author: CARTER, C.J. GAIDRY, J., DOWNING, J.,

text:
    Linda MAY v. HARRIS MANAGEMENT CORPORATION.
    No. 2004 CA 2657.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2005.

      Sanettria R. Glasper, Kenneth F. Sills, Baton Rouge, for Plaintiff-Appellant, Linda May.
    Gregory K. Moroux, Lafayette, for Defendant-Appellee, Harris Management Corporation.
    Before: CARTER, C.J., DOWNING, and GAIDRY, JJ.
   CARTER, C.J.

| ¡.Linda May brought this action against Harris Management Corporation (HMC) seeking damages for detrimental reliance, arising out of the withdrawal of an offer of at-will employment. The trial court granted summary judgment in favor of HMC, and May appeals. For the following reasons, we affirm.

FACTS

HMC owns, operates, and manages nursing homes in the Baton Rouge area. On March 19, 1998, Melvin Harris, on behalf of HMC, orally offered Linda May a position as the nursing home administrator for one of the HMC nursing homes, Concord Manor. At the time of the job offer, May was employed in the same position at Zachary Manor, another nursing home not owned or operated by HMC, earning a base salary of approximately $44,000. After negotiating a base salary of $52,000 with no specific duration of employment for the HMC job, May accepted the offer of employment on March. 24, 1998. Additionally, May requested that April 27, 1998 be her start date at Concord Manor. She informed Harris that she needed the one-month delay so that she could give a two-week notice of her resignation at Zachary Manor and enjoy two weeks of accrued vacation time before beginning her new job at Concord Manor. It is undisputed that there was no written employment contract and the oral offer of employment was for an indefinite term, although May personally . perceived and assumed that the HMC job was permanent.

After accepting HMC’s offer of employment, May gave notice and concluded her work at Zachary Manor on April 3, 1998. On the same date, she completed various employment documents while visiting at Concord ] ¡¡Manor, During the interim period before May was to actually begin working at Concord Manor, she visited the nursing home facility several times in order to ease her transition into the administrator position. It was during these visits that some employees at Concord Manor began to report to Harris that May’s imminent employment with HMC was problematic. It became apparent that May envisioned changes in the facility’s furnishings and the treatment of certain patients that were incompatible with HMC plans. On April 22, 1998, five days prior to her agreed-upon start date, Harris informed May that based upon uneasiness, apparent differences in management styles, and incompatible philosophies, HMC was withdrawing the offer of employment. At this point, May could not return to her prior employment at Zachary Manor because the position had already been filled. She immediately searched for and secured replacement employment in the- same position at yet another nursing home, earning a base salary of $48,000, beginning May 25, 1998, approximately one month after HMC withdrew the employment offer.

May filed suit against HMC on July 30, 1998, seeking damages for detrimental reliance, maintaining that she had resigned from her previous employment relying on HMC’s promise of employment which was later withdrawn. After several years of prolonged discovery, May filed a motion for partial summary judgment on the issue of HMC’s liability under the theory of detrimental reliance. HMC filed a cross-motion for summary judgment, seeking a declaration by the trial court that an at-will employee can be terminated at any time, including the period preceding her employment. Alternatively, HMC argued that May could not satisfy the damage requirements of the theory of detrimental reliance because she | ¿immediately took a job at a greater salary than she enjoyed at her previous position.

After a hearing on May 10, 2004, the trial court ruled in favor of HMC, granting summary judgment, and dismissing May’s claims against HMC. In its oral reasons for judgment, the trial court concluded “the at-will employment rule is so strong in Louisiana that it would override the cause of action of detrimental reliance. While I think clearly the criteria of detrimental reliance were met in this case[,] I think the right of the employer to terminate the employment at will trumps that detrimental reliance [cause] of action.” It is from this judgment that May appeals, contending the trial court erred and she is entitled to recover under the doctrine of detrimental reliance because she met her burden of proof for all elements of the doctrine.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Weller v. Brown, 01-0314 (La.App. 1 Cir. 3/28/02), 813 So.2d 635, 638. A motion for summary judgment shall be granted only if there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966 B. In this case, there are no material factual disputes; there are only questions of law. In reviewing legal issues, an appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and render judgment on the record. Weller, 813 So.2d at 638.

Is ANALYSIS

In this case, we must decide a res nova legal issue in Louisiana: whether recovery is allowed under the doctrine of detrimental reliance when an employer withdraws an offer of at-will employment prior to the designated time for the employee to begin work. This requires us to examine the relationship of two separate and distinct doctrines found in Louisiana law and jurisprudence: the detrimental reliance doctrine versus the at-will employment doctrine.

The theory of detrimental reliance, also referred to in the jurisprudence as promissory or equitable estoppel, is codified at LSA-C.C. art. 1967, and provides in pertinent part:

A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise.

The doctrine of detrimental reliance is designed to prevent injustice by barring a party from taking a position contrary to his prior acts, admissions, representations, or silence. Suire v. Lafayette City-Parish Consol. Government, 04-1459 (La.4/12/05), 907 So.2d 37, 58-59. To establish detrimental reliance, a party must prove three elements by a preponderance of the evidence: (1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one’s detriment because of the reliance. Id. at 59. The basis of detrimental reliance is “the idea that a person should not harm another person by making promises that he will not keep.” Id.

|fiIt is difficult to recover under the theory of detrimental reliance, because estoppel is not favored in our law. Wilkinson v. Wilkinson, 323 So.2d 120, 126 (La.1975); Barnett v. Bd. of Trustees for State Colleges & Universities, 00-1041 (La.App. 1 Cir.6/22/01), 809 So.2d 184, 189. All estoppel claims must be .examined carefully and strictly. Kibbe v. Lege, 604 So.2d 1366, 1370 (La.App. 3 Cir.), writ denied, 606 So.2d 540, 541 (La.1992). In this case, the questions to be answered are: (1) Did HMC make a representation or promise to May on which she relied? (2) Was May’s reliance justifiable or reasonable? (3) Did this reliance work to May’s detriment? We must separately analyze each element of May’s claim.

“Reliance on a Promise” Element

The first element of May’s detrimental reliance claim is easily met. It is undisputed that on March 19, 1998, HMC made an oral offer of at-will employment to May. The fact that there was no written employment contract does not diminish the validity of the promise of employment. The promise need not be expressed formally. See Suire, 907 So.2d at 59. May accepted the offer on March 24, 1998, with the condition that the employment was to begin on April 27, 1998. Additionally, the evidence supports May’s assertion that she relied on HMC’s promise of employment when she voluntarily gave notice of resignation to her previous employer after accepting HMC’s offer. The record reflects that May continued to rely on the promise of employment when she fulfilled her two-week notice commitment to her previous employer on April 3, 1998, and proceeded to complete the employment documents for the HMC job. May further showed 17her reliance on the offer of employment by visiting the HMC facility several times prior to the date she was set to begin work.

“Reasonableness of the Reliance” Element

The second element, dealing with the reasonableness, of May’s reliance on HMC’s promise, is the key issue in this case, and unfortunately its resolution is not as clear. We must first examine the principles of the at-will employment doctrine when considering the reasonableness of May’s reliance.'

At-will employment has a strong presence in Louisiana law and jurisprudence. The employer-employee relationship is contractual. As such, the terms of the employment contract may be negotiated and agreed upon as long as not prohibited by law or public policy. When the employer and employee are silent on the terms of the employment contract, the civil code provides the default rule of employment at-will.. Quebedeaux v. Dow Chemical Co., 01-2297 (La.6/21/02), 820 So.2d 542, 545. The principle is codified at LSA-C.C. art. 2747, which states: “A man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing. The servant is also free to depart without assigning any cause.” Generally, under LSA-C.C. art. 2747, an employer is free to dismiss an employee, at any time for any reason without incurring liability for the discharge. Brodhead v. Bd. of Trustees for State Colleges and Universities, 588 So.2d 748, 752 (La.App. 1 Cir.1991), writ denied, 590 So.2d 597 (La.1992).

| sWhen the employment contract is for an indefinite term, the contract is terminable at the will of either party. Braman v. Wyeth Laboratories, Inc., 526 So.2d 1101, 1103 (La.1988); Hughes v. Muckelroy, 97-0618 (La.App. 1 Cir. 9/23/97), 700 So.2d 995, 998-99. Any contract for permanent employment is void as against public policy and is unenforceable in Louisiana. Such a contract must be read as having an indefinite term, and is therefore, terminable at will by either party. Pitcher v. United Oil & Gas Syndicate, 174 La. 66, 139 So. 760, 761 (1932); Romaguera v. Prudential Ins. Co. of America, 95-3006, 1995 WL 747464, p. *2 (E.D.La.1995). The only exception to this rule is when the contract for permanent employment is supported by some special consideration given by the employee over and above the rendering of services. Pitcher, 139 So. at 761; Simmons v. Westinghouse Electric Corp., 311 So.2d 28, 31 (La.App. 2 Cir.1975).

With these principles in mind, we consider the issue of whether it was reasonable for May to leave her previous, allegedly stable, employment in reliance on HMC’s promise of at-will employment at a job where she could be terminated at any time for any reason. We note that May did not offer any evidence that she was giving special consideration over and above the rendering of her services. May relinquished her previous employment in order to accept the position she sought with HMC. Her resignation was a customary and necessary incident of changing jobs. Nothing in the record suggests that HMC bargained for that benefit or that May provided additional consideration. Presumably, the driving force behind May’s | gacceptance of the HMC offer was the substantial increase in salary. The Louisiana Supreme Court has held that leaving a civil service position to take a higher paying position was not “consideration,” even when the employee expressed concern about the stability of the employment. Brannan, 526 So.2d at 1104.

