author: IRVING, P.J.,

text:
    Peggy THOMAS, Appellant v. Dr. James PURDY, Appellee
    NO. 2015-CA-00701-COA
    Court of Appeals of Mississippi.
    04/04/2017
    Rehearing Denied August 22, 2017
    Certiorari Denied November 9, 2017

      ATTORNEYS FOR APPELLANT: DAVID EARL ROZIER JR., J. KEITH PEARSON, JENESSA JO CARTER HICKS, SARAH LYNN DICKEY
    ATTORNEYS FOR APPELLEE: GAYE NELL LOTT CURRIE, DENNIS JASON CHILDRESS
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   IRVING, P.J.,

FOR THE COURT:

f 1. Peggy Thomas brought a medical-malpractice action agáinst Dr. James Pur-dy. A jury found in favor of Dr. Purdy. Thomas appeals, asserting three issues: (1) .whether the trial court erred in refusing to redact certain language contained in the medical records of Thomas’s treating physicians; (2) whether the trial court erred in allowing one of Dr, Purdy’s expert witnesses to testify; and (3) whether the trial court erred in denying Thomas’s motion for a continuance of the trial.

¶ 2. We find no error in the trial court’s rulings and, accordingly, affirm.

FACTS

¶3. Thomas underwent a routine surgery for repair of a prolapsed bladder on January 15, 2010, at Rush Hospital in Meridian, Mississippi. Dr. Purdy, a gynecological surgeon, performed the surgery, which involved an anterior cystocele repair procedure using a Xenoform graft insertion. This type- of procedure required Thomas’s body to be placed in a particular position — referred to as a “lithotomy position” — dur-. ing surgery, where she was to lie on her back with her thighs pressed apart. The procedure itself was uneventful; however, Thomas experienced post-surgical complications of sciatic nerve pain and foot drop. Thomas claims that her nerve pain resulted from a stitch injury — i.e., that Dr. Purdy had injured' her sciatic nerve ás he was stitching up her bladder upon completion of the procedure. Dr. Purdy maintained that he examined Thomas after surgery and had at that time concluded that her sciatic nerve injury was not the result of a stitch. Dr. Purdy consulted Dr. Rá-fíque Ahmad, a neurologist, and Dr. David Malloy, a. neurosurgeon, regarding Thomas’s nerve pain. Dr. Purdy ended his care of Thomas after consulting with these two physicians.

¶ 4. Thomas received physical examinations from Dr. Ahmad in 2010 and on several occasions thereafter, during which Dr. Ahmad made note of his opinion that Thomas had suffered a “[rjight sciatic nerve axonal injury with foot drop,” and that Thomas’s “[rjight foot drop [was] probably secondary to L5, SI lumbar radi-culopathy. Other possibility could be common peroneal nerve palsy.” Thomas additionally saw Dr. Malloy, who opined in his notes that Thomas had suffered a “[s]ciatic nerve.- injury, tibial and peroneal nerve,” with - “[multiple levels of .degenerative change throughout the lumbar spine. Nothing surgical.” Dr. Malloy further wrote that while he found evidence of a degenerative condition in Thomas’s spine, “[t]his lady has suffered a .sciatic stretch palsy ..,. Her symptoms are not arising from the mild degenerative changes noted in the lumbar spiríe MRI.” Dr. Malloy wrote that he informed Thomas that “her injury [was] probably from a stretch injury to the nerye.”

¶ 5. In February 2012, Thomas brought a medical-malpractice action against Dr. Purdy, Rush Hospital, and various Rush Hospital personnel, alleging that Dr. Pur-dy placed a stitch in or near Thomas’s sciatic nerve during surgery and that he failed to take subsequent remedial measures ,to alleviate the injury. Further, Thomas alleged that Rush Hospital personnel failed to properly place Thomas in the surgical lithotomy position, causing the stretch injury to Thomas’s sciatic nerve. The trial court granted summary judgment in favor of Rush Hospital and its personnel in December 2013. Thomas’s claim against Dr. Purdy was set to go, to trial on March 30, 2015.

¶ 6. On January 3, 2014, the circuit court issued an. order limiting the testimony of Dr. Ahmad and Dr. Malloy to that of treating physicians under the Mississippi Rules of Evidence, and held that, they could “testify as to their treatment of .[Thomas] and their impressions of her injury but ... not ... as to the applicable standard of care or give an opinion as to any breach thereof.”

¶ 7. Ón March 16, 2015, Thomas filed a motion to exclude the opinions of Dr. Ahmad and Dr. Malloy,' arguing that such exceeded th.e scope of the court’s January 3, 2014 order to only allow Dr. Ahmad and Dr, Malloy to testify as treating physicians. Thomas also requested remedies “including but not limited to an order specifying the redaction of the treating physicians’ causation' opinions from the medical records in this matter.” Thomas furthermore asserted that “because Dr. [James Martin] Tucker’s’supplemental opinions as to causation are solely based on the medical causation opinions of plaintiffs treating physicians, Dr. Tucker must not be allowed to present such testimony to the jury, as it does not qualify as an expert opinion.” Thomas expounded upon this argument in a separate motion also filed on March 16, 2015, wherein she argued that Dr. Purdy wrongfully waited until after the court granted summary judgment in favor of Rush Hospital to reveal the fact that Dr. Tucker believed that a stretch was the cause of Thomas’s injury. Further, Thomas asserted that Dr. Purdy had conveyed exactly the opposite in his first two designations of Dr; Tucker as an expert— that he did not believe a stretch was a cause of Thomas’s injury or that he had no opinion at all. Thomas argued that Dr. Tucker’s revised opinion that Thomas suffered from a stretch injury was based solely on the causation opinions of Dr. Ahmad and Dr. Malloy, and that to base his opinion on such would be improper. Finally, Thomas argued that Dr. Tucker lacked the training and expertise regarding the subject in question. On March 18,. 2015, the trial court denied Thomas’s motion- in li-mine regarding Dr. Tucker’s testimony, as well as Thomas’s motion in limine regarding the medical records and potential testimony of Dr. Ahmad and Dr. Malloy.

¶ 8. On March 27, 2015, Thomas moved for a continuance of. the trial due to the unavailability of a purportedly material expert witness, Dr. David Preston, which was denied. Immediately prior to trial on March 30, 2015, Thomas moved to redact the word “stretch” ■ in nine instances throughout the medical opinions of Dr. Ahmad and Dr. Malloy on the basis that Dr. Ahmad, and Dr. Malloy were merely “lay treating physicians” who were not able to testify about causation. The trial court denied this motion' as well, and trial commenced. On April 2, 2015, the jury returned a verdict in favor of Dr, Purdy. Thomas subsequently filed a motion for a new trial or, in the alternative, a judgment notwithstanding the verdict, which the trial court , denied on April 21, 2015. Thomas timely filed this appeal on May 1, 2016.

DISCUSSION

7. Whether the trial court erred in admitting certain expert cmsation opinions contained in the medical records of Thomas’s treating physicians

¶ 9. Thomas argues- that the trial court erred when it admitted into evidence the medical records of Dr. Ahmad and Dr. Malloy, but • denied Thomas’s request to redact certain words from those medical records. Specifically, Thomas sought to have the word “stretch” redacted in-nine instances throughout the records, arguing that this word indicated Dr. Ahmad and-Dr. Malloy’s opinions as to the causation of Thomas’s injury, and causation is outside the scope of a “lay treating physician.” Conversely, Dr. Purdy argues that the trial court did not abuse its discretion in refusing to redact this verbiage, because Dr. Ahmad and Dr. Malloy were capable of testifying in their capacity as treating physicians as to how they examined Thomas, what they found, and their ultimate diagnoses of her condition. '

¶ 10, “The standard of review for a trial court’s decision either to admit or exclude evidence is abuse of discretion.” Burnwatt v. Ear, Nose & Throat Consultants of N. Miss., 47 So.3d 109, 114 (¶ 17) (Miss. 2010). “Unless a substantial right of a party is adversely affected, ... appellate courts will not reverse a ruling to admit or exclude evidence.” Id. Rule 701 of the Mississippi Rules of Evidence provides:

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

In contrast, Rule 702 of the Mississippi Rules of Evidence provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the' testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Regardless, “[a] physician can testify without being accepted as an expert regarding: (1) ‘the facts and circumstances surrounding the care and treatment of the patient’; (2) ‘what his records about the patient reveal’; and (3) ‘what conditions the patient was suffering from if the opinion was acquired during the care and treatment of the patient.’ ” Chaupette v. State, 136 So.3d 1041, 1046 (¶ 8) (Miss. 2014) (quoting Griffin v. McKenney, 877 So.2d 425, 439-40 (¶ 50) (Miss. Ct. App. 2003)) (internal citation omitted). “However, a physician cannot testify about the significance of a patient’s condition or industry standards without first being accepted as an expert.” Id. (internal citations omitted).

¶ 11. Prior to trial, the parties agreed to the admission of Dr. Ahmad and Dr. Mal-loy’s medical records regarding their treatment of Thomas. As stated, on the day of trial, Thomas sought to have portions of these records redacted, arguing that the disputed verbiage went to the causation of Thomas’s injury, which transcended the scope of appropriate testimony for “lay treating physicians.” In support of her argument, Thomas cited Chaupette, 136 So.3d at 1046 (¶ 10), in which the Mississippi Supreme Court held that the trial court erred in allowing a sexual abuse victim’s treating physician to testify as a lay witness under Rule 701, when she should have testified as an expert witness under Rule 702. The court stated, “Clearly, [the physician’s] diagnosis was an opinion, and, as she stated, it was based on the patient history taken, as well as [her] physical examination of [the victim]. Her opinion no doubt was based on her specialized knowledge, which can be presented only under the strictures of Rule 702.” Chaupette, 136 So.3d at 1046 (¶ 10). In response, Dr. Purdy argued that a treating physician “can talk about how he examined the patient, what he found[,] and what his diagnosis of the patient is. What they can’t talk about is how their diagnosis impacts the standard of care in this case or give away opinions as to any alleged negligence.”

