author: SMITH, Chief Justice,

text:
    ILLINOIS CENTRAL RAILROAD COMPANY v. Milton McDANIEL and Bettye C. McWilliams, Executrix of the Estate Of Larry McWilliams, Deceased. Kelly C. Robinson v. Illinois Central Railroad Company.
    No. 2005-CA-00389-SCT.
    Supreme Court of Mississippi.
    Aug. 31, 2006.

      Lonnie D. Bailey, Glenn F. Beckham, Greenwood, Edward Blackmon, Jr., Canton, Thomas R. Peters, attorneys for appellant.
    Thomas W. Brock, William S. Guy, McComb, Wayne Dowdy, Magnolia, attorneys for appellees.
   SMITH, Chief Justice,

for the Court.

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 The original opinion is withdrawn, and this opinion is substituted therefor.

¶ 2. Plaintiffs filed suit against Illinois Central Railroad Company (ICRR) in the Circuit Court of Jefferson County under the case name Robert Allen, et al v. Illinois Cent. R.R. Co., and pursuant to then existing Mississippi law regarding joinder and venue. Plaintiffs asserted their claims for asbestos related personal injuries under the Federal Employers Liability Act (FELA). 45 U.S.C. §§ 51-60 (1939). Pri- or to the commencement of trial in the matter, ICRR entered into a contingent settlement agreement with the remaining plaintiffs. Plaintiffs’ counsel filed two separate motions with the circuit court to enforce the settlement agreement on behalf of a small number of the remaining plaintiffs, more than two years after the contingent settlement was agreed upon. After several hearings, the circuit court granted, in part, and denied, in part the plaintiffs’ motion to enforce the settlement agreement, and overruled ICRR’s motion to dismiss, and to compel production, to allow further investigation and discovery, and for findings and conclusions of law. ICRR, feeling aggrieved, appealed to this Court regarding the enforcement of the settlement between ICRR and plaintiffs Milton McDaniel (McDaniel) and Larry McWilliams (McWilliams). In addition, plaintiffs’ counsel filed a cross-appeal, on behalf of plaintiff Kelly Robinson (Robinson), pertaining to Robinson’s dismissal for not conforming to the applicable statute of limitations.

¶ 3. Finding no error, we affirm the findings of the circuit court.

FACTS

¶ 4. On June 19, 2001, counsel for ICRR sent a letter to plaintiffs’ counsel stipulating the payment to thirteen specifically named plaintiffs in the cause of Robert Allen, et al v. Illinois Cent. R.R. Co. The letter also set forth a contingent payment procedure detailing the payment of negotiated amounts to the remainder of the plaintiffs involved in Robert Allen, et al v. Illinois Cent. R.R. Co. Pursuant to the agreed upon payment procedure, ICRR would not tender payment for any remaining plaintiffs’ claims without receiving certain documentation from each individual plaintiff, including: a pulmonary questionnaire, authorizations, and medical documentation establishing the claimed disease process. Also, ICRR reserved the right to assert three defenses to payment under the conditional settlement agreement including a statute of limitations defense, evidence of a prior release, or if the plaintiff was never in the employment of ICRR. As both ICRR and the plaintiffs assert, numerous claims were settled in accordance with the established procedure.

¶ 5. In September 2003, and again in January 2004, after ICRR suspended settlement payments, the plaintiffs filed motions with the Circuit Court of Jefferson County prompting the circuit court to enforce the settlement agreement. ICRR would eventually oppose any further enforcement of the settlement due to alleged irregularities in the documentation of certain claims by way of its motion to dismiss certain claims in the case. The circuit court then entertained four separate hearings pertaining to issues raised in connection with these motions.

¶ 6. At the first two motion hearings, the circuit court reopened discovery and directed both parties to file briefs in anticipation of a final hearing on the settlement issues. At the succeeding motion hearing, the circuit court denied ICRR’s motion to dismiss and granted the plaintiffs’ motion to enforce the settlement agreement. Specifically, regarding the individual plaintiffs currently on appeal, the circuit court found that releases signed by plaintiffs McDaniel and McWilliams did not bar them from participation in the settlement agreement. The circuit court also considered the claim of Robinson, and determined Robinson’s cause of action was barred by the applicable statute of limitations. ICRR subsequently motioned the circuit court to reconsider its findings based on newly discovered evidence, to withhold entry of final judgment to allow further investigation, and for findings of fact and conclusions of law. The circuit court denied ICRR’s motions in a final hearing on the issues, and ICRR perfected the present appeal with this Court regarding McDaniel and McWilliams. Plaintiffs perfected a cross-appeal with this Court regarding the circuit court’s findings pertaining to the dismissal of Robinson from the action. After full consideration of the issues, we find no error by the trial court and accordingly affirm.

ANALYSIS

¶ 7. We have decreed on numerous occasions “[t]his court will not disturb the findings of the chancellor unless it is shown the chancellor was clearly erroneous and the chancellor abused his discretion.” Howard v. TotalFina E & P USA, Inc., 899 So.2d 882, 888 (Miss.2005) (citing Hill v. Southeastern Floor Covering Co., Inc., 596 So.2d 874, 877 (Miss.1992); Bell v. Parker, 563 So.2d 594, 597 (Miss.1990)). Also, “a circuit judge sitting without a jury is accorded the same deference with regard to [ ] factual findings as is a chancellor.” Kight v. Sheppard Bldg. Supply, Inc., 537 So.2d 1355, 1358 (Miss.1989) (citing Hardy v. First Nat’l Bank of Vicksburg, 505 So.2d 1021, 1023 (Miss.1987)). “Abuse of discretion is found when the reviewing court has a ‘definite and firm conviction’ that the court below committed a clear error of judgment and the conclusion it reached upon a weighing of the relevant factors.” Howard, 899 So.2d at 888 (citing Caracci v. Int’l Paper Co., 699 So.2d 546, 556 (Miss.1997)).

I. MOTION TO ENFORCE SETTLEMENT AGREEMENT

¶ 8. ICRR asserts the circuit court committed reversible error by granting the plaintiffs’ motion to enforce the settlement agreement and ordering ICRR to pay the requisite settlement amounts, in light of false affidavits submitted to ICRR by the plaintiffs. On appeal ICRR argues, specifically, both McDaniel and McWilliams provided false, sworn affidavits in an attempt to distill settlement funds from ICRR. McDaniel and McWilliams dismiss ICRR’s claims as an attempt to distort innocuous details into facts constituting reversible error.

¶ 9. ICRR alleges it began to grow curious and concerned about the contingent settlement procedure sometime after it was agreed upon by the parties. ICRR asserts its concerns were piqued after it became aware of incongruities involving plaintiff Fred Tyler (Tyler) in a similar contingent settlement agreement. During its investigation, ICRR discovered Tyler’s participation in a previous, 1996 Jefferson County, asbestos case. ICRR then learned Tyler was diagnosed with an asbestos related disease more than three years before filing suit against ICRR, thus allowing for a statute of limitations defense as set forth in the settlement agreement. According to ICRR, “Tyler’s non-disclosure of his participation and settlements received in the Cosey case raised a red flag for ICRR.” In response to ICRR’s concerns in this case, counsel for the plaintiffs sent a letter to ICRR wherein the plaintiffs agreed to provide an affidavit from each remaining plaintiff regarding all prior asbestos litigation. This letter provided in pertinent part:

With regard to the Tyler matter, we have spoken to Mr. Tyler. It is apparent that when Mr. Tyler was questioned about prior litigation, he understood that he was being asked about a prior case against the railroad. Also, the questionnaire that he signed states ‘Tes” as the response to the question about prior litigation against asbestos manufacturers.
To make sure that this situation does not occur again, we will be supplying affidavits from all remaining unpaid Allen and Eakins plaintiffs regarding all prior asbestos litigation. If a plaintiff has been involved in prior litigation, we will provide you with any document that we can obtain for your review.

