author: CARLSON, Justice,

text:
    In the Matter of the CONSERVATORSHIP OF Buffy BRANTLEY. Billy Butler, Individually and as Next Friend of Yzette Bridget Butler, Justin Price Butler, Roshanda Tatyona Nesha Butler and Antrisa Fontae’ Butler, Minors v. Lee Girtha Brantley, Individually, and as Guardian of Bridgette Nicks, Yasmine Nicks, and James Nicks, Jr., and Isaac Byrd d/b/a Isaac Byrd & Associates.
    No. 2001-CA-01454-SCT.
    Supreme Court of Mississippi.
    Feb. 12, 2004.

      Robert M. Logan, Newton, attorney for appellants.
    Felecia Perkins, Kathryn N. Nester, Jackson, Audrey Carolyn Curry, Terry R. Levy, Jackson, attorneys for appellees.
   CARLSON, Justice,

for the Court.

¶ 1. This appeal arises from upon an order granting partial dismissal of a complaint filed by Billy Butler, Yzette Bridget Butler, Justin Price Butler, Roshanda Ta-tyona Nesha Butler and Antrisa Fontae’ Butler (collectively the “Butlers”) and the subsequent entry of final judgment by the Scott County Chancery Court. This order and final judgment provided, inter alia, that the final judgment was entered pursuant to Miss. R. Civ. P. 54(b). The Butlers’ complaint sought, inter alia, that they be awarded a portion of a court-approved settlement. The settlement agreement at issue purported to discharge all claims regarding the alleged medical malpractice of the Mississippi Baptist Medical Center and others in relation to the treatment of Buffy Brantley (Buffy). The Butlers, Buffy’s father and half-siblings, argue that they were necessary parties who were either not included in the settlement or fraudulently induced to waive their valid claims. Following the partial dismissal of their complaint, the Butlers appeal, presenting the following issues for the Court’s consideration:

I. WHETHER THE TRIAL COURT ERRED IN GRANTING PARTIAL DISMISSAL OF PLAINTIFFS’ CLAIM WHEN THEY SUED FOR A PORTION OF A CONTINGENT WRONGFUL DEATH SETTLEMENT INTENDED TO COYER ALL POTENTIAL CLAIMANTS.

II. WHETHER THE TRIAL COURT ERRED IN GRANTING PARTIAL DISMISSAL OF PLAINTIFFS’ CLAIM WHEN THEY ALLEGE INSUFFICIENT PROCESS AND RESULTING LACK OF JURISDICTION OVER PERSON WITH RESPECT TO THE CONSERVATOR-SHIP PROCEEDINGS.

FACTS

¶ 2. Buffy is the daughter of Billy Butler (Butler) and Lee Girtha Brantley (Brant-ley). Butler and Brantley were never married. They parted ways, and both have since married and have children from other spouses. Yzette Bridget Butler, Justin Price Butler, Roshanda Tatyona Nesha Butler and Antrisa Fontae’ Butler (the Butler children) all live with Butler and are half-siblings of Buffy. Bridgette Nicks, Yasmine Nicks, and James Nicks, Jr. (the Nicks children) are also half-siblings of Buffy and reside with Brantley, their mother.

¶ 3. In November 1997, Buffy suffered a traumatic illness and was treated at the Mississippi Baptist Medical Center in Jackson, Mississippi. As a result of alleged medical malpractice, Buffy suffered permanent injury. A complaint was filed against Mississippi Baptist Medical Center and others in Hinds County Circuit Court by Brantley, as next friend of Buffy. A settlement was reached pursuant to a written agreement dated January 19,1997, between Mississippi Baptist Medical Center and other defendants. The settlement was for $10 million and constituted a full and final release of all claims on behalf of Buffy. The agreement stated: “The release must be approved by the court and must include all claimants and potential claimants.” (emphasis added).

¶ 4. Brantley petitioned the Scott County Chancery Court to be appointed the conservator of Buffy and her estate. She also petitioned the court for the authority to settle the claim. The court granted these requests on April 4,1997.

¶5. On January 5, 1998, Brantley and the Nicks children filed a Petition for Authority to Settle Doubtful Claim. This petition stated that a claim would be settled on behalf of Buffy, but did not explain the amount of the settlement, who would receive the settlement proceeds, or the amount of attorney fees. It did mention that Mississippi Medicaid Division had a lien for $183,256.11 against the $10 million settlement proceeds.

¶ 6. The following day, January 6, 1998, Butler executed a waiver of process by which he voluntarily consented to waive notice of any hearings regarding Buffy, and he also waived process of all amended petitions filed with the estate.

¶ 7. On January 15, 1998, Brantley and the Nicks children filed an Amended Petition For Settlement of Doubtful Claim. In light of the waiver signed by Butler, he was given no notice. This particular amended petition stated that the settlement amount was $9,350,000.

¶ 8. Brantley and the Nicks children contacted Butler on January 21, 1998, to obtain power of attorney from him allowing Brantley to sign a release on his behalf, and to obtain a Relinquishment of Inheritance Rights. Butler was not informed of the settlement details before signing these documents.

¶ 9. On January 22, 1998, Brantley and the Nicks children filed a third Petition (Second Amended Authority To Settle Un-liquidated And Doubtful Claim of a Minor). This petition was also filed with no notice to Butler. This petition informed the court that there was a $10 million settlement, and explained that $500,000 was allocated to Brantley and $150,000 was allocated to the Nicks children, who reside with Brantley. This petition never mentioned Butler or his children.

¶ 10. Paragraph 9 of this final petition stated:

That, as a part of this proposed settlement, the parties desire to compromise, settle and foreclose any inchoate claims, for the past, present and future loss of love, society, companion, [sic] support and services of Buffy Brantley allegedly resulting from the conduct made the subject of the civil action referenced above.

¶ 11. This settlement petition was approved by the court, and an order was issued and dated January 26, 1998. The following is a breakdown of the settlement disbursements:

Butler and the Butler children were never made aware of the hearing and received nothing from the settlement.

¶ 12. On January 28, 1998, Brantley signed a release on behalf of herself, Butler (pursuant to the power of attorney), Buffy and the Nicks children releasing the circuit court defendants (Baptist Medical Center and others).

¶ 13. On November 12, 1999, Butler, individually and as next friend of the Butler children filed a First Amended Complaint praying that the chancery court would (1) set aside the January 26, 1998, order appointing Brantley conservator of Buffy; (2) set aside the power of attorney signed by Butler dated January 21, 1998; (3) set aside the Relinquishment of Inheritance Rights signed by Butler, dated January 21,1998; (4) reopen the issue of allocation of the $10 million settlement proceeds, including attorney’s fees; (5) order all defendants to return to the registry of the court all sums received from the settlement; (6) award Plaintiffs their rightful portion of settlement proceeds; and (7) award Plaintiffs punitive damages.

¶ 14. An order dated December 21, 2000, granted partial dismissal of the complaint insofar as it sought to set aside the appointment of Brantley as conservator, and insofar as it sought a portion of the damages arising from injuries suffered by Buffy.

¶ 15. The Butlers pursuant to Miss. R. Civ. P. 15(a), filed a Second Amended Complaint to Set Aside Settlement, For Damages and Other Relief dated January 9, 2001. The chancellor entered an Order Granting Partial Dismissal of the Complaint and Entry of Final Judgment pursuant to Miss. R. Civ. P. 12(b)(6) and 54(b) on August 28, 2001, again dismissing the complaint insofar as it sought to set aside the appointment of a conservator and to claim a portion of damages arising from Buffy Brantley’s injuries, for failure to state a claim, pursuant to Miss. R. Civ. P. 12(b)(6). The partial dismissal order found:

That neither a natural parent, nor a half-sibling, is entitled to recovery of any damages themselves, in the matter of a personal injury claim, by and on behalf of an injured minor child.
A natural parent and half-siblings are statutory wrongful death beneficiaries. Buffy Brantley’s injuries are serious and permanent; but Brantley is still alive.
No portion of the claim for personal injury settled, by and on behalf of Buffy Brantley, was a contingent future claim for the wrongful death of Buffy Brant-ley.
Neither Billy Butler, as Buffy’s natural father, nor his children, as Buffy’s half-siblings, are entitled to recovery of any damages, in the matter of the personal injury claim settled by and on behalf of Buffy Brantley.

ANALYSIS

¶ 16. A Rule 12(b)(6) motion to dismiss under raises an issue of law. T.M. v. Noblitt, 650 So.2d 1340, 1342 (Miss.1995) (collecting authorities). This Court conducts de novo review on questions of law. Id. When considering such a motion, the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond doubt on the face of the complaint that the plaintiff will be unable to prove any set of facts in support of his claim. Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So.2d 1234, 1236 (Miss.1999).

I. WHETHER THE TRIAL COURT ERRED IN GRANTING PARTIAL DISMISSAL OF PLAINTIFFS’ CLAIM WHEN THEY SUED FOR A PORTION OF A CONTINGENT WRONGFUL DEATH SETTLEMENT INTENDED TO COYER ALL POTENTIAL CLAIMANTS.

¶ 17. The Butlers contend that the chancery court authorized Brantley and the Nicks children to receive $650,000 in a settlement claim from which they were improperly excluded. They further contend that Baptist and others who negotiated this settlement intended the settlement to be final and to cover all potential claimants, including Butler and the Butler children. Brantley’s attorney represented to the chancery court that they were acting on behalf of all interested parties, yet the Butler children were not mentioned, and Butler alleges he was fraudulently induced into signing a Power of Attorney and Waiver of Inheritance Rights.

¶ 18. Insofar as the Butlers argue that the settlement usurped their potential wrongful death claims, dismissal was proper because Buffy is still alive. Mississippi’s wrongful death statute, Miss. Code Ann. § 11-7-13 (Supp.2003), does not recognize “contingent” wrongful death claims. To do so in this case would usurp Buffy’s right to damages to which she would be entitled simply because her relatives anticipate her death earlier than it will naturally occur. The wrongful death statute is based on the premise that whenever the death of any person was caused by a wrongful act, neglect or default of another, in such a manner as would have entitled the injured party to have sued had death not ensued, an action could be maintained in the name of that person’s executor or administrator for the benefit of certain relatives. “Implicit in the codification of wrongful death action is the notion that a claim sounding in wrongful death comes into being upon the death of the deceased.” Gentry v. Wallace, 606 So.2d 1117, 1120 (Miss.1992). “Our wrongful death statute provides a cause of actions to the survivors of those who die as a result of wrongful conduct. A person cannot qualify as a ‘survivor’ until he survives someone.” Id. at 1121 (emphasis in original). “A cause of action accrues only when it comes into existence as an enforceable claim; that is, when the right to sue becomes vested.” Id. Butler has based his claim on law that the State of Mississippi does not recognize. Therefore, there is no claim upon which relief can be granted, and the trial court was correct to grant a dismissal.