¶ 12. The trial judge considered both arguments and ultimately refused to re-Diage, holding that “made conclusions dact the disputed ver the two physicians based on their observations about the nature of the problem and how to treat it.” The record reflects: that after speculating that Thomas had -sustained a nerve injury, Dr. Purdy consulted with these two physicians, a neurologist and a neurosurgeon. The* record further reflects that Thomas underwent physical examinations by both physicians. The trial judge allowed the entire exhibit, without redaction, reasoning:

[Dr.- Ahmad and Dr. Malloy] are not giving opinions as to whether Dr. Purdy did anything right or wrong. They are testifying about what they observed and how they classified the condition that they were dealing with with [Thomas]. I think they can do that.

¶ 13. We agree with the trial court’s ruling that the medical records of Dr. Ahmad and Dr. Malloy were appropriate under the Mississippi Rules of Evidence as testimony by treating physicians, and that no redactions were required. The use of the word “stretch” does not speak to the causation of Thomas’s injury; rather, it is descriptive of the doctors’ opinions, stemming from their personal observations and analyses, as to what type of injury Thomas sustained. Nor does use of the word “stretch” indicate certain significance of the condition, or speak to any standard of .care that Dr. Purdy may have owed to Thomas, post-surgery. Thus, we find no merit to this issue.

II. Whether the trial court erred in allowing Dr. Tucker to testify. on behalf of Dr. Purdy

¶ 14. Thomas argues that the trial court erred in allowing Dr. Tucker to testify because Dr.. Tucker, a board-certified OBGYN, was not qualified to testify as to neurological evidence, which was inherently invoked by discussion of Thomas’s sciatic nerve injury. In response, Dr. Purdy argues that the trial court did not err because Dr. Tucker’s testimony was not neurological in nature, and was both relevant and reliable pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

¶ 15. “The standard of review for a trial court’s decision either to admit or exclude evidence is abuse of discretion.” Burnwatt, 47 So.3d at 114 (¶ 17). “Furthermore, the admission of expert testimony is within the sound discretion of the trial judge.” Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 43 (¶ 4) (Miss. 2003). Rule 702 of the Mississippi Rules. of Evidence gives the trial judge “discretionary authority, reviewable for abuse, to determine reliability in light of the particular facts and circumstances of the particular case.” Id. at 39 (¶ 24) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 158, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). “Therefore, the decision of a trial judge [regarding expert testimony] will stand ‘unless we conclude that the discretion was arbitrary and clearly erroneous,, amounting to an abuse of discretion.’ ” Id. (quoting Puckett v. State, 737 So.2d 322, 342 (¶ 57) (Miss. 1999)).

¶ 16. Rule 702 of the Mississippi Rules of Evidence is identical to Rule 702 of the Federal Rules of Evidence; the United States Supreme Court in Daubert, 509 U.S. at 592-94, 113 S.Ct. 2786, set forth an analytical framework for determining whether expert testimony should be admitted under this rule. In accordance with' this framework, expert testimony should only be admitted if (1) the testimony is relevant — in other words, the testimony will assist the trier of fact in understanding or deciding a fact in issue — and (2) the testimony is reliable, which involves considering the following non-exhaustive factors:

[W]hether the theory or technique can be" and- has been tested; whether it has been subjected to peer review and publication; whether, in respect to a particular technique, there is a high known or potential rate of error; whether there are standards controlling the technique’s operation; and whether the theory or technique enjoys general acceptance within a relevant scientific community.

McLemore, 863 So.2d at 36-37 (¶ 13) (quoting Dauberb, 509 U.S. at 592-94, 113 S.Ct. 2786). Furthermore, the witness must be qualified to testify by virtue of his knowledge, skill, experience, or education! Id. at 39 (¶ 23).

¶ 17. The Mississippi Supreme Court adopted a modified version of the Dauberb analysis in McLemore. Under this modified Analysis, Mississippi courts are to first determine whether the evidence to be offered by the witness is relevant. Id. Rule 401 of the Mississippi Rules of Evidence defines “relevant evidence” as evidence that “has any tendency to make a fact more or less probable than it would be without' the evidence.” “If the proffered evidence has any probative value at all, Rule 401 favors its admission.” McLemore, 863 So.2d at 40 (¶ 27). After ascertaining its relevance, Mississippi courts will use the reliability factors set forth in Dmberb “for guidance” in determining, whether the evidence. should be admitted; appellate courts .are to leave “the determination of which reliability factors are applicable- in particular cases to the sound discretion of our learned trial judges.” Id. at (¶ 28).

¶ 18. Here, the trial court found that Dr. Tucker’s testimony was both relevant and reliable under Mississippi’s application of the Dauberb standard. Further, the judge found that Dr, Tu<?ker was able to testify as to “how a GYÑ surgeon dealing with this particular problem — what they would have considered as the. causes, the proper method of treatment!!,] and. how and when to do it.” Dr. Tucker is a board-certified OBGYN surgeon and medical, professor. He has had over twenty-five-years of medical experience. He personally reviewed Thomas’s medical records and formulated his opinion as to the cause of her post-surgical .injury based on those records. The trial court was well within its discretion in allowing Dr. Tucker’s expert testimony. Accordingly, we find this issue has no merit.

III. Whebher the trial court erred in denying Thomas’s motion for a continuance of trial due to the unavailability of a material expert witness

¶ 19. Thomas argues that the trial court erred when it denied her -motion for a continuance of the trial due to the unavailability of a material witness, Dr. Preston, who purportedly stopped, corresponding or cooperating with Thomas during the week prior to trial when he was to be deposed. Dr. Purdy counters that there was no manifest injustice in denying the motion for a continuance, because Thomas had months, if not years, to depose Dr. Preston regarding whether Thomas had suffered a stretch injury. Further, Dr. Purdy asserts that Dr. Preston was not a material witness.

¶ 20. “Under this Court’s standard of review[,] the granting' of a continuance is largely within the sound discretion of the trial court, and a judgment will.not be reversed because the continuance is refused unless there has been an abuse of sound discretion.” Cleveland v. State, 820 So.2d 37, 39 (¶ 11) (Miss. Ct. App. 2002). Where a litigant “had ample time to locate a medical expert to assist with her claim,” an appellate court will not reverse a trial court’s refusal of a continuance on the basis that such a medical expert was unavailable. Stallworth v. Sanford, 921 So.2d 340, 343 (¶ 11) (Miss. 2006).

¶21. On the last business day before trial, Thomas moved for a continuance based on the fact that Dr.'Preston suddenly ceased all communication with Thomas’s counsel despite a previous willingness to testify in a deposition. Thomas argued that Dr. Preston was a resident of Ohio, and that Thomas was unable to issue letters rogatory in time to secure his presence at trial. Thomas further argued that in July 2014, after over thi’ee years of litigation and two continuances, Dr. Purdy indicated for the first time that hiá expert witnéss, Dr. Tucker, would testify as to Thomas’s injury being caused by a stretch, despite the fact that he had previously opined that Thomas’s injury was not caused by such. Thomas asserted that in light of Dr. Tucker’s revised testimony, she would be prejudiced if she were not able to present Dr. Preston’s testimony that he believed Thomas’s injury was not caused by a . stretch. Thomas also argued that Dr. Pur-dy was granted two prior continuances :that were made days .-in advance of trial, and that she was therefore entitled to a continuance as well.

¶ 22. In response, Dr. Purdy argued that Thomas had plenty of opportunity over the past few. years to depose Dr. Preston, and that Dr. Tucker did not change his opinion as radically as Thomas alleges. Dr. Purdy argued that the language of Dr. Tucker’s original expert designation indicates that Dr. Tucker was considering a stretch as a potential source of Thomas’s injury. Further, Dr. Purdy presented evidence that Thomas asked Dr. Tucker questions regarding a potential stretch injury during Thomas’s deposition of Dr. Tucker. Additionally, Dr. Purdy maintained that Dr. Preston was not a material witness, as he did not have firsthand knowledge as to Thomas’s injury. Finally, Dr. Purdy argued that; Dr. Preston was not even designated as an expert by Thomas; rather, he was designated by Rush Hospital, which had since been dismissed, as a defendant in this matter. Thus, Thomas was seeking to essentially designate a new expert and obtain expert testimony.

¶23, The trial court denied Thomas’s motion, finding that Thomas had had ample time over the course of the litigation— three years at the time of trial — to depose witnesses. The judge stated, “I don’t think there’s anything new about the fact that there’s been a stretch possibility of the cause of the Plaintiffs problems opined by various different experts from the very first time experts were consulted.” .The judge further remarked that Thomas had been put on notice of the possibility that Dr. Purdy would argue that Thomas’s injury was a stretch injury; as such, “these issues ha[d] been out there for everybody to deal with,” and this argument was not a surprise for Thomas. When Thomas reiterated her argument that Dr. Tucker had changed his opinion therefore warranting the opinion of Dr. Preston, the judge held that Thomas should have known it was a possibility that Dr. Purdy would argue that Thomas’s injury was a stretch injury.

¶ 24. We agree with the trial court, and find that it did not abuse its discretion in denying Thomas’s motion for a continuance. Just as the trial judge stated, Thomas should have known from early on in the litigation that it was possible that Dr. Pur-dy would argue that Thomas’s injury resulted from a stretch, particularly due to the fact that Dr. Ahmad and Dr. Malloy both provided medical records opining such. Thomas maintains that she did not receive actual notice until July 2014 that Dr. Tucker’s definitive opinion was that Thomas’s injury was due to a stretch. Regardless, Thomas would have had seven to eight months to obtain a proper medical expert to rebut that opinion. In light of these facts, even accepting that Thomas was severely prejudiced, it cannot be reasonably argued that it was caused by the trial court’s denial of her motion. We therefore find that this issue is without merit. Accordingly, we affirm.