¶ 10. In accordance with the letter, the plaintiffs produced fifty-eight affidavits disclosing other asbestos litigation, and after an investigation of its own accord, ICRR determined fifty-six of the plaintiffs’ affidavits were false. Specifically, ICRR claims McDaniel and McWilliams excluded information from their affidavits regarding their status as named plaintiffs in separate and additional asbestos cases. McDaniel’s affidavit states:

I have never been a plaintiff or a claimant in any asbestos suit other than Allen v. ICRR, No. 2000-100, in the Circuit Court of Jefferson County, Mississippi and Alderson v. Garlock, Inc., et al., No. 2002-124-CV3, in the Circuit Court of Jones County, Mississippi, Second Judicial District.

ICRR points out this affidavit fails to mention McDaniel’s participation as a plaintiff in McNeil v. Dresser Industries, Inc., 2002-283-CV9.

¶ 11. Betty McWilliams, executrix of the estate of Larry McWilliams, submitted the affidavit ICRR takes issue with; it states:

Larry L. McWilliams has never been a plaintiff or a claimant in any asbestos suit other than Allen v. ICRR, No. 2000-100, in the Circuit Court of Jefferson County, MS and Moore v. Garlock, Inc. et al., No. 2002-470, in the Circuit Court of Smith County, MS.

ICRR points out this affidavit fails to mention McWilliams’ participation as a plaintiff in McNeil, and Acuff v. American Optical Corporation, 2003-159-CV8.

¶ 12. ICRR insists the plaintiffs’ omissions of McNeil and Acuff from, not only the McDaniel and McWilliams affidavits, but also from twenty-nine additional affidavits, constituted an egregious and pervasive pattern of deception. Conversely, plaintiffs’ counsel claim an unintentional mistake due to their own oversight resulted in the harmless absence of McNeil and Acuff from the affidavits. Plaintiffs point out both McNeil and Acuff were filed after the case at bar. Plaintiffs contend they therefore conformed to the procedure set forth in their letter, whereby they voluntarily agreed to furnish affidavits concerning only prior asbestos litigation, see supra.

¶ 13. The circuit court heard virtually identical arguments from both parties in open court. During the hearing the circuit court stated:

I think this case will turn on what your supplemental agreement says. If the plaintiffs were only to disclose prior, and I emphasize “prior” participation in asbestos litigation, then I believe that the court should disregard this argument and allow them to recover provided they have complied with all other aspects of the settlement agreement. If it says to disclose all participation in asbestos litigation, both past and present, then that may be another situation, and I need to determine whether this is such bad faith of a material breach of the agreement that it warrants dismissal of the plaintiffs. I need to know what the supplemental agreement says.

The circuit court thereafter allowed both parties to argue their positions on omission of McNeil and Acuff from certain affidavits. The circuit court then made its findings on the record, and those findings, in pertinent part, were as follows:

I believe you, counsel, that these things were omitted by inadvertence. I will suggest to you that when you’re dealing with something that’s — I mean, if we were talking about a simple letter, you inadvertently left something out of a letter to the Illinois Central or something to that effect, that’s one thing, but when you’re signing an affidavit or having people sign affidavits, if they’re swearing to things that are inadvertently wrong, that can have serious consequences. I mean, an affidavit is something that you need to make sure is correct before you allow the plaintiffs or whoever to sign it. In any event, the errors have been discovered. I don’t think there’s any prejudice.

The circuit court then denied ICRR’s motion to dismiss and granted the plaintiffs’ motion to enforce the settlement agreement.

¶ 14. This Court agrees with the circuit court that the absence of McNeil and Acuff m. the affidavits at issue was inadvertent, not willful and intentional as ICRR insists. Therefore, the circuit court did not abuse its discretion.

¶ 15. In addition, we remind the attorneys of this State that they should be very careful when signing, or having a client sign, a sworn statement such as an affidavit. Although sanctions were not deemed appropriate by the circuit court in this case, all attorneys should nonetheless heed the circuit court’s warning that swearing to false or incorrect statements could result in a myriad of dire consequences. The process of simply reading and verifying what is being signed operates as a seine for filtering out potential drastic errors caused by a factually incorrect sworn statement. Thus, this Court finds that such a preemptive warning, or admonition, offered to the legal community by this Court will operate as a preventive measure, to combat future affidavit inconsistencies. Nevertheless, this issue is without merit.

II. MOTION TO RECONSIDER

¶ 16. Subsequent to the circuit court’s grant of the plaintiffs’ motion to enforce the settlement agreement ICRR filed its motion to reconsider the ruling, to compel production, for further discovery and investigation, and for findings of fact and conclusions of law. The circuit court heard ICRR’s motion to reconsider its previous findings in open court. ICRR argued at the hearing that the circuit court abused its discretion when it failed to reconsider its findings in light of newly discovered evidence. Further, ICRR asserted the circuit court committed additional error by refusing to compel production of documents, refusing to allow discovery, and refusing a request for the court’s findings of fact and conclusions of law pursuant to M.R.C.P. 52(a).

¶ 17. After hearing arguments on the motion by both parties, the circuit court denied ICRR’s motion to reconsider. Today, on appeal, ICRR presents this Court with virtually identical arguments as it presented to the circuit court. ICRR claims the circuit court abused its discretion by denying the motion to reconsider.

¶ 18. ICRR initially raised the issue of newly discovered evidence at the motion hearing. The majority of ICRR’s argument on newly discovered evidence consisted of a rehash of ICRR’s previous arguments regarding the absence of McNeil and Acujf from the plaintiffs’ affidavits. In response the circuit court echoed its findings from the previous hearing, see supra, by stating:

I believe that there was no intent to defraud from what I’ve heard so far. It appears to me that there was a mistake made, and it was bad wording of your document that there was a mistake made and that the affidavit should have been worded differently, and I believe that. And I also believe that both you and your client should be more careful before they sign affidavits and anything of that nature under oath. I think that certainly they should be more careful and you should be more careful in instructing your clients. I will say that without hesitation; however, I don’t see that there’s any intent to defraud. From what I have before me at this point, I don’t see any intent to defraud.

¶ 19. ICRR then requested the circuit court to compel production of documents regarding an addendum to a contract of employment between the plaintiffs and their attorneys. Regarding this request, the circuit court declared:

Well, counsel [for ICRR], and I would grant that if there were something that you gain from the information that you’re requesting. First, of all you need to understand the information that you’re requesting is privileged.
I would order that that privilege be— that you produce the documents and things of that nature under exceptional circumstances, and if I felt that the information that you could obtain from reading these documents would show me that the language of this affidavit was intentional and that the folks intended to defraud you rather than a mistake in the drafting of the document by the attorney, then I might consider that, but I don’t see any way it could possibly do that, so I’m not going to allow you to get those things.

¶ 20. At the conclusion of the hearing, the circuit court pointed out McNeil and Acujf were filed after the case at bar, thus there was no statute of limitations defense that could be raised, and ICRR agreed. Moreover, the circuit court did not find that any of ICRR’s requests would lead to proof of its allegations. The circuit court ultimately denied ICRR’s motion to reconsider its ruling regarding ICRR’s motion to dismiss, and to compel production, to allow further investigation and discovery, and for findings and conclusions of law.

¶ 21. It is clear to this Court that the circuit court gave ICRR’s motion for reconsideration due consideration. Furthermore, although this Court prefers trial courts to make separate particularized findings of fact and conclusions of law, general findings of fact and conclusions of law do not require reversal, and they technically conform to the requirements of M.R.C.P. 52. Century 21 Deep South Props. Ltd. v. Corson, 612 So.2d 359, 366-67 (Miss.1992). In this case, the circuit court made several findings on the record regarding its decision to deny ICRR’s motion. Moreover, these findings are sufficiently situated as to allow this Court to make its own findings. In accordance with the circuit court’s on-the-record findings, we find the circuit court did not abuse its discretion when it denied ICRR’s motion. Thus, this issue is without merit.

