author: |.GASKINS, J.

text:
    Rudy HINES, Plaintiff-Appellee v. AUDIO PLUS, INC., Defendant-Appellant.
    No. 38,644-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.

      Jeffrey L. Little, Shreveport, for Appellant.
    David L. White, Bossier City, for Appel-lee.
    Before GASKINS, DREW and LOLLEY, JJ.
   |.GASKINS, J.

Audio Plus, Inc., a repair shop, appeals from a trial court judgment that ordered it to return a jet ski to its owner, Rudy Hines, and refund to him the cost of improper repairs. The judgment also rejected the repair shop’s reconventional demand for sums allegedly still owed by Hines. Hines filed an answer to the appeal, seeking the full economic value of the jet ski. We affirm.

FACTS

In June 2001, Hines sent his jet ski, a 1995 Kawasaki Sea Doo, to Audio Plus for repair. He paid $1,253.13 for the work performed on it; this check was issued on the account of Hines’ company, Vermillion Painting and Construction, Inc. According to Hines, the first time he attempted to use the repaired jet ski at the lake, it stopped running within 30 minutes. The jet ski was returned to Audio Plus, where Hines was informed that the jet ski had developed a new malady, the breakdown of the rotary shaft gear. Audio Plus’ personnel told him it would have to be shipped to another company, Tony Ducas Racing, for repairs. Hines paid Audio Plus an additional $780 for more repair work on the jet ski.

Thereafter, Hines was allegedly told that the engine of the jet ski was damaged in shipping. When Hines attempted to retrieve the jet ski, Audio Plus refused to release it, claiming that it had a repairman’s lien and that Hines owed money to it for shipping.

Hines filed suit in Bossier City Court on March 7, 2002. He asserted that he had spent $2,033.13 for the repair of his jet ski. However, it was damaged while in the possession of Audio Plus, a compensated depositary. |gHe asked for the return of the sums he paid for repairs, the actual cash value of the jet ski, and the costs to adequately repair the jet ski.

Audio Plus filed an answer and recon-ventional demand. It asserted that Hines owed $238.02 in shipping costs, plus legal interest from date due, reasonable attorney fees and court costs under La. R.S. 9:2781.

Trial was held on October 1, 2003. The plaintiff presented the testimony of Hines and his expert, Ted Lemay. Hines testified that he was told by Jim Chimpalee of Audio Plus that the magneto housing was cracked during shipping and that he wanted more money to repair it. Lemay, a part owner of Moore’s Boats and Motors, testified that he had examined the jet ski and that the most probable cause of the crack was that someone physically working on it caused it with a tool. He also said that he would have been able to repair the jet ski for about $1,000 and that his work would have included installing a whole new engine block with a warranty. The defendant presented the testimony of Chimpalee and Jeremy Lafitte, an Audio Plus employee. They both testified that the jet ski was originally delivered to Audio Plus in pieces as though someone had tried to repair it. Chimpalee stated that in his opinion the crack in the magneto housing was not present when he first worked on the engine. On rebuttal, Hines denied that the jet ski was in pieces when first sent to Audio Plus or that he or his family had tried to repair it.

The court rendered judgment in favor of Hines and dismissed Audio Plus’ reconven-tional demand. The court found that it was irrelevant whether the jet ski was in pieces when first delivered to Audio Plus because |3Lemay and Chimpalee both felt that the crack was not present at that time. The court specifically found Lemay to be a credible witness and accepted his testimony that the damage to the jet ski could only have been done when someone worked on it. Thus, the court concluded that the damage occurred after the jet ski went to Audio Plus the second time. As to the price charged for the initial work, the court stated that a new block should have been installed and that had the work been done properly the first time, the other problems would not have happened. Judgment in the amount of $2,033.13 ($1,253.13 + $780) was awarded to Hines, and Audio Plus was ordered to return the jet ski to him within 10 days.

Audio Plus appealed from the adverse trial court judgment. Hines answered the appeal, seeking additional damages.

APPEAL

In its appeal, Audio Plus claims that the trial court erred in awarding the repair costs to Hines because the repairs were not improper and because part of the sum was paid by a third party, i.e. Hines’ company, Vermillion Painting and Construction, Inc. Additionally, Audio Plus contends that the trial court should have either awarded it storage costs and its shipping costs or allowed an offset for these amounts.

Standard of review

An appellate court may reverse the findings of the trial court only when a reasonable factual basis does not exist for the finding and the finding is clearly wrong or manifestly in error. Stobart v. State, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989); Pope v. Prunty, |437,395 (La.App.2d Cir.8/20/03), 852 So.2d 1213, writ denied, 2003-2496 (La.11/26/03), 860 So.2d 1137. When findings are based on determinations regarding the credibility of witnesses, the manifest error standard accords great deference to the trier of fact’s findings; for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what was said. Where a fact finder’s conclusion is based on its decision to credit the testimony of one of two or more witnesses, that determination can virtually never be manifestly erroneous or clearly wrong. Rosell, 549 So.2d at 844-845. The task of the reviewing court is solely to ask whether this fact finder’s resolution of the conflicting evidence was reasonable in light of the record as a whole. Pope v. Prunty, supra.

A reviewing court should not set aside an award of special damages unless an analysis of the facts and circumstances reveals an abuse of discretion in setting the award. Rochel v. Terrebonne Parish School Board, 93 0383 (La.App. 1st Cir.5/20/94), 637 So.2d 753, writ denied, 94-1613 (La.10/7/94), 644 So.2d 633; Ste vens v. Winn-Dixie of Louisiana, 95 0435 (La.App. 1st Cir.11/9/95), 664 So.2d 1207.

The trial court observed the vritnesses and adjudged their credibility. It concluded that the crack in the magneto housing occurred after the jet ski was returned to Audio Plus for the second time. Based upon our review of the record, this finding by the trier of fact was reasonable. The trial court also concluded that, had the jet ski been properly repaired the first time, it would not have been necessary to return it to Audio Plus where it suffered | Bthe additional damage. This conclusion is likewise reasonable. As we find no manifest error, we hold that the trial court did not abuse its discretion in deciding to refund the repair costs to Hines.

Third party payment

Audio Plus claims that since Hines’ company, Vermillion Painting and Construction, paid for part of the repairs, it was error to award those damages to Hines. It argues that a judgment cannot determine rights or award relief to persons or entities who are not parties to the litigation. However, we note that the defendant did not file a peremptory exception that Vermillion Painting and Construction was a “party needed for just adjudication,” under La. C.C.P. art. 641. A person should be deemed needed for just adjudication only when absolutely necessary to protect substantial rights. Industrial Companies, Inc. v. Durbin, 2002-0665 (La.1/28/03), 837 So.2d 1207.

Review of the record does not demonstrate that the corporation was a necessary party here. As argued by Hines, Vermillion Painting and Construction, a corporation of which he was a 60 percent owner, essentially loaned him the money to pay for the repairs. We do not believe that these facts make it a “party needed for just adjudication” and Audio Plus has not cited any persuasive authority in favor of its argument.

| sStorage and shipping

Audio Plus seeks an award for or offset of the costs it incurred in shipping and storing the jet ski. However, we note that Audio Plus kept the jet ski against the wishes of its owner, claiming that the owner owed it shipping costs. Since the court found that those additional costs were incurred as a result of the failure to properly repair the jet ski the first time, we find that an award or offset is not appropriate.

ANSWER TO APPEAL

Hines answered the appeal. He claims that the trial court erred in failing to award him the full economic value of the jet ski, which was left outside in the weather by Audio Plus for almost two years.

When property is damaged through the fault of another, the primary objective is to restore the property, as nearly as possible, to the state it was in immediately preceding the damage. Each case must rest on its own facts and circumstances supported by proof in the record. Davies v. Automotive Casualty Insurance, 26,112 (La.App.2d Cir.12/7/94), 647 So.2d 419.

At the close of the evidence, counsel for Hines requested “either the fair market value of the jet ski or the return of the jet ski.” The trial court ordered the return of the jet ski within 10 days. We find no manifest error in the trial court’s choice to return the jet ski to its owner in lieu of the fair market value.

