author: GENOVESE, Judge. THIBODEAUX, Chief Judge, PETERS, J.,

text:
    BEUTLER ENGLAND CHIROPRACTIC CLINIC (Marie Kershaw) v. MERMENTAU RICE, INC., et al.
    No. 2005-942.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.

      Thomas A. Pilo, Cox, Cox, Filo, Camel & Wilson, L.L.P., Lake Charles, LA, for PlaintiffiAppellant, Beutler England Chiropractic Clinic.
    Janice B. Unland, Rabalais, Unland & Lorio, Covington, LA, for Defendants/Ap-pellees, Mermentau Rice, Inc. and Louisiana Commerce and Trade Association Self-Insurers’ Fund.
    Paul D. Gibson, Gibson-Gruenert, L.L.P., Lafayette, LA, for Defendant/Ap-pellee, MED-COMP, USA.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, JOHN D. SAUNDERS, OSWALD A. DECUIR, JIMMIE C. PETERS, MARC T. AMY, MICHAEL G. SULLIVAN, GLENN B. GREMILLION, ELIZABETH A. PICKETT, BILLY H. EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| ¶ This court has agreed to accept this case for hearing en banc for the purpose of determining whether the Office of Workers’ Compensation has subject matter jurisdiction to consider a claim filed by a healthcare provider against an employer and its insurer over a fee reduction pursuant to a preferred provider organization agreement. In this case, the workers’ compensation judge granted Defendants’ exceptions of lack of subject matter jurisdiction, and Plaintiff appealed. For the following reasons, we reverse and remand.

FACTS

Between May 8, 2002 and July 12, 2002, Marie Kershaw (Kershaw) was treated for a work-related injury at the Beutler England Chiropractic Clinic (Beutler Clinic), Plaintiff herein, while working for Mer-mentau Rice, Inc. (Mermentau Rice), Defendant herein. Mermentau Rice was insured by Defendant, Louisiana Commerce and Trade Association Self-Insurers’ Fund (LCTA), for the workers’ compensation claims of its employees. LCTA contracted with National Loss Control Management, Inc. (NLCM) to be its agent and third-party administrator for its workers’ compensation claims.

Prior to providing medical treatment to Kershaw, Beutler Clinic had entered into a preferred provider organization contract (PPO) with an entity named MED-COMP, USA (MED-COMP), which has been made a third-party defendant herein, whereby Beutler Clinic agreed to a reduction or discount in medical treatment charges for its workers’ compensation patients in exchange for its inclusion in the PPO network established by MED-COMP. MED-COMP had previously contracted with NLCM whereby MED-COMP agreed to reduce or discount the medical treatment charges of its network of PPOs in exchange for a fee.

|aNot having been paid in full for the services it rendered, Beutler Clinic, on February 17, 2003, filed a claim against Mermentau Rice and LCTA with the Office of Workers’ Compensation (OWC) to recover for underpayment of Kershaw’s workers’ compensation medical bills pursuant to La.R.S. 23:1203 and La.R.S. 23:1034.2, and for penalties and attorney fees pursuant to La.R.S. 23:1201(F)(4). Mermentau Rice and LCTA answered Beutler Clinic’s claim, asserting that they were entitled to the discount based on the contracts between the various parties.

On November 3, 2003, Kershaw agreed to a full and final lump sum settlement of her workers’ compensation claim and released Mermentau Rice, LCTA, and NLCM. After various unrelated legal proceedings, Mermentau Rice and LCTA filed separate exceptions of lack of subject matter jurisdiction with the OWC, which were granted by the workers’ compensation judge (WCJ) on May 25, 2005. Beutler Clinic then filed the present appeal.

ISSUES

The following issues are presented by Beutler Clinic for review:

1. Whether the Office of Workers’ Compensation possesses subject matter jurisdiction over the claim asserted by Beutler Clinic for underpaid workers’ compensation benefits.
2. Whether the Office of Workers’ Compensation possesses subject matter jurisdiction over the claim asserted by Beutler Clinic for penalties and attorney fees under the Louisiana Workers’ Compensation Act.
3. Whether Marie Kershaw’s prior settlement divested the Office of Workers’ Compensation of subject matter jurisdiction over this claim brought by Beutler Clinic.

LAW AND ARGUMENT

This case is one of many filed by various healthcare providers with the OWC, seeking to recover alleged underpayment of medical bills incurred as a result of treatment for work-related injuries. The initial issue to be decided is subject matter | .jurisdiction, i.e., which judge (WCJ or district judge) has the legal authority to hear this type of case. The ultimate issue to be decided is the validity of the PPO contract in light of the mandates of the Louisiana Workers’ Compensation Act. We conclude that the OWC does have subject matter jurisdiction over this contractual litigation.

Louisiana Constitution Article 5, § 16 provides, in pertinent part, as follows:

Section 16. (A) Original Jurisdiction. (1) Except as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker[s’] compensation matters, a district court shall have original jurisdiction of all civil and criminal matters. (2) It shall have exclusive original jurisdiction of felony cases and of cases involving title to immovable property, except as provided in (3) below; the right to office or other public position; civil or political right; probate and succession matters; except for administrative agency determination provided for in (1) above, the state, a political corporation, or political subdivisions, or a succession, as a defendant; and the appointment of receivers or liquidators for corporations or partnerships. (3) The legislature may provide by law that a family court has jurisdiction of cases involving title to movable and immovable property when those cases relate to the partition of community property and the settlement of claims arising from matrimonial regimes when such action arises as a result of divorce or annulment of marriage.

The above-cited constitutional provision grants original jurisdiction to district courts over all civil and criminal matters, except as otherwise provided in the constitution, and except as “provided by law for administrative agency determinations in worker [s’] compensation matters,” which is set forth in Louisiana Revised Statutes Title 23 (emphasis added). Therefore, Louisiana Revised Statutes Title 23 is a statutory exception to the general rule set forth in the Louisiana Constitution granting district courts original jurisdiction.

The OWC is a tribunal of limited jurisdiction. Louisiana Revised Statutes 23:1310.3(E), prior to its amendment effective August 15, 2005, set forth the jurisdictional limits as follows:

E. Except as otherwise provided by R.S. 23:1101(D) and 1378(E), the workers’ compensation judge shall be vested with original, exclusive jurisdiction over all claims or disputes arising out of this Chapter, including but not limited to workers’ compensation insurance coverage disputes, employer demands for recovery for overpayment of benefits, the determination and recognition of employer credits as provided for in this Chapter, and cross-claims between employers or workers’ compensation insurers for indemnification or contribution.

Our supreme court in Sampson v. Wendy’s Management, Inc., 593 So.2d 336, 339 (La.1992), has examined the question of subject matter jurisdiction of the OWC, stating:

The claims for which hearing officers are given original, exclusive jurisdiction under [La.R.S.] 23:1310.3 are claims for any compensation or benefits. The Worker[s’] Compensation Act only provides for the administrative agency determination of benefits and penalties directly associated with the employee’s work-related injury and his receipt of worker[s’] compensation benefits.

In Cajun Bag & Supply v. Baptiste, 94-1218 (La.App. 3 Cir. 3/1/95), 651 So.2d 943, the issue was whether or not the OWC had subject matter jurisdiction over an employer’s claim against its employee when the employer’s action was not a “claim[ ] for any compensation or benefits” as phrased by the supreme court in Sampson. In Cajun Bag & Supply, this court expressly stated that La.R.S. 23:1310.3 “requires that a claim actually ‘arise out’ of the Worker[s’] Compensation Act, rather than merely relate to worker[s’] compensation in general, for hearing officers to [exercise] original jurisdiction over it.” Id. at 948. Therefore, if the claim actually arises out of the act, the OWC has jurisdiction to decide the ease; if the cause of action merely relates to workers’ compensation in general, the district court has the jurisdiction to decide the case.

After a number of years of haggling over the issue of whether a matter arises out of the Workers’ Compensation Act or merely relates to workers’ compensation in general, which is determinative of whether the matter is to be tried before a district court judge or a WCJ, our legislature has specifically spoken.

I ¡¡This court notes the recent amendments to La.R.S. 23:1310.3. The Louisiana State Legislature passed 2005 La. Acts No. 257, § 1 which, among other things, amended La.R.S. 23:1310.3 for the purpose of “providing] for the jurisdiction of the workers’ compensation judges.” The present version of La.R.S. 23:1310.3(E), which became effective August 15, 2005, now provides as follows:

§ 1310.3 Initiation of claims; mediation; procedure
E. Except as otherwise provided by R.S. 23:1101(B) and 1378(E), the workers’ compensation judge shall be vested with original, exclusive jurisdiction over all claims or disputes arising out of this Chapter, including but not limited to workers’ compensation insurance coverage disputes, group self-insurance indemnity contract disputes, employer demands for recovery for overpayment of benefits, the determination and recognition of employer credits as provided for in the Chapter, and cross-claims between employers or workers’ compensation insurers or self-insurance group funds for indemnification or contribution, concursus proceedings pursuant to Louisiana Code of Civil Procedure Articles 4651 et. seq. concerning entitlement to workers’ compensation benefits, payment for medical treatment, or attorney fees arising out of an injury subject to this Chapter.

(Emphasis added.)

In the 2005 amendment to La.R.S. 23:1310.3(E), the legislature specifically granted to workers’ compensation judges original, exclusive jurisdiction over contractual disputes such as the one in the case at bar; however, said statute only became effective August 15, 2005. Beutler Clinic provided its chiropractic treatment to Kershaw in 2002, and the WCJ’s decision granting the exceptions of lack of subject matter jurisdiction was rendered May 25, 2005, all before the effective date of the 2005 amendment.

In order for the 2005 amendment to La.R.S. 23:1310.3(E) to be applicable, it must have retroactive effect. The Louisiana Supreme Court addressed the issue of retroactivity of legislative enactments in the case of Unwired Telecom Corp. v. Parish of Calcasieu, 03-732, pp. 14-15 (La.1/19/05), 903 So.2d 392, 403-04, stating:

| (¿Louisiana Civil Code Article 6] provides:
In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.
In a like manner, [La.R.S. 1:2] provides:
No section of the Revised Statutes is retroactive unless it is expressly so stated.
Although [La.R.S. 1:2] does not distinguish between substantive, procedural, and interpretive laws, Louisiana jurisprudence has consistently treated it and [La.Civ.Code art. 6] as co-extensive. Bourgeois v. A.P. Green Indus., Inc., 00-1528 (La.4/3/01), 783 So.2d 1251, 125[7], n[.]6.
In Cole v. Celotex Corp., 599 So.2d 1058 (La.1992), we interpreted these two provisions as requiring a two-fold inquiry:
First, we must ascertain whether in the enactment the legislature expressed its intent regarding retrospective or prospective application. If the legislature did so, our inquiry is at an end. If the legislature did not, we must classify the enactment as substantive, procedural, or interpretive.
Cole, 599 So.2d at 1063.