III. RELEASES

¶22. ICRR now alleges it need not tender payment to either McDaniel or McWilliams because both previously released their asbestos claims against ICRR. Specifically, ICRR insists McDaniel personally released his claim by signing an occupational injury release, thereby releasing all personal injury claims he had against ICRR. Also, ICCR maintains McWilliams released his claim because his claim has already been settled pursuant to the settlement agreement.

McDaniel

¶ 23. In 1998, while employed by ICRR, McDaniel suffered a career ending back injury when he attempted to set a defective hand brake. Due to the injury he suffered, McDaniel sent his demands to ICRR’s claims department. As evinced by ICRR memoranda, McDaniel and ICRR subsequently settled his claim for the back injury suffered. As part of the back injury settlement, McDaniel signed a document titled Final Settlement Release and Agreement Not to Return to Work. The language of this document released ICRR for a number of ailments, including exposure to asbestos, see infra. Although he was x-rayed approximately one month prior to signing the release, McDaniel’s x-ray was not read until several months after the release was signed. Thus, McDaniel contends that at the time he signed the release at issue, he was not aware of his potential claim against ICRR for asbestos related injuries. Moreover, McDaniel maintains the release was ineffective as to his claim in this case.

¶ 24. Just as with every plaintiffs’ claim in this case, McDaniel’s claim was filed under FELA. Therefore, this Court must determine whether § 5 of FELA applies to McDaniel’s claim because § 5 of FELA limits ICRR’s ability to fully exempt itself from liability. Section 5 of FELA states in pertinent part “[a]ny contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void.... ” 45 U.S.C. § 55. The issue of release presently before this Court has previously been considered in two different federal circuits.

¶25. First, in Babbitt v. Norfolk & Western Ry. Co., 104 F.3d 89 (6th Cir.1997), the United States Court of Appeals, Sixth Circuit, considered a general release issue in regard to employee FELA claims against a railroad employer. In Babbitt, the Court considered the claims of plaintiff-employees under FELA on the grounds the defendant-railroad was responsible for hearing loss during the course of their employment. At issue in Babbitt was a general release signed by the plaintiffs upon resignation from the railroad. The Sixth Circuit determined:

where there exists a dispute between an employer and employee with respect to a FELA claim, the parties may release their specific claims as part of an out-of-court settlement without contravening the Act. However, where the release was not executed as part of a specific settlement of FELA claims, 45 U.S.C. § 55 precludes the employer from claiming the release as a bar to liability. Philadelphia, Baltimore, & Washington R.R. Co. v. Schubert, 224 U.S. 603, 612, 32 S.Ct. 589, 591-92, 56 L.Ed. 911 (1912). To be valid, a release must reflect a bargained-for settlement of a known claim for a specific injury, as contrasted with an attempt to extinguish potential future claims the employee might have arising from injuries known or unknown by him.

Babbitt, 104 F.3d at 93 (emphasis added).

¶ 26. In the case presently before this Court, the only known injury at the time McDaniel signed the release was the severe back injury he suffered as a result of a defective hand brake. Although McDaniel was x-rayed approximately one month prior to signing ICRR’s release form, the x-ray was not read until several months after he signed the release. Furthermore, there is no evidence McDaniel was aware he may have a potential asbestos-related injury. Therefore, in accordance with the Sixth Circuit’s view, the release McDaniel signed would not bar him from settlement.

¶ 27. Similarly, in Wicker v. Consol. Rail Corp., 142 F.3d 690 (3d Cir.1998), the United States Court of Appeals, Third Circuit, also considered the FELA claims of plaintiff-employees who were injured due to exposure to toxic chemicals during the course of their employment with defendant-railroad. However, Wicker failed to fully adopt the Sixth Circuit’s rationale in Babbitt. Instead of applying the Sixth Circuit’s bright-line rule, Wicker noted “that what is involved is a very fact-intensive process, but trial courts are competent to make these kinds of determinations.” Id. at 701. Furthermore, Wicker provided “where a release merely details a laundry list of diseases or hazards, the employee may attack that release as boilerplate, not reflecting his or her intent.” Id.

¶ 28. Hence, it is patently clear the Third Circuit strongly disfavors the use of “blanket releases” as applied in FELA claims. Wicker provided an example of what constitutes a sufficient release:

a release that spells out the quantity, location and duration of potential risks to which the employee has been exposed-for example toxic exposure-allowing the employee to make a reasoned decision whether to release the employer from liability for future injuries of specifically known risks does not violate § 5 of FELA.

Id. at 701. Accordingly, Wicker ultimately held:

As noted, we hold that § 5 of FELA allows an employer to negotiate a release of claims with an employee provided the release is limited to those risks which are known by the parties at the time the release is negotiated. In the case before us, we find the releases signed by the parties violate § 5 because they purport to settle all claims regardless whether the parties knew of the potential risks.

Id. at 702.

¶ 29. The release McDaniel signed as a result of an on the job injury settlement, covered a vast and extensive spectrum of potential injuries which could potentially arise in McDaniel’s future. Also, included within the language of the document appears the following phrase: THIS IS NOT A RECEIPT FOR WAGES — IT IS A GENERAL RELEASE. This farther evinces that the release at issue was in fact the dreaded “laundry list” general release, disfavored by both Babbitt and Wicker. The language found in the McDaniel release is clearly an overbroad list of generic hazards, rather than the specific risks of asbestos McDaniel faced. Therefore, pursuant to the Third Circuit’s school of thought McDaniel’s release would not pass muster under § 5 of FELA.

¶ 30. Conversely, ICRR propounds the United States Supreme Court decision of Callen v. Pennsylvania R. Co., 332 U.S. 625, 68 S.Ct. 296, 92 L.Ed. 242 (1948), is controlling authority. However, this Court does not agree due to numerous factual and legal dissimilarities between Callen and this case. Callen involved an instance where a plaintiff suffered a severe back injury during the course of his employment with the railroad. The plaintiff eventually filed suit against the railroad as a result of the injuries he sustained. Among its defenses to liability, the railroad claimed the plaintiff executed a valid release specifically pertaining to the plaintiffs claims arising out of the back injuries involved in the suit. Callen, 332 U.S. at 626-27, 68 S.Ct. 296. The release at issue in Cállen arose out of the plaintiffs back injury and was specifically designed and executed for future litigation as a result of that back injury. Id. The facts in Callen present an issue where a release arose out of the specific injury alleged. Conversely, the McDaniel release initially arose out of McDaniel’s back injury. However, ICRR asserts the release as a defense to payment for McDaniel’s current asbestos related injuries because the broad verbiage of the release creates an anticipatory laundry list of possible injuries effectively throwing in everything but the kitchen sink. Therefore, Cállen is clearly distinguishable from the case at bar.

¶ 31. After due consideration, this Court finds the holdings of the Sixth and Third Circuits are compelling authority as applied to this case. Further, after applying the holdings of both the Sixth and Third Circuits, we find McDaniel’s release was ineffective under § 5 of FELA to preclude his claim against ICRR for asbestos related injuries; to hold otherwise would produce an unconscionable result. Therefore, the circuit court did not abuse its discretion in finding McDaniel’s release ineffective in this case. Thus, McDaniel’s claim should not be released.

McWilliams

¶ 32. McWilliams, a former ICRR employee, entered into settlement negotiations with ICRR after being diagnosed with asbestosis. In accordance with the settlement agreement, McWilliams submitted the requisite supporting documentation regarding his illness, and ICRR agreed to payment. Prior to tendering payment, ICRR forwarded a release to McWilliams for his asbestos related injuries. McWil-liams signed the release and returned a copy of it to ICRR along with a letter explicitly stating “[t]he enclosed copies are not effective until such time as payment set forth above has been made by ICRR.” Further, the letter provided that ICRR would be sent the original copy of the release upon receipt of the settlement amount. However, approximately one week later McWilliams sent an additional letter notifying ICRR he had been diagnosed with cancer and would be withdrawing his claim, for which he had not been paid.

