author: ROBERTS, J.,

text:
    Wendy HALL, Appellant v. GREEN TREE SERVICING, LLC, Successor by Merger to Walter Mortgage Company, LLC and W. Stewart Robison, Appellees.
    No. 2013-CA-01107-COA.
    Court of Appeals of Mississippi.
    March 24, 2015.
    Alfred Peter Cutturini, attorney for appellant.
    W. Stewart Robison, McComb, Alton Lamar Watts, Jackson, attorneys for ap-pellees.
    Before IRVING, P.J., ROBERTS and MAXWELL, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. On September 10, 2012, a foreclosure sale of a piece of residential property located in Sunflower County, Mississippi, was held on the front steps of the Sunflower County Courthouse, with Green Tree Servicing LLC, successor by merger to Walter Mortgage Company (referred to as Green Tree), buying the property. Wendy Hall and James Thomas filed a complaint to set aside the foreclosure sale on the grounds that the property description was incorrect and that W. Stewart Robison was not the current trustee; thus he did not have the authority to sell the property. The Sunflower County Chancery Court held that the foreclosure sale should not be set aside since Robison was a proper trustee and that there was no significant error in the property description to warrant setting aside the sale. Hall raises the same issues on appeal, but finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On February 9, 1993, Hall and Thomas executed a deed of trust in favor of Jim Walter Homes Inc. encumbering a piece of real property located in Sunflower County. Attached to the deed of trust was the following property description:

Commence at the S/W corner of Block 6 of the Mclnnis First Addition to the Town of Inverness, and run West to the centerline of U.S. Highway No. 49; thence South along the centerline of said highway 938.50 feet; thence North 89 Degrees 19 Minutes East: 34.50 feet to the east right of way of said highway and the point of beginning of the herein described parcel of land; thence continue North 89 Degrees 19 Minutes East 70.0 feet; thence South 87 Degrees 41 Minutes East 14.50 feet; thence South 00 Degrees 12 Minutes East along the top of said ditch 40.4 feet to a grader blade in the center of an east-west ditch; thence North 85 Degrees 36 Minutes West along the center of the east-west ditch 109.5 feet to a grader blade 34.5 feet east of the centerline of the highway; thence North 104.5 feet to the point of beginning, being a part of Block 8, Mclnnis First Addition according to the official map of Inverness, Mississippi, drawn by L.E. Claiborne, April 7, 1953.

The deed of trust named Robison as trustee. The deed of trust was assigned multiple times, but ultimately ended with a June 15, 2012 assignment to U.S. Bank N.A. as trustee on behalf of Mid-State Trust IV.

¶ 3. Hall and Thomas defaulted on the deed of trust, so in August 2012, Robison, as trustee, began the foreclosure process. Robison published the notice of a foreclosure sale in the local newspaper with an identical property description as above, except that the word “line” from “centerline” was omitted in one instance. So the property description in the notice of sale read:

Commence at the S/W corner of Block 6 of the Mclnnis First Addition to the Town of Inverness, and run West to the centerline of U.S. Highway No. 49; thence South along the centerline of said highway 938.50 feet; thence North 89 Degrees 19 Minutes East: 34.50 feet to the east right of way of said highway and the point of beginning of the herein described parcel of land; thence continue North 89 Degrees 19 Minutes East 70.0 feet; thence South 87 Degrees 41 Minutes East 14.50 feet; thence South 00 Degrees 12 Minutes East along the top of said ditch 40.4 feet to a grader blade in the center of an east-west ditch; thence North 85 Degrees 36 Minutes West along the center of the east-west ditch 109.5 feet to a grader blade 34.5 feet east of the centerline of the highway; thence North 104.5 feet to the point of beginning, being a part of Block 8, Mclnnis First Addition according to the official map of Inverness, Mississippi, drawn by L.E. Claiborne, April 7, 1953.

(Emphasis added). On September 10, 2012, the foreclosure sale was held, and the property was sold to Green Tree. On September 24, 2012, the trustee’s deed conveying the property to Green Tree was recorded in Sunflower County.

¶ 4. On March 1, 2013, Hall and Thomas filed a complaint requesting that the foreclosure sale be set aside and seeking damages and injunctive relief. In their complaint, they alleged that the notice of sale was defective because it did not contain an accurate property description due to the omission of the word “line” from the description. Additionally, they alleged that Robison was no longer the trastee due to the deed of trust’s assignment to U.S. Bank; therefore, he did not have the authority to conduct the foreclosure sale. Also, they claimed that the foreclosure sale was defective because the notice of sale did not provide the street address for the Sunflower County Courthouse, which was a deterrent for those bidders who did not know where it was. Lastly, Hall and Thomas claimed that Green Tree intentionally inflicted emotional distress upon them and their families. On the same day, Hall and Thomas also filed a motion for a temporary restraining order and a preliminary injunction requesting that Green Tree be enjoined from taking possession of the property,

¶ 5. In them separate answers, Green Tree and Robison both denied Hall and Thomas’s allegations. Robison also argued that the complaint should be dismissed because it was barred by the doctrine of res judicata, as a default judgment was entered against Hall and Thomas on October 6, 2012, in the Sunflower County Circuit Court. According to the final default judgment filed on February 19, 2013, Green Tree filed suit to recover the property from Hall and Thomas, who failed to plead or otherwise defend their default; therefore, the circuit court ordered the sheriff or another lawful officer to remove Hall and Thomas, and their possessions, from the property. Shortly thereafter, Hall and Thomas instituted the present suit in the chancery court.

¶ 6. The chancery court held a hearing on March 5, 2013, on Hall and Thomas’s motion for a temporary restraining order, which it subsequently denied because Hall testified at the hearing that she and her children would be able to move in with her boyfriend; thus, she would not suffer irreparable injury, loss, or damage. The chancery court held Green Tree’s and Ro-bison’s motions for dismissal in abeyance. Then, on May 28, 2013, the chancery court heard arguments on the merits. After hearing the evidence, including two expert witnesses’ testimonies as to what effect, if any, the omission of the word “line” would make in the property description, the chancery court found in favor of Green Tree and Robison, and it dismissed Hall and Thomas’s complaint. The final judgment was entered on June 5, 2013.

¶ 7. Hall timely filed her notice of appeal on June 26, 2013. On appeal, she raises the following claims:

I. Whether the [chancery] court erred as a matter of law in finding the omission of the word “line” from the Deed of Trust, Notice of Sale, and Trustee’s Deed has no effect on the validity of the legal description and the ensuing foreclosure sale in light of [the appellate] court’s requirement for a correct legal description.
II. Whether the [chancery] court erred as a matter of law in finding that the foreclosure sale conducted by the alleged Trustee, Appellee Robi-son, was valid in all respects after also finding Plaintiffs indebted to another Trustee, U.S. Bank, N.A., as Trustee on behalf of Mid-State Trust IV.

STANDARD OF REVIEW

¶ 8. If the chancery court’s findings of fact are based on substantial evidence and the findings are not an abuse of discretion, manifestly wrong, clearly erroneous, or the result of the application of an erroneous legal standard, then this Court will not disturb the chancery court’s findings. Biglane v. Under The Hill Corp., 949 So.2d 9, 13-14 (¶ 17) (Miss.2007) (quoting Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996)). We review questions of law utilizing the de novo standard. Id. at 14 (¶ 17).

ANALYSIS

I. Validity of the Property Description

¶ 9. Hall’s first issue on appeal is that the chancery court erred in finding that the omission of the word “line” from a portion of the legal property description was harmless and that the omission had no impact on the foreclosure sale’s validity. According to Hall, the omission of “line” from “centerline” means that the property description did not correctly describe the property intended to be sold at foreclosure. While Green Tree’s two expert witnesses testified that the omission of “line” would make no difference in the property description’s validity, as the description still accurately describes the property, Hall claims that this rationale is based on a surveyor’s opinion and not what a “layman of average intelligence and business prudence” would conclude. Hall says that “[a] centerline to a layman may indicate there are left and right lines, and a center may indicate a point where he [ (the layman) ] reaches with no expectation of moving beyond that point.” Hall further claims that the average layman would be deterred from bidding on the property because the omission of “line” would make it difficult to ascertain what property was being sold.

¶ 10. The Mississippi Supreme Court has held that purpose of a notice of a foreclosure sale is “to advise the public of what is to be sold, and the time when, and place where, and the terms upon which it may be bought.” Griffin v. Land, 214 Miss. 557, 567, 59 So.2d 290, 293-94 (1952) (citation omitted). Put another way, “the essentials of a notice of sale under a trust deed are ... a statement of the time, place, and terms of sale, and such a description of the property to be sold as, if read by persons familiar with the neighborhood, will advise them of what is to be sold....” Id. However, even if the notice of sale contains all the essentials, the supreme court has noted that a notice of sale may still be fatally defective if a “layman of average intelligence and business prudence” would be deterred from bidding on the property, as the bid would be considered unsafe. Fed. Land Bank v. Collom, 201 Miss. 266, 277, 28 So.2d 126, 128 (1946). Furthermore, in regard to errors in property descriptions, the supreme court explained in Seal v. Anderson, 235 Miss. 249, 254, 108 So.2d 864, 865 (1959):

The precise point of our decision is whether or not the description contained in the deed of trust and in the notice of sale is so fatally defective as to render the deed of trust and the foreclosure thereof void; that is to say whether or not the description created a patent ambiguity that cannot be aided by proof....

¶ 11. We face the same issue explained in Seal of whether a property description is so fatally defective as to set aside the foreclosure. We find that the property description is not fatally defective, as it adequately describes the property being sold. Hall disputes the testimonies of two expert witnesses at trial that there is no difference between “center” and “center-line” when surveying property, but she provides no proof that the property would be any different if measured from the “center” of the ditch as opposed to the “centerline” of the ditch. While the definition of “center” and “centerline” may differ in the dictionary, Hall has failed to demonstrate how an average person, in inspecting the property pursuant to the property description omitting “line,” would be unable to ascertain the property being sold or would be deterred from bidding on the property.