Since the 2005 amendment to La. R.S. 23:1310.3(E) is silent regarding retrospective or prospective application, it must first be classified either as substantive, procedural, or interpretive. Substantive laws create, confer, define, destroy, or otherwise regulate rights, liabilities, causes of action, or legal duties. Spera v. Lyndon Prop. Ins. Co., 00-1373 (La.App. 3 Cir. 3/7/01), 788 So.2d 56, writ denied, 01-874 (La.6/1/01), 793 So.2d 193. “Substantive laws establish new rules, rights, and duties or change existing ones.” Segura v. Frank, 93-1271, 93-1401, p. 12 (La.1/14/94), 630 So.2d 714, 723, cert. denied, 511 U.S. 1142, 114 S.Ct. 2165, 128 L.Ed.2d 887 (1994). “Procedural laws prescribe a method for enforcing a substantive right and relate to the form of the proceeding or the operation of the laws. Interpretive laws l7merely establish the meaning the interpreted statute had from the time of its enactment.” Id. (citations omitted); Willis v. Gray Sales & Serv., Inc., 96-748 (La.App. 3 Cir. 1/22/97), 689 So.2d 522, writ denied, 97-491 (La.4/18/97), 692 So.2d 450.

The issue of retroactivity, vel non, of La.R.S. 23:1310.3(E) was previously addressed by our colleagues in the fourth circuit in the case of U.S. Fidelity & Guaranty Co. v. CIGNA Property & Casualty Co., 99-1851 (La.App. 4 Cir. 1/5/00), 751 So.2d 983, writ denied, 00-314 (La.3/24/00), 758 So.2d 159.

In that case, 1997 La. Acts No. 94, § 1 which likewise amended La.R.S. 23:1310.3(E), was held to be retroactive. The fourth circuit held that the 1997 amendment to La.R.S. 23:1310.3(E) did not change the law and that, under an application of either version of the statute, the result would still be the same.

The same holds true in the case at bar. The 2005 amendment to La.R.S. 23:1310.3(E) does not change the law or affect the legal rights or remedies of the parties to seek redress of their respective grievances, and the result would be the same. It simply directs the litigants to the designated forum for resolution of their legal dispute. By enactment of this legislation, the legislature has determined that the OWC shall have original jurisdiction over insurance contractual disputes and their derivative cross-claims arising out of the Louisiana Workers’ Compensation Act. The 2005 amendment is procedural because it prescribes a method for enforcing a substantive right. It does not create, confer, define, destroy, or otherwise regulate rights, liabilities, causes of action, or legal duties, nor does it establish new rules, rights, and duties or change existing ones. It merely designates the forum, i.e., the OWC as opposed to the district court, where this contractual dispute is to be resolved. The legal rights and remedies of the parties remain intact.

| ^Generally, “an appellate court is bound to adjudge a case before it in accordance with the law existing at the time of its decision.” Segura, 630 So.2d at 725. However, “[wjhere the law has changed during the pendency of the suit and retroactive application of the new law is permissible, [as in this case,] the new law applies on appeal even though it requires [a] reversal of a trial court judgment which was correct under the law in effect at the time it was rendered.” Id.; Jacobs v. City of Bunkie, 98-2510 (La.5/18/99), 737 So.2d 14; King v. Phelps Dunbar, L.L.P., 98-1805 (La.6/4/99), 743 So.2d 181.

Therefore, we find that 2005 La. Acts No. 257, which amends La.R.S. 23:1310.3, is procedural and thereby retroactive and that it confers original, exclusive jurisdiction upon the OWC to adjudicate the contractual dispute herein pertaining to the claim asserted by the Beutler Clinic.

Having ruled that the OWC does have jurisdiction over the claim asserted by Beutler Clinic, we further find that Ker-shaw’s settlement did not divest the OWC of jurisdiction. Louisiana Revised Statutes 23:1310.3, as amended by 2005 La. Acts No. 257, statutorily confers jurisdiction over the claim asserted by Beutler Clinic, which is separate and independent from any of Kershaw’s claims under the Louisiana Workers’ Compensation Act. Kershaw’s settlement does not affect or preclude Beutler Clinic’s claim to recover for underpayment of its bill for services rendered in connection with this workers’ compensation matter.

DISPOSITION

For the foregoing reasons, the judgment of the WCJ granting the exceptions of lack of subject matter jurisdiction filed by Mer-mentau Rice and LCTA is reversed, |9and this case is remanded for trial on the merits.

Costs for this appeal are assessed against Defendants/Appellees, Mermentau Rice, Inc. and Louisiana Commerce and Trade Association Self-Insurers Fund.

REVERSED AND REMANDED.

THIBODEAUX, Chief Judge, concurs and assigns additional reasons.

COOKS, J., concurs in the result for the additional reasons assigned by Judge PETERS.

PETERS, J., concurs in the result and assigns written reasons.

SULLIVAN, J., concurs in the result for the reasons assigned by Judge PETERS.

GREMILLION, J., concurs in the result for the reasons assigned by Judge PETERS.

PICKETT, J., concurs in the result for the reasons assigned by Judge PETERS.

THIBODEAUX, Chief Judge,

concurs for additional reasons.

LI agree with the majority’s opinion on the retroactive application of La.R.S. 23:1310.3(E). While I also agree with the substance of Judge Peters’s concurring opinion, I do not subscribe to the plurality opinion’s statement “that the majority suggests that the legislature created new law through the amendment.” In my view, the majority opinion does not set forth such an inference. Indeed, the majority states that the 2005 amendment “does not create, confer, define, destroy, or ... establish new rules, rights, and duties, or change existing ones.” Rather, it merely “direct the litigants to the designated forum for resolution of their legal dispute.”

Thus, I agree with the majority opinion of Judge Genovese and add these additional reasons.

PETERS, J.,

concurring.

Lin Beutler England Clinic v. Market Basket No. 27, 05-952 (La.App. 3 Cir. 12/30/05), 919 So.2d 816, a divided panel of this court concluded that the workers’ compensation judge did not have subject matter jurisdiction to hear the same issue that is now before us. When a majority of both the original panel and a five-judge panel in the matter now before us reached an opposite conclusion, this court chose to hear the matter en banc to resolve the internal conflict. A majority of this court now resolves- the conflict by concluding that the workers’ compensation judge (WCJ) does have subject matter jurisdiction. I agree with that conclusion but choose to assign additional reasons for my position on this issue. ■

The majority opinion accurately sets forth the constitutional and statutory authority for determining the jurisdiction of the WCJ, as well as the jurisprudence interpreting the scope of that authority. As pointed out in the majority opinion, La. Const, art. 5, § 16, provides the workers’ compensation exception to the original jurisdiction of the district courts, and Chapter 10 of Title 23 of the Louisiana Revised Statutes (the Louisiana Workers’ Compensation Act (LWCA) as found in La.R.S. 23:1021, et seq.) establishes the parameters of that exception. In establishing those parameters, the legislature has provided that “[a] claim for benefits, the controversion of entitlement to benefits, or other relief under the Workers’ Compensation Act shall 12be initiated by the filing of the appropriate form with the office of workers’ compensation administration.” La. R.S. 23:1810.3(A) (emphasis added). The legislature has further provided that “the workers’ compensation judge shall be vested with original, exclusive jurisdiction over all claims or disputes arising out of [Chapter 10].” La.R.S. 23:1310.3(E) (emphasis added).

The dispute currently before us involves the payment for medical services rendered by Beutler England. With regard to medical care, the employer’s obligation to an injured employee is to “furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal.” La.R.S. 23:1203(A). Thus, assuming for the purpose of this opinion that Beutler England’s services were necessary, had Mermentau Rice refused to furnish its employee with those services, the employee could have pursued her claim by filing a claim for benefits pursuant to La.R.S. 23:1310.3(A). No one would seriously question the WJC’s original and exclusive jurisdiction to hear that issue as provided in La.R.S. 23:1310.3(E). However, the dispute in this matter is not between the employee and employer, but between the medical service provider and the employer. That is to say, this is not a case where the employer refused to pay for medical services, but one in which the medical service provider asserts that the employer did not pay enough for the services provided.

The employer’s obligation with respect to the payment for medical services is not open-ended. Louisiana Revised Statutes La.R.S. 23:1203(B) limits the employer’s reimbursement obligation to “the mean of the usual and customary charges for such care, services, treatment, drugs, and supplies, as determined under the reimbursement schedule annually published pursuant to R.S. 23:1034.2 or the factual charge made for the service, whichever is less.” (Emphasis added.) All parties to this matter agree that Mermentau Rice tendered less than the amount required under the reimbursement schedule.

The LWCA addresses this issue with the same specificity as the dispute between the employer and employee. Louisiana Revised Statutes 23:1034.2(F)(1) provides in pertinent part that, “[sjhould a dispute arise between a health care provider and the employee, employer, or workers’ compensation insurer, either party may submit the dispute to the office in the same manner and subject to the same procedures as established for dispute resolution of claims for workers’ compensation benefits.” (Emphasis added.) Beutler England’s dispute is between it and the employer and insurer. Thus, it did just what La.R.S. 23:1034.2(F)(1) requires — it submitted the dispute to the Office of Workers’ Compensation Administration (OWCA) pursuant to the provisions of La. R.S. 23:1310.3(A). In other words, the statutory scheme clearly provides that any dispute between a medical service provider and the employer falls within the “other relief’ contemplated in La.R.S. 23:1310.3(A). To conclude otherwise would be to ignore the clear language of the LWCA.

The majority opinion relies on the 2005 amendment to La.R.S. 23:1310.3 to conclude that the WJC has subject matter jurisdiction in this matter. In reaching its conclusion, the majority notes that, because • the 2005 amendment is silent regarding retrospective or prospective application, we must classify it as either substantive, procedural, or interpretive. I agree. However, I do not agree with the majority’s classification of the amendment as procedural in the sense that the majority suggests that the legislature created new law through the amendment. Rather, I find that the |4amendment is interpretative of the existing rule of law as contained in the statutes cited herein. The comment in the “Historical and Statutory Notes” section accompanying the statute supports my conclusion, as it states that “Acts 2005, No. 257, § 1 re-túvote subsec. E.” (Emphasis added.) Changing a statute and rewriting a statute are two different concepts. Still, whether classified as procedural or interpretative, the result is the same.

