author: CARLTON, J.,

text:
    Karen Lynn WOODS a/k/a Karen Woods, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01216-COA
    Court of Appeals of Mississippi.
    01/24/2017

      NESHOBA COUNTY CIRCUIT COURT, MARCUS D. GORDON, J.
    EDMUND J. PHILLIPS JR., ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER, ATTORNEY FOR APPELLEE
   CARLTON, J.,

FOR THE COURT:

¶ 1. A Neshoba County jury convicted Karen Woods of burglary of a dwelling. See Miss. Code Ann. § 97-17-23 (Rev. 2014). On appeal, Woods raises the following issues: (1) whether the circuit court erred by admitting into evidence her pretrial confession; and (2) whether the circuit court erred by overruling the defense’s objection to part of Investigator Ralph Sciple’s testimony. Finding no error, we affirm Woods’s conviction and sentence.

FACTS

¶2. A grand jury indicted Woods and Randy Goodin for the April 28, 2014 burglary of Betty Triplett’s home. At Woods’s trial, Triplett testified that she left her home on the day of the burglary to seek shelter from a tornado. Triplett stated that she and her son, Steve, returned home later that same day to find that a back bedroom window had been broken. Triplett said that she observed glass both inside and outside the house where the window had been broken. In addition, Triplett stated that there was blood throughout the house and on a decorative vase she owned. Triplett also testified that several items, including some jewelry, clothing, and guns, were stolen.

¶ 3. Triplett testified that she had met Woods prior to the burglary. According to Triplett, Woods worked at a restaurant where Triplett sometimes ate. Triplett stated that, following the burglary, Woods contacted her to apologize for the break-in. Triplett further testified that Woods offered to replace Triplett’s broken window and to return Triplett’s stolen property.

¶4. On cross-examination, Triplett denied the defense’s accusation that Woods came to her house on the day of the burglary to buy pills. Triplett testified that she had never sold Woods any pills although Woods had previously asked her for pills. Triplett stated that, after the burglary, she encountered Woods in front of a store. According to Triplett, Woods attempted to sell Triplett her own stolen property. Triplett stated that Woods also asked for some pills during the encounter. However, Triplett testified that she told Woods she did not have any pills, and she again testified that she never sold pills to Woods at any time.

¶ 5. Investigator Sciple with the Nesho-ba County Sheriffs Department next testified that he investigated the reported burglary at Triplett’s home. Investigator Sciple stated that he received a phone call about the burglary on April 28, 2014, which was the same day that a tornado went through Louisville, Mississippi. In response to the reported burglary, a deputy was immediately dispatched to Triplett’s home. Investigator Sciple testified that the deputy observed blood in Triplett’s home, and the deputy collected a piece of cardboard from the home that had blood on it. Investigator Sciple further stated that, instead of personally going to Triplétt’s home, he stayed in Louisville to help with the tornado damage because Triplett initially reported that nothing had been stolen.

¶ 6. Investigator Sciple testified that Triplett again contacted law enforcement on May 3, 2014,-to report that several items had in fact been stolen. A deputy returned to Triplett’s home, and during the visit, the deputy observed blood on a vase Triplett owned. Based on Triplett’s statement to law enforcement, Investigator Sciple believed that the blood on the vase must have come from the person who. burglarized the home.- As a result, Investigator Sciple instructed the deputy to collect the vase from Triplett’s home. Once he had the vase at his office, Investigator Sciple photographed the vase and collected samples of the blood on the vase. After later learning that Woods and her boyfriend, Goodin, were suspects in the burglary, Investigator Sciple testified that he obtained permission to collect DNA swabs from both Woods and Goodin. Investigator Sciple testified that he sent both the' DNA samples and the blood swabs to the Mississippi Crime Laboratory for analysis. Although he did not reveal the results, Investigator Sciple confirmed that he received a report back from the Mississippi Crime Laboratory with the requested analysis.

¶ 7. On May 20, 2014, Investigator Sciple questioned Woods about the burglary of Triplett’s home. Investigator Sciple stated that the questioning took place in his office at the sheriffs department and that he and Woods were the only two present during the interview. During a suppression hearing conducted outside the jury’s presence, the State proffered Investigator Sciple’s testimony to show that Woods’s statement to Investigator Sciple was made voluntarily, knowingly, and intelligently. After hearing the proffered testimony, the circuit court determined that Investigator Sciple properly informed Woods of her rights and that Woods voluntarily waived them and made' a statement to investigator Sciple that was free from intimidation or coercion. Based on. its findings, the circuit court overruled the defense’s motion to suppress Woods’s pretrial statement and the waiver of her rights.

¶ 8. Back in the jury’s presence, Investigator Sciple testified ■ that he advised Woods of her constitutional rights and that she voluntarily chose to sign a form to waive her rights. Investigator Sciple further testified that Woods did not appear to be under the influence of drugs or alcohol at the time of the interview. Instead, Investigator Sciple stated that Woods was responsive and provided coherent answers to his questions. Investigator Sciple also testified that he used no threats, coercion, or promises to induce Woods to sign the waiver or to speak with him, Over the defense’s objection, the circuit court admitted into evidence Woods’s signed waiver of her rights.

¶ 9. Investigator Sciple further testified that, during their interview, Woods never asked for. an attorney to be present, and she never asked to stop the interview. Investigator Sciple stated that Woods declined to write down her statement about the burglary and instead asked that Investigator Sciple write out the statement. According to Investigator Sciple, he did so, and then he read the statement aloud to Woods. In addition, Investigator Sciple testified that he allowed Woods to read the statement for herself and to make any corrections before he and Woods both signed the statement.

¶ 10. Over the defense’s objection, the circuit court admitted into evidence Woods’s signed pretrial statement, which said:

I am not sure of the date, but it was about a month ago in the afternoon. It was bad weather. I was mad at [Triplett] because she was going to trade me some pills for a table, and she did not do what she said she was going to do. [Goodin and I] went to the house. I can’t remember a lot of stuff, but I went in the side door, and I took a Mason jar and a bag with medication in it. I don’t know if [Goodin] took anything or not. I threw the bag . out going down the road. I called [Triplett] several days later and told her I broke into her house and was sorry.

¶ 11. Investigator Sciple testified that, at the time he interviewed Woods, he fully believed her statement that she had entered Triplett’s home through the side door and had not bled inside the home. However, Investigator Sciple further stated that he had since changed his mind because he now had “evidence that she did bleed in the house ....” The defense objected to that portion of Investigator Sci-ple’s trial testimony and asked that the circuit court strike the statement from the record. The circuit court, however, overruled the defense’s objection.

¶ 12. The jury next heard testimony from Joesph Heflin, a forensic biologist from the Mississippi Crime Laboratory who specialized in serology and DNA analysis. The circuit court accepted Heflin as an expert in forensic science. Heflin testified that he analyzed the unknown blood samples from the vase and the piece of cardboard collected from Triplett’s home and compared the samples to the known DNA samples Investigator Sciple collected from Woods and Goodin. Heflin stated that the blood swabbed from the piece of cardboard and the vase matched Woods’s DNA.

¶ 13. Based on the evidence and testimony presented at trial, the jury found Woods guilty of the burglary of Triplett’s home. The circuit court sentenced Woods to fifteen years in the custody of the Mississippi Department of Corrections and ordered her to pay a $2,000 fine. Woods then filed an unsuccessful motion for a new trial. Aggrieved by her conviction and sentence, Woods appeal's.

DISCUSSION

I. Whether the circuit court erred by admitting into evidence Woods’s pretrial confession.

¶ 14. On appeal, Woods argues she was in a state of confusion at the time Investigator Sciple interviewed her about the burglary of Triplett’s home. Woods further alleges that Investigator Sciple knew of her confusion and “likely believed that the confusion was pill or drug induced.” Based on these assertions, Woods contends that she did not voluntarily, knowingly, and intelligently sign the waiver of her rights or give her statement to Investigator Sci-ple. As a result, Woods claims that the circuit court erred by admitting into evidence her signed pretrial confession.

¶ 15. This Court reviews the admission or exclusion of evidence for abuse of discretion. Fortenberry v. State, 195 So.3d 890, 893 (¶ 11) (Miss. Ct. App. 2016). In previously discussing the admissibility of a defendant’s confession, this Court stated:

[F]or a confession to be admissible at trial, it must have been intelligently, knowingly, and voluntarily given, and not a product of police threats, promises, or inducements. In determining whether a defendant’s confession was intelligently, knowingly, and voluntarily given, the trial court sits as a finder of fact. Therefore, this Court will reverse the trial court’s determination only when it was manifestly incorrect. A confession is voluntary when, taking into consideration the totality of the circumstances, the statement is the product of the accused’s free and rational choice. The prosecution bears the burden of showing beyond a reasonable doubt that the confession was voluntary.

Moss v. State, 190 So.3d 9, 16-17 (¶ 30) (Miss. Ct. App. 2015) (internal citations and quotation marks omitted).

¶ 16. In Agee v. State, 185 So.2d 671, 673 (Miss. 1966), the-Mississippi Supreme Court established the following procedure for a trial court to use to determine whether a confession was voluntarily made:

The State has the burden of proving the voluntariness of a confession. This burden is met by the testimony of an officer, or other person having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward. This makes out a prima facie ease for the State on the question of voluntariness. When objection is made to the introduction of the confession, the accused is entitled to a preliminary hearing on the question of the admissibility of the confession. This hearing is conducted in the absence of the jury.

(Internal citation omitted).