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

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

      . “Foot drop" is defined as "an extended position of the foot caused by paralysis of the flexor muscles of the leg[.]" Foot Drop, Merriam-Webster.com, https ://merriam-webster. com/medical/footckop (last visited Sept. 12, 2016).

      . Thomas conflates the terms "treating physician” and "lay witness.” The court’s January 3, 2014 order provided that Dr. Ahmad and Dr. Malloy could testify in their capacities as treating physicians, which is distinct from that of lay witnesses.

      . Of note is the fact that Thomas had previously filed a motion to strike Dr, Tucker’s testimony, which was denied on November ' 14, 2014.

      . In arguing that the trial court did not err in allowing Dr. Tucker's testimony, Dr. Purdy also asserts that it was actually one of Thomas's experts, Dr. David Billue, whose testimony should not have been admitted. Dr. Tucker and Dr. Billue presented directly contrasting opinions at trial, regarding the placement of Thomas’s sciatic nerve. Since Dr. Purdy did not file a-cross-appeal, we decline to address this issue.


source: Caselaw Access Project

author: GREENLEE, J., WESTBROOKS, J.

license: Public Domain

text:
    Joshua HOWARD a/k/a Joshua L. Howard, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CA-01496-COA
    Court of Appeals of Mississippi.
    04/11/2017
    Rehearing Denied August 22, 2017
    Certiorari Denied November 9, 2017
    ATTORNEY FOR APPELLANT: CYNTHIA ANN STEWART

      ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL: BY: SCOTT STUART JASON L. DAVIS
    BEFORE LEE, P.J., ISHEE AND GREENLEE, JJ.
   GREENLEE, J.,

FOR THE COURT:

¶ 1. Joshua Howard appeals from the Rankin County Circuit. Court’s denial of his motion for an expungement following his gubernatorial pardon. Pursuant to the controlling precedent of Polk v. State, 150 So.3d 967 (Miss. 2014), we affirm.

FACTS AND PROCEEDINGS BELOW

¶2. In 2009, Howard pleaded guilty, to statutory rape and was sentenced to a term of twenty years, with seventeen years suspended. On January 10, 2014, the Governor of the State of Mississippi granted a full, complete,*' and unconditional pardon for Howard’s conviction. On June 25, 2014, Howard filed a motion in the Circuit Court of Rankin County asking that all records be expunged relating to the conviction for which he received the pardon. The court denied his motion, and Howard appeals.

DISCUSSION

¶3. The issue in this appeal is whether the judiciary is required to order an expungement after a gubernatorial pardon is issued pursuant to Article 5, Section 124 of the Constitution of the State of Mississippi. In a five to four decision, the Mississippi Supreme Court held in Polk, 150 So.3d at 968 (¶ 5), that pardoned individuals are not entitled to an expungement under current Mississippi law.

¶4. The Polk majority held that the expungement of criminal records that have been kept pursuant to Mississippi Code Annotated section 45-21-1 (Rev. 2015) is “an act of legislative grace,” and that neither' our State nor our Federal Constitution provides a right to an ex-pungement. Polk, 150 So.3d at 968 (¶ 6). The court stated that “an unconditional pardon solely removes all legal punishment for the offense and prevents any future legal disability based on that offense. It does not edit history.” Id. at 970 (¶ 13). Ultimately, the court held: “There being no statutory basis for expungement of the record of the criminal conviction for which [the appellant] was pardoned, 'the trial court correctly denied [the appellant’s] petition to expunge the record(s) pertaining to his criminal conviction.” Id. at (¶ 14).

¶ 5. The minority opinion in Polk proffered that a criminal record itself is a punishment, and that to fully effectuate the function of a pardon, the record should be expunged. Polk, 150 So.3d at 973 (¶ 23) (Kitchens, J., dissenting in part). See United States v. Padelford, 76 U.S. (9 Wall.) 531, 542, 19 L.Ed. 788 (1869) (superseded in part by statute) (“In the case of Garland, this court held the effect of a pardon to be such .‘that in the eye of the law the offender is as innocent as if he had never committed the offence.’”) (quoting Ex parte Garland, 71 U.S. (4 Wall.) 333, 380, 18 L.Ed. 366 (1866). Given the broad scope of a pardon, the minority would have found that Mississippi’s general expungement statute entitles those pardoned to an ex-pungement. Polk, 150 So.3d at 973 (¶ 24) (Kitchens, J., dissenting in part); Miss. Code Ann. § 99-15-26(5) (Rev. 2015) (“Upon petition therefor, the court shall expunge the record of any case in which an arrest was made, the person arrested was released, and the case was dismissed or the charges were dropped or there was no disposition of such case.”),

¶ 6. The majority holding in Polk has been reaffirmed in. Jones v. State, 158 So.3d 1144, 1146 (¶ 6) (Miss. 2015), and Robertson v. State, 158 So.3d 280, 281 (¶ 1) (Miss. 2015). Polk is fully applicable to Howard’s circumstances, and we therefore affirm the judgment of the trial court.

CONCLUSION

¶ 7. The trial court did not err in denying Howard’s motion for an expungement. Under current Mississippi law, an individual is not entitled to an expungement following receipt of a gubernatorial pardon. Howard’s argument on appeal is therefore without merit.

¶ 8. THE JUDGMENT OP THE RANKIN COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR AND WILSON, JJ., CONCUR. WESTBROOKS, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY . IRVING, P.J.

WESTBROOKS, J.

SPECIALLY CONCURRING:

¶ 9. I .agree that the Mississippi Supreme Court has held that one who Has received á gubernatorial pardon is not entitled to an expunction of his record by the State under our State or Federal Constitution. Therefore, we are bound to follow the law of our highest court. I write separately because I agree with the dissent in Polk v. State, 150 So.3d 967, 971 (¶ 23) (Miss. 2014). I am of the opinion that the effect of a gubernatorial pardon entitles one to an expungement.

. ¶ 10. Justice Kitchens addressed the issue of gubernatorial pardons and expungement in his dissent in Polk v. State, 150 So.3d 967, 971 (¶ 23) (Miss. 2014) (Kitchens, J., dissenting in part). The majority opines that “an unconditional pardon solely removes all legal punishment for the offense and prevents any future legal' disability based on that offense. It does not edit history.” Maj. Op. at (¶ 4). But a record of conviction is a “punishment,” not unlike the restrictions on a person’s liberty that may accompany conviction. Polk, 150 So.3d at 971 (¶ 23) (Kitchens, J., dissenting in part).

¶ 11. In Hentz v. State, 152 So.3d 1139, 1146 (¶ 25) (Miss. 2014), Justice Kitchens also opined in his dissent that the plurality’s decision to uphold Polk diminishes the effect of gubernatorial pardons in Mississippi! I agree. Justice Kitchens wrote' in part:

The plurality further opines that, “ex-pungement is statutory in nature, and the Mississippi Legislature has ‘authorized expungement of criminal offender records in limited cases.’ Caldwell v. State, 564 So.2d 1371, 1372 (Miss. 1990).” But Mississippi Code Section 99 — 15— 57(2) (Rev. 2007) provides that, “upon petition therefor, the court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case.” Section 99-15-57(2), coupled with the breadth of the common law language articulated in Crisler that a gubernatorial pardon .“makes the fact of conviction as if it never was,” mandates expungement. [Ex Parte Crisler, 159 Miss. 247, 250, 132 So. 103 (1931)].

Hentz, 152 So.3d at 1146 (¶ 24) (Kitchens, J., dissenting).

¶ 12. The point of a gubernatorial pardon is to restore the rights of the accused and convicted as if the conviction never had occurred. Id. To allow the conviction to remain on one’s record after receiving a gubernatorial pardon is contrary to the spirit of the pardon and undermines the effect of it. There is no benefit in seeking a full pardon if a person, after demonstrating he is deserving of the same, is likely to face the same disabilities of a criminal conviction when he attempts to reenter society. Furthermore, the governor’s decision to pardon is demonstrative of the State’s certitude that it no longer has an interest in preserving the conviction. A full and unconditional pardon and an expunction must go hand in hand; otherwise the pardon will not-realize its effect of restoration. “If granted after conviction,, it removes the penalties and disabilities, and restores [the person convicted] to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.” Polk, 150 So.3d at 971 (¶ 19) (Kitchens, J., dissenting in part) (quoting Ex Parte Garland, 71 U.S. (4 Wall.) 333, 380-81, 18 L.Ed. 366 (1866)).

¶ 13. I agree with the dissent in Polk and would find that Mississippi statutes and case law give circuit courts authority to mandate expungement for gubernatorial pardons. Based upon this premise, I would find that the Rankin County Circuit Court possessed the authority to grant an ex-pungement due to Howard’s gubernatorial pardon.

IRVING, P.J., JOINS THIS OPINION.

      , See also Hentz v. State, 152 So.3d 1139, 1140 (¶ 1) (Miss 2014) (With only eight justices participating, the supreme court affirmed the trial court’s denial of an expungement on a four-four vote.).

      . Knote v. United States, 95 U.S. 149, 24 L.Ed. 442 (1877); Carlisle v. United States, 83 U.S. (16 Wall.) 147, 21 L.Ed. 426 (1872); United States v. Klein, 80 U.S. (13 Wall.) 128, 20 L.Ed. 519 (1871); United States v. Padelford, 76 U.S. (9 Wall.) 531, 19 L.Ed. 788 (1869) •(superceded by statute on other grounds); Garland, 71 U.S. 333.


author: BARNES, J.,

text:
    PAIGE ELECTRIC COMPANY, Appellant v. DAVIS & FEDER, P.A., Appellee
    NO. 2015-CA-01658-COA
    Court of Appeals of Mississippi.
    04/11/2017
    Rehearing Denied August 1, 2017
    Certiorari Denied October 19, 2017

      ATTORNEY FOR ■ APPELLANT: BLEWETT W. THOMAS
    ATTORNEYS FOR APPELLEE: JAMES GRADY WYLY III, KYLE STUART MORAN, ADAM BLAKE HARRIS
    BEFORE LEE, C.J., BARNES AND FAIR, JJ.
   BARNES, J.,

FOR THE COURT:

¶ 1.' Paige Electric Company (Paige Electric) filed a malpractice suit against Davis & Feder P.A., claiming the firm mishandled its legal claims and committed malpractice. Because the retainer agreement between the parties contained an arbitration clause, the case was submitted to an arbitrator, who issued an award in favor of Davis & Feder and denied Paige Electric any relief.