¶ 12. Therefore, we find this issue to be without merit.

II. Trustee

¶ 13. Second, Hall contends that Robison was no longer the trustee due to an assignment of the deed of trust; therefore, he lacked the authority to conduct the foreclosure sale.

¶14. Mississippi Code Annotated section 89-5-45 (Rev.2011) provides that the substitution of a trustee “shall appear of record in the office of the chancery clerk of the county where the land is situated,” and be “spread at large upon the record before the first advertisement or notice of sale shall have been posted or published!.]” The initial deed of trust named Robison as trustee, and the record is void of any substitution of a trustee. We note that Hall has cited no authority to support her contention that the assignment of a deed of trust automatically removes the trustee on the initial deed of trust, especially without the proper substitution of a trustee pursuant to section 89-5-45. See M.R.A.P. 28(a)(6); Little v. Norman, 119 So.3d 382, 386 (¶ 14) (Miss.Ct.App.2013) (“The failure to cite authority in support of arguments operates as a procedural bar on appeal.”).

¶ 15. We find this issue to be without merit.

¶ 16. THE JUDGMENT OF THE CHANCERY COURT OF SUNFLOWER COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . While Thomas did participate in the trial, he did not file a notice of appeal; therefore, he is not a party to the present appeal.

      . In Seal, 235 Miss. at 252, 108 So.2d at 865, the Seals sought to cancel a deed of trust and foreclosure proceeding on the basis that the property description in the deed of trust and notice of sale described the property as “Tp. 1” instead of "Tp. 1 S.” Government survey records presented at trial showed that "Tp. 1" could not be located, as the property should have been described as "Tp. 1 S ” or "Tp. 1 N, R 13 W." Id. at 253, 108 So.2d at 865. The supreme court agreed, and it found that the property was not adequately described in the deed of trust or notice of sale. Id. at 257, 108 So.2d at 867 ("[W]e find from the proof that there is a Township 1 N and a Township 1 S, but there is not 'Township 1’ in Forrest County.”).


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    Deirdre and Barry SWAFFORD, Appellants v. Fazal MANEJWALA, M.D. and Memphis OB-GYN Associates, Appellees.
    No. 2013-CA-01508-COA.
    Court of Appeals of Mississippi.
    March 24, 2015.

      Brian Austin Hinton, Charlie Baglan, P. Sharkey Burke Jr,, Ridgeland, attorneys for appellants.
    Clinton M. Guenther, Tommie G, Williams, Greenwood, attorneys for appel-lees.
    Before GRIFFIS, P.J, ROBERTS and FAIR, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Deirdre .and Barry Swafford appeal the summary judgment that dismissed their medical-malpractice claim, because the Swaffords failed to designate a medical-expert witness. We find no error and affirm.

FACTS

¶ 2, In November 2010, Deirdre sought the services of Dr. Fazal Manejwala, at Memphis OB/GYN Associates (“MOA”), for a hysterectomy and bilateral salpingo-oophorectomy (“TAHBSO”). Dr. Ma-nejwala performed the surgery laparoscop-ically, and he was assisted by Dr. Alok Kumar. Deirdre claimed that she was injured during the surgery.

¶ 3. Deirdre had a second surgery, to repair her bowel, that was performed by Dr. Daniel Fore, with General Surgery of Southaven, LLC (“GSS”). Dr. Manejwala assisted in this surgery. Deirdre claimed that this surgery was not properly performed.

¶ 4. On January 9, 2012, the Swaffords filed a complaint for medical malpractice against Dr. Kumar, Dr, Fore, GSS, Dr. Manejwala, and MOA.

¶5. On November 2, 2012, the court entered an agreed scheduling order. The order provided that the Swaffords’ expert witnesses) be designated no later than April 1, 2013. The Swaffords were unable to designate an expert by April 1, 2013, and they filed a motion to amend the scheduling order. They requested a ninety-day extension on all deadlines. In response, Dr. Manejwala and MOA asked the court to deny the extension and filed a motion for summary judgment.

¶ 6. The Swaffords retained an expert witness, Dr. Dave M. David, eighty days after they filed the motion for additional time. A week later, the Swaffords scheduled a hearing on their motion for additional time.

¶ 7. On June 28, 2013, the court heard the motion for additional time and the motion for summary judgment. In addition, that day, Dr. Manejwala and MOA filed a motion to strike Dr. David’s affidavit. The court struck the affidavit and found that “sufficient cause” did not exist to extend the deadline. The court also concluded that even if the expert-witness affidavit was allowed, it failed to establish the Swaffords’ claim of medical negligence. As a result, with no expert witness, the court granted summary judgment and entered a final judgment. The Swaffords appeal the final judgment as to Dr. Ma-nejwala and MOA, and they do not appeal the grant of summary judgment in favor of Dr. Fore and GSS.

STANDARD OF REVIEW

¶8. The grant of a motion for summary judgment is reviewed de novo. Karpinsky v. American National Insurance Company, 109 So.3d 84, 88 (¶ 9) (Miss.2013). We view the evidence “in the light most favorable to the party against whom the motion has been made.” Id. The supreme court has held:

Summary judgment is appropriate and shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to [a] judgment as a matter of law. Importantly, the party opposing summary judgment may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in [Mississippi Rule of Civil Procedure 56], must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, will be entered against him.
This Court has explained that in a summary judgment hearing, the burden of producing evidence in support of, or in opposition to, the motion is a function of Mississippi rules regarding the burden of proof at trial on the issues in question. The movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to [a] judgment as a matter of law. The movant bears the burden of production if, at trial, he would bear the burden of proof on the issue raised. In other words, the movant only bears the burden of production where [the movant] would bear the burden of proof at trial. Furthermore, summary judgment is appropriate when the non-moving party has failed to make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial.

Id. at 88-89 (¶¶ 10-11) (internal quotation marks and citations omitted).

ANALYSIS

¶ 9. The Swaffords present one issue. They argue that the trial court erred in denying their motion to amend and granting Dr. Manejwala and MOA’s motion to strike and motion for summary judgment. In short, they claim that the supreme court has ruled that every reasonable alternative means of eliminating prejudice and doling out sanctions should be explored before ordering the exclusion of evidence as a sanction for a discovery violation. Mariner Health Care, Inc. v. Estate of Edwards ex rel. Turner, 964 So.2d 1138, 1152 (¶ 37) (Miss.2007).

¶ 10. Here, the Swaffords argue that the summary judgment resulting from the exclusion of the expert’s affidavit and the denial of the motion to amend the scheduling order is simply too harsh a penalty. They claim that there was no trial setting, and they had asked for an extension of time to designate experts within the original time prescribed for designation, not after. Thus, the Swaffords assert that the dismissal with prejudice without allowing additional time was error.

¶ 11. We will divide our analysis into two separate issues.

I. Timeliness of the Swaffords’ Expert-Witness Affidavit

¶ 12. The Mississippi Supreme Court has stated:

Discovery responses are to be supplemented seasonably pursuant to Rule 26(f) of the Mississippi Rules of Civil Procedure. It has been held that “seasonably does not mean several months later. It means immediately.” West v. Sanders Clinic for Women, P.A., 661 So.2d 714, 721 (Miss.1995). Additionally, “seasonableness must be determined on a case[-]by[-]case basis looking at the totality of the circumstances surrounding the supplemental information the offering party seeks to admit.” Blanton v. Board of Supervisors, 720 So.2d 190, 195 (Miss.1998).

Bowie v. Montfort Jones Mem’l Hosp., 861 So.2d 1037, 1041 (¶ 10) (Miss.2003).

¶ 13. Here, the court instituted a scheduling order. The order mandated the Swaffords to designate their expert witnesses by April 1, 2013. The order also provided that deadlines “may be modified only by written consent of counsel for all parties with permission of the Court or the Order of the Court upon sufficient cause.”

¶ 14. On the day of their expert-designation deadline, the Swaffords filed a motion to amend the scheduling order, which requested a ninety-day extension on all deadlines. In this motion, the Swaffords failed to cite any reason for their delay in either designating an expert or requesting an extension, and failed to show cause as to why the extension should be granted.

¶ 15. At the hearing, the Swaffords told the court they could not meet the scheduling-order deadline because the expert they retained unexpectedly retired. They did not reveal the name of that retired expert or present any evidence to support this contention. Eighty days later, the Swaf-fords obtained an affidavit from an expert witness, Dr. David. They submitted Dr. David’s affidavit to the court, but they never filed an expert designation.

¶ 16. The circuit judge had considerable discretion to consider whether the Swaffords presented sufficient cause to modify the scheduling order. Id. at 1042 (¶ 14). “The discovery orders of the trial court will not be disturbed unless there has been an abuse of discretion.” Dawkins v. Redd Pest Control Co., 607 So.2d 1232, 1235 (Miss.1992).

¶ 17. In Moore v. Delta Regional Medical Center, 23 So.3d 541, 547 (¶ 20) (MissCt.App.2009), an attorney failed to timely designate an expert witness. The court found the attorney’s attempt to blame his own expert’s tardiness as part of his failure to comply did not rise to good cause, excusable neglect, or special circumstances. Id.

¶ 18. Here, the circuit court judge concluded:

The [Swaffords’] eleventh-hour motion to amend, along with their unexplained delay in setting the matter for hearing, their failure to show sufficient cause for the extension, and their failure to designate an expert within the additional time they requested to do so, all demonstrate a lack of excusable neglect and fall very short of demonstrating a good faith effort to comply with the scheduling order. This Court is accordingly not convinced that “sufficient cause” exists to extend the deadline, as is required by the agreed scheduling order.