The reasonableness question has been examined in Louisiana only in the context of a termination after the employee began working for the employer. In the sparse jurisprudence involving detrimental reliance claims of employees terminated after working a short time in an at-will employment situation, the Louisiana cases have held it to be patently unreasonable as a matter of law to have relied on the at-will employment. See Robinson v. Healthworks International, L.L.C., 36,802 (La.App. 2 Cir. 1/29/03), 837 So.2d 714, 722, writ not considered, 03-0965 (La.5/16/03), 843 So.2d 1120 (reasons for an at-will employment contract encompassed the parties’ mutual understanding that the employee would no longer work at her former business/job, but would change her position and become employed for wages with the employer; thus, no detrimental reliance); Stevenson v. Lavalco, Inc., 28,020 (La.App. 2 Cir. 2/28/96), 669 So.2d 608, 612, writ denied, 96-0828 (La.5/17/96), 673 So.2d 611 (at-will employee who relocated his family from Connecticut to Louisiana, incurring numerous expenses, should have understood the inherent risks in accepting employment without securing protection for himself through an employment contract with specific terms); Romaguera, 1995 WL 747464 at *2 (at-will employee who reluctantly gave up stable position for higher position with more .responsibility and pay was patently unreasonable to assume that he had a valid contract for a permanent position). See also Griffith v. Sollay Foundation Drilling, Inc., 373 So.2d 979, 982 (La.App. 3 Cir.1979) (an employee can be discharged at will even though he moved his family from Georgia to Louisiana based upon representations that his employment would be long-term); Hughes, 700 So.2d at 1001-02 (an employee’s resignation from his previous position and relocation to a different city was not shown to be a change in position to the employee’s detriment even though the employee was arguably led to believe that he would be eligible for a specific-term employment contract following a probationary period).

The underlying theme for these holdings is that the employees have a misplaced reliance in this situation. In other words, the courts have found it unreasonable to rely on at-will employment and to assume that the employment contract is valid and enforceable when a contract for permanent employment is legally unenforceable. See Kibbe, 604 So.2d at 1371 (unreasonable to rely on an oral promise that was legally unenforceable). Other jurisdictions, considering similar facts, have reached the same result. Albert v. Davenport Osteopathic Hospital, 385 N.W.2d 237, 238-40 (Iowa 1986) (leaving a collective bargaining unit to accept a new position in management was not sufficient consideration to support a contract for permanent employment); Milligan v. Union Corp., 87 Mich.App. 179, 274 N.W.2d 10, 12 (1978) (passing up other employment opportunities was not sufficient consideration to support a contract for permanent employment); Ohio Table Pad Co. of Indiana, Inc. v. Hogan, 424 N.E.2d 144, 146 (Ind.App. 3 Dist.1981) (moving one’s household to a new location and relinquishing an existing job, business, or profession was not sufficient consideration to support a contract for permanent employment).

111 As for the cases involving at-will employment offers being withdrawn before the employee actually begins work, we must look outside of Louisiana to cases with similar facts. Our research reveals that the jurisprudence around the country is split on the issue of reasonableness.

Several state and federal court decisions have held that the employee was reasonable to rely on the separate promise of at-will employment, and have allowed recovery under an equitable estoppel or detrimental reliance theory. See Goff-Hamel v. Obstetricians & Gynecologists, P.C., 256 Neb. 19, 588 N.W.2d 798, 804 (1999) (promissory estoppel can be asserted in connection with the offer of at-will employment); Humphreys v. Bellaire Corp., 966 F.2d 1037, 1042 (6th Cir.(Ohio) 1992) (reliance on a promise of permanent employment might be considered reasonable); Comeaux v. Brown & Williamson Tobacco Co., 915 F.2d 1264, 1270 (9th Cir.(Cal.) 1990) (the employer breached a promise to employ, which is separate from the employment contract itself; therefore, whether the ultimate employment is at-will is immaterial to the analysis of whether the contract was breached before employment began); Grouse v. Group Health Plan, Inc., 306 N.W.2d 114, 116 (Minn.1981) (the employee had a right to assume he would be given a good faith opportunity to perform his duties to the satisfaction of the employer once he was on the job).

Numerous other decisions have reached a contrary result, i.e., that it is patently unreasonable to rely on an offer of at-will employment. These cases reason that because the offer was for employment for an indefinite period of time, the employees were at-will, subject to termination at any time for any reason. It follows that the employers had the right to withdraw the offer of employment prior to the time the employees were to begin work. See White v. Roche Biomedical Laboratories, Inc., 807 F.Supp. 1212, 1216-17 (D.S.C. 1992) (employee’s alleged independent consideration of relying on the employment offer by resigning prior employment, was insufficient to alter the otherwise at-will employment contract); Payne v. FMC Corporation, 90-882-6, 1991 WL 852415, p. *4 (D.S.C.1991) (a contrary holding would require the employer to allow the prospective employee to work some insignificant amount of time before the employer could then exercise its right to terminate the employment relationship); Sartin v. Mazur, 237 Va. 82, 375 S.E.2d 741, 743 (1989) (the doctrine of free terminability draws no distinction between the offer of employment and the actual act of employment); Jaffe-Spindler Co. v. Genesco, Inc., 747 F.2d 253, 258 (4th Cir.(S.C.) 1984) (courts should not require the performance of acts when the doing of them will not further any worthwhile purpose).

After carefully reviewing these and other authorities, we conclude that the better view on this issue is that it is patently unreasonable for an employee to rely on an offer of at-will employment. We acknowledge the apparent harshness of this ruling, which results in an employee who resigns one job for other at-will employment, does so at her peril. To some degree this is inherent in the concept of at-will employment. Further, to hold otherwise would undermine the at-will employment doctrine in this state. If the employee were permitted to recover in this situation, it would inevitably result in employers actually waiting until the employee starts work before terminating them, even though the employer had made a decision to withdraw the offer of employment before the employee began work. By doing so, the employer would ensure that no liability attaches for | ^termination of the at-will employee since Louisiana jurisprudence has expressly denied recovery in that situation.

Why should an at-will employee have greater rights before she actually begins employment than afterwards? We conclude that she should not. There should not be a different standard before and after the date that an at-will employee begins work. It would be an anomalous result if employers who had already decided to terminate an employee could avoid liability simply by waiting for the actual employment to begin, whereas if they withdraw an offer of employment before the prospective employee starts working, they are faced with liability for detrimental reliance claims. The law should not be interpreted in a way that results in absurdities or futile acts. See LSA-C.C. art. 9; O’Brien v. Shepley, 451 So.2d 82, 84 (La.App. 5 Cir.1984). For this reason, we decline to make a distinction between the time period before and after at-will employment begins in terms of the reasonableness of an employee’s reliance on the at-will employment.

We hold that it is unreasonable as a matter of law to rely on an offer of at-will employment, just as it is patently unreasonable to rely on the permanency of at-will employment once it begins. The general rule that employment contracts are terminable at will unless a specified duration is stated, applies to both post-acceptance (or pre-performance) and post-performance phases of the at-will employment contract. See Slate v. Saxon, Marquoit, Bertoni, & Todd, 166 Or.App. 1, 999 P.2d 1152, 1154 (2000), review denied, 330 Or. 375, 6 P.3d 1105 (2000) (even if the two phases are viewed as two separate contracts, the parties did not specify a duration other than at-will in connection with either phase). Thus, in the case sub judi-ce, May is not able to meet the second element of her detrimental reliance claim.

_Jj¿“Detriment or Damages” Element

We also find that in this particular case, May is unable to meet the burden of proof for the third element of her detrimental reliance claim. At the time that HMC’s offer of at-will employment was revoked, May was enjoying a two-week accrued vacation earned while working for her previous employer. Thus, she had no lost wages before the actual start-date for the HMC job. May did not have any relocation expenses, she did not prove damages for emotional distress, and she was able to find replacement employment that began approximately one month after HMC withdrew the offer of employment, earning a higher salary than she enjoyed at her previous job.

Of course, May would argue that she should be entitled to one-month’s salary because of her one month of unemployment after HMC withdrew the offer of employment. However, the reality is that HMC could have terminated May the day she was to begin her employment on April 27, 1998, leaving her with no recourse against HMC for detrimental reliance under the previously outlined Louisiana jurisprudence. Therefore, even if we had ruled the opposite way in this opinion (i.e., finding that her reliance on the offer of at-will employment was reasonable), May still would have been unable to meet the elements of her detrimental reliance claim because she could not prove damages. Under the at-will employment doctrine, HMC would not have been responsible for any of May’s damages after the date that she was to start work.

1 ^CONCLUSION

We conclude that May’s reliance on HMC’s offer of at-will employment was unreasonable as a matter of law and therefore, May will not be able to prove all of the elements of her claim for detrimental reliance, including damages. Thus, HMC is entitled to summary judgment as a matter of law. See LSA-C.C.P. art. 966 B. We hereby affirm the trial court’s grant of summary judgment in favor of HMC, dismissing May’s claim. We emphasize that our affirmance is of the trial court’s judgment, not the stated oral reasons, as appeals are not taken from reasons. See Veal v. American Maintenance & Repair, Inc., 04-1786 (La.App. 1 Cir.9/23/05), 923 So.2d 668, 672-73. All costs of this appeal are to be paid by plaintiff-appellant, Linda May.

AFFIRMED.

DOWNING, J., concurs and assigns reasons.

GAIDRY, J., dissents with reasons.

GAIDRY, J.,

dissenting.

hi agree with all points raised by my learned concurring colleague save one: I conclude that Ms. May established an adequate prima facie case of a detriment suffered by reason of her justifiable reliance on HMC’s offer. I find no manifest error in the trial court’s factual finding that all three elements of the doctrine of detrimental reliance were established, but conclude that the trial court committed legal error in applying the at-will employment principle of La. C.C. art. 2747 to a prospective employee. In my view, such a conclusion is an unwarranted extension of the at-will employment principle to a classic factual scenario of detrimental reliance governed by La. C.C. art. 1967.

The majority opinion indulges in a misplaced discussion of the principles of employment for indefinite and permanent terms, when its focus should be confined to determining whether La. C.C. art. 1967’s requirements apply to a promise of future employment inducing detriment to a prospective employee. The majority suggests that it would have been necessary for HMC to have “bargained” for the “benefit” of Ms. May’s resignation from |2her previous employment in order to establish “consideration” sufficient for prospective employment not subject to the at-will employment doctrine. But Ms. May was never afforded employee status with HMC, so the doctrine simply cannot apply here. And La. C.C. art. 1967 does not define “cause” in terms of “consideration,” in terms of obtaining something in return for binding oneself. La. C.C. art. 1967, Comment (c).