¶ 19. However, in the interest of justice, this Court feels compelled to take notice of another aspect of this case. The original defendants in this case came to a settlement agreement with Brantley believing that all interested parties were involved, and that, by their agreement, all possible claims encompassing the claim of medical malpractice would be extinguished. Brantley, the Nicks children, and Butler, by way of power of attorney, were all involved in this settlement. This settlement was submitted to the chancery court and was approved; however, the chancery court was unaware of a particular fact which affects the settlement agreement. The Butler children, according to the record, were never mentioned by Brantley during settlement agreements or to the chancery court during approval of the settlement. While Butler signed a power of attorney in favor of Brantley, it said nothing about his minor children who have the same relation to Buffy as do the Nicks children. Thus, interested parties were left out of the settlement, and their rights were not represented. In the interest of fairness and equity, we conclude that the approval of the chancery court of the settlement must be reversed. All monies awarded to Brantley and the Nicks children should be removed from their possession and added to Buffy’s estate. Because of possible conflicts of interest, a neutral conservator should be appointed to replace Brantley as conservator. This conservator should be required to make a quarterly accounting for the sake of protection of the estate and Buffy’s interests pursuant to Miss.Code Ann. § 93-13-67 (Rev.1994).

II. WHETHER THE TRIAL COURT ERRED IN GRANTING PARTIAL DISMISSAL OF PLAINTIFFS’ CLAIM WHEN THEY ALLEGE INSUFFICIENT PROCESS AND RESULTING LACK OF JURISDICTION OYER PERSON WITH RESPECT TO THE CONSERVATORSHIP PROCEEDINGS.

¶ 20. Brantley administered Buffy’s estate under the conservatorship laws; however, Butler contends that since Buffy is a minor, this proceeding should be controlled by the law of guardianships. While the conservatorship and guardianship laws are alike in many aspects, the parties submit that these laws are not identical insofar as those persons who are required to receive notice. To establish which law should have been utilized to handle Buffy’s estate, we first take note of the individuals who may be declared wards under each statute:

Guardians may be appointed for minors, Miss.Code Ann. § 93-13-15 (1972); or incompetent adults, Miss.Code Ann. § 93-13-121 (Supp.1983); a person of unsound mind, Miss.Code Ann. §§ 93-13-123, 125 (1972); alcoholics or drug addicts, Miss.Code Ann. § 93-13-131 (1972); convicts in the penitentiary, Miss.Code Ann. § 93-13-135 (1972); persons in the armed forces or merchant seamen reported as missing, Miss.Code Ann. § 93-13-161 (1972); or for veterans entitled to receive moneys from United States Veterans’ Bureau, Miss. Code Ann. § 35-5-5 (1972) or minor wards of a veteran, Miss.Code Am. § 35-5-7 (1972). The guardian is the legally recognized custodian of the person or property of another with prescribed fiduciary duties and responsibilities under court authority and direction. A ward under guardianship is under a legal disability or is adjudged incompetent.

Harvey v. Meador, 459 So.2d 288, 291 (Miss.1984). A conservator for the management of property may be appointed by the chancery court of the county of the residence of any person who “by reason of advanced age, physical incapacity, or mental weakness is incapable of managing his own estate.” Miss.Code Ann. § 93-13-251 (Rev.1994). Additionally, “if the court deems it advisable,” the conservator may have charge and custody of the person as well as the property. Id.

¶ 21. Since the “Legislature provided a new procedure through conservatorship for supervision of estates of older adults with physical incapacity or mental weakness, without the stigma of legally declaring the person non compos mentis,” Harvey, 459 So.2d at 291-92, it would appear evident at first glance that a guardianship is utilized for minors and conservatorships for adults. But further analysis of the applicable statutes reveals that there are no limitations or requirements for age. Since Buffy suffers from a permanent illness which renders her unable to manage her own estate, either a guardianship or a conservatorship would be appropriate in this case. However, the use of a conserva-torship is more appropriate in this situation because a guardianship of a minor is terminated when the ward reaches the age of 21, Miss.Code Ann. § 93-13-75 (Rev. 1994), while a conservatorship can be terminated only if the person is restored in mind and body. Miss.Code Ann. § 93-13-265 (Rev.1994). In light of the unfortunate reality that Buffy will most likely not recover from her severe injuries, a conser-vatorship is appropriate.

¶ 22. Regarding the notice required under a conservatorship, Miss.Code Ann. § 93-13-253 states:

Upon the filing of such petition, the clerk of the court shall set a time and place for hearing and shall cause not less than five (5) days’ notice thereof to be given to the person for whom the conservator is to be appointed, except that the court may, for good cause shown, direct that a shorter notice be given. Such notice shall also be given to the husband or the wife, or a descendant or an ascendant, or next of kin of the person for whom the conservator is to be appointed, provided the person to whom notice is given is a resident of Mississippi, except where such person is himself the petitioner, it being the intention of the legislature to require personal service on the-person for whom the conservator is to be appointed and one relative. If said person is entitled to any benefit, estate or income paid or payable by or through the Veterans’ Administration of the United States Government, such administration shall also be given such notice. Notice may be by personal service by the sheriff as in service of other process but nothing herein shall be construed to prevent competent persons from accepting notice in person from the clerk or his deputy.

¶23. According to this statute, which covers both guardianships and con-servatorships, Brantley has failed to meet the requirement of sending notice to next of kin. Butler, being the father of Buffy, would certainly qualify as being next of kin. However, this mistake is not fatal considering all the facts of the case under our standard of review on a Rule 12(b)(6) dismissal. Butler asserts in his complaint that he was never properly served with notice of the conservatorship proceeding, thus, he asserts the chancery court never had jurisdiction over him. This must be taken as true. However, he also admits that he was present in the courtroom during the proceeding. This Court held in McCoy v. Watson, 154 Miss. 307, 122 So. 368, 370 (1929), that actual knowledge by a defendant of the pendency of a suit against him is immaterial, “unless there has been a legal summons or a legal appearance.” Brown v. Riley, 580 So.2d 1234, 1237 (Miss.1991) (emphasis added). A voluntary appearance is an “overt act by which, or as a result of which, a person against whom a suit has been commenced submits himself of the jurisdiction of the court in the particular suit.” McCoy, 122 So. at 369. While Butler’s complaint makes no mention of the fact, Brantley’s brief, as well as the Finding of Facts and Conclusions of Law issued by the trial court, point out that, while in court, Butler was asked directly if he had any problem with the granting of the conservatorship, and he responded that he had no objection. This Court concludes that this constitutes an overt act which submitted Butler to the jurisdiction of the court and therefore amounted to notice of the proceedings. Therefore, notice was not required to be served on Butler in the conservatorship proceeding. It was met when Butler made a voluntary legal appearance during the proceeding by answering the questions put forth to him. Consequently, we affirm the decision of the chancery court on this issue.

CONCLUSION

¶ 24. The Butlers have failed to state a claim upon which relief can be granted in either of the two issues presented to this Court; however, in the interest of justice the court-approved, allocation of the settlement monies must be reversed because necessary parties, the Butler children, were not mentioned in the settlement proceedings. The monies awarded to Brant-ley and the Nicks children are therefore to be added to Buffy’s estate. On remand, the chancery court should appoint a neutral conservator to replace Brantley as conservator in light of possible conflicts of interest in handling Buffy’s estate; require a quarterly accounting of the estate; and conduct further proceedings in accordance with this opinion.

¶ 25. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

PITTMAN, C.J., SMITH AND WALLER, P JJ., GRAVES AND DICKINSON, JJ., CONCUR. COBB AND EASLEY, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

      . Lee Girtha Brantley, as Next Friend of Buffy C. Brantley, a Minor v. Mississippi Emergency Association, P.A., MEA, Inc., Jon Finch, D.O., Jon Meyer, M.D. and Mississippi Baptist Medical Center, Hinds County Circuit Court, Cause No. [ XXX-XX-XXXX ]-CIV.

      . Butler asserts that neither the court docket, the court file, nor the order appointing the conservator reflect that process was served on him.

      . The chancellor, however, found the amount of the lien to be $183,662.11.

      . This last assertion, referring to fraud, is still pending in the trial court and is not an issue for our consideration.

      . Brantley has failed to establish exactly why she was awarded this amount of monies. This Court could find only two reasons upon which she could have been awarded this money, future earnings of the child and medical expenses. Medical expenses were settled separately, and were not paid by Brantley, and had the award been based on the child's lost future earnings, the father and mother of the child are entitled to equal sums. Wright v. Standard Oil Co., 470 F.2d 1280 (5th Cir.1972).
      The same goes for the monies awarded to the Nicks children. Children do not have a cause of action for injuries to their siblings. Moore v. Kroger Co., 800 F.Supp. 429, 434 (N.D.Miss.1992), aff'd mem. 18 F.3d 936 (5th Cir.1994).
      Based on these cases and law, the only reason the parties could have been awarded this money is based on a contingent wrongful death claim. Since Mississippi does not recognize this claim and Buffy is not dead, the awards should be added to Buffy’s estate so that it can be distributed properly to all interested parties.

      . In his order, the trial judge stated at paragraph 4, as follows:
      The Court independently recalls the hearing on the Petition For Appointment of Conservator, conducted on April 4, 1997; and the Court specifically recalls and takes judicial notice that Billy Butler attended the hearing and was questioned by the Court, and he indicated to the Court that he had no objection to the appointment of Lee Girtha Brantley as Conservator of the person and of the estate of Buffy Brantley.


source: Caselaw Access Project

author: SMITH, Presiding Justice,

license: Public Domain

text:
    F. Joseph “Jerry” REIN, Sr. and F. Joseph “Joey” Rein, Jr., Individually and on Behalf of all Wrongful Death Beneficiaries of Gatha Nell Rein, Deceased v. BENCHMARK CONSTRUCTION COMPANY, Growin Green Landscape, Inc. and William Schilling, Individually and d/b/a Natural Accents Nursery and Landscapers.
    No. 2001-CA-01886-SCT.
    Supreme Court of Mississippi.
    Feb. 12, 2004.