¶ 17. In the present case, the circuit court conducted a suppression hearing outside the jury’s presence. During the hearing, the State offered Investigator Sci-ple’s testimony to establish a prima facie case that Woods voluntarily, knowingly, and intelligently signed the waiver of her rights and the confession. Investigator Sci-ple testified that he and Woods were the only individuals present during the interview in his office. Although Woods did not remember every detail about the actual burglary, Investigator Sciple testified that she appeared to fully understand what was going on during their interview and that she was both coherent and responsive at the time of the interview. In addition, Investigator Sciple stated that he had spoken to Woods on several different occasions and knew she had a problem with pills. However, Investigator Sciple testified that Woods was not under the influence of any drugs when he interviewed her about the burglary.

¶ 18. Investigator Sciple further testified that, after fully advising Woods of her constitutional rights, he read the waiver form to Woods and allowed her to read the form for herself. Investigator Sciple stated that he used no threats, coercion, or offers of reward to induce Woods to sign the waiver and that she voluntarily signed the form. In addition, Investigator Sciple testified that Woods voluntarily signed her statement about the burglary. He again stated that he used no threats, coercion, or offers of reward to induce Woods to sign the statement. After writing down Woods’s statement as she requested, Investigator Sciple read the statement aloud to Woods and gave her the opportunity to read the statement for herself. Investigator Sciple stated that Woods made no changes or corrections to the statement before signing it. In addition to the State’s direct examination of Investigator Sciple, the circuit court questioned Investigator Sciple, and the defense cross-examined him.

¶ 19. Upon review, we find the State met its burden of proving that Woods voluntarily gave her confession. Although Woods argues on appeal that she was confused at the time she gave her statement and that Investigator Sciple clearly knew of her confusion, the record fails to reflect any evidence or testimony to support her assertions. The record instead reflects Investigator Sciple’s unrefuted testimony that (1) he and Woods were the only individuals present when Woods gave her statement; (2) Woods was coherent, responsive, and not under the influence of any drugs at the time she gave her statement; and (3) no threats, coercion, or promises were used to induce Woods’s statement. Under the totality of the circumstances, we find no manifest error in the circuit court’s finding that Woods’s pretrial statement was voluntary, knowing, and intelligent. See Moss, 190 So.3d at 16-17 (¶ 30). As a result, we find no abuse of discretion in the circuit court’s decision to admit into evidence Woods’s statement. See Fortenberry, 195 So.3d at 893 (¶ 11). Thus, this assignment of error lacks merit.

II. Whether the circuit court erred by overruling the defense’s objection to part of Investigator Sci-ple’s testimony.

¶ 20. Woods also asserts that the circuit court erred by overruling the defense’s objection to a statement Investigator Sciple made during his trial testimony. As previously stated, we review the circuit court’s decision to admit or exclude evidence for abuse of discretion. Fortenberry, 195 So.3d at 893 (¶ 11).

¶ 21. On direct examination, Investigator Sciple testified that Woods told him during their interview that she entered Triplett’s house through a side door and that she had not bled inside Triplett’s home. Although he initially believed Woods’s statement, Investigator Sciple testified that he later changed his mind because he had obtained evidence that Woods had bled inside Triplett’s home. The defense objected and asked the circuit court to strike Investigator Sciple’s statement from the record. However, the circuit court overruled the objection.

¶22. On appeal, Woods contends that Rule 602 of the Mississippi Rules of Evidence requires a nonexpert witness’s testimony to be based on personal knowledge rather than mere opinion. She further asserts that Investigator Sciple’s trial statement was not based on personal knowledge but rather on the Mississippi Crime Laboratory’s analysis matching her DNA to the blood found in Triplett’s home. As a result, Woods argues that the circuit court erred by overruling the defense’s objection and its request to strike Investigator Sci-ple’s statement from the record.

¶ 23. Despite Woods’s claims on appeal, the record fails to reflect that Investigator Sciple ever testified to a matter about which he lacked personal knowledge. The record reflects Investigator Sciple’s testimony that he personally collected DNA from Woods and Goodin, and along with the blood found inside Triplett’s home, he sent the samples to the Mississippi Crime Laboratory for analysis. The record further reflects Investigator Sciple’s testimony that he received the results of the analysis back from the Mississippi Crime Laboratory. However, Investigator Sciple neither revealed nor testified to the actual results of the DNA analysis. Instead, he merely stated that, due to evidence he now had, he no longer believed Woods’s pretrial statement that she did not bleed inside Triplett’s home.

¶ 24. Upon review, we find that Investigator Sciple’s testimony complied with Rule 602 since he only testified to subject matters about which he possessed personal knowledge. We therefore find no abuse of discretion in the circuit court’s refusal to strike Investigator Sciple’s trial statement from the record. As a result, this assignment of error lacks merit.

¶ 25. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A FINE OF $2,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESHOBA COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, WILSON AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: WILSON, J„

license: Public Domain

text:
    Alan David RYAN, Appellant v. MISSISSIPPI REAL ESTATE COMMISSION, Appellee
    NO. 2015-CA-01514-COA
    Court of Appeals of Mississippi.
    01/31/2017

      HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, WILLIAM A. GOWAN JR., J.
    PAUL E. ROGERS, ATTORNEY FOR APPELLANT
    JOHN L. MAXEY II, WILLIAM HOLCOMB HUSSEY, ELLIOTT YAUN HALLER, ATTORNEYS FOR APPEL-LEE
   WILSON, J„

FOR THE COURT:

¶ 1. Alan David Ryan appeals from an order of the Hinds County Circuit Court, First Judicial District, affirming an order of the Mississippi Real Estate Commission (MREC) revoking his real estate broker’s license. We affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Ryan became a licensed real estate broker in Mississippi in 1987. In 2003, he purchased a home in Woodville and executed a deed of trust oh the home in favor of Concordia Bank & Trust Company. Shortly thereafter, Ryan began renting the home to Nathaniel Myers for $275 per month.

¶ 3. On or about January 1, 2004, Ryan entered into a handwritten “lease to own” agreement with Myers. The agreement provided that Myers would rent the home for $325 per month and that title to the property would be transferred to Myers by warranty deed once he had made 120 monthly rent payments. The agreement stated that Myers’s rent would cover taxes, interest, and insurance on the home. Myers’s cousin, Eliza Broadway, signed the agreement on Myers’s behalf and as a witness. Broadway signed for Myers because Myers is mentally challenged and cannot read or write. Broadway testified that Ryan told her that she could sign the agreement for Myers and encouraged her to do so because the agreement would enable Myers to purchase the property for only $50 per month more than he was paying in ordinary rent.

¶ 4. Myers made payments as required by the contract for 120 consecutive months. His payments are documented by copies of'receipts in the record. However, at the end of the ten-year lease period, Ryan refused to transfer the property by warranty deed. Broadway testified that Ryan told her that Myers needed to make four more payments before he could obtain title. Broadway made those four additional payments in January, February, March, and April 2014. She testified that she did so because she was concerned that Myers would lose his home. But Ryan still refused to transfer the property to Myers.

¶ 5. According to Broadway, Ryan then claimed that he still owed $16,000 on his mortgage and refused to transfer the property to Myers unless she first paid him $16,000 and reimbursed him for another $10,000 in taxes and expenses. Broadway refused to pay Ryan any additional money. In April 2014, Ryan persuaded Broadway to sign a handwritten “amendment” to the January 1, 2004 lease-to-own agreement. This document stated that the original agreement was “void,” “no longer in force,” “cancelled,” and “not ,.. binding.” The document further stated, “Ryan is no longer bound to [the 2004] agreement^] he is free and clear of all obligation to that contract.” In place of the original lease-to-own agreement, Ryan had Broadway sign a new agreement that entitled Myers to live in the home rent-free for ten years but did not provide for any transfer of title to him. The new agreement stated that Myers would be responsible for utilities (as he always had been), while Ryan would continue to make payments to Con-cordia and pay taxes and insurance on the home.

¶ 6. Ryan maintains that he told Broadway from the outset of their discussions in 2003 that Myers’s payments would not be sufficient to pay off the mortgage and that a balloon payment would be due in 2014, which Myers would have to pay in order to obtain title to the property. However, at the hearing before the MREC, Ryan admitted that his claim was inconsistent with the terms of the parties’ lease-to-own agreement, which did not mention a mortgage or any additional payment by Myers. Moreover, Broadway denied that Ryan ever mentioned a mortgage or any additional payment until the end of the ten-year lease term.

¶ 7. On April 30, 2014, Broadway filed a complaint against Ryan with the MREC. After investigating Broadway’s allegations, the MREC filed a formal complaint against Ryan. The complaint alleged that Ryan violated Mississippi Code Annotated section 73-35-21(1), paragraphs (a) and (m) (Rev. 2012), which authorize the MREC to suspend or revoke a broker’s license if it finds that the broker made “any substantial misrepresentation in connection with a real estate transaction” or engaged in any other conduct that “constitutes or demonstrates bad faith, incompe-teney, untrustworthiness, or dishonest, fraudulent or improper dealing.” The complaint also alleged that Ryan failed to provide Broadway/Myers with a “Working with a Real Estate Broker” form required by MREC Rule 4.3 (Miss. Admin. Code § 30-1601:4.3).

¶ 8. On February 10, 2015, the MREC held a hearing on the complaint. Ryan appeared pro se. At the time of the hearing, Myers was still living in the rental property; however, he still had not received a deed to the property. In addition to testifying to the facts set out above, Broadway testified that Myers had been forced to pay for significant repairs to the home, including repairs to the roof and plumbing, because Ryan had failed to make the repairs himself. Ryan claimed that he had lost money by allowing Myers to live in the home for $325 per month. Ryan also testified that he was not sure which disclosure forms he provided to Broadway or Myers, but he was sure “it was the right forms.” He claimed that their signed forms had been destroyed in a fire at his office.