The undisputed evidence in the record shows that in reliance on HMC’s promise of employment, Ms. May left a stable position with another employer, used accrued vacation time which she might have used at another time, and was left unemployed for several weeks. While her damages might not be relatively substantial, she did apparently sustain some loss. Would the result be different and anomalous if HMC had terminated Ms. May’s employment the day after she started, with no consequent liability? It certainly might appear so, but the line must be drawn somewhere. See Bower v. AT & T Technologies, Inc., 852 F.2d 361, 363-65 (8th Cir.1988) and Peck v. Imedia, Inc., 293 N.J.Super. 151, 165-68, 679 A.2d 745, 752-53 (App.1996). Our law is not perfect, but courts should nevertheless strive to achieve justice within its imperfect parameters. The fact remains that Ms. May was never afforded the promised opportunity of beginning employment with HMC, and reasonably relied upon a firm promise of employment before leaving the security of ongoing employment and surrendering personal advantages. At the very least, genuine issue of material fact existed as to whether such changes constituted detriment under the doctrine of detrimental reliance. The trial court evidently concluded they did, and I agree. I respectfully dissent.

DOWNING, J.,

concurs and assigns reasons.

hi concur with the result because Linda May has failed to prove detriment as a result of her justifiable reliance on Harris Management Corporation’s (HMC’s) promise of employment. I fully agree with the trial court insofar as it found Ms. May justifiably relied on HMC’s promise of employment. It seems to me patently absurd that we could find it patently unreasonable for an employee to rely on an offer of at-will employment when the employee cannot accept the offer without leaving secure employment and incurring expenses. Common sense and experience demonstrate that people seeking new employment for whatever reason know that risk is involved in the employment, but not in the acceptance of the employment. Perhaps all prospective employers and employees should engage counsel, negotiate terms and reduce them to writing, but to make such action necessary seems patently excessive.

I agree with the line of cases cited by the majority that distinguishes between a contract to hire and actual employment. And while the “at-will” doctrine precludes damages for actual lost employment, the “at-will” doctrine does not apply to a party who is not yet an employee. A prospective employee should be able to collect damages for costs of moving | aand other provable damages as a result of a breach of promise on which a normally reasonable person would rely.

When we say that it is unreasonable as a matter of law for an employee to rely on a promise of employment, we say that it is reasonable for employees to expect employers to breach their promises and act in reckless disregard of the prospective employees’ welfare. I believe the contrary: that employers generally act honorably and in good faith. I therefore believe that it is highly reasonable to rely on an employer’s promise of employment. And pre-employment damages are not precluded by the “at-will” doctrine.

Here, Ms. May reasonably relied on HMC’s promise of employment. But, as the majority properly points out, she failed to prove that she suffered any detriment. Rather, she is now employed at a higher rate of pay than she was previously, and she has failed to establish other damages.

      . The right to dismiss an employee is tempered by numerous federal and state laws that prohibit certain reasons for dismissal of an at-will employee. Quebedeaux, 820 So.2d at 545. However, none of the statutory exceptions are applicable in this case.

      . It is well settled that a set rate of pay based on a yearly period does not imply an intent to contract for a specified time. See Griffith v. Sollay Foundation Drilling, Inc., 373 So.2d 979, 982 (La.App. 3 Cir.1979); Weaver v. Purple Shield Life Ins. Co., 356 So.2d 519, 521 (La.App. 1 Cir.1977).

      . In those cases where detrimental reliance damages have been allowed in this context, the awards have been based upon wages from the prior employment and other damages incurred in reliance on the job offer, not based on wages lost from the prospective at-will employment. See Goff-Hamel, 588 N.W.2d at 802.

      . We disagree with the trial court's statement that "the criteria of detrimental reliance were met in this case.” However, we agree with the ultimate outcome: summary judgment in favor of HMC was correct.

      . Since the relief to which Ms. May is entitled under La. C.C. art. 1967 includes "damages” for the detriment sustained, HMC should not in effect be given a credit for her use of her earned vacation time, a fringe benefit received from a collateral source.


source: Caselaw Access Project

author: RANDOLPH, Justice,

license: Public Domain

text:
    MISSISSIPPI DEPARTMENT OF TRANSPORTATION v. Lori ALLRED.
    No. 2005-IA-00418-SCT.
    Supreme Court of Mississippi.
    March 16, 2006.
    Rehearing Denied May 18, 2006.

      Martha Bost Stegall, Tupelo, attorney for appellant.
    John Booth Farese, Ashland, attorney for appellee.
   RANDOLPH, Justice,

for the Court.

¶ 1. Lori Allred (“Allred”) presents this interlocutory appeal from the Circuit Court of Union County. Allred is asking this Court to determine whether separate governmental entities may be individually required to pay damages up to the statutory cap.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 19, 1997, Allred, along with passengers Dixie Medlin (“Medlin”) and Stephanie Windham (‘Windham”), was involved in an automobile accident. Allred’s vehicle was struck head-on by Stephen Yarborough (“Yarborough”), an employee of Delta State University, who was in the course and scope of his employment at the time of the accident.

¶ 3. Allred filed suit in the Circuit Court of Union County against the Mississippi Department of Transportation (“MDOT”), Delta State University and Yarborough alleging each negligently caused this accident. Allred claimed Yarborough was negligent in his operation of an automobile and that MDOT was guilty of negligence in maintaining the roadway, failure to warn and other negligence.

¶ 4. The Mississippi Institutions of Higher Learning (“IHL”), Yarborough and their insurer, Reliance Insurance Company, instigated an interpleader and declaratory judgment proceeding against Cliff Colbert Chevrolet, Medlin, Windham and Allred in Hinds County in order to determine the amount and extent of damages for which Delta State University and its employee were responsible under the Mississippi Tort Claims Act. This lawsuit was transferred to Union County and consolidated with Allred’s action.

¶ 5. IHL, on behalf of Delta State University, interpled the sum of $50,000 into the court registry, equaling the liability cap applicable to the 1997 accident. The IHL believed $50,000 was all that was owed pursuant to the single occurrence language found in Miss.Code Ann. Section ll-46-15(l)(a). Allred, Medlin and Wind-ham sought to have the statute interpreted to apply the limit as $50,000 “per person.”

¶ 6. IHL filed a motion for summary judgment, which was granted by the Union County Circuit Court on behalf of IHL, Delta State University, Yarborough and Reliance Insurance Company. The trial court found the $50,000 statutory cap applied per occurrence. The three claimants were not allowed to recover up to $50,000 each; rather, the $50,000 was to be divided among the three claimants. The claimants were also enjoined from taking any further legal action against the plaintiffs. The ruling of the trial court was upheld by this Court in Allred v. Yarborough, 843 So.2d 727 (Miss.2003). This Court held that Mississippi is a “per occurrence” state, rather than a “per claimant” state and that the liability limit applies regardless of the number of persons injured by the governmental entity or its employee. Id. at 730. All claims were resolved in that appeal, except Allred’s claim against MDOT.

¶7. Following this Court’s decision in Allred, MDOT moved for summary judgment, arguing that the $50,000 payment made by IHL satisfied the limitation of liability for all governmental entities, citing Miss.Code Ann. Section 11^16-15(1). The trial judge denied MDOT’s motion for summary judgment, stating this was an apparent case of first impression for this state and that a question was presented as to whether the statute “eontemplate[d] a cap per governmental entity or a true cap ‘per occurrence’ regardless of how many sovereign entities may be tortfeasors?” The trial court granted certification for an interlocutory appeal, and this Court granted an interlocutory appeal. See M.R.A.P. 5.

¶ 8. The question now before this Court is one of first impression: when multiple governmental defendants have been sued in “single occurrence” jurisdictions, such as Mississippi, does the limitation of liability provide for one maximum dollar amount of liability for a single tortious act, regardless of the number of governmental entities sued, or does the maximum dollar amount of liability apply separately to each governmental entity defendant?

¶ 9. To answer this query, the Court must interpret Sections 11-46-1 through 11-46-23, commonly referred to as the Mississippi Tort Claims Act, and specifically Miss.Code Ann. Section 11-46-15(1), which states, in pertinent part:

(1) In any claim or suit for damages against a governmental entity or its employee brought under the provisions of this chapter, the liability shall not exceed the following for all claims arising out of a single occurrence for all damages permitted under this chapter:
(a) For claims or causes of action arising from acts or omissions occurring on or after July 1, 1993, but before July 1, 1997, the sum of Fifty Thousand Dollars ($50,000.00).

DISCUSSION

¶ 10. This is an interlocutory appeal from summary judgment based on a question of law and interpretation of a statute; therefore, the standard of review is de novo. Cooper v. Crabb, 587 So.2d 236, 239 (Miss.1991).

¶ 11. At Issue is the interpretation of the Act. MDOT is asking this Court to determine that Miss.Code Ann. Section 11-46-15(1) precludes recovery against multiple governmental entity defendants, in excess of the maximum dollar amount of liability. Allred argues that a phrase found in Section 11-46-15(1) supports the trial court’s decision, and that this Court should interpret the phrase a governmental entity or its employee to be read only in the singular.

¶ 12. In City of Natchez v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992), this Court held,

In considering a statute passed by the Legislature, ... the first question a court should decide is whether the statute is ambiguous. If it is not ambiguous, the court should simply apply the statute according to its plain meaning and should not use principles of statutory construction, [citatiops omitted]. Whether the statute is ambiguous or not, the ultimate goal of this Court is to discern and give effect to the legislative intent. .

¶ 13. The Mississippi Tort Claims Act was enacted by the Legislature to be the exclusive remedy against governmental entities and its employees for torts. Miss. Code Ann. § 11-46-7(1). In its Declaration of Legislative Intent, the Legislature stated:

1) The Legislature of the State of Mississippi finds and determines as a matter of public policy and does hereby declare, provide, enact and reenact that the “state” and its “political subdivisions,” as such terms are defined in Section 11-46-1, are not now, have never been and shall not be liable, and are, always have been and shall continue to be immune from suit at law or in equity on account of any wrongful or tortious act or omission or breach of implied term or condition of any warranty or contract, including but not limited to libel, slander or defamation, by the state or its political subdivisions, or any such act, omission or breach by any employee of the state or its political subdivisions, notwithstanding that any such act, omission or breach constitutes or may be considered as the exercise or failure to exercise any duty, obligation or function of a governmental, proprietary, discretionary or ministerial nature and notwithstanding that such act, omission or breach may or may not arise out of any activity, transaction or service for which any fee, charge, cost or other consideration was received or expected to be received in exchange therefor.