      Shane F. Langston, Jackson, attorney for appellants.
    Jason Hood Strong, and Robert S. Addison, Jackson, Cecelia Denise Cameron, Richard T. Lawrence, and Craig Robert Sessums, Jackson, attorneys for appellees.
   ON MOTION FOR REHEARING

SMITH, Presiding Justice,

for the Court.

¶ 1. The motion for rehearing is denied. The previous opinion of this Court is withdrawn, and this opinion is substituted therefor.

¶ 2. Gatha Nell Rein, an elderly Alzheimer’s patient, was a resident of Silver Cross Nursing Home (“Silver Cross”). She died on September 3, 1998, as a result of being attacked and bitten in her bed by fire ants on August 30, 1998, at the Silver Cross facility. Her husband and son, F. Joseph “Jerry” Rein, Sr., and F. Joseph “Joey” Rein, Jr., sued Silver Cross, Ace Pest Control (“Ace”), Benchmark Construction Company (“Benchmark”), and two landscaping companies, Growin Green Landscape, Inc. (Growin Green) and William Schilling, individually and d/b/a Natural Accents Nursery and Landscapers (“Natural Accents”) for damages for her wrongful death. The Reins settled with Silver Cross and Ace Pest Control. The Hinds County Circuit Court dismissed the negligence and breach of contract claims against Benchmark, Growin Green and Natural Accents. The Reins ask that this Court overturn the trial court’s decisions.

FACTS

¶ 3. Mrs. Rein was attacked, bitten and gravely injured by fire ants while lying in her bed at Silver Cross. As a result, she died three days later. Apparently, the ants entered and infested her room by crawling through spaces in the walls. Immediately after the invasion and assault on Mrs. Rein, it was determined that the ants likely came from an ant bed immediately outside Mrs. Rein’s room. The record indicates that this was not the first time fire ants invaded the nursing home as staff and patients previously saw fire ants in the facility. The record clearly indicates that the ants were strongly attracted to moisture which lingered around the exterior perimeter of the building. The reasons for that concentration of moisture are vigorously disputed. The length of time the ant bed was allowed to exist untreated and detected outside Mrs. Rein’s room is also debated.

¶ 4. First, the Reins argue that the errors and omissions of Benchmark were the cause of Mrs. Rein’s death. They contend that Benchmark breached its contract with Silver Cross to build a safe facility for the benefit of Silver Cross as well as third-party beneficiaries including Mrs. Rein. They also contend that Benchmark’s negligence in inadequate construction of Silver Cross was the proximate cause or a contributing cause of the attack on Mrs. Rein and her subsequent death.

¶ 5. The Reins also allege breach of contract by Benchmark. They assert that Mrs. Rein was a third-party beneficiary of the construction contract between Benchmark and Silver Cross. They allege that Benchmark breached obligations owed to Silver Cross as well as the residents, who were the third-party beneficiaries of the contract, when it failed to construct the facility to allow adequate drainage.

¶ 6. The Reins assert that Benchmark contracted to construct the nursing home in accordance with the agreed and applicable state and federal government and agency standards, plans and specifications. The Reins contend that the contract expressly or impliedly provided for Benchmark’s construction of a safe facility for its elderly, disabled and confined residents. Benchmark’s faulty construction and failure to follow specifications, an example of which was the inadequate site preparation, is blamed for the resulting continuous moisture outside of the building which was conducive to insect infestation. Benchmark is also blamed for not ensuring the safety of the fill dirt that was used in the construction. It is also suggested that Benchmark improperly failed to treat the building and site for fire ants.

¶ 7. The Reins contend that Benchmark’s negligence or gross negligence was the proximate cause, or alternatively, a contributing cause of Mrs. Rein’s death. They assert that punitive damages are warranted since Benchmark’s conduct was in conscious, wilful, wanting and reckless disregard for Mrs. Rein’s rights. The Reins argue that Benchmark should have reasonably foreseen the importance of site preparation and drainage when constructing the facility.

¶ 8. Several pertinent exhibits filed by the Reins in response to Benchmark’s Motion to Dismiss were examined by the trial court and are included in the record. In support of their claims against Benchmark, the Reins submitted reports from an entomologist, a foundation company, the Department of Health and Human Services and the affidavit of a public works contractor.

¶ 9. The Reins presented the trial court with a letter from James Jarratt, an entomologist with the Mississippi State University Cooperative Extension Service. That letter indicates that Jarratt observed problems in the building perimeter which would tend to hamper pest control efforts. He referred to the position of the weep holes, the stucco like wall covering, and the drainage and direction of the irrigation heads. Upon inspection, Jarratt recognized that the weep holes were not the usual distance from the grade of the building but were instead “at grade” in some places and as much as six to eight inches below grade in others, which resulted in poor functioning. He also described pine mulch and top soil stacked against the building blocking the holes. He found the stucco finish of the building to be below grade which can act as a wick and move moisture up into the wall voids which, in turn, attracts insects. He mentioned that the downspouts were located behind air conditioning pads, also causing inadequate drainage by forcing water into the weep holes. Finally, Jarratt remarked that the irrigation system was not working. Having observed moisture in two places, he suspected that the walls were wet when the irrigation system was used. He concluded that the exclusive correction of the problems he observed would not be sufficient to control the insect infestations at Silver Cross. He recommended that additional procedures be implemented along with his suggestions.

¶ 10. After Mrs. Rein’s death, her family hired an engineering firm to examine the Silver Cross facility. Benchmark Engineering, a company separate and distinct from Benchmark Construction, examined the original plans and specifications for the construction of Silver Cross. A foundation report written by J.B. Rushing and based on his observations was presented to the trial court to support the allegations against Benchmark. Benchmark Engineering found violations of plans and specifications in construction. First, the firm indicated that the landscaping and sidewalk were improperly constructed which caused undesirable, constant moisture above the brick ledge. The second violation that Rushing found was the improper construction of brick wall on the front porch which allowed the weep holes to carry moisture to the foundation which held moisture against the building causing the deterioration of the structure of the wall, the Gypsum board and insulation. Benchmark Engineering recommended the development and installation of plans to allow proper drainage.

¶ 11. A Department of Health and Human Services report which detailed the previous violations by Silver Cross and the subsequent solutions was the third exhibit offered by the Reins. That report recites that the building contractor, Benchmark Construction, improperly failed to furnish the Department with an “as built” survey, resulting in Benchmark’s violation of Department requirements. Based on its agent’s initial inspection and staff interviews, the Department of Health and Human Services found that the facility was not “designed, constructed, equipped and maintained to protect the health and safety of the residents, personnel and public.” The inspector observed improper establishment or maintenance of the contours and elevations of soil at Silver Cross. The soil in the flower beds was six inches above the slab. The inspector described substandard construction that prevented free run off from water and proper downspout discharge. The Department demanded that Silver Cross correct the inadequacies with substantial grading and trenching. That same document also recites the follow up measures taken by Silver Cross in response to those demands. The Department noted that Silver Cross hired an engineer and a survey company to conduct an “as built” survey and that there were explicit plans for corrective measures to bring the facility in line within the original plans and to divert moisture.

¶ 12. Last, the Reins submitted the affidavit of Ben Turnage (“Turnage”), the CEO of Roxco, a public works contractor. Based on his personal knowledge and experience, Turnage characterized the importance of adequate drainage as being commonly recognized in the general contracting profession. He asserted that it is general knowledge in the construction industry that inadequate construction which results in poor drainage can cause many foreseeable problems. One such common and regularly recognized result, as reported by Turnage, is insect infestation. With support from Turnage, the Reins argue that it is reasonable to expect a builder to know and appreciate the risks associated with improper construction allowing excessive moisture along exterior walls.

¶ 13. Benchmark counters that the Reins have failed to state a claim. Benchmark first argues that there is no allowable claim for breach of contract. Benchmark contends that Rein was not a third-party beneficiary to the contract as the only direct beneficiary was Silver Cross. It is further countered that, at most, Silver Cross residents such as Mrs. Rein are an incidental beneficiaries. Further, Benchmark asserts compliance with applicable building codes, plans and specifications. Alternatively, Benchmark argues that it was not reasonably foreseeable that ants would invade the facility, climb into Mrs. Rein’s bed, injuring her and ultimately causing her death, two years after completion of the building. Benchmark argues that a burden to foresee the unforeseeable is not properly imposed. The building contractor asserts Turnage and Jarratt based their statements on hindsight and information unavailable at the time of Benchmark’s involvement. Further, Benchmark asserts its construction was not the proximate or a contributing cause of Mrs. Rein’s death. Benchmark asserts that even if the ants-were drawn to moisture along the building’s perimeter, this result was unusual, improbable, and extraordinary.

¶ 14. Also sued by the Reins is Growin Green, a landscape contractor hired by Silver Cross for the initial landscaping and its maintenance. Growin Green was under-contract with Silver Cross until July 1998, one month prior to Mrs. Rein’s death. The original contract was for Growin Green to plant grass, construct a sprinkler system and perform related landscape work at Silver Cross. After the original landscaping was complete, the parties entered an agreement for a maintenance contract. The contract as found in the record does not refer to any responsibility by Growin Green to treat, inspect and control fire ants inside or outside the building. The record indicates that there were occasions when Growin Green took steps to eliminate ant mounds from the areas for which it had landscaping responsibilities.

¶ 15. The Reins contend that the maintenance contract between Silver Cross and Growin Green included an obligation for Growin Green to use reasonable and appropriate methods to inspect, treat and control insects on the outside of the building along with an obligation to provide advice on fire ant control and proper irrigation. They allege that Growin Green’s failure to perform these obligations was a significant or contributing cause of Mrs. Rein’s death. Alternatively, the Reins urge that, even if the contract did not include an obligation to spray for pests, Growin Green voluntarily assumed the duty to control fire ants in a reasonable manner even though the company did not have adequate experience and knowledge. The deposition of Gussie Ashley, the administrator at Silver Cross, is advanced to show Silver Cross’ reliance on Growin Green to eradicate the ant problem. The Reins argue that since all the pest control experts agree that effective fire ant control begins with the exterior of the building, there exists a fact issue as to the identity of the company responsible for such control. As with Benchmark, the Reins assert that punitive damages are proper since Growin Green’s omissions, conduct, breaches and failures were grossly negligent and in reckless disregard for the rights and safety of Mrs. Rein.

¶ 16. Growin Green claims its had no duty to protect Mrs. Rein from ants attacking and killing her in her bed. Instead, Growin Green’s commitment was only to maintain the lawn and shrubbery. Growin Green submits there is no evidence of any authority for it to perform any services inside Silver Cross. Growin Green notes that during the bidding process the parties did not discuss controlling, inspecting or treatment for fire ants nor was any such language included in either contract with Silver Cross. Above all, even if a duty formerly existed, Growin Green ceased to provide services one month before Mrs. Rein’s death. Common sense dictates that an ant bed could have formed within 24 hours of the attack and certainly within the month after Growin Green’s contract ended.

