author: McRAE, P.J.,

text:
    Gary M. DAVIS v. Sharon DAVIS.
    No. 2001-CA-00900-SCT.
    Supreme Court of Mississippi.
    Dec. 12, 2002.

      Michael P. Younger, Brandon, attorney for appellant.
    William R. Wright, Maril Faith Risher, W. Benton Gregg, Jackson, attorneys for appellee.
   McRAE, P.J.,

for the Court.

¶ 1. Dr. Gary M. Davis appeals from an order entered by the Rankin County, Chancery Court denying his motion for a new trial, or in the alternative, motion to reconsider an earlier ruling granting Sharon Davis a divorce on the grounds of adultery, granting her both periodic and lump sum alimony, and causing a division of the marital assets. Gary argues that the chancellor abused his discretion in the aforementioned determinations.

¶ 2. We find no abuse of discretion. Accordingly, we affirm the final judgment.

FACTS

¶ 3. Dr. Gary M. Davis and Mrs. Sharon Davis met when Gary was a third year medical resident at a hospital in Baltimore, Maryland. Sharon was employed as a nurse in the same hospital and was enrolled in graduate school for a master’s degree in nursing. After several months of dating, the two were married on May 16,1982.

¶ 4. Gary and Sharon moved six times from 1982 to 1991 before Gary settled into a practice in Jackson, Mississippi. After the birth of their first child in 1983, Gary and Sharon agreed that Sharon would discontinue her work as a nurse and stay home with their child. Their second child was born in 1984, and the third was born in 1992. The children first attended the Seventh Day Adventist School in Jackson, then Rankin County Public Schools, were home-schooled by Sharon for a while and were finally enrolled in St. Andrew’s Episcopal School in 1998.

¶ 5. Gary’s practice in Jackson grew. He now has an ownership interest in Diversified Renal Group, Inc. and several dialysis units. The couple’s net assets have grown throughout the marriage to $3.45 million, and Gary’s income in 1999 was in excess of $550,000.

¶ 6. Sharon filed a complaint for divorce on July 23, 1998. Her complaint alleged adultery, habitual cruel and inhuman treatment, and desertion pursuant to Miss.Code Ann. § 93-5-1 (1994); in the alternative, or as a separate ground, irreconcilable differences pursuant to Miss.Code Ann. § 93-5-2 (1994). Gary filed his answer denying Sharon’s allegations for divorce on August 5,1998.

¶ 7. An agreed temporary order was issued on September 8, 1998, which gave Sharon temporary physical custody of the children, temporary support for Sharon and the children and provided Sharon the exclusive use of the marital home. On February 24, 1999, an amended temporary order was issued awarding Gary visitation with the children and providing further instructions for the temporary support of Sharon and the children.

¶ 8. After a hearing, the court entered its rulings in August of 2000 on the issues of divorce and grounds, division of marital property, alimony award, custody and visitation, and amounts still owed under the prior temporary orders. On November 30, 2000, the final judgment was entered which addressed the grounds for and award of divorce, child custody and visitation, child support, disclosure of addresses, medical and dental expenses for the children, children’s college, life insurance, division of marital assets, income tax provision, alimony, past due support obligations, and marital debt.

¶ 9. On December 4, 2000, Gary filed a motion to amend the final judgement and a motion for a new trial or in the alternative a motion to reconsider, all of which were denied. An amended order was issued in June of 2001 that modified the computation of Gary’s gross income and provided more specificity on the findings supporting the award of lump sum alimony. Gary timely appealed to this Court.

STANDARD OF REVIEW

¶ 10. The “Court views the facts of a divorce decree in a light most favorable to the appellee and may not disturb the chancery decision unless the Court finds it manifestly wrong or unsupported by substantial evidence.” Fisher v. Fisher, 771 So.2d 364, 367 (2000).

DISCUSSION

I. WHETHER THE CHANCELLOR ERRED IN HIS FINDINGS OF ADULTERY AS THE PROPER GROUNDS FOR DIVORCE.

¶ 11. Gary argues that the character of his sexual conduct with Edith Russell was misunderstood by the chancellor. He argues that since the sexual conduct occurred after the physical separation of the parties it should not be considered uncondoned adultery; and therefore, the chancellor should not have granted the divorce on the ground of adultery.

¶ 12. The final judgment of divorce grants Sharon the divorce on the ground of uncondoned adultery pursuant to Miss.Code. Ann. § 93-5-1. Sharon had the burden of proving adultery by clear and convincing evidence. Dillon v. Dillon, 498 So.2d 328, 330 (Miss.1986); Mitchell v. Mitchell, 767 So.2d 1037, 1040 (Miss.Ct.App.2000). She satisfied this burden when, on direct examination, Gary admitted to the adulterous conduct. The record shows no evidence or any attempt by Gary to rebut the admission or to explain the events of the adulterous conduct. “ ‘Adultery may be shown by evidence or admissions and either are sufficient to support a decree of divorce.’” Holden v. Frasher-Holden, 680 So.2d 795, 799 (Miss.1996) (quoting Jordan v. Jordan, 510 So.2d 131, 132 (Miss.1987)).

¶ 13. Gary raised the issue of his adulterous conduct and attempted to explain the circumstances surrounding such conduct for the first time in his December 4, 2000, Memorandum In Support of Motion for New Trial, or in the Alternative, Motion to Reconsider. Not only did Gary admit to the adulterous conduct during trial, his attorney admitted the conduct was adulterous during the March 27, 2001, hearing on the motion. Gary then, and now, tries to argue that since the adulterous conduct did not cause the separation, then it is not sufficient evidence for a divorce based on uncondoned adultery.

¶ 14. The Legislature did not condition the granting of a divorce on the ground of adultery upon the adulterous conduct actually causing the legal separation of the parties. Miss.Code Ann. § 93-5-1. The statute explains that “[i]t shall be no impediment to a divorce that the offended spouse did not leave the marital 'domicile or separate from the offending spouse on account of the conduct of the offending spouse.” Id. § 93-5-4. The “[l]aw does not require that ground for divorce, such as adultery, arise before separation.” Talbert v. Talbert, 759 So.2d 1105, 1110, (Miss.1999). It has never been required that the adultery be causally related to the final separation of the parties to be a valid basis for granting a divorce. Id.

¶ 15. Gary’s alleged sexual misconduct with Mrs. Russell may not have caused Sharon to file her complaint for divorce, but it is still uncondoned adultery. Gary’s characterization of the adultery as a “one night stand” does not make the sexual misconduct any less adulterous.

¶ 16. The chancellor did not err in granting Sharon a divorce on the grounds of adultery pursuant to Miss.Code Ann. § 93-5-1.

II. WHETHER THE CHANCELLOR ERRED IN HIS AWARDING OF PERIODIC AND LUMP SUM ALIMONY TO SHARON DAYIS.

A. PERIODIC ALIMONY AWARD

¶ 17. Gary contends that the trial court erroneously granted Sharon periodic or permanent alimony in the amount of $4,000 per month. Gary’s chief argument is that the trial court misapplied the factors for awarding periodic alimony and weighed too heavily on the finding of adultery in making the determination of the requisite amount of alimony due. He submits that the trial court misunderstood the nature and character of the sexual misconduct and in making the alimony rulings used that conduct against him as a type of punishment.

¶ 18. Sharon argues that the trial court properly applied and carefully weighed the factors for the awarding of periodic alimony as shown in his August 28, 2000, order. She further argues that the trial court may have taken Gary’s fault into consideration when making such alimony determination, but there was no over-weighing of such factor.