^CONCLUSION

We affirm the trial court judgment. Costs are assessed equally between the appellant and the appellee.

AFFIRMED.

      . The two cases cited by the defendant are distinguishable. Rosella v. DeDe's Wholesale Florist, 607 So.2d 1055 (La.App. 3rd Cir. 1992); Minton v. Crawford, 1998-478 (La.App. 3rd Cir. 10/7/98), 719 So.2d 743. According to these cases, had the trial court awarded judgment in favor of Vermillion Painting and Construction, a non-party, it would have been error. The only award made here was to Hines, a party.


source: Caselaw Access Project

author: hMOORE, J.

license: Public Domain

text:
    Prentiss JONES, Plaintiff-Applicant v. LSU HEALTH SCIENCES CENTER-SHREVEPORT, et al., Defendant-Respondents.
    No. 39,292CW.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 2, 2004.
    The Singleton Law Firm by Samuel L. Jenkins, Jr., Shreveport, Angela Michelle Smith, for Applicant.
    Charles C. Foti, Jr., Attorney General, John F. Frederickson, Assistant Attorney General, for Respondents.
    Before GASKINS, CARAWAY and MOORE, JJ.
   hMOORE, J.

Plaintiff moved for summary judgment on his medical malpractice claim under La. R.S. 9:2794, supported by a report from the medical review panel finding that the defendant breached the standard of care and the breach caused the loss of the plaintiffs testicle. Defendant opposed the motion with an affidavit and report of a medical expert who concluded that there had been no breach in the standard of care and no malpractice. The court granted a partial summary judgment ruling that the defendant breached the applicable standard of care, but it did not rule that the breach caused the plaintiffs injury or grant summary judgment on the issue of liability. Defendant sought supervisory jurisdiction of this court, which was granted. For the reasons above, we make the writ peremptory and reverse the judgment of the trial court.

The plaintiff supported his motion with the opinion of the medical review panel that there was a breach in the standard of care and this breach caused the injury to the plaintiff. Defendant opposed the motion with an affidavit and report from Dr. Jonathan Henderson, stating that the plaintiffs testicle was not viable when the plaintiff appeared in the emergency room. Based upon certain medical data and the history given, he concluded that there was no deviation in the standard of care in both the emergency room and in the following admission for the case, and no evidence of malpractice at any time.

The trial court erred when it granted a partial summary judgment regarding a breach of the standard of care. The court was presented with an opposing affidavit from a board-certified urologist stating that the plaintiffs | ¿testis was not viable when he presented at the emergency room on March 2, 2001. Where such opposition is presented in a summary judgment proceeding, the trial court should not weigh or determine the credibility of the evidence. Independent Fire Insurance Company v. Sunbeam Corporation, 1999-2181 (La.2/29/00) 755 So.2d 226. Accordingly, there remain disputed issues of material fact precluding summary judgment.

We further conclude that while La. C.C.P. art. 966 E permits summary judgment dispositive of “a particular issue,” in this instance, the grant of a summary judgment on a single element of La. R.S. 9:2794, which sets out the elements to show liability in a medical malpractice claim, was improper. By dividing the issue of liability into smaller issues, the court’s judgment that the defendant breached the standard of care might be used at trial to preclude the introduction of evidence by the defendant regarding whether there was a breach in the standard of care and that breach caused the plaintiffs injury. There is possibility of confusion arising out of the factual interrelationship between the adjudicated element and the unadjudicated element that could lead to inconsistent rulings and piecemeal litigation. Cf. Brantley v. State Farm Ins. Co., 33,386 (La.App. 2 Cir. 5/10/00) 760 So.2d 603.

For these reasons, we reverse the partial summary judgment of the trial court and remand this case for further proceedings.

WRIT GRANTED AND MADE PEREMPTORY.

GASKINS, J., concurs in result.


author: COBB, Presiding Justice,

text:
    HARRISON COUNTY DEVELOPMENT COMMISSION v. DANIELS REAL ESTATE, INC. and WJZD, Inc.
    No. 2000-CA-00427-SCT.
    Supreme Court of Mississippi.
    June 10, 2004.
    Rehearing Denied Sept. 2, 2004.

      David W. Crane, Gulfport, attorney for appellant.
    Felicia Dunn Burkes, Gulfport, attorney for appellee.
   COBB, Presiding Justice,

for the Court.

¶ 1. This appeal arises from a dispute over the purchase by Daniels Real Estate Inc. (Daniels) of a parcel of real property in the Bernard Bayou Industrial District, and originates from actions in both the Harrison County Chancery Court and Circuit Court. We conclude that the declaratory and injunctive action was never properly transferred from chancery court and is therefore still pending in that court and not properly before this Court. Furthermore, we conclude that the circuit court erred in assuming jurisdiction and awarding damages in favor of Daniels. Therefore, we reverse and render the judgment of the circuit court. The action pending in chancery court may proceed consistent with this opinion.

FACTS

¶ 2. Daniels Real Estate, Inc., purchased a tract of land in the Bernard Bayou Industrial District, which is one of the industrial parks created and maintained by the Harrison County Development Commission (the Commission). A special warranty deed to Daniels, which contained a buyback option or reverter clause, was signed by the Commission on September 27,1995, and approved by the Harrison County Board of Supervisors on October 2, 1995, but the property transaction was not completed until April 24, 1996. The buy-back option provided that the Commission could buy back the parcel for $58,500 if construction was not commenced for the purposes specified in the deed within one year after the sale of the property. Shortly after the property purchase was complete, Daniels conveyed the property to WJZD, Inc., an entity for which Stanley J. Daniels was the CEO.

¶ 3. On December 20, 1996, the Commission notified Daniels that it was in breach of the deed’s construction obligation. In April of 1997, the Commission sought to amend the deed by modifying the covenants to give Daniels additional time in which to comply with the construction requirements. Because Daniels believed that it was in compliance with the construction requirements of the deed and did not want the Commission to amend the deed, it filed an action in the Harrison County Chancery Court on June 3, 1997, seeking declaratory and injunctive relief, and asking the chancery court to resolve the disagreement over interpretation of the deed and to enjoin the Commission from recording an amendment to the deed. The Commission filed a motion for summary judgment which the chancery court denied.

¶ 4. Subsequently, Daniels filed a motion to transfer the action to the Harrison County Circuit Court; however, the chancery court never ruled on that motion. Then on March 2, 1998, without pursuing its motion in chancery court, or dismissing its chancery court action, Daniels filed a complaint against the Commission in the Harrison County Circuit Court alleging that the special warranty deed was negligently drafted and asking for monetary damages. In August of 1998, a bench trial commenced in the circuit court. The Commission moved ore tenus to dismiss the suit for lack of standing because Daniels had conveyed the property to WJZD, Inc., but had not included WJZD as a plaintiff in the action. The circuit court dismissed the action without prejudice on the basis that WJZD did not adhere to the Mississippi Tort Claims Act. Following this dismissal of the first circuit court complaint, Daniels served notice of the complaint on the Commission, and the trial court granted Daniels’s motion to re-open the case and resume testimony.

¶ 5. On November 24, 1998, Daniels filed a second action in the Harrison County Circuit Court, this time naming both Daniels Real Estate and WJZD as plaintiffs and naming the Harrison County Development Commission and the Harrison County Board of Supervisors as defendants. This complaint again alleged that the warranty deed was negligently drafted, and added claims that the Commission was negligent in unilaterally modifying the special warranty deed and in attempting to continue enforcement of the buy-back option. This complaint also sought monetary damages.

¶ 6. Next, the Commission filed a motion to dismiss or, in the alternative, to consolidate and continue the actions, and on May 5, 1999, the circuit court held a hearing on the motion and consolidated the three suits into one cause and set a trial date. However, the circuit court never conducted a trial on the merits, but rather entered a judgment finding the Commission negligent and, following a bench trial on damages only, awarded Daniels Real Estate and WJZD $647,260 in damages. Included among the circuit court’s specific findings of fact was “that the Commission wilfully and contemptuously interfered with this [Circuit] Court’s exclusive jurisdiction by refusing to and constantly objecting to the transfer of the Chancery Court action to Circuit Court.” (emphasis added).

