessary parties to the will contest were not joined. Mississippi Code Annotated section 91-7-25 (Rev. 2013) provides that all persons interested in a will contest must be joined as parties. Our Supreme Court has made clear that this requirement is both mandatory and jurisdictional and that any judgment entered in the absence of such parties is void and must be set aside. Accordingly, we reverse and remand for joinder of all necessary parties and further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶2. Dorothy, a resident of Yalobusha County, passed away on February ,18, 2014, at the age of 100. Dorothy’s husband preceded her in death. Dorothy was survived by four children: daughters Ann, who lives in Virginia, and Mary, who lives in Florida, and sons John True of Bates-ville and James “Jim” True of Water Valley.

¶ 3. On September 24, 2014, Jim filed a petition to probate an eight-page holographic will signed by Dorothy, The will is notarized on one page and signed by two neighbors as witnesses on another page. It names John and Jim as executors. However, John passed away on August 24, 2014. According to the petition, John was survived by “one heir, namely his son Jody True.” The will contains a no-contest clause, bequests of money and personal property, and instructions for Dorothy’s funeral. Bequests were made to all four then-living children and to Jim’s son, Jamie. John and Jim were “to have $20,000 each CDs for helping [Dorothy] when [she] couldn’t do for [her]self.” The pages of the document are numbered. However, it is unclear when the page numbers were added, and as the chancellor concluded, the numbers do not appear logical — i.e., the page numbered “1” does not seem to be the first page of the will, etc. Words have been scratched out and added in various places in the document.

¶ 4. On March 26, 2015, Ann and Mary filed a petition to contest and set aside the will. They asserted that the document did not satisfy the requirements of a valid holographic or non-holographic will. Among other issues, the petition noted that Dorothy’s signature was on the first page of the document as it was numbered and filed, rather than at the end of the last page. The petition also stated that Dorothy was predeceased by another daughter, Frances Davis, who had two living daughters.

¶5. On April 12, 2016, a hearing was held on the petition to contest the will. Ann and Mary testified and acknowledged that most of the will was in their mother’s handwriting; however, they expressed doubt as to certain words that were added where other words were scratched out. Ann also testified that she did not believe that the document’s page numbers were in her mother’s handwriting. Jim testified that his mother told him that her will was in her safe deposit box at the bank, and he found it there when she died. The two witnesses to the will — Carl and Minnie Mae Vick — testified that in 2006 they went to Dorothy’s house and witnessed the will at her request. Jim was also present. Dorothy stated that the will was consistent with her wishes, and then they signed it. Carl and Minnie Mae could not recall whether the document had page numbers when they signed it. They testified that they believed that the document was in Dorothy’s handwriting.

¶ 6. At the conclusion of the hearing, the chancellor ruled that the document was a valid holographic will. The chancellor found that the page numbers on the will were added by someone else after the fact and did not accurately reflect the true order of the pages. The chancellor ruled that the addition of page numbers by another person did not invalidate the will, and she re-ordered the pages in what she found to be their most logical order. As reordered, Dorothy’s signature appeared on the final page of the will, with no material provisions after it. The chancellor therefore denied Ann’s and Mary’s petition to contest the will. Ann and Mary filed a timely notice of appeal.

DISCUSSION

¶7. On appeal, Ann and Mary argue that the chancery court lacked jurisdiction because necessary parties were not joined. Unfortunately, we must agree. Section 91-7-25 of the Mississippi Code Annotated provides that “[i]n any proceeding to contest the validity of a will, all persons interested in such contest shall be made'parties.” Our Supreme Court has made clear that this requirement is both mandatory arid jurisdictional:

We have consistently held that the statutory mandate is jurisdictional and the court has no power to proceed with the contést until all interested parties are joined. [Robert A.] Weems, Wills and Administration of Estates in Mississippi, § 8-4, p. 180 (1988) states:
[T]he Legislature has provided that all interested persons must be made parties to the will contest. This requirement is jurisdictional. The Court has no power to proceed with a will contest, if 'any of the interested parties are not before the court. If the court does.proceed the decree is invalid. It does not bind anyone, including those who participated in the contest. Moreover, the right to appeal on the basis of nonjoinder is not waived by the failure to plead it in the trial court.
Interested parties are those whose direct, pecuniary interests will be either detrimentally or advantageously- affected by the probate of the will Included in this group would ordinarily be a decedent’s heirs at law, beneficiaries under earlier wills, and beneficiaries under the will being, contested, (emphasis added)
One of the primary purposes of the statute is the fervent desire to avoid multiple litigation, and the court’s interest in consistent, efficient-and final settlement of controversies. In Moore v. Jackson, 247 Miss. 854, 860, 157 So.2d 785, 787 (1963), we stated:
The court cannot properly entertain a contest of the will without having before it all the parties interested in such contest. It was error to proceed without having them before the court. “There ought to be only one contest of the will, and, if the parties are not before the court when the will is being contested, of course their rights could not be affected by such contest.” This Court has consistently followed that interpretation in other cases.
[S]uch parties were necessary, indispensable parties to the contest of the will. The court was without power to proceed without them.
To grant validity and credence to [a] court’s action in proceeding with [a will] contest without joinder of all interested parties would undermine the legislative mandate of [section] 91-7-25.
In Estate of Schneider, 585 So.2d 1275, 1277 (Miss. 1991), we had the occasion to reflect on Moore and stated:
In Moore this Court held that a chancery court did not have the authority to hear a will contest until “all persons interested” were made parties..
Moore remains good law insofar as it holds trial proceedings must be held -in abeyance until all necessary parties are joined in a suit contesting a will.

Garrett v. Bohannon, 621 So.2d 935, 937-38 (Miss. 1993) (internal citations omitted). The Court held that a judgment entered in a will contest “absent joinder of all necessary parties is void” and “must be set aside.” Id. at 938. In both Garrett and Moore, supra, the Supreme Court made it absolutely clear that although a failure to join a necessary party may be waived in some types of cases, it cannot be waived in a will contest; it may be raised for the first time on appeal, even by a party who participated below and failed to join the missing parties. See id. at 937-38; Moore, 247 Miss. at 861-63, 157 So.2d at 787-88.

¶ 8. Returning to the present case, it is evident that we must reverse and set aside the judgment below because all necessary parties were not joined. John’s estate and Jamie are entitled to inherit under the contested will but were not joined. John’s estate and Frances’s two daughters were entitled to inherit under the law of intestate succession but were not joined. All were interested parties within the meaning of section 91-7-25 and Supreme Court precedent,

¶ 9. On appeal, Jim argues that his sisters waived this issue, that the missing parties’ interests were adequately represented, and that their joinder would not have made the slightest difference. We are sympathetic to these arguments. However, our Supreme Court has held specifically and repeatedly that the statutory requirement cannot be waived because it is both mandatory and jurisdictional. Its decisions do not reflect careless or imprecise use of the term “jurisdictional.” Rather, the point has been made and reaffirmed with deliberation and clarity over the course of many years. As such, any relaxation of or exception, to this requirement must come from the Supreme Court or the Legislature.

¶ 10. Accordingly, the judgment rendered by the chancellor absent joinder of all interested parties is void and must be set aside. The case is remanded for joinder of all interested parties pursuant to the statutory mandate. Garrett, 621 So.2d at 938.

¶ 11. THE JUDGMENT OF THE YA-LOBUSHA COUNTY CHANCERY COURT, SECOND JUDICIAL DISTRICT, IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WHITTEN OPINION.

      . Under Mississippi law, in the case of a holographic will, "[nlothing . can be effective which appears after and, beneath [the testa: tor’s] signature.” In re George’s Estate, 208 Miss. 734, 749, 45 So.2d 571, 572 (1950).

      . Jim’s appellate brief also states that “the attorney representing John’s estate notified both parties and their attorneys that John’s estate did not wish to participate in the contest proceeding^).” There is no record citation for this statement, and we are unable to find any support for it in the record, In any event, the estate was a necessary party that should have been joined regardless of whether it intended to actively participate in the proceeding.

      . See Arbaugh v. Y & H Corp., 546 U.S. 500, 510, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ("This Court, no less than other courts, has sometimes been profligate in its use of the term ['jurisdictional’].’’)