¶2. Paige Electric filed motions in the First Judicial District of Harrison County Circuit Court to declare the arbitration clause void and to vacate the arbitration award. The circuit court denied the motions, • dismissing Paige Electric’s claims with prejudice. Paige Electric now appeals, claiming the circuit court erred in finding that Paige Electric waived any objection to the arbitration clause by voluntarily participating in the arbitration. Paige Electric also asserts that the arbitration award in favor of Davis & Feder should be vacated, as the arbitrator exceeded his authority in violation of Mississippi Code Annotated section 11 — 15—23(d) (Rev. 2004) and 9 United States Code section 10(a)(4) (2012).

¶ 3. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶4. After Hurricane Katrina hit .the Mississippi Gulf Coast in 2005, Southern Construction Services Inc. (SCS) hired Paige Electric as a subcontractor to provide electrical contracting on all of SCS’s projects. Paige Electric’s owner, Jerry Paige, was also hired by SCS as its general supervisor due to his certification in building construction and electrical contracting.

¶ 5. When SCS failed to pay Paige Electric for its services on its last project, Studio Inn, Paige Electric hired Davis & Feder to handle its claim to collect the unpaid balance of $271,364.22. The Retainer Agreement, entered into on March 19, 2007, contained an arbitration clause, which stated:

This provision regarding arbitration of disputes shall apply to any dispute between the parties which arises from, or is related to, a claimed breach of this agreement, the professional legal services rendered by Davis & Feder, P.A. or any claim for legal and or professional malpractice, or any claim or disagreement between the parties of any kind, nature, type or description regardless of the facts or the legal theories which may be involved or asserted .... You are specifically agreeing to waive your right to a trial by jury regarding any claims or disputes you may have arising from this Agreement.

The associate attorney who worked on the case, David Brisolara, pursued two separate claims against SCS on Paige Electric’s behalf: (1) the collection of the unpaid balance; and (2) a lien pursuant to Mississippi Code Annotated section 85-7-181 (Rev. 1999) against Studio Inn’s owner, Hancock Hotels. Although Brisolara filed a notice of construction lien with the Harrison County Chancery Clerk on March 21, 2007, no suit was filed regarding the construction lien. Brisolara was successful in obtaining a default judgment of $271,364.22 against SCS on November 7, 2007, but as SCS was insolvent at this point, efforts to collect the judgment were unsuccessful. Brisolara left Davis & Feder at the end of 2008, and the law firm terminated its representation of Paige Electric in January 2009. .

II6. It was not until March 2013 that Jerry Paige discovered that no lien had been placed on Hancock Hotels’ property. On January 16, 2014, Paige Electric filed a malpractice suit against Davis & Feder, asserting that the firm should have “done more” to collect the company’s claims against SCS. Davis & Feder moved to dismiss the complaint. On June 9,2014, the circuit court entered an agreed order referring the case to arbitration.

¶ 7. The parties agreed to the appointment of William Larry Latham as both arbitrator and special master for purposes of presiding over third-party discovery. Following discovery, a three-day arbitration hearing was held on May 27-29, 2015, with both parties presenting expert testimony. On July 23, 2015, the arbitrator published his award, dismissing with prejudice all claims against Davis & Feder.. As the parties agreed to a . short form order, there were no findings of fact or conclusions of law.

¶ 8. Davis & Feder subsequently filed a motion with the circuit court to confirm the award and enter a final judgment. Aggrieved, Paige Electric moved the circuit court to vacate the award as beyond the scope of the arbitration agreement and for “grounds enumerated in both Miss. Code Ann. § ll-15-23(a-d) and 9 U.S.C. § 10(a)(l-4).” Paige Electric also filed a motion to declare the arbitration clause invalid, or in the alternative, to sever the claims involving the lien from the agreement and set those claims for trial. On October 30, 2015, the circuit court held a hearing on the parties’ motions. Finding that Paige Electric “waived any objection [it] may have had with regard to the arbitration of the lien claims,” and that a “[cjhallenge to the arbitration clause ... should have been made ... prior to the referral for arbitration,” the court denied Paige Electric’s motion to invalidate the arbitration clause, or alternatively, to sever the statutory lien claims for trial. The circuit judge also denied Paige Electric’s motion to vacate the award, finding nothing in the record to indicate the arbitrator “exceeded his powers or ... flouted the law.” The court granted Davis & Feder’s motion for entry of judgment, entered an order confirming the arbitrator’s award, and dismissed Paige Electric’s-claims with prejudice.

¶ 9. On appeal, we find no error and affirm.

STANDARD OF REVIEW

¶ 10. “In arbitration cases, ... the scope of review is extremely limited.” Wilson v. Greyhound Bus Lines Inc., 830 So.2d 1151, 1155 (¶ 9) (Miss. 2002). “The scope of judicial review of an arbitration award is quite narrow, and every reasonable presumption will be indulged in favor of the validity of arbitration proceedings.” Id. (quoting Craig v. Barber, 524 So.2d 974, 977 (Miss. 1988)).

DISCUSSION

I. Whether the circuit court erred in denying Paige Electric’s motion to declare the arbitration clause invalid, or alternatively, to sever the lien claims from the arbitration award and set those claims for trial.

¶11. Addressing Paige Electric’s claim that the arbitration clause in the retainer agreement was unconscionable, and its alternative claim the malpractice claims involving the lien should be severed from the arbitration award and set for trial, the circuit court concluded that the company had waived any objection, as it had voluntarily consented to the arbitration.

¶ 12. Mississippi has not addressed the precise issue of whether a challenge to the validity of an arbitration clause may be brought post-arbitration. But other jurisdictions have held that participation in arbitration proceedings waives the right to object to an arbitrator’s authority. “A party cannot ‘sit silent, wait until an adverse award is issued, and then first argue that the arbitrator did not have the authority even to hear the claim.’” Advocate Fin. Grp. v. Poulos, 380 Ill.Dec. 428, 8 N.E.3d 598, 609 (¶ 53) (Ill. App. Ct. 2014) (quoting First Health Grp. v. Ruddick, 393 Ill.App.3d 40, 331 Ill.Dec. 971, 911 N.E.2d 1201, 1213 (2009)); see also Ahluwalia v. QFA Royalties LLC, 226 P.3d 1093, 1098 (Colo. App. 2009) (“If a party willingly allows an issue to be submitted to arbitration, it cannot await the outcome and later argue that the arbitrator lacked authority to decide the matter.”). “[Willing participation is consent to the arbitrator’s power to resolve the dispute.” Unite Here Local 23 v. I.L. Creations of Maryland Inc,, 148 F.Supp.3d 12, 19 (D.D.C. 2015). “Given that arbitration is an optional alternative to judicial resolution of disputes[,] ... when the parties have agreed to arbitration, the law discourages the loser from seeking a second de novo (or even quasi-de novó) shot at obtaining its desired re-sulte.]” Id. at 18-19.

¶ 13. Paige Electric argues that because there was a “separate contract prepared for lien claims against the hotel” produced on February 25, 2015, during discovery, “Paige Electric cannot be considered to have consented to arbitration,” and it “cannot be bound to any agreement to arbitrate the dispute over the lien claims[.]” The circuit court judge declined to make any findings “whether there was a second contract or not,” because the lien claims were submitted for arbitration and had been decided by the arbitrator. But the court did observe that the “second contract ,.. was known to Paige Electric in February by [its] own pleadings, and at that time [it] had fully the ability to say ... these liens aren’t included.” The judge concluded:

[It] didn’t do that. What [it] did do, however, was go through the entire arbitration process, two and a half days of arbitration hearings, and then submit a post-hearing memorandum ... [that] very clearly indicates the -lien claims were considered and are part of the arbitration.
And, therefore, the court finds [Paige Electric] waived any objection [it] may have had with regard to the arbitration of the lien claims. Whether the court agrees they would have been included or not, the parties agreed to include them, the arbitrator was presented those.

¶ 14. At no point prior to or during the arbitration hearing did Paige Electric object to arbitrating the lien claims. Paige Electric was represented by counsel throughout this process, and the parties agreed to arbitration; 'it was not court-ordered. In a letter to Davis & Feder, dated June 12, 2013, counsel for Paige Electric stated that “[t]here is no objection to this [arbitration] procedure,” and he requested that “appropriate steps be taken at this time to arrange for arbitration of this claim[.]” Thus, we find no error in the circuit court’s determination that Paige Electric waived its right to object to the validity of the arbitration clause and to the arbitration of the lien claims.

¶ 15. Notwithstanding the waiver of the claims, we find no merit to Paige Electric’s claim that the arbitration clause was procedurally unconscionable because the arbitration clause was not properly explained to Jerry Paige, and because the clause is “inconspicuous” and used “overly broad verbiage.” Whether an arbitration clause is procedurally unconscionable can be shown by: “(1) lack of knowledge; (2) lack of voluntariness; (3) inconspicuous print; (4) the use of complex, legalistic language; (5) disparity in sophistication or bargaining power of the parties; and/or (6) lack of opportunity to study the contract and inquire about the terns.” See Caplin Enters. Inc. v. Arrington, 145 So.3d 608, 614 (¶ 12) (Miss. 2014) (citing MS Credit Ctr. Inc. v. Horton, 926 So.2d 167, 177 (¶ 29) (Miss. 2006)).