¶ 7. The Commission appealed asserting numerous trial court errors, arguing: (1) that the first circuit court action should have been dismissed for failure to comply with the Mississippi Tort Claims Act (MTCA); (2) that the second circuit court action should have been dismissed because it was filed beyond the one-year statute of limitations imposed by the MTCA; (3) that it was denied due process because the trial judge found liability without holding a full hearing on the merits; (4) that it was error for the trial court to award damages for racial discrimination under 42 U.S.C. § 1982; and (5) that it was error for the circuit court to rule on the chancery court action. Because we conclude that it was error for the circuit court to assume jurisdiction when there was still pending an earlier chancery court complaint for declaratory and injunctive relief, involving the same parties, and the same or substantially same controversy, we reverse and render the judgment of the circuit court, and allow the chancery court action to proceed.

ANALYSIS

¶ 8. The Chancery Court Action: There is no dispute that the first suit was filed in the Harrison County Chancery Court. Although the circuit court’s consolidation order purports to consolidate the chancery court declaratory action with the two circuit court actions, there was no order in the record transferring the declaratory judgment action to the circuit court, or dismissing it. Therefore, the declaratory judgment action is still pending in the chancery court, the court of priority jurisdiction.

¶ 9. In both the chancery suit and the first circuit court suit Daniels sued the Commission. The fact that Daniels subsequently added WJZD, Inc. and the Harrison County Board of Supervisors in the second circuit court suit does not defeat the chancery court’s priority jurisdiction. This Court has established the general rule of priority jurisdiction, as follows:

It is fundamental that a plaintiff is not authorized simply to ignore a prior action and bring a second, independent action on the same state of facts while the original action is pending. Hence a second action based on the same cause will generally be abated where there is a prior action pending in a court of competent jurisdiction within the same state or jurisdictional territory, between the same parties, involving the same or substantially the same subject matter and cause of action, and in which prior action the rights of the parties may be determined and adjudged.

Lee v. Lee, 232 So.2d 370, 373 (Miss.1970) (emphasis added).

¶ 10. In Huffman v. Griffin, 337 So.2d 715, 719 (Miss.1976), which addressed the issue of priority jurisdiction between courts of concurrent jurisdiction, this Court held that “[t]he principle of priority jurisdiction is that where two suits between the same parties over the same controversy are brought in courts of concurrent jurisdiction, the court which first acquires jurisdiction retains jurisdiction over the whole controversy to the exclusion or abatement of the second suit .... In this state priority of jurisdiction between courts of concurrent jurisdiction is determined by the date the initial pleading is filed.” (internal citations omitted.) See also Scruggs, Millette, Bozeman & Dent, P.A. v. Merkel & Cocke, P.A, 804 So.2d 1000, 1006 (Miss.2001). The principle of priority jurisdiction presupposes that the first court in which suit is filed is a court of competent jurisdiction.

¶ 11. The Circuit Court Actions: Daniels and WJZD claim that the Commission negligently drafted the deed in question. The mere recitation of such words as “negligent” and “reckless disregard” in stating the cause of action does not automatically convert a breach of contract cause of action which arose from the sale and conveyance of real property, into a tort cause of action which is worthy of $500,000 in compensatory damages.

¶ 12. The provisions of the MTCA have “no application to a pure breach of contract action,” and the Legislature’s clear intent in enacting the MTCA was to immunize the state and its political subdivisions from any tortious conduct, including tortious breach of implied term or condition of any warranty or contract. City of Grenada v. Whitten Aviation, Inc., 755 So.2d 1208, 1212-13 (Miss.Ct.App. 1999); see Miss.Code Ann. § 11-46-3 (Rev.2002). “Sovereign immunity does not bar actions against the state or its political subdivisions brought on a breach of contract theory.” Churchill v. Pearl River Basin Dev. Dist., 619 So.2d 900, 903 (Miss.1993); Miss. State Dep’t of Publ. Welfare v. Howie, 449 So.2d 772, 777 (Miss.1984); Cig Contractors, Inc. v. Miss. State Bldg. Comm’n, 399 So.2d 1352 (Miss.1981). The general rule is that:

[W]hen the legislature authorizes the State’s entry into a contract, the State necessarily waives its immunity from suit for a breach of such contract. Where the state has lawfully entered into a business contract with an individual, the obligations and duties of the contract should be mutually binding and reciprocal. There is no mutuality or fairness where a state or county can enter into an advantageous contract and accept its benefits but refuse to perform its obligations.

Id. at 1355 (citation omitted).

¶ 13. In Whitten Aviation, the Court of Appeals correctly concluded:

Even though Wfiiitten plead numerous theories of recovery in its complaint, including tortious breach of contract and breach of contract, the only theory proceeded on at trial was breach of contract. The lower court dismissed all defendants related to any tortious conduct, limited all evidence to that dealing solely with breach of contract and prohibited the introduction of any evidence dealing with any tortious conduct.
Since breach of contract claims are clearly unaffected by the provisions of MTCA, the notice required under § 11-46-11 was not applicable.

Whitten Aviation, 755 So.2d at 1214. Under this case and statutory law, it is evident that the MTCA does not apply to breach of contract claims.

¶ 14. Even if we determined that the Daniels Real Estate’s claims were covered by the MTCA, the claim of “wrongful creation of a cloud on the title” failed to state a cause, of action. In its brief, Daniels argues that liability was properly imposed on the Harrison County Development Commission for its misfeasance in failing to use ordinary care in the exercise of its discretionary act of drafting the deed because a government agency has a positive duty to use ordinary care in the exercise of its discretionary acts. Daniels claims that as drafters of the Special Warranty Deed, the Commission did not exercise that degree of ordinary care necessary to alert the plaintiffs that construction of the radio tower would not, in the Commission’s view, constitute commencement of construction.

¶ 15. To recover in a negligence action, a plaintiff has the burden of proof to show from a preponderance of the evidence that the defendant had a legal duty, that the legal duty was breached by the defendant’s failure to conform to the required standard of care, that the defendant’s breach proximately caused an injury to the plaintiff and that damage to the plaintiff resulted. Phillips ex rel. Phillips v. Hull, 516 So.2d 488, 491 (Miss.1987). To establish a prima facie case of negligence, the plaintiff must produce credible evidence that the defendant failed to conform to the standard of care.

¶ 16. As indicated by the contract for purchase and sale, Daniels agreed to the provisions contained in the deed. Daniels was represented by counsel in the negotiations with the Commission. It had the opportunity to review the deed, and to request revisions, before closing the deal. It has made no claim that it was coerced or fraudulently induced into accepting a deed which contained provisions with which it did not agree. The record contains no evidence of inequitable conduct by the Commission. Daniels cannot excuse its own conduct by pointing its finger at the Commission and claiming that the Commission’s purported negligence caused it to sustain damages.

¶ 17. If the deed did not reflect the parties’ intentions, Daniels could have filed a suit to remove cloud on the title (instead of a suit for “wrongful creation of a cloud on the title”) or a suit for reformation of the deed. The Commission has not committed a “wrongful” act just because Daniels failed to discern, at the time the deal was made, what the consequences of the buy-back option provision might be.

¶ 18. Neither does Daniels’ tor-tious interference with contract claim state a cause of action. The defendant to a tortious interference with contract claim must be a third party to the contract, not a principal to the contract such as the Commission:

One who intentionally and improperly interferes with the performance of a contract between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for pecuniary loss resulting to the other from the failure of the third person to perform the contract.

Restatement (Second) of Torts § 766 (1979); see Shaw v. Burchfield, 481 So.2d 247, 254-55 (Miss.1985); Cranford v. Shelton, 378 So.2d 652, 655 (Miss.1980); Southwest Drug Co. v. Howard Bros. Pharmacy of Jackson, Inc., 320 So.2d 776, 778 (Miss.1975); Irby v. Citizens Nat'l Bank of Meridian, 239 Miss. 64, 67, 121 So.2d 118, 119 (1960); Bailey v. Richards, 236 Miss. 523, 536-37, 111 So.2d 402, 407 (1959).