¶ 17. Growin Green insists that efforts to eradicate ants were made for the sole purpose of protecting its lawnmowers and equipment. Jamie Gatlin, the owner of Growin Green, explained by affidavit that monthly responsibilities were “limited to maintaining the landscape only” and ant control was for equipment protection only with no charge to treat fire ant mounds or for the chemicals used in treating those mounds. Growin Green contends that the Reins’ own expert entomologist lends support in stating that “it is common for lawn maintenance companies to poison mounds to protect their equipment.” William King, the Reins’ second expert entomologist, agreed that “it is reasonable for a landscape company to poison ant mounds to eliminate risk to their equipment.” King also stated that “no matter what the yard man does or the maintenance man does, they [the pest control company] are responsible for the treatment and care of that facility.” Further the facility administrator acknowledged the occasional treatments “out in the yard.” She did not indicate that there were any expectations for Growing Green to perform duties relating to insect control or eradication.

¶ 18. Growin Green further argues that even if it voluntarily assumed the duty to treat and control fire ants, summary judgment was still proper because any liability imposed must be limited to the extent of the undertaking. Growin Green cites several cases from other jurisdictions that state this theory. Bailey v. Edward Hines Lumber, Co., 308 Ill.App.3d 58, 241 Ill.Dec. 317, 719 N.E.2d 178 (1999) (the duty of care imposed on a defendant is limited to the extent of the undertaking); Coyle v. Englander’s, 199 N.J.Super. 212, 488 A.2d 1083 (App.Div.1985) (liability is limited to harms resulting from the risk that the undertaking was intended or reasonably expected to protect); Morin v. Traveler’s Rest Motel, Inc., 704 A.2d 1085 (Pa.Super.Ct.1997) (salting one portion of the parking lot is not an undertaking to salt it all). Growin Green warns that “if the plaintiffs argument were the law, yard men and landscape businesses could not put insecticide on lawns or plants for fear that they might be sued if insects did damage to someone or something inside the building.” Growin Green argues that the allegations go beyond the scope of the duty actually undertaken which was to provide lawn and landscape services. Growin Green also contends that any duty to control fire ants was terminated the month before the attack on Mrs. Rein when the contract was terminated. Grow-in Green suggests this theory would impose liability beyond its undertaking.

¶ 19. Growin Green contends that it was unforeseeable that ants would enter the Silver Cross facility, crawl into Mrs. Rein’s bed and attack her. Growin Green argues that to impose liability would place the burden of anticipating of an unusual, improbable and extraordinary occurrence. Growin Green advances that although damage to their equipment or the plants from improper application of insecticide is foreseeable, it was unforeseeable that ants would kill Mrs. Rein in her bed.

¶ 20. It further argues that damages should be limited by Miss.Code Ann. § 85-5-7 (1999) as the negligence of others was the cause of Mrs. Rein’s death. Growin Green advances that Silver Cross was not induced to forego other pest control methods in order to control pests inside the building. It points to the relationship between Silver Cross and Ace Pest Control which obligated Ace to treat and inspect the inside and outside of the facility. It also refers to the duty of Silver Cross employees to inspect and treat the facility for ants.

¶ 21. Finally, Growin Green claims that it had no reason to know that residents were dependent on its inspections or that it was necessary for their protection. Growin Green argues that as a result, any benefits accruing to the residents were purely incidental. In conclusion, Growin Green asserts that third-party rights were never vested in Mrs. Rein since she was not a beneficiary within the intent, terms, and meaning of the contract. Growin Green contends that the residents’ only beneficial interest in the contract was the enjoyment of a landscaped facility.

¶22. The Reins contend that Natural Accents negligently failed to treat the grounds and/or to properly advise Silver Cross on treatment or eradication of fire ants. They also cite Natural Accents’ failure to control the irrigation surrounding the facility and advise Silver Cross on possible irrigation problems. They state that the negligent or grossly negligent failure by Natural Accents to perform the contracted duties contributed to or proximately caused Mrs. Rein’s injuries and subsequent death. The Reins argue that Natural Accents contracted with Silver Cross to control ants around the outside perimeter of the Silver Cross building. The Reins contend that the residents, including Mrs. Rein, were intended to be third-party beneficiaries of that contract and that Natural Accents negligently breached a duty owed to Silver Cross and its residents. In support, the Reins submitted the proposal from Natural Accents given to Silver Cross which details the services to be rendered by Natural Accents. The proposal which became the contract contains express language indicating that Natural Accents’ would perform “ant bed control.”

¶23. Natural Accents contends that Mrs. Rein’s injuries and death were a result of the negligence of other individuals or entities. It asserts that as a landscaping company, it did not have any obligation to control ants. Natural Accents refers to this service as a “courtesy,” not a paid service obligating them to fire ant control. Further, Natural Accents submits that it was not foreseeable that fire ants would attack Mrs. Rein and cause her death. Finally, Natural Accents advances that there is no viable breach of contract claim because the work performed by directly benefitted Silver Cross, not residents such as Mrs. Rein.

ANALYSIS

¶ 24. The trial court dismissed the complaints against Growin Green and Natural Accents pursuant to Rule 56 of the Mississippi Rules of Civil Procedure. The trial court also dismissed Benchmark, the builder of the nursing home. However, it improperly labeled its decision as falling under M.R.C.P. 12(b)(6) indicating that the Reins failed to state a claim against Benchmark. On motion to dismiss under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure, the well-pleaded factual allegations of the complaint are taken as true, and the motion is not granted unless it appears beyond any reasonable doubt that the non movant can prove no set of facts in support of the claim which would entitle them to relief. Moore ex rel. City of Aberdeen v. Byars, 757 So.2d 243, 246 (Miss.2000); Butler v. Bd. of Supervisors for Hinds County, 659 So.2d 578, 581 (Miss.1995). On the other hand, when looking at the grant or denial of summary judgment, this Court, as well as the trial court, considers all evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. Cook v. Children’s Med. Group, P.A., 756 So.2d 734, 739 (Miss.1999); Bennett v. Madakasira, 821 So.2d 794, 797 (Miss.2002); Cole ex rel. Cole v. Buckner, 819 So.2d 527, 530 (Miss.2002). Because the court made its decision after reviewing the Reins’ complaint, Benchmark’s answer and motion to dismiss along with the response to the motion to dismiss and the accompanying exhibits, its decision is properly labeled a summary judgment pursuant to Rule 56 of the Mississippi Rules of Civil Procedure.

¶ 25. Summary judgment is affirmed if the evidence, viewed in the light most favorable to the party against whom the motion is made, shows there is no genuine issue of material fact and the mov-ant is entitled to judgment as a matter of law. City of Starkville v. 4-County Elec. Power Ass’n, 819 So.2d 1216, 1220 (Miss.2002). Issues of fact are present when one party swears to one version of the matter and another says the opposite. Cook, 756 So.2d at 739. Where there is the slightest doubt over whether a factual issue exists, the court should resolve in favor of the non-moving party. Cothern v. Vickers, Inc., 759 So.2d 1241, 1245 (Miss.2000).

1126. The trial court granted summary judgment in favor of Benchmark. Based on the complaint and exhibits submitted by the Reins in response to the Motion to Dismiss and applicable Mississippi law, the trial court found that Benchmark could have no fault or liability based on the theory of negligence. The trial court found, as a matter of law, that it was not foreseeable to Benchmark that Mrs. Rein would be attacked and killed by fee ants some two years after the construction of Silver Cross. Further, the trial court found that, as a matter of law, failures in the construction of the nursing home could not have been the proximate cause of Mrs. Rein’s death. As a matter of law, the trial court concluded that Mrs. Rein was not a third-party beneficiary of the construction contract.

¶ 27. The trial court also granted Grow-in Green’s motion for summary judgment. The trial court found that Growin Green did not assume nor owe a duty to Rein regarding fire ant control. The trial court noted that Growin Green is a landscape company, not a pest control company. The trial court found that Growin Green had no “broad sweeping duty” to control fire ants per the landscaping contract with Silver Cross. Additionally, because Grow-in Green was not employed by Silver Cross when the infestation occurred, Growin Green owed no duty to Mrs. Rein. Next, the trial court held that even if Growin Green had a duty, the fire ant attack on Mrs. Rein was unusual and unlikely, only remotely and slightly probable and consequently unforeseeable. The trial court concluded that Mrs. Rein and her representatives were not third-party beneficiaries to the contract between Growin Green and Silver Cross. The direct beneficiaries of the services provided by Growin Green within the contract with Silver Cross was that entity, not the residents such as Mrs. Rein.

¶ 28. Finally, the trial court found that Natural Accents did not assume or otherwise owe a duty to Mrs. Rein to protect her from fire ants. Further, even if Natural Accents had any duty, the trial court found that the fire ant attack on Mrs. Rein was unforeseeable. The court also concluded that Mrs. Rein was not a third-party beneficiary of the contract between Natural Accents and Silver Cross.

¶ 29. In analyzing an actor’s alleged negligence, this Court asks whether a duty exists and whether it has been breached. That is a question of law. But, “[t]he important component of the existence of the duty is that the injury is ‘reasonably foreseeable,’ ” and thus it is appropriate for the trial judge to decide. Lyle v. Mladinich, 584 So.2d 397, 399 (Miss.1991) (emphasis added). The ultimate question is whether Benchmark could reasonably foresee that failure to adequately provide for drainage around the building could likely lead to an insect infestation that would cause a death by fire ant bites to a resident of the nursing home.

¶ 30. This Court in discussing the issues of duty and foreseeability has stated:

To succeed on a claim for negligence, the plaintiff must prove duty, breach, causation and injury. Meena v. Wilburn, 603 So.2d 866, 869 (Miss.1992). The plaintiff must show “(1) the existence of a duty ‘to conform to a specific standard of conduct for the protection of others against the unreasonable risk of injury’, (2) a breach of that duty, (3) causal relationship between the breach and alleged injury, and (4) injury or damages.” Id. at 870 n. 5 (citing and quoting Burnham v. Tabb, 508 So.2d 1072, 1074 (Miss.1987)). Duty and breach of duty are essential to finding negligence and must be demonstrated first. Strantz v. Pinion, 652 So.2d 738, 742 (Miss.1995).
While duty and causation both involve foreseeability, duty is an issue of law, and causation is generally a matter for the jury. Juries are not instructed in, nor do they engage in, consideration of the policy matters and the precedent which define the concept of duty. W. Page Keeton, Prosser and Keeton on Torts §§ 37, at 236 (5th ed.1984). This Court has held that the existence vel non of a duty of care is a question of law to be decided by the Court. Foster v. Bass, 575 So.2d 967, 972-73 (Miss.1990).