¶ 16. The retainer agreement was a simply-worded five-page agreement, and the arbitration clause took up an entire page of the contract, in an easy-to-read font. Compare E. Ford Inc. v. Taylor, 826 So.2d 709, 716-17 (¶ 21) (Miss. 2002) (finding an arbitration provision “procedurally unconscionable,” as the “preprinted” arbitration clause “appears less than one-third the size of many other terms in the document, [and] appears in very fine print and regular type font”). Moreover, in the June 12, 2013 letter from Paige Electric’s counsel to Davis & Feder, the attorney stated that “[Jerry] Paige advises me that his contract with Davis [&] Feder requires all disputes with clients be arbitrated,” indicating an understanding by Jerry Paige of the agreement’s terms and conditions.

¶ 17. We also reject, on the merits, Paige Electric’s alternative claim that the arbitration clause only applied to the representation for the claim against SCS for payment, not the claims related to the “prosecution of any liens or related claims against Hancock Hotels,” and that “the malpractice claims related to the hotel owner should be severed and set for trial before a jury.” Paige Electric cites Complaint of Hornbeck Offshore (1984) Corp., 981 F.2d 752, 754-55 (5th Cir. 1993), to support its claim. However, the retainer agreement states that the provision regarding the arbitration of disputes “shall apply to any dispute between the parties which arises from, or is related to, a claimed breach of this agreement[.]” (Emphasis added). In Hombeck, the United States Court of Appeals for the Fifth Circuit specifically held that “arbitration clauses containing the ‘any dispute’ language ... are of the broad type.” Id. at 755. “[I]t is difficult to imagine broader general language than that contained in the arbitration clause, ‘any dispute.’ ” Id. (citation omitted). The Mississippi Supreme Court has also held:

Broad arbitration language governs disputes “related to” or “connected with” a contract, and narrow arbitration language requires arbitration of disputes that directly “arise out of’ a contract .... Because broad arbitration language is capable of expansive reach, courts have held that “it is only necessary that the dispute touch matters covered by the contract to be arbitrable.”

Horton, 926 So.2d at 176 (¶¶ 24-25) (quoting Pennzoil Exploration & Prod. Co. v. Ramco Energy Ltd., 139 F.3d 1061, 1067-68 (5th Cir.1998)). We find the lien claim against the hotel owner was directly “related to” Paige Electric’s claims against SCS; the lien against the hotel owner was necessary only in the event that Paige Electric could not collect a judgment from SCS.

¶ 18. Accordingly, we find the circuit court did not err in denying Paige Electric’s motion to declare the arbitration clause invalid, or alternatively, to sever Paige Electric’s lien claims from the arbitration award and set those claims for trial.

II. Whether the circuit court committed reversible error by denying Paige Electric’s motion to vacate the arbitration award.

¶19. Paige Electric argues that the award should be vacated as Davis & Feder were negligent as a matter of law, and therefore, the arbitrator disregarded the evidence and exceeded the scope of his authority. The United States Supreme Court has held that in reviewing whether an issue is arbitrable, “considerable leeway [should be given] to the arbitrator” and his or her decision should be set aside “only in certain narrow circumstances.” First Options of Chicago Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995).

Errors of law or fact, or an erroneous decision of matters submitted to the judgment of the arbitrators, are insufficient to invalidate an award fairly and honestly made. Nothing in the award relative to the merits of the controversy as submitted, however wrongly decided, is ground for setting aside an award in the absence of fraud, misconduct or other valid objections.

Wilson, 830 So.2d at 1156 (¶ 12) (quoting Hutto v. Jordan, 204 Miss. 30, 36, 36 So.2d 809, 811 (1948)).

¶ 20. “[JJudicial review of arbitration award is narrowly limited, and a motion to vacate, modify, or correct an arbitration award is not an opportunity to relitigate issues decided in the arbitration.” City of Hattiesburg v. Precision Constr. LLC, 192 So.3d 1089, 1096 (¶ 27) (Miss. Ct. App. 2016). Mississippi Code Annotated section 11-15-23 (Rev. 2004) provides the four grounds upon which an arbitrator’s decision may be vacated:

(a) That such award was procured by corruption, fraud, or undue means;
(b) That there was evident partiality or corruption on the part of the arbitrators, or any one of them;
(c) That the arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, or in refusing to hear evidence pertinent or material to the • controversy, or other misbehavior by which the rights of the party shall have been prejudiced;
(d) That the arbitrators exceeded their powers, or that they so imperfectly executed them that a mutual, final, and definite award on the subject matter was not made.

“In Mississippi, we have always considered ‘undue means’ to constitute some nefarious conduct on the part of the arbitrator — not simply an incorrect or sloppy conclusion of law.” Robinson v. Henne, 115 So.3d 797, 802 (¶ 17) (Miss. 2018) (citing McClendon v. Stewart, 133 Miss. 253, 258, 97 So. 547 (1923)). The Mississippi Supreme Court has held;. “[A] mistake of law, a mistake of fact, or a decision lacking an evidentiary basis is insufficient to .constitute a violation of any of the four statutory categories that permit the vacatur of an arbitrator’s decision.” Id. at 803 (¶ 19).

¶21, The circuit judge found that-the arbitrator did not exceed his powers in this instance. She further concluded there was “nothing in this record to indicate that Mr., Latham refused or failed to review the case law, nothing to indicate, he had any preconceived notions or opinions and certainly nothing to indicate what evidence he focused on or didn’t focus on.” We find no error.in the circuit court’s holding. Giving a reasonable presumption “in favor of the validity of arbitration proceedings,” we affirm the circuit court’s judgment.

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

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

      . Section 85-7-181 provides a statutory remedy under which a subcontractor could file a stop notice against an owner if the subcontractor supplied materials or labor for a construction project and was not paid by the general contractor. This statute was later held to be unconstitutional and was repealed in 2014. See Noatex Corp. v. King Constr. of Houston LLC, 732 F.3d 479, 482 (5th Cir. 2013) (affirming the district court's determination that Mississippi’s stop notice statute, 'section 85-7-181, “is facially unconstitutional”).

      . For clarity of discussion, we have combined Issues I and II from the appellant’s brief.

      . The second "contract” was merely handwritten notes made by Brisolara on a legal pad, dated March 16, 2007, three days prior to the parties' signing the retainer agreement. The note has Jerry Paige’s name at the top, and simply states "Hourly pay for lien. [One-third] for suit”.and that Jerry Paige ."wants to sign contract against [SCS and] Studio Inn and file suit.” There is no evidence that Paige Electric signed a second contract for the lien work at an hourly rate; nor is there evidence Davis & Feder billed Paige Electric for this work. .


author: CARLTON, J.,

text:
    In re: The ESTATE OF Norair AVAKIAN, Deceased: Burnette Avakian, Executrix, Appellant v. WILMINGTON TRUST NATIONAL ASSOCIATION, as Successor Trustee to Citibank, N.A., as Trustee for Bear Stearns Asset Backed Securities Trust 2007-2, Asset-Backed Certificates, Series 2007-2 and JP Morgan Chase Bank, N.A., Appellees
    NO. 2015-CA-01520-COA
    Court of Appeals of Mississippi.
    4/11/2017
    Rehearing Denied August 8, 2017
    Certiorari Denied October 26, 2017

      ATTORNEYS. FOR APPELLANT: STEVEN CRAIG PANTER, DAVID L, SANDERS .
    ATTORNEYS FOR APPELLEES: WILLIAM JACOB LONG IV, EDDIE TRAVIS RAMEY, CHRISTOPHER DANIEL MEYER
   CARLTON, J.,

FOR THE COURT:

¶ 1. Norair Avakian died July 19, 2010. On July 28, 2010, the Lowndes County Chancery Court entered an order probating Norair’s last will and testament and issued letters testamentary to his widow, Burnette Avakian, to serve as executrix of Norair’s estate (“Estate”). Three separate lawsuits were filed as a result of attempts by creditors to foreclose on Norair’s property and seek damages based on the default of a promissory note that Norair executed prior to his death. We will first provide a brief procedural history of the matter in the probate case before us on appeal. We will then provide a more in-depth discussion of the relevant matters involving the three separate actions filed against the Estate and the executrix, Bur-nette, in the facts section below.

¶2. On October 15, 2014, J.P. Morgan Chase Bank N.A. (“J.P. Morgan”) filed a statement of claim against the Estate in the chancery court based upon Norair’s debt arising from a promissory note of $815,905.06. J.P. Morgan, as the servicer of the loan resulting from the promissory note, filed the stateme'nt of claim on behalf of Citibank N.A. (“Citibank”), the creditor. In the probate action, on January 30, 2015, Burnette, as executrix, filed her contest of J.P. Morgan’s statement of plaim, asserting that any claim on the promissory note was time-barred by Mississippi Code Annotated section 15-1-25 (Rev. 2012), and that pursuant to Mississippi Code Annotated section 15-1-3 (Rev. 2012), the underlying claim was extinguished. On May 27, 2015, Wilmington Trust National Association (“Wilmington Trust”), which replaced Citibank as the creditor, filed a response to Burnette’s contest of the claim in the probate proceeding.

¶ 3. On June 15, 2015, the chancellor heard oral argument on Burnette’s contest of the statement of claim in the probate proceeding. The chancellor stated that “the sole issue before this court is whether or not a creditor’s claim as it related to a promissory note is time[-]barred,” and the chancellor ultimately found that although J.P. Morgan filed its statement of claim outside of the ninety-day statutory time period in which to probate a claim against the Estate pursuant to Mississippi Code Annotated section 91-7-151 (Rev. 2013), the claim was still timely filed in the probate action due to Burnette’s failure as executrix to provide all reasonably ascertainable creditors with notice of probate of the Estate pursuant to Mississippi Code Annotated section 91-7-145 (Rev. 2013).