¶ 19. Daniels also complains that the “Amendment and Extension of Deed Covenants and Restrictions” was “unilaterally” adopted by the Commission and constituted “wrongful and unlawful interference with Plaintiffs’ right, title and interest in the subject property....” However, the deed, which is dated October 2, 1995, contains the following provision:

In the event construction is not commenced on the property herein conveyed within one (1) year from the date of this conveyance [October 2, 1996] for the purpose enumerated in Section B above, [“constructing corporate offices for real estate, radio and construction companies for Daniels Real Estate, Inc.”] then the Grantors herein shall have the right, but not the obligation, to purchase the property herein described for the sum of FIFTY-EIGHT THOUSAND FIVE HUNDRED AND NO/100 ($58,500.00). This covenant shall be deemed to be cancelled and terminated at the time that construction is commenced on the subject property.

The Amendment, which is dated May 5, 1997, seven months after the expiration of the above provision, states:

In the event that the grantee has not received all necessary permits from the City of Gulfport for the construction contemplated herein and has not obtained approval of the complete construction plans and specifications from the Engineering and Maintenance Committee of the of the Harrison County Development Commission on or before July 31, 1997, then the grantors herein shall have the right, but not the obligation to purchase the property herein described for the sum of Fifty-Eight Thousand Five Hundred and 00/100 Dollars ($58,500.00).

¶ 20. The Amendment was not adopted until well past the one year limit imposed by the deed. All the Amendment did was extend the time for Daniels to come into compliance with the provisions of the deed. We cannot see how, after Daniels had already failed to comply with the provisions of the deed, an extension of time given to Daniels to come into compliance with the provisions of the deed, could possibly damage Daniels in any way. Therefore, we reverse the circuit court’s judgment and render judgment here, dismissing with prejudice the two circuit court actions.

¶ 21. The 42 U.S.C. § 1982 decision: In addition to entering judgment on its findings of negligence, the circuit court also sua sponte found the Commission to be in violation of 42 U.S.C. § 1982. However, nowhere in any of the three complaints submitted by Daniels Real Estate or WJZD was such a claim raised. This Court does not find in the record before it any indication of an amendment to the pleadings that includes this claim, or of any indication that the Commission was on notice of such a claim. We have nothing before us to show that the Commission ever had the opportunity to offer evidence on its behalf.

¶ 22. The trial court committed reversible error in finding that the evidence supported a judgment that the Commission violated § 1982. That section states: “All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” A careful review of the record reveals no evidence before the trial court from which it could conclude that the Commission’s conduct was in any way motivated by an intent to racially discriminate against the plaintiffs. The mere facts of the racial composition of Daniels Real Estate or WJZD, and the Commission’s determination that Daniels was in breach of the deed’s construction obligations, simply are not sufficient proof of a § 1982 claim, and we reverse and render judgment in favor of the Commission on that issue.

CONCLUSION

¶ 23. We reverse the judgment of the Harrison County Circuit Court, First Judicial District and render judgment in favor of the Harrison County Development Commission on all issues including the circuit court’s judgment that the Commission violated 42 U.S.C. § 1982.

¶ 24. Because there is still pending in the Harrison County Chancery Court Daniels’ complaint for declaratory and injunc-tive relief which asks that court to resolve not only the disagreement over the interpretation of the special warranty deed and its amendment but also other equitable relief, there is nothing within our decision today which would prevent Daniels Real Estate and WJZD, and any other properly named entities, from proceeding to that end.

¶ 25. REVERSED AND RENDERED.

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

      . The provision in the deed which is at issue in this appeal is referred to by Daniels as a restrictive covenant, by the Commission as a buy-back option, and by the circuit court as a reverter clause. We leave it to the chanceiy court to determine, if necessary, the true nature of the provision. For purposes of this opinion we will refer to it as a buy-back option.

      . The allegation in the first circuit court complaint stated that "[djefendant Harrison County Development Commission was negligent and acted with reckless disregard for the Plaintiff's rights in drafting of said deed.”


author: CARLSON, Justice, RANDOLPH, Justice,

text:
    Barbara Ann BREKEEN v. William Lee BREKEEN.
    No. 2002-CA-01136-SCT.
    Supreme Court of Mississippi.
    June 24, 2004.
    Rehearing Denied Sept. 2, 2004.

      Duncan L. Lott, Booneville, attorney for appellant.
    Joe M. Davis, New Albany, attorney for appellee.
   CARLSON, Justice,

for the Court.

¶ 1. On May 8, 2002, the Tishomingo Chancery Court awarded William Lee Brekeen a divorce from Barbara Ann Brekeen on the grounds of adultery. The chancery court further awarded custody of the parties’ minor child to William and granted Barbara liberal visitation rights. Feeling aggrieved by the chancellor’s ruling regarding the custody of her minor child, Barbara has timely filed her appeal before this Court. Finding that the chancellor placed too much weight on one particular Albright factor, we reverse the judgment of the Tishomingo County Chancery Court and remand this case for further proceedings.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. William and Barbara Brekeen were married on July 20, 1991. On October 19, 1994, their minor child was born. Barbara left their home at the Tishomingo County State Park, where her husband was employed as park manager, on June 26, 2001, and moved into the parties’ city home in Tishomingo. Barbara’s son from a previous marriage later moved into the city to live with his mother.

¶ 3. William filed for divorce on the grounds of Barbara’s alleged affair with another man. Barbara also filed for divorce on the grounds of habitual, cruel and inhuman treatment. After the separate causes were consolidated, the chancellor awarded temporary custody of the parties’ minor child to William and granted temporary visitation to Barbara until final disposition. After a trial on the merits was conducted, the chancellor awarded William a divorce from Barbara on the grounds of adultery and awarded William primary legal custody of the parties’ minor child. Barbara was awarded extensive visitation rights. The following is the judgment of chancellor:

At this time, the Court will now consider each of the [Albright ] guidelines separately, which are as follows:

1. Age, Health and Sex of Child.
The minor female child of the parties is eight years of age and in good health.
2. Continuity of Care Prior to the Separation.
Both parents were actively involved in the care of the minor child before the separation on June 26, 2001, but Barbara Ann Brekeen did not work when the child was younger and did participate more in the care of the child, primarily because William Lee Brekeen was working on a full time basis.
3. Parenting Skills and the Willingness and Capacity to Provide the Primary Child Care to the Child.
Both parties have good parenting skills, are actively involved in the minor child’s school and church activities and have demonstrated by the proof they respectively presented that each has the capacity to provide for the care of the minor child.
A Employment of the Parents and Responsibilities of that Employment
William Lee Brekeen is employed by the Mississippi Department of Wildlife, Fisheries and Parks and serves as park manager of Tishomingo State Park, where he has overall management of the operation of that park. At the temporary hearing, Barbara Ann Brekeen worked for the Town of Tishomingo, but has since been terminated from this employment, and now works at Town and Country Furniture Store in Iuka, Mississippi.
5. Physical and Mental Health and Age of Parents
Both William Lee Brekeen and Barbara Ann Brekeen are 41 years of age and are in good physical and mental health.
6. Emotional Ties Between the Parents and Child
Both parties have strong emotional ties with the minor child, and she with them.
7. Moral Fitness of Parents
The proof clearly established that William Lee Brekeen is a morally fit individual. While he did not attend church on a regular basis with his family before the date of separation on June 26, 2001, since he obtained the temporary custody of the minor child by prior order of the Court dated September, 2001, he and the minor child attend church regularly. The proof did establish that William Lee Brekeen had a child, apparently out of wedlock, many years ago, and agree to have his parental rights in that child terminated.
Barbara Ann Brekeen has used very poor judgment in her personal life in that she has clearly engaged in an extramarital affair with an individual she met while working with the Town of Tishom-ingo. This individual also worked for the Town of Tishomingo as a policeman. Because her relationship with this police officer and because of unauthorized long distance calls at the City Hall in Tishom-ingo, Mississippi, Barbara Ann Brekeen was terminated from her employment between the temporary hearing held in this matter in September, 2001, and the date of the first day of the hearing on the merits held on February 15, 2002.
This relationship by Barbara Ann Brekeen with the policeman caused her to leave the marital home at the state park, leaving William Lee Brekeen, her oldest son, [“John”], and the 8 year old daughter of the parties, without notice to the family members. She was gone for over a week without contacting William Lee Brekeen, the minor child or [“John”]. Later she came back and took [“John”] with her to the home in Tish-omingo, Mississippi where she has remained since that time.
Both parties acknowledged that William Lee Brekeen tried to persuade Barbara Ann Brekeen to seek marriage counseling after the separation, but she refused to do so. Barbara Ann Brekeen admitted she told William Lee Brekeen “her feelings had changed” and that she left her three family members “because I wanted to think about what I was going to do.”
This bizarre action on the part of Barbara Ann Brekeen in leaving her family without notice, particularly her eight year old minor daughter, her adulterous affair at the expense of her family, and her termination from her employment at the Town of Tishomingo, all this Court to have grave and serious concerns about her moral fitness for custody of the minor child.
8. The Home, School and Community Records of the Child.
The proof established that the minor child of the parties is a good student, making straight A’s, at Tishomingo Elementary School.
9. Preference of the Child.
Because of the young age of the minor child, age eight, this factor is not applicable.
10. Stability of the Home Environment of Each Parent.
William Lee Brekeen has a stable home in the manager’s home provided to him at Tishomingo State Park. Since the date of separation on June 26, 2001, Barbara Ann Brekeen and her oldest son, [“John”], reside in a home the parties jointly own at [... ].
11. Other Factors Relevant to the Parenh-Child Relationship.
As stated above, the actions of Barbara Ann Brekeen in her personal life cause this Court to have doubt as to her stability to serve as the primary custodian of her minor daughter. Who is to say that she might not repeat this dismal conduct in the future.
On the other hand, despite this strange conduct by Barbara Ann Brek-een, there is no doubt that she loves her daughter, has played a tremendous part in her growth, development and activities in her younger years, and clearly desire to continue doing so in the future.
Further, the Court is very mindful of the physical needs in adjustment with the minor daughter will face in a few short years which can best be assisted by her mother.
* * * * * * * *
Based upon all the forgoing, the Court reaches the inescapable conclusion that the best interest of the minor child would be for William lee Brekeen to have the primary legal custody of the minor child, and that become the order of the Court.

DISCUSSION

¶ 4. As this Court has stated on numerous occasions, absent an abuse of discretion, we will uphold the decision of the chancellor. “This Court will not disturb the factual findings of the chancellor unless said factual findings are manifestly wrong or clearly erroneous.” Jerome v. Stroud, 689 So.2d 755, 757 (Miss.1997) (citing McAdory v. McAdory, 608 So.2d 695, 699 (Miss.1992)). “However, where the chancellor improperly considers and applies the Albright factors, an appellate court is obliged to find the chancellor in error.” Hollon v. Hollon, 784 So.2d 943, 946 (Miss.2001) (citing Stroud, 689 So.2d at 757 (citing Smith v. Smith, 614 So.2d 394, 397 (Miss.1993))).

¶ 5. This Court has continuously held that in all child custody cases the polestar consideration shall remain the best interest and welfare of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The Albright factors, used to determine child custody based on the best interests of the child, include:

1) age, health and sex of the child; 2) determination of the parent that had the continuity of care prior to the separation; 3) which has the best parenting skills and which has the willingness and capacity to provide primary child care; 4) the employment of the parent and responsibilities of that employment; 5) physical and mental health and age of the parents; 6) emotional ties of parent and child; 7) moral fitness of parents; 8) the home, school and community record of the child; 9) the preference of the child at the age sufficient to express a preference by law; 10) stability of home environment and employment of each parent; and 11) other factors relevant to the parent-child relationship.

Hollon, 784 So.2d at 947 (citing Albright, 437 So.2d at 1005).

¶ 6. In Carr v. Carr, 480 So.2d 1120 (Miss.1985), this Court held that “the fact of adultery alone does not disqualify a parent from custodianship but that the polestar consideration in original custody determinations is the best interest and welfare of the minor child.” Applying the Albright factors, this Court noted that

moral fitness of a parent encompasses the charge of adultery. But moral fitness is but one factor to be considered, and it is a factor worthy of weight in determining the best interest of the child. Adultery of a parent may be an unwholesome influence and an impairment to the child’s best interest, but on the other hand, may have no effect. The trial court should consider this factor along with all others when making original custody determinations.
And as stated in Albright, marital fault should not be used as a sanction in custody awards.

Carr, 480 So.2d at 1123. After a complete review of the record, the Court found that the chancellor weighed all relevant factors applicable to the circumstances. Id. Therefore, this Court concluded that the chancellor’s findings were supported by the record because he considered adultery as only one factor when considering what was in the best interest and welfare of the children. Id. However, in the case sub judiee, the record does not support the findings of the chancellor.

¶ 7. In addressing the Albright factors, the chancellor listed each factor and gave a short one to two sentence statement under each factor except for the factors pertaining to moral fitness and other relevant factors. These explanations comprised three and one half pages of the five pages of the opinion devoted to the discussion on custody.

1. Age, Health and Sex of the Child.

¶ 8. The chancellor incorrectly stated that the child was eight years old. The minor child turned seven on October 19, 2001, while the custody hearings were taking place and was attending first grade at the time of the hearings. The chancellor made no finding as to either parent on this factor. In Mercier v. Mercier, 717 So.2d 304, 307 (Miss.1998), this Court acknowledged that “the tender years doctrine has been gradually weakened in Mississippi jurisprudence to the point of now being only a presumption. Law v. Page, 618 So.2d 96, 101 (Miss.1993). Today, the age of a child is simply one of the factors that we consider in determining the best interests of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).”

2. Continuity of Care Prior to the Separation

¶ 9. The chancellor found that although both parties participated in the care of the child, Barbara did not work when the child was younger, and therefore was able to participate more in the care of the child. The chancellor also noted that William worked on a full-time basis. Although, no specific finding was made in favor of either parent by the chancellor, the parties both agree that from the language of the judgment, the chancellor found this factor in favor of Barbara.

3. Parenting Skills and the Willingness and Capacity to Provide the Primary Child Care to the Child.

¶ 10. The chancellor found that each parent exhibited good parenting skills and each were active in the child’s school and church activities. The record reflected that the minor child had attended church with Barbara her entire life. William did not attend church with his family because of his job. After the separation, William began accompanying the minor child to church. Testimony also showed that William had not taken the minor child to the dentist since the separation because he did not feel it was necessary. Barbara testified that she always saw to it that her children regularly saw the dentist and a doctor. There was also testimony that William allowed his six-year-old daughter to attend first grade wearing two-inch high heels although she complained that they hurt her feet. Barbara testified that although the minor child was old enough to dress herself, she still found it necessary to lay her clothes out for school each morning. Once again the chancellor did not make a specific finding in favor of one parent over the other regarding this factor.

k. Employment of the Parents and Responsibilities of that Employment.

¶ 11. The chancellor noted that William worked as the park manager of the Tish-omingo State Park, and Barbara worked at Town and Country furniture store in Iuka. However, testimony showed that William’s time sheets indicated he worked 50 to 60 hour weeks. William disputed these numbers saying that it was standard practice to add comp time to his hours each week. He also testified that he was able to do some of his work at home. Although William usually had Thursday and Friday off, he also had to work on the weekends, and as park manager, he lived at the park and could be called out at a moment’s notice. Barbara’s work hours were 8:00 a.m. to 5:00 p.m. Monday through Friday. The chancellor did not make a specific finding as to either parent regarding this factor.

5. Physical and Mental Health and Age of the Parents.

¶ 12. The chancellor determined that both parents were of good mental and physical health; therefore, he did not make a specific finding as to either parent regarding this factor.