Donald v. Amoco Prod. Co., 735 So.2d 161, 174 (Miss.1999) (emphasis added).

¶ 31. The Court of Appeals considered the issue of foreseeability in Hankins Lumber Co. v. Moore, 774 So.2d 459, 464 (Miss.Ct.App.2000). In Hankins, the Court of Appeals stated:

When reasonable minds might differ on the matter, questions of proximate cause and of negligence and of contributory negligence are generally for determination of jury. American Creosote Works of Louisiana v. Harp, 215 Miss. 5, 12, 60 So.2d 514, 517 (1952). These questions are for the jury to decide under proper instructions of the court as to the applicable principles of law involved. Smith v. Walton, 271 So.2d 409, 413 (Miss.1973). Foreseeability and breach of duty are also issues to be decided by the finder of fact once sufficient evidence is presented in a negligence case. American Nat. Ins. Co. v. Hogue, 749 So.2d 1254, 1259 (Miss.Ct.App.2000).

Hankins, 774 So.2d at 464 (emphasis added). Thus, it is a jury question only if there is “sufficient evidence” before the Court; and therefore, the ruling by the trial court was a judgment call as a matter of law, but certainly not impermissible.

¶ 32. Under Mississippi law, for a person to be liable for another person’s injury, the cause of an injury must be of such a character and done in such a situation that the actor should have reasonably anticipated some injury as a probable result. Mauney v. Gulf Ref. Co., 193 Miss. 421, 9 So.2d 780, 781 (1942). The actor is not bound to a precision of anticipation which would include an unusual and improbable or extraordinary occurrence, although such happening is within the range of possibilities. Id. This Court requires that:

[ t]he principles of common law must be kept within practical bounds and so as not to occupy an attitude which would place it over and above the heads of those who must carry on the every day affairs of life. Hence, the law must say, as it does, that “care or foresight as to the probable effect of an act is not to be weighed on jewelers scales, nor calculated by the expert mind of the philosopher, from cause to effect, in all situations.”

Id. (citing Illinois Cent. R. Co. v. Bloodworth, 166 Miss. 602, 145 So. 333 (1933)).

¶ 33. In Sturdivant v. Crosby Lumber & Mfg. Co., 218 Miss. 91, 65 So.2d 291 (1953), Sturdivant was on his employer’s business premises eating lunch under a tree when lightning struck a power line nearby. The lightning left the line and arced thirty feet away into a creek and over to the tree under which Sturdivant was sitting and ran down a vine into Sturdivant’s body. Id. at 292-93. This Court opined that:

[ t]o impose upon appellee liability for Sturdivant’s death would be placing upon appellee the burden of prevision or anticipation of an unusual, improbable or extraordinary occurrence. It was within the range of possibilities that lightning would strike the power line, that it would not follow the line into the pump house and the planer mill, but that it would continue straight ahead, leave the line, arc thirty feet over the creek into a tree, that Sturdivant would be under the tree, and that the lightning would then go through the tree and down a vine into Sturdivant’s body. But although there was a possibility, those events were most assuredly no more than that.

Id. at 101-02, 65 So.2d 291. The Court found that the event was too remote to require the defendant to foresee and guard against it. Id.

¶ 34. When the conduct of the actor is a substantial factor in bringing about harm to another then, “the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.” Restatement (Second) of Torts, § 435 (1965). This Court has expressly rejected the argument that there is no negligence because the injury rarely occurs, or never before occurred. Gulf Ref. Co. v. Williams, 183 Miss. 723, 185 So. 234, 235 (1938) (citing Crawford v. City of Meridian, 174 Miss. 875, 165 So. 612 (1936)). In regard to foreseeability, the “inquiry is not whether the thing is to be foreseen or anticipated as one which will probably happen, but whether it is likely to happen, even though the likelihood may not be sufficient to amount to a comparative probability.” Williams, 185 So. at 236. Further this Court has held that defendants “cannot escape liability because a particular injury could not be foreseen, if some injury ought to have been reasonably anticipated.” Delta Elec. Power Ass’n v. Burton, 240 Miss. 209, 126 So.2d 258, 261 (1961) (emphasis added).

¶ 35. In McCulloch v. Glasgow, the plaintiff alleged that his heart attack was the result of the City of Ackerman taking his property through eminent domain. McCulloch v. Glasgow, 620 F.2d 47, 52 (5th Cir.1980). The City called his heart attack unforeseeable. Id. The Fifth Circuit stated that the heart attack need not have been foreseeable if the defendant should have foreseen that its action would expose the plaintiff to risk of some otherwise com-pensable injury. Id.

¶ 36. This Court has explained the theory of assumption of liability. Hartford Steam Boiler Inspection & Ins. Co. v. Cooper, 341 So.2d 665 (Miss.1977). In Hartford, the operator of a chicken processing plant was insured by Hartford for the cost of repairs and equipment and losses for breakdown of machinery. Id. Under the policy terms, Hartford had a right, but was not required to inspect the equipment and suspend coverage under certain circumstances. Id. While Hartford inspections were made only when a machine was torn down for repairs, Sand-erson employed a maintenance superintendent and mechanics to maintain the equipment. Id. An employee suffered an injury and alleged that Hartford should have recognized that inspection was necessary for the protection of third persons. Id. The insurance policy provision giving Hartford the right to make inspections was for the purpose of “reducing risk of loss that Hartford might have under the policy.” Id. It did not “rationally give rise to liability for failure to inspect a particular piece of equipment” to the insured’s employees. Id. The benefit was held to be incidental. Id. The Court found that Hartford had no reason to know that Sanderson’s employees were dependent on the inspections or that they were necessary for their protection. Id. There was no basis for finding that Sanderson was induced by the undertaking to “forego taking precautions against harm to its employees.” Id. at 668.

¶ 37. Finally, under Mississippi law, a third party may maintain an action as a third-party beneficiary to enforce a promise made for their benefit. Burns v. Washington Savs., 251 Miss. 789, 171 So.2d 322, 324 (1965). However, this right must “spring” from the terms of the contract. Trammell v. State, 622 So.2d 1257, 1260 (Miss.1993); Miss. High Sch. Activities Ass’n, Inc. v. Farris, 501 So.2d 393, 396 (Miss.1987). Further, a third-party beneficiary may sue for a contract breach only when the alleged broken condition was placed in the contract for their direct benefit. Id. However, an incidental beneficiary requires by virtue of a contract no right against the promisor or promisee. Id. (citing Hartford Acc. & Indem. Co. v. Hewes, 190 Miss. 225, 199 So. 93 (1940)).

¶38. In Farris, a high school basketball team was placed on probation and prevented from competing in a tournament. Farris, 501 So.2d at 393. Team members brought suit against the MHSAA which asked for an injunction to prevent the MHSAA from placing the team on probation. Id. The members alleged that a contract existed that prevented the MHSAA from levying sanctions against the school and team without notice. Id. The team members reasoned that they were third-party beneficiaries and were entitled to sue for breach of the terms. Id. This Court found that the notice provision directly benefitted the school and that while the student received benefits, such benefits were more incidental than direct. Id. at 396. In Hanberry Corp. v. State Bldg. Comm’n, 390 So.2d 277, 279 (Miss.1980), this Court outlined the elements of a successful third-party beneficiary claim:

In order for the third person beneficiary to have a cause of action, the contracts between the original parties must have been entered into for his benefit, or at least such benefit must be the direct result of the performance within the contemplation of the parties as shown by its terms. There must have been a legal obligation or duty on the part of the promisee to such third person beneficiary. This obligation must have a legal duty which connects the beneficiary with the contract. In other words, the right (of action) of the third party beneficiary to maintain an action on the contract must spring from the terms of the contract itself.

Id. at 279. No right against the contract promisor or promisee is acquired by a “mere incidental beneficiary.” Trammell v. State, 622 So.2d at 1260.

¶ 39. As to the claims against Benchmark Construction Company, we must ask whether Benchmark had a duty and breached it. That is a question of law. As stated earlier, “[t]he important component of the existence of the duty is that the injury is ‘reasonably foreseeable,’ ” and thus it is appropriate for the trial judge to decide. Lyle, 584 So.2d at 399. The ultimate question is whether Benchmark could reasonably foresee that failure to adequately provide for drainage around the building could likely lead to an insect infestation that would cause a death by fire ant bites to a resident of the nursing home.

¶ 40. Based on the facts, we hold that the trial court was correct to its decision to dismiss Benchmark by summary judgment, pursuant to M.R.C.P. 56. We base our decision on the foreseeability test of the elements of negligence. Benchmark may have reasonably foreseen an insect infestation as a result of improper construction techniques and poor planning of the drainage system. However, Benchmark could not reasonably foreseen that Mrs. Rein would be attacked and killed by fire ants two years after construction of the Silver Cross Nursing Home. The terrible tragedy that occurred at Silver Cross was an unusual, improbable, and extraordinary occurrence. We hold that, as in Sturdivant, the event here was too remote to require Benchmark to foresee. Mrs. Rein’s death due to fire ant bites was a mere possibility, and no more. Summary judgment was also proper on the contract claim against Benchmark because Mrs. Rein was not a third-party beneficiary of the construction contract between Benchmark and Silver Cross.