¶ 33. ICRR argues McWilliams settled his asbestosis claim and effectively released ICRR from any future claim. This argument fails on several fronts. First, the letter McWilliams attached to the copy of the signed release clearly demonstrated the copies of the release would not be effective until ICRR made payment. Next, ICRR never tendered nor completed any settlement payment whatsoever regarding McWilliams’ asbestosis injuries. Finally, the settlement agreement provided that “[pjrior to payment, any plaintiffs’ diagnosis could change: i.e., a plaintiff with a current diagnosis of asbestosis or asbestos related pleural disease could develop a malignancy, or a plaintiff with asbestos related pleural disease could be diagnosed with asbestosis.” The circuit court considered this very issue regarding McWilliams and determined:

My ruling on that case is, if in fact the agreement between Illinois Central and the plaintiffs allowed him to change his type of claim upon a new diagnosis prior to his being paid, and he changed his diagnosis prior to being paid, it falls within that section; and you need to look at the new diagnosis.

¶ 34. Pursuant to the settlement agreement between the parties, McWilliams was allowed to change his type of claim because he notified ICRR of his change of diagnosis prior to payment. Therefore, the circuit court did not abuse its discretion in its findings. This issue is without merit.

IV. CROSS-APPELLANT KELLY ROBINSON — STATUTE OF LIMITATIONS

¶ 35. On cross-appeal, Robinson argues the circuit court erred in finding the applicable FELA statute of limitations, under 45 U.S.C. § 56, had run as to his claim. 45 U.S.C. § 56 states:

No action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued.

“Compliance with 45 U.S.C. § 56 is a condition precedent to an injured employee’s recovery in a FELA action.” Emmons v. Southern Pacific Transp. Co., 701 F.2d 1112, 1117 (5th Cir.1983) (citing Gulf, Colorado & Santa Fe R.R. Co. v. McClelland, 355 F.2d 196, 197 (5th Cir.1966)). “The burden is therefore on the claimant to allege and to prove that his cause of action was commenced within the three-year period.” Emmons, 701 F.2d at 1118 (citing Carpenter v. Erie R.R. Co., 132 F.2d 362, 363 (3d Cir.1942), cert denied, 318 U.S. 788, 63 S.Ct. 983, 87 L.Ed. 1155 (1943)).

¶ 36. In 1989, well over three years before this case was filed, Robinson was diagnosed with pulmonary fibrosis. With this knowledge in hand, the circuit court found:

With respect to Kelly Robinson, I believe that this claim should be barred by the statute of limitations and dismissed because he was diagnosed with pulmonary fibrosis in 1989. The diagnosis at least put the plaintiff on notice of the accrual of his cause of action and the statute of limitations ran in 1992.

The circuit court applied the United States Supreme Court case of Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), in ruling Robinson’s claim was barred. Urie offers “the afflicted employee can be held to be ‘injured’ only when the accumulated effects of the deleterious substance manifest themselves.” 337 U.S. at 170, 69 S.Ct. 1018. Stated another way, as related to this case, Robinson’s claim for an asbestos related injury will begin to run when Robinson knew or reasonably should have known the injury was present.

¶ 37. Also, the circuit court applied the Federal District Court’s opinion in Williams v. S. Pac. Trans. Co., 813 F.Supp. 1227 (S.D.Miss.1992) to Robinson’s claim for asbestos related damages. In Williams the Federal District Court propounded “the federal courts have applied the discovery [rule] (an objective, ‘knew or should have known’ test) to determine when the limitation period begins to run.” Id. at 1232; see Emmons, 701 F.2d at 1119 (limitation period begins to run when claimant becomes aware that he has been injured and that his injury is work related); Fries v. Chi. & Nw. Transp. Co., 909 F.2d 1092, 1095 (7th Cir.1990) (the test is an “objective inquiry into when the plaintiff knew or should have known, in the exercise of reasonable diligence, the essential facts of injury and cause”); Albert v. Me. Cent. R.R. Co. 905 F.2d 541, 544 (1st Cir.1990); Townley v. Norfolk & W. Ry. Co., 887 F.2d 498, 501 (4th Cir.1989). Further, Williams decreed:

Actual knowledge by the plaintiff of the governing cause of the injury is not necessary to a finding that the cause of action has accrued. Further, it is not necessary that the plaintiff be formally advised by a physician or receive a medical diagnosis as to the cause of injury for the action to accrue. Nor must the injury reach its maximum severity before the cause is deemed to accrue. The action accrues when the injury first manifests itself to the plaintiff. As recognized by the courts, the discovery rule imposes an affirmative duty on plaintiff to investigate the potential cause of his injury. This is a fair rule since the discovery rule should not be abused by plaintiffs who are aware that an injury exists yet choose to ignore it and fail to investigate the cause. Obviously, such a course of wilful inaction has the potential of visiting prejudice upon defendants who may be blind-sided by lawsuits long after the complained-of negligence.

Williams, 813 F.Supp. at 1232 (citations omitted).

¶ 38. After due consideration, we find the circuit court properly applied the aforementioned precedent to this case in rendering its ultimate finding. Furthermore, there is nothing in the record demonstrating Robinson met his burden of proving he commenced his action within the three-year limitation period. After hearing arguments by both parties, the circuit court was in the best position to determine whether Robinson’s claim should be barred by the statute of limitations. In line with this notion and the applicable standard of review, this Court finds Robinson has failed to show the circuit court committed a clear error of judgment. Therefore, the circuit court has not abused its discretion, and this issue is without merit.

CONCLUSION

¶ 39. For the aforementioned reasons the circuit court did not abuse its discretion by ordering enforcement of the settlement agreement. Moreover, the circuit court did not abuse its discretion by finding cross-appellant Robinson to be barred pursuant to the statute of limitations defense, as provided in the contingent settlement agreement. Therefore, the judgment of the circuit court is affirmed regarding all issues.

¶ 40. AFFIRMED.

WALLER AND COBB, P.JJ., DIAZ, EASLEY, CARLSON AND DICKINSON, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. RANDOLPH, J., NOT PARTICIPATING.

      . Eakins v. Illinois Cent. R.R. Co., Civil Action No. 2001-65 (Cir. Ct. of Jefferson County).

      . Cosey v. E.D. Bullard Company, Civil Action No. 2001-65 (Cir. Ct. of Jefferson County) (eventually removed to U.S.D.C., No. 99-CV-164 (S.D.Miss.)).

      .The first page of the facsimile letter dates the document April 22, 2002; however this is apparently a mistake as the second page of the document sets the date correctly as April 22, 2004.

      . ICRR claims to have new evidence that the plaintiffs were aware of McNeil and Acuff at the time they signed the affidavits at issue. ICRR insists two documents pertaining to McNeil’s current status in bankruptcy proceedings conclusively prove plaintiffs’ counsel did not inadvertently omit McNeil and Acuff at the time the affidavits were drafted.

      . The contingent settlement procedure provided three defenses to payment for ICRR, see supra, and one of those defenses was a release of claim.