I first note that Beutler England did not file a claim against the PPO. Instead, the employer and its insurer named the PPO as a third-party defendant. As they did in Beutler England Clinic, 919 So.2d 816, the defendants have attempted to interpose the preferred provider organization (PPO) contract as a defense to full payment, asserting that the attendant issues remove the dispute from the jurisdiction of the OWCA. In doing so, the employer and its insurer ignore the clear language of La. R.S. 28:1033, which provides that “[n]o contract, rule, regulation or device whatsoever shall operate to relieve the employer, in whole or in part, from any liability created by this Chapter except as herein provided.” (Emphasis added.) As stated in my dissent in Beutler England Clinic, 919 So.2d at 821,

[T]o the extent that the PPO contract purports to further limit the employer’s liability for medical care, it runs afoul of La.R.S. 23:1033 and may not serve as a basis to reduce the amount owed to Beutler England for the treatment of [the injured employee]. Because the PPO contract may not serve as a basis to reduce the amount owed for the treatment of [the injured employee], Beutler England’s claim is properly before the OWC pursuant to La.R.S. 23:1034.2(F)(1) as a garden-variety medical expense claim. Whatever remaining rights the defendants have vis-a-vis the PPO, in light of the Workers’ Compensation Act’s express disallowal of contracts in contravention of its provisions, is another issue for another forum.

Accordingly, I agree with conclusion reached in the majority opinion to reverse the judgment below and remand the case for a determination on the merits.

      . Though we cite these decisions as supporting authority for the retroactive application of the law in question, we do not render judgment as to the correctness, vel non, of the trial court judgment in this case.


source: Caselaw Access Project

author: SMITH, Chief Justice, GRAVES, Justice,

license: Public Domain

text:
    In the Matter of the ADOPTION OF a MINOR CHILD.
    No. 2004-CA-01725-SCT.
    Supreme Court of Mississippi.
    March 16, 2006.
    Rehearing Denied June 22, 2006.

      William B. Pemberton, II, Ridgeland, attorney for appellant.
    Richard C. Fitzpatrick, Anne Marie Parker, Poplarville, attorney for appellees.
   SMITH, Chief Justice,

for the Court.

¶ 1. This case involves the adoption of a minor child and termination of a natural mother’s parental rights. Todd Holmes, Amy Holmes, and the natural parents of the minor child petitioned the chancery court for an order granting temporary custody without prejudice to the Holmeses, which the chancellor granted. The Holmeses later petitioned the chancellor to adopt the minor child and have the rights of the natural parents terminated. The natural father joined the Holmeses in their request for adoption. The chancellor ordered that the minor child be adopted by the Holmeses and terminated the parental rights of the natural parents. The natural mother now appeals that decision to this Court.

FACTS AND PROCEDURAL HISTORY

¶ 2. Gloria Mathis (Gloria) and Tom Sanders (Tom) conceived a child, K.T.M., who was born out of wedlock on October 23, 1998. The Mississippi Department of Human Services (DHS) filed a complaint to determine paternity against Tom on December 1, 1999, asserting the claim pursuant to Miss. Code Ann. Section 43-19-31 because Mary Mathis (Mary), Gloria’s mother, received Title IV-D child support services. Tom was adjudged to be KT.M.’s father; Mary was awarded legal custody of K.T.M.; and a support order was later issued by the Chancery Court of Pearl River County.

¶ 3. Todd Holmes and Amy Holmes, took K.T.M. into their home around November of 2000. The Holmeses, Gloria, Tom, and K.T.M., by and through Gloria as the natural mother and next friend, petitioned the chancery court to. grant legal custody of K.T.M. to the Holmeses and for other relief. The chancellor entered a temporary order without prejudice, dated March 29, 2001, which awarded legal custody of K.T.M. to the Holmeses, provided Gloria and Tom with reasonable visitation rights, stayed Tom’s child support payments, terminated DHS benefits for K.T.M., and made the Holmeses responsible for K.T.M.’s support and maintenance. This ended DHS’s involvement in the case.

¶ 4. On January 24, 2002, the Holmeses, Tom, and K.T.M., by and through Tom as the natural father, petitioned the Pearl River Chancery Court to terminate the parental rights of both Gloria and Tom and to permit the Holmeses to adopt K.T.M. Gloria filed a cross-petition seeking to hold the Holmeses in contempt, award custody of K.T.M. to her, or in the alternative, modify her visitation schedule, and dismiss the Holmes’s petition to terminate parental rights. The chancellor, upon motion, appointed Anne Marie Parker as guardian ad litem (GAL) and Dr. John Pat Galloway as a specialist for K.T.M. The parties entered a pre-trial order to narrow the issues for trial, which was conducted on March 25, 2004.

¶ 5. The chancellor rendered a memorandum opinion dated May 17, 2004. The chancellor denied Gloria’s cross-petition, finding Gloria had failed to prove by clear and convincing evidence that it was in K.T.M.’s best interest for her custody to be returned to Gloria. He also found that termination of Gloria’s parental rights was justified and that adoption by the Holmes-es was in KT.M.’s best interest, based on his ultimate findings of fact:

(a) Gloria has effectively abandoned the child, and by her conduct demonstrates an attitude of disregard for the best interest and welfare of the child, rendering her .mentally and practically unfit to rear and train the child;
(b) Gloria has not consistently offered to provide reasonably necessary food, clothing, appropriate shelter and treatment for the child;
(c) Gloria demonstrates by her conduct, that she suffers from an emotional illness or mental deficiency, and behavior or conduct disorder which makes her unable or unwilling to provide an adequate permanent home for the child at the present time or in the reasonably near future, all this being based upon an established pattern of behavior;
(d) Todd and Amy are fully qualified and competent, are willing and anxious, and have demonstrated persuasively by their actions that they are fit and proper persons to be placed legally in the position of parents to [K.T.M.], and that the best interest of [K.T.M.] will be served by grant and adjudication of the sought adoption.

The chancellor entered a judgment, which incorporated his memorandum opinion, on June 10, 2004. Gloria filed a post-trial motion seeking, inter alia, that the court find the facts specially and state the conclusions of law separately, amend and make additional findings, grant a new trial, alter or amend the judgment, and relieve her from final judgment. The chancellor denied Gloria’s motion, and she timely filed her notice of appeal.

¶ 6. Gloria raises ten issues on appeal, alleging the chancellor erred manifestly: (1) by assuming jurisdiction when the complaint failed to state a claim upon which relief could be granted; (2) by assuming jurisdiction when an indispensable party was not a party to the action; (3) by assuming jurisdiction over the person; (4) by incorporating into its findings testimony of an expert who failed to meet qualification and investigation prerequisites; (5) by incorporating into its findings testimony of a guardian ad litem who failed to meet qualification and investigation prerequisites; (6) by finding that Gloria had voluntarily relinquished her parental rights; (7) by finding that Gloria had abandoned K.T.M.; (8) by finding that Gloria had failed to support K.T.M.; (9) by failing to consider reasonable alternatives; and (10) by terminating the mother’s parental rights and awarding adoption of her child to appellees. We affirm for the reasons stated below.

DISCUSSION

¶ 7. In cases where parental rights have been terminated, we review the chancellor’s factual findings under the manifest error/substantial credible evidence test. S.N.C. v. J.R.D., 755 So.2d 1077, 1080 (Miss.2000) (citing Vance v. Lincoln County Dep’t of Pub. Welfare, 582 So.2d 414, 417 (Miss.1991)). Under this standard, this Court asks not how it would have decided the case ab initio, but whether there is credible proof to support the chancellor’s findings of fact by clear and convincing evidence. Id. (citing Ethredge v. Yawn, 605 So.2d 761, 764 (Miss.1992)). “However, where on review it is apparent the court below has misapprehended the controlling rules of law or has acted pursuant to a substantially erroneous view of the law, we will proceed de novo and promptly reverse.” Id.

I. Jurisdictional Issues.

A. Failure to state a claim upon which relief could be granted.

¶ 8. Gloria first argues the chancellor erred in assuming jurisdiction of this matter because the Holmes’s petition failed to state a claim upon which relief could be granted. She claims the Uniform Child Custody Jurisdiction Act (UCCJA) does not apply here and that the Holmeses failed to cite any statutory authority for bringing them action. She contends the chancellor deprived her of raising this defense at trial, pursuant to Mississippi Rule of Civil Procedure (M.R.C.P.) 81, by deeming this defense abandoned.

¶ 9. Gloria cites In re Adoption of C.L.B., 812 So.2d 980, 983 (Miss.2002), for her proposition that UCCJA cannot be used to confer jurisdiction in the instant case, noting that “statutes control the manner in which adoptions are conducted, and there is a specific chapter set out in the Mississippi Code which governs and controls adoption proceedings.” Gloria argues the Holmeses pleaded the wrong statute in their complaint and therefore have failed to state a claim for which relief can be granted. M.R.C.P. 8, which governs pleading in a civil action, does not require a party to plead a specific statute, as “subject matter jurisdiction turns on the well-pleaded allegations of the complaint.” Curtis v. Curtis, 574 So.2d 24, 28 (Miss.1990).

¶ 10. The chancellor noted that any deficiencies in the Holmes’s original petition were cured by the entry of the agreed pretrial order. In addressing Gloria’s Rule 12(b)(6) motion at trial, the chancellor stated that “sufficient issues are created by the pleadings together with the pretrial order to avoid and eliminate the necessity for the Court to consider any further that first defense of the 12-B6 motion” and later found that “[t]he pretrial order has been entered with the consent of all counsel and the guardian ad litem. And the motion tO' — ’that is the purpose of a pretrial order. And it does operate to amend an order to comply with that which is set forth in the pretrial order.”