¶ 9. Following the hearing, the MREC entered an order finding that Ryan had violated paragraphs (a) and (m) of section 73-35-21(1) and MREC Rule 4.3. Based on these violations, the MREC revoked Ryan’s broker’s license.

¶ 10. Ryan appealed the MREC’s order to the circuit court. See Miss. Code Ann. § 73-35-25 (Rev. 2012). In the circuit court, Ryan argued that the MREC’s findings that he violated section 73—35—21(1) and MREC Rule 4.3 were not supported by substantial evidence and were arbitrary and capricious. He also argued that the MREC’s decision to revoke his license was “too severe of a penalty.” On September 16, 2015, the circuit court entered an order finding that the MREC’s decision was supported by substantial evidence, was not arbitrary or capricious, and did not violate Ryan’s constitutional or statutory rights. Accordingly, the circuit court affirmed. Ryan thereafter filed a timely notice of appeal.

DISCUSSION

¶ 11. On appeal, Ryan makes the same basic arguments as in the circuit court: (1) that there was not substantial evidence to support the MREC’s finding that he violated section 73-35-21(l)(a); (2) that the MREC’s finding that he violated MREC Rule 4.3 was arbitrary or capricious; and (3) that the revocation of his license was “too severe of a penalty.” We address these arguments in turn below.

¶ 12. Judicial review of a decision of the MREC “is limited.” Gussio v. MREC, 122 So.3d 783, 786 (¶ 10) (Miss. Ct. App, 2013). When, as in this case, a profesr sional license is at- stake, the MREC bears the burden of proving its case by clear and convincing evidence. Palmer v. MREC, 14 So.3d 67, 71 (¶ 13) (Miss. Ct. App. 2008). However, the MREC’s “decision will not be disturbed on appeal absent a finding that it (1) was not supported by substantial evidence, (2) was arbitrary or capricious, (3) was beyond the power of the [MREC] to make, or (4) violated some statutory or constitutional right of the complaining party.” McDerment v. MREC, 748 So.2d 114, 118 (¶ 9) (Miss. 1999) (quotation marks, brackets omitted). Further, “great deference [is] afforded [to the MREC’s] ‘construction of its own rules and regulations and the statutes under which it operates.’ ” Id, (quoting Miss, State Tax Comm’n v. Mask, 667 So.2d 1313, 1314 (Miss. 1995)).

¶ 13. As noted above, the MREC is expressly authorized to revoke the license of a .broker who has made “any substantial misrepresentation in connection with a real estate transaction” or who has engaged in any other conduct that demonstrates “bad faith, incompetency or untrustworthiness, or dishonest, fraudulent or improper dealing.” Miss. Code Ann. § 73-35-21(l)(a) & (m). “In order to take or suspend the license of a real estate broker under a charge of improper dealings, the proof need not be beyond a reasonable doubt, but the ■ testimony must clearly establish the guilt of the respondent.” Palmer, 14 So.3d at 71 (¶ 13) (alterations omitted) (quoting MREC v. Anding, 732 So.2d 192, 197 (¶ 13) (Miss. 1999)). “Improper is defined as ‘[n]ot suitable,’ ‘unfit,’ ‘not suited to the character, time, and place,’ or ‘not in accordance with fact, truth, or right procedure.’ ” Farris v. MREC, 994 So.2d 229, 233 (¶ 15) (Miss. Ct. App. 2008) (quoting Black’s Law Dictionary 757 (6th ed. 1990)). Therefore, a finding that a broker has engaged in “improper dealing” does not require evidence of “fraudulent intent.” Id.

¶ 14. There is substantial evidence in the record to support the MREC’s findings that Ryan made misrepresentations to Broadway/Myers and engaged in “improper dealing.” In 2004, Ryan.entered into a lease-to-own agreement under which he clearly agreed to transfer title to the subject property to Myers once Myers made 120 monthly payments of $325. Myers fulfilled his end of-the bargain, but Ryan refused to transfer title to the property. Broadway testified that Ryan then promised to convey the property if Myers made four more payments. Myers made those payments, but Ryan again reneged on his promise. Ryan maintains that he and Broadway had an unwritten understanding that Myers would be required to make unspecified additional payments at the end of the ten-year lease term, but the parties’ clear written contract makes no mention of such payments, and Broadway denied that additional payments were ever discussed. Broadway’s testimony and the documentary evidence before the MREC constitute substantial evidence to support the MREC’s findings.

¶ 15. For the most part, Ryan simply argues that we should accept his testimony at face value and reject Broadway’s testimony as not credible. But in a case such as this, “[t]he administrative agency is the trier of facts as well as the judge of the witnesses’ credibility.” Nelson v. Miss. State Bd. of Veterinary Med., 662 So.2d 1058, 1062-63 (Miss. 1995). The MREC, as the fact-finder, was entitled to reject Ryan’s testimony and find Broadway credible. This is particularly true since Broadway’s testimony was consistent with the parties’ original contract, whereas Ryan’s testimony was not.

¶ 16. Ryan also argues that “[t]he right to contract is a fundamental right of all citizens under Mississippi law,” so the MREC was bound to respect the parties’ 2014 agreement that purported to “cancel” and “void” their original (2004) lease-to-own agreement. We disagree. The evidence indicated that Ryan coerced Broadway into signing the 2014 agreement by refusing to honor his obligation.under the parties’ original agreement. This was yet more “improper dealing” on Ryan’s part, not a defense to the charge.

¶ 17. Ryan next argues that he cannot be punished for failing to provide Myers/Broadway with a “Working with a Real Estate Broker” disclosure form (MREC Rule 4.3) because MREC Rule 3.2.G (Miss. Admin. Code § 30-1601:3.2.G) only requires a broker to keep such documents for three years. This argument is without merit. The rule states: “A real estate broker must keep on file for three years following its consummation, complete records relating to any real estate transaction.” Id. The evidence was clear that the relevant real estate transaction was not consummated in 2004 because the parties’ agreement provided for a ten-year lease-to-own period. Thus, the MREC hearing was held well within the rule’s three-year records retention period. Not only was Ryan unable to 'produce the required disclosure forms, he was unable to say which fox-ms he provided to Myers/Broadway—only that he was sure “it was the right forms.” There was substantial evidence before the MREC that Ryan failed to provide the required disclosure forms.

¶ 18, Finally, Ryan argues that revocation of his license was “too severe of a penalty.” “The authority of the [MREC] to revoke the license of a broker ... is a right given to the [MREC] to take from the licensee the right to do business and make a living in the practice of his profession. Such authority should be exercised with caution.” MREC v. Ryan, 248 So.2d 790, 793 (Miss. 1971). However, the Mississippi Supreme Court has held that if there is substantial evidence to support a finding of improper dealing by a broker, we are not “to separately second guess [the MREC’s] imposition of sanction.” Harris v. MREC, 500 So.2d 958, 963 (Miss. 1986); accord Farris, 994 So.2d at 235 (¶ 23). Under our “traditional standard of review,” once we have determined that improper dealing was established by clear and convincing evidence, “we look no further.” Harris, 500 So.2d at 963. In any event, in this case, the MREC’s decision to revoke Ryan’s license was not arbitrary or capricious. There was substantial evidence that Ryan willfully l’efused to honor his clear contractual obligation to convey the property to Myers and then took advantage of the situation to coerce Broadway into signing a new agreement that purported to cancel the original contract. There was also substantial evidence that Ryan coerced Myers/Broadway into paying an additional $1,300 even though he had no intention of honoring the original contract. This was sufficient evidence to justify the MREC’s decision to revoke Ryan’s license.

CONCLUSION

¶ 19. The order of the MREC revoking Ryan’s license was supported by substantial evidence and was neither arbitrary nor capricious. Accordingly, we affirm the judgment of the circuit court affirming the order of the MREC.

¶ 20, THE JUDGMENT OF THE HINDS 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 AND GREENLEE, JJ., CONCUR. WESTBROOKS, J„ NOT PARTICIPATING.

      . On May 14, 2014, Concordia notified Ryan that his loan was in default and that it was exercising its right to accelerate the debt. Ryan was given thirty days to pay the loan balance of $16,286.48 plus attorneys’ fees.

      . The Legislature amended section 73-35-21(1) effective July 1, 2016. Paragraph (m) was re-lettered as paragraph (n) and amended; however, the amendment is not relevant to the facts of this case. See 2016 Miss. Laws ch. 472, § 4 (S.B. 2725).

      .The complaint noted that a licensee is not exempt from discipline when selling his own property. MREC Rule 3.1.1 (Miss. Admin. Code § 30-1601:3.1.1),


author: FAIR, J.,

text:
    A1 FIRE SPRINKLER CONTRACTORS, LLC d/b/a A1 Fire Sprinkler, LLC, Wayne Marisco and Sandy Marisco, Appellants v. B.W. SULLIVAN BUILDING CONTRACTOR, INC., Appellee
    NO. 2015-CA-00930-COA
    Court of Appeals of Mississippi.
    01/31/2017

      PEARL RIVER COUNTY CIRCUIT COURT, PRENTISS GREENE HARRELL, J.
    HIRAM RICHARD DAVIS, FOR APPELLANTS
    CAREY R. VARNADO, BRIAN RANDOLPH BLEDSOE, FOR APPELLEE
    BEFORE IRVING, P.J., CARLTON, FAIR AND GREENLEE, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. B.W. Sullivan Building Contractor sued A1 Fire Sprinkler Contractors and its principal, Wayne Marisco, for breach of contract following a dispute over the construction of some aspects of a fire suppression system A1 had claimed were excluded from its bid. After a bench trial, the trial court found that the plain language of the contract included the disputed features and that A1 Fire Sprinkler Contractors’ successor LLC, A1 Fire Sprinkler, was required to reimburse B.W. Sullivan for what it had paid to have them built. We agree with the trial court that the contract was unambiguous, but we find that the trial court erred in entering the judgment against the successor LLC, which was not a party to this action. We affirm the judgment as modified.