¶ 19. In determining whether to make an award of periodic alimony, the following factors must be considered: (1) the health of the husband and his earning capacity; (2) the health of the wife and her earning capacity; (3) the entire sources of income and expenses of both parties; (4) the reasonable needs of the wife; (5) the reasonable needs of the child; (6) the necessary living expenses of the husband; (7) the estimated amount of income taxes the respective parties must pay on their incomes; (8) the fact that the wife has the free use of the home, furnishings and automobile; (9) the length of the marriage; (10) the presence or absence of minor children in the home; (11) the standard of living of the parties, both during the marriage and at the time of the support determination; (12) fault or misconduct; (13) wasteful dissipation of assets; (14) the obligations and assets of each party; (15) the age of the parties; (16) the tax consequences of the spousal support order; and (17) such other facts and circumstances bearing on the subject that might be shown by the evidence. Hemsley v. Hemsley, 639 So.2d 909, 912 (Miss.1994); Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993); Hammonds v. Hammonds, 597 So.2d 653, 655 (Miss.1992); Brabham v. Brabham, 226 Miss. 165, 84 So.2d 147, 153 (1955). In determining the amount of support payable to the wife, a chancellor must consider “not only reasonable needs of wife but also right of husband to lead as normal a life as reasonably possible with a decent standard of living.” Massey v. Massey, 475 So.2d 802, 803 (Miss.1985); Hopton v. Hopton, 342 So.2d 1298, 1300 (Miss.1977) (quoting Nichols v. Nichols, 254 So.2d 726, 727 (Miss.1971)).

¶ 20. In the August 28, 2000, order, and the June 4, 2001, amended order, the chancellor gave a detailed factual account for his finding for periodic alimony. Following the factors outlined for the award of periodic alimony, the chancellor found that:

(1) Gary is presently in good health and has no illness that would hinder him from continuing to earn such a productive income. Gary by his own testimony admits to being in good health with years of earning capability.

(2) Sharon is unemployed and earning no income. She is currently ill due to an automobile accident which left her with an injured leg. To qualify for a nursing position she will need many hours of re-certification training. The chancellor also makes note of Sharon’s diagnosis of depression which has required medication in the past.

(3) Sharon is a 44 year old nurse who is currently unemployed and who has been entirely dependent on Gary for income since 1982. To re-certify and be eligible for gainful employment in the field of nursing, Sharon needs 1,000 credit hours in re-certification training. Gary has a steady stream of income generated by his lucrative medical practice and business ownership. Gary is 48 years old and currently earning in excess of $594,250 a year, which amounts to $49,520.00 per month as gross income, and $34,418.00 in adjusted gross income. Sharon, who is currently living in Baltimore, Maryland, has increased expenses due to the increased cost of living and a recent injury in a car accident.

(4) Sharon’s needs are estimated at $10,138.33 per month. Alimony in the amount of $4,000 per month was granted to Sharon.

(5) The needs of the children are estimated to be $8,740.00 each month. Child support in the amount of $1,500.00 per month per child (which aggregates to $4,500.00 each month for all the children) was awarded.

(6) The necessary living expenses of Gary cannot be said to exceed $25,918.00 per month (the amount of adjusted gross income remaining after payment of alimony and child support). Gary himself admitted to being a modest spender.

(7) Gary was granted entitlement to claim the children as dependents for income tax purposes. The chancellor also noted that his consideration of the possible tax consequences of the alimony award.

(8) Sharon does not have the free use of the home, home furnishings, and automobile. Gary requested the marital home be granted to him in the division of marital property. Sharon is currently living in a home owned by a relative in Baltimore, Maryland, and driving an automobile provided to her by another family member.

(9) Sharon and Gary had been married for 16 years at the time the complaint was filed.

(10) Sharon has all three children residing with her in Baltimore, Maryland. The chancellor considered the expenses and needs of Sharon and the children.

(11) The chancellor also took notice of the consideration of the parties past and present standard of living.

(12) The chancellor noted that Gary’s misconduct (uncondoned adultery) is a factor to be weighed with all the other factors in making an alimony determination. The chancellor’s rulings do not indicate any undue weight given to the wrong doing of Gary. The chancellor stated that “the court does not punish Gary for his marital indiscretion.”

(13) The chancellor made no determination as to whether either party was guilty of a wasteful dissipation of assets. However, both parties during trial presented evidence tending to show that the other was guilty of wasteful dissipation of assets. Sharon presented evidence that Gary was withholding insurance proceeds from an insurance claim concerning her automobile that was destroyed in a collision and that Gary attempted to transfer his business assets to his partner before the divorce proceedings. Gary presented evidence that Sharon was withholding an income tax check in the amount of $40,000 and that the children were claimed as her dependents on her tax return thereby causing him to incur additional income tax.

(14) The chancellor considered the obligations and assets of each party.

(15) Sharon is 44 years old, and Gary is 48 years old. Gary is in good health and there is no reason why he will not continue to work for years to come. Sharon is currently in ill health due to an auto accident and has a history of depression requiring medication.

(16) The tax consequences of a spousal support order were considered.

(17) The court made no reference to specific other relevant factors considered in the award of periodic alimony.

¶ 21. In summary, the chancellor found that the award of periodic alimony would not prevent Gary from living a normal life under a reasonable standard of living. Gary’s adjusted monthly gross income is $34,418.00. The chancellor granted Sharon alimony in the amount of $4,000.00 per month and child support in the amount of $1,500.00 per child (which aggregates to $4,500.00 each month for all the children). This leaves Gary with $25,918.00 of income left per month (roughly $311,016.00 per year) which is more than ample for him to lead a normal life with a reasonable standard of living.

¶ 22. . We have upheld a $4,200.00 a month periodic alimony award in a divorce involving $4 million in marital property and where the husband’s yearly adjusted gross income amounted to $409,396. Waring v. Waring, 747 So.2d 252, 254 (Miss.1999). The chancellor in this case awarded Sharon $4,000 a month in periodic alimony and the marital property totals $2,444,078.90.

¶ 23. A significant disparity in earning capacity is a major factor in the determination of a periodic alimony award. Vaughn v. Vaughn, 798 So.2d 431, 436 (Miss.2001). The record shows that there is a great disparity in earning capacity between Gary and Sharon. Likewise her earning capacity has been diminished by her foregoing a career to raise their family. If she was to obtain nursing re-certification, she would still begin work with no seniority and a salary that would not be comparable to that of Gary. The chancellor did not abuse his discretion in providing Sharon with periodic alimony in the amount of $4,000.00 per month. The decision to award alimony is amply supported by the evidence and involved in-depth fact finding on the part of the chancellor. Further, there is no indication in the record or the rulings that the chancellor weighed too heavily on the adultery factor in making his determination to award Sharon alimony.

B. LUMP SUM ALIMONY

¶ 24. Gary argues that the chancellor erred in applying the factors for the awarding of lump sum alimony when he granted Sharon $50,000 in lump sum alimony. He argues that the chancellor erred in finding that Sharon was financially insecure as to warrant lump sum alimony and that the amount granted was excessive and most likely influenced by the finding of adultery.

¶ 25. Sharon argues that the chancellor properly applied the lump sum alimony factors. She argues that the judge did not over-weigh the adultery finding and that the award was supported by evidence that such an award was needed for her financial security.

¶ 26. In determining whether to award lump sum alimony, the chancellor must analyze and apply the Cheatham factors which include:

(1) substantial contribution to accumulation of total wealth of the payor either by quitting a job to become a housewife, or by assisting in the spouse’s business;
(2) a long marriage;
(3) where recipient spouse has no separate income or the separate estate is meager by comparison;
(4) without the lump sum award the receiving spouse would lack any financial security.

Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988).

¶ 27. The chancellor gave a detailed factual account to support his finding for the $50,000 lump sum alimony award. The facts supporting his findings include:

(1) Sharon quit her nursing job in 1983 to resume the role of mother and sacrificed her own education to support Gary in his advancement and training. She further provided a. stable home life and was a loving mother to their children.

(2) The marriage between the parties was of considerable length, lasting 16 years before Sharon filed the complaint for divorce. During this time period, all of the $2,244,079.92 assets were accumulated through the efforts of both parties.

(3) Sharon has had no independent means of income since 1983 and at the time of trial continued to be totally dependent on Gary’s temporary support, pay-merits. Her ability to gain employment in the field of nursing is dependent upon her completing re-certification classes which would require her to forego time with the children and would cost a considerable amount of money. Gary, on the other hand, is earning $34,418.00 adjusted gross income per month ($413,016.00 adjusted gross income per year).

(4) Without the lump sum alimony payment “Sharon would lack financial security to the extent she was financially secure prior to the separation from [Gary].”

¶ 28. Applying the same factors, we have affirmed an award of $150,000 in lump sum alimony to the wife where the marital property totaled $1.8 million, there were no children to the marriage, the marriage was short in duration, and the husband was physically unable to work even though an additional award of periodic alimony had been granted. Pearson v. Pearson, 761 So.2d 157, 165 (Miss.2000).

¶ 29. The record shows that the decision was amply supported by evidence and sufficient factual findings. Further, there is no indication that the chancellor considered Gary’s fault as a deciding factor in his determination of lump sum alimony. Therefore, the chancellor did not abuse his discretion in awarding Sharon the $50,000 lump sum alimony.

III. WHETHER THE CHANCELLOR ERRED IN HIS DIVISION OF THE MARITAL ASSETS OF GARY AND SHARON DAVIS.

¶ 30. Gary argues that the chancellor misapplied the factors used in the division of marital property. His chief argument is that even though the property was divided 50/50 on a balance sheet, the property was not equitably divided if the tax consequences to him are considered. Gary asserts that the granting of mostly liquid assets to Sharon and some liquid and non-liquid assets to himself is inequitable in that he will have to suffer tax consequences to convert such assets to cash whereas Sharon will not.

¶ 31. Sharon argues that the marital assets were split 50/50 and that any distinction between liquid and non-liquid is not error. She argues that Gary himself essentially requested some of the non-liquid assets when he stated during trial that he was not willing to share or split the marital residence or business assets with Sharon. She also points out that the business assets which were granted solely to Gary have a large future earning capacity. Also of note is the fact that Gary has a large monthly income and Sharon has none, tending to show that Sharon has more of a need for access to cash that could be gained by liquid assets.

¶ 32. The chancellor identified each piece of property in question and described the character and nature of such property based on testimony offered at trial. Such properties included a home, land, bank accounts, investment and retirement accounts, personal property, business holdings, and other assets. The chancellor then decided that all property put at issue was marital property. In reaching this determination, the chancellor used the definition of marital property found in Hems-ley, which states that

assets acquired or accumulated during the course of a marriage are subject to equitable distribution unless it can be shown by proof that such assets are attributable to one of the party’s separate estates prior to the marriage or outside the marriage. [W]e define marital property for the purpose of divorce as being any and all property acquired or accumulated during the marriage.

Hemsley, 639 So.2d at 914. All of the assets at issue in the divorce were assets acquired during Gary and Sharon’s marriage. The fact that Gary was the primary breadwinner of the family does not make the assets his separate assets. “[F]or divorce purposes the contributions and efforts of the marital partners whether economic, domestic or otherwise are of equal value.” Waring, 747 So.2d at 255(quoting Hemsley, 639 So.2d at 915).

¶ 33. In dividing the assets equitably, the chancellor applied the Ferguson factors which include:

(1) Substantial contribution to the accumulation of the property and further the following in determining contribution: (a) direct or indirect economic contribution to the acquisition of the property; and (b) contribution to the stability and harmony of marital and family relationships as measured by quality and quantity of time spent on family duties and duration of marriage; and (c) contribution to education, training or other accomplishments bearing on the earning power of the spouse accumulating assets;
(2) The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree, and otherwise;
(3) The market value and emotional value of the assets subject to distribution;
(4) The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and the property acquired by inheritance or inter vivos gift by or to an individual spouse;
(5) Tax and other economic consequences, and contractual or legal consequences to third parties of the proposed distribution;
(6) The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
(7) The needs of the parties for financial security with due regard to the combination of assets, income, and earning capacity; and
(8) Any other factor which in equity should be considered.

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

¶ 34. The chancellor made factual determinations on each element as supported by the evidence presented at trial. His fact finding included:

(1) Both Gary and Sharon made equally substantial contribution to the accumulation of marital property. Gary as the breadwinner provided for the direct accumulation of the assets, while Sharon as the homemaker and child rearer provided substantial indirect contribution to the accumulation of marital assets. Sharon provided Gary with the time and support needed to grow and strengthen his practice. Sharon and the children supported Gary in his career and education through their moves from state to state so that Gary could get the specialty training and career opportunities he needed.

(2) Sharon cashed the $40,000 IRS check prior to the separation, and Gary attempted to transfer his business interests before separation to one of his partners. The chancellor declined to find wilful disposal, dissipation, or expending of marital assets.

(3) The market value and emotional value of the marital assets; the emotional attachment of Sharon to the liquid assets that could be used to procure a home and security for the future; and Gary’s attachment to the home and business assets (which are not liquid). During trial Gary indicated an unwillingness to share or split the home or business assets with his Sharon.

(4) No evidence of inherited property or acquisition of property by gift was found.

(5) The tax and other economic consequences and contractual or legal consequences to third parties of the proposed distributions by the court were considered. Gary was granted the right to claim the children as dependents on his tax returns. Some of the unliquidated assets that subject Gary to taxes if liquidated were assets to which he testified that he is unwilling to share or split.

(6) The chancellor noted his consideration of how division of property could be used to eliminate periodic alimony to reduce friction between the parties, but did not give a detailed explanation.

(7) The needs of the parties in this case for financial security, giving regard to the combination of assets, income, and earning capacity of each party were considered. Gary is the only party with income. Gary’s earning capacity far outweighs Sharon’s.

(8) The chancellor did not indicate his consideration of any other relevant factors in making his determination.

¶ 35. The Court of Appeals has upheld a 50/50 marital asset division, $20,000 lump sum alimony, and an award of $2,000 of monthly periodic alimony. Long v. Long, 734 So.2d 206, 208 (Miss.Ct.App.1999). Here, the chancellor divided the assets 50/50. Gary’s main complaint is that his adulterous conduct likely influenced the chancellor’s decision of marital assets whereby he was given those assets that are non-liquid and subject to harsh tax penalties if liquidated.

¶ 36. There is no evidence in the record to indicate that the chancellor weighed too heavily on the adulterous conduct in making the property division. In fact, there is very little reference to the adulterous conduct at all by the chancellor. His only remarks were in his determination of periodic alimony (not lump sum alimony or property division) in which he stated that he did not wish to punish Gary for his conduct.