¶11. In G.M.R. v. H.E.S., 489 So.2d 498 (Miss.1986), this Court affirmed the chancellor’s order of adoption and termination of parental rights. In the lower court proceeding, the chancellor had sustained the natural parents’ motion to dismiss for failure to state a claim upon which relief could be granted. Id. at 499. The parties petitioning for adoption filed an amended petition, alleging that the natural parents were “mentally, morally, or otherwise unfit” as the parents and had neglected, abused, and failed to properly care for the child. Id. The chancellor held a hearing and entered a judgment terminating the parental rights on the basis of the grounds stated in the amended petition. Id. The Holmeses argue that, similar to G.M.R., the entry of the pre-trial order, with its allegations that Gloria’s mental problems make her an unfit parent, operates to state a valid claim for the termination of Gloria’s parental rights and for the Holmes’s adoption of K.T.M. In the Holmes’s petition for termination of parental rights and for adoption, they assert that Gloria had not contributed to the support of K.T.M. since her birth, that Gloria failed to avail herself of court-awarded visitation, that Gloria exhibited ongoing behavior that would make it impossible to return the minor child to her care and custody, and that it was in KT.M.’s best interest that they (the Holmeses) adopt K.T.M. Gloria challenged the sufficiency of this pleading on grounds that it did not state a valid claim for relief, yet she later entered into the pre-trial order which added additional contested issues of fact for trial. Among the numerous factual issues added via the pre-trial order were whether Gloria suffered from a severe mental deficiency or mental illness, whether Gloria’s condition makes her unable to assume minimally acceptable care for K.T.M., whether Gloria is capable of changing her behavior, whether Gloria’s conduct is immoral and/or unacceptable for K.T.M.’s custody and/or termination of her parental rights.

¶ 12. Miss.Code Ann. Section 93-17-7(2) provides that adoption over a parent’s objection is proper if:

(b) The parent has not consistently offered to provide reasonably necessary food, clothing, appropriate shelter and treatment for the child. For purposes of this paragraph, treatment means medical care or other health services provided in accordance with the tenets of a well-recognized religious method of healing with a reasonable, proven record of success.
(c) The parent suffers from a medical or emotional illness, mental deficiency, behavior or conduct disorder, severe physical disability, substance abuse or chemical dependency which makes him unable or unwilling to provide an adequate permanent home for the child at the present time or in the reasonably near future based upon expert opinion or based upon an established pattern of behavior.
(d) Viewed in its entirety, the parent’s past or present conduct, including his criminal convictions, would pose a risk of substantial harm to the physical, mental or emotional health of the child.
(e) The parent has engaged in acts or omissions permitting termination of parental rights under Section 93-15-103.
(f) The enumeration of conduct or omissions in this subsection (2) in no way limits the court’s power to such enumerated conduct or omissions in determining a parent’s abandonment or desertion of the child or unfitness under subsection (1) of this section.

An additional ground for termination , of parental rights, relevant to this case, is found in Miss.Code Aun. Section 93-15-103(e)® (Rev.2004) and states that termination is proper if:

(e) The parent exhibits ongoing behavior which would make it impossible to- return the child to the parent’s care and custody:
(i) Because the parent has a diagnosable condition unlikely to change within a reasonable time such as alcohol or drug addiction, severe mental deficiencies or mental illness, or extreme physical incapacitation, which condition makes the parent unable to assume minimally, acceptable care of the child.

¶ 13. When the Holmes’s petition and agreed pre-trial order, which raised additional issues of fact, are read in connection with the statutory requirements of Miss.Code Ann. Section 93-15-103. and Section 93-17-7, it is readily apparent that the Holmeses have sufficiently pleaded allegations that, if proven, would entitle them to their requested relief. Therefore, the' chancellor did not commit manifest error in finding the pleadings and the pretrial order, taken together, stated a claim for relief sufficient to defeat Gloria’s Rule 12(b)(6) motion.

B. Absence of an indispensable party.

¶ 14. Next, Gloria argues the chancellor committed manifest error in assuming jurisdiction because DHS was an indispensable party to the instant case. She states DHS filed the initial paternity action concerning K.T.M. and was a necessary party to the petition that resulted in the awarding of temporary custody to the Holmeses and termination of Title IV-D child support. DHS was no longer involved when the instant action was filed and was not made a party to the Holmes’s petition to terminate parental rights and for adoption.

¶ 15. Gloria claims Miss.Code Ann. Section 93-17-5 requires that DHS be made a party to the proceedings below. Subsection (1) provides that the parents, adult kin in possession of the child, or guardian ad litem shall be made a party to the proceeding by process or by filing a consent to the adoption. It also requires that certain other persons be made a party to the proceeding via process or consent, specifically:

(i) Those persons having physical custody of such child, except persons having such child as foster parents as a result of placement with them by the Department of Human Services of the State of Mississippi.
(ii) Any person to whom custody of such child may have been awarded by a court of competent jurisdiction of the State of Mississippi.
(iii) The agent of the county Department of Human Services of the State of Mississippi that has placed a child in foster care, either by agreement or by court order.

Miss.Code Ann. § 93 — IT—5(l)(i),(ii), & (iii).

¶ 16. Gloria bases her assertion that DHS is a necessary party to this action on the mention of DHS in subsection (iii) above. We note, however, the statute only requires that DHS be made a party to an adoption proceeding when the child has been placed in foster care by an agreement or by court order. The record does not reflect, and Gloria has provided no proof, that K.T.M. has ever been placed in foster care. Moreover, Gloria has cited no case law which would require us to deem DHS an indispensable party to an adoption proceeding when the subject child is not in foster care. We find DHS was not an indispensable party, thus the chancellor did not manifestly err in proceeding without making DHS a party to the case.

C. Jurisdiction over the person.

¶ 17. Gloria also alleges the chancellor committed manifest error in asserting personal jurisdiction over the case because she received insufficient notice. She claims the summonses were returned incomplete, that there is no record of the proceeding scheduled to be heard on February 19, 2002, for which the Rule 81 summons was issued, and that there is no order continuing the proceeding. Gloria alleges that, due to these failures, this action was terminated in February 2002, again in July 2003 with the attempted continuance, and for a third time with the September and December 2003 attempts to continue the trial. The essence of Gloria’s argument is that because the chancellor did not issue an order continuing the hearing set for February 19, 2002, the action was terminated and “due process requirements and precedent of the Supreme Court require[ ] a new summons and service of process to breathe life into an otherwise dead action.”

¶ 18. As support for her position, Gloria cites Caples v. Caples, 686 So.2d 1071 (Miss.1996). In Capíes, the father of a minor child received a Rule 4 summons in an action brought by the child’s mother (his ex-wife) to modify a child custody order. The father appeared at the hearing and objected to jurisdiction because the couple’s divorce decree and custody order were issued in Texas, and the court continued the action until the Texas court waived jurisdiction. Id. at 1071-72. When the hearing was continued, no order was entered setting a specific date for further proceedings. Id. at 1073. The mother later filed an order waiving jurisdiction in Texas with the Hinds County Chancery Court; the chancery court held a custody modification hearing without the father’s presence; and the chancellor modified the original custody order. Id. at 1072. On appeal, this Court found that because the initial hearing, where none of the case’s merits were discussed, was continued without setting a specific date for further proceedings, the father was without sufficient notice, and the proper procedure was for the mother to issue an additional .Rule 81 summons informing the father of the date and time of the later proceeding. Id. at 1078.

¶ 19. The Holmeses argue that Isom v. Jernigan, 840 So.2d 104 (Miss.2003), rather than Capíes, is applicable to the instant case. Isom involved a contempt petition brought by a father against the child’s mother for failure to comply with visitation orders. The mother’s attorney, rather than the mother herself, was served with the Rule 81 summons, and this Court found this service failed to comply with M.R.C.P. 81(d)(2). Id. at 106. We found in Isom that any of the mother’s challenges to the requirements of Rule 81 were waived by her attorney making a general appearance, failing to challenge jurisdiction or the sufficiency of service of process and introducing testimony on her behalf. Id. at 107.

¶ 20. While Isom and Capíes both involve a failure to strictly comply with Rule 81, we note that Isom has greater factual similarity to the instant case and governs here. In Capíes, the failure to comply with the notice requirements of a Rule 81 summons kept the father from receiving actual notice of a future proceeding that led to an adverse judgment against him. In Isom, the appellant’s counsel had made a general appearance below, failed to object to jurisdiction or service of process at that time, and introduced testimony. In the instant case, Gloria’s attorney filed a joint motion continuing the trial; the trial was ultimately set by an agreed order of the parties; a notice of trial setting was issued; Gloria agreed to the pre-trial order, which actually stated that jurisdiction was not contested. Additionally, Gloria did not object to personal jurisdiction prior to trial, other than a general invocation of all Rule 12(b) defenses in her answer to the Holmes’s petition, or at the date ultimately set for trial, and she introduced the testimony of several witnesses on her behalf at trial.

¶ 21. We hold that any failure of the Holmeses to strictly comply with the notice requirements for a Rule 81 summons is excused by Gloria’s counsel’s appearing before the chancellor without objecting to personal jurisdiction, Gloria’s agreeing to various pre-trial motions and orders setting the case for trial, and Gloria’s introducing testimony on her behalf at trial. Thus, the trial court did not commit manifest error in assuming personal jurisdiction over the instant case.

II. Qualifications of Experts.

¶ 22. The admission of expert evidence is within the sound discretion of the trial judge. Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34 (Miss.2003) (citing Puckett v. State, 737 So.2d 322, 342 (Miss.1999)). Therefore, the decision of a trial judge will stand “unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.” Id.

A. Specialist.

¶ 23. Gloria argues the chancellor committed manifest error by incorporating the testimony of Dr. John P. Galloway into his findings, alleging Dr. Galloway failed to meet qualification and investigation prerequisites that would allow a trier of fact to rely on his opinions. Gloria did not challenge Dr. Galloway’s qualifications at trial, did not object to his testimony, and did ■ not challenge his qualifications in a post-trial motion. Becáuse of these failures, we find Gloria has waived this issue and is procedurally barred from raising it for the first time on appeal. See Brown v. State, 890 So.2d 901, 915 (Miss.2004) (lack of contemporaneous objection to testimony at trial procedurally barred issue on appeal). Notwithstanding the procedural bar, alternatively, we find no merit to this allegation of lack of qualification and/or investigation.

B. Guardian Ad Litem.

¶ 24. Gloria argues the chancellor committed manifest error by incorporating the guardian ad litem’s (GAL) testimony into his findings, claiming the GAL failed to meet qualification and investigation prerequisites. As above, Gloria failed to challenge the GAL’s qualifications, did not object to any of her testimony, did not object to admission of her report, and did not challenge the GAL’s report or testimony in a post-trial motion. We find Gloria is procedurally barred from raising this issue for the first time on appeal. Notwithstanding the procedural bar, alternatively, we find no merit to this allegation of lack of qualification and/or investigation.