DISCUSSION

1. Interpretation of the Contract

¶ 2. A1 Fire Sprinkler Contractors disputes that it was contractually required to supply and install two items, a concrete water storage tank and a clean agent fire suppression system for one room in the building. A1 denies that it was required to supply or install the clean agent system entirely, and it alleges that the water storage tank it agreed to supply was understood to be steel, rather than concrete, with the steel tank apparently being less expensive.

¶ 3. The contract consists of a brief written document entitled “Contract,” which identifies the project and the parties and states in relevant part:

DESCRIPTION
Furnish and install all fire sprinkler systems and fire pump/house as per plans specifications and addendums as prepared by JBHM Architects.

Item Total; $0.00

Total: $220,000.00

Total: $220,000.00

The contract is subscribed by an agent of B.W. Sullivan and by Marisco as an agent of A1 Fire Sprinkler Contractors. Attached to the contract is A1 Fire Sprinkler Contractors’ bid/proposal, which is also for $220,000, though it is not signed or directly referenced in the contract. There was very little evidence about the relationship between the bid and the contract at trial, other than Marisco’s testimony that he had asked to have it “attached” to the contract. B.W. Sullivan, for its part, attached the bid proposal to its complaint with the contract itself and to the contract when it was entered as an exhibit. B.W. Sullivan has generally distinguished between the bid and the contract in its arguments, but at times, when it is advantageous to do so, it cites to the bid without explaining its significance. It is fair to say that both parties have failed to adequately brief the issue of exactly what constitutes the contract, nor was it clearly argued at trial or explicitly decided by the trial court when it explained its decision.

¶ 4. We find it unnecessary, however, to resolve this question on appeal, because even if we assume the bid is part of the contract, Al fails to show it is entitled to relief. Its argument on the contract interpretation issue is cursory; it contends only that the terms in the bid should control over the contract because the bid is more specific. While it is true that this is a discretionary canon of contract construction, it is one of several such canons and generally should only be resorted to after a finding that the contract is ambiguous. See Herrmann v. Herrmann, 193 So.3d 670, 673-74 (¶¶ 8-10) (Miss. Ct. App. 2016). Moreover, we reject the premise that the bid is more specific than the contract. Al attempts to frame the contract as consisting of a single sentence while ignoring the approximately forty pages of architects’ specifications that it incorporates by reference. The description of the water storage tank in the architects’ plans is five pages long and leaves no doubt as to its construction, while the provision of the bid relied on by Al, an exclusion for “[a]ny and all [concrete] work,” is general by comparison. Likewise, the bid’s subject heading, which includes “Fire Protection (Wet Pipe Systems),” is general compared to the numerous references in the architects’ plans to a clean agent system, including twelve pages detailing its construction.

¶ 5. The trial court’s judgment is always presumed to be correct, and the burden falls upon the appellant to show reversible error. Jordan v. State, 995 So.2d 94, 103 (¶ 14) (Miss. 2008). Al has failed to meet its burden on this issue.

2. Volunteer Payment Doctrine

¶ 6. Al also contends that the trial court erred in not finding that B.W. Sullivan was barred from recovery because of payments it made to Al and Al’s sub-subcontractors. Al cites the voluntary payment doctrine or “volunteer rule,” which precludes the recovery of a voluntary payment, one “made without compulsion, fraud, mistake of fact, or agreement to repay a demand which the payor does not owe, and which is not enforceable against him, instead of invoking the remedy or defense which the law affords against such demand.” Glantz Contracting Co. v. Gen. Elec. Co., 379 So.2d 912, 917 (Miss. 1980) (citation omitted).

¶ 7. From our review of the record, it is apparent that this issue is procedurally barred because the voluntary payment doctrine is an affirmative defense that Al failed to plead in the trial court. See, e.g., Philip Morris Cos. v. Miner, 2015 Ark. 73, 462 S.W.3d 313, 321 (2015); Nevada Ass’n Servs. Inc. v. Eighth Judicial Dist. Ct., 338 P.3d 1250, 1253 (Nev. 2014); D.R. Horton, Inc. v. Bd. of Sup’rs for County of Warren, 285 Va. 467, 737 S.E.2d 886, 887 (2013). While A1 points to the judge’s questions directed to B.W. Sullivan’s attorney, suggesting that the court may have considered the question, A1 makes no effort to show that the issue was tried by consent. Lee v. Lee, 154 So.3d 904, 907 (¶ 18) (Miss. Ct.App. 2014) (holding that the burden is on the party claiming trial by implied consent to show that it actually occurred). This issue is procedurally barred.

3. Judgment Against A1 Fire Sprinkler LLC

¶8. Finally, A1 contests the trial court’s decision to enter the judgment against A1 Fire Sprinkler LLC, the successor to A1 Fire Sprinkler Contractors LLC. The record indicates that, following most of the events at issue, Marisco dissolved A1 Fire Sprinkler Contractors LLC, and, the same day, formed A1 Fire Sprinkler LLC. Marisco’s wife, Sandy, was included as a principal in the successor LLC. The trial court entered the judgment against the successor corporation, A1 Fire Sprinkler LLC.

¶ 9. On appeal, A1 Fire Sprinkler Contractors LLC, complains that its successor was not a party to this lawsuit and that a judgment could not be entered against it. B.W. Sullivan offers no real response, except to insist that a judgment can be obtained against the successor LLC under a theory of continuity of enterprise. But the successor LLC was not made a party to this litigation—it was not named in the complaint, was never served with process, and did not make an appearance. B.W. Sullivan argues only that the circuit court could enter a judgment against a nonparty based on Morris v. Macione, 546 So.2d 969, 971-72 (Miss. 1989), where the Mississippi Supreme Court observed that the lower court had the authority to enter an order against a successor corporation that apparently had not been named as a party in the case. But the issue here had not been specifically raised there, and, at any rate, the court in Morris had pierced the corporate veil based on a finding of a fraudulent conveyance of assets to the successor corporation. Id, at 972. No such finding was made in the present case, and B.W. Sullivan did not cross-appeal the trial court’s refusal to pierce the veil of the LLC and enter a judgment against Maris-co personally. Moreover, the Mississippi Supreme Court has recently held that continuity of enterprise must be pled in the complaint, which was not done here. See EDW Invs., LLC v. Barnett, 149 So.3d 489, 492-93 (¶ 8) (Miss. 2014).

¶ 10. Thus, we modify the circuit court’s judgment to name A1 Fire Sprinkler Contractors LLC as the party subject to the judgment. We express no opinion on the question of whether the successor corporation may be found to be bound by the judgment in a subsequent action to which it is a party.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY IS AFFIRMED AS MODIFIED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . During the events at issue, Marisco dissolved A1 Fire Sprinkler Contractors LLC and formed A1 Fire Sprinkler LLC. The successor LLC also included Marisco’s wife, Sandy, as a principal.

      . The bid actually states that it excludes "concert” work, but the parties agree this was a scrivener’s error.

      . Al’s argument is that the "wet pipe” parenthetical excludes a clean agent system, as it is not water-based. However, we note that this is not the entire subject heading; the subject of the bid is actually a list that also includes the name of the project as well as two architectural drawings, one of which apparently showed the clean agent system.


author: WILSON, J.,

text:
    William J. FORTNER, Appellant v. SPECIALTY CONTRACTING, LLC, Appellee
    NO. 2015-CA-00951-COA
    Court of Appeals of Mississippi.
    01/31/2017

      NOXUBEE COUNTY CIRCUIT COURT, LEE SORRELS COLEMAN, JUDGE
    DAVID 0. BUTTS JR., ATTORNEY FOR APPELLANT
    CECIL MAISON HEIDELBERG, MICHAEL O. GWTN, ATTORNEYS FOR APPELLEE
   WILSON, J.,

FOR THE COURT:

¶ 1. William Fortner was injured while working for Specialty Contracting' LLC (“Specialty”). John Stark, a Specialty employee, was backing up a tractor trailer to a loading platform, and Fortner was behind the trailer directing him by walkie-talkie. The trailer struck Fortner, pinning him to the platform and causing serious injuries. Fortner filed suit against Specialty in circuit court, alleging that Specialty was liable for Stark’s negligence. However, the circuit court granted summary judgment for Specialty on the ground - that Fortner was an employee of Specialty and his exclusive remedy was under the Workers’ Compensation Law. On appeal, Fort-ner argues that he was an independent contractor, not an employee.- In the alternative, he argues that Speciality waived or should be estopped from asserting the exclusive remedy provision of the Workers’ Compensation Law as a defense. We conclude that Specialty was entitled to summary judgment. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Specialty is in the business of assembling and delivering prefabricated metal buildings. Stark delivered buildings for Specialty by tractor trailer. In June 2013, Stark asked Specialty’s owner, Chris Adams, for permission to hire Fortner to assist him in making deliveries. Fortner was a friend of Stark, and Stark offered to pay Fortner out of his own pocket. Adams consented to Fortner’s employment, and Specialty increased Stark’s compensation to partially offset the cost of Stark’s payments to Fortner.

¶ 3. Fortner began working with Stark during the last week of June 2013.-Fortner was paid $100 per day, although he was not listed on Specialty’s payroll as a W-2 employee, and no taxes were withheld from his wages. Fortner and Stark met at Stark’s home each morning and rode together to Specialty’s office, where Stark received the day’s work order. Fortner and- Stark would then load a building onto a tractor trailer owned by Specialty and deliver it to the specified location. Stark always drove because he had a commercial driver’s license, whereas Fortner did not. At their destination, Stark and Fortner would unload the building and anchor it into the ground. Speciality provided them with all necessary equipment.