¶4. Burnette now appeals the chancellor’s judgment, asserting the following assignments of error: (1) the chancellor erred in finding that an order from the United States Court of Appeals for the Fifth Circuit prohibiting a lender from foreclosing on property owned by Burnette tolled the running of the statute of limitations on the Creditor’s statement of claim regarding the promissory note, and (2) the chancellor erred in finding that Burnette could not rely upon the statute of limitations because she failed to mail written notice to creditors of the opening of the Estate and the need to file a claim, pursuant to section 91-7-145(1).

¶ 5. The only issue before us on appeal is whether the claim filed by the Creditor in the probate proceeding was timely filed. Finding no error in the chancellor’s judgment that the Creditor’s statement of claim was timely filed in the probate proceeding, we affirm as to that issue.

FACTS

¶ 6. On September 18, 2002, Norair and his wife, Burnette, purchased a house located in Columbus, Mississippi. They executed a deed of trust to secure a loan for the purchase from Southstar Financing LLC. The record reflects that title to the property was vested in both Norair’s and Burnette’s names as joint tenants.

¶ 7. On Novemher 2, 2004, Norair executed a deed that conveyed title to the property to Burnette alone to prevent Bur-nette from bearing any liability for the debt should Norair die. In March 2006, Norair and Burnette then refinanced the mortgage with EquiFirst Corporation (“EquiFirst”). Norair took out a loan in his name only and executed a promissory note in favor of EquiFirst EquiFirst required both Burnette and Norair to execute a deed of trust. Norair was out of state at the time of closing, so EquiFirst forwarded one set of loan documents to him so he could execute and'return the documents. EquiFirst, had Burnette execute a second set the following day. This resulted in two deeds of trust on the property — one executed by Norair on March 7, 2006, and one executed by Burnette on March 8, 2006. Each deed of trust was recorded .as a separate instrument with the Lowndes County Chancery Clerk.

¶ 8. Norair’s promissory note to Equi-First was later sold to Citibank in its capacity as trustee of the Bear Sterns Asset Backed Securities Trust 2007-2, Asset-Backed Certificates, Series 2007-2 (“Bear Sterns”). J.P. Morgan became the servicing agent for Citibank. On December 3, 2012, Wilmington Trust replaced Citibank as the trustee for Bear Sterns, We recognize that J.P. Morgan served as the servicer for the loan, ánd EquiFirst, Citibank, and Wilmington Trust were the creditors.

¶ 9. Norair fell in default on the loan and died shortly thereafter on July 19, 2010. On July 28, 2010, Burnette filed a petition for probate of Norair’s last will and testament. That same day, the chancery court entered an order probating the last will and testament and issued letters testamentary to Burnette to serve as executrix of the Estate. Burnette failed to identify any entity as a known creditor of the Estate pursuant to section 91-7-145, and she also failed to provide the Creditor herein, or any creditor, notice by mail as required by section 91-7-145 regarding the probate of the Estate. The record reflects that Bur-nette did'file a “Notice to Creditors Affidavit” stating that she had and would notify known creditors, without listing any specific creditors.

¶ 10. The Creditor made its first attempt at foreclosure on the home as early as December 2010 but never completed the process. In early 2012, the Creditor again provided Burnette notice that it intended to foreclose on the house. The Creditor set the foreclosure sale for May 10, 2012.

¶ 11. Ón May 9, 2012, thé day before the scheduled foreclosure sale, Burnette filed suit in the chancery court against the Creditor seeking to enjoin the foreclosure by contending that the two deeds of trust on the home were both void pursuant to Mississippi Code Annotated section 89-1-29 (Rev. 2011) because neither deed contained the signatures of both Burnette and Norair. The lawsuit was removed to the United States District Court for the Northern District of Mississippi.

¶ 12. Following a trial, the district court entered a final judgment on February 10, 2014, in favor of Burnettes and held that the deeds of trust on the house were unenforceable. The Creditor appealed the deeision to the .Fifth Circuit. During the appeal, the Fifth Circuit issued a stay on May 12, 2014, that prohibited foreclosure of the property during the pendency of the appeal.

1113. On-October 14, 2014, after receiving the ruling from the district court, the Creditor filed a statement of claim in the probate proceeding pending in chancery court based upon Norair’s debt arising from the promissory note of $815,905.06, The statement of claim set.forth that “[t]he claim was presumed secured pursuant to a mortgage loan; however, the claim has been deemed unsecured via [the district court’s judgment].”

¶ 14. On December 9, 2014, the Fifth Circuit reversed the district court after finding that the Mississippi Supreme Court would likely construe the two deeds of trust as together creating a valid deed of trust and remanded the case for further proceedings. The Creditor then filed a motion for entry of final judgment in the district court.

¶ 15. In the probate action now before us on appeal, the record shows that on January 30, 2015, Burnette filed her contest of J.P. Morgan’s statement of claim, asserting that any claim on the promissory note was time-barred by section 15-1-25, and that pursuant to section 15-1-3, the underlying claim was extinguished. The Creditor filed a response to Burnette’s contest of claim on May 27, 2015. On June 12, 2015, Burnette filed her Reply of Executrix.

¶ 16. In the meantime, on February 23, 2015, the Creditor filed a separate suit in the chancery court against both Burnette, individually, and the Estate, seeking to foreclose on the home and to recover damages against the Estate on the promissory note.

¶ 17. In June 2015, the chancellor heard arguments from the Creditor and Burnette regarding the Creditor’s statement of claim. On September 8, 2015, the chancellor issued an opinion and judgment in favor of the Creditor. In his judgment, the chancellor stated that “the sole issue before this court is whether or not a creditor’s claim as it related to a promissory note is time[-]barred. The issues of whether or not foreclosure proceedings and/or deeds. of trusts are valid were heard in another cause and ultimately, by the federal courts.”

¶ 18. In his' judgment, the chancellor examined Burnette’s argument that the Creditor’s statement of claim is time-barred because the statement was filed outside the ninety-day requirement for filing probate claims set forth in section 91-7-151. The chancellor found that Burnette, as executrix, failed to mail the statutorily required notice to the Creditor, who was unquestionably a reasonably ascertainable creditor at the .time the chancery court issued letters testamentary to Burnette. The chancellor explained that “a strict and literal interpretation of ... [section] 91-7-145(1) mandates that the promissory note holder [(Citibank)] be given notice by mail before the [ninety] days specified in ,.. [section] 91-7-151 begins to run.” The chancellor determined that since Burnette, as executrix, failed to provide the Creditor with proper notice of its right to file a claim against the Estate, the October 14, 2014 statement of claim filed by the Creditor was therefore timely.

¶ 19. The chancellor further found that since Burnette received letters testamentary on July 28, 2010, the ninety-day moratorium on suits against an executor, provided by Mississippi Code Annotated section 91-7-239 (Rev. 2013), expired on October 26, 2010. As a result, the chancellor concluded that the four-year statute-of-limitations period provided by section 15-1-25 for a creditor to bring an action against an executor began to run on October 26, 2010, and expired on October 26, 2014. The chancellor found that “neither [the Creditor],’ nor any other party, filed suit against the Estate to enforce the promissory note prior to October 26, 2014.” Although the Creditor filed a statement of claim on October 14, 2014, the chancellor explained that “the filing of a claim by a creditor is not sufficient to stop, the running of the statute: of limitations, even if timely filed”; rather, in order to enforce its claim, the creditor must bring a lawsuit before the four-year statute of limitations expires. The chancellor ruled that , the Creditor’s statement of claim was therefore time-barred unless: (1) the Creditor’s prior 2010 and 2012 foreclosure attempts constituted a lawsuit for purposes- of section 15-1-25; or (2) the running of section 15-1-25 is tolled based on the Fifth Circuit’s stay on the proceedings.

¶ 20. The chancellor determined that the foreclosure actions of 2010 and 2012 failed to constitute a lawsuit for the purposes of section 15-1-25. The chancellor found, however, that the Fifth Circuit’s May 12, 2014 stay-of-proceedings order that prohibited the Creditor from ■ foreclosing on Burnette’s house began the tolling of section 15-1-25 as to the promissory note. The chancellor explained that the tolling period then ended on either one- of two dates: at its earliest on December 9, 2014, when the Fifth Circuit - reversed the district court or, at the latest; on August 4, 2015, when the district court entered its final-judgment. The chancellor held “in either case, [the Creditor] filed its lawsuit against the Estate and [Burnette] on Feb-, ruary 23, 2015, less than three months after the Fifth Circuit reversed the trial court, and thereby timely.”

¶ 21. On October 6, 2015, Burnette filed a notice of appeal. She rehoticed her appeal two days later.

STANDARD OF REVIEW

¶ 22. This Court “will not disturb a. chancellor’s findings unless they are manifestly wrong, clearly erroneous, or the chancellor applied an erroneous legal standard.” Howard v. Gunnell, 63 So.3d 589, 593 (¶ 8) (Miss. Ct. App. 2011). We apply an abuse-of-discretion standard when reviewing a chancellor’s decision. Id.(citing Creely v. Hosemann, 910 So.2d 512, 516 (¶ 11) (Miss. 2005)).

¶ 23. “The issue of whether the applicable statute of limitations has run is a question of law.” Stringer v. Trapp, 30 So.3d 339, 341 (¶ 9) (Miss. 2010) (citing Wayne Gen. Hosp. v. Hayes, 868 So.2d 997, 1000 (¶ 11) (Miss. 2004)). “We utilize a de novo- standard of review when reviewing questions of law.” Howard, 63 So.3d at 593 (¶ 8). The Mississippi Supreme Court has explained that “[t]he burden of proving an affirmative defense lies upon the party who relies upon that defense[, and] ... when a [party] pleads the statute of limitations as a defense and shows that the suit is thereby barred, he has met this burden of proof.” Jenkins v. Pensacola Health Tr. Inc., 933 So.2d 923, 927 (¶ 14) (Miss. 2006).