¶ 41. Next, we hold that the trial court correctly granted summary judgment in favor of Growin Green. Growin Green did not assume nor owe a duty to provide fire ant detection, control or eradication in a reasonable manner or any manner. Growin Green had a commitment only to maintain the lawn and shrubbery. Growin Green is a landscape company, not a pest control company. The contract between Growin Green and Silver Cross does not specify duties to treat for insect infestation outside the facility much less inside. In fact, there is no indication of any grant of authority for Growin Green to perform any services inside the Silver Cross facility at all. Additionally, Silver Cross was not induced to forego other methods of pest control in reliance on any assumed duty by Growin Green. In fact, Silver Cross properly relied on its contract with Ace Pest Control to inspect and treat both the inside and outside of the facility. The Reins’ experts admitted that it is common for a landscape company to treat ant beds to protect its equipment. Alternatively, as Growin Green asserts, even if there was a duty to treat and control fire ants which was voluntarily assumed by Growin Green, the liability is limited to the extent of the undertaking. The fact that Growin Green was not even employed at the time of Mrs. Rein’s death supports our decision as Growin Green owed no duty of care whatsoever to Silver Cross nor to Mrs. Rein when the incident occurred. The liability imposed on Growin Green must be limited to that which they allegedly assumed. That voluntary assumption would have terminated when the contract with Growin Green terminated, one month before the attack on Mrs. Rein. The Reins’ own experts recognized and common sense dictates, that ant beds could have formed within the weeks or even the day before the attack, which was relatively long after Growin Green’s obligations ended. Further, Mrs. Rein was not a third-party beneficiary to the contract between Silver Cross and Growin Green. The direct beneficiary of the contract was Silver Cross. There was no relationship between Growin Green and Mrs. Rein created by the contract between Silver Cross and Growin Green. The terms of the contract between Silver Cross and Growin Green were not broad enough to include Mrs. Rein or any other resident of Silver Cross. Alternatively, if the residents obtained incidental benefits from the contract, these were aesthetic benefits and not protection of their health and safety.

¶ 42. Finally, we hold that the trial court erred in granting Natural Accent’s Motion for Summary Judgment. The trial court incorrectly dismissed Natural Accents because issues of material facts remain as to negligence by Natural Accents. The evidence that we find to be most compelling in our decision is the proposal from Natural Accents to Silver Cross. That proposal indicates that Natural Accents did indeed contract to provide “ant bed control.” That evidence shows, as a matter of law, that Natural Accents obligated itself, by its own express terms, to some duty to inspect and treat ant beds at Silver Cross. The scope of that duty is a proper question for the trier of fact. The foreseeability of Mrs. Rein’s injuries and death to Natural Accents is also a jury question. Further, the same trier of fact should determine the significance as related to causation of the failure by Natural Accents to comply with the terms of the contract. We find it pertinent that a fire ant bed was found outside the building immediately adjacent to Mrs. Rein’s room after her death. The trial court’s grant of summary judgment in favor of Natural Accents is reversed and remanded.

CONCLUSION

¶ 48. Based on the lack of foreseeability and Mrs. Rein’s lack of third-party beneficiary status, we hold that the trial court was correct in granting summary judgment in favor of Benchmark. That Mrs. Rein or any other resident would be attacked and killed by fire ants two years after Benchmark’s construction of the Silver Cross Nursing Home is not in any way a foreseeable result of improper construction. As stated earlier, the insect infestation is foreseeable, but this extraordinary event was not. Further, Mrs. Rein was not a third-party beneficiary of the construction contract between Silver Cross and Benchmark.

¶ 44. We also hold that the trial court correctly granted summary judgment to Growin Green since as a landscape company only, it did not assume nor owe a duty to provide fire ant detection, control or eradication. Likewise, Mrs. Rein was not a third-party beneficiary of the landscape contract between Silver Cross and Growin Green.

¶ 45. We find that the trial court erred in dismissing Natural Accents since issues of material facts remain. Its contract with Silver Cross indicates express obligations of some duty to inspect and treat ant beds at Silver Cross. The scope of Natural Accents’ duty, the foreseeability of this event and Mrs. Rein’s death, and whether a breach of Natural Accents’ duty was the cause of this tragedy are proper questions for the trier of fact.

¶ 46. For these reasons, we affirm the trial court’s judgment to the extent that it granted summary judgment for Benchmark Construction Company and Growin Green Landscape, Inc. We reverse the trial court’s judgment to the extent that it granted summary judgment for Natural Accents, and we remand this case for a trial consistent with this opinion of the Reins’ claims against Natural Accents.

¶ 47. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

PITTMAN, C.J., COBB, EASLEY, CARLSON AND DICKINSON, JJ., CONCUR. GRAVES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. WALLER, P.J., AND DIAZ, J., NOT PARTICIPATING.


text:
    TRUSTMARK NATIONAL BANK v. Mona B. JOHNSON and Deborah Biedenharn, as Individual Beneficiaries and in their Capacity as the Guardians and Conservators of their Brother Michael Shaw Biedenharn.
    No. 2001-IA-01952-SCT.
    Supreme Court of Mississippi.
    Feb. 12, 2004.

      Jeffrey Ryan Baker, Susan Latham Steffey, Jackson, attorneys for appellant.
    Jan F. Gadow, Ridgeland, Thomas Y. Page, Dennis C. Sweet, III, Jackson, attorneys for appellees.
   CARLSON, Justice,

for the Court.

¶ 1. In this case on interlocutory appeal from the Circuit Court of the First Judicial District of Hinds County, Mississippi, plaintiffs, Mona B. Johnson and Deborah Biedenharn, as individual beneficiaries under the Ruth S. Biedenharn Trust, and as Guardian and Conservator for their brother, Michael Shawn Biedenharn, who is also an individual trust beneficiary, have sued Trustmark National Bank (Trustmark) for its allegedly negligent actions as Trustee arising solely in the administration of the Trust. Trustmark filed a counterclaim for declaratory judgment and moved to dismiss or transfer the matter to the Chancery Court of Warren County or, alternatively, to the Chancery Court of Pearl River County. The trial court denied Trustmark’s motion. This Court granted Trustmark’s petition for interlocutory appeal, see M.R.A.P. 5, since it involves jurisdiction. See Miss. Const, art. 6, § 147.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. The Ruth S. Biedenharn Trust was established on or about September 1, 1983, in Vicksburg, Warren County, Mississippi. The Trustee was First National Bank of Vicksburg, which has since been merged into Trustmark. Under the terms of the Trust Agreement, the Trustee was required, upon the death of Ruth S. Bieden-harn (Ruth), to divide the assets into three equal shares. One share was to be held, managed, and distributed for the use and benefit of Milton A. Biedenharn, Jr. (Milton), the father of the Plaintiffs. The issue of the appropriate distribution of the other two shares under the Trust is not at issue in today’s appeal. Pursuant to the terms of the Trust, upon Milton’s death, the assets of his trust were to be divided into three equal shares, with one share going to each of the three Plaintiffs in this case. Ruth died on March 9, 1990, and her will was subsequently admitted to probate in Cause No. 20,979 on the docket of the Chancery Court of Warren County, which has exercised judicial oversight of the trust agreement in accordance with its terms and the terms of Ruth’s will, all as part of the overall administration of Ruth’s estate.

¶ 3. The record reveals that during the life of this estate matter in chancery court, the chancellor by way of decree authorized a disbursement in the amount of $6,000 for Milton and a disbursement in the amount of $5,500 for Milton’s daughter, Deborah. Also, on September 13, 1994, Milton Bied-enharn executed a promissory note to Trustmark in the amount of $100,000.

¶ 4. Milton subsequently died and his estate was opened in Cause No. 97-0514-GN-D on the docket of the Chancery Court of Pearl River County. Pursuant to the terms of Milton’s will, the named Executor is John U. Biedenharn. Trustmark filed a claim against Milton’s estate due to the promissory note. Milton’s widow, Earline Biedenharn, contested Trustmark’s claim on the basis of failure of consideration and/or no consideration for the promissory note. The parties entered into an Agreed Order of Continuance in the Pearl River County Chancery Court action because of Trustmark’s concern of the possibility of a conflicting ruling with the underlying case.

¶ 5. It is this same loan that forms the basis of the Plaintiffs’ claim against Trust-mark in this underlying action. The Plaintiffs’ complaint alleges inter alia that during the life of their father, Milton, Trustmark abused its discretion in the management of trust assets and by advancing trust money to Milton. Of particular import is the Plaintiffs’ allegation that the $100,000 promissory note executed by Milton represented the amount of trust funds Trustmark loaned to Milton, unsecured and interest free, knowing Milton to be “a poor businessman.” Plaintiffs, as Milton’s heirs, now seek money damages by claiming that Trustmark mismanaged the Trust assets to their detriment.

¶ 6. Trustmark raises two issues in this interlocutory appeal: (1) Whether the Circuit Court of the First Judicial District of Hinds County lacks subject matter jurisdiction; and (2) whether that court is the proper venue for this action.

¶ 7. For the following reasons, we reverse the trial court’s order denying a transfer to chancery court, and we remand this case to the Circuit Court of the First Judicial District of Hinds County for the entry of an order transferring this case to the Warren County Chancery Court. Because our decision on the first issue is dispositive of this appeal, we do not consider the second issue.

STANDARD OF REVIEW

¶ 8. Jurisdiction is a question of law which this Court reviews de novo. Briggs & Stratton Corp. v. Smith, 854 So.2d 1045, 1048(¶ 9) (Miss.2003); Rogers v. Eaves, 812 So.2d 208, 211 (¶ 11) (Miss.2002).

ANALYSIS

I. Subject Matter Jurisdiction

¶ 9. Trustmark asserts that the Circuit Court of the First Judicial District of Hinds County lacks subject matter jurisdiction since Plaintiffs’ complaint derives wholly from the administration of the Ruth S. Biedenharn Trust. In support of its argument, Trustmark relies on Miss. Const, art. 6, § 159, which states:

The chancery court shall have full jurisdiction in the following matters and cases, viz.:
(a) All matters in equity;
(b) Divorce and alimony;
(c) Matters testamentary and of administration;
(d) Minor’s business;
(e) Cases of idiocy, lunacy, and persons of unsound mind;
(f) All cases of which the said court had jurisdiction under the laws in force when this Constitution is put in operation.

(Emphasis added.) Additionally, Miss. Const, art. 6, § 157 states:

All causes that may be brought in the circuit court whereof the chancery court has exclusive jurisdiction shall be transferred to the chancery court.

(Emphasis added). The Mississippi Legislature has provided:

The court in which a will may have been admitted to probate, letters of administration granted, or a guardian may have been appointed, shall have jurisdiction to hear and determine all questions in relation to the execution of the trust of the executor, administrator, guardian, or other officer appointed for the administration and management of the estate, and all demands against it by heirs at law, distributees, devisees, legatees, wards, creditors, or others ...

Miss.Code Ann. § 9-5-83 (Rev.2002) (emphasis added). We have held:

A court of chancery or its equivalent has inherent power to remove the trustee for good cause, such power being incidental to the court’s paramount duty to see that trusts are properly executed, and the trust estate preserved, and as broad and comprehensive as the exigencies of the case may require.

Walker v. Cox, 531 So.2d 801, 803 (Miss.1988) (citing Yeates v. Box, 198 Miss. 602, 612, 22 So.2d 411, 415 (1945)).