III. Errors in Fact Finding.

A. Gloria voluntarily relinquished parental rights.

¶ 25. Gloria contends the chancellor found she had voluntarily relinquished her parental rights and that such a finding is manifest error. She claims the chancellor erred in applying our decision from Grant v. Martin, 757 So.2d 264 (Miss.2000), to this case and incorrectly placed the burden on her to prove by clear and convincing evidence that her parental rights should not be terminated. The Holmeses rebut this contention, arguing there would have been no reason for the chancellor to find the Holmeses proved three alternative grounds for adoption if he had found Gloria had voluntarily relinquished her parental rights. The chancellor’s memorandum opinion reflects that he applied Grant to Gloria’s counter-claim for a modification of custody, rather than his decision to terminate Gloria’s parental rights, as Gloria maintains. Additionally, any reference to Grant or the loss of the natural parent presumption is noticeably absent from the section of the chancellor’s opinion dealing with termination of parental rights.

¶ 26. In the section of the memorandum opinion dealing with the termination of Gloria’s parental rights, the chancellor cited the correct statutory authority, see Miss.Code Ann. §§ 93-17-7 & 93-15-109, and found that “upon due consideration of, and assignment of weight and credibility to, all the evidence produced in its entirety, ... the proof is clear and convincing to justify and mandate (1) termination of the parental rights of Gloria.” This finding articulates the requirements of Miss.Code Ann. Section 93-15-109. In Petit v. Holifield, 443 So.2d 874, 877 (Miss.1984), this Court stated that the burden is on the petitioner (in this case the Holmes-es) “to show by clear and convincing evidence that the objecting parent has either abandoned or deserted the child or is mentally or morally or otherwise unfit to rear or train the child.”

¶ 27. Although the chancellor’s opinion does not explicitly state which party had the burden of proof, the record is absent of any finding that Gloria voluntarily relinquished her parental rights. Because the chancellor made no such finding, we find no merit to this argument. Thus, we decline to consider whether Gloria voluntarily relinquished her parental rights.

B. Gloria abandoned K.T.M.

¶ 28. Gloria alleges the chancellor committed manifest error in finding she had abandoned K.T.M. In the chancellor’s memorandum opinion he stated that “Gloria has effectively abandoned the child, and by her conduct demonstrates an attitude of disregard for the best interest and welfare of the child, rendering her mentally and practically unfit to rear and train the child.” Gloria claims this finding is not sufficiently supported by the evidence in the record.

¶ 29. Abandonment, one of the grounds for terminating parental rights under Miss.Code Ann. Section 93-15-103, includes not only the defined criminal offense of abandonment, see Miss. Code Ann. § 97-5-1, but also includes “any conduct by a parent which evinces a settled purpose to forego all duties and relinquish all parental claims to the child.” Gunter v. Gray, 876 So.2d 315, 320 (Miss.2004) (citation omitted). The test for abandonment is objective and requires a finding that, under the totality of the circumstances, “the natural parent has manifested [his] severance of all ties with the child.” Id.

¶ 30. In Gunter, this Court found the natural father had not abandoned his children, even after having no contact with them for one and a half years, where he had exercised visitation regularly and routinely before he was incarcerated, his claimed reason for not contacting his children was that he was subject to a court order which prohibited communication with the children’s mother, and contacting his children would have necessitated him breaking the court’s order. Gunter, 876 So.2d at 320-21. Gloria argues that, like Gunter, the record before this Court does not support a finding of abandonment where there is evidence that she has consistently exercised her monthly visitation rights; she has requested more visitation; and there is no evidence of Gloria having harmed K.T.M. Additionally, the report of the guardian ad litem expressly stated that “there are no facts to support that Gloria abandoned or deserted the minor child.”

¶ 31. The Holmeses argue Gloria’s delegation of parental authority to them for such an extended period of time should support a finding of constructive abandonment as in Hill v. Mitchell, 818 So.2d 1221 (Miss.Ct.App.2002). In Hill, which involved custody modification rather than termination of parental rights, the Court of Appeals upheld the chancellor’s finding of constructive abandonment where the mother had essentially been absent from the child’s life for eleven years, had rarely exercised her visitation rights, and had assumed no parental responsibilities during that time. Id. at 1226. The Holmeses would have this Court extend Hill to the instant situation to find constructive abandonment because Gloria exercised little, if any, parental authority over K.T.M. in their time spent together. Hill' is not binding authority on this Court. We are unpersuaded by such an argument.

¶ 32. The record in this case reflects that Gloria has not been totally absent from KT.M.’s life for any significant period of time, as in Hill, so as to support a finding of either constructive or actual abandonment. Gloria entered into a temporary custody agreement for K.T.M.’s benefit when she (Gloria) was going through a difficult period in her life. She had given birth to K.T.M. when she was only seventeen; she had a second child roughly two years later who was the product of rape (this child is currently in the custody of a friend of Gloria’s); and her parents were going through a separation at the time she allowed the Holmeses to take temporary custody of K.T.M. However, just as the father in Gunter, Gloria has continually exercised her visitation rights, no matter how limited they may be.

¶ 33. While the chancellor may have properly adjudged Gloria unfit to retain her parental rights on other statutory grounds, the record before us does not reflect that she has “manifested her severance of all ties with the child,” so as to find that she abandoned K.T.M. Additionally, the chancellor made no specific finding to contradict the guardian ad litem’s report, which stated there were no facts to support a finding of abandonment. See Gunter, 876 So.2d at 323 (requiring a chancellor to state reasons for not adopting GAL’s recommendation). We find the chancellor erred in finding Gloria abandoned K.T.M. However, such error is harmless where, as here, the chancellor properly found parental rights may be terminated on other proper statutory grounds.

C. Gloria failed to support K.T.M.

¶ 34. Gloria also contends the chancellor committed manifest error by finding Gloria had failed to support K.T.M., yet" she cites no legal authority for this proposition. This Court routinely holds an appellants’s failure to cite to any legal authority to support her argument will procedurally bar that issue from being considered on appeal. Carter v. Miss. Dept. of Corr., 860 So.2d 1187, 1193 (Miss.2003) (citing McClain v. State, 625 So.2d 774, 781 (Miss.1993)). Because Gloria failed to support this allegation of error with any legal authority, we find she is procedurally barred from having this Court consider this issue on appeal.

¶ 35. Despite the waiver, alternatively this ruling by the chancellor compels a brief discussion by this Court. The chancellor, in entering the temporary custody order, made the Holmeses legally responsible for the support and maintenance of K.T.M. When the chancellor entered his ruling in the instant action, he cited Gloria’s lack of support as a reason for terminating her parental rights. We note that it is unreasonable for a court to have previously determined that a party such as Gloria is under no legal obligation to provide support for a child then later use that lack of support as a basis to terminate parental rights. Any error here is harmless in view of the chancellor’s proper finding allowing adoption on other grounds.

D. Failure to consider reasonable alternatives.

¶ 36. There is no evidence in the record indicating Gloria preserved this argument before the chancery court. Only now on appeal does Gloria raise the applicability of Section 93-15-103(4). Our previous “[precedent mandates that this Court not entertain arguments made for the first time on appeal as the case must be decided on the facts contained in the record and not on assertions in the briefs.” Chantey Music Pub., Inc. v. Malaco, Inc., 915 So.2d 1052, 1060 (Miss.2005) (citations omitted). Therefore, Gloria’s failure to present this argument before the chancellor requires us to bar its consideration on appeal. As such, this issue is not properly before this Court, and we will not consider it.

¶ 37. Alternatively, in the interests of completeness we will address this issue on the merits. Gloria contends the chancellor committed manifest error by failing to consider any reasonable alternatives to the termination of parental rights, citing Barnett v. Oathout, 883 So.2d 563 (Miss.2004). Barnett involved DHS removing two minor children from the home of their parents because of medical neglect, placing them in foster care, and later awarding durable legal custody to the foster parents. Id. at 565. The natural father petitioned the court for a modification of custody, alleging the foster mother’s withholding of visitation and telephone contact with the children constituted an adverse material change in the children’s circumstances. Id. at 566. The chancellor agreed and awarded full custody to the natural father. Id. This Court affirmed the chancellor on appeal and mentioned the earlier case of In re S.A.M., 826 So.2d 1266, 1272 (Miss.2002), which discussed durable legal custody as it relates to termination of parental rights. Barnett, 883 So.2d at 569. Miss.Code Ann. Section 93-15-103(h) (2000) speaks of durable legal custody as an alternative to terminating parental rights where “the parent retains some form of residual rights and responsibilities” and thus serves as “a vital and obvious distinction to termination of parental rights.” Id. (citing In re S.A.M., 826 So.2d at 1279). “Another distinction is that a decision to grant durable legal custody is not permanent and is, therefore, subject to further review and modification by the courts.” Id.

¶ 38. The Holmeses contend that Barnett is distinguishable from the instant case and has no application here. They note that Miss.Code Ann. Section 43-15-13, which applied to Barnett, required DHS to initiate a proceeding to terminate parental rights unless the child was placed in durable legal custody or long-term or formalized foster care by the court. The Holmeses argue it is specifically within the context of the order of durable legal custody that the Barnett Court mentions Miss. Code Ann. Section 93-15-103(h) as an alternative to terminating a parent’s rights. Because K.T.M. is not under the custody of DHS, they argue Section 93-15-103(4), does not directly apply to the instant situation but rather supplements Miss.Code Section 93-17-7(2)(e) in cases where DHS is involved.

¶ 39. Miss.Code Ann. Section 93-17-7(2)(e) states that a child may be adopted over a natural parent’s objection if “[t]he parent has engaged in acts or omissions permitting termination of parental rights under Section 93-15-103.” Section 93-15-103(3)(e) allows a parent’s rights to be terminated if:

The parent exhibits ongoing behavior which would make it impossible to return the child to the parent’s care and custody: (i) Because the parent has a diagnosable condition unlikely to change within a reasonable time such as alcohol or drug addiction, several mental deficiencies or mental illness, or extreme physical incapacitation, which condition makes the parent unable to assume minimally, acceptable care of the child....

This statutory provision is substantially similar to, and is explicitly stated as a ground for termination under, Miss.Code Section 93-17-7(2), which the Holmeses argue applies in the instant situation. Section 93-15-103(4), which follows the subsection laying out the grounds for termination, states that permanent alternatives to termination of parental rights should be considered and chosen when it is determined to be “in the best interest of the child, parental contacts are desirable and it is possible to secure such placement without termination of parental rights.”