¶ 24. This Court has held that “[a] probated claim must substantially comply with the provisions of ... [section] 91-7-149.” In re Estate of Lingle, 822 So.2d 320, 322 (¶ 12) (Miss. Ct. App. 2002) (citing Cent. Optical Merch. Co. v. Lowe’s Estate, 249 Miss. 61, 71, 160 So.2d 673, 678 (1964)). In Estate of Lingle, 822 So.2d at 322-23 (¶ 12), we explained that “[t]he written evidence or statement of claim must on its face show a prima facie right to recover from the estate or that liability exists on the part of the estate.” This Court further provided:

An adequate claim must give notice that it existed against the estate, must distinguish the claim with reasonable certainty from all other similar claims[,] and must give information concerning the nature and amount of the demand so that it would enable the representative of the estate to act intelligently either in providing for its payment or in rejecting it.

Id. at 323 (¶ 12); see also Thornhill v. Thornhill, 905 So.2d 747, 752 (¶¶ 14-15) (Miss. Ct. App. 2004) (addressing a determination of the timeliness of a probate claim where the claimant was a minor, this Court explained that the question was whether the claimant “could prove any set of evidence that would entitle him to relief against [the estate]”).

DISCUSSION

¶ 25. The sole issue before us on appeal is whether the Creditor timely filed its statement of claim against the Estate on the promissory note in the probate proceeding. We first turn to examine whether the chancellor erred in finding that the Creditor’s October 15, 2014 statement of claim was not barred.

¶ 26. Section 91-7-151 bars all claims against the estate of a deceased person, whether due or not, that were filed more than ninety days after the first publication of notice to creditors to present their claim. As previously stated, the record reflects that Burnette, as executrix, failed in her statutory duty pursuant to section 91-7-145(1) to provide notice to any creditors regarding the probate of Norair’s estate. We acknowledge that jurisprudence and the plain language of section 91-7-145 therefore reflect that the chancellor correctly found that the filing period for probate claims in this case did not expire since Burnette failed to provide the required statutory notice to trigger the running of the filing period. See Miss. Code Ann. § 91-7-145(1); Bankston v. First Nat’l Bank & Tr. Co. of Vicksburg, 177 Miss. 719, 719, 171 So. 18, 19-20 (1936). In our review of the law as applied to this case, we turn now to the record. ■

¶27. The record reflects that on July 28, 2010, the chancery court entered an order probating the last will and testament and issued letters testamentary to Burnette to serve as-executrix of the Estate. As stated, the Creditor filed no statement of claim until October 15, 2014. In his judgment, the chancellor also acknowledged Burnette’s failure to provide the required statutory notice to the Creditor, stating as follows: ■■

After the U.S. District Court deemed the subject deeds of trust invalid in February 2014, and finding itself with the possibility of an unsecured promissory note, [the Creditor] filed a Statement of Claim in the Estate on October 15, 2014. The Claim was filed outside of the [ninety]-day statutory time period in which to probate a claim against the Estate. See Miss. Code Ann. § 91-7-151. Thus, one could argue that the claim was untimely and, therefore, barred. -
However, Wife, as Executrix, is required by ... [section] 91-7-145(1) to mail no-' tice to “reasonably ascertainable” creditors. [In re Estate of Petrick ], 635 So.2d 1389, 1393 (Miss. 1994). A reasonably ascertainable creditor is one who is discoverable through “reasonably diligent efforts.” Id.
There is no question that the promissory note holder was a reasonably ascertainable- creditor and that Wife did not mail notice pursuant to .... [section] 91-7-145(1).
A strict and literal interpretation of .... [section] 91-7-145(1) mandates that the promissory note holder be given notice by mail before the [ninety] days specified in ... [section] 91-7-151 begins to run. See In re Estate of Ladner, 911 So.2d 673, 676 (Miss. [Ct. App.] 2005).
Having’failed to' do so in this case, this Court finds that the Statement of Claim filed by [the Creditor] was timely.

¶ 28. Section 91-7-145(1) provides:

The executor or administrator shall make reasonably diligent efforts to identify persons having claims against the estate. Such executor or administrator shall mail a notice to persons so identified, at their last known, address, informing them that a failure to have their claim probated and registered by the clerk of the court granting letters within ninety (90)- days after the first publication of the notice to creditors will bar such claim as provided in [Mississippi Code: Annotated sjection 91-7-151.

(Emphasis added). In Ladner, 911 So.2d at 676 (¶ 14), this Court held that “a strict and literal interpretation of ... [s]ection 91-7-145 ... mandates that [a reasonably ascertainable creditor of the estate] be given notice by mail by the administrator before the ninety days specified in ... section 91-7-151 ... begins to run.” See Miller v. Trs. of Jefferson Coll., 13 Miss. 651, 662 (Miss. 1846) (mortgage on record provides constructive notice to the administrator).

¶ 29. The statutory time for filing a probate claim is not self-executing but is instead triggered to begin by the executrix’s statutory notice to creditors. Our jurisprudence clearly recognizes .that the time for filing a probate claim against an estate will not run against a creditor where the executrix fails to provide the statutory notice to the creditors to present their claims. See Miss. Code Ann. § 91-7-145(1); Petrick, 635 So.2d at 1394. Hence, the time for filing a probate claim against an estate is not self-executing. Estate of Thomas v. Thomas, 883 So.2d 1173, 1178 (¶ 15) (Miss. 2004). Burnette does not contest that, as executrix, she failed to provide the Creditor with the required statutory notice of the probate proceeding.

¶ 30. Here, the record reflects that Burnette did not identify the Creditor or provide notice by mail. Burnette did file a “Notice to Creditors Affidavit” stating that she had and would notify known creditors, but Burnette failed to identify any specific creditors in the affidavit. In Thomas, 883 So.2d at 1178 (¶ 15), the supreme court addressed the tolling of the statute of limitations due to the failure of an administra-trix to :provide notice to a known illegitimate heir. The Thomas court explained that the ninety-day provision of section 91-1-15 is not self-executing and “held that the "requirement to timely file within [ninety] days of first publication is not always so strictly required.” Id. The. supremé court held that “[fjailure on the part of the administratrix to "notify a child of whom the ■ administratrix had actual knowledge can prevent the [ninety]-day statutory bar from being raised against that child” concerning the need for the child to raise’ paternity claims within ninety days of the first publication of notice to creditors in order to inherit from the decedent. Id. at 1177 (¶ 12).

¶31. The supreme court has also explained:

■[0]ur [state] courts áre essential to the-probate proceedings in that the adminis-tratrix may only validly publish notice in-some newspaper,- which triggers the [ninety-]day-limit to file a claim pursuant to [section] 91-7-145 and [section] 91-7-151, after filing an affidavit with -the clerk of court stating that she has made reasonably diligent efforts to identify persons having claims against the estate and has given notice by mail as required in .,. [section] 91-7-145[ (1) ].

Petrick, 635 So.2d at 1394.

¶ 32. Like the- chancellor below, we find that an application of the-law to the facts of this case reflects that the October 15, 2014 statement of claim filed in the probate proceeding below was not time-barred by the Creditor's failure to file the claim within the ninety-day requirement in section 91-7-151. See Price v. Clark, 21 So.3d 509, 521 (¶ 27) (Miss. 2009) (recognizing tolling effect of a failure to give statutory notice); Miss. Code Ann. § 15-1-57 (Rev. 2012). We also find no abuse of discretion in- the chancellor’s finding that since Bur-nette failed to provide -notice pursuant to section 91-7-145(1), she is estopped from arguing that the statement of claim is barred, because the Creditor failed to file it within, the ninety-day time limit for probated claims set forth in section 91-7-151. We now turn to review the chancellor’s determination that the statute of limitations in the underlying claim had not expired.

¶33. The statute of limitations applicable to a creditor’s independent right to bring a civil action -based on its claim on the promissory note is not tolled by an untimely filed probate claim. However, as determined- by the chancellor herein, the statute of limitations in such actions can be tolled by equitable estoppel as a result of a defendant’s action that prevents or delays the filing of a claim. See Ezell v. Williams, 724 So.2d 396, 398 (¶ 6) (Miss. 1998) (citing Izard v. Mikell, 173 Miss. 770, 775, 163 So. 498, 499 (1935)); Douglas Parker Elec. Inc. v. Miss. Design & Dev. Corp., 949 So.2d 874, 878-79 (¶¶ 18-19) (Miss. Ct. App. 2007).

¶34. In his judgment, the chancellor found:

[Ljetters testamentary were issued to [Burnette] on July 28, 2010. The [ninety]-day moratorium [under section 91-7-239] expired on October 26, 2010. On that date, the four-year statute of limitation[s] established by [section] 15-1-25 began to run. On October 26, 2014, the four-year statute of l’imitation[s] expired. It is undisputed that neither Wilmington [Trust], nor any other party, filed suit against the Estate to enforce the promissory note prior to October 26, 2014.

¶ 35. The record shows that the Creditor filed the statement of claim on October 15, 2014. The chancellor acknowledged that if the Creditor is not.paid on a claim based on the promissory note during the probate proceeding, the Creditor must then bring a separate civil suit against the Estate to enforce that claim on the promissory note hefore the four-year statute of limitations in such actions expires.. The chancellor also applied the law to the facts of this case in determining that the statute of limitations was tolled as to a separate civil suit against the Estate on the promissory note, and in finding that the Creditor timely filed its probate claim. As previously stated, “[t]he issue of whether the applicable statute of limitations has run is a question of law.” Stringer, 30 So.3d at 341 (¶ 9).