Miss.Code Ann. § 11-46-3.

¶ 14. “Whatever the Legislature says in the text of the statute is considered the best evidence of the legislative intent.” Pegram v. Bailey, 708 So.2d 1307, 1314 (Miss.1997) (quoting McMillan v. Puckett, 678 So.2d 652, 657 (Miss.1996) (Banks, J., dissenting)). As we seek to interpret any act of the Legislature, we seek to determine its intent. In addition to Section 11-46-3, the Legislature, in its wisdom, has provided additional guidance through Title I, Chapter 3 of the Mississippi Code, entitled “Construction of Statutes.”

¶ 15. Miss.Code Ann. Section 1-3-1, states, “[t]his chapter is applicable to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required by this chapter.” Specifically pertinent in this case is Miss.Code Ann. Section 1-3-33 which states, “[wjords used in the singular number only, either as descriptive of persons or things, shall extend to and embrace the plural number; and words used in the plural number shall extend to and embrace the singular number, except where a contrary intention is manifest.”

¶ 16. The common maxim is that statutes in -pari materia are to be construed together. When a statute is in pari materia with a later one, it is simply part of its context to be considered by the Court in deciding whether the meaning of a provision in the later statute is plain. See Rupert Cross, Statutory Interpretation 128, (1976). Applying Miss.Code Ann. Section 1-3-33 to an analysis of the Mississippi Tort Claims Act, it is abundantly clear that the Act fails to manifestly express a contrary intention, as required by Miss.Code Ann. Section 1-3-33. The Legislature had the opportunity to declare that the statute at issue was to be read only in the singular, but did not. Additionally, the Legislature did not manifestly express a contrary intention not to include plural language in its Declaration of Legislative Intent. Miss.Code Ann. § 11-46-3. The Legislature had the opportunity to manifest an intent that the statute should be read only in the singular; however, it is clear the Legislature did not do so. There being no ambiguity, the Court is bound to simply apply the statutes according to their plain meaning.

CONCLUSION

¶ 17. It is the task of the Legislature and not this Court to make the laws of this state. In order to interpret legislative intent, this Court must first look to the statutes for guidance. Miss.Code Ann. Section 1-3-1, et. seq. Miss.Code Ann. Section 1-3-33, read in pari materia with the Mississippi Tort Claims Act, provides resolution of this matter. The language in Miss.Code Ann. Section 1-3-33 has been the law of this state since 1857. A thorough review of Section 1-3-33 and the Mississippi Tort Claims Act reveals the intent of the Legislature is clear and unambiguous; there was no contrary intent manifested by the Legislature that would lead this Court to believe the Mississippi Tort Claims Act should be interpreted only in the singular number.

¶ 18. It is our duty to interpret the statutes enacted by the Legislature, and to neither broaden nor restrict the legislative act. We therefore hold that Miss.Code Ann. Section 11-46-15(1) shall be interpreted by using singular or plural language.

¶ 19. The judgment of the trial court is reversed and the case is remanded to the trial court for entry of judgment consistent with this opinion.

REVERSED AND REMANDED.

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

      . Allred's two passengers did not file suit against MDOT.


author: EASLEY, Justice,

text:
    Margaret Lynn OWEN v. Kenneth Whiteside OWEN.
    No. 2002-CA-00995-SCT.
    Supreme Court of Mississippi.
    April 27, 2006.

      Jak McGee Smith, Tupelo, attorney for appellant.
    J. Mark Shelton, attorney for appellee.
    Before COBB, P.J., EASLEY and DICKINSON, JJ.
   EASLEY, Justice,

for the Court.

PROCEDURAL HISTORY

¶ 1. Margaret Lynn Owen (Margaret) and Kenneth Whiteside Owen (Kenneth) filed a joint complaint for divorce in the Chancery Court of Union County, Mississippi, on the grounds of irreconcilable differences. The parties submitted the property settlement issues to the chancellor. The Honorable John C. Ross, Jr., Chancellor, granted the divorce on irreconcilable differences and ordered the marital assets to be sold with Kenneth receiving 60% of the proceeds and Margaret 40%.

¶ 2. In reaching his decision in Owen v. Owen, 798 So.2d 394, 397 (Miss.2001) (Owen I), the chancellor noted the parties’ ages, present incomes, and that Kenneth had substantially contributed to Margaret obtaining her college degree. The chancellor also noted in Owen I that Margaret had worked only sporadically during the marriage. The chancellor stated that, after having reviewed the Ferguson factors, “as a matter of fact that Kenneth ... [had] been the primary financial contributor to the assets of the marriage and that he should receive a greater percentage of any distribution of the marital assets.” Id. (emphasis added).

¶ 3. In Owen I, the chancellor found that the couple’s two homes and six vehicles were marital property and ordered them sold. Id. Kenneth received 60% of the proceeds, and Margaret received 40%. The chancellor also determined that the couple’s investment account was marital property and awarded Margaret 40%. Both parties also received a specific list of personal property items which the chancellor found to be separate assets. According to Kenneth’s estimates, Margaret received $38,250 in separate personal property while Kenneth received $8,510. All personal property not specifically separated was deemed marital property and was ordered to be sold with Kenneth receiving 60% of the proceeds and Margaret 40%.

¶ 4. The chancellor, however, did not specifically address the applicable Ferguson factors. Margaret appealed the decision to this Court. In an opinion written by then Justice James W. Smith, Jr., this Court found that “the chancellor erred in failing to specifically address all applicable Ferguson factors.... ” Owen I, 798 So.2d at 396 (emphasis added). The Court reversed the chancellor’s judgment and remanded the case to the chancery court to provide a record of its findings of fact and conclusions of law concerning each of the applicable Ferguson factors. Id. at 401.

¶ 5. On remand, the chancellor informed the parties that he did not intend to occupy any further court time with this case and requested the parties to submit briefs on their arguments. In Judge Ross’s letter dated March 20, 2001, to the attorneys, he stated that he had received and reviewed the remand from this Court. In his letter, Judge Ross specifically stated, “I do want you to set forth in letter-brief any matter you believe needs to be considered in complying with the remand order.” (Emphasis added). Judge Ross requested that the parties comply by April 15, 2001, unless the parties informed him “this time schedule is [was] inconvenient. ...” The record in this case does not indicate that either party objected to Judge Ross’s request or time schedule. According to the record furnished to this Court on appeal, neither attorney made any request for a new hearing before Judge Ross issued his new opinion.

¶ 6. The chancellor subsequently issued a supplemental opinion and judgment. The supplemental opinion contained a six-page analysis of the applicable Ferguson factors. The chancellor determined that “after a full and extensive consideration ... [of] the factors applicable in Ferguson v. Ferguson, supra, ... that the division of property in the opinion and judgment of this Court dated March 12, 1999, shall remain unchanged.” That is, the 60/40 percentage of division and distribution of the marital property remained unchanged. On remand, the chancellor failed to address the statement the chancellor erroneously made in Owen I that Kenneth was entitled to receive a greater percentage, 60%, of any distribution of the marital assets than Margaret, 40%, based on his being the primary financial contributor.

¶ 7. At a subsequent hearing while the case was remanded, the chancellor heard Kenneth’s motion for contempt filed against Margaret. The chancery court did not find Margaret in contempt of court, but the chancellor ordered a $5,000 judgment for the items that were not delivered by Margaret to the public sale to offset Margaret’s 40% share of the marital property.

¶ 8. Margaret now appeals to this Court contending the chancellor did not comply with the opinion of this Court in Owen I on remand. Margaret also appeals the $5,000 judgment to offset the judgment owed by Kenneth to Margaret for her 40% of the marital property.

FACTS

¶ 9. In Oioen I, we stated the following pertinent facts:

Margaret and Kenneth married in 1987. The couple initially lived in Texas where Kenneth worked and Margaret attended college. While a full-time student, Margaret performed the household chores and held several part-time jobs, using her earnings to pay for school supplies, clothing, and groceries. Margaret’s tuition was paid by both Margaret’s father and Kenneth.
In 1992, the couple returned to New Albany, Mississippi. Margaret initially taught school and worked at a local clothing store. Later, Margaret started her own business as an artist. Margaret gave Kenneth all income she earned, and, in return, he wrote her checks for the amount transferred to him. In essence, Margaret kept whatever she earned, and these “transfers” were made apparently for tax purposes only. Meanwhile, Kenneth began working as an engineer for Master-Built.... Kenneth’s ESOP and 401(k) plan were valued in excess of $5,000 and $7,000, respectively, as of the date of divorce.
During the marriage, the couple purchased two homes. Margaret and Kenneth took title to the first home jointly, and both helped make extensive repairs on the home. The second home, in which Kenneth took sole title, was used as a rental house. Both parties participated in cleaning the second home and landscaping the yard, but Kenneth testified that he paid Margaret for the work she performed. All mortgage payments, taxes, and repair payments on both houses were made by Kenneth.
The couple also owned an investment account which contained a pre-divorce balance of $14,844....
At the time of divorce, Margaret earned $1,250 in net monthly income and spent $2,766 in monthly living expenses, while Kenneth earned $8,107 in net monthly income and spent $2,651 in monthly living expenses.

The couple filed for divorce in 1998. Owen I, 798 So.2d at 396-397.

DISCUSSION

¶ 10. This Court employs a limited- standard of review of property division and distribution in divorce cases. Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997). This Court has repeatedly stated that the chancellor’s division and distribution will be upheld if it is supported by substantial credible evidence. Carrow v. Carrow, 642 So.2d 901, 904 (Miss.1994); see Owen I, 798 So.2d at 397-98. The “chancery court has authority, where equity demands, to order a fair division of property accumulated through the joint contributions and efforts of the parties.” Savelle v. Savelle, 650 So.2d 476, 479 (Miss.1995) (citing Hemsley v. Hemsley, 639 So.2d 909, 914 (Miss.1994)). “This Court will not substitute its judgment for that of the chancellor ‘[e]ven if this Court disagreed] with the lower court on the finding of fact and might [arrive] at a different conclusion.’ ” Owen I, 798 So.2d at 397-98 (quoting Richardson v. Riley, 355 So.2d 667, 668 (Miss.1978).)