¶ 4. On July 2, 2013, Fortner was standing behind the truck giving Stark directions as he.backed the truck up to a loading platform. According to Fortner, he directed Stark to drive forward, but Stark backed up instead. The truck’s trailer struck Fortner and pinned him to the loading platform. Fortner sustained serious injuries to both of his legs as a result.

¶ 5. On October 15, 2013, Fortner filed suit .against Specialty in the Noxubee County Circuit Court. Fortner alleged that Speciality was liable for Stark’s negligence because Stark was acting in the course and scope of his employment with Specialty. Specialty’s answer admitted that Stark was acting in the course .and scope of his employment at the time of the .incident. Specialty also raised the exclusive remedy provision of the Workers’- Compensation Law as a defense.

¶ 6. On December 18, 2013, Progressive Gulf Insurance Company (“Progressive”) filed -a complaint for a declaratory judgment against Speciality and Fortner in -the U.S. District Court-for the Northern District of Mississippi. Progressive had issued a commercial automobile liability insurance policy to Specialty. In its complaint, Progressive sought a declaratory judgment that Fortner’s injuries were excluded from coverage under the policy because, inter alia, Fortner was an employee who was entitled to workers’ compensation benefits. On March 19, 2014, Progressive filed an amended complaint that added Bridgefield Casualty Insurance Company (“Bridge-field”) as a defendant. Bridgefield is Specialty’s workers’ compensation carrier. Progressive’s amended complaint was ultimately dismissed without prejudice by stipulation of all parties on January 7, 2015.

¶ 7. On July 29, 2014, Specialty filed a third-party complaint in the Noxubee County Circuit Court case against Progressive, Bridgefield, and Fortner. Specialty alleged that Progressive and Bridgefield had breached their respective duties to defend and indemnify Specialty against the underlying complaint filed by Fortner. Specialty further alleged that Progressive’s federal declaratory judgment action was an improper interference with Specialty’s efforts to defend the circuit court action. On February 13, 2015, the circuit court dismissed Specialty’s third-party complaint without prejudice with the approval of all parties, i.e., Specialty, Progressive, Bridgefield, and Fortner.

¶ 8. On November 26, 2014, Fortner filed a motion for partial summary judgment, seeking a determination that he was an independent contractor, not an employee, at the time of his injuries. Specialty responded to Fortner’s motion and also moved for summary judgment. Specialty argued that Fortner was an employee and, therefore, his tort claim was barred by the exclusive remedy provision of the Workers’ Compensation Law. The circuit court agreed with Specialty that Fortner was an employee and entered summary judgment in favor of Speciality on May 26, 2015. Fortner filed a timely notice of appeal.

¶ 9. On July 1, 2015, Fortner filed a petition to controvert with the Workers’ Compensation Commission. Fortner’s petition made clear that it was a “protective filing” based on the circuit court’s order granting summary judgment. That is, Fortner filed the petition so that his workers’ compensation claim would not be time-barred in the event that this appeal proved unsuccessful. On July 9, 2015, Specialty/Bridgefield filed an answer to the petition in which they admitted that Fortner was an employee of Specialty, that he was injured in the course of his employment, and that the injury arose out of his employment. Bridgefield also tendered payment of temporary total disability benefits, although Fortner’s counsel stated at oral argument that Fortner has not yet accepted payment.

ANALYSIS ■

¶ 10. Fortner raises three issues on appeal. First, he argues that the circuit court erred in granting summary judgment in favor of Specialty because he is an independent contractor. Second, he argues that Specialty should be estopped from claiming that he was an employee because Specialty never withheld taxes from his wages or notified the Workers’ Compensation Commission of his injury. Third, he argues that Specialty waived its defense of immunity under the Workers’ Compensation Law because it waited too long to file a motion for summary judgment based on the defense. Finding no error, we affirm.

I. Fortner was an employee, not an independent contractor.

¶ 11. “We review the grant or denial of a motion for summary judgment de novo, viewing the evidence ⅛ the light most favorable to the party against whom the motion has been made.’ ” Karpinsky v. Am. Natl Ins., 109 So.3d 84, 88 (¶ 9) (Miss. 2013) (quoting Pratt v. Gulfport-Biloxi Reg'l Airport Auth., 97 So.3d 68, 71 (¶ 5) (Miss. 2012)). “A grant of summary judgment will be upheld only when, viewing the evidence in the light most favorable to the nonmoving party, there are no genuine issues of material fact.” Forbes v. Gen. Motors Corp., 993 So.2d 822, 824 (¶ 7) (Miss. 2008).

¶ 12. “This case is what Larson calls an ‘upside-down compensation case,’ in the form of a negligence action in which the employee is trying to get out from compensation coverage to escape the exclusive provisions of the act, and the employer is asserting compensation coverage.” Stubbs v. Green Bros. Gravel Co., 206 So.2d 323, 325 (Miss. 1968) (citing Larson, Workmen’s Compensation Law § 26.10, at 452.11 (1965)). “Reason and consistency require that we apply the provisions of the act and the decisions interpreting it with an equal hand, both where coverage is asserted and where the exclusive remedy provisions of the statute are involved.” Id.

¶ 13. Under the Workers’ Compensation Law, an employee is entitled to compensation for any injury “arising out of and in the course of employment.” Miss. Code Ann. § 71-3-7(1) (Supp. 2016). An employer’s liability under the Workers’ Compensation Law “shall be exclusive and in place of all other liability of such employer to the employee” for such injury, “except that if an employer fails to secure payment of compensation as required by [the Law], an injured employee ... may elect to claim compensation under [the Law], or to maintain an action at law for damages.” Miss. Code Ann. § 71-3-9 (Rev. 2011). In other words, an employer that secures workers’ compensation coverage that complies with the Law “enjoys immunity from suit in tort for an employee’s injury.” Washington v. Tem’s Junior Inc., 981 So.2d 1047, 1050 (¶ 11) (Miss. Ct. App. 2008).

¶ 14. In this case, there is no dispute that Specialty secured workers’ compensation coverage consistent with the requirements of the Workers’ Compensation Law. Therefore, if Fortner was an “employee” at the time of his injury, his tort suit is barred by the Law’s exclusivity provision. The Law defines “employee” as “any person ... in the service of an employer under any contract of hire or apprenticeship, -written or oral, express or implied, provided that there shall be excluded therefrom all independent contractors.” Miss. Code Ann. § 71-3-3(d) (Rev. 2011). An independent contractor is defined as:

[A]ny individual, firm or corporation who contracts to do a piece of work according to his own methods without being subject to the control of his employer except as to the results of the work, and who has the right to employ and direct the outcome of the workers independent of the employer and free from any superior authority in the employer to say how the specified work shall be done or what the laborers shall do as the work progresses, one who undertakes to produce a given result without being in any way controlled as to the methods by which he attains the result.

Id. § 71-3-3(r).

15. There are two tests used to determine whether an individual is an employee or independent contractor: the “control test” and the “relative nature of the work test.” See Shelby v. Peavey Elecs. Corp., 724 So.2d 504, 506-07 (¶ 9) (Miss. Ct. App. 1998); see also Brown v. E.L. Bruce Co., 253 Miss. 1, 7, 175 So.2d 151, 154 (1965) (“The various tests enumerated in our previous opinions are simply methods to be used as an aid in determining whether or not the contractor was an employee, an agent, or a person engaged in an entirely different business, the services of which are contracted to another as the services of an independent contractor.”). We apply these tests to determine whether there is any genuine issue of material fact as to Fortner’s status as an employee.

A. The Control Test

¶ 16. “The traditional test of the employer-employee relationship is the right of the employer to control the details of the work.” Concert Sys. USA Inc. v. Weaver, 33 So.3d 1186, 1189 (¶ 13) (Miss. Ct. App. 2010) (quoting Goolsby Trucking Co. v. Alexander, 982 So.2d 1013, 1024 (¶ 31) (Miss. Ct. App. 2008)). “The ‘control test’ consists of the following factors[:] ‘(1) direct evidence of right or exercise of control; (2) method of payment; (3) the furnishing of equipment; and (4) the right to fire.’ ” Davis v. Clarion-Ledger, 938 So.2d 905, 908 (¶ 6) (Miss. Ct. App. 2006) (quoting Shelby, 724 So.2d at 507 (¶ 13)). The employer’s right of control—rather' than its exercise—is the key to the existence of an employer-employee relationship. Se. Auto Brokers v. Graves, No. 2014-WC-00974-COA, 210 So.3d 1012, 1016, 2015 WL 1641246, at *3 (¶ 15) (Miss. Ct. App. Apr. 14, 2015). Under the control test, it is evident that Fortner was an employee, not an independent contractor.

1. Direct Evidence of Right or Exercise of Control

¶ 17. In his deposition, Fortner admitted that during his brief employment with Specialty, he never did any work or went anywhere except pursuant to Stark’s instructions. Each time a delivery was made, Stark told Fortner which building they would load, Stark drove the two of them to the location of the delivery, and then Fort-ner helped Stark unload the building. Fortner did not independently select buildings for delivery or exercise any discretion of the slightest consequence.

¶ 18. On appeal, Fortner argues that he actually supervised Stark, not vice versa, because he “would direct Stark in the proper alignment of the truck for loading.” As noted above, Stark drove the truck because he had a commercial driver’s license, while Fortner did not. Stark told Fortner to give him directions via walkie-talkie to assist him as he backed up the truck, and Fortner did as he was told. Fortner’s compliance with Stark’s instructions is hardly evidence that Specialty lacked the right to control Fortner’s work.