      . The following portion of the release at issue reads like a “laundry list” of potential claims from which ICRR sought exemption:
      ... the undersigned does hereby fully, completely and forever release, discharge, and acquit Illinois Central Railroad Company ... from any and all claims, losses, damages, injuries or diseases which are presently known to exist ans were or are directly or indirectly caused by or resulting from injuries which occurred on or about May 4, 1998, as well as any alleged exposure of the undersigned to asbestos, coal dust, sand, silica, welding fumes, brass fumes, diesel fumes, fuel fumes, paint vapors, methyl-bromide, ammonia, gas, lead, PCB, dioxin, or other toxic or noxious chemical exposure and all other fumes, dusts, mists, gases and vapors from any chemical or agent, injuries or diseases which are presently known to exist and were or are directly or indirectly caused by or resulting from the exposure of the undersigned to noise, including incidents or exposures which may have aggravated any pre-existing condition, as well as injuries to the upper extremities of my body including neck, shoulders, arms and wrists due to repetitive motion/strain and/or cumulative trauma-commonly known as Carpal Tunnel Syndrome, while the undersigned was in the employ or environment of the Illinois Central Railroad Company....


source: Caselaw Access Project

author: DIAZ, Justice,

license: Public Domain

text:
    H.S. STANLEY, Jr., Chapter 7 Trustee for the Bankruptcy Estate of Gulfport Pilots Association, Inc., as Substituted for Michael Kopszywa v. MISSISSIPPI STATE PILOTS OF GULFPORT, INC., Murrell W. Hinton, Jr., Stanley Fournier, Jr. and Thomas Gibson.
    No. 2004-CA-01145-SCT.
    Supreme Court of Mississippi.
    Dec. 7, 2006.
    Rehearing Denied March 29, 2007.

      George W. Byrne, Jr., Randall Scott Wells, attorneys for appellant.
    Nicholas Van Wiser, Biloxi, attorney for appellees.
   DIAZ, Justice,

for the Court.

111. In this case, we consider whether a judgment in a fraudulent conveyance action was proper. Finding that both the successor corporation and its directors are liable for the debts of the previous corporation, we reverse and remand.

FACTS

¶2. The facts of this case are not in dispute.

¶ 3. Gulfport Pilots Association, Inc., (GPA) was engaged in the business of piloting ships in and out of Gulfport Harbor. Four pilots were also the owners, officers, and directors of the corporation. Other employees included a pilot boat operator and four dispatchers. Michael Kopszywa was employed as the pilot boat operator in March 1995 when he was injured on the job. Mr. Kopszywa brought suit in the Circuit Court of Harrison County under the Jones Act. On March 25, 1997, after a two-day mediation, the case was settled for $200,000, plus outstanding medical bills of approximately $20,000.

¶ 4. When the GPA’s Bahama-based insurance company refused to pay and subsequently became insolvent, Mr. Kopszywa filed a motion to enforce settlement with the circuit court. A hearing on the motion was held on May 16, 1997, at which time the court announced it was going to rule in favor of Mr. Kopszywa. On May 22, 1997, the same day the circuit court judge entered his order granting the motion, the directors filed articles of incorporation for Mississippi State Pilots of Gulfport, Inc. They became owners, officers, and directors of the new corporation and transferred all of the employees from the old corporation to the new one. Mississippi State Pilots continued to operate from the same business address, used the same dock, the same accountant, the same law firm, the same bank, and served the same customers as GPA.

¶ 5. A week later, on May 29, 1997, the directors transferred ownership of one of the boats, the Gulfport Pilot II, to the new corporation by executing a promissory note for $12,000 in favor of the old corporation. That same day, all four resigned as employees of the old corporation, while remaining owners, officers, and directors. As a result, GPA was left with no employees and no assets other than some outstanding bills for work done prior to the formation of the new corporation and a dilapidated piloting boat, the Gulfport Pilot I.

¶ 6. On June 26, 1997, Mr. Kopszywa filed a fraudulent conveyance action against Mississippi State Pilots and the individual directors in the Chancery Court of Harrison County. On June 15, 1998, the day the matter was set for trial, the directors filed for Chapter 7 bankruptcy for GPA, staying all proceedings in the chancery court. The only remaining asset of the old corporation, the Gulfport Pilot I, sank the day it was turned over to the bankruptcy trustee.

¶ 7. The stay was finally lifted on November 21, 2001, and the matter was remanded to the chancery court to allow the trustee, H.S. Stanley, Jr., to proceed on behalf of Mr. Kopszywa on the fraudulent conveyance claim. At trial, the directors testified that their intent in forming the new corporation was to keep Mr. Kopszy-wa from collecting his judgment. The chancellor found that the directors had fraudulently conveyed the Gulfport Pilot II and one week’s worth of accounts receivable to the new corporation. While noting that Defendants’ actions were “distasteful and perhaps even morally wrong,” the chancellor did not find that the fraudulent conveyance pertained to any other assets of the new corporation. As a result, the chancellor found that the trustee could only recover $10,064.50 from Mississippi State Pilots of Gulfport.

ISSUES ON APPEAL

¶ 8. There are two issues on appeal: (1) whether the trial court erred in failing to find that the new corporation could be liable for the entire judgment and (2) whether the trial court erred in failing to find the directors personally liable.

STANDARD OF REVIEW

¶ 9. “We will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, applied an erroneous legal standard, was manifestly wrong, or was clearly erroneous.” Williams v. Williams, 843 So.2d 720, 722 (Miss.2003).

DISCUSSION

1. Corporate Liability.

¶ 10. We begin with the basics:

The general rule states that a corporation which acquires the assets, but not the stock of another corporation, is not obligated for the liabilities of the acquired corporation. Four exceptions to this rule have been carved out by this Court in instances where: (1) the successor expressly or impliedly agrees to assume the liabilities of the predecessor; (2) the transaction may be considered a de facto merger; (3) the successor may be considered a ‘mere continuation’ of the predecessor; or (4) the transaction was fraudulent.

Paradise Corp. v. Amerihost Dev., Inc., 848 So.2d 177, 179 (Miss.2003) (citing Huff v. Shopsmith, Inc., 786 So.2d 383, 388-89 (Miss.2001)). The last two exceptions are applicable in this case.

¶ 11. Regarding the fraudulent transaction, the main issue in this case is not whether there was a fraudulent conveyance but what assets were fraudulently conveyed under Miss.Code Ann. § 15-3-3 (repealed 2006). Fraudulent conveyance of an entire business was thoroughly examined by this Court in Morris v. Macione, 546 So.2d 969 (Miss.1989). In Morris, we affirmed a chancellor’s ruling to enforce specific performance of a contract when shareholders of a clothing store dissolved the corporation, created a new one, and transferred the store’s assets to the new entity. Id. We noted that “a corporate obligor and those who control it may not with impunity dissolve the corporation in a debt avoidance maneuver and cause its assets to be transferred to a new successor corporation. This is so whether the debt arises in contract, quasi-contract, or tort.” Id. at 971 (internal citations omitted). Furthermore, “(n)either law nor equity will permit one corporation to take all the property of another, deprive it of the means of paying its debts, enable it to dissolve its corporate existence, and place itself practically beyond the reach of creditors, without assuming its liabilities.” Id. (quoting Meridian L. & R. v. Catar, 103 Miss. 616, 621, 60 So. 667, 658 (1912)).

¶ 12. The chancellor correctly cited Morris for the proposition that “the creditor’s rights in such cases are limited to the extent that the successor corporation acquired the assets of the predecessor.” However, because the trial court limited its inquiry to the one week that the directors were employed as pilots by both corporations, the chancellor failed to find that Defendants fraudulently conveyed the entire business to the new corporation. In this case, the defendants improperly transferred their entire business in order to avoid a legal obligation. Moreover, this fact was repeatedly admitted at trial by all of the individual defendants. The new corporation was formed the same day the order to enforce settlement was entered.

¶ 13. The new corporation operated from the same business address, used the same dock, the same accountant, the same law firm, the same bank, and served the same customers as GPA. The remaining accounts receivable were used to pay the outstanding debts of GPA (other than Mr. Kopszywa’s Judgment), and the rest was divided among the directors. The only asset that was transferred for value, the Gulfport Pilot II, was found by the trial court to be fraudulently conveyed.