¶ 11. In Carrow, 642 So.2d at 904, citing Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990), this Court stated that the chancellor’s findings will be upheld unless those findings are clearly erroneous or an erroneous legal standard was applied. However, the Court will not hesitate to reverse if it finds the chancellor’s decision is manifestly wrong, or that the court applied an erroneous legal standard. See Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997); see also Carrow, 642 So.2d at 904; Bell, 563 So.2d at 596-97.

I. Ferguson Factors

¶ 12. Marital property includes “any and all property acquired or accumulated during the marriage.” Hemsley, 639 So.2d at 915. The parties’ property must be classified as a marital or non-marital asset in order for the chancellor to make an equitable division and distribution of the marital estate. Lauro v. Lauro, 847 So.2d 843, 847 (Miss.2003). In Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss. 1994), this Court stated, “[t]he chancellor may divide marital assets, real and personal, as well as award periodic and/or lump sum alimony, as equity demands.” “This division does not require an automatic fifty-fifty split or a vested right....” Savelle, 650 So.2d at 479.

. ¶ 13. The Court in Ferguson established the factors that should be considered in reaching a decision on the equitable distribution of marital property. Ferguson, 639 So.2d at 928. The Court recognized the need for guidelines to aid chancellors in their adjudication of marital property division. Id. The Court directed the chancery courts to evaluate the division of marital assets by the following guidelines, where applicable, to effect an equitable division of marital property and to support their decisions with findings of fact and conclusions of law for purposes of appellate review. Id. The Court stated that chancery courts should consider the following guidelines, where applicable, regarding determination of the equitable division of marital property:

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the 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 or otherwise.
3. The market value and the 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 property acquired by inheritance or inter vivos gift 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.

Id. at 928.

¶ 14. On remand, the chancellor devoted six pages of the supplemental opinion and judgment listing the Ferguson factors and findings of fact regarding the applicable factors. Because this case was remanded in Owen I for the chancellor to specifically address all applicable Ferguson factors, it is imperative that the Court examine the chancery court’s findings of fact as to each of the applicable factors. The chancellor stated:

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
Kenneth Whiteside Owen contributed substantially to the financial acquisition of assets during their marriage. Margaret Lynn Owen earned a much lesser amount per year, therefore could not contribute as much to the acquisition of assets.
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage;
The parties where married for 11 years, and during this time Margaret performed the household duties and held several part-time jobs while being a full-time student, and later owned her own business. Kenneth Whiteside Owen was employed continually throughout the marriage. Both contributed to the marital relationship as evidenced by time spent on activities renovating the marital home. The parties acquired two homes and both parties helped make extensive repairs on one home and cleaned/landscaped the rental property.
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
Kenneth Whiteside Owen contributed substantially to Margaret Lynn Owen obtaining a college education with a degree in art history and French.
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 or otherwise;
After the parties separated, Kenneth Whiteside Owen withdrew money from an investment account which contained a pre-divorce balance of $14,844. Margaret Lynn Owen cashed a check from an insurance settlement in the amount of $830.00.
These sums will be discussed below.
3. The market value and the emotional value of the assets subject to distribution;
The parties owned two homes and several vehicles. The only item that had an appraisal at the time of the hearing was the marital home. Several items of personal property were valued by the parties themselves. Many items of property were gifts from Margaret Lynn Owen’s grandmother.
Kenneth Whiteside Owen has retirement benefits in the form of an ESOP and a 401 (k) plan with values of $5,368.00 and $6,910.00, respectively, as of the date of divorce.
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 property acquired by inheritance or inter vivos gift or to an individual spouse;
Margaret Lynn Owen was given several pieces of personal property that were not to be included as marital assets. These items are:
English walnut silverware chest
Cherry table and chairs
2 Walnut Cellerettes
Walnut beveled glass mirror
Oak letter box
2 Highback oak chairs
Walnut wardrobe
Marble top walnut table
Mahogany tea box
3 Cork display stands
Hardwood easel
Mahogany chest of drawers
Walnut clothes rack
Walnut night stand
Walnut 4 poster bed with canopy
Mahogany chest of drawers with removable top
Mahogany sleigh bed
Oak drop leaf table
12 piece setter of Buttercup Sterling with serving pieces
Margaret’s personal jewelry
Paint brushes, paint, art supplies
Miscellaneous boxes, wooden, marble
Miscellaneous pictures/painting/prints — approximately 35 pieces
Glassware, vases, pottery

Likewise, Kenneth Whiteside Owen was given certain items of personal property that he acquired before the marriage or were his personal effects. These are as listed below:

Kitchen pub chairs
Walnut bookcase with glass doors
Ottoman
Benchcraft sofa and chair
Willow sofa ad chair with cushions
Two (2) white bookcases
Two (2) two drawer filing cabinets
Stereo, CD player
CD’s — approximately 200
VCR
8mm video camera
Kenny’s personal jewelry
Vacuum cleaner
Lawn mower
Edger
Kenny’s tools
Air compressor, hoes, etc.
Welder
Two (2) AR — 15 rifles
Two (2) Browning pistols
Ruger Pistol
Tec-22 pistol
Walther PPK pistol
Reloading equipment, press, dies, components
Oaks Country Club Membership
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
There are no contractual or legal consequences to third parties in the distribution of the marital assets to the parties. No proof was offered as to any potential tax consequence problems for either party.
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;
To avoid potential sources of future friction between the parties, this Court ordered that the marital home, rental property and vehicles be sold and their proceeds divided 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
At the time of the divorce, Kenneth Whiteside Owen had stable employment as an engineering manager at Master-Built Products, New Albany, Mississippi with a net monthly income of $3,107.00; Margaret Lynn Owen owned a business, earning approximately $1,250.00 per month.
Margaret Lynn Owen has a college degree and income potential much greater than her current source of income. She will receive a substantial sum of money when the marital property is sold and the proceeds divided.
8.Any other factor which in equity should be considered.
[N]one.

¶ 15. The chancellor then addressed how the marital property and the proceeds from the public auction should be divided:

With respect to the motor vehicles, the Court finds the proof that the 1998 Mazda pickup truck had a negative value due to the indebtedness due thereon. Kenneth Whiteside Owen is hereby given use, possession and ownership of this automobile and will be required to make all of the payments due thereon.
With respect to the other vehicles, including the motorcycle, the Court has previously required that these items of personal property be sold, with Kenneth Whiteside Owen receiving sixty percent (60%) of the net proceeds and Margaret Lynn Owen receiving forty percent (40%) of the net proceeds.
Likewise, any and all other items of personal property, including furniture, were sold at public auction and the proceeds divided, with Kenneth [sic] White-side Owen receiving sixty percent (60%) of the net proceeds and Margaret Lynn Owen receiving forty percent (40%) of the net proceeds.
The parties received a check in the amount of $830.00 as an insurance settlement. This check was cashed by Margaret Lynn Owen. Kenneth White-side Owen is entitled to one-half of this check or $415.00.
At the time of the separation, Kenneth Whiteside Owen had in his name an investment account with a balance of $14,844.00. Margaret Lynn Owen should be and is hereby entitled to forty percent (40%) of this or $5,937.60.
The Court finds that Margaret Lynn Owen should be and is hereby awarded 40% of the total amount of both Kenneth Whiteside Owen’s 401(k) plan, of $6,910.00, and ESOP, of $5,368.00, which is $2,764.00 and $2,147.20 respectively, or $4,911.20.

¶ 16. That the chancellor did not order a 50/50 division of the marital property does not require this Court to reverse. See Chamblee v. Chamblee, 637 So.2d 850, 864 (Miss.1994) (“Mississippi is not a community property state.... ”). “Divorcing parties also have no right to equal distribution even where the parties jointly accumulated the property.” Owen I, 798 So.2d at 399 (emphasis added). “[E]quitable distribution of marital property begins with the assumption that the contribution of the spouses is equal, whether that contribution is made in the workforce or at home.” Craft v. Craft, 825 So.2d 605, 614 (Miss.2002). Starting from the assumption that the contributions are equal, “the chancellor can adjust the award in the favor of one of the spouses, after making findings of fact and conclusions of law, if the application of the Ferguson factors so warrants doing so.” Id. While spouses have no right to ‘equal’ distribution, spouses are not prohibited from receiving a portion of marital assets acquired solely by the other spouse’s financial contributions where the non-cash contributing spouse has made alternative contributions to the marriage. See Hemsley, 639 So.2d at 915.

¶ 17. This Court has declined to interpret “equitable” distribution to mean “equal” distribution. Trovato v. Trovato, 649 So.2d 815, 818 (Miss.1995); see also Chamblee, 637 So.2d at 863-64. There exists no right to “equal” distribution of the marital property. See Pierce v. Pierce, 648 So.2d 523, 526 (Miss.1994).

¶ 18. This Court in Owen I, reversed the chancellor for his deficiency in applying the applicable Ferguson factors and ordered the chancellor to consider the applicable factors in his new analysis of the division of the marital assets. The chancellor requested that the parties submit briefs on remand to set forth any matter which needed to be considered in complying with the remand order of this Court. The chancellor provided a statement of the Ferguson factors and factual findings as to the applicable factors on remand. However, the 60/40 division of the marital property remained unchanged.

¶ 19. In Owen I, we found that “the chancellor committed reversible error in basing the division of marital assets upon one factor financial contributions [Kenneth’s economic contributions to the marriage] to the accumulation of marital property rather than upon all eight Ferguson factors.” Owen I, 798 So.2d at 398.

¶ 20. The chancellor stated that Margaret earned a much lesser amount per year, therefore, she could not financially contribute as much to the acquisition of assets as Kenneth. The chancellor found that the parties where married for eleven years, and during this time, Margaret performed the household duties and held several part-time jobs while being a full-time student. Margaret obtained a college degree during the marriage that Kenneth helped to financially support her to secure. Margaret later owned her own business. Kenneth was employed continually throughout the marriage. Kenneth earned $3,107 per month from Ms employment as an engineering manager. Margaret earned $1,250 per month from operating her own business. The chancellor found that Margaret’s college degree provided her income potential much greater than her current source of income.