¶ 37. Additionally, Gary argues that the chancellor erred in his division of the assets due to the harsh tax consequences placed on him by the division. There is sufficient evidence in the record to explain the unequal tax consequences of the property division. First, Gary was granted the right to claim his children as dependents on his tax returns. Second, Gary requested many of the non-liquid assets which include: (1) 27.5% ownership in RCG Southhaven, LLC; (2) 15% ownership in RCG Brandon, LLC; (3) 50% ownership in Diversified Renal Group; and (4) the marital residence. Third, Gary has a steady stream of income which decreases the likelihood he will need to liquidate assets in order to provide cash. Sharon, on the other hand, has no income and is likely to need to liquidate some of her assets in order to secure a new residence and other necessities. It was also shown that for Sharon to gain employment in her chosen field, she will need extensive re-certification of 1,000 hours or more. During the period before re-employment, Sharon will have a more likely need to liquidate assets in order to provide for herself and the children.

¶ 38. There is no evidence that the chancellor abused his discretion in his 50/50 division of the marital assets.

CONCLUSION

¶ 39. The chancellor did not err in granting the divorce on the ground of adultery, awarding periodic and lump sum alimony, and dividing the marital property. Sufficient evidence was presented by Sharon to support the adultery finding. The chancellor weighed the factors for providing periodic and lump sum alimony and gave a detailed explanation for the finding. Additionally, the chancellor weighed the factors for providing for an equitable distribution and gave a detailed explanation for that determination. Accordingly, the chancellor’s judgment and order denying the motion for new trial, or in the alternative, motion to reconsider are affirmed,

¶ 40. AFFIRMED.

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


source: Caselaw Access Project

author: WALLER, J.,

license: Public Domain

text:
    Sherman BOYLES, Jr., and Faye Boyles v. SCHLUMBERGER TECHNOLOGY CORPORATION.
    Nos. 2001-CA-01494-SCT, 1999-CA-01629-SCT.
    Supreme Court of Mississippi.
    Dec. 12, 2002.

      John D. Smallwood, Tupelo, Glenn Louis White, Hattiesburg, Stuart H. Smith, New Orleans, LA, attorneys for appellants.
    Otis R. Tims, John S. Hill, Donna M. Barnes, Tupelo, attorneys for appellee.
    Before PITTMAN, C.J., WALLER and GRAVES, JJ.
   WALLER, J.,

for the Court:

¶ 1. On October 8, 1993, Sherman and Faye Boyles sued Lynx Operating Company, Inc., the operator of an oil well on their property, for damages for contamination of their property with salt water and naturally occurring radioactive materials. On October 18, 1996, the Boyleses filed an amended complaint which added Schlum-berger Technology Corporation as a defendant. Schlumberger filed a motion for judgment on the pleadings, contending that the running of the three-year statute of limitations barred the Boyleses’ claims against Schlumberger. In response to the motion, the Boyleses raised the discovery rule, alleging that they did not know that Schlumberger had performed work on the property until 1996. The circuit court granted Schlumberger’s motion for judgment on the pleadings. On appeal, the Boyleses argue that the discovery rule was applicable and the statute of limitations did not bar their claims against Schlumber-ger. We find that the Boyleses’ response to Schlumberger’s motion for judgment on the pleadings was insufficient and that the circuit court did not err in granting the motion.

DISCUSSION

I. WHETHER THE GRANT OF JUDGMENT ON THE PLEADINGS WAS APPROPRIATE.

A. SCHLUMBERGER’S MOTION.

¶ 2. Schlumberger filed a motion for judgment on the pleadings, claiming that the Boyleses’ claims against it were barred by the three-year statute of limitations. The original complaint was filed on October 8, 1993, and the amended complaint adding Schlumberger as a defendant was filed on October 18,1996.

B. CONVERSION OF THE MOTION FOR JUDGMENT ON THE PLEADINGS TO A MOTION FOR SUMMARY JUDGMENT.

¶ 3. Under M.R.C.P. 12(c), a trial court may convert a motion for judgment on the pleadings to a motion for summary judgment if the court considers matters outside the pleadings in ruling on the motion. Although the circuit court did not characterize the motion as a motion for summary judgment, it is evident that the circuit court treated the motion as one for summary judgment. As soon as the Boyleses filed their response, the motion became one for summary judgment because they attached to their response exhibits which were not in the pleadings.

¶ 4. Resolution of the issue of the discovery rule depended on exactly when the Boyleses were made aware of their claims against Schlumberger. This information was not contained in the pleadings. We will therefore treat the motion for judgment on the pleadings as one for summary judgment.

C. STANDARD OF REVIEW.

¶ 5. We employ a de novo standard of review of a trial court’s grant or denial of a summary judgment and examine all the evidentiary matters before it— admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law, summary judgment should forthwith be entered for the movant. Otherwise, the motion should be denied. Issues of material fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says to the opposite. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-mov-ant should be given the benefit of any doubt. Heigle v. Heigle, 771 So.2d 341, 345 (Miss.2000) (citing McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996)).

D. THE SUBSTANCE OF THE BOYLESES’ RESPONSE TO THE MOTION FOR SUMMARY JUDGMENT.

¶ 6. The Boyleses claim that the statute of limitations was tolled by the discovery rule. The discovery rule provides a tolling of the running of a statute of limitations until a plaintiff “should have reasonably known of some negligent conduct, even if the plaintiff does not know with absolute certainty that the conduct was legally negligent.” Sarris v. Smith, 782 So.2d 721, 725 (Miss.2001). Expressed another way, “The operative time [for the running of the statute of limitations] is when the [plaintiff] can reasonably be held to have knowledge of the injury itself, the cause of the injury, and the causative relationship between the injury and the conduct of the [defendant].” Smith v. Sanders, 485 So.2d 1051, 1052 (Miss.1986) (quoted with approval in Sarris, 782 So.2d at 723).

¶ 7. We have specifically applied the discovery rule in a similar case where property was allegedly damaged by radioactive contaminants in oil field waste. Donald v. Amoco Prod. Co., 735 So.2d 161, 167 (Miss.1999).

¶ 8. The Boyleses allege that they did not know that Schlumberger had performed any work at the site until the deposition of Ora C. Collins, Jr., the principal officer of defendant O.C. Collins Associates, Inc., was taken on February 29, 1996. Therefore, they contend, the discovery rule is applicable to their claims against Schlumberger, and the filing of the amended complaint on October 18, 1996, was timely.

E.THE FORM OF THE BOYLES-ES’ RESPONSE TO SCHLUM-BERGER’S MOTION FOR SUMMARY JUDGMENT.

¶ 9. The Boyleses state that their “response pointed out that they had first discovered evidence of Schlumberger’s participation in the contamination of their property at the deposition of O.C. Collins, held on February 29, 1996, and cited authority that the limitations period had been tolled until then.” Attached to the response are the following exhibits: (1) a copy of the first “title” page of Ora C. Collins’ deposition taken on February 29, 1996; (2) a copy of the complete motion to amend the complaint to add Schlumberger as a defendant; (3) a copy of the order granting the motion to amend; and (4) a copy of the first page of the amended complaint which added Schlumberger as a defendant.

F. THE SUFFICIENCY OF THE BOYLESES’ RESPONSE TO SCHLUMBERGER’S MOTION FOR SUMMARY JUDGMENT.

¶ 10. Schlumberger contends that the Boyleses’ response was insufficient under the current law of this State. Indeed, M.R.C.P. 56(c) provides that summary judgment shall be granted by a court if “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). As we have ruled:

When a motion for summary judgment is made and supported as provided in Rule 56, an adverse party may not rest upon the mere allegations or denials of his pleadings[;] his response must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.... An issue of fact may be present where there is more than one reasonable interpretation of undisputed testimony, where materially different but reasonable inferences may be drawn from un-contradicted evidentiary facts, or when the purported establishment of the facts has been sufficiently incomplete or inadequate that the trial judge cannot say with reasonable confidence that the full facts of the matter have been disclosed.