Therefore, the court determined that the Swaffords were without sufficient cause and denied the Swaffords’ motion to amend the scheduling order. We find that this decision was not an abuse of discretion.

II. Sufficiency of the Swaffords’ Expert Testimony

¶ 19. Further, the court found that even if the untimely expert testimony were allowed, it failed to establish a prima facie case of medical negligence. The expert needed to identify and articulate: (1) the standard of care, (2) a breach of the standard of care, (3) a causal connection between the breach and the injury, and (4) the extent of the plaintiffs damages. McCaffrey v. Puckett, 784 So.2d 197, 206 (¶ 33) (Miss.2001). This Court has held that in a medical-malpractice claim, .“expert testimony must be used.” Posey v. Burrow, 93 So.3d 905, 907 (¶ 8) (Miss.Ct.App.2012) (quoting Barner v. Gorman, 605 So.2d 805, 809 (Miss.1992)). Further, “[n]ot only must this expert identify and articulate the requisite standard that was not complied with, the expert must also establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries.” Id. (citation omitted).

¶ 20. Dr. David’s affidavit stated:

[I]t is my medical opinion that Dr. Ma-nejwala fell below the standard of his care in his care and treatment of [Deirdre] by not converting the laproscopic procedure into an open procedure, unless he possessed extensive experience and skill in performing this procedure. ... It is further my opinion to a reasonable degree of medical certainty that without the extensive skill and experience in doing such tedious dissection, such a deviation from the standard of care would be a direct and proximate cause of [Deirdre’s injuries].

After the review of Dr. David’s affidavit, the court found:

[T]he [Swaffords] have offered no proof, expert or otherwise, which would establish that Dr. Manejwala does not, in fact, possess such “extensive skill and experience” [;] the [Swaffords] have failed to establish a prima facia case of medical malpractice. In other words, the [Swaf-fords] claim [Dr. Manejwala] violated the standard of care if he was not qualified without presenting any evidence to show that he was not qualified.

¶21. We find no error in the court’s conclusion that there were no facts set forth in Dr. David’s affidavit that would establish that Dr. Manejwala breached his standard of care when performing the surgery. To defeat a motion for summary judgment, more than general allegations are needed. Drummond v. Buckley, 627 So.2d 264, 267 (Miss.1993). There must be specific facts showing that issues exist which necessitate a trial. Id. Here, because the affidavit only contained general allegations, we find no error in the court’s decision to grant summary judgment.

¶ 22. The Swaffords also argue that summary judgment is too harsh of a sanction for failing to obey the scheduling order. However, “our trial judges are afforded considex-able discretion in managing the pre-trial discovery process in their courts, including the entry of scheduling orders setting out various deadlines to assure orderly pre-trial preparation x-esulting in timely disposition of the cases.” Bowie, 861 So.2d at 1042 (¶ 14). Further, “[o]ur trial judges also have a right to expect compliance with their orders, and when parties and/or attorneys fail to adhere to the provisions of these orders, they should be prepared to do so at their own peril.” Id.

¶ 23. Accoi-dingly, we find that this issue is without merit. Therefore, the summary judgment in favor of Dr. Manejwala and MOA is affirmed.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.


text:
    SOUTHEASTERN AUTO BROKERS, Appellant v. Lucious GRAVES, Appellee.
    No. 2014-WC-00974-COA.
    Court of Appeals of Mississippi.
    April 14, 2015.

      Chadwick Lester Shook, Hattiesbui-g, attorney for appellant.
    Chase Ford Morgan, Hattiesburg, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and FAIR, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. The Mississippi Workers’ Compensation Commission ruled that Lucious Graves was injured during the course and scope of his employment with Southeastern Auto Brokers. As a result, the Commission ordered Southeastern to pay Graves’s workers’ compensation benefits. Southeastern challenges the Commission’s ruling, and argues: (1) Graves was an independent contractor, not an employee, and (2) even if Graves qualified as an employee, workers’ compensation laws did not apply. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2006, Graves started to work for Nick Crechale. Crechale owned and operated three used-car businesses, Southeastern Auto Brokers, Inc., Southeastern J & P Auto Brokers, LLC, and Discount Car Lot, Inc. (Unless specifically noted, all three entities will be referred to as “Southeastern.”) Graves’s employment primarily included auto-detailing work. Graves also performed odd jobs around the auto lots, such as operating heavy equipment and hauling trash. He also worked on Crec-hale’s farm.

¶ 3. On November 10, 2010, Graves fell from a trailer while offloading vehicles for Southeastern. His little (or “pinky”) finger was amputated. Graves underwent surgery and treatment for the amputation. However, due to his temporary disability, Graves was not able to return to work for several months. Graves attained maximum medical improvement on May 18, 2011.

¶ 4. Graves sought to have Southeastern pay for the medical bills and lost wages during the time of his disability. Southeastern refused. On September 22, 2011, Graves filed a petition to controvert with the Commission.

¶ 5. Southeastern responded and argued that Graves was not an employee of Southeastern. Southeastern claimed Graves was an independent contractor. Southeastern also claimed that the Mississippi Workers’ Compensation Act did not apply because Southeastern did not employ five or more employees as required.

¶ 6. After a hearing, Administrative Judge Robert J. Arnold III ruled for Graves. Judge Arnold found that Graves was an employee, not an independent contractor. Judge Arnold also found Southeastern regularly employed five or more employees, which subjected it to workers’ compensation laws. Judge Arnold’s order, dated August 29, 2013, required Southeastern pay Graves’s medical bills and compensation for his temporary disability, from the time of the accident through his maximum medical improvement.

¶7. Southeastern appealed Judge Arnold’s decision. The Commission adopted Judge Arnold’s findings, and made additional findings. Based on its findings, the Commission affirmed the order. Southeastern has appealed the Commission’s decision.

STANDARD OF REVIEW

¶ 8. “The decision of the Commission will be reversed only if it is not supported by substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law.” Concert Sys. USA, Inc. v. Weaver, 33 So.3d 1186, 1188 (¶ 10) (Miss.Ct.App.2010) (citing Weatherspoon v. Croft Metals, Inc., 853 So.2d 776, 778 (¶ 6) (Miss.2003)). When the issue involves a question of law, however, the review is de novo. Davis v. Clarion-Ledger, 938 So.2d 905, 907 (¶ 5) (Miss.Ct.App.2006) (citing Shelby v. Peavey Elecs. Corp., 724 So.2d 504, 506 (¶ 8) (Miss.Ct.App.1998)).

ANALYSIS

I. Whether the administrative judge correctly determined Graves ivas an employee rather than an independent contractor.

¶ 9. Southeastern claims that Graves did not qualify as an employee. “[The Mississippi Supreme Court] has stated that the issue of whether an individual is an employee or independent contractor is an issue of law.” Id. at 907-08 (¶ 5). However, “[i]f there is substantial evidence to support the Commission, absent an error of law, this Court must affirm. On the other hand, where the Commission has misapprehended the controlling legal principles, we will reverse, for our review in that event is de novo.” Shelby, 724 So.2d at 506 (¶ 8) (quoting Smith v. Jackson Constr. Co., 607 So.2d 1119, 1125 (Miss.1992)). Therefore, absent any misapplication of law, the review remains one for substantial evidence.

¶ 10. Under the Workers’ Compensation Act, an employee is “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). In contrast, 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.

Miss.Code Ann. § 71-3-3(r) (Rev.2011). The determination of whether one is an employee or an independent contractor rests in well-settled law.

¶ 11. “This Court has acknowledged that a contract of hire is required to meet the definition of ‘employee’ as defined by [the] Mississippi Code.” Hugh Dancy Co. v. Mooneyham, 68 So.3d 76, 80 (¶ 8) (Miss.Ct.App.2011). “The elements of a contract for hire are mutual consent, consideration, and right of control.” Mathis v. Jackson Cnty. Bd. of Sup’rs, 916 So.2d 564, 569 (¶ 12) (Miss.Ct.App.2005) (citing Walls v. N. Miss. Med. Ctr., 568 So.2d 712, 715 (Miss.1990)). A contract for hire can either be express or implied. Id. (citing Miss.Code Ann. § 71—3—3(d)).

¶ 12. Mutual consent means a “meeting of the minds of both parties to a contract; the fact that each agrees to all the terms and conditions, in the same sense and with the same meaning as the others.” Id. at (¶ 13) (citing Black’s Law Dictionary, 6th ed.1991). In this case, Graves and Southeastern actually contracted for Graves to work.

¶ 13. The contract categorized Graves as an independent contractor, and though Graves stated he did not know the contract named him as an independent contractor, he did understand the contract constituted a work agreement. Even if no mutual consent occurred with regard to the exact language of the contract, a contract for hire may be implied, which allows for implied mutual consent. Therefore, Graves and Southeastern agreed on a work arrangement, and both parties consented to the agreement.

¶ 14. The second requirement for a contract for hire, consideration, forms part of this agreement between Southeastern and Graves. Consideration is “(a) an act other than a promise, or (b) a forbearance, or (c) the creation, modification or destruction of a legal relation, or (d) a return promise, bargained for and given in exchange for the promise.” Id. at (¶ 15) (citing Marshall Durbin Food Corp. v. Baker, 909 So.2d 1267, 1273 (¶ 14) (Miss.Ct.App.2005)). In this agreement, Graves promised to perform work for Southeastern, and Southeastern promised to compensate Graves through an hourly wage. Thus, Graves and Southeastern formed an agreement with adequate consideration for a contract for hire.