¶ 19. Fortner also contends that he was not an employee of Specialty because he reported to Stark rather than to Spe-ciality’s owner, Chris Adams. However, there is no genuine dispute that Stark was an employee of Specialty. Fortner alleged that Stark was an employee in his complaint, and Specialty admitted the same. The fact that Fortner had little direct contact with Adams is irrelevant. See Shumpert Truck Lines v. Horne, 227 Miss. 648, 651-52, 86 So.2d 499, 500-01 (1956) (holding that claimant was an employee of respondent even though he was hired and paid by one of respondent’s employees and respondent’s owner “was not daily present and giving orders”). Coverage under the Workers’ Compensation Law is not limited to employees who work directly with the owner of the business.

2. Method of Payment

¶ 20. Fortner argues that he was an independent contractor because he was not classified as a “W-2 employee” and because no taxes were deducted from his wages of $100 per day. However, an employer’s classification of a worker for tax purposes or failure to withhold taxes— which may be in error—does “not prove independent-contractor status for workers’ compensation purposes.” Se. Auto Brokers, 210 So.3d at 1017, 2015 WL 1641246, at *3 (¶ 18); see also Weaver, 33 So.3d at 1188-89 (¶¶ 5-14) (affirming Workers’ Compensation Commission’s ruling that truck driver was an employee, not an independent contractor, although his employer did not deduct taxes from his wages of $100 per day). The basis on which the worker is paid is more significant to our inquiry than the worker’s treatment for tax purposes. In this case, “[t]he method of payment factor clearly favors a finding of employment since [Fortner] was ... paid a salary of [$100] per day regardless of the number of [buildings] actually [delivered].” Davis, 938 So.2d at 908 (¶ 7). That is, rather than being paid a fixed fee for a defined job or project, he was paid a regular daily wage. This indicates that he was an employee, not an independent contractor. See id.

3. Furnishing of Equipment

¶21. Fortner concedes that Specialty provided all equipment and that he furnished none. This factor weighs in favor of employee status. See, e.g., Se. Auto Brokers, 210 So.3d at 1016-17, 2015 WL 1641246, at *3 (¶¶ 17,19).

4. Right to Fire

¶ 22. Fortner acknowledges that Specialty had the right to fire him. This also weighs in favor of employee status. See, e.g., id.-, Hugh Dancy Co. v. Mooneyham, 68 So.3d 76, 81 (¶ 11) (Miss. Ct. App. 2011) (“The right of control may be established by showing that a potential employer provided the equipment to the worker and had the right to fire the worker.” (citing Mathis v. Jackson Cty. Bd. of Sup’rs, 916 So.2d 564, 570 (¶19) (Miss. Ct. App. 2005))).

¶23. In summary, under the “control test,” Fortner was Specialty’s employee, not an independent contractor. Specialty had the right to control Fortner’s work and exercised that right; Fortner was paid a regular daily wage rather than a fixed fee for some project or job; and Specialty provided all necessary tools and could have fired Fortner at any time. Specialty was entitled to summary judgment under the control test.

B. Nature of the Work Test

¶ 24. The control test is the “traditional test” used to determine whether an individual is an employee or independent contractor. See Weaver, 33 So.3d at 1189 (¶ 13) (quoting Goolsby, 982 So.2d at 1024 (¶ 31)). However, the “nature of the work test” is also relevant to the determination. The nature of the work test considers

the character of the claimant’s work or business—how skilled it is, how much of a separate calling or enterprise it is, to what extent it may be expected to carry its own accident burden and so on—and its relation to the employer’s business, that is, how much it is a regular part of the employer’s regular work, whether it is continuous or intermittent, and whether the duration is sufficient to amount to the hiring of continuing services as distinguished from contracting for the completion of a particular job.

Davis, 938 So.2d at 909 (¶ 8) (quoting Boyd v. Crosby Dumber & Mfg. Co., 250 Miss. 433, 444,166 So.2d 106,110 (1964) (quoting 1 Larson, Workmen’s Compensation Law § 43.52 (1955))). There is also a “tendency ... to find employment when the work being done is an integral part of the regular business of the employer, and when the worker, relative to the employer, does not furnish an independent business or professional service.” Ga.-Pac. Corp. v. Crosby, 393 So.2d 1348, 1350 (Miss. 1981) (quoting 1A Larson, Workmen’s Compensation Law § 45 (1979)).

¶ 25. Fortner’s work with Specialty did not involve any particular skill or training; he simply assisted Stark in loading and unloading prefabricated metal buildings. Delivery of those buildings to customers was clearly a regular and integral part of Specialty’s business. And although Fortner’s employment had only recently commenced at the time of his injury, he was hired to help Stark in all of his normal work, not for any “particular job.” Finally, Fortner was not in the business of offering similar services to other entities as part of his own independent business; rather, he was simply providing unskilled labor to Specialty in exchange for a set daily wage. For all these reasons, the nature of Fortner’s work for Specialty is that of an employee covered by the Workers’ Compensation Law, not an independent contractor. See, e.g., Davis, 938 So.2d at 909 (¶ 7) (claimant was an employee where her daily work of delivering newspapers required no special skill but was integral to the newspaper’s business).

¶ 26. Thus, under both the “control test” and the “nature of the work test,” Fortner was an employee of Specialty. Therefore, Fortner’s exclusive remedy was under the Workers’ Compensation Law, and his negligence suit against Specialty was barred.

II. Specialty is not estopped from denying that Fortner was an independent contractor.

27. Fortner next argues that the doctrines of quasi-estoppel and equitable estoppel bar Specialty from denying that he was an independent contractor. “[Qjuasi-estoppel precludes a party from asserting, to another’s disadvantage, a right inconsistent with a position it has previously taken, and applies when it would be unconscionable to allow a person to maintain a position inconsistent with one to which he acquiesced, or from which he accepted a benefit.” Bailey v. Estate of Kemp, 955 So.2d 777, 782 (¶ 21) (Miss. 2007) (internal quotation marks and brackets omitted) (quoting Bott v. J.F. Shea Co., 299 F.3d 508, 512 (5th Cir. 2002)). “Equitable estoppel precludes a party from denying a material fact which he has previously induced another to rely upon, whereby the second party changed his position in such a way that he would suffer injury if denial was allowed.” Christian Methodist Episcopal Church v. S&S Constr. Co., 615 So.2d 568, 571 (Miss. 1993). The basis of Fort-ner’s estoppel arguments is that Specialty apparently did not list him on its payroll as a “W-2 employee,” did not withhold taxes from his pay, and failed to notify the Workers’ Compensation Commission of his injury, as required by Mississippi Code Annotated section 71-3-67 (Rev. 2011). These arguments are without merit.

¶ 28. First, the Mississippi Supreme Court and this Court have already rejected the argument that an employer’s failure to notify the Commission of an employee’s injury precludes the employer from raising the exclusive remedy provision of the Workers’ Compensation Law as a defense to a tort suit. The Supreme Court held that the exclusive remedy provision

is clear and free of any ambiguity. It expressly provides that the liability of an employer to pay compensation shall be exclusive and in place of all other liability. The single exception deals with circumstances where an employer fails “to secure payment of compensation as required by this act.” Only in these instances may the injured employee elect to claim [compensation] under the Workmen’s Compensation Act or institute an action at law.

Taylor v. Crosby Forest Prod. Co., 198 So.2d 809, 811 (Miss. 1967). Accordingly, the Court rejected the argument that the injured employee could maintain a tort suit based on the employer’s failure “to report [his injury] to the Commission in the manner and within the time provided” by law. Id. More recently, this Court reaffirmed that

[t]he prerequisite for immunity that the employer “secure payment of compensation” does not mean that the employer must timely inform the Commission of an employee’s injury or ensure that a particular employee is paid the benefits to which he is entitled under the Act. Rather, the requirement that the employer “secure payment of compensation” means that the employer must have in effect a workers’ compensation insurance policy or be a qualified self-insurer.

Washington, 981 So.2d at 1050-51 (¶ 13) (citing Taylor, 198 So.2d at 811). Thus, Specialty’s failure to file a timely notice of Fortner’s injury with the Commission does not estop it from raising the exclusive remedy provision as a defense.

¶ 29. In addition, Fortner fails to articulate how he ever relied to his detriment on any representation by Specialty. As detrimental reliance is one of “the essential elements of equitable estoppel,” Turner v. Terry, 799 So.2d 25, 87 (¶ 42) (Miss. 2001), Fortner’s equitable estoppel argument fails.

¶ 30. Finally, Fortner’s quasi-estoppel argument fails because he fails to show that Specialty has taken inconsistent positions, that Specialty benefited from any inconsistent position, or that it would be “unconscionable” to allow Specialty to rely on the exclusive remedy defense. See Bailey, 955 So.2d at 782 (¶ 21). There is no dispute that Specialty secured appropriate workers’ compensation coverage for its employees, and Specialty has never denied that Fortner is an employee for purposes of the Workers’ Compensation Law or that he is entitled to workers’ compensation benefits. There is nothing “unconscionable” about enforcing the exclusive remedy provision of the Workers’ Compensation Law. The doctrines of quasi-estoppel and equitable .estoppel do not apply to the facts of this ease.