Miller v. Meeks, 762 So.2d 302, 304-05 (Miss.2000) (citing Dennis v. Searle 457 So.2d 941, 944 (Miss.1984)).

¶ 11. The Boyleses’ response to Schlumberger’s motion was simply insufficient. All the Boyleses did was argue that they did not know of their claims against Schlumberger until the Collins’ deposition and attach the first dated page of the deposition. They wholly failed to support their argument with hard evidence such as affidavits that they did not know of their claims against Schlumberger until the deposition. Clearly, the Boyleses “rest[ed] upon the mere allegations or denials of [their] pleadings,” and did not “set forth specific facts” which would create a genuine issue of material fact and which would preclude the entry of judgment on the pleadings. A bare statement that “the discovery rule proof was obvious to all” does not defeat a motion for summary judgment.

CONCLUSION

¶ 12. We affirm the Jones County Circuit Court’s entry of summary judgment in favor of Schlumberger.

¶ 13. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., COBB, DIAZ, EASLEY, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Miss.Code Ann. § 15-1-49 (2001).

      . The Boyleses appeal after the circuit court certified the order of dismissal of Schlumber-ger pursuant to M.R.C.P. 54(b).

      .The appeal sub judice is actually the second appeal we have considered in this case. The first appeal was an interlocutory appeal which presented procedural issues which are not relevant to the current appeal. See Boyles v. Schlumberger Tech. Corp., 792 So.2d 262 (Miss.2001).


author: PITTMAN, C.J., McRAE, P.J., DIAZ, J.,

text:
    Betty CURRY, Administratrix of the Estate of Everett Curry, Deceased, on Behalf of the Estate of Everett Curry and on Behalf of All Wrongful Death Beneficiaries of Everett Curry v. Trent TURNER, Dent Turner and Money Pillai d/b/a Mims One Stop.
    No. 2000-CA-01309-SCT.
    Supreme Court of Mississippi.
    Dec. 12, 2002.

      Rayford G. Chambers, Greenville, Charles Victor McTeer, Jackson, Frederick B. Clark, attorneys for appellant.
    Richard T. Lawrence, Thomas Y. Page, Jackson, Jeffrey Lee Carson, Ridgeland, Marc A. Biggers, Greenwood, attorneys for appellees.
   PITTMAN, C.J.,

for the Court.

¶ 1. The administratrix of a deceased’s estate brought a wrongful death suit against the deceased’s killer in the name of the estate and the deceased’s beneficiaries in the Circuit Court of Leflore County. Her motion to amend the complaint to name the owner of the convenience store owner where the deceased died as a defendant on a theory of premises liability and various family members of the killer on a theory of negligent entrustment was granted. Later, the newly named defendants moved to dismiss suit on the grounds that the statute of limitations had run. The trial court granted the motion and entered final judgment in favor of the new defendants.

FACTS

¶ 2. On December 13,1995, Everett Curry was pumping gas into his car at Mims One Stop on U.S. Highway 82 in Carroll County, Mississippi, when two men drove up. One man, Paul Stewart, went inside to rob the store. The other, Hart Turner, waited outside. While Stewart was inside, Hart Turner forced Everett Curry to the ground and executed him by shooting him in the head. Everett Curry’s wife, acting as administratrix of his estate, brought a wrongful death suit against Hart Turner and Paul Stewart on behalf of the estate and Everett Curry’s beneficiaries — herself and their two minor children — approximately six months later. On December 11, 1998, almost three years after Everett Curry’s death, Curry filed a motion to amend the complaint to add Money Pillai, the owner of Mims One Stop, and Trent Turner, Dent Turner, and Ladonna Turner, family members of Hart Turner, as defendants under different theories of liability. The trial court granted this motion on April 19, 1999. The circuit clerk neglected to send notice of the entry of the order to Curry, Hart Turner or Paul Stewart and the court file on this case was misplaced for some time. Seven months later, on November 19, 1999, Curry filed the amended complaint which named the new parties as defendants. Service of process was made on the new defendants within 120 days after the amended complaint was filed, and they each raised the defense that the statute of limitations had run and therefore precluded recovery. The trial court conducted a hearing on the various motions to dismiss and dismissed the new defendants with prejudice because the statute of limitations had run. Aggrieved, Curry appeals this dismissal.

DISCUSSION

I. WHETHER A MOTION FOR LEAVE TO AMEND A COMPLAINT WITH THE ATTACHED PROPOSED AMENDED COMPLAINT SERVED BEFORE THE EXPIRATION OF THE APPLICABLE STATUTE OF LIMITATIONS TOLLS THE LIMITATIONS PERIOD WHERE THE TRIAL COURT GRANTS THE SAID MOTION AFTER EXPIRATION OF THE LIMITATIONS PERIOD.

II. WHETHER THE PLAINTIFF DEMONSTRATED “GOOD CAUSE” FOR SERVING AN AMENDED COMPLAINT MORE THAN 120 DAYS AFTER EXECUTION OF AN ORDER GRANTING LEAVE TO AMEND WHERE THE FILE MAINTAINED BY THE CIRCUIT CLERK WAS INEXPLICABLY LOST; THE CLERK FAILED TO SUBMIT A COPY OF THE EXECUTED ORDER TO THE PARTIES AS REQUIRED BY M.R.C.P. 77(D); AND, THE AMENDING PLAINTIFF SERVED THE AMENDED COMPLAINT WITHIN THIRTY (30) DAYS OF LEARNING THE ORDER GRANTING AMENDMENT WAS EXECUTED BY THE COURT.

(WHETHER THE TRIAL COURT ERRED IN DISMISSING THE AMENDED COMPLAINT AS BARRED BY THE STATUTE OF LIMITATIONS)

¶ 3. Curry seeks a ruling from this Court that a motion to amend, with the amended complaint attached to the motion, “tolls” the statute of limitations when the motion is made prior to the running of the limitations period. This is to be distinguished from the use of the “relation back” provision of M.R.C.P. 15(c) which allows for an amended complaint to be considered as filed on the date the original complaint was filed under certain circumstances. Curry points to a handful of cases from federal courts in support of this language and asks this Court to follow their lead.

¶ 4. The new defendants refer this Court to case law in Mississippi which is over one hundred years old. These cases obviously predate the adoption of the rules of civil procedure, but support their argument that an amended complaint is only effective when filed. Therefore, if an amended complaint is filed after the statute of limitations has run — regardless of when the motion to amend was made — the statute of limitations bars suits against newly named defendants. Each of these positions and the authority supporting them is examined below.

¶ 5. Rule 15 of the Mississippi Rules of Civil Procedure governs the process of amending complaints and provides in relevant part:

(a) Amendments. A party may amend his pleading as a matter of course at any time before a responsive pleading is served, or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within thirty days after it is served.... Otherwise a party may amend his pleading only by leave of court or upon written consent of the adverse party; leave shall be freely given when justice so requires....
(c) Relation back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by Rule U(h) for service of the summons and complaint, the party to be brought in by amendment:
(1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and
(2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. An amendment pursuant to Rule 9(h) is not an amendment changing the party against whom a claim is asserted and such amendment relates back to the date of the original pleading.

M.R.C.P. 15(a), (c) (emphasis added). The italicized portion was added July 1, 1998.