¶ 15. The final element, the right to control, forms the foundation of the employer-employee relationship. “The supreme court has held that ‘the traditional test of the employer-employee relationship is the right of the employer to control the details of the work.’ ” Weaver, 33 So.3d at 1189 (¶ 13) (quoting Goolsby Trucking Co. v. Alexander, 982 So.2d 1013, 1024 (¶ 31) (Miss.Ct.App.2008)). “The right of control, rather than the fact that an employer exercises that control, determines the status of parties as employer and employee for compensation purposes,” Mathis, 916 So.2d at 570 (¶ 19) (citation omitted). “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, 938 So.2d at 908 (¶ 6) (quoting Shelby, 724 So.2d at 507 (¶ 13)).

¶ 16. The Commission found that Southeastern required Graves to work every day, and Graves exclusively worked for Southeastern. Crechale instructed Graves to maintain his hours by punching a time-card, and Graves received an hourly compensation for all work he completed for Southeastern. Graves received cash payments for additional work on Crechale’s farm and for the Crechale family.

¶ 17. Further, Southeastern provided all of the equipment and chemicals used in the tasks performed by Graves. The Commission also determined that Crechale and his sons directed Graves in which tasks to complete, and Southeastern enjoyed the right to fire Graves at any time. Based on these factors, the Commission ruled Graves was as an employee.

¶ 18. Southeastern has argued throughout this matter that other evidence weighed in favor of a finding of independent-contractor status. Southeastern pointed to the fact that Graves signed a contract declaring himself an independent contractor. Southeastern also showed that Graves received 1099 tax forms for contract work rather than W-2 forms commonly used for employees. However, the Commission ruled that Southeastern used the contract and the 1099 forms solely for tax purposes, which did not prove independent-contractor status for workers’ compensation purposes.

¶ 19. The Commission made a clear finding based upon a proper application of the law, and found that the factor of the right of control weighed in favor of treating Graves as an employee. Based on the findings of the Commission and this Court’s review, the substantial evidence supports a finding that Southeastern employed Graves as an employee rather than an independent contractor. We find the Commission’s decision, based on the proper application of law, is supported by the substantial evidence, and not arbitrary or capricious. For these reasons, we affirm the Commission’s finding of Graves’s employee status.

II. Whether Southeastern employed the requisite number of employees that would subject it to workers’ compensation laws.

¶20. Next, Southeastern claims that even if Graves acted as an employee rather than an independent contractor, Southeastern lacked the requisite number of employees that would require compliance with workers’ compensation laws. The Workers’ Compensation Act applies to Southeastern if it “[had] in service five (5) or more workmen or operatives regularly in the same business or in or about the same establishment under any contract of hire, express or implied.” Miss.Code Ann. § 71-3-5 (Rev.2011).

¶ 21. Graves argued that Southeastern regularly employed more than five individuals in 2010. Crechale countered that he did not need more than four employees to operate his regular business. Crechale also asserted that Southeastern Auto Brokers, Inc., J & P Southeastern Auto Brokers, LLC, and Discount Car Lot, Inc., operated as three distinct entities. In fact, Crechale maintained that none of the entities employed five or more workers.

¶22. However, the Commission found that the three entities operated essentially as one entity engaged in a unity of purpose, which meant employees of all three entities counted in determining the requisite number of employees for the Act. When Graves’s injury occurred, the Commission determined that Southeastern regularly employed five or more employees. Further, the Commission concluded that Crechale’s sons, Paul, Alex, and John; his daughter, Elizabeth; Nathan Griffith; Percy Jones; and Graves all worked for Southeastern at that time. Although the parties dispute whether Elizabeth regularly worked for Southeastern, the parties do not contest that John, Alex, Paul, Nathan, Percy, and Graves all worked for Southeastern.

¶ 23. Under section 71-3-5, an employee is one who is under either an express or implied contract for hire. Miss.Code Ann. § 71-3-5. A contract for hire requires mutual consent, consideration, and right of control. See Mooneyham, 68 So.3d at 80 (¶ 8); Mathis, 916 So.2d at 569 (¶ 12). Thus, Paul, Alex, and John count as employees due to implied contracts for hire. The three men worked under an agreement of compensation, which they received from a corporate account shared by all three entities. Although Paul, Alex, and John acted as executive officers, they did not have a controlling interest in the separate entities. As a result, each entity was subject to the control of Crechale.

¶ 24. Southeastern further asserts that while Crechale, Paul, Alex, and John worked for Southeastern and J & P, they were all officers of J & P, which exempted them from coverage under the Act. The Act provides an exception for executive officers of a corporation in that:

Every executive officer elected or appointed and empowered in accordance with a charter and bylaws of a corporation, other than nonprofit charitable, fraternal, cultural, or religious corporations or associations, shall be an employee of such corporation under this chapter, provided that said executive officer may reject said coverage by giving notice in writing to the carrier of this election not to be covered as an employee.

Miss.Code Ann. § 71-3-79 (Rev.2011). “While under section 71-3-79 an executive officer can elect to exclude himself from workers’ compensation insurance coverage, this exclusion must be in writing.” Harper ex rel. Harper v. Banks, Finley, White & Co. of Miss., 136 So.3d 462, 465-66 (¶ 13) (Miss.Ct.App.2014).

¶ 25. The Commission found that Southeastern employed at least five people at the time of Graves’s injury. There was no evidence that any of the officers had elected to opt out of coverage in writing, nor that there was a policy in place at all. Southeastern contends that the officers did not need to opt out because the officers served as members of a limited-liability company (LLC), which differed from the procedure for a corporation detailed in section 71-3-79.

1126. According to Southeastern, officers in an LLC must specifically opt into coverage rather than opt out. Southeastern relies on Sullivan v. Sullivan, 192 So.2d 277, 280 (Miss.1966), for this proposition. However, an LLC is an incorporated entity distinct from the partnership present in Sullivan.

¶ 27. In Weaker, this Court found that officers of a corporation who paid their house and car notes from the corporate account were employees for coverage purposes. Weaver, 33 So.3d at 1190 (¶ 16). The compensation the officers received in Weaver is analogous to the compensation in this case. Therefore, John, Alex, and Paul acted as employees of the entities similar to the officers in Weaver. Thus, each of these men counts as an employee for coverage purposes.

¶ 28. The Commission determined that Southeastern had at least five employees at the time of Graves’s injury. Finding no error, we affirm the Commission’s decision.

¶ 29. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Cardie BLACKWELL a/k/a Cardie B. Blackwell, Appellant v. HOWARD INDUSTRIES, INC., Appellee.
    No. 2014-WC-00342-COA.
    Court of Appeals of Mississippi.
    May 5, 2015.
    Rehearing Denied Oct. 27, 2015.

      William H. Jones, Petal, attorney for appellant.
    Douglas S. Boone, Parker Ford Leggett, Laurel, attorneys for appellee.
    Before GRIFFIS, P.J., ROBERTS and FAIR, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. The Mississippi Workers’ Compensation Commission denied Cardie Blackwell’s request for permanent disability benefits. Blackwell appealed to the Jones County Circuit Court. For the second time, the circuit court has dismissed Blackwell’s appeal based on technical deficiencies. To be precise, the circuit court held that Blackwell’s notice of appeal inadequately set forth the grounds of his appeal. Consequently, the circuit court struck Blackwell’s initial brief and his reply brief. We find that the circuit court erred. Accordingly, we reverse the circuit court’s judgment and remand this matter for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. Blackwell was working for Howard Industries Inc. (Howard) when he sustained a work-related injury to his left elbow. He received temporary total disability benefits, and Howard paid for Blackwell’s surgical procedure. After a disagreement regarding his treatment, Blackwell filed a petition to controvert. Blackwell and Howard exchanged volleys of pleadings and motions between 2003 and 2007.

¶ 3. The administrative judge (AJ) found that Blackwell was not entitled to permanent and total disability benefits. Blackwell appealed, and the full Commission affirmed the AJ’s judgment. In October 2009, Blackwell appealed to the circuit court. Howard successfully moved to dismiss Blackwell’s appeal because he never filed a brief with the circuit court. The circuit court issued a deficiency notice and gave Blackwell fourteen days to file a brief. After Blackwell filed a brief that did not conform to Rule 28(a) of the Mississippi Rules of Appellate Procedure, Howard successfully moved to dismiss Blackwell’s appeal.

¶4. Blackwell appealed to this Court, and we held that “a second notice of deficiency should have been sent to Blackwell and that lesser sanctions, rather than dismissal, would have been appropriate.” Blackwell v. Howard Indus. Inc., 98 So.3d 463, 465 (¶ 6) (Miss.Ct.App.2012). Consequently, we reversed the circuit court’s judgment and remanded the ease for further proceedings. Id.

¶ 5. On remand, Howard filed a motion to strike Blackwell’s briefs. According to Howard, Blackwell’s briefs failed to comply with Rule 11 of the Mississippi Workers’ Compensation Commission’s Procedural Rules. Howard also moved to strike Blackwell’s reference to an internet article on the basis that it was “inadmissible hearsay [and] irrelevant, [it] lack[ed a] proper foundation, [and it could not] be authenticated.”

¶ 6. The circuit court agreed with both of Howard’s claims. In its order, the circuit court found that Blackwell’s notice of appeal did not reference the issues that Blackwell raised in his brief. The circuit court granted Howard’s motion to strike Blackwell’s briefs. In addition to the internet article that Howard moved to strike, the circuit court struck four other “internet articles and texts” that Blackwell attached as exhibits to his reply brief. After the circuit court struck Blackwell’s briefs and five articles that were attached as exhibits, Blackwell appealed to this Court.

STANDARD OF REVIEW

¶ 7. The Mississippi Supreme Court has held that an appellate court “reviews a trial court’s grant or denial of a ... motion to dismiss under a de novo standard.” Copiah Cnty. v. Oliver, 51 So.3d 205, 207 (¶ 7) (Miss.2011) (citation omitted).