¶ 21. The chancellor stated that both contributed to the marital relationship as evidenced by time spent on activities renovating the marital home. The parties acquired two homes, one being rental property. The chancellor found that both parties helped make repairs on one home and cleaned/landscaped the rental property. While the non-financial contributions were stated by the chancellor in the Ferguson analysis, the record does not reflect the chancellor assigned any specific value to Margaret’s or Kenneth’s non-financial contributions. Likewise, the chancellor does not provide any stated conclusion of law to explain maintaining the 60/40 division on remand.

¶ 22. On remand, the chancellor properly separated the marital property from the non-marital property. The chancellor stated Kenneth’s financial contribution and earning capacity. The chancellor stated Margaret’s earning capacity. The chancellor also stated Margaret’s and Kenneth’s non-financial contribution to the accumulation of the marital assets, such as housework and repairs, without assigning any monetary value to the non-financial contributions. Besides the 60/40 division of the several automobiles and the two homes, other major marital assets which were specifically addressed and divided on a 60/40 basis by the chancellor in the supplemental opinion were: (1) the parties’s investment account in Kenneth’s name with a balance of $14,844.00 and (2) Kenneth’s retirement accounts: a 401(k) plan, of $6,910.00, and a ESOP, of $5,368.00.

¶ 23. In Owen I, this Court found the chancellor improperly focused on Kenneth’s financial contributions rather- than focusing on all the applicable Ferguson factors. Besides stating the Ferguson factors and a factual finding as to each factor as stated above, the chancellor does not state how he arrived at the 60/40 division of the marital property. The facts stated under the Ferguson factors were substantially the same facts, that this Court had before it in Owen I which the Court specifically found improperly focused on Kenneth’s financial contribution. Owen I, 798 So.2d at 396-97. The facts from Owen I are restated in this opinion in the facts section for comparison and review. The chancellor’s judgment regarding the division and distribution of the marital property remained unchanged on remand. The fact that the division remains unchanged on remand and the chancellor failed to provide a conclusion of law to support the 60/40 division on remand is. particularly troubling. In Owen I, the same chancellor stated substantially the same findings of fact as stated under the applicable Ferguson factors and then concluded that Kenneth was entitled to a greater percentage of the marital assets, 60%, than Margaret, 40%, because Kenneth was the primary financial contributor to the accumulation of the assets.

¶ 24. The record reflects that on remand the chancellor still focused primarily on Kenneth’s financial contribution in dividing the marital property with Kenneth receiving 60% of the marital property and Margaret receiving 40% as this Court found in Owen I. See Owen I, 798 So.2d at 398-99. Margaret’s monthly income, $1,250, is approximately 40% of Kenneth’s monthly income, $3,107. In Owen /, this Court held, “the chancellor’s division of property did improperly focus only on Kenneth’s economic contributions to the marriage.” Id.

¶25. Besides just stating findings of fact for each applicable factor, the chancellor failed to provide any conclusion of law for our review on appeal. In Ferguson, this Court held that chancellors are required to consider the applicable factors and “support their decisions with findings of fact and conclusions of law for appellate review.” Ferguson, 639 So.2d at 928.

¶ 26. As such, we find the chancellor addressed each of the Ferguson factors on remand in rendering his decision as to the division and distribution of the marital property as instructed by this Court in Owen I. However, despite the Ferguson factors being listed and the findings of fact stated as to the applicable factors, we find the chancellor failed to provide any conclusion of law on remand for our appellate review to explain leaving the 60/40 division from Owen I unchanged. Therefore, the judgment of the chancellor is reversed and the case remanded to the chancery court to provide an equitable distribution consistent with this opinion.

II. Motion for Contempt

¶ 27. Subsequent to the divorce and original distribution of assets, Kenneth filed a motion for contempt alleging that Margaret had failed to deliver certain items for sale at the public auction and that she had damaged the 1966 Jaguar XKE while it was in her possession. A hearing was held on Kenneth’s motion for contempt, and the chancellor rendered his findings in the supplemental opinion and judgment after addressing the Ferguson factors discussed in Issue I. Margaret was not found to be in contempt, but Kenneth received a judgement in the amount of $5,000 to offset the items that Margaret failed to produce for public sale. Because the judgment also appears to be incomplete as to how the chancellor arrived at the amount of $5,000, we reverse the chancellor’s judgment and remand the case for the chancellor to provide a more detailed analysis consistent with this opinion.

1981 Mercedes 300TD

¶ 28. The chancellor found that Margaret sold the Mercedes and failed to give Kenneth his share of the proceeds. The Mercedes sold for $800. The chancellor stated that Margaret failed to pay Kenneth $800 from the proceeds of the Mercedes ordered to be sold. It appears that the chancellor used this $800 figure in arriving at the judgment in the amount of $5,000 to Kenneth to be used to offset the amount owed to Margaret. As such, the chancellor erred in the determination of the value assigned. Margaret was entitled to receive 40% of the proceeds of the sale. Therefore, Kenneth was entitled to receive 60%, or $480, not 100% of the $800. We find this should be remanded for the chancellor to readdress the Mercedes in order to examine how the chancery court arrived at the judgment in the amount of $5,000.

Camera Equipment

¶ 29. The chancellor found that Margaret failed to deliver “certain camera equipment for the public sale.” The chancellor assigned a value of $830 to the equipment. It appears the chancellor factored this value into the assessment of the $5,000 judgment. The chancellor’s opinion does not specifically state what camera equipment was considered. The chancellor’s prior order of what items were authorized to be produced and sold at the public auction provided that Margaret would produce 35 mm cameras and lens valued at $125 and a Minolta 35 mm valued at $350. Margaret contends that two cameras were sold, one being a Nikon camera and another camera. Margaret also contends that the Minolta camera had been lost prior to the divorce, and therefore, it was impossible for her to produce. Regardless, Margaret argues that the Minolta camera was assigned a value of $350, not $830. On remand, the chancellor shall readdress the camera equipment in order to examine how the chancery court arrived at the judgment in the amount of $5,000.

1966 Jaguar XKE

¶ 30. In the chancellor’s supplemental opinion and judgment, the chancellor found that the Jaguar had been damaged while in Margaret’s possession. Margaret contends that the chancellor erred in finding that she had damaged the Jaguar while it was in her possession, Margaret testified she had no knowledge, of any damage; did not damage the Jaguar; and could not see any damages in the photographs she reviewed at trial.

¶ 31. Kenneth testified that the photographs depicted the condition of the Jaguar after he received it from Margaret. Kenneth testified and submitted an estimate for repairs that totaled $3,173.24. The estimate from Parks Chevrolet Company, Inc., was introduced as exhibit 16. The Jaguar was in Margaret’s possession until the sale. Kenneth purchased the Jaguar at the sale.

¶ 32. Margaret contends the chancellor erroneously factored this into his decision to award Kenneth $5,000 to offset his obligation to her. However, the chancellor’s supplemental opinion and judgment does not specifically assess any value to the damage to the Jaguar. The chancellor’s supplemental opinion and judgment also does not state that Margaret did not deliver the Jaguar for the public sale. The supplemental opinion only provided that the Jaguar “had been damaged while in her [Margaret’s] possession.” However, the chancellor’s supplemental opinion stated that Margaret was responsible for “a judgment of the amount of $5,000.00 to ojfset the items Margaret Lynn Owen failed to deliver for the public sale.” (Emphasis added). Without a detailed analysis of how the chancellor computed the $5,000 amount and based on the language provided in the chancellor’s supplemental opinion, this Court is unable to adequately address this issue. Therefore, the chancellor shall on remand address how, or if, the Jaguar factored into the judgment in the amount of $5,000 to offset for items that Margaret failed to produced for the public sale.

¶ 33. Margaret also, argues that the chancellor erroneously allowed Kenneth to introduce the estimate from Parks Chevrolet without an expert. However, Margaret provides no authority to support her position. Failure to cite any authority is a procedural bar, and this Court is under no obligation to consider the assignment of error. Williams v. State, 708 So.2d 1358, 1360 (Miss.1998). Mississippi Rule of Appellate Procedure 28(a)(l)(6) requires that the argument in an appellant’s brief must contain “the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied upon.” See United Plumbing & Heating Co. v. Mosley, 835 So.2d 88, 92 (Miss.App.2002). Therefore, due to Margaret’s complete failure to cite authority in her brief, the Court does not have to address her assignment of error regarding the introduction of the estimate.

¶ 34. However, this assignment of error will be briefly addressed in order to provide guidance to the chancellor on remand. It is a well-settled and pronounced legal principle that when cost of repairs are relied upon as a measure of damages it is necessary to establish that (1) the repairs were necessary as a result of the wrongful act, and (2) the cost of repairs were necessary or reasonable. Bryan Bros. Packing Co. v. Grubbs, 251 Miss. 52, 168 So.2d 289, 293 (1964) (citing National Fire Ins. Co. of Hartford v. Slayden, 227 Miss. 285, 85 So.2d 916 (1956)); see Sims v. Collins, 762 So.2d 785, 790 (Miss.App.2000). In Bryan, this Court held that it was error for the trial court to admit the testimony of a non-expert as to the amount of damages done to the vehicle as a result of the accident over the defendant’s objection. Bryan, 168 So.2d at 293. Here, Kenneth testified to the cost of repairs, and the repair estimate was introduced through him. Margaret’s counsel objected to the introduction of the repair estimate. The chancellor overruled the objection and allowed the estimate to be introduced. We find the chancellor erred in allowing the estimate to be introduced without an expert.