¶ 6. As stated above, Curry relies primarily upon federal law to support her position. In a case decided before the adoption of the Federal Rules of Civil Procedure, the Fifth Circuit reversed an Alabama district court which had dismissed a defendant on an amended complaint because the amended complaint was not filed before the statute of limitations period expired. Rademaker v. E.D. Flynn Exp. Co., 17 F.2d 15 (5th Cir.1927). The plaintiff had filed suit against a company which had sold its interest in the schooner involved in the injury to the defendant without the plaintiffs knowledge. When the plaintiff learned of the mistake before the statute of limitations had run, he moved the district court for leave to amend the complaint to name the new owner as the defendant. Id. at 16. That same day, the district court granted the motion. However, the amended complaint was not formally filed with the court until after the statute of limitations had run. Id. The Fifth Circuit explained its reasoning for reversing the district court’s dismissal as follows:

Leave was not asked to change any averment of fact upon which liability was asserted, or the grounds upon which recovery was originally sought, but merely to make defendant a party because of its ownership of a stated interest in the schooner. In this state of the pleadings, process was issued and served upon defendant, before any right of action against it was barred. While there are cases to the contrary, we think the better rule, supported by the weight of authority, is that an application for leave to amend, as full and comprehensive as this one is in its averment of facts, stands in the place of an actual amendment.

Id. at 17 (citations omitted). Rademaker was relied upon by a Mississippi federal district court which held that the filing of a motion to amend and attaching the amended complaint before the statute of limitations had run “tolled the statute of limitations on the added Plaintiffs’ claims for a reasonable time.” Bradley v. Armstrong Rubber Co., 46 F.Supp.2d 583, 586 (S.D.Miss.1999). In denying the defendant’s motion to dismiss on grounds that the statute of limitations had run against the new plaintiffs on the amended complaint, the district court held that an eight-month delay between the district court’s granting the motion to amend the complaint and the ultimate filing of the amended complaint was unreasonable. Id. at 586. However, it found the defendant was not prejudiced by the delay because it conducted discovery and deposed the new plaintiffs shortly after the order granting the motion to amend. Id. at 586-87.

¶ 7. The Eighth Circuit also relied upon Rademaker when it held that a motion to amend, coupled with an attached amended complaint, serves to “toll” the statute limitations when filed before the limitations period ends. Mayes v. AT&T Info. Sys., Inc., 867 F.2d 1172 (8th Cir.1989). We have also examined cases from federal district courts and various state courts regarding this matter.

¶ 8. The new defendants’ argument is based upon pre-Mississippi Rules of Civil Procedure cases decided by this Court. These cases stand for the general proposition that amended complaints filed after the statute of limitations had run will not withstand the bar of the statute of limitations. See Potts v. Hines, 57 Miss. 735 (1880); Green v. Bd. of Tippah County Supervisors, 58 Miss. 337 (1880); Brown v. Goolsby, 34 Miss. 437 (1857). The comment to Rule 15 helps put Potts and Gools-by in context:

Prior to the Mississippi Rules of Civil Procedure, it was the law that amendments relate back to the date of the original pleading only when, generally, the amended bill stated no new cause of action and brought in no new parties.

M.R.C.P. 15 cmt. (citing Potts and Gools-by).

¶ 9. It is noteworthy that Rule 15 makes no reference as to when the relation back provisions in subsection (c) begin to apply once an answer to the complaint has been filed. This Court has applied the relation back doctrine to a motion to amend the original complaint filed after the statute of limitations has run. See Estes v. Starnes, 732 So.2d 251 (Miss.1999); Womble v. Singing River Hosp., 618 So.2d 1252 (Miss.1993); Parker v. Miss. Game & Fish Comm’n, 555 So.2d 725 (Miss.1989). However, this case concerns a motion to amend filed before the statute of limitations had run but not ruled upon until after the limitations period had elapsed. The new defendants encourage this Court to apply the relation back doctrine to this situation as well. In its order of dismissal, this is the route the trial court took. It specifically held that the filing of a motion to amend before the statute of limitations runs does not toll the limitations period. It also held the new claims against the new defendants do not relate back to the filing of the original complaint.

¶ 10. According to the first prong of the relation back test, in order to relate back “the claim or defense asserted in the amended pleading [must arise] out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” M.R.C.P. 15(c). The original complaint named only Hart Turner and Paul Stewart as defendants and alleged they both negligently and intentionally caused the death of Everett Curry. The claims against Dent, Trent, and Ladonna Turner involve a claim of negligent entrustment. We are uncertain how long ago the asserted negligent act of entrusting the gun used by Hart Turner to kill Everett Curry was committed or whether that act arose out of the same conduct which killed Everett Curry. We do, however, agree with the circuit judge that the claims the amended complaint brings against the new defendants do not relate back to the original filing of the complaint because the requirements of the second prong — notice and mistake — have not been met by Curry:

An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by Rule 4(h) for service of the summons and complaint, the party to be brought in by amendment:
(1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and
(2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. An amendment pursuant to Rule 9(h) is not an amendment changing the party against whom a claim is asserted and such amendment relates back to the date of the original pleading.

M.R.C.P. 15(c). The requirements of these two subsections must be fulfilled before the statute of limitations has run or within 120 days of the filing of the original complaint. Brown v. Winn-Dixie Montgomery, Inc., 669 So.2d 92, 94 (Miss.1996) (citing Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986)). Soon after the Winm-Dixie Montgomery, Inc. case, Rule 15(c) was changed to embody its holding.

¶ 11. The record does not show that Trent, Dent, and Ladonna Turner were provided any notice of the filing of the original complaint. Curry claims that she first learned she may have a cause of action against them after deposing Ladonna Turner on June 5, 1998. There is no indication in the record the Turners were served with the original complaint or the motion to amend with the amended complaint attached within 120 days after the statute of limitations elapsed. They have suffered no prejudice save the expiration of the time to file suit in the statute of limitations. Furthermore, Trent, Dent, and Ladonna Turner were not being substituted for fictitious parties in the original complaint. The trial court found these facts to be fatal to Curry’s claims against them. The trial court’s analysis is correct, and the amended complaint against Trent, Dent, and Ladonna Turner does not relate back to the original filing of the complaint under Rule 15(c). Since the amended complaint was filed after the statute of limitations ran against these defendants and does not relate back to the filing of the original complaint, the trial court was correct in dismissing these defendants.

¶ 12. The premises liability claim against Money Pillai is inextricably entwined with Everett Curry’s murder on the premises of Mims One Stop. He therefore passes the first prong of the relation back doctrine. However, the record does not indicate that he was made aware of the filing of the original complaint. Nor does the record reflect he was provided a copy of the motion to amend with the amended complaint attached within 120 days after the statute of limitations ran. Pillai was not named as a fictitious party on the original complaint nor was his identity confused with Paul Stewart or Hart Turner. Instead, it seems that Curry was merely tardy in discovering identity of the owner of Mims One Stop (a/k/a Pillai Grocery) or filing the amended complaint naming Pillai as a defendant. Pillai has suffered no prejudice save the expiration of the time allowed to bring suit against him under the statute of limitations. The trial court found these facts insufficient for the amended complaint to relate back to the filing of the original complaint. We agree that the second prong of the relation back doctrine has not been satisfied as to Pillai either. Since the amended complaint was filed after the statute of limitations ran against him, the trial court was correct in dismissing the suit against him.