¶ 40. The chancellor’s memorandum opinion includes a well defined list of all of the evidence presented for his consideration. The evidence included the testimony of witnesses and exhibits including Gloria’s hospital records; the GAL report; and the reports a court appointed doctor commissioned to evaluate the child, the mother, and the petitioners. After taking into account the best interests of the child, the chancellor enumerated his reasons why termination of Gloria’s parental rights were appropriate. However, while he did not use the “magic” words “other permanent alternatives” in the record, and did not specifically say he considered such other permanent alternatives pursuant to Section 93-15-103(4) before ultimately finding termination of Gloria’s parental rights was the most appropriate remedy in this matter, it is readily apparent from the record that he did so. Realistically, there were only two reasonable permanent alternatives presented for his consideration: (1) whether to grant the Holmes’ petition for adoption of the child and termination of Gloria’s parental rights; or (2) whether to deny the Holmes’ petition and restore the child to Gloria’s custody. The record certainly reflects that the chancellor considered each of these permanent options, even if he did not specify each option individually, as this Court always prefers. No other permanent options were presented by either side.

¶ 41. Therefore, we find the chancellor acted in accordance with the “permanent alternative” language set forth by the Legislature in Section 93-15-103(4). Thus, the chancellor did not err, and this issue is without merit.

IV. Termination.

¶ 42. Lastly, Gloria contends the chancellor committed manifest error in terminating her parental rights and in allowing the Holmeses to adopt K.T.M. This last assignment of error is essentially a summation of arguments she has already presented to this Court. The Holmeses argue she should be procedurally barred from having this Court consider this issue based on her failure to cite to any legal authority. See Carter, 860 So.2d at 1193. As Gloria has already cited to legal authority in previous sections of her brief which serve as a predicate for this argument, we decline to apply the procedural bar to this issue.

¶ 43. One of the ultimate findings of fact on which the chancellor based his decision to terminate Gloria’s parental rights is that “Gloria, demonstrates by her conduct, that she suffers from an emotional illness or mental deficiency, and behavior or conduct disorder which makes her unable or unwilling to provide an adequate permanent home for the child at the present time or in the reasonably near future, all this being based upon an established pattern of behavior.” This finding is essentially a restatement of one of the grounds for termination found in Miss. Code Ann. Section 93-17-7(2)(c).

¶ 44. The chancellor supported this ultimate finding with findings that: Gloria was lacking in stability, discipline, purpose, ambition, and parental responsibility; she had been largely unemployed and dependent on SSI disability since she left her parents’ home; she never finished high school or attempted to earn her GED, despite a stated intention to further educate herself; she had given physical custody of her other child to a friend, without having reclaimed her; she had been hospitalized for mental and/or emotional problems three times, one of which involved a suicide attempt; she was diagnosed with bipolar disorder and borderline personality disorder; and she has provided no significant care or support for K.T.M.

¶ 45. To support her argument that her parental rights should not be terminated, Gloria introduced evidence of recent changes in her life, such as the fact that she is currently taking medication and seeing a mental health nurse practitioner; she has recently started a new job; she has a new residence, and has plans to get married. The record reflects the chancellor considered the evidence introduced by Gloria yet found the reports and testimony of the expert witnesses and the Holmeses themselves more persuasive and credible than the testimony introduced on Gloria’s behalf. We find there was sufficient evidence in the record to support the chancellor’s finding that Gloria suffered from “an emotional illness or mental deficiency, and behavior or conduct disorder” that would prevent her from providing an adequate home for K.T.M. at present or in the near future. This finding by the chancellor established that there was a statutory ground, under Miss.Code Ann. Section 93-17 — 7(2)(c), for terminating Gloria’s parental rights. To the extent a statutory ground for termination was established, the chancellor’s decision to terminate Gloria’s parental rights was not a manifest error.

CONCLUSION

¶ 46. We find that although the chancellor erred in finding Gloria abandoned K.T.M., the error was harmless in that the chancellor properly found parental rights may be terminated on other statutory grounds. Although, he did not per-se use the magic words “other permanent alternatives” on-record, he obviously considered other permanent alternatives to termination of parental rights. We find the record is replete with his consideration of the only two permanent alternatives offered as contemplated in Miss.Code Ann. Section 93-15-103(4). Therefore, we affirm the decision of the Pearl River County Chancery Court’s finding that the best interests of K.T.M. will be served by grant and adjudication of the adoption.

¶ 47. AFFIRMED.

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

GRAVES, Justice,

dissenting:

¶ 48. Because I believe this case should be remanded so the chancellor may make an on-the-record finding that he considered other alternatives to terminating Gloria’s parental rights, I respectfully dissent.

¶ 49. First, the majority holds Gloria is procedurally barred from raising the applicability of Miss.Code Ann. Section 93-15-103(4) on appeal, inasmuch as she did not make this argument below. While our normal procedural posture is to bar issues/arguments not raised at the trial court level, we are not bound to apply this rule when it involves the violation of a fundamental right, which we review for plain error. See Gray v. State, 549 So.2d 1316, 1321 (Miss.1989) (“It has been established that where fundamental rights are violated, procedural rules give way to prevent a miscarriage of justice.”). I can think of few rights that are more fundamental under our constitutional scheme than those encompassed in the natural parent-child relationship; therefore, I would decline to apply a procedural bar in this instance. Furthermore, the Holmeses have not argued that this Court should be precluded from addressing this issue; they merely address the merits of Gloria’s argument.

¶ 50. Second, I feel that the majority opinion is both short-sighted and wrong in its reading and application of Section 93-15-103(4), especially when read in light of other applicable statutes. The majority suggests the chancellor was faced with only two alternatives, (1) to grant the Holmeses’ petition for adoption and therefore terminate Gloria’s parental rights or (2) to deny the Holmeses’ petition and restore custody of K.T.M. to Gloria. In my view, Miss.Code Section 93-15-103(4) allows the chancellor to fashion a remedy that will either: (1) grant legal custody to persons other than the natural parents, (2) establish a guardianship in persons other than the natural parents, (3) consider other “permanent” alternatives that end DHS supervision, or (4) terminate parental rights when other options are not in the child’s best interests.

¶ 51. Additionally, both Miss.Code Ann. Section 93-15-109 and Section 93-17-7, which are applicable to the instant case, characterize adoption and termination of parental rights as being discretionary rather than mandatory. Section 93-15-109 states that “the court may terminate all the parental rights of the parent or parents” after a ground for termination has been proven by clear and convincing evidence, while section 93-17-7 states that “an adoption may be allowed” over a parent’s objection if certain facts are established. (Emphasis added). Therefore, even if the chancellor finds that petitioners such as the Holmeses have proven the existence of a ground for terminating Gloria’s parental rights, he still has the discretion to deny their petition to terminate parental rights if it is in the child’s best interests to preserve the natural parent-child relationship by establishing legal custody or guardianship in a responsible third party or fashioning some other equitable alternative. Under this reading of the statutes, the chancellor could find that the Holmeses should retain legal custody of K.T.M. but that it was also in her best interests to have some limited contact with Gloria even if it were in the form of supervised visitation.

¶ 52. To be clear, I am not suggesting that this is the decision the chancellor should have ultimately made, as the chancellor might find on remand that no alternative short of terminating Gloria’s parental rights would be feasible in this case. I am merely stating that the chancellor had more alternatives to consider in rendering his decision than the two options articulated by the majority. As such, I think it is reversible error for the chancellor to fail to make a specific finding that he has at least considered other reasonable alternatives before terminating all legal rights of a natural parent. This is especially true in light of the fact that the majority invalidated the chancellor’s finding of abandonment and was highly critical of his finding concerning Gloria’s failure to support, which it upheld by way of a procedural bar. When such a fundamental right as the natural parent-child relationship is at stake, surely it is not too burdensome to require the chancellors of our' state to make a specific finding that they have considered other reasonable alternatives before severing that relationship.

WALLER, P.J., JOINS THIS OPINION. EASLEY, J., JOINS THIS OPINION IN PART.

      . Because the use of actual names in a proceeding of this nature is prohibited by Miss. Code Ann. §§ 93-17-29 & 31 fictitious names are given to all of the parties in this case.

      . At the time of K.T.M.'s birth, both of her parents were seventeen years old.

      . Tom signed a form of consent to the Holmes’s adoption of K.T.M. He is not a party to this appeal.

      . The chancellor deemed jurisdiction to be proper under modes other than the UCCJA. For discussion on the applicability of the UC-CJA see this Court’s opinion in In re Adoption of D.N.T., 843 So.2d 690, 697-706 (Miss.2003).

      .In Grant, this Court articulated a new standard to be applied in custody modifications where the natural parent has previously relinquished custody, holding that:
      a natural parent who voluntarily relinquishes custody of a minor child, through a court of competent jurisdiction, has forfeited the right to rely on the existing natural parent presumption. A natural parent may reclaim custody of the child only upon showing by clear and convincing evidence that the change in custody is in the best interest of the child.

        Grant, 757 So.2d at 266.

      . See In re Adoption of D.N.T., 843 So.2d at 707 (“In Grafe v. Olds, 556 So.2d 690, 694 (Miss.1990), we stated that: 'a written voluntary release, or consent by the parent, [§ 93-15-103(2)] terminates the parental rights and thereafter, no objection to the adoption from the natural parent may be sustained. [§ 93-17-7].’ ”)

      . Miss.Code Ann. § 93-15-109 states, in relevant part:
      After hearing all the evidence in regard to such petition, if the chancellor ... is satisfied by clear and convincing proof that the parent or parents are within the ground requiring termination of parental rights as set forth in this chapter, then the court may terminate all the parental rights of the parent or parents regarding the child....

      . The statute quoted in Barnett as being Miss. Code Ann. § 93-15-103(h) actually appears in the most current version of the Miss.Code as § 93-15-103(4) and states:
      Legal custody and guardianship by persons other than the parent as well as other permanent alternatives which end the supervision by the Department of Human Services should be considered as alternatives to the termination of parental rights, and these alternatives should be selected when, in the best interest of the child, parental contacts are desirable and it is possible to secure such placement without termination of parental rights.

      . See Footnote 7.


author: EASLEY, Justice,

text:
    Dorothy WALKER as the Administratrix of the Estate of Vadie Walker, Deceased v. WHITFIELD NURSING CENTER, INC. d/b/a Whitfield Nursing Home.
    No. 2005-CA-02248-SCT.
    Supreme Court of Mississippi.
    June 8, 2006.