ANALYSIS

¶ 8. The circuit court struck Blackwell’s briefs based on the notice of appeal that Blackwell filed after the Commission affirmed the AJ’s judgment. Blackwell filed the notice of appeal with the Commission. According to Blackwell’s notice of appeal, by affirming the AJ’s judgment, the Commission “issued a decision which contained numerous mistakes of fact and errors in [the] application of controlling law.” The notice of appeal further stated that “[t]he Commission considered inadmissible evidence from Dr. Jeffrey Summers, which was based on insufficient factual data and included hearsay, which was admitted in violation of Daubert and the Mississippi Rules of Evidence.”

¶ 9. On July 18, 2013, Blackwell filed his brief in the circuit court. Blackwell’s brief included four separate issues. His first three issues addressed the concept that the Commission erred when it denied benefits because he followed the treatment recommended by his treating physician, an anesthesiologist, rather than a different theory of care. Additionally, Blackwell claimed that the Commission erred when it ignored a stipulation that the parties entered after Blackwell rested his case-in-chief.

¶ 10. On July 26, 2013, Howard filed a motion for an extension of time to file its responsive brief. According to Howard, it could not file its brief within thirty days of Blackwell’s. Howard requested a thirty-day extension beyond the deadline. Howard did not claim that the issues in Blackwell’s brief did not correspond to the statement in Blackwell’s notice of appeal. On August 7, 2013, the circuit court entered an agreed order granting Howard’s request for an extension to file its brief. Per the agreed order, Howard’s brief was due on September 23, 2013—sixty-two days after Blackwell filed his brief.

¶ 11. Howard filed its responsive brief on September 18, 2013, which was the same day that Howard filed its motion to strike Blackwell’s brief. Howard claimed that the circuit court should strike Blackwell’s brief because Blackwell’s notice of appeal did not comply with Rule 11 of the Mississippi Workers’ Compensation Commission’s Procedural Rules, which provides:

Should either party desire to appeal from an award of the Commission, the party desiring to appeal ... will file a notice of appeal with the Secretary of the Commission. The notice shall set out the style of the case, the grounds upon which the appeal is taken, and certification that copies of the notice of appeal have been filed with the opposing parties.

As stated above, the circuit court granted Howard’s motion to strike Blackwell’s brief, and subsequently dismissed Blackwell’s appeal.

¶12. First, no portion of the rule states that the remedy for noncompliance is dismissal of the appeal. Dismissal of an appeal is only appropriate “where there is a clear record of delay or contumacious conduct[,] and lesser sanctions would not serve the best interests of justice.” Van Meter v. Alford, 774 So.2d 430, 433 (¶ 9) (Miss.2000). “[DJismissal with prejudice is an extreme and harsh sanction that deprives a litigant of the opportunity to pursue his claim....” Id. It is “reserved for the most egregious cases.” Id.

¶ 13. Second, Howard never claimed that it was prejudiced or unfairly surprised by discrepancies between Blackwell’s notice of appeal and the issues that Blackwell raised in his brief. Blackwell agreed to give Howard an extension of time to file its responsive brief. Approximately sixty days after Blackwell filed his brief, Howard simultaneously filed its responsive brief and its motion to strike. Howard had ample time to address the issues that Blackwell raised in his brief.

¶ 14. Neither the Mississippi Rules of Appellate Procedure nor the Uniform Rules of Circuit and County Court include a requirement to state “the grounds upon which the appeal is taken” in a notice of appeal. See M.R.AP. 3(c); URCCC 5.04. Even if the notice of appeal that Blackwell filed with the secretary of the Commission did not adequately state the grounds of Blackwell’s appeal—which we do not find—no provision of the Workers’ Compensation Commission’s Procedural Rules authorizes a circuit court to dismiss an appeal for noncompliance. “The humanitarian objectives of compensation laws should not be defeated by overemphasis on technicalities or by putting form above substance.” Dunn, Vardaman S., Mississippi Workmen’s Compensation § 32 (3d ed.1990). The circuit court clearly erred when it struck Blackwell’s briefs and dismissed Blackwell’s appeal.

¶ 15. As for the circuit court’s decision to strike five articles that Blackwell attached as exhibits to his briefs, we note that workers’ compensation proceedings are “not bound by a strict adherence to the Mississippi Rules of Evidence.” Forrest Gen. Hosp. v. Humphrey, 136 So.3d 468, 472 (¶ 19) (Miss.Ct.App.2014) (citations omitted). The circuit court held that the articles were not part of the record on appeal, and they were all “inadmissible hearsay [and] irrelevant, [they] lack proper foundation, [and they] cannot be authenticated.” The circuit court did not elaborate beyond its broad, sweeping conclusions. Consequently, we cannot review the circuit court’s decision. Therefore, we reverse the circuit court’s judgment and remand this matter for further proceedings consistent with this opinion.

¶ 16. THE JUDGMENT OF THE JONES COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . This conclusion should not be interpreted as a suggestion regarding Blackwell’s use of the articles at issue on remand.


author: ISHEE, J.,

text:
    Monroe RANDLE, Appellant v. STATE of Mississippi, Appellee.
    No. 2014-CP-00153-COA.
    Court of Appeals of Mississippi.
    May 12, 2015.
    Monroe Randle, appellant, pro se.
    Office of the Attorney General by Barbara Byrd, attorney for appellee.

      Before IRVING, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Monroe Randle was convicted of murder in the Clay County Circuit Court in 1980. He was ordered to serve a life sentence in the custody of the Mississippi Department of Corrections. On February 24, 2010, Randle was granted parole. However, his parole was revoked in July 2012 after he was arrested for simple assault by threat and possession of a firearm. Randle’s motion for post-conviction relief (PCR) was denied by the circuit court, and he filed this appeal.

FACTS

¶ 2. In 1980, Randle was convicted of murder and received a life sentence. He was granted conditional parole on February 24, 2010. In July 2012, Randle was arrested for simple assault by threat and possession of a firearm, and his parole was revoked. Randle filed a PCR motion in the circuit court contesting the revocation of his parole. The circuit court summarily dismissed the PCR motion on the ground that “[t]he State Parole Board is the sole authority on granting or revoking parole.” Aggrieved, Randle appeals to this Court.

STANDARD OF REVIEW

¶ 3. A trial court’s dismissal of a PCR motion will not be reversed without a finding that the trial court’s decision was clearly erroneous. Fortenberry v. State, 151 So.3d 222, 224 (¶ 5) (Miss.Ct.App.2014) (citing Means v. State, 43 So.3d 438, 441 (¶ 6) (Miss.2010)). However, when issues of law are raised, the proper standard of review is de novo. Id.

DISCUSSION

¶ 4. Randle argues that his parole was unlawfully revoked because he was never convicted of the crimes upon which the revocation of his parole was based. The circuit court dismissed Randle’s motion without a hearing, stating that it lacked authority to grant the relief sought. The State agrees that the circuit court was correct in dismissing Randle’s motion; however, the State contends that the circuit court should have considered whether Randle’s claim had any merit.

¶ 5. This Court has held that “before one released on parole may be returned to custody, the State must show that he has violated the terms and conditions of parole.” Elkins v. State, 116 So.3d 185, 187 (¶ 8) (Miss.Ct.App.2013) (quoting Moore v. Ruth, 556 So.2d 1059, 1061 (Miss.1990)). A parolee is entitled to “a written statement by the fact[-]finders as to the evidence relied on and reasons for revoking parole.” Id. While we do not require a conviction to substantiate revocation of parole, the “[m]ere arrest of a probationer is not a violation of probation.” Brown v. State, 864 So.2d 1058, 1060 (¶ 9) (Miss.Ct.App.2004) (citing Moore v. State, 587 So.2d 1193, 1194 (Miss.1991)).

¶ 6. In this case, the circuit court judge summarily dismissed Randle’s PCR motion without an evidentiary hearing, and there is no record before this Court providing the information the judge relied upon in revoking Randle’s parole. Therefore, we reverse and remand this case for an evidentiary hearing.

¶ 7. THE JUDGMENT OF THE CLAY COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY.

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


text:
    Bobby Dillon LOTT, Appellant v. CORINTHIAN, INC., Mississippi Manufacturers Association Workers’ Compensation Group, Marsha M. McCollum, and Cannon Cochran Management Services, Appellees.
    No. 2013-CA-01473-COA.
    Court of Appeals of Mississippi.
    May 12, 2015.
    Rehearing Denied Jan. 19, 2016.

      Roy 0. Parker Jr., Tupelo, attorney for appellant.
    William P. Myers, Hernando, Mark N. Halbert, attorneys for appellees.
    Before LEE, C.J., ISHEE and FAIR, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Bobby Lott sustained an eye injury while working at Corinthian Inc. in January 2010. He was later terminated by Corinthian for failing to follow the proper procedures for reporting a work-related injury. Shortly thereafter, he filed a workers’ compensation claim against Corinthian alleging that he was terminated in bad faith and that all Appellees failed to conduct a good-faith investigation into his claim. The Appellees continued their investigation, and Lott was seen by several doctors over the next few months. Ultimately, Corinthian paid workers’ compensation benefits due from the date of injury until Lott was released back to work. An administrative judge (AJ) with the Mississippi Workers’ Compensation Commission determined that the benefits paid were sufficient and that Lott’s termination was not executed in bad faith, nor was the investigation conducted in bad faith. Lott later filed suit in the Prentiss County Circuit Court alleging wrongful termination, gross negligence, and intentional and. willful infliction of emotional distress. The Appellees filed motions for summary judgment, which were granted. Aggrieved, Lott appeals. Finding no error, we affirm.