¶ 13. After examining the submitted authority, we conclude that the trial court correctly used the relation back doctrine found in Rule 15(c). The motion to amend does not “toll” the statute of limitations until the trial court rules on the motion. The new defendants were provided no notice of this suit nor was there any mistake as to their identity during the statute of limitations or 120 days after the statute of limitations ran. It is conceivable that the first notice they had that a complaint was filed against them was when they were served in late November and early December of 1999, eleven months after the statute of limitations expired. Therefore, the trial court’s ruling is affirmed.

¶ 14. As we have reached this conclusion with regard to the first issue, the second need not be addressed.

III. WHETHER THE MINOR’S SAVINGS CLAUSE OF MISS. CODE ANN. § 15-1-59 TOLLS THE APPLICABLE STATUTE OF LIMITATIONS NOTWITHSTANDING THE PRESENCE OF A WRONGFUL DEATH BENEFICIARY NOT UNDER A DISABILITY.

¶ 15. Curry also argues that notwithstanding whether the statute of limitations is tolled upon the filing of the motion to amend, the statute of limitations is presently tolling as to Everett Curry’s minor children as beneficiaries of his estate. She cites Miss.Code Ann. § 15-1-59 (1995) in support of her argument. The new defendants counter that this section only applies where the minors have no one to protect their rights. They submit that Betty Curry, Everett Curry’s wife and administra-trix of his estate, is a responsible party acting on behalf of Everett Curry’s minor children and the statute of limitations therefore runs against them collectively. The trial court found this reasoning persuasive when it dismissed the new defendants.

¶ 16. Section 15-1-59 provides:

If any person entitled to bring any of the personal actions mentioned shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the actions within the times in this chapter respectively limited, after his disability shall be removed as provided by law. However, the saving in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years.

Miss.Code Ann. § 15-1-59 (1995). This Court has twice considered whether § 15-1-59 applies to minor children in wrongful death suits. See Thiroux v. Austin, 749 So.2d 1040 (Miss.1999); Atender v. Smith County Hosp., 431 So.2d 491 (Miss.1983). Each case is discussed below.

¶ 17. In Atender, the husband of a deceased filed a wrongful death suit on his own behalf and on behalf of their two minor children over six years after her death. 431 So.2d at 492. The trial court dismissed the case with prejudice as the six year statute of limitations period had elapsed. Id. This Court affirmed the dismissal as to all the plaintiffs. Id. at 494. The Court gave four reasons why § 15 — 1— 59 did not apply to wrongful death cases: Id. at 492-94. The court noted parenthetically, “[e]ven if there had been a savings in favor of the children, there being but a single cause of action, such savings would operate in their favor only when there was no person in esse who could sue on their behalf.” Id. at 493. The Court found the children’s father met this requirement. Id. at 494.

1) § 15-1-59 restricted its own use to actions brought within Title 15 of the Mississippi Code,
2) the section of the Mississippi Code where actions for wrongful death are permitted did not contain its own independent savings clause,
3) the wrongful death statute allowed for only one cause of action to be brought, and
4) where one party to a joint action is of age when the action accrues, the statute runs against all.

¶ 18. This Court revisited this decision in Thiroux v. Austin, where the legal guardian of two minor children filed suit against their father’s murderer. Thiroux, 749 So.2d at 1041. The suit was filed over three years after the children’s father died, and the trial judge dismissed the suit as barred by the three year statute of limitations. Id. This time, this Court reversed the dismissal, finding that one reason supporting the Atender decision was now absent, namely § 15-1-59 no longer restricted its own use to actions brought under Title 15 of the Mississippi Code. Id. This Court concluded that § 15-1-59 does indeed apply to wrongful death suits but declined to overrule Atender. Id.

¶ 19. It stands to reason that the wrongful death statute’s lack of a savings clause is also no longer a viable excuse to preclude the use of § 15-1-59 by Everett Curry’s minor children as the Thiroux court found that the minors savings statute applied. However, the Thiroux majority did not address the significance of the wrongful death statute’s requirement that there only be one suit for recovery. Nor did the majority address whether the children’s guardian was a person in esse, allowing the statute of limitations to ran against him as representative of the minor children’s interest. The wrongful death statute in question reads in part:

The action for such damages may be brought in the name of the personal representative of the deceased person for the benefit of all persons entitled under the law to recover, or by widow for the death of her husband, or by the husband for the death of the wife, or by the parent for the death of a child, or in the name of a child, or in the name of a child for the death of a parent, or by a brother for the death of a sister, or by a sister for the death of a brother, or by a sister for the death of a sister, or a brother for the death of a brother, or all parties interested may join in the suit, and there shall be but one (1) suit for the same death which shall ensue for the benefit of all parties concerned, but the determination of such suit shall not bar another action unless it be decided on its merits.

Miss.Code Ann. § 11-7-13 (Supp.2002) (emphasis added). The plain language of the wrongful death statute § 11-7-13 sets it at odds with the minors savings statute § 15-1-59. Conceivably, the minors savings statute would allow for two groups of plaintiffs to file suits at two separate times for damages caused by one event: 1) those plaintiffs of majority age and sound mind within the statute of limitations and 2) those plaintiffs protected by the savings statute when their disability is removed or they reach the age of majority. This could result in a substantial period of time elapsing between the two suits. The wrongful death statute requires that only one suit be brought to recover damages for the wrongful death of the deceased. The nature of this conflict was recognized in Ar-ender:

The statute of limitations does not look to the character of the plaintiff, but to the nature of the action. This is not so as to a saving clause. It contemplates the person, and not the action. The claim to exemption is against the current of the law, and not co-extensive with its effective provisions.

Arender, 431 So.2d at 494. The fact that the wrongful death statute has no separate savings provisions suddenly becomes relevant as § 15-1-59 proves an ill fit to the facts at hand. The fact that the Legislature has failed to change the requirement that one suit be brought for wrongful death in over fifteen years, but that it has changed § 15-1-59, indicates that it might be happy with the wrongful death statute as written. It would be improper for this Court to assume the role of the Legislature and change the requirement that only one suit be filed by exercise of judicial authority.

¶ 20. The wrongful death statute also provides that a suit can be brought in the name of the personal representative of the deceased on behalf of all, not just persons of majority age. All parties concerned are allowed to join this suit. The wrongful death statute assumes the minor children of a deceased will be represented by the deceased’s personal representative or represented separately. They would still be required to join in the single action for damages and allowed to share in any award gained by another beneficiary. Thiroux’s analysis of this situation therefore calls for more guidance.

¶ 21. Betty Curry is not only the wife of the deceased, she is his personal representative as administratrix of his estate. The style of this case indicates that it was her intention to bring this suit on behalf of all his wrongful death beneficiaries. The original and proposed amended complaint seek damages for all beneficiaries and not just for herself. The facts of Arender are closer to the facts in the instant case than those in Thiroux. We therefore conclude that the trial court’s ruling that she represented the interests of their minor children, as the estate’s admin-istratrix and as their mother, for purposes of counting the statute of limitations against them, is affirmed. While this is a difficult conclusion, we are convinced the provisions in the wrongful death statute and the minors savings statute are at irreconcilable odds with one another where there exists a person qualified under the wrongful death statute to bring suit. This conclusion is reinforced by the wrongful death statute’s requirement that one suit be brought for damages from wrongful death. A common sense reading of ■ the wrongful death statute indicates the statute of limitations runs against both the personal representative of the deceased and the deceased’s children. Since the amended complaint was filed after the statute of limitations had run, the children’s claims, like the estate’s and their mother’s, are barred by the statute of limitations.