¶ 10. The Plaintiffs’ complaint focuses on the administration of the Ruth S. Bied-enharn Trust. Plaintiffs have labeled their claims against Trustmark as negligence, breach of contract, breach of fiduciary duty, and gross negligence. However, Trustmark’s actions or inactions which are at issue arise solely from its capacity as the Trustee of the Ruth S. Biedenharn Trust and any duty Trustmark may have arises from its appointment as Trustee. This action seeks to interpret the Trustee’s obligations under the terms of the Trust. The Trust is under the exclusive jurisdiction of the Warren County Chancery Court and has been since its inception.

¶ 11. The Plaintiffs counter that they seek legal action rather than equitable remedies and that subject matter jurisdiction is proper in the circuit court; however, the Plaintiffs concede that when determining the true nature of the claim, one must look at the substance, and not the form, of the claim in order to determine whether the claim is legal or equitable. Briggs & Stratton Corp. v. Smith, 854 So.2d at 1049; Tillotson v. Anders, 551 So.2d 212, 214 (Miss.1989); Thompson v. First Miss. Nat’l Bank, 427 So.2d 973, 976 (Miss.1983); Dixie Nat’l Life Ins. Co. v. Allison, 372 So.2d 1081, 1085 (Miss.1979). As Trustmark correctly asserts, “[ajlthough, the Plaintiffs employ the language of negligence and legal remedy, the fundamental substance of their claim is testamentary and equitable.”

¶ 12. The Plaintiffs rely on Farris v. State, 764 So.2d 411, 423 (¶ 36) (Miss.2000), for the proposition that even though chancery courts are vested with jurisdiction of estate administrations, the circuit court is not precluded from hearing civil matters that coincide with the administration of the estate. However, Farris is distinguishable because it involved the felony prosecution of a trustee. In that case, Farris argued that the circuit court lacked jurisdiction for the criminal prosecution because his allegedly criminal actions took place in the administration of an estate. However, “[w]e reject[ed] Farris’s argument on lack of jurisdiction. While it is true that the Mississippi Constitution vests exclusive jurisdiction of conservatorships in the chancery court, Article 6, § 156 also vests original jurisdiction for criminal matters in the circuit court.” Farris, 764 So.2d at 423 (¶ 36).

¶ 13. Rather, the case sub judice is more analogous to Rogers v. Eaves, 812 So.2d 208 (Miss.2002). In Rogers, the plaintiff brought a legal malpractice lawsuit in the Circuit Court of Madison County against her attorneys in her divorce case in Scott County. We affirmed the circuit court’s transfer of the matter to the Chancery Court of Scott County where the divorce proceedings took place. In doing so, we held:

[ I]n order to maintain a legal malpractice claim, it must be determined whether the [attorneys’] alleged negligence affected the outcome of the chancery court proceedings addressing the matters of divorce, alimony, child custody and visitation. The Chancery Court of Scott County made the determinations regarding child custody, alimony and divorce in the underlying case. Therefore, the Chancery Court of Scott County is in the best position to efficiently examine the facts and circumstances of the divorce proceeding and related issues. All of these issues of divorce, alimony and other related proceedings are all clearly within the subject matter jurisdiction specifically granted to our chancery courts. The Chancery Court of Scott County has already heard extensive litigation of these issues and examined both the numerous witnesses and documents presented during the course of the case.

Id. at 211-12 (¶ 15).

¶ 14. That same reasoning applies here. The Plaintiffs have brought a negligence action against the Trustee of the Ruth S. Biedenharn Trust, which has been under the jurisdiction of the Warren County Chancery Court since its inception. “In short, this proceeding is for determination of property rights in the assets of an estate being administered under the jurisdiction of the chancery court.” Cain v. Dunn, 241 So.2d 650, 651 (Miss.1970). Again, as we have already noted, numerous cases, including Briggs & Stratton Corp., Tillotson, Thompson, and Dixie Nat’l Life Ins. Co., have clearly directed our trial courts to look to the substance of the claim rather than the form of the case.

¶ 15. We take this opportunity to inform the trial bench and bar of an ever-increasing problem we are encountering— this Court is inundated with interlocutory appeals, many of which involve the issue of whether a case has been appropriately commenced in circuit or chancery court. Admittedly, more times than not, the issue before us is whether a case commenced in chancery court ought to be transferred to circuit court. See Briggs & Stratton Corp., supra; City of Ridgeland v. Fowler, 846 So.2d 210 (Miss.2003); United States Fid. & Guar. Co. v. Estate of Francis, 825 So.2d 38 (Miss.2002). Of course, today’s case involves whether a case commenced in circuit court ought to be transferred to chancery court.

¶ 16. We implore our learned trial judges to studiously and timely consider a motion to transfer based on subject matter jurisdiction to assure that jurisdiction is proper. After all, as we have stated many times, pursuant to Art. 6, § 147, this Court is constrained on appeal to affirm if the only error is that of jurisdiction. Estate of Francis, 825 So.2d at 46. Our citizens who become litigants in our state trial courts are entitled to be assured early on in the life of the litigation that they are in the right court. Interlocutory appeals (or even worse, a trial on the merits in the wrong court), are costly and time-consuming. In the case sub judice, the filing of the complaint on August 2, 2000, commenced the life of this civil litigation. Assuming, arguendo, that this case proceeds to a trial on the merits, it is still a long way from final disposition.

¶ 17. In today’s case, we have nothing in the record to reveal to us why the trial judge thought that this case had been properly commenced in the Circuit Court of the First Judicial District of Hinds County, as opposed to the Chancery Court of Warren County. Both the order denying the motion to dismiss or transfer and the order denying the motion for interlocutory appeal entered by the trial court contain little more than a denial, without explanation. Thus, we additionally implore our trial judges that when they deny a motion to transfer based on subject matter jurisdiction, they state the basis for the denial via an adequate record, including an order which specifies the reason(s) for the denial of the motion to transfer, so that we can appropriately perform our mandated appellate review.

¶ 18. Finally, we emphasize that our decision in Rogers v. Eaves offered clear guidance in today’s case that the Warren County Chancery Court was the appropriate court for this case.

CONCLUSION

¶ 19. The Plaintiffs’ claims clearly involve the construction, interpretation, and administration of the Ruth S. Biedenhern Trust. The administration of Milton’s share of the Trust assets are matters properly before the Warren County Chancery Court. Determining the appropriateness of any disbursements under the Trust requires the interpretation of that Trust. Any allegations of misuse of the Trust funds are matters to be decided by the Warren County Chancery Court. Even though the Plaintiffs have artfully pled a legal action, their claims attack the heart of the Ruth S. Biedenhern Trust, which lies in the bosom of the Warren County Chancery Court. As such, we find that the Circuit Court of the First Judicial District of Hinds County erred when it denied Trustmark’s Motion To Dismiss or To Transfer. We thus reverse the order denying a transfer to chancery court and remand this case to the Circuit Court of the First Judicial District of Hinds County with instructions to forthwith enter an order transferring this case to the Chancery Court of Warren County.

¶ 20. REVERSED AND REMANDED.

PITTMAN, C.J., SMITH, P.J., COBB AND DICKINSON, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. WALLER, P.J., DIAZ AND GRAVES, JJ., NOT PARTICIPATING.


author: GRAVES, Justice,

text:
    MISSISSIPPI EMPLOYMENT SECURITY COMMISSION v. MARION COUNTY SHERIFF’S DEPARTMENT and Sheriff Richard “Rip” Stringer.
    No. 2002-CC-01246-SCT.
    Supreme Court of Mississippi.
    Feb. 12, 2004.

      B. Ray Therrell, II, attorney for appellant.
    Lawrence Elder Hahn, Columbia, attorney for appellees.
   GRAVES, Justice,

for the Court.

¶ 1. This unemployment compensation benefits case is on appeal from a judgment of the Circuit Court of Marion County, which reversed a decision of the Mississippi Employment Security Commission (“MESC”) awarding benefits to Britton Mosley, Sr. and remanded the case for further proceedings.

¶ 2. MESC asserts three issues on appeal: (1) Whether the Circuit Court of Marion County erred by failing to properly apply Miss.Code Ann. § 71-5-519 (Rev. 2000) to the case at bar; (2) Whether the employer, Marion County Sheriff Richard “Rip” Stringer, failed to show good cause for his failure to timely file an appeal to the Board of Review pursuant to Miss. Code Ann. § 71-5-519; and (3) Whether the Circuit Court of Marion County abused its discretion by substituting its opinion for that of the Board of Review. Finding reversible error by the circuit court, we reverse and render.

FACTS

¶ 3. Mosley was employed by the Marion County Sheriff for approximately one and one half years as a correctional officer at the Marion-Walthall Correctional Facility (“Correctional Facility”) in Columbia, Mississippi. On October 19, 2001, Mosley was discharged for absenteeism without proper notification to his employer. (Mosley failed to come to work for three days without notice to his employer.) Mosley claimed that he thought he was on administrative leave due to pending investigations of the correctional facility.

¶ 4. On November 2, 2001, Mosley filed a claim for unemployment compensation benefits with the MESC. Unemployment benefits were denied on November 20, 2001, after a MESC claims examiner found that Mosley’s unexcused absences constituted misconduct pursuant to Miss.Code Ann. § 71-5-513(A)(l)(b). Mosley appealed the claims examiner’s decision to the appeals referee, and a telephonic hearing was scheduled for December 13, 2001. The Sheriffs Department and Stringer claim that they never received notification from the MESC regarding the hearing. Stringer filed an affidavit with the court to the same effect.

¶ 5. Mosley returned his “Telephone Response” form to the Appeals Referee and included his telephone number. The Sheriffs Department failed to return its “Telephone Response” form. On December 13, 2001, Mosley was the only person in “attendance” at the telephonic hearing. Since the Sheriffs Department failed to “attend” the telephonic hearing, and since it, as the employer, had the burden of showing that Mosley was terminated for misconduct, the Appeals Referee found that the Sheriffs Department had not met its burden of proof and thus reversed the decision of the claims referee. This decision was mailed on December 14, 2001. On December 31, 2001, three days after the appeal deadline, the Sheriffs Department appealed the decision of the Appeal Referee, stating it was not notified of the hearing before the Appeals Referee. The Board of Review found that, since the Sheriffs Department had not complied with Miss.Code Ann. § 71-5-519 and filed its appeal within fourteen days of the decision dated December 14, 2001, the decision of the appeals referee had become final and dismissed the appeal.

¶ 6. On June 25, 2002, the circuit court entered an order addressing these issues. Finding that the Sheriffs Department had been denied a fair hearing, the circuit court reversed the Board’s decision, and remanded this case for further proceedings.