¶ 14. The chancellor noted that “a wealth of the badges of fraud are present,” even though the company “took great pains to make the transaction appear fair.” Additionally, the day Defendants were to go to trial on the fraudulent conveyance claim, GPA filed for Chapter 7 bankruptcy protection in an effort to dissolve the old corporation. The only creditor in the bankruptcy proceeding was Mr. Kopszywa, and the corporation’s only remaining asset, a boat, sank the day it was handed over to the trustee. Mississippi State Pilots of Gulfport, Inc. is unmistakably liable for Mr. Kopszywa’s judgment against GPA up to the amount fraudulently transferred.

¶ 15. The amount transferred includes all of the accounts receivable from GPA, rather than one week’s worth as the chancellor found. Because it is unclear from the record whether the value of the transferred assets would equal the amount of the judgment, it is necessary to discuss the alternative doctrine of “continuity of enterprise.” In Paradise Corp. v. Amerihost Development, Inc., 848 So.2d 177 (Miss.2003), we adopted the “continuity of enterprise” theory to hold a successor corporation liable for the predecessor’s debts where the successor benefitted from the goodwill of the predecessor without sharing the liabilities. The theory considers several factors: (1) whether only one corporation remains after the transfer of assets; (2) identity of stock, shareholders, and directors between the two corporations; (3) retaining the same employees; (4) retaining the same supervisory personnel; (5) retaining the same business facilities in the same physical location; (6) offering the same services; (7) retaining the same name; (8) continuity of assets; (9) continuity of general business operations; and (10) whether the successor holds itself out as the continuation of the previous enterprise. Id. at 180 (citing Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 175 (5th Cir.1985)).

¶ 16. The trial court also examined this Court’s decision in Paradise, but found it inapplicable to these facts for the sole reason that this was not a stock acquisition. This finding is clearly erroneous, for identity of stock is only a portion of one factor to be considered. Here, the record demonstrates that the successor company took on the identity of the predecessor company in every way except taking responsibility for the predecessor’s debts. The new corporation consisted of identical shareholders, directors, officers, employees, and supervisory personnel. The new corporation also used the same docking facility, dock, pilot boat, office address, and provided the same piloting services. Except for the Gulfport I, the assets were the same, and the only change in general business operations was use of a different name.

¶ 17. Defendants argue that Paradise should not apply for several reasons. First, they argue that no assets other than the Gulfport II were transferred from the old corporation to the new one, including the business’s goodwill. The undisputed facts reveal that the entire business was transferred to the new corporation. Additionally, goodwill has most certainly been transferred. Goodwill has been defined by the U.S. Supreme Court as “the expectancy of continued patronage.” Newark Morning Ledger Co. v. United States, 507 U.S. 546, 555, 113 S.Ct. 1670, 1675, 123 L.Ed.2d 288, 299 (1993) (quoting Boe v. Commissioner, 307 F.2d 339, 343 (9th Cir.1962)). The new corporation was guaranteed continued patronage because Defendants enjoyed a state-sanctioned monopoly over piloting services in the Gulfport harbor. All vessels of a certain size entering and leaving the Port of Gulfport must be navigated by a pilot who is licensed by the Mississippi State Port Authority, and new pilots could only be licensed upon the recommendation of GPA, now Mississippi State Pilots of Gulfport. Defendants’ contention that no assets were fraudulently conveyed is wholly without merit.

¶ 18. Defendants also claim that their actions were necessary to “ensure continued piloting services to the Port of Gulf-port.” The defendants do not provide this service for free, and even if a reasonable person would believe their motive was purely altruistic, it would not negate their intent to commit fraud. It is uncontro-verted that their sole intent in forming the new corporation was to prevent Mr. Kopszywa from collecting on his judgment.

¶ 19. Defendants further argue that paying the directors’ “salaries” out of the old corporation’s funds was completely proper. They offer no authority to support them position, and even if these amounts were payment for previous piloting work and not corporate dividends, the conveyance is still fraudulent. The directors never resigned as officers and directors of the old corporation. They subsequently used their complete control over the corporation to prefer themselves over a legitimate creditor. We have held that “[o]ffieers, directors and stockholders of an insolvent corporation, or one rendered insolvent by conveyance to them, cannot prefer themselves in payment of pre-existing debts and thus deprive creditors of their claims against the corporation.” Cooper v. Miss. Land Co., 220 So.2d 302, 304 (Miss.1969). Additionally, “[a] director occupies a fiduciary position toward creditors, and he has a better knowledge of the condition of the company than have the other creditors. He should not be permitted to use that position to benefit himself at their expense.” Id. at 307. Defendants’ assertion that “there is nothing wrong with a corporation preferring certain legitimate creditors over others,” is completely erroneous under these facts.

¶20. Their additional contentions have no basis in law. The directors argue that no assets could have been transferred because the corporation was rendered insolvent by the judgment and they instructed their accountant to keep the corporations completely separate. They also claim that somehow they should not be liable because Mr. Kopszywa’s attorney was “too lazy” to collect on the accounts receivable before the funds were distributed to the directors. Additionally, they assert that enforcing the settlement order would somehow violate the Thirteenth Amendment to the U.S. Constitution prohibiting slavery and involuntary servitude. Defendants cite no statutory or case law to support their contentions, which, even if true, have no relevance to this fraudulent conveyance action. Finally, Defendants argue that the Paradise decision “stretch[ed] the traditional notions of the alter ego theory to accomplish a specific ruling.”

¶ 21. These arguments are wholly frivolous and merit no discussion. Under Paradise, the new corporation is a mere continuation of GPA and the new corporation is liable for all of GPA’s debts.

II. Individual Liability of Directors

¶ 22. The trustee argues that the trial court erred in failing to find the directors personally liable for their actions. We have held that “[t]he rationale used by courts in permitting the corporate veil to be pierced is that if a principal shareholder or owner conducts his private and corporate business on an interchangeable or joint basis as if they were one, he is without standing to complain when an injured party does the same.” A & L, Inc. v. Grantham, 747 So.2d 832, 843-44 (Miss.1999) (citing Bone Constr. Co. v. Lewis, 148 Ga.App. 61, 250 S.E.2d 851, 853 (1978)). Additionally, the chancellor correctly recites the rule that piercing the corporate veil is appropriate where the corporation exists to perpetuate a fraud. See North Am. Plastics, Inc. v. Inland Shoe Mfg. Co., 592 F.Supp. 875, 877-78 (N.D.Miss.1984) (citing Johnson & Higgins of Miss., Inc. v. Comm’r of Ins. of Miss., 321 So.2d 281, 285 (Miss.1975) (accepting the piercing doctrine in Mississippi)).

¶ 23. However, the chancellor went on to find that the individual defendants are not personally liable even though they fraudulently conveyed their entire business:

In the instant case, their [sic] was no evidence that the individual owners of Gulfport Pilots Association treated the assets of the corporation as their own or used corporate funds to pay private debts. There was no evidence that they failed to observe corporate formalities or keep separate corporate books. The pilots wrongfully conveyed the Gulfport Pilot II to their new corporation, but there was no evidence that they used the corporation’s status as a corporate entity to perpetuate a fraud. While they created the second corporation to avoid the tort liability incurred by the first, this constituted an avoidance of a corporate obligation, not a personal one.”

(emphasis in original).

¶ 24. The trial court erred in finding that there was no evidence that the directors treated corporate assets as their own. As discussed in Part I, the directors distributed the profits of the old corporation to themselves. In doing so, the directors preferred themselves over other creditors and thereby committed fraud. Our case law clearly holds that directors may not violate their fiduciary duties to the corporation and prefer themselves over other legitimate creditors. Cooper, 220 So.2d at 304.

¶ 25. Furthermore, the purpose of piercing the corporate veil is to make individuals personally liable for corporate obligations. “The personal liability of [Defendants] arises from them diversion of corporate assets.” Morris, 546 So.2d at 972. “Corporate officers who participate in illegal diversions of corporate assets are liable therefor.” Gibson v. Manuel, 534 So.2d 199, 202 (Miss.1988) (citing Knox Glass Bottle Co. v. Underwood, 228 Miss. 699, 769, 89 So.2d 799, 828 (1956)).