III. Fortner’s argument that Specialty waived; its immunity defense is procedurally barred.

¶ 31. Citing Hanco Corp. v. Goldman, 178 So.3d 709 (Miss. 2015), and MS Credit Center v. Horton, 926 So.2d 167 (Miss. 2006), Fortner argues that Specialty waived its defense under the exclusive remedy provision of the Workers’ Compensation Law because this lawsuit was pending for- seventeen months before Specialty filed its motion for summary judgment. However, Fortner admits that he failed to raise this issue in the circuit court. “It is a long-established-rule in this state that a question not raised in the trial court will not be considered on appeal.” City of Hattiesburg v. Precision Constr. LLC, 192 So.3d 1089, 1093 (¶ 18) (Miss. Ct. App. 2016) (quoting Adams v. Bd. of Sup’rs of Union Cty., 177 Miss. 403, 170 So. 684, 685 (1936)); see also Freeman v. Pittsburgh Glass Works LLC, 709 F.3d 240, 250 (3d Cir. 2013) (“The doctrine of appellate waiver is not somehow exempt from itself. This means that a party can waive a waiver argument by not making the argument below or in its briefs.” (citation omitted)). By failing to raise this issue in the circuit court, Fortner waived his right to do so on appeal.

¶ 32. Fortner argues that even if he has waived the issue, we may address it under the “plain error doctrine.” However, no error was committed, much less plain error. In Hanco, the Court held that the employer waived its exclusive remedy defense because it asserted the defense in its answer but then “did not raise the exclusivity provision again until it filed a motion for summary judgment” more than twenty-six months later. Hanco, 178 So.3d at 714 (¶ 15). During that time, the employer “actively participated in litigating the merits of the case,” “filed motions to join various motions of codefendants,” “designated experts it planned to call at trial,” and “actively participated in numerous depositions.” Id,

¶ 33. Here, in contrast, Specialty filed its motion for summary judgment approximately fifteen months after its-answer, and in the interim, there was no substantial litigation related to the merits of the case. The only depositions taken were of Fort-ner and Adams, both of which were relevant to the issue of Fortner’s employment status. Moreover, unlike Hanco, where the exclusive remedy defense apparently went unmentioned for over two years, the issue has been at the forefront of this litigation throughout. As discussed above, Fortner’s employment status was the central issue in Progressive’s federal declaratory judgment action, which it filed only two months after Fortner’s complaint. Moreover, Specialty’s third-party complaint, which it filed about nine months after Fortner’s complaint, made clear that Fortner’s status as an employee or independent contractor was a “central issue” and its “affirmative defense” in the case. Specialty never abandoned the issue in any sense, nor did it actively seek to litigate the underlying merits of Fortner’s claim. Accordingly, procedural bar notwithstanding, Specialty did not waive its exclusive remedy defense.

CONCLUSION

¶ 34. Fortner was an employee of Specialty, he was injured in the course of his employment, and his injury arose out of his employment. His injury clearly is covered by our Workers’ Compensation Law. Because Specialty had secured workers’ compensation coverage, Fortner’s exclusive remedy is under the Workers’ Compensation Law, and his negligence claim against Specialty is barred. If roles were reversed and Fortner were seeking workers’ compensation benefits, Specialty could not escape liability by insisting that Fort-ner was an independent contractor. “Reason and consistency require that we apply the provisions of the [Law] and the decisions interpreting it with an equal hand, both where coverage is asserted and where the exclusive remedy provisions of the [Law] are involved.” Stubbs, 206 So.2d at 325. Therefore, Fortner likewise cannot circumvent the Law’s exclusive remedy provision by denying that he was an employee,

¶ 35. THE JUDGMENT OF THE NOXUBEE COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON AND GREENLEE, JJ., CONCUR. FAIR AND WESTBROOKS, JJ., NOT PARTICIPATING.

      . An employer's failure to comply with the notice requirements of section 71-3-67 may, in combination with other circumstances, es-top the employer from asserting the statute of limitations as a defense to a workers' compensation claim. See Prentice v. Schindler Elevator Co., 13 So.3d 1258 (Miss. 2009).

      . As discussed above, an individual may be deemed an employee for workers’ compensation purposes even if he was classified as an independent contractor for tax purposes and no taxes have been withheld from his .compensation. See Se. Auto Brokers, 210 So.3d at 1016-17, 2015 WL 1641246, at *3 (¶ 18); Weaver, 33 So.3d at 1188-89 (¶¶ 5-14).

      . A "plain error” is one “that seriously affects the fairness, integrity or public reputation of judicial proceedings.” Miss. Real Estate Appraiser Licensing & Certification Bd. v. Schroeder, 980 So.2d 275, 289 (¶ 38) (Miss. Ct. App. 2007). It is a "plain, clear, or obvious” “deviation] from a legal rule” that “is prejudicial in its effect upon the outcome of the trial court proceedings,” Id.


text:
    ESTATE OF Pataelain PAULK, Appellant v. Dr. Roger T. LOTT a/k/a Dr. Roger Thomas Lott, Doctors Clinic and Perry County General Hospital, LLC, Appellees
    NO. 2015-CA-01144-COA
    Court of Appeals of Mississippi.
    01/31/2017

      PERRY COUNTY CIRCUIT COURT, ROBERT B. HELFRICH, J.
    ANNIE L. AMOS, ATTORNEY FOR APPELLANT
    RICHARD O. BURSON SHIRLEY M. MOORE, ATTORNEYS FOR APPEL-LEES
   WILSON, J.,

FOR THE COURT:

¶ 1. This medical malpractice case was filed in November 2012. In April 2015, the clerk and the defendants moved to dismiss for failure to prosecute. There had been no action in the case since the defendants filed their answer two years earlier. No response was filed to either motion to dismiss, and the circuit court dismissed the case for failure to prosecute. The circuit court did not abuse its discretion, so we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. The complaint filed in this case alleges the following: On November 23, 2010, Pataelain Paulk was a patient at Perry County General Hospital. Dr. Roger Lott and/or some agent(s) or employee(s) of the hospital “administered” Coumadin, a prescription medicine, to Paulk in tablet form. The tablet was still in a blister pack (i.e., packaging) when it was “administered” to Paulk. Paulk ingested the blister pack, which “lodged in her throat.” Paulk had to undergo surgery and experienced pain and suffering as a result.

¶ 3. On November 21, 2012, Paulk filed a medical malpractice complaint in the Perry County Circuit Court. The complaint named Lott, the hospital, and the Doctors Clinic as defendants. Paulk was represented by counsel. The defendants were served on March 14, 2013, and filed an answer on April 12, 2013.

¶ 4. There was no further action in the case until April 8, 2015, when the circuit clerk filed a motion to dismiss the case for failure to prosecute. On April 13, 2015, the defendants also moved to dismiss for failure to prosecute. The defendants’ motion stated that they had served discovery requests with their answer two years earlier but Paulk never provided responses. Paulk did not respond to either motion. The docket reflects four subsequent hearing notices, and apparently a hearing was held, but it was not transcribed and made a part of the record on appeal. On June 22, 2015, the circuit court granted the defendants’ motion to dismiss for failure to prosecute pursuant to Mississippi Rule of Civil Procedure 41(b).

¶ 5. On July 22, 2015, new counsel entered an appearance for Paulk and filed a notice of appeal. On November 12, 2015, the defendants filed a suggestion of death in this Court, which stated that Paulk had died on or about February 3, 2014. On November 30, 2015, counsel for Paulk filed a motion to substitute Paulk’s estate as the plaintifflappellant, which the Mississippi Supreme Court granted on January 7, 2016. The estate’s opening brief states that “[t]here is no allegation that [Paulk’s] death was related to the underlying cause of action.”

DISCUSSION

¶ 6. Mississippi Rule of Civil Procedure 41(b) authorizes a court to dismiss an action “[f]or failure of the plaintiff to prosecute.” “The power to dismiss for failure to prosecute is granted not only by Rule 41(b), but is part of a trial court’s inherent authority and is necessary for the orderly expedition of justice and the court’s control of its own docket.” Cox v. Cox, 976 So.2d 869, 874 (¶ 13) (Miss. 2008) (quotation marks omitted). “Because the law favors a trial of the issues on the merits, a dismissal for lack of prosecution is employed reluctantly.” Holder v. Orange Grove Med. Specialties, P.A., 54 So.3d 192, 196 (¶ 16) (Miss. 2010) (quoting Miss. Dep’t of Human Servs. v. Guidry, 830 So.2d 628, 632 (¶ 13) (Miss. 2002)). However, “this Court may uphold a Rule 41(b) dismissal when there is: (1) a record of dilatory or contumacious conduct by the plaintiff; and (2) a finding by this Court that lesser sanctions would not serve the interests of justice.” Id. at 197 (¶ 18). Moreover, our standard of review is abuse-of-discretion; therefore, on appeal from an order disr missing a case for failure to prosecute, “we must affirm the trial judge unless we find that he abused his discretion.” Hanson v. Disotell, 106 So.3d 345, 348 (¶ 13) (Miss. 2013) (emphasizing that we cannot reverse simply because “a reasonable trial judge very well might have denied the defendants’ motion to dismiss”).

¶ 7. Our Supreme Court has emphasized that the threshold question “is whether there is ‘a clear record of delay or contumacious conduct by the plaintiff[.]’ ” Holder, 54 So.3d at 198 (¶20) (quoting Cox, 976 So.2d at 875 (¶ 17)). Thus, “ ‘[d]e-lay alone may suffice’ for a dismissal under Rule 41(b). ‘Factors other than delay are not required.’” Id. (citation omitted) (quoting Cox, 976 So.2d at 875 (¶ 18)). The trial court and this Court may also consider “aggravating factors” such as “the extent to which the plaintiff, as distinguished from his counsel, was personally responsible for the delay, the degree of prejudice to the defendant, and whether the delay was the result of intentional conduct.” State ex rel. Hood v. Louisville Tire Ctr., Inc., 204 So.3d 1250, 1256 (¶ 16) (Miss. 2016) (quoting AT&T v. Days Inn of Winona, 720 So.2d 178, 181 (¶ 13) (Miss. 1998)). “The presence of an aggravating factor may serve to bolster or strengthen the case for a dismissal .... ” Holder, 54 So.3d at 200 (¶ 31). However, neither “contumacious conduct” nor an “aggravating factor” is required to support a Rule 41(b) dismissal. Louisville Tire Ctr., 204 So.3d at 1254 n.2 & (¶ 9).