¶ 36. In addressing the tolling of the statute of limitations for civil actions against the Estate on the promissory note, the chancellor ultimately held that the foreclosure actions of 2010 and 2012 failed to constitute “lawsuits” for the purposes of section 15-1-25. However, the chancellor determined that the Fifth Circuit’s stay (entered May 12, 2014) prohibiting the Creditor from foreclosing on the property began and triggered the tolling of the statute of limitations under section 15-1-25 as to the promissory note. The chancellor cited to Mississippi Code Annotated section 15-1-57 (Rev. 2012), which provides as follows:

When any person shall be prohibited by law, or restrained or enjoined by. the order, decree, or process of any court in this state from commencing or prosecuting any action or remedy, the time during which such person shall be so prohibited, enjoinedf,] or restrained, shall not be computed as any part of the period of time limited by this chapter for the commencement of such action. -

-¶ 37. The chancellor acknowledged that the supreme court discussed section 15 — 1— 57 in Grant v. State, 686 So.2d 1078, 1084 (Miss. 1996). The Grant court explained that “[t]here can be no tolling of the statute of limitations unless the person is personally prohibited from bringing suit.” Id. The Grant court further stated that there is “no savings or tolling of the statute of limitations unless an individual is personally prohibited or restrained from commencing or prosecuting his claim; the fact that he cannot recover because of an applicable defense or immunity does not toll the running of the statute of limitations.” Id.; see also Chimento v. Fuller, 965 So.2d 668, 676 (¶ 33) (Miss. 2007); but cf. White v. McMillin, No. 3:09CV120-DPJ-FKB, 2011 WL 3555766, at *7 (S.D. Miss. Aug. 11, 2011) (finding that since the stay imposed had no impact on the plaintiffs’ ability to file any motion necessary to facilitate the filing of a timely complaint, the plaintiffs were not prohibited from bringing suit to the extent necessary to trigger section 15-1-57).

¶ 38. The Creditor submits that our jurisprudence has recognized in multiple contexts that the special relationship between a deed of trust and a promissory note entwines the rights and remedies each instrument creates. The Creditor cites to Kirby v. Bank of America N.A., No. 2:09-CV-182-DCB-JMR, 2012 WL 1067944, at *4 (S.D. Miss. Mar. 29, 2012), in which the federal district court explained that “[t]he Mississippi Supreme Court has articulated [that] ... when the mortgage and the note are sufficiently con-nectedf,] the assignment of the note operates [as] an assignment of the mortgage also.” The Kirby court further stated that “[u]nder Mississippi caselaw, which is consistent with general principles of mortgage law, the mortgage follows the note.” Id.

¶39. Jurisprudence supports the chancellor’s application of the law to the facts of this case wherein the chancellor held that the federal court stay prohibited foreclosure of the property at issue and thereby tolled the statute of limitations. In Temples v. First National Bank of Laurel, 239 Miss. 446, 455, 123 So.2d 852, 855 (1960), the supreme court held that an event that tolled the running of the statute of limitations for a note secured by a mortgage also tolled the running of the statute of limitations on the mortgage itself. See also Chimento, 965 So.2d at 669 (¶ 3) (supreme court acknowledged the trial court’s order finding that the order that enjoined foreclosure tolled the statute of limitations on a promissory note).

¶ 40. We find no error in the chancellor’s finding that the statement of claim in this probate proceeding was timely filed, and we find no error in the chancellor’s determination that “the Fifth Circuit’s stay entered May 12, 2014, prohibiting [the Creditor] from foreclosing on the property pending the appeal began the tolling of [section] 15-1-25 as to the promissory note in accordance with [section] 15-1-57.” See Howard, 63 So.3d at 593 (¶ 8) (prohibiting an appellate court from disturbing a chancellor’s findings under the circumstances). The chancellor also subsequently found that “the tolling period ceased at its earliest on December 9, 2014, approximately seven months later, when the Fifth Circuit reversed the U.S. District Court, or at the latest on August 4, 2015, when the U.S. District Court rendered a final judgment.”

¶ 41. In addressing the issue before us on review as to the timeliness of this probate claim, this Court has held that the question is “whether [the claimant] could prove any set of evidence that would entitle him to relief against [the estate].” Thornhill, 905 So.2d at 752 (¶ 15); see also Thomas, 883 So.2d at 1178 (¶ 15). The broad language of section 91-7-151 requires the filing of all claims against an estate, whether due or not. To protect its recovery of its secured lien from the assets of an estate, a creditor must file a statement of claim in the probate proceeding. In addition to protecting a creditor’s recovery from the assets of an estate on its claim under the promissory note, probating the claim also protects the creditor’s right to claim a deficiency.

¶ 42. Where a claimant presents a claim against an estate in good faith and in substantial compliance with the statute, the courts have held such compliance sufficient. See Cent. Optical Merch. Co. v. Lowe’s Estate, 249 Miss. 61, 71, 160 So.2d 673, 677 (1964). This Court will affirm the factual findings of the chancellor “unless they are manifestly wrong, clearly erroneous, or the chancellor applied an erroneous legal standard.” Howard, 63 So.3d at 593 (¶ 8); see also Izard, 173 Miss. at 775, 163 So. at 499-500; Douglas Parker Elec., 949 So.2d at 878-79 (¶¶ 18-19) (discussion of factual questions involved in determining equitable estoppel). Based upon.the foregoing and the record, we find no error in the chancellor’s application of the’law to the facts of this case. We also find that the record reflects substantial credible evidence supporting the chancellor’s findings and judgment that the Creditor timely filed its claim in the probate proceeding. We therefore affirm on that sole issue that is before this Court on appeal.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., NOT PARTICIPATING.

      . For the purposes of clarity in this appeal due to the multiple lawsuits and filings, we will refer to EquiFirst Corporation, J.P. Morgan, Citibank, and Wilmington Trust collectively as "Creditor."

      . The record reflects that J.P. Morgan, as the servicer for Citibank, filed the statement of claim.

      , During the course of the federal action, Wilmington Trust succeeded Citibank as the lienholder and creditor on the promissory note; In response to the motion for entry of final judgment, Burnette filed a motion to dismiss the action, arguing that it became moot on December 3, 2012, when Wilmington Trust succeeded Citibank as trustee.for thlienholder. Citibank responded by filing a motion to substitute. On August 4, 2015, the district court entered a final judgment in favor of Wilmington Trust and denied Bur-nette’s- motion to dismiss. The district court found that Burnette waived her homestead-exemption right, and Wilmington Trust, as trustee for the lienholder, could foreclose on the deed óf trust.

      . Section 15-1-25 provides a four-year statute of limitations for any action "against any executor or administrator upon any judgment or other cause of action against his testator or intestate.” Section 91-7-239 further conditions that "[a] suit or action shall not be brought against an executor or administrator until after the expiration of ninety (90) days from the date of letters testamentary or of administration.”

      . The Creditor’s separate February 23, 2015 action is pending below and was not before the chancellor on review. As a result, we recognize the chancellor's finding that the federal stay tolled the running of the statute of limitations under section 15-1-25 until either December 4, 2014, or August 4, 2015. We will not comment on the chancellor’s statement that the Creditor’s February 23, 2015 lawsuit was timely filed under section 15-1-25,

      . See also In re Estate of High, 19 So.3d 1282, 1285 (¶ 7) (Miss. Ct. App. 2009).

      . See In re Estate of Philyaw, 514 So.2d 1232, 1236 (Miss. 1987) ("[T]he time for an appeal for an administrator or executor unhappy with a decree allowing a contested claim runs from the date of such decree [and not] from the date of the decree finally closing the estate.”).

      . We recognize that section 91-7-145(1) "does not specifically allow for notice by publication as a substitute for actual notice by mail; rather, notice by publication is a requirement in addition to providing creditors notice by mail.” Petrick, 635 So.2d at 1393.

      . Clearly, a secured .creditor with a lien on a decedent’s property is not required to present a probate claim in order to enforce its lien. See Gandy v. Citicorp, 985 So.2d 371, 374 (¶ 12) (Miss. Ct. App. 2008) (probating the claim protects the mortgagee’s right to claim a deficiency). However, a secured creditor who wishes to recover from the estate’s assets or enforce a probate claim for a deficiency must timely file a statement of claim in probate. Id.

      . • We acknowledge that the Creditor possesses the right to judicial foreclosure or nonjudicial foreclosure on the deed of trust as a separate avenue of relief from an action on the promissory note against the Estate, See Mossler Acceptance Co. v. Moore, 218 Miss. 757, 769-70, 67 So.2d 868, 873-74 (1953) (even though a payee who failed to timely probate its claim on the note of the deceased was barred as an unsecured creditor, the payee was entitled to recover the salvage value of the destroyed automobile, which had been mortgaged to secure the debt.).

      . See Miss. Code Ann. § 15-1-25,

      . Wilmington Trust further submits that because the maturity date of the promissory note is after Norair’s death, the four-year statute of limitations in section 15-1-25 that governs claims against an executrix is inapplicable. Wilmington Trust claims the note itself states the maturity date is April 1, 2036, well after Norair's death on July 19, 2010.

      . See Miss. Code Ann. § 11-5-93 (Rev. 2014) (judicial foreclosure); Miss. Code Ann. § 89-1-55 (Rev, 2011) (nonjudipial foreclosure); Miss, Code Ann. § 89-1-59 (Rev. 2011) (reinstatement of accelerated debt). If a deficiency remains after a judicial foreclosure and sale, a creditor can then pursue a decree for the balance due. See Miss. Code Ann. § 11-5-111 (Rev. 2014). We note that after the sale of the real property in a judicial foreclosure, the creditor has one year to obtain a deficiency judgment for any balance or deficiency remaining after such sale. See Wansley v. First Nat'l Bank of Vicksburg, 566 So.2d 1218, 1224 (Miss. 1990). Upon issuance of a judicial decree for a deficiency judgment, then a new statute of limitations arises and runs from the date of the deficiency judgment. See Roebke v. Love, 186 Miss. 609, 609, 191 So. 122, 125 (1939); Edgewater Park Co. v. Standard Bond, etc., Co., 162 Miss. 684, 684, 138 So. 811, 812 (1932).

      . Cf. Allen v. Mayer, 587 So.2d 255, 260 (Miss. 1991) (question of fact existed as to whether failure to file pleadings barred relief; ■ held that "[wjhether laches bars an action in a given case depends upon the circumstances of that case and is a ‘question primarily addressed to the discretion of the trial court' ”).