6. Emotional Ties Between the Parents and Child.

¶ 13. Finding that both parents had strong emotional ties to the minor child, the chancellor did not make a specific finding as to either parent regarding this factor.

7. Moral Fitness of the Parents.

¶ 14. The chancellor found William to be a morally fit individually. However, over the next two pages of his order, the chancellor discussed Barbara’s extra-marital affair which led to the couple’s divorce. Barbara testified that this affair occurred after she moved out of the home she shared with her husband; however, the chancellor concluded that it was the affair that led Barbara to leave her home and her child. The chancellor stated Barbara used “very poor judgment” in her personal life. The chancellor considered her actions to be “bizarre” enough for him to have “grave and serious concerns about her moral fitness for custody of the minor child.”

8. The Home, School and Community Records of the Child.

¶ 15. The chancellor found that the minor child exhibited exemplary grades at Tishomingo Elementary School. The chancellor did not make a specific finding as to whether this factor favored either of the parents.

9. The Preference of the Child.

¶ 16. The chancellor was correct in finding that because of the age of the child, this factor was not applicable.

10. Stability of Home Environment of Each Parent.

¶ 17. The chancellor found that William’s employment as manager of the Tish-omingo State Park provided him with a stable home. The chancellor also noted that Barbara and her son had been residing in the home owned jointly by the parties in Tishomingo since the separation. However, the chancellor ordered that the home be sold, with the net proceeds divided equally among the parties. The chancellor did not make a specific finding as to whether this factor favored either party.

11. Other Factors Relevant to the Parent-Child Relationship.

¶ 18. Although this factor affords chancellors the opportunity to discuss other factors not already covered in the other Albright factors, this chancellor chose to solely rely on Barbara’s affair. After determining that Barbara exhibited good parenting skills and possessed the capacity to properly provide and care for her minor child, as previously discussed in the third factor, the chancellor nevertheless stated that he believed that certain aspects of Barbara’s personal life would hinder her ability to serve as a her minor child’s primary care giver. The chancellor’s findings as to Barbara on these two factors are woefully inconsistent in that the chancellor on the one hand found that Barbara exhibited “good parenting skills” and had “the capacity to provide for the care of the minor child,” but on the other hand found that he doubted “her ability to serve as the primary custodian of her minor daughter” because of her “bizarre action.” The chancellor failed to mention the support Barbara received from her family, William’s interference with Barbara’s time with their minor child, or any other relevant factor not contained in the other factors. He again reiterated the actions of Barbara’s extra-marital affair and the doubt this cast on her ability to serve as the primary custodian of her minor daughter. The chancellor noted his concern of her repeating this action in the future. Therefore, the chancellor concluded, based on the above findings, that it would be in the best interest of the minor child for William to have primary legal custody of the minor child. The chancellor then awarded extensive visitation rights to Barbara by granting her three weekends a month beginning on Thursday afternoon and ending on Sunday evening.

¶ 19. After a thorough review of the record, we find without doubt that the chancellor relied heavily on the fact the Barbara had an affair, thus placing too much weight on one Albright factor. From his consideration of the Albright factors, the chancellor found two in favor of William (moral fitness and other relevant factors) and one in favor of Barbara (continuity of care prior to the separation). The remaining factors were found to be neutral.

This Court has held that although it could not be said that the chancellor’s conclusion regarding the application of the Albright factors was so lacking in evidentiary support as to be manifest error, the absence of specific findings prevented affirming the lower court with the confidence that the best result was reached. Hayes v. Rounds, 658 So.2d 863, 865 (Miss.1995). A similar situation presents itself today. While the chancellor analyzed the applicable factors, he did not do so with specificity, assigning very few to a particular parent. If, as Albright indicates, one factor should not outweigh another, the chancellor erred by determining the case on the basis of Beth’s moral fitness, when upon review, Beth clearly wound up with more factors weighing in her favor. Albright, 437 So.2d at 1005.

Hollon, 784 So.2d at 951-52.

¶20. We must remember what this Court stated in Albright — “[m]arital fault should not be used as a sanction in custody awards.” 437 So.2d at 1005. In today’s case, the chancellor granted William a divorce from Barbara on the ground of adultery. The chancellor in this case indeed “sanctioned” Barbara by denial of custody of her daughter because of her marital fault — adultery. Of the various Albright factors considered by the chancellor, a reading of the record, including the chancellor’s detailed 13-page opinion and judgment, can leave no doubt that Barbara’s adultery, whether it be categorized as “moral fitness” or the catch-all “other factors” under Albright, caused Barbara to be denied custody of her minor daughter.

CONCLUSION

¶ 21. This Court finds that the chancellor abused his discretion by placing too much weight upon the moral fitness factor and disregarding evidence presented under the remaining factors. Therefore, the decision of the Tishomingo County Chancery Court is reversed, and this case is remanded for further proceedings consistent with this opinion.

¶ 22. REVERSED AND REMANDED.

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

RANDOLPH, Justice,

Dissenting:

¶ 23. The majority reverses the chancellor’s decision because it concludes that the chancellor placed too much emphasis on Mrs. Brekeen’s adulterous conduct and was silent on the other Albright factors. On remand, the majority orders that a more thorough application of Albright be conducted and without such an emphasis on Mrs. Brekeen’s adulterous conduct. Implicit in the holding, is a determination that the chancellor abused his discretion. Finding that no abuse of discretion occurred, I respectfully dissent. This Court is “bound by those findings unless it can be said with reasonable certainty that those findings were manifestly wrong and against the overwhelming weight of the evidence.” Carr v. Carr, 480 So.2d 1120, 1123-24 (Miss.1985) (citations omitted).

¶ 24. In its order, the trial court granted Mr. Brekeen primary custody coupled with “liberal visitation” rights in favor of Mrs. Brekeen. The trial court specifically enumerated several visitation periods, including granting Mrs. Brekeen the right to visitation for three extended weekends a month (i.e. Thursday thru Sunday). The trial court’s decision was well supported by the evidence presented by the parties.

¶ 25. Without abandoning my view that the decision should be affirmed, I note that on remand the trial court should consider many facts which favor Mr. Brekeen receiving primary custody.

¶ 26. As to the Albright factor of “continuity of care,” such consideration should not be limited to the time prior to separation. Instead, chancellors should consider “continuity of care” until the final determination of custody. In the instant case, the child has remained with Mr. Brekeen since Mrs. Brekeen moved out on June 26, 2001, when the child was six. During the school year in which she resided with her fathep, the child received straight “A’s”. She joined Girl Scouts and was participating in little league sports. The child was able to flourish in the time since her mother moved out and her father received temporary custody.

¶ 27. I question how it could be in the best interest of the almost ten-year old child to presently remove her from the custody of father. If this is indeed the overwhelming consideration, on remand the trial court should apply the Albright factors in light of the facts present at that time.

      . The child was born on October 7, 1994.


author: SMITH, Chief Justice,

text:
    L.B. GULLEDGE, Linda R. Gulledge, Frederick J. Gulledge, Elbert Gulledge, Darryl A. Gulledge, All Individually, and on Behalf of the Wrongful Death Beneficiaries of Charlene A. Gulledge, Linda R. Gulledge, Frederick J. Gulledge, Elbert Gulledge, Darryl A. Gulledge and L.B. Gulledge v. Deborah SHAW, Individually; Unknown Surety on Notary Bond; Merchants and Farmers Bank, A Mississippi Corporation, All Jointly and Severally.
    No. 2003-CA-00652-SCT.
    Supreme Court of Mississippi.
    July 1, 2004.
    Rehearing Denied Sept. 2, 2004.

      Barrett Jerome Clisby, Oxford, D. Reid Wamble, Holly Springs, attorneys for appellants.
    Michael Lee Dulaney, D. Kirk Tharp, John S. Hill, Tupelo, attorneys for appel-lees.
   SMITH, Chief Justice,

for the Court.