¶26. Additionally, the findings of the trial court only pertain to a certain number of situations which warrant disregarding the corporate entity. Because of the equitable nature of this doctrine, the corporate veil may be pierced in a variety of situations. F.M.C. Finance Corp. v. Murphree, 632 F.2d 413, 422 (5th Cir.1980). See Laya v. Erin Homes, Inc., 177 W.Va. 343, 352 S.E.2d 93, 98-99 (1986) (listing nineteen circumstances that permit a finding of personal liability, including the formation and use of the corporation to assume the existing liabilities of another entity). This Court has previously held that conveying a business to a new corporation in order to avoid a corporate obligation was sufficient to find personal liability. Morris, 546 So.2d 969. Similarly, because the directors have abused the corporate entity to knowingly defraud a legitimate creditor they can be held personally liable, to the extent that the new corporation has acquired the assets of the old corporation. Id. at 972. Finally, the chancellor would have required that the directors knowingly contracted with a financially unreliable insurance company in order to hold them individually liable. While the judgment cites no authority, it apparently relies on the rule adopted in some jurisdictions that undercapitalization may warrant disregarding the corporate entity. See e.g., Hambleton Bros. Lumber Co. v. Balkin Enters., 397 F.3d 1217, 1229 (9th Cir.2005) (applying Oregon law). This is too stringent a test and is not the rule in Mississippi. Because there is more than sufficient evidence to support a finding of individual personal liability, we decline to address this issue in the present case.

CONCLUSION

¶ 27. The findings of the trial court were clearly erroneous. The issues here are the same as those presented in Morris, and under Paradise, the new corporation is liable for all the debts of GPA. Therefore, the judgment is reversed, and this case is remanded for a determination of the amount of Defendants’ personal liability, i.e., the value of the fraudulently transferred accounts receivable, as well as a determination of attorneys’ fees and punitive damages.

1128. REVERSED AND REMANDED.

WALLER, PJ., EASLEY, CARLSON, GRAVES AND RANDOLPH, JJ., CONCUR. COB.B, PJ., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. DICKINSON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. SMITH, C.J., NOT PARTICIPATING.

      . 11 U.S.C. § 544(b) permits the trustee to avoid fraudulent transfers and gives the trustee the rights of any actual creditor who may avoid a transfer under state law.

      . This statute has been replaced, effective July 1, 2006, by the Uniform Fraudulent Transfer Act, Miss.Code Ann. §§ 15-3-101 et seq. (Supp.2006).

      . At the time of conveyance, GPA’s tangible assets consisted of the two boats, accounts receivable, a filing cabinet, and an unknown amount of money in a bank account. The trial court found that GPA did not have sufficient assets and capital to satisfy the liability. However, to support their argument that Kopszywa's attorney was "too lazy” to attempt to seize the accounts, Defendants claimed in their brief that there was in fact enough money in accounts receivable to satisfy the judgment.

      . The chancellor quoted from a dissenting opinion by Justice Mills: “the only situations which warrant piercing the corporate veil are situations in which a party has abused the corporate entity to perpetrate fraud and evade contractual and tort responsibility.” J & W Foods Corp. v. State Farm Mut. Auto. Ins. Co., 723 So.2d 550, 554 (Miss.1998)(Mills, J., dissenting)(citing Hogan v. Mayor & Aldermen of Savannah, 171 Ga.App. 671, 320 S.E.2d 555, 558 (1984)).


author: COBB, Presiding Justice,

text:
    In the Matter of the ESTATE OF Alvarado H. KELLY, Deceased. William Kelly v. Sarah D. Cuevas.
    No. 2005-CT-00011-SCT.
    Supreme Court of Mississippi.
    Jan. 18, 2007.
    Rehearing Denied March 29, 2007.

      Floyd J. Logan, Gulfport, attorney for appellant.
    Nicholas M. Haas, Waveland, attorney for appellee.
   ON WRIT OF CERTIORARI

COBB, Presiding Justice,

for the Court.

¶ 1. Faced with a challenge to its jurisdiction filed by William R. Kelly, Sr. (Kelly), the Hancock County Chancery Court found that the will of Alvarado H. Kelly (decedent) was a foreign will governed by Miss.Code Ann. Section 91-7-33 (Rev. 2004) which authorizes the probate of a foreign will in Mississippi courts if it affects or disposes of property within this state. The trial court concluded it had jurisdiction based upon personal property the decedent was presumed to have had in Mississippi at the time of his death. The Court of Appeals affirmed the chancery court’s judgment, but remanded for a specific finding as to what personal property was located in the state. Because the incorrect law was applied by the trial court in its analysis, and accepted by the Court of Appeals, we granted certiorari and reviewed all issues. We conclude that the decedent’s will was not a foreign will, but rather was a domestic will, sounding in Mississippi law, executed by the decedent in 1992 in Hancock County, Mississippi, where he had resided in a residential care facility for more than 25 years, and where he died. As such, it was duly admitted for probate in common form by Executrix Sarah D. Cuevas, and all statutory requisites were met. There is no question that the trial court had subject matter jurisdiction. No final judgment was entered specifically regarding the common form probate, because Cuevas subsequently filed a second complaint in the same case, for probate in solemn form, and the final judgment from which this appeal arises is based upon it.

¶ 2. We affirm the trial court’s denial of Kelly’s Motion to Dismiss for Lack of Jurisdiction, and its granting of Cuevas’s Motion for Judgment on the Pleadings. We are mindful that this is a harsh result, but the record reveals that Kelly had actual knowledge of the will (naming Cuevas as beneficiary and not including Kelly) and of its probate in both common and solemn form, no later than 92 days after the decedent’s death. Yet he did not respond in the Mississippi proceedings in any way, by special appearance or otherwise, until more than three years after the chancellor had entered her judgment adjudicating Cuevas to be “the sole devisee and legatee of the decedent, Alvarado H. Kelly.”

¶ 3. Instead, Kelly chose to file and pursue a Petition for Administration of the decedent’s estate (intestate) in the Hills-borough County, Florida, Circuit Court, and actually attached a copy of the decedent’s Mississippi will to his petition there, which was filed seven weeks after Cuevas filed her initial complaint to probate the will in common form in Mississippi. Ultimately, the Florida Supreme Court, on August 25, 2004, denied review of the Florida Second District Court of Appeal’s finding that “[bjarring any other deficiency, the Mississippi Judgment was entitled to full faith and credit in Florida .... [and] the Mississippi Court had jurisdiction to commence the probate proceedings.”

FACTS AND PROCEEDINGS IN TRIAL COURT

¶ 4. In December of 1960, the decedent was declared mentally incapacitated and was committed to a Veterans’ Administration (V.A.) medical facility in that state. In September of 1961, he was transferred to Gulfport, Mississippi, and in January, 1975, came to reside at a V.A.-approved residential care home operated by Sarah D. Cuevas. Payments for Cuevas’s services were made monthly out of a guardianship account that has at all times remained in Florida.

¶ 5. Alvarado Kelly lived in Cuevas’s care home in Hancock County, Mississippi, until his death on November 1, 2000. On November 8, Cuevas filed the complaint, the decedent’s will, and the various documents required for admitting the will for probate in common form. The will instructed that Cuevas be appointed executrix, and stated in part: “I give, devise and bequeath all my property real, personal, and mixed to: Sarah D. Cuevas ... [m]ore specifically, my personal property located in the Sun Trust Bank, P.O. Box 1498, Tampa Florida 33601.” In the Judgment Appointing Executrix, which declared Cue-vas executrix and sole devisee, and admitted the will to probate, the chancery court “adjudicate[d] that it ha[d] jurisdiction of the parties and the subject matter.”