STATEMENT OF FACTS

It 2. On January 18, 2010, Lott was employed by Corinthian as an at-will employee in the upholstery department. Specifically, Lott was working with upholstered ottomans assembling the legs onto the ottomans. On that day, Lott claims that one of the legs ricocheted and hit him in his right eye while he was attempting to secure the leg into the furniture. Lott immediately asked two nearby coworkers if his eye was injured. Lott claims that he also advised Tracy Wren of the injury shortly thereafter. Lott maintains that Wren is his “lead supervisor,” while Corinthian identifies her as a “floater on the production line.” Lott claims that he had been told by Michael Lambert, supervisor over the upholstery department at Corinthian, to report any incident or injury to Wren. Corinthian and Lambert deny this fact. Regardless, when asked on forms to list his supervisor, Lott repeatedly listed Lambert.

¶ 3. In Corinthian’s employee handbook, it advised its workers that they were to report all injuries to their supervisor on the day an incident occurred. Failure to do so is listed in the handbook as a ground for termination. The handbook also states that by clocking out, an employee certifies that he has reported any injuries to his supervisor. Lott signed the handbook on his first day of work in 2008, and in doing so he acknowledged that he had read and agreed to all of the terms in the handbook.

¶ 4. Lott worked the remainder of his shift on the day of the injury and clocked out, and he worked the entirety of his shift the next day, also clocking in and out. On January 20, 2010, Lott claims he awakened with pain and loss of sight in his right eye. Lott again reported his injury to Wren, who sent Lott to speak with Lambert. Lambert advised Lott to meet with Marsha McCollum, a Cannon Cochran Management Services employee. Cannon was under contract with Mississippi Manufacturers Association Workers’ Compensation Group (MMA) to serve as the third-party-claims administrator for MMA’s members, including Corinthian.

5. On January 20, 2010, after speaking with Lott, McCollum made arrangements for Lott to see two eye specialists— Dr. Craig Cleveland and Dr. Tawan S. Khamapirad. McCollum accompanied Lott to the doctor appointments. While in the appointments, she discovered that Lott had previously had cataract surgery on his left eye in 2006 and had been advised to have the same surgery on his right eye in 2007, but he had declined to undergo the surgery. During the appointments, Lott advised the doctors that he had not had any trouble with his right eye since 2007 and had been able to work and live normally until the incident at hand.

¶ 6. Lott was diagnosed with traumatic cataract, traumatic iritis, and a vitreal bleed to his right eye. He was advised that he needed surgery on the eye as soon as the inflammation subsided. A follow-up appointment was scheduled with Dr. Kha-mapirad for January 25, 2010. After the follow-up appointment, Dr. Khamapirad restricted Lott’s work duties to desk work until the surgery could be performed on his injured eye.

¶ 7. The summary of Dr. Khamapirad’s assessment, including his recommendation for surgery and his restriction of Lott’s work duties, was received by Corinthian on January 27, 2010. The next day, Lott was terminated by Corinthian. Corinthian states that it fired Lott because he failed to follow the proper procedure for reporting a work-related injury. Lott claims that he was wrongfully terminated since he had, in fact, reported the injury to Wren. Lott also argues that the firing was done in bad faith because Corinthian could have fired him the day the injury was reported but, instead, waited over a week later until surgery and work restrictions had been recommended to terminate his employment.

¶8. Prior to Lott’s termination, between January 25 and January 27, 2010, McCollum investigated Lott’s claim. She spoke with the coworkers whom Lott had asked about the condition of his eye following the incident. She gathered Lott’s hours and work schedule to calculate his time off of work. She also accumulated a record of his wages for the prior year for wage-earning-capacity calculations. She sent all of this information to Cannon with her opinion attached. She stated that Lott’s claim was “somewhat questionable” in part due to his preexisting cataract condition in the injured eye. Lott claims that McCollum was -wrong both in terminating him and in contesting his unemployment benefits after his termination.

¶ 9. On February 1, 2010, Lott retained a lawyer and filed a workers’ compensation claim, even though Corinthian had not yet denied any benefits to Lott. However, in a letter dated February 8, 2010, MMA’s attorney stated that Lott’s injuries predated any alleged work injury, that there were no eyewitnesses to the actual incident, and that the investigation results did not support Lott’s allegations. The letter went on to state that because of the aforementioned factors, no further benefits would be provided to Lott. Lott asserts that all parties involved breached their duty to properly investigate the incident before discontinuing benefits.

¶ 10. Conversely, Corinthian, Cochran, and MMA claim that they attempted to promptly investigate the claim but were prejudiced in their ability to do so because Lott refused to sign a medical-release authorization until March 2010, despite the authorization being requested at the beginning of February 2010. After receiving the authorization, the Appellees effectually rescinded their letter denying benefits and continued with their investigation. Nonetheless, the Appellees note that Lott’s refusal to execute and return the authorization delayed the investigation by an entire month, thereby also delaying Lott’s receipt of benefits.

¶ 11. On March 8, 2010, Corinthian received Lott’s authorization. Lott’s prior medical records were then obtained and reviewed by Corinthian and Dr. Khamapi-rad. On April 6, 2010, Dr. Khamapirad provided Corinthian with his opinion that the incident on January 18, 2010, “most likely ... exacerbated a pre-existing condition.” On April 19, 2010, Lott received his first temporary total disability (TTD) benefit check covering the time period from April 19, 2010, through May 2, 2010. Retroactive benefit checks were also issued to cover the time from the date of injury, January 18, 2010, through April 19, 2010.

¶ 12. Nonetheless, Lott maintains that Corinthian’s alleged failure to properly investigate his claim and failure to pay the benefits promptly caused him excessive and unnecessary pain and suffering since he was unable to afford to pay for the recommended surgery until the benefit checks were paid. Lott ultimately underwent surgery to his injured eye in May 2010. He was released by his physicians to return to work fully, without restrictions, on July 28, 2010.

¶ 13. After a hearing on the matter before an AJ, summary judgment was granted in favor of the Appellees. The AJ determined that Lott was entitled to TTD benefits from January 20 through June 27, 2010, along with statutory penalties and interest for the delay in payments. Corinthian paid all costs, including an additional four weeks of TTD, to cover June 27 through July 28, 2010—a voluntary extra payment of $939.20. The AJ also concluded that while the claim was initially denied, none of the Appellees had acted in bad faith, but rather, were further investigating the claim in a good-faith manner until it was determined to be compensable.

¶ 14. Displeased with the AJ’s determination, Lott filed a suit in the circuit court against the Appellees alleging wrongful termination, gross negligence, and intentional and willful infliction of emotional distress. The Appellees filed motions for summary judgment, which were granted by the circuit court.

DISCUSSION

¶ 15. The Mississippi Supreme Court has held that an appellate court “reviews a trial court’s grant or denial of a motion for summary judgment or a motion to dismiss under a [de novo] standard.” Copiah Cnty. v. Oliver, 51 So.3d 205, 207 (¶ 7) (Miss.2011) (citation omitted). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995) (quoting M.R.C.P. 56(c)). Although this Court must view the evidence in the light most favorable to the nonmoving party, the party opposing the motion “may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). “[W]hen a party[ ] opposing summary judgment on a claim or defense ... fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled to judgment as a matter of law.” Galloway v. Travelers Ins. Co., 515 So.2d 678, 684 (Miss.1987).

¶ 16. Lott’s assignments of error are general challenges to the circuit court’s grant of the Appellees’ motions for summary judgment, which dismissed Lott’s claims of wrongful termination, gross negligence, and intentional and willful infliction of emotional distress. We begin with the issue of wrongful termination. While Lott mentions in passing that he was wrongfully terminated, the issue itself is never discussed, much less argued with authority, by Lott on appeal. The Mississippi Rules of Appellate Procedure require that the brief of an appellant “contain the contentions of [the] appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” M.R.A.P. 28(a)(6). It is well settled that “this Court is not required to address any issue unsupported by reasons and authority.” R. McKnight & Son v. C & I Entm’t, 100 So.3d 1022, 1033 (¶ 40) (Miss.Ct.App.2012) (citing Hoops v. State, 681 So.2d 521, 535 (Miss.1996); M.R.A.P. 28(a)(6)).

¶ 17. Though Lott failed to properly address his argument regarding wrongful termination, our review of the issue shows that Lott’s challenge is without merit. It is undisputed that Lott was an at-will employee of Corinthian. It is also undisputed that he was aware of and consented to the policies contained within Corinthian’s employee handbook. One of the policies dictated that Lott inform his supervisor of any injury occurring at work on the day the injury occurred. The record reflects that when asked on numerous forms to list his supervisor, Lott listed Lambert, not Wren. Likewise, Corinthian lists Wren as merely a “floater,” and Lambert as the “upholstery department supervisor.” Failure of an employee to inform his supervisor of an injury on the day the injury occurs is listed as a ground for immediate termination. Additionally, Corinthian’s handbook dictates that by clocking out, an employee verifies that his supervisor has been notified of any and all injuries to the employee. It is undisputed that Lott clocked in and out of work the day the injury occurred and the following day before informing Lambert of the injury.

¶ 18. The supreme court has long held that “[a]n at-will employment contract may be terminated at any time, by either party to the contract.” Jones v. Fluor Daniel Servs. Corp., 959 So.2d 1044, 1046 (¶ 10) (Miss.2007). Lott was aware of Corinthian’s policies regarding reports of injury. He acknowledged in written form on numerous occasions that Lambert, not Wren, was his supervisor. As such, we find that Lott’s termination was not wrongful. This issue is without merit.

¶ 19. We next address Lott’s claim that the Appellees acted with gross negligence in delaying payment of his benefits. Lott filed his petition to controvert less than two weeks after his injury and prior to any denial of benefits. While Lott does not contend that his benefits should have been paid prior to the filing of his claim, he asserts that the Appellees delayed the payment of his benefits after he filed the claim by conducting an investigation in bad faith.

¶20. This Court has specifically addressed the issue of bad-faith denial of payment in Pilate v. American Federated, Insurance Co., 865 So.2d 387 (Miss.Ct.App.2004). Therein, we stated:

[I]f the insurer had a legitimate or arguable reason for not paying a claim, the insurer is deemed to have acted in good faith. On the other hand, if the insurer did not have a legitimate or arguable basis for not paying the claim and acted with willful, malicious, gross negligence, or reckless disregard for the rights of the claimant, then punitive damages will lie.