¶ 1. The plaintiffs, wrongful death beneficiaries of Charlene A. Gulledge, filed suit against Deborah Shaw, Merchants & Farmers Bank, and an unknown surety in the Circuit Court of Marshall County. The complaint alleges that but for Shaw’s negligence in notarizing the forged signature of Stratford P. “Sonny” Childers on his daughter’s driver’s license application, Childers would not have been dismissed as a defendant in a wrongful death action arising from an automobile accident caused by the daughter’s negligence. Moreover, the complaint asserts that as a proximate result of Sonny’s dismissal, the plaintiffs were prohibited from collecting any portion of the judgment from Sonny. Gul-ledge invoked the doctrine of respondeat superior. Further, the complaint alleges fraud, negligence per se, misrepresentation, and negligent supervision.

¶ 2. Defendants moved for dismissal pursuant to Rule 12(b)(6) of the Mississippi Rules of Civil Procedure, and the circuit court granted the motion. In its opinion, the court stated that it was “unable to find any case that would extend a Notary’s liability where the Notary’s wrongful or negligent act was not the proximate cause, or the cause in fact, of the damage suffered.” The court held that it was unable to find any set of facts, within the parameter of the pleadings, exhibits, or argument that would justify relief.

FACTS

¶ 3. On August 1, 1996, Deborah Shaw, a notary public and employee of Merchants and Farmers (“the Bank”), notarized the forged signature of Sonny Childers on his fifteen-year-old daughter Alice Childers’s Mississippi driver’s license application. See Miss.Code Ann. §§ 63-1-23 & -25 (Rev.1996). Sonny, Alice’s father, did not appear before Shaw so that she could witness the signature. Rather, as the circuit court ruled, Marjorie Childers, Sonny’s wife, forged Sonny’s signature. At the time in question, Shaw’s job responsibilities at the Bank included performing the duties of a notary public.

¶ 4. Sonny was also an employee of Merchants and Farmers. Shaw had known Sonny since she started working at the Bank. Shaw met Marjorie soon after starting her job in 1988 or 1989. Shaw also knew Alice. In her deposition, Shaw stated that she was not the only notary at the Bank on August 1,1995. Shaw stated that she did not charge Marjorie a fee for notarizing the application. In her notary log, Shaw described this document as “driver’s' license for Alice.” In addition, she described Marjorie as “wife of employee/customer.” Shaw stated that the only time she ever notarized a signature when the person did not appear before her was when she notarized Alice’s application. Alice subsequently submitted the application to the Mississippi Department of Public Safety and received her driver’s license.

¶ 5. On December 1, 1996, Charlene Gul-ledge was killed in an automobile accident caused by Alice’s negligence. The Plaintiffs (collectively, “Gulledge”) filed a lawsuit against Alice, Sonny, and Marjorie. Sonny maintained that he had no knowledge of the forged signature. Because Sonny never signed the driver’s license application, he was dismissed from the lawsuit. After a trial, the court entered judgment for Gulledge in the amount of $1,012,000.00. Gulledge was able to collect only $115,000.00 of this judgment. In the present action, the complaint requests damages in an amount determined by a jury or, in the alternative, $870,000 plus eight percent interest per annum from the date of the judgment.

DISCUSSION

I. Liability of Shaw and the unknown surety.

¶ 6. Our standard of review in considering motions to dismiss is well-settled. The grant or denial of a motion to dismiss under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure raises a question of law that this Court reviews de novo. Black v. City of Tupelo, 853 So.2d 1221, 1223 (Miss.2003). To grant such a motion, “there must appear to a certainty that the plaintiff is entitled to no relief under any set of facts that could be proved in support of the claim.” Little v. Miss. Dep’t of Human Servs., 835 So.2d 9, 11 (Miss.2002). Thus, a Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Id.

¶ 7. However, where a trial judge considers matters outside the pleadings, motion to dismiss and response, the motion ceases to be one for dismissal under Rule 12(b)(6). Rein v. Benchmark Constr. Co., 865 So.2d 1134, 1142 (Miss.2004). Rather, it is appropriately considered as a motion for summary judgment under Rule 56. Id. In Rein, the trial court considered the plaintiffs complaint, as well as the defendant’s answer, “along with the response to the motion to dismiss and the accompanying exhibits.” Id. (emphasis added). As a result, we held that the trial court improperly labeled the motion as one for dismissal under Rule 12(b)(6). Id. Instead, the court should have labeled it as a motion for summary judgment. Id.

¶ 8. As in Rein, we are presently faced with a situation in which the trial court improperly labeled its decision as one for dismissal under Rule 12(b)(6). Gulledge’s response to the motion was accompanied by exhibits. These exhibits included a transcript of Shaw’s deposition testimony, a copy of Alice’s application, and a transcript of hearing proceedings. These exhibits appear in the record, and it is obvious that the trial judge considered these exhibits in making his ruling. Therefore, we hold that the motion was one for summary judgment under Rule 56.

¶ 9. Accordingly, we will consider the trial court’s ruling under the appropriate standard of review for the grant of summary judgment, which is the de novo standard. See Pre-Paid Legal Services, Inc. v. Battle, 873 So.2d 79 (Miss.2004). Under this well established standard, “the motion should be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Peden v. City of Gautier, 870 So.2d 1185, 1187 (Miss.2004). When we review the grant or denial of summary judgment, we consider all evidentiary matters before us, including admissions in pleadings, answers to interrogatories, depositions, and affidavits. Rein, 865 So.2d at 1142.

¶ 10. The elements of a negligence action are well-settled in Mississippi. Under the negligence regime of tort law, a plaintiff must prove by a preponderance of the evidence (1) duty, (2) breach, (3) causation, and (4) injury. Miss. Dep’t of Transp. v. Cargile, 847 So.2d 258, 262 (Miss.2003). To recover, a plaintiff must prove causation in fact and proximate cause. Jackson v. Swinney, 244 Miss. 117, 123, 140 So.2d 555, 557 (1962).

¶ 11. “Proximate cause of an injury is that cause which in natural and continuous sequence unbroken by any efficient intervening cause produces the injury and without which the result would not have occurred.” Delahoussaye v. Mary Mahoney’s, Inc., 783 So.2d 666, 671 (Miss.2001). We have observed that in order for a person to be liable for an act which causes injury, “the act must be of such character, and done in such a situation, that the person doing it should reasonably have anticipated that some injury to another will probably result therefrom.” Mauney v. Gulf Ref. Co., 193 Miss. 421, 9 So.2d 780, 780-81 (1942). “[T]he ‘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.’ ” Rein, 865 So.2d at 1145 (quoting Gulf Ref. Co. v. Williams, 183 Miss. 723, 185 So. 234, 236 (1938)). Thus, under this Court’s jurisprudence, foreseeability is an essential element of causation. Delahoussaye, 783 So.2d at 671.

¶ 12. The fact that an injury rarely occurs, or has never happened, is insufficient to protect the actor from a finding of negligence. Rein, 865 So.2d at 1145. If some injury is to be anticipated, this Court will find liability even if the particular injury could not be foreseen. Id. Shaw should have reasonably anticipated some injury could occur as a result of her act. However, “[r]emote possibilities do not constitute negligence from the judicial standpoint.” Ill. Cent. R. Co. v. Blood-worth, 166 Miss. 602, 145 So. 333, 336 (1933). That is, we do not charge the actor with a “prevision or anticipation which would include an unusual, improbable, or extraordinary occurrence, although such happening is within the range of possibilities.” Mauney, 9 So.2d at 781. As we have concluded previously, “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.’ ” Rein, 865 So.2d at 1144 (quoting Mauney, 9 So.2d at 781).

¶ 13. With respect to the administration of oaths and affirmations, the Mississippi Code provides that

[e]very notary public shall have the power of administering oaths and affirmations in all matters incident to his notarial office, and he shall be further qualified and empowered to administer oaths and affirmations for the purpose of taking oral testimony under oath or affirmation within the state at large. If an attestation of a notary public is questioned as to its authenticity or correctness of language, the notary public may file an affidavit regarding the truth of the attestation in question along with any corrected language and may file such with the land records in the office of the Chancery Clerk where such land is located, properly indexed, if such authenticity or correctness of language affects real property. Such affidavit shall be a rebuttable presumption that the attestation is true and correct.