¶ 35. Furthermore, Margaret contends, based on her testimony, that the chancellor could not have determined that the Jaguar had been damaged while in her possession. Margaret testified that to her knowledge there was no damage done to the Jaguar. She also testified that she could not see any damage in the photographs. As such, Margaret argues that there was no evidence that the damages occurred while in her possession. Kenneth correctly argues that the chancellor was well within his discretion as the trier of facts to believe his testimony over Margaret’s testimony. This Court has repeatedly held that the chancellor’s findings of fact are required to be respected if supported by credible evidence and not manifestly wrong. See Bryan, 589 So.2d at 659; In re Taylor, 609 So.2d at 393. Likewise, it is a well-established proposition that “[i]t was the chancellor’s duty to evaluate the credibility of the witnesses.” Simmons v. Jaggers, 914 So.2d 693, 697 (Miss.2005); see In re Estate of Carter, 912 So.2d 138, 143 (Miss.2005) (“Our standard of review is indeed deferential, as we recognize that a chancellor, being the only one to hear the testimony of witnesses and observe their demeanor, is in the best position to judge their credibility.”).

¶ 36. However, for the reasons stated herein, the case is remanded to the chancery court in order to provide a detailed analysis, consistent with this opinion, of what, if any, role the Jaguar played in the determination of the $5,000 judgment.

CONCLUSION

¶ 37. We find the chancellor applied the Ferguson factors on remand in rendering his decision as to the division and distribution of the marital property as instructed by this Court in Owen I. However, despite the Ferguson factors being listed and the findings of fact stated as to the applicable factors, the chancellor failed to provide any conclusions of law on remand for our appellate review to explain leaving.the 60/40 division from Owen I unchanged.

¶ 38. In Owen I, the chancellor did provide a conclusion of law as to the 60/40 division finding that because Kenneth was the primary financial contributor to the accumulation of the marital assets, Kenneth was entitled to. receive a greater percentage of the marital assets than Margaret. Likewise, Margaret’s monthly earning of $1,250 is 40% of Kenneth’s monthly income of $3,107. As stated in Owen I, this Court held that the chancellor’s conclusion of law improperly focused on Kenneth’s financial contribution in distributing the marital assets.

¶ 39. Based on the chancellor’s failure on remand to illustrate, analyze or provide a conclusion of law to explain how each of the applicable Ferguson factors and findings of fact affected his consideration of an equitable division and distribution of the marital property, we reverse the judgment of the Chancery Court of Union County, Mississippi, and remand the case to the Chancery Court. On remand, the chancellor shall provide an application of the Ferguson factors, findings of fact, and a conclusion of law to explain how he arrived at his determination of what constitutes equitable division and distribution of the marital property, regardless of the percentages he assigns.

¶ 40. Likewise, we find the chancellor did not provide a detailed analysis in his supplemental opinion and judgment in order to explain how the chancellor arrived at the judgment in the amount of $5,000 imposed against Margaret to offset for the items that she failed to produce for sale. As such, the case is also reversed and remanded to the Chancery Court of Union County, Mississippi, regarding the $5,000 judgment imposed against Margaret in order for the chancellor to readdress this issue consistent with this opinion. ■

¶ 41. REVERSED AND REMANDED.

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

      . Margaret's brief additionally discusses a filing cabinet; the keys, books, manuals spare parts and photo album of restoration of the Jaguar; Kenneth's tools; and Kenneth’s compact discs (CDs). Kenneth's brief does not contain any discussion of these items. It appears from reviewing the order authorizing public auction and its exhibit "A” that Margaret correctly notes that these items were not ordered to be produced for sale at the auction. However, these items were ordered to be Kenneth's separate personal property. In the chancellor's opinion discussing Margaret’s failure to produce these items, it is not clear from the record that these items factored into the chancellor's judgment against Margaret in the amount of $5,000. In fact, the chancellor specifically states that the judgment was for the items that were not produced for public sale, not items that were not produced to Kenneth. Therefore, we find the chancellor on remand shall clarify the judgment as to these specific items.

      . In Margaret's motion to correct order, she informed the chancery court that the Minolta camera had been lost on Mount Conti prior to the divorce. However, a review of the clerk's index of the record provided and the subsequent order to confirm sale, it does not appear the chancellor specifically addressed the motion to correct as to the Minolta camera.


text:
    Joseph A. PROLI, M.D. v. Melinda HATHORN and Janice Davis, Individually and on Behalf of the Wrongful Death Beneficiaries of Tressie D. Bedwell, Deceased.
    No. 2005-IA-00286-SCT.
    Supreme Court of Mississippi.
    April 27, 2006.

      Romney Hastings Entrekin, Laurel, Ryan Jeffrey Mitchell, attorneys for appellant.
    Rosalind Hayden Jordan, attorney for appellees.
   EASLEY, Justice,

for the Court.

PROCEDURAL HISTORY

¶ 1. This interlocutory appeal concerns when proper service is complete for the medical malpractice notice requirement pursuant to Miss.Code Ann. § 15-1-36(15) (Rev.2003). Melinda Hathorn and Janice Davis (collectively known as “Hathorn”) filed a medical malpractice case in the Circuit Court of the Second Judicial District of Jones County, Mississippi, against Dr. Joseph A. Proli, individually and on behalf of the wrongful death beneficiaries of Tressie D. Bedwell, deceased.

¶ 2. Hathorn alleged that Bedwell suffered a minor stroke on May 1, 2002, and was admitted to South Central Regional Medical Center. On May 2, 2002, Dr. Proli performed a transesophageal electrocardiogram on Bedwell. Thereafter, Bed-well was transferred to Forrest General Hospital for additional surgery on her esophagus. On May 18, 2002, Bedwell died.

¶ 3. Hathorn admitted in her brief that the statute of limitations began to run on May 18, 2002, the date of Bedwell’s death, and it was set to expire on May 18, 2004. On April 22, 2004, Hathorn mailed a certified letter to Dr. Proli informing him that counsel was retained to investigate Bed-well’s alleged wrongful death. Dr. Proli received the notice on April 30, 2004. After the initial notice, Hathorn filed a complaint on June 24, 2004. The complaint alleged that Dr. Proli perforated Bedwell’s esophagus during the May 2nd procedure which proximately caused or contributed to her death. Dr. Proli filed an answer to the complaint asserting the statute of limitations pursuant to Miss.Code Ann. § 15-1-36(15) as a defense.

¶ 4. Dr. Proli filed a motion to dismiss. He argued that (1) Hathorn’s complaint failed to comply with the applicable two-year statute of limitations and the 60 day extension period pursuant to Miss.Code Ann. §§ 15-1-36(2) and 15-1-36(15), and (2) pursuant to M.R.C.P. 5 service by mail is complete upon mailing, which occurred on April 22, 2004. The trial court conducted a hearing and later issued an order denying Dr. Proli’s motion to dismiss. The trial court found the action was not time-barred by the statute of limitations because Dr. Proli received the notice via certified mail on April 30, 2004. Following this ruling, the trial court granted Dr. Proli’s motion for certification for interlocutory appeal and stay of proceedings. This Court granted Dr. Proli’s petition for interlocutory appeal. On appeal, the issue raised is:

Whether the sixty day notice requirement of Miss.Code Ann. § 15-1-36(15) is governed by M.R.C.P. 5 thereby making service of the notice complete upon mailing.

DISCUSSION

A. Completion of Notice.

¶ 5. Prior to filing suit, written notice is required for legal actions against health care providers for alleged negligence. Miss.Code Ann. § 15-1-36. The statute provides, in part, for a two-year statute of limitations from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered. Miss.Code Ann. § 15-1-36(2) provides:

(2) For any claim accruing on or after July 1, 1998, and except as otherwise provided in this section, no claim in tort may be brought against a licensed physician, osteopath, dentist, hospital, institution for the aged or infirm, nurse, pharmacist, podiatrist, optometrist or chiropractor for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered, and, except as described in paragraphs (a) and (b) of this subsection, in no event more than seven (7) years after the alleged act, omission or neglect occurred....

Miss.Code Ann. § 15-1-36(2) (emphasis added). This notice statute also has a provision that extends the time for the commencement of the action for 60 days from the date of service of the notice if the notice is served within 60 days prior to the expiration date of the applicable statute of limitations. Miss.Code Ann. § 15-1-36(15) provides:

(15) No action based upon the health care provider’s professional negligence may be begun unless the defendant has been given at least sixty (60) days’ prior written notice of the intention to begin the action. No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered. If the notice is served within sixty (60) days prior to the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended sixty (60) days from the service of the notice for said health care providers and others. This subsection shall not be applicable with respect to any defendant whose name is unknown to the plaintiff at the time of filing the complaint and who is identified therein by a fictitious name.

Miss.Code Ann. § 15-1-36(15) (emphasis added).

¶ 6. The trial court determined that the notice was served upon Dr. Proli when he received, the certified mail notice on April 30, 2004, pursuant to M.R.C.P. 4(c)(5). The trial court held:

According to MRCP 4(c)(5) certified mail “shall be deemed complete as of the date of delivery as evidenced by the return receipt.... ” See MRCP 4. This Court finds that MRCP 5(b) is applicable for regular United States first-class mail postage prepaid, not for certified mail. See MRCP 5. This Court finds no reason why the date of delivery for a notice letter sent certified mail would be different from the date of delivery of a summons sent by certified mail.
The Court finds that the notice letter was sent certified mail return receipt requested, and that the Defendant received the letter on April 30, 2004, as evidenced upon the return receipt. Thus, the Plaintiffs Complaint is not time-barred.

¶ 7. Dr. Proli argues that the trial court erred by denying his motion to dismiss. The trial court determined that (1) service of the notice was complete when Dr. Proli received the notice letter on April 30, 2004, pursuant to M.R.C.P. 4(c)(5), and (2) based upon the date of service of the notice, Hathorn’s suit was not time-barred. Dr. Proli argues that service of the notice was complete on the date it was mailed, April 22, 2004, pursuant to M.R.C.P. 5. Dr. Proli also relies upon Brocato v. Mississippi Publishers Corp., 503 So.2d 241, 243 (Miss.1987), which will be discussed in further detail below. Based upon the April 22, 2004, date of completion of the service of the notice, Dr. Proli asserts that Hathorn failed to timely file her complaint pursuant to the statute of limitations. See Miss. Code Ann. § 15-1-36.

¶ 8. In order to determine whether Hat-horn’s suit is barred by the statute of limitations, this Court first must determine whether M.R.C.P. 4(c)(5) or M.R.C.P. 5 is controlling for the service of the notice required by Miss.Code Ann. § 15-1-36.