Id. at 391 (¶ 24). We went on to note:

Obviously, some delay in evaluating claims is inevitable, legitimate[,] and socially useful. Insurers are entitled, and in fact legally obligated, to investigate fully the legitimacy of claims, and some skepticism in evaluating claims is appropriate. Since an insurer has an obligation under Mississippi law to investigate claims, discharging that duty is not bad faith. However, an inadequate investigation of a claim may create a jury question on the issue of bad faith.

Id. at 394 (¶ 35) (citation omitted),

¶ 21. Here, the Appellees claim that Lott’s failure to provide them with a medical-release authorization significantly hindered their ability to investigate the claim promptly. Indeed, the record is clear that Lott refused to execute and return the medical-release affidavit until a month after it was requested by the Appel-lees. It is without question that in order to conduct a good-faith investigation into a claim, an insurer must “obtain all available medical information relevant to the policyholder’s claim and interview all employees or individuals who have knowledge relevant to the claim.” Id. Hence, failure of the Appellees to have a medical-release authorization is a valid explanation for at least one month of delay in investigating the claim.

¶22. Nonetheless, after receiving the authorization, Lott’s benefits were paid within a reasonable time frame. Specifically, the timeline of events consisted of the following: Lott’s injury occurred in January 2010, with surgery and restrictions recommended at the end of January; the Appellees requested the medical-release authorization in February; Lott executed and returned the authorization in March; Appellees requested and received an independent medical examination (IME) report in April, and Appellees issued Lott’s first benefit check at the end of April. Accordingly, it was little more than a month between the time the Appel-lees received the authorization and the issuance of the first benefit check. During that month, the record indicates that Ap-pellees gathered medical information, spoke with Lott’s medical providers, and requested and awaited receipt of the IME report. We find these actions and the time frame for the actions to be a reasonable course of investigation. Hence, we cannot conclude that the Appellees’ actions in investigating the claim rose to the level of gross negligence. This issue is merit-less.

¶ 23. Finally, Lott asserts that the Ap-pellees committed intentional and -willful infliction of emotional distress in terminating him. Having previously determined that Lott’s termination was lawful, we And this issue to be moot.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.


author: MAXWELL, J.,

text:
    Wanda Kaye CHIPLEY, Appellant v. Kenneth Ray CHIPLEY, Appellee.
    No. 2013-CA-02119-COA.
    Court of Appeals of Mississippi.
    Aug. 11, 2015.
    Rehearing Denied March 29, 2016.
    Certiorari Denied June 30, 2016.

      P. Shawn Harris, Forest, attorney for appellant.
    William Charles Bell, attorney for appel-lee.
    Before GRIFFIS, P.J., ISHEE and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. In Mississippi, chancellors m/ust consider the Ferguson factors in dividing marital assets and must make factual findings and conclusions of law on these factors. The failure to do so is manifest error, requiring reversal. Here, it is not apparent the chancellor considered the required factors or made factual findings and conclusions of law when dividing assets in Wanda and Kenneth Chip-ley’s divorce case. So we must reverse the chancellor’s division of assets. We remand solely on the property division issue.

Facts, Procedural History, and Timeliness Issues

¶ 2. Because Kenneth raises issues of timeliness, we first consider if Wanda filed her appeal too late.

¶ 3. On January 25, 2011, a final judgment of divorce was entered, granting Wanda a divorce based on Kenneth’s habitual cruelty. The judgment directed the attorneys “to provide to the [cjourt within ten (10) days of this [ojrder their Ferguson analysis of the equitable distribution of property.” The case sat idle for over two years until the Mississippi Supreme Court ordered the chancellor to rule on the property division, which he did on February 15, 2013. Afterwards, Wanda filed a “motion for reconsideration or retrial.” Her motion was filed on February 26, 2013—one day too late to be treated as a motion under Rule 59(e) of the Mississippi Rules of Civil Procedure. Wanda’s motion read, in part:

[Tjhe [cjourt took [under advisement] the equitable division of marital property [and] all other issues, which would include attorney’s fees.
[Tjhe [cjourt ... required both parties submit findings of fact and conclusions of law to the [cjourt for the [cjourt to make a decision[.j The parties did submit those findings within the time required by the [cjourt.
The [c]ourt[,j however[,j did not make a ruling on this for two (2) years until [Kenneth] sent a notation to the [sju-preme [cjourt. The very next day[,j the chancellor signed an order prepared by [Kenneth] regarding this divorce[,j which obviously heavily favored [Kenneth] and did not take into any consideration the attorney’s fees of [Wanda] or any other information.
That [Wanda] requests] the [cjourt reconsider this matter and would grant [Wanda] reconsideration or retrial regarding the division [of] marital property[.j

¶4. The chancellor entered an order denying the motion for reconsideration on September 5, 2018. This order stated only that “the [mjotion for [reconsideration or [rjetrial filed by [Wanda] is hereby denied.” The order was a blanket denial of all relief Wanda requested, but did not mention her request for attorney’s fees. Wanda had thirty days to file a notice of appeal—the deadline was October 5, 2013. Since she did not file her notice of appeal until December 17, 2013, her appeal would normally be untimely.

¶ 5. But on October 3, 20013, two days before her deadline to appeal, Wanda filed a motion for a Rule 54(b) certification. She claimed the chancellor never ruled on her request for attorney’s fees. And the chancellor explicitly agreed he had neglected to do so. On November 18, 2013, the chancellor entered what he titled a “Rule 54(b) certification order.” In it, the chancellor explained “the [cjourt had previously not addressed the issue of attorney[’]s fees as raised by [Wanda] in the original hearing in January 2011[] and the [c]ourt hereby finds that the prayer for attorney[’]s fees was not well taken and she is not granted any attorney[’]s fees.” The chancellor then declared the February 15, 2013 order was a final judgment under Rule 54(b). Since the chancellor deemed the judgment final on November 18, 2013, Wanda had until December 18, 2013, to appeal. She filed her notice of appeal on December 17, 2013, so her appeal was timely. We thus address the merits of Wanda’s argument that remand is required for a new Ferguson analysis since the chancellor failed to make factual findings or conclusions of law.

Discussion

¶6. In Ferguson, our supreme court established guidelines chancellors must follow when dividing marital property. Ferguson, 639 So.2d at 928. “In applying the Ferguson factors, chancellors must support their decisions with findings of fact and conclusions of law.” Dickerson v. Dickerson, 34 So.3d 637, 644 (¶ 24) (Miss.Ct.App.2010) (emphasis added); see also Goellner v. Goellner, 11 So.3d 1251, 1263 (¶ 44) (Miss.Ct.App.2009) (emphasizing that chancellors must support their Ferguson decisions with findings of fact and conclusions of law for appellate-review purposes). In doing so, chancellors need not make findings on each and every Ferguson factor. Weathersby v. Weathersby, 693 So.2d 1348, 1354 (Miss.1997). But “they cannot simply ‘mention the guidelines’ and state they are ‘following them and applying them to the facts of the case,’” Lee v. Lee, 78 So.3d 326, 329 (¶ 10) (Miss.2012) (quoting Sandlin v. Sandlin, 699 So.2d 1198, 1204 (Miss.1997)). “The failure to make findings of fact and conclusions of law is ‘manifest error requiring reversal and remand.’ ” Id. (quoting Sandlin, 699 So.2d at 1204); see also Reed v. Reed, 141 So.3d 450, 455 (¶ 18) (Miss.Ct.App.2014) (remand was required where appellant raised the issue of inequity in his post-trial motion and the chancellor failed to support his findings with any analysis, discussion, or mention of the Ferguson factors or the evidence before him).

¶7. Here, the order dividing assets was entered two years after the divorce was granted. And while the order does state the assets were being divided “based upon the Ferguson analysis,” there is no record evidence any factors were ever considered. Without these required findings and conclusions of law, we are unable to review the chancellor’s property division. Thus, we must reverse the chancellor’s judgment and remand the case for the chancellor to conduct a new trial on the property division only. On remand, the new chancellor shall conduct a new Ferguson analysis, including factual findings and conclusions of law.

¶ 8. THE JUDGMENT OF THE SCOTT COUNTY CHANCERY COURT 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.

GRIFFIS, P.J., BARNES, ISHEE, CARLTON, FAIR, JAMES AND WILSON, JJ., CONCUR. IRVING, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

LEE, C.J., NOT PARTICIPATING.

      . Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994).

      . A "notice of appeal ... shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” M.R.A.P. 4(a).

      . "A motion to reconsider filed within ten days of the entry of the judgment falls under Rule 59 and tolls the thirty-day time period to file a notice of appeal until the disposition of the motion.” Davis v. Vance, 138 So.3d 961, 964 (¶ 11) (Miss.Ct.App.2014) (quoting Woods v. Victory Mktg., LLC, 111 So.3d 1234, 1236 (¶¶ 6-8) (Miss.Ct.App.2013)). “But a motion to reconsider filed more than ten days after the entry of the judgment falls under Rule 60(b)” of the Mississippi Rules of Civil Procedure. Id. And because "a Rule 60(b) motion does not toll the thirty-day time period to file a notice of appeal,” we are limited to reviewing whether the Rule 60(b) motion was properly denied. Id.

      . M.R.C.P. 54(b).

      . At the hearing on Wanda’s Rule 54(b) motion, there was testimony that she incurred $5,437.50 in attorney's fees.

      . It was undisputed that the chancellor had not decided the issue of attorney's fees in January 2011. But it appears that the chancellor never reviewed his last order dated September 5, 2013, which denied all relief Wanda requested in her motion for reconsideration—including her request for attorney's fees.