¶ 8. We have no difficulty concluding that there is a clear record of delay in this case. No action was taken to prosecute the case after the complaint was filed in November 2012 until the case was dismissed for failure to prosecute thirty-one months later. Paulk did not respond to the defendants’ discovery requests, conduct any discovery of her own, respond to motions to dismiss the case, or even appear for the hearing on the defendants’ motion. The Supreme Court has deemed comparable delays sufficient to establish a “clear record of delay.” See, e.g., Louisville Tire Ctr., 204 So.3d at 1254 (¶ 11) (noting that the plaintiff “neither filed nor pursued anything for approximately three years”); Manning v. King’s Daughters Med. Ctr., 138 So.3d 109, 116 (¶ 21) (Miss. 2014) (finding that the plaintiff “fail[ed] to take any action in her case for two years after filing suit”); Hanson, 106 So.3d at 348 (¶ 12) (finding that the plaintiff “fail[ed] to take any action of record for four' years”). Moreover, the Supreme Court has held that a record of delay may be established by a plaintiffs failure to timely respond to discovery requests or a motion to dismiss or a plaintiffs significant delay in commencing discovery. Holder, 54 So.3d at 197 (¶ 19). Here, Paulk never responded to the defendants’ discovery requests or motion to dismiss and never pursued discovery. Finally, we note that the Supreme Court has held that “the fact that a plaintiffs sole activity was reactionary”—i.e., in response to a motion to dismiss—also “supports] a finding of a clear record of delay.” Hillman v. Weatherly, 14 So.3d 721, 727 (¶ 21) (Miss. 2009); accord Manning, 138 So.3d at 116 (¶ 21). Here, there was not even “reactionary” activity. Paulk did nothing in response to the motions to dismiss; her first action after- filing the complaint was to file a notice of appeal, thirty-days after the case had been dismissed.

¶ 9. On appeal, Paulk argues that the circuit court’s dismissal of her case was an abuse of discretion because there are no on-the-record findings of delay, contumacious conduct, or aggravating factors. Paulk also argues that there is no record evidence of contumacious conduct or aggravating factors. Finally, the estate argues that Paulk’s death excuses or justifies the delay in prosecuting the case. ¶10. Paulk never presented any of these arguments in the circuit court, so she is procedurally barred from raising them in this Court. Procedural bar notwithstanding, these arguments also lack merit. No action was taken in the case for thirty-one months after it was filed. The circuit court was not required to make an on-the-record finding of that obvious and undisputed fact. Moreover, even when a circuit court does not make specific findings, “this Court will assume that the trial judge made all findings of fact that were necessary to support his [ruling].” Watson v. Lillard, 493 So.2d 1277, 1279 (Miss. 1986).

¶ 11. As to the alleged lack of evidence of contumacious conduct and aggravating circumstances, we reiterate: “ ‘Delay alone may suffice’ for a dismissal under Rule 41(b). ‘Factors other than delay are not required.’ ” Holder, 54 So.3d at 198 (¶ 20) (citation omitted) (quoting Cox, 976 So.2d at 875 (¶ 18)). Thus, the absence of contumacious conduct or aggravating factors would not require reversal. But in any event, prejudice to the defendants—an aggravating factor—is evident because Paulk passed away without responding to the defendants’ discovery requests, so she will be unavailable to testify at trial or in a deposition. See Louisville Tire Ctr., 204 So.3d at 1256 (¶¶ 16-18) (prejudice to the defendant shown by the death of a key witness).

¶ 12. As to the estate’s contention that the delay following Paulk’s death should not be charged against it, we first note that over fourteen months elapsed between the filing of the complaint and the date of Paulk’s death. This Court has held “that a delay of one year ‘can clearly be seen as dilatory conduct.’” Shepard v. Prairie Anesthesia Assocs., 86 So.3d 922, 927 (¶ 21) (Miss. Ct. App. 2011) (quoting Hasty v. Namihira, 986 So.2d 1036, 1040 (¶ 17) (Miss. Ct. App. 2008)). Therefore, the circuit court would have been justified in dismissing the case based solely on the period of delay prior to Paulk’s death. Moreover, after Paulk’s death, the burden fell to Paulk’s estate to move the case forward if it desired to prosecute the claim. The estate’s failure to do so contributed to the clear record of delay in this case. Finally, we find it problematic that Paulk’s death was brought to the attention of this Court only because the defendants filed a suggestion of death twenty-one months after she had passed. When Paulk’s appellate counsel entered an appearance on her behalf and noticed an appeal, she either was unaware that her client had been dead for over a year or else failed to disclose that important fact to the circuit court and this Court. This only underscores the complete lack of attention paid to this case from its inception.

¶ 13. Paulk also argues that the circuit eourt abused its discretion by failing to make a specific finding “that lesser sanctions would not serve the interests of justice.” Holder, 54 So.3d at 197 (¶ 18). But the absence of such an express finding “does not require reversal.” Collins, 59 So.3d at 590 (¶ 25). “Although [the Supreme] Court has stated that it is ‘less likely* to affirm a Rule 41(b) dismissal if the record does not reflect that the trial court considered lesser sanctions, it is clear that the ultimate decision lies with [the appellate] [c]ourt.” Id.-, see Holder, 54 So.3d at 197 (¶ 19) (“[T]his Court may uphold a Rule 41(b) dismissal when there is ... a finding by this Court that lesser sanctions would not serve the interest of justice.” (emphasis added)). Possible “[l]esser sanctions may include ‘fines, costs, or damages against [the] plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings.’” Hanson, 106 So.3d at 347-48 (¶ 9) (quoting Holder, 54 So.3d at 198 (¶ 32)).

¶ 14. This Court has no difficulty concluding that lesser sanctions would not serve the interests of justice in this case. The clerk’s motion to dismiss, together with the defendants’ motion to dismiss, should have served “as a warning ... that the case needed to proceed.” Shepard, 86 So.3d at 928 (¶ 25) (quoting Hasty, 986 So.2d at 1041 (¶ 18)). That warning went entirely unheeded, as Paulk failed to respond to either motion or even appear at the hearing on the defendants’ motion. There is no reason to believe that “lesser sanctions” would be effective when the clear threat of dismissal fails to draw even a response or appearance from the plaintiff or plaintiffs counsel. Under the circumstances, lesser sanctions were not required. The circuit court did not abuse its discretion by dismissing the case. Therefore, we affirm.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF PERRY COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., NOT PARTICIPATING.

      . The circuit court docket sheet is consistent with this statement. It reflects that a notice of service of discovery was filed on the same day as the defendants’ answer, but there is no indication on the docket that Paulk ever served responses. "[U]nless ordered by the court, discovery papers need not be filed until used with respect to any proceeding. M.R.C.P. 5(d). Thus, "common practice before many Mississippi trial courts is to simply file a notice of service of discovery or discovery responses with the clerk, rather than filing discovery.” 1 Jeffrey Jackson, Mississippi Civil Procedure § 11:15 (2016); see also McIntosh v. Victoria Corp., 877 So.2d 519, 524 (¶¶ 17-18) (Miss. Ct. App. 2004).

      . The appendix to the defendants’ appellate brief includes correspondence indicating Paulk’s attorney received notice of the hearing and that the hearing was rescheduled at least once at his request. We do not rely on these documents, as they are not a part of the circuit court record or the record on appeal, and they are not necessary to our decision.

      . The appendix to the defendants' appellate brief includes a January 18, 2011 letter that this attorney sent to the hospital regarding Paulk’s claim. Thus, although she did not enter her appearance as counsel of record until July 2015, it does not appear that she was entirely new to the case. As with the other correspondence in the defendants’ appendix, this document is not part of the record on appeal, and we do not rely on it.

      . For simplicity, we refer to the plaintifiyap-pellant as "Paulk” except when referencing the estate specifically.

      . See Collins v. Koppers, Inc., 59 So.3d 582, 589 (¶ 20) (Miss. 2011) ("[The plaintiff] argues that dismissal was improper because the record does not reflect delay or contumacious conduct, the trial judge did not consider lesser sanctions, and no aggravating factors are present. ... [She] never raised these arguments before the trial court, and she is therefore procedurally barred from raising them before this Court.”).

      . We note that the filings in this Court regarding Paulk's death do not include any documentation that an estate has been opened on behalf of Paulk. The defendants merely suggested her death, and Paulk's appellate counsel then move "to substitute the Estate of Pataelain Paulk as the Plaintiff/Appellant.” The motion stated that "Paulk is now deceased” but failed to identify the administrator or executor of the estate or attach any order of a chancery court opening an estate or issuing letters of administration or testamentary. Ordinarily, if “litigants wish to pursue a claim on behalf of the estate of the deceased, such estate must, of course, be opened and administered through the chancery court.” Delta Health Grp., Inc. v. Estate of Pope ex rel. Payne, 995 So.2d 123, 125 (¶ 12) (Miss. 2008) (quoting Long v. McKinney, 897 So.2d 160, 174 (¶ 60) (Miss. 2004)). And, ordinarily, the administrator or executor is substituted as the named plaintiff. See Miss. Code Ann. § 91-7-237 (Rev. 2013). We can only assume that an estate has been opened and that it has an administrator or executor, since counsel filed a motion asking that Paulk’s estate be substituted. And since the Supreme Court granted that motion before the case was assigned to this Court, we proceed and decide the case on that assumption.