¶ 9. M.R.C.P. 4(c)(5) concerns service of a summons and complaint by certified mail on a person outside the State and provides:

In addition to service by any other method provided by this rule, a summons may be served on a person outside this state by sending a copy of the summons and of the complaint to the person to be served by certified mail, return receipt requested. Where the defendant is a natural person, the envelope containing the summons and complaint shall be marked “restricted delivery.” Service by this method shall be deemed complete as of the date of delivery as evidenced by the return receipt or by the returned envelope marked “Refused.”

M.R.C.P. 4(c)(5) (emphasis added). M.R.C.P. 5 concerns service and filing of pleadings and other papers and provides:

(a) Except as otherwise provided in these rules, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal and similar paper shall be served upon each of the parties.... (b) Service by mail is complete upon mailing.

M.R.C.P. 5 (emphasis added).

¶ 10. This Court addressed a statute with a notice requirement in Brocato. In Brocato, a libel action, this Court analyzed Miss Code Ann. § 15-1-35, which requires a libel action to be filed within one year after the cause of action accrues, and Miss. Code Ann. § 95-1-5, which requires a plaintiff to give ten days notice to the defendant before a libel action is brought. This Court, in Brocato, 503 So.2d at 243, held:

Because of the peculiar factual situation involved in this case, it is essential for the Court to determine what action constitutes the serving of notice under § 95-1-5, which is silent regarding how notice is to be served. Rule 5 of the Mississippi Rules of Civil Procedure is generally utilized after a suit has been filed. The official comments to Rule 5 state in part, “This rule presupposes that the court has already gained jurisdiction over the parties.” However, this Court finds the mechanics of Rule 5 may also be used in a situation such as the one at bar in which notice is required as a preliminary step to filing a lawsuit. Therefore, this Court holds that the notice requirements of § 95-1-5 should follow the Rule 5 outlines.

(Emphasis added).

¶ 11. This Court followed M.R.C.P. 5 in Brocato and held that the mechanics of M.R.C.P. 5 are controlling when notice is required as a preliminary step to filing a lawsuit. Brocato, 503 So.2d at 243. While the statute under consideration here is different than in Brocato, this Court’s holding is applicable to the notice requirement of Miss.Code Ann. § 15-1-36. Even though Brocato concerns a libel action it is analogous to this case because the applicable statute has a requirement to provide notice prior to filing suit. Likewise, in this case, Miss.Code Ann. § 15-1-36. concerns notice to health care providers prior to filing suit. Further, M.R.C.P. 4(c)(5) is distinguishable from M.R.C.P. 5 because it concerns issuing a summons and complaint on a person outside the state of Mississippi, which is not the fact situation here. Dr. Proli is not outside the State of Mississippi.

¶ 12. This Court finds that like Brocato, M.R.C.P. 5 is controlling in this case. Therefore, notice was complete on the date Hathorn mailed the letter to Dr. Proli. Hathorn mailed the notice to Dr. Proli on April 22, 2004. Therefore, the trial court erred in concluding otherwise.

B. Statute of Limitations

¶ 13. Hathorn admits that the statute of limitations began to run on the date of Bedwell’s death, May 18, 2002. Therefore, there is no dispute in the record as to when the two-year statute of limitations began to run. Dr. Proli argues that the suit, therefore, had to be filed by May 18, 2004. However, the notice provision of Miss.Code Ann. § 15-1-36(15) provides that “if the notice is served within sixty (60) days prior to the expiration of the applicable' statute of limitations, the time for the commencement of the action shall be extended sixty (60) days from the service of the notice for said health care providers and others.” (emphasis added). Dr. Proli argues that because Hathorn mailed the notice on April 22, 2004, the complaint had to be filed on or before June 21, 2004,'in order to comply with the two-year statute of limitations , set forth in Miss.Code Ann. §§ 15-1-36(2) and 15 — 1— 36(15).

¶ 14. Hathorn argues that counsel mailed the notice via certified mail; therefore, the received date of April 30, 2004, controls this case pursuant to M.R.C.P. 4(c)(5). She asserts that with the 60 day extension period the complaint had to be filed on or before June 28, 2004. Hathorn asserts that she filed the complaint on June 24, 2004, which was within the statute of limitations period. Miss.Code Ann. §§ 15-1-36(2) and 15-1-36(15). Neither Dr. Proli nor Hathorn are correct in their calculations.

¶ 15. This Court recently decided Pope v. Brock, 912 So.2d 935 (Miss.2005), which concerns the application of Miss.Code Ann. § 15-1-36(15). Both Dr. Proli and Hat-horn filed their briefs in support of this appeal prior to this Court’s decision in Pope. Therefore, neither party, nor the trial court, had the benefit of the Pope decision during the hearing on the motion to dismiss or at the time of their initial filings to this Court.

¶ 16. Pope, an administratrix of the estate of Nancy Springer, gave written notice on May 30, 2003, to a number of doctors and a medical center claiming professional negligence on behalf of Springer’s estate. Pope, 912 So.2d at 936. Springer died on June 2, 2001. Id. Pope refrained from filing suit for what she believed to be the proper notice period and then filed a wrongful death suit on July 30, 2003. Id. The trial court granted a motion to dismiss finding that Pope’s suit was barred by the statute of limitations. Id.

¶ 17. This Court was faced with determining how to interpret Miss.Code Ann. § 15-1-36 when notice is given within 60 days of the expiration of the two-year statute of limitations. As stated above, the statute provides that “[i]f the notice is served within sixty (60) days prior to the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended sixty (60) days from the service of the notice” to the medical providers. Miss.Code Ann. § 15-1-36(15). On the one hand, this Court found that the statute in Pope could be interpreted as providing a statute of limitations that ran 60 days from the date of service of the notice requirement. Pope, 912 So.2d at 936. On the other hand, the language “shall be extended” could be interpreted to mean a tolling of the statute of limitations for 60 days. Id. The latter interpretation practically applied allows for a two-year and sixty day statute of limitations.

¶ 18. In Pope, this Court considered both Miss.Code Ann. § 15-1-36 and Miss.Code Ann. § 15-1-57 in its analysis. Miss.Code Ann. § 15-1-57 states:

When any person shall be prohibited by law ... from commencing or prosecuting any action or remedy, the time during which such person shall be so prohibited ... shall not be computed as any part of the period of time limited by this chapter for the commencement of such action.

When considering both of these statutes, this Court held that the two-year statute of limitations in Miss.Code Ann. § 15-1-36 is tolled for sixty days. Pope, 912 So.2d at 939. This Court held:

Since Pope was prohibited by law from filing suit during the sixty-day notice period, this statute clearly and unambiguously prohibits use of any of the sixty-day notice period in computing the running of the statute of limitations. Since Pope originally had two years to file suit under Section 15-1-36(2), and since Pope was “prohibited by law” from filing suit for the sixty-day period, a literal application of the wording of the statute results in a statute of limitations period of two years and sixty days, which expired on August 1, 2003. We find no statute which explicitly renders Section 15-1-57 inapposite to this case, although a reasonable argument can be made that it is in conflict with Section 15-1-36(15).

Id. at 938. To clarify our decision in Pope, this Court holds that the time period is extended, not tolled, pursuant to the language of Miss.Code Ann. § 15-1-36(15). Pursuant to Pope, this Court’s interpretation of Miss.Code Ann. § 15-1-36(15) applied to this case requires us to affirm the trial court decision. However, this decision is based upon different grounds than those argued and ruled upon by the trial court.

¶ 19. This Court finds that M.R.C.P. 5 is controlling in this case, not M.R.C.P. 4(c)(5). Pursuant to M.R.C.P. 5, notice is served on the date that the notice is mailed. In this case, notice was mailed on April 22, 2004. Applying the reasoning of Pope to the facts of this case, when Hat-horn mailed her notice to Proli on April 22, 2004, she had 26 days until the 2 year statute of limitation expired on May 18, 2004. However, Hathorn had to send 60 days notice prior to commencing an action against any health care provider. Miss. Code Ann. § 15-1-36(15). On April 22, 2004, Hathorn began the 60 day waiting period as set forth in Miss.Code Ann. § 15-1-36(15).

¶ 20. Pursuant to Miss.Code Ann. § 15-1-57, when a person is prohibited from commencing an action, the time during which a person is prohibited “shall not be computed as any part of the period of time limited by this Chapter for the commencement of the action.” The notice period prohibited Hathorn from commencing her action for a 60 day period. The normal statute of limitations on a case of this nature is two years. Therefore, the 60 day notice period could not be computed as part of the two year statute of limitations. Here, the statute of limitations began to run on May 18, 2002. Normally, the statute of limitations would end on May 18, 2004. However, Miss.Code Ann. § 15 — 1— 36(15) required a 60 day notice period, but this 60 day period could not be computed as part of the two year statute of limitations. See Miss.Code Ann. § 15-1-57. When Hathorn mailed her service of notice on April 22, 2004, she had to wait until June 21, 2004, and no later than July 17, 2004, to file her case. Hathorn filed her complaint on June 24, 2004, which was within the statute of limitations. Accordingly, the trial court decision is affirmed, but based upon different grounds.

CONCLUSION

¶ 21. This Court finds that M.R.C.P. 5 controls when the date of notice is complete. M.R.C.P. 5 considers service to be complete on the date of mailing. Notice was mailed to Dr. Proli on April 22, 2004. Miss.Code Ann. § 15-1-36(15) provides for a 60 day extension if service of the notice occurs within 60 days of the expiration of the two-year statute of limitations. This Court’s ruling in Pope is controlling. Under these restrictions, Hathorn had to file her complaint on or after June 21, 2004, and no later than July 17, 2004. She filed her complaint on June 24, 2004, which was well within the statute of limitations. Therefore, the trial court erred by finding that M.R.C.P. 4(c)(5) was controlling in this case. However, the trial court was correct in finding that Hathorn was not barred by the statute of limitations, but for reasons other than those determined by the trial court. This Court affirms the judgment of the Jones County Circuit Court denying Dr. Proli’s motion to dismiss and remands this case to the trial court for further proceedings consistent with this opinion.

¶ 22. AFFIRMED AND REMANDED.

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