Miss.Code Ann. § 25-33-9 (Rev.2003). Moreover, concerning a notary’s powers and duties, the Code states:

Every notary public shall have power to receive the proof or acknowledgment of all instruments of writing relating to commerce or navigation, such as bills of sale, bottomries, mortgages, and hypoth-ecations of ships, vessels or boats, charter parties of affreightment, letters of attorney, and such other writings as are commonly proved or acknowledged before notaries; and to perform all other duties required of notaries by commercial usage, and also to make declarations, including the filing of an affidavit as provided in Section 25-33-9, and certify the truth thereof, under his seal of office, concerning all matters done by him in virtue of his office.

Id. § 25-33-11.

¶ 14. This Court has on three prior occasions considered the issue of a notary’s liability concerning false certificates. In United States Fidelity & Guaranty Co. v. State ex rel. Ward, 211 Miss. 864, 53 So.2d 11, 12 (1951), this Court first considered the proposition that a notary and its sureties are liable where the notary makes a false certificate and injury results therefrom. In United States Fidelity, this Court cited the general rule that

In those jurisdictions in which a notary is required by statute to give a bond with sureties for the performance of his official duties, he and his sureties, will be liable to an action for any breach of the conditions of the bond, provided such breach is a proximate cause of a loss or injury, although it need not be the sole cause

Id. at 14 (quoting 66 C.J.S. Notaries § 12, at 628). In United States Fidelity, the notary at issue Leona Lutes, wife of an attorney, Ralph Lutes, was actively involved in a land scheme concocted by Ralph Lutes involving a fictitious person and the fraudulent attempt to sell property to four different individuals including ultimately Rufus Ward and his wife. In connection with this scheme, Leona executed three false acknowledgments regarding deeds of trust. Id. This Court concluded that Leona’s actions as a notary were the proximate cause of the damages alleged. Id. Moreover, the Court held that a notary and his or her surety may be held liable where the notary makes a false certificate acknowledging signatures as a part of the scheme to assist her husband in the fraudulent land transfers, because the plaintiffs relied upon her representation that the titles belonged to the persons whose signature they bore. Id. at 15. The Court more importantly concluded that a notary public would not be liable for negligent or wrongful acts which were not a proximate, or cause in fact, of the damages suffered. It is thus apparent that the specific loss must be proximately caused by the notary’s negligent or wrongful act. Id.

¶ 15. Next, in Thomas v. State ex rel. Thorp Finance Corp., 251 Miss. 648, 171 So.2d 303 (1965), this Court also held a notary liable where the notary’s act was the proximate cause and the resulting damages were foreseeable. Id. at 306. Finally, in King v. State ex rel. Murdock Acceptance Corp., 222 So.2d 393 (Miss. 1969), this Court was again faced with the circumstances of a false certificate by a notary. We found that the notary’s liability was based upon the fact of reliance upon same by the creditor involved and that the notary’s act of executing a false certificate was the proximate cause of the loss. Id. at 396.

¶ 16. Under our established precedent, we find that there exists a genuine issue of material fact with respect to Shaw’s liability in this case. Accordingly, the trial court erred in summarily dismissing the case against Deborah Shaw. In addition, we find that there is a genuine issue of material fact regarding the unknown surety’s liability in this case. As such, the court below erred in granting summary judgment in favor of the unknown surety.

II. Liability of the Bank.

¶ 17. Gulledge correctly notes the following general rule:

The doctrine of respondent superior has its basis in the fact that the employer has the right to supervise and direct the performance of the work by his employee in all its details, and this right carries with it the correlative obligation to see to it that no torts shall be committed by the employe [sic] in the course of the performance of the character of work which the employe [sic] was appointed to do.

White’s Lumber & Supply Co. v. Collins, 186 Miss. 659, 191 So. 105 (1939). As Gulledge points out, under the respondent superior doctrine, “one who acts through another is in law himself the actor.” Fruchter v. Lynch Oil Co., 522 So.2d 195, 199 (Miss.1988). That is, “[i]f B while acting on A’s behalf commits a tort, A may be liable.” Id.

¶ 18. However, where an employee is not acting in the furtherance of her employer’s interests, the employer is not liable for her torts:

The inquiry is not whether the act in question, in any case, was done, so far as time is concerned, while the servant was engaged in the master’s business, nor as to mode or manner of doing it, — whether in doing the act he uses the appliances of the master, — but whether, from the nature of the act itself as actually done, it was an act done in the master’s business, or loholly disconnected therefrom by the servant, not as servant, but as an individual on his own account

Holliday v. Pizza Inn, Inc., 659 So.2d 860, 864 (Miss.1995) (quoting Canton Cotton Warehouse Co. v. Pool, 78 Miss. 147, 28 So. 823 (1900) (emphasis added)). Moreover,

In determining whether a particular act is committed by a servant within the scope of his employment, the decisive question is not whether the servant was acting in accordance with the instructions of the master, but, was he at the time doing any act in furtherance of his masters’ business? If a servant, having completed his duty to his master, then proceeds to prosecute some private purpose of his own, the master is not liable; but if the servant, while engaged about his master’s business, merely deviates from the direct line of duty to accomplish some personal end, the master’s responsibility may be suspended, but it is re-established when the servant resumes his duty.

Holliday, 659 So.2d at 864-65 (quoting Barmore v. Vicksburg, S. & P. Ry., 85 Miss. 426, 38 So. 210 (1905) (emphasis added)).

¶ 19. The record indicates that Shaw knew Sonny, Marjorie, and Alice. She worked with Sonny at the Bank. She was not the only notary available at the Bank on the day in question. Moreover, Shaw never charged a Alice or Marjorie a fee for her services as a notary. This was the only occasion on which Shaw had notarized the signature of a person who did not appear before her when signing a document.

¶ 20. While we have already unequivocally found that Shaw’s job responsibilities at the Bank included her notary public duties, we find from the record before us, and for the foregoing reasons, that Shaw’s act of notarizing a forged document was not in the furtherance of the Bank’s business — rather, it was a personal act. When Shaw notarized the application, she ceased to be an actor on the Bank’s behalf and instead became a private actor seeking to accomplish her own private purpose. Accordingly, there is no genuine issue of material fact with respect to whether the Bank may be held liable for any of Gul-ledge’s claims under the doctrine of re-spondeat superior. See Holliday, 659 So.2d at 864.

¶ 21. Finally, we note that Gul-ledge’s claim against the Bank for negligent supervision is not considered here because that issue is not discussed in Gul-ledge’s brief, aside from the conclusory statement that the Bank “is liable to the Appellants for the negligent supervision of Deborah Shaw.” It is well settled that this Court will not consider assertions which are unsupported by authority. Entergy Miss., Inc. v. Bolden, 854 So.2d 1051, 1057 (Miss.2003) (citing Dowdle Butane Gas Co. v. Moore, 831 So.2d 1124, 1136 (Miss. 2002)). The trial court did not err in summarily dismissing the case against the Bank.

CONCLUSION

¶ 22. For the foregoing reasons, we find that the trial court did not err in granting summary judgment in favor of the Bank. However, we find that the trial court erred in granting summary judgment in favor of Deborah Shaw and the unknown surety.

¶23. Therefore, we affirm the circuit court’s judgment to the extent that it granted summary judgment in favor of Merchants and Farmers Bank. We reverse the circuit court’s judgment to the extent that summarily dismissed the complaint against Deborah Shaw and the unknown surety, and we remand this case for further proceedings consistent with this opinion.

¶ 24. AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

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

      . The trial court's ruling was limited to the negligence claim. It made no mention of the allegations regarding fraud, misrepresentation, negligence per se, or negligent supervision. However, Gulledge does not brief these issues and, like the trial court, instead focuses on the negligence claim.

      . Out of an abundance of caution, we acknowledge the obvious — Shaw's actions were not a proximate cause of Charlene Gulledge's death. However, that is not the issue — the issue is whether Shaw’s actions in notarizing the forged signature was a proximate result of Sonny's dismissal in the case sub judice, thus resulting in the plaintiffs inability to collect on the judgment from Sonny.