      .Because all issues were then resolved, there was no need to label the order a Rule 54(b) certification.

      . Special Chancellor Ray Hillman Montgomery died in December 2014 while this appeal was pending. In Reed, after the chancellor passed away, we remanded the case for a new trial on the property division only. Reed, 141 So.3d at 455 (¶ 18). This approach ensured the new chancellor a firsthand account of all relevant facts and evidence. Id.

      . While Wanda raises other issues about the property division, those issues are moot since we are reversing and remanding for a new trial on the property division. And though Wanda claims the “[c]ourt erred in failing to make any ruling regarding attorneys fee[']s requested by Wanda”—the record shows Wanda’s request for attorney’s fees was denied.


text:
    William MARBLY, Appellant v. Kevin MANUEL and City of Clarksdale, Mississippi, Appellees.
    No. 2014-CA-01171-COA.
    Court of Appeals of Mississippi.
    Aug. 11, 2015.
    Rehearing Denied Jan. 19, 2016.

      D. Reid Wamble, attorney for appellant.
    Mitchell Orvis Driskell III, attorney for appellees.
    Before GRIFFIS, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 2013, William Marbly was injured in an automobile accident caused by a City of Clarksdale employee, Kevin Manuel. Marbly filed a complaint against Manuel and the city in the Coahoma County Circuit Court on February 4, 2014, seeking recovery of damages for his injuries. On March 18,2014, Manuel and the city filed a motion to dismiss in which they claimed Marbly had failed to comply with the requirements set forth by the Mississippi Tort Claims Act (MTCA). The circuit court granted the motion to dismiss, and Marbly filed this appeal.

FACTS

¶ 2. On March 5, 2018, Marbly was involved in an automobile accident. He was rear-ended by Manuel, an employee of the City of Clarksdale, while stopped at an intersection. Following the accident, Mar-bly’s attorney sent a certified letter dated August 29, 2013, to Bill Luckett, mayor of the city, informing him of Marbly’s claim pursuant to the MTCA. The letter contained the following heading: “NOTICE OF CLAIM PURSUANT TO MISSISSIPPI TORT CLAIMS ACT.” It read:

Dear Mayor Luckett:
Please be advised that I represent William Marbly[,] whose residence at the time of injury and at the time of filing of this notice is ... Clarksdale, MS 38614. On March 5, 2013, my client, William Marblyt,] was injured in a motor vehicle crash, when City of Clarksdale employee, Kevin Manuel, who was driving a City of Clarksdale truck, while in the scope and course of his employment for the City of Clarksdale, ran into the rear of Mr. Marbly’s vehicle at the intersection of State Street and Madison Ave. This letter will serve to document and to advise that William Marbly suffered both personal injuries and property damage as the proximate result of the negligent actions [of] Kevin Manuel. Mr. Marbly was employed by the United States Army at the time of the collision and was unable to work as a proximate result of his injuries. Mr. Marbly’s medical bills to date[,] which were incurred as a proximate result of the wreck[,] are $3,500.00.
Pursuant to Miss.Code Ann. Sec. 11-46-11, et al. [sic], I am required to first notify you by registered or certified mail of my intention to file suit, before filing a civil lawsuit, in hope of resolving the case.
This letter will serve to document and to advise that Mr. Marbly makes a claim and settlement demand against Kevin Manuel and City of Clarksdale for $25,000.00.
Please accept this letter as your notice of this claim. Please take action pursuant to law to pay this claim.
This letter will serve to document and to advise that if you do not immediately settle this claim, that I will file suit demanding all damages allowed by Mississippi law. This letter will further serve to document and to advise you that if you choose to deny this claim or if you do not intend on immediately settling this claim, that pursuant to Miss. Code Ann. Sec. 11-46-11, that you please notify me by letter of your “Notice of Denial of Claim.”
Your consideration of this letter is appreciated. I look forward to your reply.

¶ 3. When Marbly did not receive a settlement offer from the city, he filed a complaint in the circuit court. The complaint alleged that Manuel was negligent in causing the accident that injured Marbly, and that the city was liable under the doctrine of respondeat superior. Manuel and the city filed a motion to dismiss and argued that Marbly’s letter did not constitute sufficient notice in accordance with Mississippi Code Annotated section 11-46-11. In their motion, they asserted that Marbly failed to provide substantial details regarding the extent of Marbly’s injury as required by the statute. A hearing was held, and the motion to dismiss was granted by the circuit court.

STANDARD OF REVIEW

¶ 4. “[T]his Court reviews errors of law, which include the proper application of the [MTCA], de novo.” Fairley v. George Cnty., 871 So.2d 713, 716 (¶ 7) (Miss.2004). We also review a circuit court’s grant or denial of a motion to dismiss utilizing a de novo standard of review. Kimball Glassco Residential Ctr., Inc. v. Shanks, 64 So.3d 941, 944 (¶ 8) (Miss.2011) (citing Price v. Clark, 21 So.3d 509, 517 (¶ 10) (Miss.2009)).

DISCUSSION

¶ 5. “Any tort claim filed against the government, or an employee thereof, must be brought under the MTCA, the exclusive civil remedy against the government or its employees ‘for acts or omissions which give rise to a suit.’ ” Watkins ex rel. Watkins v. Miss. Dep’t of Human Servs., 132 So.3d 1037, 1042 (¶ 15) (Miss.2014) (citation omitted). Before a claimant files suit against a governmental entity, a notice of claim must first be filed with that entity. Lee v. Mem’l Hosp. at Gulfport, 999 So.2d 1263, 1266 (¶ 9) (Miss.2008) (citing Miss.Code Ann. § 11-46-11(1)-(2) (Rev.2002)). Section 11—46—11(2) reads as follows:

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, including the circumstances which brought about the injury, the extent of the injury, the time and place the injury occurred, the names of all persons known to be involved, the amount of money damages sought, and the residence of the person making the claim at the time of the injury and at the time of filing the notice.

¶ 6. It is well settled that Mississippi law requires substantial compliance with the notice provisions of the MTCA. S. Cent. Reg’l Med. Ctr. v. Guffy, 930 So.2d 1252, 1255 (¶ 7) (Miss.2006). “[T]he purpose of the [MTCA] is to [e]nsure that governmental boards, commissioners, and agencies are informed of claims against them. Such notice encourages entities to take corrective action as soon as possible when necessary; encourages pre-litigation settlement of claims; and encourages more responsibility by these agencies.” Lee, 999 So.2d at 1266 (¶ 9).

¶ 7. This Court has held that “[t]he determination of substantial compliance is a legal, though fact-sensitive, question and is, therefore, necessarily decided on an ad hoc basis.” Webster v. City of D’Iberville City Council, 6 So.3d 448, 451 (¶ 8) (Miss.Ct.App.2009) (citation omitted). In his appeal, Marbly argues that his notice substantially complied with the provisions of the statute, but Manuel and the city claim that Marbly was deficient in describing the extent of his injuries. Marbly, however, maintains that he did not yet know the exact extent of his injuries at the time he filed the notice.

If 8. In granting the motion to dismiss, the circuit court compared the present case to Fairley v. George County, 871 So.2d 713 (Miss.2004). In Fairley, the plaintiff was injured when she lost control of her vehicle while traveling on a gravel road that was maintained by George County, Mississippi. Id. at 715 (¶ 1). Her attorney sent a letter to the George County Board of Supervisors referencing “a single-vehicle accident on River Road in George County on May 30, 1996, due to gravel on the road.” Id. The letter further stated that the plaintiff “sustained personal injuries and/or property damage and asked the Board to forward the letter to its liability insurance carrier.” Id. In its motion for summary judgment, the County argued that the notice contained the following deficiencies:

[The] letter [ (1) ] was not ... sent registered mail or certified mail, nor was it delivered in person; (2) did not contain a short and plain statement of the facts with regard to circumstance of injury; (3) did not give the extent of injuries; (4) did not give the name of all persons; (5) did not list the damages sought; and (6) did not give the residence of the claimant.

Id. at 718 (¶ 12). The Mississippi Supreme Court found that the notice had not substantially complied with the statute in that the plaintiff had “made no attempt to comply with at least six statutorily required factors.” Id. at (¶ 13).

¶ 9. This case differs from Fairley in that Marbly provided information about each of the seven statutorily required categories. “If some information is provided in each of the seven required categories, this Court must determine whether the information is substantial enough to be in compliance with the statute.” Webster, 6 So.3d at 451 (¶ 9). Marbly maintains that his notice substantially complied with the MTCA requirements in that “it set forth everything that the [c]ity ... needed to know in order to respond” to Marbly’s claims.

¶ 10. We agree and find that in this case, Marbly did substantially comply with the MTCA requirements. Marbly’s notice was in writing, delivered via certified mail, and contained a short and plain statement of the facts upon which his claim was based. In addition, Marbly included the time and place that his injury occurred, the name of the person known to be involved, the amount of damages he sought to recover, and his address. Although Marbly maintains that he did not know the extent of his injuries at the time of the notice, his letter did state that he had suffered personal injuries and property damage, and that he had incurred medical bills in the amount of $3,500 as of that date.

¶ 11. The purpose of the statutory notice requirements is to inform the recipient of the situation so that prelitigation settlement or other corrective action may be taken without the use of the courtroom. Lee, 999 So.2d at 1266 (¶ 9). We find that Marbly’s letter sufficiently notified the city of the events and surrounding circumstances such that the notification requirements under the MTCA were met.

CONCLUSION

¶ 12. Because we find that Marbly’s notice letter sent by counsel substantially complied with the MTCA notice provisions, we reverse and remand this case to the Coahoma County Circuit Court for proceedings consistent with this opinion.

¶ 13. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED 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, CARLTON, FAIR AND JAMES, JJ., CONCUR. MAXWELL AND WILSON, JJ., NOT PARTICIPATING.