      Parke S. Morris, Attorney for Appellant.
    James E. Price, Jr., Corinth, Attorney for Appellee.
   EASLEY, Justice,

for the Court.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 1. Dorothy Walker (Walker), as Ad-ministratrix of the Estate of Vadie Walker (Vadie), deceased, filed suit against Whitfield Nursing Center, Inc., d/b/a Whitfield Nursing Home (Whitfield) on April 7, 2004, in the Circuit Court of Alcorn County, Mississippi, as a result of Vadie’s fall from her bed on April 8, 2002, when she tried to climb out of the bed and for her alleged resultant wrongful death on July 17, 2002. Whitfield was served on April 14, 2004, and filed its answer on April 27, 2004, denying liability and asserting various defenses including failure to state a claim on which relief can be granted for personal injuries and for the alleged wrongful death of the decedent.

¶ 2. Discovery ensued, and the depositions of Walker and Vadie’s charge nurse, Linda Whitfield, were taken on August 5, 2004. The charge nurse testified that all the beds were fixed and could not be lowered or raised. According to Whitfield, Walker first revealed that an expert, a nurse, had been contacted, and disclosed the name of the nurse, Patricia Bader (Nurse Bader) at these depositions. Walker took no further action in the case until copies of written reports from another registered nurse, John Scoggin (Nurse Scog-gin), dated July 23 and 26, 2005, were sent to Whitfield. Nurse Scoggin’s report stated that the defendant’s alleged negligence “may have contributed to her demise.” Whitfield contended that immediately upon receiving these reports, it filed its motion for summary judgment.

¶ 3. Whitfield’s motion for summary judgment was filed on August 18, 2005. Whitfield contended Walker failed to comply with the requirements of Miss.Code Ann. § 11-1-58 (Supp.1995). The motion for summary judgment stated the complaint was not accompanied by an attorney’s certificate declaring the attorney had reviewed the facts of the case, had consulted at least one qualified expert, and had concluded there was a reasonable basis for the commencement of the action. The motion for summary judgment also stated that on April 27, 2004, Whitfield had served an interrogatory request on Walker requesting the name, address, and qualifications of all expert witnesses who had been contacted to assist in preparation and trial of the case, and on May 25, 2004, Walker responded under oath that no expert had been contacted or consulted regarding the case.

¶ 4. On September 8, 2005, Walker responded to Whitfield’s motion for summary judgment. Walker argued that Whitfield was furnished a letter of intent on February 4, 2004, before suit was filed. Walker contended that attorney Parke S. Morris (Attorney Morris) consulted Nurse Bader, a nurse practitioner, as an expert before the letter of intent was sent. However, the letter of intent did not refer to Nurse Bader. Likewise, the letter of intent did not state that an expert had been consulted prior to filing suit.

¶ 5. Furthermore, there was no affidavit accompanying the complaint, as required under Miss.Code Ann. § 11-1-58, from any attorney providing that an expert had been consulted, and that based on the attorney’s review of the case and consultation with the expert there existed a reasonable basis for commencement of the action. In addition to there being no certificate of consultation, no report or records were sent to Whitfield from Nurse Bader. Walker argued Whitfield waived its ability to assert the affirmative defense of failure to comply with Miss.Code Ann. § 11-1-58.

¶ 6. Walker’s attorney, Morris, did not sign an affidavit until September 7, 2005, providing that he participated in a telephone conversation with Nurse Bader regarding her review of Yadie’s medical records before filing suit. This affidavit did not accompany the complaint which was filed on April 7, 2004, as required under Miss.Code Ann. § 11-1-58; rather, it was attached to Walker’s response to the motion for summary judgment.

¶ 7. Likewise, on September 8, 2005, Walker’s other attorney, Peter Byron Gee (Attorney Gee), filed his certificate of expert consultation signed on September 7, 2005. Attorney Gee’s affidavit provided that prior to filing suit Attorney Morris consulted with an expert, Nurse Bader, and based on the expert’s thoughts and impressions, he was satisfied there was a reasonable basis for filing the suit. Again, this certificate dated September 7, 2005, did not accompany the complaint which was filed on April 7, 2004, as required under Miss.Code Ann. § 11-1-58. In addition, no records or reports from Nurse Bader ever sent to Whitfield.

¶ 8. Furthermore, Walker did not file her plaintiffs notice of filing expert report in the court record with the attached written reports of Nurse Scoggin dated July 23 and 27, 2005, until September 8, 2005. No written report or records from Nurse Bader were ever produced to Whitfield or filed with the court.

¶ 9. On November 2, 2005, Circuit Judge Thomas J. Gardner, III, granted Whitfield’s motion for summary judgment and dismissed Walker’s case with prejudice. The trial court held:

[T]he provision of § 11-1-58, Miss.Code of 1972, requiring the Plaintiff to file with the complaint an attorney’s certificate of consultation with a qualified expert is mandatory, and that the Plaintiff in this case failed to file such a certificate with the complaint or within sixty days after service of the complaint on the Defendant.

On November 21, 2005, Walker filed a supplemental affidavit to clarify the record on appeal stating that Whitfield was sent a copy of Nurse Scoggin’s expert report attached to a letter dated July 29, 2005.

¶ 10. On November 21, 2005, Walker filed a M.R.C.P. 60(b)(6) motion for relief from the final order granting summary judgment. Whitfield filed its response to the Rule 60(b)(6) motion on November 28, 2005. On November 30, 2005, Walker filed her notice of appeal from the trial court’s order granting Whitfield’s motion for summary judgment. The record on appeal does not contain a ruling by the trial court on the Rule 60(b)(6) motion. The case is now before this Court on appeal raising the following issues:

I. Whether Walker complied with the requirements of Miss.Code Ann. § 11-1-58(1), or alternatively, Miss. Code Ann. § 11-1-58(7).

II. Whether Whitfield waived its affirmative defense that Walker failed te comply with the mandates of Miss.Code Ann. § 11-1-58.

DISCUSSION

¶ 11. This Court applies a de novo standard of review to the trial court’s grant of summary judgment. Stuckey v. Provident Bank, 912 So.2d 859, 864 (Miss.2005). See also Jenkins v. Ohio Cas. Ins. Co., 794 So.2d 228, 232 (Miss.2001); Russell v. Orr, 700 So.2d 619, 622 (Miss.1997); Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997); Northern Elec. Co. v. Phillips, 660 So.2d 1278, 1281 (Miss.1995).

¶ 12. Rule 56(c) of the Mississippi Rules of Civil Procedure provides that summary judgment shall be granted by a court if “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact.... ” M.R.C.P. 56(c); Saucier ex rel. Saucier v. Biloxi Reg’l Med. Ctr., 708 So.2d 1351, 1354 (Miss.1998). The moving party has the burden of demonstrating that there is no genuine issue of material fact in existence, while the non-moving party should be given the benefit of every reasonable doubt. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss. 1990). See also Heigle v. Heigle, 771 So.2d 341, 345 (Miss.2000). A fact is material if it “tends to resolve any of the issues properly raised by the parties.” Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995).

¶ 13. “If, in this view, there is no genuine issue of material fact and, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied.” Williamson ex rel. Williamson v. Keith, 786 So.2d 390, 393 (Miss.2001). “Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite.” Tucker, 558 So.2d at 872.

Of importance here is the language of the rule authorizing summary judgment ‘where there is no genuine issue of material fact.’ The presence of fact issues in the record does not per se entitle a party to avoid summary judgment. The court must be convinced that the factual issue is a material one, one that matters in an outcome determinative sense ... the existence of a hundred contested issues of fact will not thwart summary judgment where there is no genuine dispute regarding the material issues of fact.

Simmons v. Thompson Mach. of Miss., Inc., 631 So.2d 798, 801 (Miss.1994) (citing Shaw v. Burchfield, 481 So.2d 247, 252 (Miss.1985)). The evidence must be viewed in the light most favorable to the non-moving party. See Russell, 700 So.2d at 622; Richmond, 692 So.2d at 61; Northern Elec. Co., 660 So.2d at 1281; Simmons, 631 So.2d at 802; Tucker, 558 So.2d at 872.

¶ 14. To avoid summary judgment, the non-moving party must establish a genuine issue of material fact within the means allowable under the Rule. Richmond, 692 So.2d at 61 (citing Lyle v. Mladinich, 584 So.2d 397, 398 (Miss.1991)). “If any triable issues of fact exist, the lower court’s decision to grant summary judgment will be reversed. Otherwise the decision is affirmed.” Richmond, 692 So.2d at 61.

I. Whether Walker failed to comply with Miss.Code Ann. § 11-1-58 (2003)

A. Miss.Code Ann. § 11-1-58(1)

¶ 15. This is a case of first impression regarding the application and operation of Miss.Code Ann. § 11-4-58 (Supp.2005), effective on and after January 1, 2003, as to all causes of action filed on or after that date. Here, this action was commenced in April 2004, so it is governed by that statute.

¶ 16. Miss.Code Ann. § ll-l-58(l)(a) provides:

(1) In any action against a licensed physician, health care provider or health care practitioner for injuries or wrongful death arising out of the course of medical, surgical or other professional services where expert testimony is otherwise required by law, the complaint shall be accompanied by a certificate executed by the attorney for the plaintiff declaring that:
(a) The attorney has reviewed the facts of the case and has consulted with at least one (1) expert qualified pursuant to the Mississippi Rules of Civil Procedure and the Mississippi Rules of Evidence who is qualified to give expert testimony as to standard of care or negligence and who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action, and that the attorney has concluded on the basis of such review and consultation that there is a reasonable basis for the commencement of such action;

(Emphasis added).

¶ 17. Walker basically concedes her failure to strictly comply with Miss.Code Ann. § ll-l-58(l)(a) and provides no persuasive argument to demonstrate that she complied with the mandatory requirements of Miss.Code Ann. § 11-1-58(1). However, Walker asks this Court to find that she substantially complied with Miss.Code Ann. § 11 — 1—58(l)(a) because her attorney claimed in documents filed in September 2005, to have consulted with an expert, Nurse Bader, in February 2004, before filing suit on April 7, 2004.

¶ 18. The record reflects that even if Walker’s attorney did speak to Nurse Bad-er before filing suit, this information was not supplied to Whitfield until more than a year later in 2005, well after the complaint was filed and served in April 2004. Likewise, when the complaint was filed nothing accompanied the complaint to inform Whitfield that an expert had been consulted nor was any information from Nurse Bader supplied to Whitfield at the time.