CONCLUSION

¶ 22. For the reasons stated above, we hold the statute of limitations has operated to bar the causes of action brought by. the estate of Everett Curry, his wife and minor children against the new defendants named in the amended complaint: Money Pillai, Trent Turner, Dent Turner, and Ladonna Turner. The trial court’s judgment is affirmed.

¶ 23. AFFIRMED.

SMITH, P.J., WALLER, COBB AND CARLSON, JJ., CONCUR. EASLEY, J., CONCURS IN PART. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ, J. DIAZ, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY McRAE, P.J., AND GRAVES, J.

McRAE, P.J.,

Dissenting.

¶ 24. This is a ease involving a wrongful death action in which we uphold the one lawsuit filing pursuant to Miss. Code Ann. § 11-7-13 (Supp.2002). While procedurally it may be appropriate to dismiss the legal guardian’s complaint for procedural mistakes made, however, we foreclose the protections and rights of the minors involved. The minors, who are under the same disability of incompetence and are not able by law to control legal matters, should not be punished for the ineptitude or oversight of those charged with protecting their interests. Minors under our rules have two years to appeal. Rule 4-Cf) Mississippi Rules of Appellate Procedure. Because an adult does not take action on a claim it should not preclude minors who have two years to file or amend an appeal. Whose right should come first, an adult or a minor with the disability or incompetence? The interests of one with a legal disability should always prevail.

¶ 25. The motion' to amend to include additional defendants in this case was granted. Seven months later the legal guardian attempted to file the amended complaint. But the judge ruled that the statute of limitations had run and therefore dismissed it. Looking to the reasoning behind M.R.A.P. 4(f), we should, at a minimum, allow the minors in this case to proceed with the amended complaint.

¶ 26. Rule 4(f) states:

In the case of parties under a disability of infancy or unsoundness of mind, the various periods of time for which provision is made in this rule and within which periods of time action must be taken shall not begin to run until the date on which the disability of any such party shall have been removed. However, in cases where the appellant infant or person of unsound mind was a plaintiff or complainant, and in cases where such a person was a party defendant and there had been appointed for him or her a guardian ad litem, appeals to the Supreme Court shall be taken in the manner prescribed in this rule within two years of the entry of the judgment or order which would cause to commence the running of the 30 day time period for all other appellants as provided in this rule.

This Court has allowed a minor, one, by definition, under a legal disability, up to a two year extension of time in a wrongful death case. See Parks v. Knight, 491 So.2d 217 (Miss.1986). By analogy, we should do the same here. The minors in this case should be allowed to proceed under the amended complaint. Their rights should not be foreclosed; the courthouse doors should not be slammed in their faces.

¶27. In Thiroux, the legal guardian filed a wrongful death action nearly three and a half years after the death of the minors’ father. Thiroux v. Austin, 749 So.2d 1040, 1041 (Miss.1999). There, we correctly held that the minor savings clause applies in wrongful death cases and allowed the minors to proceed. Id. We should allow the minors to pursue their interests in this case as well. See id. at 1043-44 (McRae, J., specially concurring) (citations omitted). As I noted in my special concurrence in Thiroux, Arender v. Smith County Hosp., 431 So.2d 491 (Miss.1983), should have been overruled to prevent future injustices to minors in wrongful death cases where a beneficiary not under a disability is present and allows the statute of limitations to run. Thiroux, 749 So.2d at 1043-44. Today, we are faced with that exact dilemma. Because we did not overrule Arender, the disability of the minors in this case, and their interests in this lawsuit, are being foreclosed.

¶ 28. In its order, the circuit court specifically recognized that Thiroux held that the minors savings clause tolls the statute of limitations in wrongful death cases. Yet since we have previously declined to overrule Arender, the circuit court and the majority are permitting the rights of the minors to be circumvented. The minors are being stripped of their constitutional right to due process of law; and their right to a remedy is being extinguished. Id. at 1042-43. The opportunity is here, yet again, to overrule Arender. Instead, the chance to protect the rights of minors and to guide litigants is shrugged off. Additionally, the majority overlooks the alternative measure available to the minors, M.R.A.P. 4(f), which gives the minors an additional two years in which to exercise their rights.

¶ 29. Accordingly, I dissent.

DIAZ, J„ JOINS THIS OPINION.

DIAZ, J.,

Dissenting.

¶ 30. The majority finds that the minor’s savings statute does not operate to toll the statute of limitations because the wrongful death statute allows only one suit per deceased. I disagree and respectfully dissent.

¶ 31. I would find that the minors savings clause protects a minor’s rights under the wrongful death statute regardless of whether a party who is not under a disability brings suit. As pointed out by Justice McRae in his specially concurring opinion in Thiroux v. Austin, 749 So.2d 1040, 1042 (Miss.1999), courts should act as the superior guardian for all persons under disability. (citing Miss. State Bar Ass’n v. Moyo, 525 So.2d 1289 (Miss.1988)). A minor should be able to seek a remedy when he or she has the capacity to do so.

¶ 32. Here, the administratrix of Everette Curry’s estate brought suit on behalf of Everette’s heirs, including his two minor children. The majority correctly states that we have yet to address the effect of the wrongful death statute’s requirement that there be only one suit for recovery in a situation such as this.

¶ 33. In Thiroux, suit was not brought on behalf of the minors until the statute of limitations had run. Here, the suit was brought, but certain defendants were not named in the complaint and the statute of limitations ran. Yes, a suit was brought and yes, the wrongful death statute says that there shall be only one suit. However, I cannot reconcile our law that courts act as superior guardians of children with this harsh result of cutting off these children’s right to seek their own remedy. As we allowed the statute of limitation to be tolled in a case where no suit was brought for the benefit of the children, so should we allow the statute of limitations to be tolled in a case where a suit was brought and mishandled. Allowing the statute of limitations to act as a bar in this case will produce the same result as it would have in Thiroux; it would eradicate the children’s chance at obtaining a remedy while they have no choice, no ability to look after their own welfare. I believe we should continue down the same path we started in Thiroux and make the rights of minors, who are incapable of seeking their own remedy, more important than the convenience of the wrongful death defendant. Therefore, I would reverse and remand for further proceedings.

McRAE, P.J. AND GRAVES, J„ JOIN THIS OPINION.

      . Paul Stewart later confessed and Hart Turner was convicted of capital murder and now awaits execution by lethal injection. See Turner v. State, 732 So.2d 937 (Miss.1999).

      . Money Pillai (the owner of Mims One Stop), Trent Turner (Hart Turner's brother), and Dent Turner (Hart Turner's uncle) are hereinafter referred to collectively as "the new defendants." The entire group of plaintiffs will be referred to as "Curry.” Where necessary, first names will be used to avoid confusion.

      . Service of process was not made upon Ladonna Turner (Hart Turner's mother) and she is not a party in this appeal.

      . We have also discussed whether this statute applies to claims brought under the Mississippi Tort Claims Act, see Hays v. Lafayette County Sch. Dist., 759 So.2d 1144 (Miss.1999); Marcum v. Hancock County Sch. Dist., 741 So.2d 234 (Miss.1999), claims brought pursuant to our post conviction relief act, see Cole v. State, 608 So.2d 1313 (Miss.1992), claims brought under our uniform reciprocal enforcement of child support act, see Vice v. Dep't of Hum. Servs., 702 So.2d 397 (Miss.1997), and negligence actions (See, e.g., Taylor v. Gen. Motors Corp., 717 So.2d 747 (Miss.1998)).

        . The children's guardian in Thiroux did not meet the qualification of being a person in esse because, under the wrongful death statute, the guardian was not entitled to bring the suit.