DISCUSSION

I. WHETHER THE CIRCUIT COURT OF MARION COUNTY ERRED BY FAILING TO PROPERLY APPLY MISS. CODE. ANN. § 71-5-519 (1972, AS AMENDED) TO THE CASE AT BAR.

¶ 7. Mosley argues that the primary issue in this matter is whether the Sheriffs Department failed to timely file an appeal to the Board of Review pursuant to Miss.Code Ann. § 71-5-519.

¶ 8. Under Mississippi law, parties may appeal the initial decision of whether unemployment benefits will be granted. Miss.Code Ann. § 71-5-519. The subsequent intermediate or second-level decision may be appealed within fourteen days. The Board of Review hears such appeals and is the final arbiter of agency-level appeals. If a party fails to appeal the decision of an appeals referee within fourteen days, that decision is binding on the Board of Review. Unless the notification of the decision is made by means other than mailing, the fourteen-day time period to appeal to the Board of Review begins to run on the date that notice is mailed to the parties. Wilkerson v. Miss. Employment Sec. Comm’n, 630 So.2d 1000, 1002 (Miss.1994). That is, where notice of the referee’s decision is sent by mail, the fourteen-day time period begins to run on the date that notice is mailed. Furthermore, while holding that an appeal filed one day late was untimely, this Court stated that the fourteen day time period as set by statute is to be strictly construed. Id.

¶ 9. The Sheriffs Department argues that it was never notified of the telephonic hearing and has thus been denied due process. The evidence reveals that MESC was certainly less than diligent in seeking to give notice of the “Telephone Hearing.” However, the pivotal issue in this case is the Sheriffs Department’s receipt of the Appeal Referee’s decision. The Sheriffs Department admits that it received notice of the Appeal Referee’s decision. That decision was mailed on December 14, 2001, to the Sheriffs Department. It clearly informed the Sheriffs Department that it had fourteen days from the date of mailing to appeal the Referee’s decision. The deadline .for the Sheriffs Department to file an appeal was December 28, 2001. The Board of Review did not receive the Sheriff Department’s appeal until December 31, 2001, three days after the statutory period expired. Thus, under Mississippi law, the decision of the Appeals Referee became final and binding on the Board of Review as of December 28, 2001.

II. WHETHER THE EMPLOYER, SHERIFF RICHARD “RIP” STRINGER, FAILED TO SHOW GOOD CAUSE FOR HIS FAILURE TO TIMELY FILE AN APPEAL TO THE BOARD OF REVIEW PURSUANT TO MISS. CODE ANN. SECTION 71-5-519 (1972, AS AMENDED).

¶ 10. MESC contends that the Sheriffs Department failed to show good cause for its failure to timely file an appeal and that the decision of the Board of Review should be affirmed. The fourteen-day time period may be relaxed or extended if there is a showing of “good cause” by the appellant that the mailing to the last known address was not “reasonably calculated, under all circumstances, to apprise” the party of the decision. Booth v. Miss. Employment Sec. Comm’n, 588 So.2d 422 (Miss.1991) Cane v. Miss. Employment Sec. Comm’n, 368 So.2d 1263 (Miss.1979); Holt v. Miss. Employment Sec. Comm’n, 724 So.2d 466 (Miss.Ct.App.1998). Good cause is established when there is sufficient evidence to show that a party failed to receive the mailing due to delays in the mail or because of an act beyond the party’s control. Moreover, there is a presumption that the majority of mail is delivered on a timely basis. Mere denial that the notice was received, without supporting evidence, fails to constitute good cause for failing to timely appeal. Id. Thus, the Sheriffs Department failed to show good cause for its failure to timely appeal.

III. WHETHER THE CIRCUIT COURT OF MARION COUNTY ABUSED ITS DISCRETION BY SUBSTITUTING ITS OPINION FOR THAT OF THE BOARD OF REVIEW.

¶ 11. As stated in Miss.Code Ann. § 71-5-531 (Rev.2000), judicial review by the circuit court is confined to questions of law. Thus, absent fraud, the court should accept the Commission’s findings of fact as conclusive if supported by the evidence.

¶ 12. According to MESC, no testimony was taken during the December 13, 2001, telephonic hearing because the Sheriffs Department was not in attendance. Thus, the decision of the Appeals Referee concluded that “the burden of proof ... was not met by the employer and misconduct has not been established. The disqualification, therefore, is not in order.” Under our statutory scheme, “[t]he burden of proof of good cause for leaving work shall be on the claimant, and the burden of proof of misconduct shall be on the employer.” Miss.Code Ann. § 71-5-513(A)(c) (Rev. 2000) (emphasis added). In addition, this Court has held that in an unemployment benefits proceeding, “[t]he burden of proving this disqualifying misconduct by clear and convincing evidence rests with the employer.” Southwood Door Co. v. Burton, 847 So.2d 833, 841 (Miss.2003). Hence, the decision of the Appeals Referee was appropriate under the facts and circumstances before him at the time of the hearing. The appropriate time to address the issue of “Notice of the Telephone Hearing” was in a timely appeal of the Referee’s decision.

¶ 13. Pursuant to Miss.Code Ann. § 71-5-519 the decision of the Appeals Referee became final on the expiration of the fourteen-day deadline, and absent a showing of “good cause” this decision was conclusive. Miss. Employment Sec. Comm’n v. Edwards, 763 So.2d 194, 196 (Miss.Ct.App.2000). The Sheriffs Department failed to provided any evidence to support a showing of “good cause” for its failure to timely appeal to the Board of Review. The circuit court should have addressed this appeal strictly on the “undisputed fact” that the Sheriff Department’s appeal was untimely. The circuit court committed reversible error by substituting its opinion for that of the Board of Review by addressing the merits of an untimely appeal.

CONCLUSION

¶ 14. The Sheriffs Department does not dispute that it failed to timely file an appeal with the Board of Review. Due to this failure, the decision of the Appeals Referee became final upon the expiration of the fourteen-day time limit. Thus, the Board of Review properly dismissed the Sheriffs Department’s appeal from the decision of the Appeals Referee, and the circuit court erred in ruling otherwise. Therefore, we reverse the judgment of the Marion County Circuit Court, and we render judgment here reinstating the decision of the MESC Board of Review.

¶ 15. REVERSED AND RENDERED.

PITTMAN, C.J., SMITH AND WALLER, P.JJ., COBB, EASLEY, CARLSON AND DICKINSON, JJ„ CONCUR. DIAZ, J., NOT PARTICIPATING.


author: WALLER, Presiding Justice,

text:
    Marcus Ricardo BENNETT v. STATE of Mississippi.
    No. 2002-KA-01692-SCT.
    Supreme Court of Mississippi.
    Feb. 12, 2004.
    Jerry L. Bustin, Forest, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before PITTMAN, C.J., WALLER, P.J., and CARLSON, J.
   WALLER, Presiding Justice,

for the Court.

¶ 1. Marcus Ricardo Bennett pled guilty to two counts of selling cocaine within 1500 feet of a church. He was sentenced to 10 years in the custody of the Mississippi Department of Corrections on Count I and to 5 years on Count II, the two sentences to run consecutively. Bennett now appeals. We dismiss for lack of jurisdiction.

DISCUSSION

I. WHETHER THE DIRECT APPEAL OF A DEFENDANT WHO PLED GUILTY MAY BE HEARD BY THIS COURT.

¶ 2. Miss.Code Ann. § 99-35-101 (Rev.2000) prohibits persons who have pled guilty to a crime from filing direct appeals to this Court. We therefore dismiss this appeal for lack of jurisdiction. Berry v. State, 722 So.2d 706, 707 (Miss.1998). Under state law, the appropriate procedure for Bennett to follow is to file a petition for post-conviction collateral relief in the circuit court. See Miss.Code Ann. §§ 99-39-1 to -29 (Rev.2000 & Supp.2003). 722 So.2d at 707.

¶ 3. Because we lack jurisdiction, judicial economy demands that we not address each of Bennett’s claims on the merits.

II. WHETHER TROTTER v. STATE AND BURNS v. STATE APPLY, MANDATING THE COURT TO ADDRESS BENNETT’S CLAIMS ON THE MERITS.

¶ 4. Under Trotter v. State, 554 So.2d 313 (Miss.1989), and Burns v. State, 344 So.2d 1189 (Miss.1977), § 99-35-101 does not prevent the Court from reviewing, on direct appeal, the sentence imposed upon someone who has pled guilty:

A preliminary point needs to be addressed. The State contends that this appeal should be dismissed for lack of jurisdiction because Trotter pleaded guilty to the charges against him....
In Burns v. State, 344 So.2d 1189 (Miss.1977), this Court implied that an appeal from a sentence imposed pursuant to a guilty plea is not equivalent to an appeal from the guilty plea itself. In Burns, an appeal from [the] denial of a habeas corpus petition challenging the legality of a sentence imposed subsequent to a guilty plea was treated by this Court as a direct appeal. While the Court acknowledged the language of § 99-35-101, the Court stated: “[W]e do not deem the present case as an appeal from a guilty plea.” Burns, 344 So.2d at 1190.

Trotter, 554 So.2d at 315 (emphasis and capitalization in original).

¶ 5. We find that neither Trotter nor Burns applies to Bennett’s appeal. Bennett’s claims pertain to the enhancement of the sentence imposed, not the length of the sentence itself. He contends that the enhancement was not set out in the indictment or in the plea agreement. Although an enhancement of a sentence does pertain to the length of the sentence, an appeal from an enhancement of the sentence is equivalent to an appeal from the guilty plea itself because the defendant pleads guilty to the crime as well as to the enhancement, both of which are set out in the indictment.

¶ 6. Finally, Bennett’s claims are without merit. A review of the record shows that the enhancement was specifically stated in the indictment, in the plea agreement, and in the colloquy between the circuit judge and Bennett during the sentencing hearing. This issue is without merit.

CONCLUSION

¶ 7. We dismiss Bennett’s appeal without prejudice for lack of jurisdiction under Miss.Code Ann. § 99-35-101 (Rev.2000).

¶ 8. DISMISSED.

PITTMAN, C.J., SMITH, P.J., COBB, EASLEY, CARLSON, GRAVES AND DICKINSON, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.

      . Miss.Code Ann. § 99-35-101 (Rev.2000) provides as follows: "Any person convicted of an offense in a circuit court may appeal to the supreme court, provided, however, an appeal from the circuit court to the supreme court shall not be allowed in any case where the defendant enters a plea of guilty.”