¶ 19. In University of Mississippi Medical Center v. Easterling, 2006 WL 871302 *5 (Miss.2006), this Court adopted strict compliance as to the ninety-day notice requirement under Miss.Code Ann. § 11-46-11(1). While Easterling’s holding is specifically limited to the ninety-day notice requirement under Miss.Code Ann. § 11-46-11(1), this Court has clearly indicated that when reviewing statutory requirements, this Court will examine the record to determine compliance or noncompliance. Clearly, Walker did not comply with the mandatory prerequisites of Miss.Code Ann. § ll-l-58(l)(a) when she filed her suit.

B. Miss.Code Ann. § 11-1-58(7)

¶ 20. Alternatively, Walker claims to have complied with Miss.Code Ann. § 11-1-58(7). Walker focuses on the language allowing an expert’s information to be supplied in lieu of an attorney’s certificate regarding consultation with an expert required under Miss.Code Ann. § 11 — 1—58(l)(a). However, Walker ignores the mandatory time requirement for furnishing the expert’s information provided under Miss.Code Ann. § 11 — 1—58(l)(a) and (b).

¶ 21. Walker filed its plaintiffs notice of filing expert report in the court record on September 8, 2005, with the attached written reports of Walker’s nursing expert, Scoggin, dated July 23 and 27, 2005, well after the complaint was filed on April 7, 2004, and served on April 14, 2004. Walker contended Whitfield was sent a copy of Nurse Scoggin’s expert report attached to a letter dated July 29, 2005, but Whitfield claimed the report was not received until around August 17, 2005. Despite this dispute, Walker did not file its affidavit/certificate of expert consultation from Walker’s attorney, Gee, until September 8, 2005. The certificate provided that, prior to filing suit Walker’s attorney, Morris, consulted with a nursing expert, Bader, to conclude that based on the expert’s thoughts and impressions, he was satisfied there was a reasonable basis for filing the suit. Clearly, nothing was filed or supplied at the time the complaint was filed or served in April 2004.

¶ 22. While Miss.Code Ann. § 11-1-58(7) allows the expert’s information, e.g., written report or records, to be substituted in lieu of a certificate of compliance from the attorney, it does not alleviate the requirement of furnishing the expert’s information as required under Miss.Code Ann. § 11-1-58. Miss.Code Ann. § 11-1-58(7) provides:

The plaintiff, in lieu of serving a certifícate required by this section, may provide the defendant or defendants with expert information in the form required by the Mississippi Rules of Civil Procedure. Nothing in this section requires the disclosure of any “consulting” or nontrial expert, except as expressly stated herein.

(Emphasis added).

¶23. “The phrase ‘intent of the Legislature,’ is often used when what is really meant is ‘intent of the statute.’ ” Pope v. Brock, 912 So.2d 935, 937 (Miss.2005). When construing the meaning of a statute, we must look at the words of the statute. Pinkton v. State, 481 So.2d 306, 309 (Miss.1985). “In construing statutes, the chief desire of the courts is to reach the real intention of the Legislature, and knowing this to adopt that interpretation which will meet the real meaning, though such interpretation may be beyond or within, wider or narrower, than the mere letter of the statute.” Gambrill v. Gulf States Creosoting Co., 216 Miss. 505, 62 So.2d 772, 775 (1953); see Miss. Casino Operators Ass’n v. Miss. Gaming Comm’n, 654 So.2d 892, 894 (Miss.1995). As such, “our duty is to carefully review the statutory language and apply its most reasonable interpretation and meaning to the facts of a particular case.” Pope, 912 So.2d at 937.

¶ 24. Unlike sub-section (1), sub-section (7) does not specify when the expert’s information or report must be supplied by the plaintiff. However, sub-section (7) specifically references the certificate requirement of sub-section (1), and sub-section (7) only provides that the expert’s information could be furnished in lieu of the plaintiffs attorney having to file a certificate. Miss.Code Ann. § 11-1-58(1), which was adopted effective January 1, 2003, by the Legislature as a part of tort reform legislation, specifically provides in sub-section (1) that in cases against a licensed physician, health care provider, or health care practitioner for injuries or wrongful death arising out of the course of medical, surgical, or other professional services where expert testimony is otherwise required by law, the complaint shall be accompanied by a certificate executed by the attorney for the plaintiff.

¶ 25. This Court applies the plain meaning of the statute when the statute is not ambiguous. Claypool v. Mladineo, 724 So.2d 373, 382 (Miss.1998). Here, a literal reading of Miss.Code Ann. § 11-1-58, provides that the stated purpose of sub-section (7) can reasonably be construed to provide an alternative to furnishing a certificate of expert consultation by the plaintiffs attorney. However, the statute does not alter the time requirement stated under sub-section (1) for furnishing the expert’s information. Therefore, the time for compliance as stated in sub-section (1) applies to sub-section (7).

¶ 26. For this Court to conclude otherwise would render Miss.Code Ann. § 11-1-58(7) meaningless if the requirements of Miss.Code Ann. § 11-1-58 could be so easily circumvented. See Evans v. Boyle Flying Serv., Inc., 680 So.2d 821, 825 (Miss.1996) (When construing the meaning of a statute, this Court must seek the intention of the Legislature, and knowing it, must adopt that interpretation which will meet the Legislature’s real meaning.). Thus, the trial court correctly found that Walker failed to comply with Miss.Code Ann. § 11-1-58.

II. Whether Whitfield waived its affirmative defense under Miss.Code Ann. § 11-1-58

¶ 27. As previously stated in the facts, Whitfield filed its motion for summary judgment on August 18, 2005. Whitfield contended that Walker failed to comply with the mandatory requirements of Miss.Code Ann. § 11-1-58. The motion for summary judgment stated the complaint, which was filed on April 7, 2004, and served oh April 14, 2004, was not accompanied by an attorney’s certificate declaring the attorney had reviewed the facts of the case, had consulted at least one qualified expert, and had concluded that there was a reasonable basis for the commencement of the action.

¶ 28. The motion for summary judgment further provided that on April 27, 2004, Whitfield had served an interrogatory on Walker requesting the name, address, and qualifications of all expert witnesses who had been contacted to assist in the preparation and trial of the case, and on May 25, 2004, Walker responded under oath that no expert had been contacted or consulted regarding the case.

¶ 29. Walker responded on September 8, 2005, to Whitfield’s motion for summary judgment. On September 8, 2005, Walker also produced and filed, for the first time, various documents, including: (1) an affidavit from Walker’s attorney, Morris, that he participated in a telephone conversation with Nurse Bader regarding her review of Yadie’s medical records before filing suit; (2) an affidavit/certificate of expert consultation from Walker’s attorney, Gee, that prior to filing suit Attorney Morris consulted with Nurse Bader, and based on the expert’s thoughts and impressions, he was satisfied there was a reasonable basis for filing the suit; and (3) the Plaintiffs notice of filing expert report with the attached written reports of Nurse Scoggin dated July 23 and 27, 2005, but not filed until September 8, 2005. No written report or expert information from-Nurse Bader was ever produced or filed.

¶ 30. On appeal, Walker claims Whitfield waived its right to assert Miss.Code Ann. § 11-1-58 as a defense because it did not assert this statutory défense in its answer. Whitfield contends on appeal that its answer asserted two defenses and that Walker failed to state a claim upon which relief can be granted. Walker argues that the “failure to state a claim upon which relief can be granted” is too vague to constitute asserting an affirmative defense. Walker did not make any inquiry as to what constituted, failure to state a claim upon which relief can be granted during discovery. Importantly, Walker did not raise the waiver issue in the response she filed to Whitfield’s motion for summary judgment. Accordingly, the trial court did not address the issue of waiver in its judgment that we are asked to review.

¶ 31. That being said, Walker did fail to state a claim upon which relief can be granted due to Walker’s blatant failure to comply with the notice prerequisites of Miss.Code Ann. § 11-1-58. Without an attorney’s certificate of compliance of consultation with an expert or a medical report from an expert attached to the complaint when the case was filed as required under the statute, Walker failed to state a claim upon which relief can be granted. As such, Walker is left unable to allege any claim of medical malpractice in the complaint. The language of Miss.Code Ann. § 11-1-58 is clear and unambiguous that based on the failure to comply with its mandatory statutory requirements, the complaint shall be dismissed. Therefore, Walker’s complaint must be dismissed.

¶ 32. In Bowie v. Montfort Jones Memorial Hospital, 861 So.2d 1037, 1043 (Miss.2003), the plaintiffs failed to designate an expert for a medical malpractice claim. The plaintiffs were then barred from designating an expert in their case. Id. The Court held that the failure to timely designate a medical expert left the plaintiffs unable to ever make out a prima facie case of medical malpractice due to the lack of an expert. Id. Here, we are faced with a similar situation. Walker failed to comply with Miss.Code Ann. § 11-1-58. “At some point the train must leave” the station. Id. (quoting Guar. Nat’l Ins. Co. v. Pittman, 501 So.2d 377, 389 (Miss.1987)). That point was reached today. Here, Walker is left unable to prove her medical malpractice claim.

¶ 33. Accordingly, we find that the trial court did not err in granting summary judgment in favor of Whitfield and dismissing Walker’s complaint.

CONCLUSION

¶ 34. For all the foregoing reasons, the judgment of the Circuit Court of Alcorn County granting summary judgment in favor of Whitfield and dismissing the case against Whitfield with prejudice is affirmed.

1135. AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

      . Whitfield noted in its answer that because Walker was not appointed Administratrix of the estate until June 14, 2004, and the suit was filed on April 7, 2004, the survival action for Vadie’s fall on April 8, 2002, was barred by the two-year statute of limitations under Miss.Code Ann. § 15-1-36. However, this issue was neither addressed in detail by the parties on appeal nor is there a need for this Court to address this on appeal.

      . The plaintiff agreed the wrongful death claim should be dismissed as there was no admissible proof that Vadie died as a result of any alleged negligence of the nursing home and the lack of any expert to testify as to the cause of death. The wrongful death claim was dismissed, and only the negligence claim remained.

      . A motion under Rule 60 does not affect the finality of a judgment or suspend its operation. See M.R.C.P. 60.

      . Miss.Code Ann. § ll-l-58(l)(b) requires that the suit be dismissed for failure to comply with the mandatory requirements stated and requires that the attorney for the plaintiff declare:
      The attorney was unable to obtain the consultation required by paragraph (a) of this subsection because a limitation of time established by Section 15-1-36 would bar the action and that the consultation could not reasonably be obtained before such time expired. A certificate executed pursuant to this paragraph (b) shall be supplemented by a certificate of consultation pursuant to paragraph (a) or (c) within sixty (60) days after service of the complaint or the suit shall he dismissed;

      (Emphasis added).