¶ 6. Seven weeks later, on December 27, 2000, Kelly, the decedent’s brother, filed a petition for intestate administration of the decedent’s estate with the clerk of the Circuit Court for Hillsborough County, Florida. Kelly’s complaint included sworn allegations that the decedent was domiciled in Hillsborough County until the date of his death. Additionally, the complaint asserted that all of the decedent’s assets were located in Florida, “other than clothing and personalty of nil value.” Kelly did not file a caveat, or otherwise contest the common form proceedings already filed in the Mississippi chancery court. There is no question, however, that he had actual knowledge of the 1992 will, as he attached a copy to his petition in the Hillsborough County Circuit Court, in which he stated:

Petitioner is unaware of any unrevoked Wills or Codicils of decedent, other than a purported document, a true copy of which is attached hereto as EXHIBIT C. Petitioner is without knowledge as to whether EXHIBIT C was in fact executed by the decedent in accordance with the formalities of law. Petitioner states that if said document was executed by the decedent, the decedent at all time material, was a person judicially declared to be incapacitated and lacked testamentary capacity necessary to execute a will.

The petition went on to allege there was a confidential relationship and undue influence between the care giver, Cuevas, and the decedent.

¶ 7. On January 24, 2001, Cuevas filed a complaint to admit the decedent’s will to probate in solemn form in the Hancock County, Chancery Court. The complaint recited that the decedent was a resident of Hancock County, that he had resided there for more than thirty years, and that he died a resident thereof. Kelly was personally served with a Rule 4 summons on January 81, 2001. He did not file a response to the complaint and the chancery court entered a judgment on March 9, 2001, ruling that Cuevas was the decedent’s sole devisee and legatee.

¶ 8. On April 12, 2001, the Hillsborough County Circuit Court entered an order finding that the Florida courts had jurisdiction over the administration of the decedent’s estate, as he was domiciled in Florida at the time of his death, and his bank accounts were located in Florida. The circuit court also granted letters of administration to Kelly. The Florida District Court of Appeal, however, reversed the decision of the circuit court on March 29, 2004, holding that full faith and credit should be given to the judgment of the Mississippi chancery court. Cuevas v. Kelly, 873 So.2d 367 (Fla.Dist.Ct.App.2004), review denied, Kelly v. Cuevas, 882 So.2d 385 (Fla.2004).

¶ 9. On April 6, 2004, Kelly made a special appearance in the Hancock County Chancery Court and filed a motion to dismiss for lack of jurisdiction. The court subsequently determined that Miss.Code Ann. Section 91-7-1 “cannot be construed to require that a testator be domiciled in Mississippi, as Counsel for Kelly argues, since the plain language of the statute is ‘fixed place of residence.’ ” Erroneously relying on the foreign will statute, Miss.Code Ann. Section 91-7-33, the court found then that Mississippi “has jurisdiction to probate the wills of non-domiciliaries provided that any of their real or personal property was located here at the time of death.” Concluding that the decedent could not have resided in Hancock County for thirty years without leaving behind some clothing or personal items, the chancery court thus found that jurisdiction was proper under Section 91-7-33, stating that “[t]he Court finds that the central jurisdictional fact is not domiciliary intent but whether the will affects or disposes of property within Mississippi.” It thereafter denied the motion to dismiss and granted Cuevas’s motion for judgment on the pleadings in accordance with Rule 12(c) of the Mississippi Rules of Civil Procedure.

PROCEEDINGS IN THE COURT OF APPEALS

¶ 10. On appeal, the Court of Appeals affirmed the chancery court, erroneously finding that the decedent’s will was foreign, and as such, jurisdiction was rightfully asserted based upon the belief that the decedent had some personal property located in the state. Kelly v. Cuevas, 951 So.2d 564, 2005 WL 3289367 *3, 2005 Miss.App. LEXIS 995, *8-9 (Miss.Ct.App.2005). It further found that Miss.Code Ann. Section 91-7-33 sets no requirements as to the value or amount of the property, and remanded to the trial court “for a specific finding of the personal property located in Mississippi”. Id. at 567, 2005 WL 3289367 *5, at *13. We reverse this portion of the Court of Appeals’ judgment.

¶ 11. However, the Court of Appeals correctly held that jurisdictional facts do not have to be pled when probating the will in common form, stating that Cuevas satisfied all requirements by “attach[ing] the original will to the petition, as well as affidavits of the two attesting witnesses stating that the decedent was of sound and disposing mind at the time he executed his will. Id. at 567, 2005 WL 3289367 *3-4, at *9-10. The Court of Appeals correctly determined that the solemn form proceeding was defective as Kelly was served with Rule 4 summons instead of the Rule 81 service of process required by the Mississippi Rules of Civil Procedure. Id. at 567-68, 2005 WL 3289367 *4, at *13. The court also correctly concluded that the two-year statute of limitations under the common form proceeding had run, thus constituting a final judgment in favor of Cuevas. Id. at 568, 2005 WL 3289367 *3-4, at *9-10. We agree with its succinct summary of the situation:

[Ejven though the solemn form probate decree is invalid due to the Rule 4 summons, the chancery court had jurisdiction of the common form probate proceeding and no caveat objecting to the probate was filed. Thus the two-year limitations period for contesting a will admitted to probate in common form has passed, and the probate in common form is now “final and forever binding.”

Id. at 568, 2005 WL 3289367 *4, at *13.

ANALYSIS

I. Standard of Review

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

II. Subject Matter Jurisdiction

¶ 13. Under Mississippi law, there are two different types of probate proceedings: common form and solemn form. In order to probate a will in solemn form, all interested parties must be properly served with a Rule 81 summons. M.R.C.P. 81(a)(8) and (d)(1). Because Cuevas served Kelly with a Rule 4 summons, the Court of Appeals properly found the solemn form proceeding void for lack of notice. Kelly, 951 So.2d at 567-68, 2005 WL 3289367 *3, 2005 Miss.App. LEXIS 995, at *11. Further, pursuant to Rule 81(d)(3), complaints filed to probate wills in solemn form shall not be taken as confessed, so the March 9, 2001, judgment entered by the trial court was defective. The common form proceeding is therefore the proper subject of our analysis.

¶ 14. Kelly argues that Rule 8 of the Mississippi Rules of Civil Procedure and Section 91-7-1 required Cuevas to include the basis for the chancery court’s jurisdiction in her petition to probate the will in common form. As Cuevas failed to plead that decedent was domiciled in the state but rather stated that he was a “resident citizen,” Kelly contends that the chancery court did not have subject matter jurisdiction to probate the will.

¶ 15. Subject matter jurisdiction is the power of the court to hear and determine cases in the general class to which the particular case belongs. Will of Case v. Case, 246 Miss. 750, 758, 150 So.2d 148 (1963). In Mississippi, chancery courts are vested with subject matter jurisdiction in all matters testamentary. Miss. Const. art. 6, § 159(c). In this case, the will was probated in the Hancock County Chancery Court as the last will and testament of a Mississippi resident. Although the decedent’s domiciliary status could have been challenged by Kelly, it was not, and now is time-barred. Subject matter jurisdiction is therefore proper here.

¶ 16. In a common form probate proceeding, a proponent makes a pri-ma facie case by simply producing the will and affidavits from the two attesting witnesses verifying that the will was duly executed and the decedent had testamentary capacity. Moore v. Parks, 122 Miss. 301, 318, 84 So. 230 (1920). Cuevas submitted these documents to the court along with the will; she was not required to produce any additional pleadings. See Bearden v. Gibson, 215 Miss. 218, 219, 60 So.2d 655 (1952).

¶ 17. There is no foreign will involved in this case, and the fact that the decedent was a resident of Hancock County, Mississippi, at the time of his death was not timely disputed. Thus, both the trial court and the Court of Appeals erred to the extent that they found the decedent’s will to be a foreign will.

III. Conclusion

¶ 18. As Kelly failed to appear and protect his rights within the two years provided under Miss.Code Ann. § 91-7-23, he is statutorily barred from contesting the validity of the will probated in common form. The only exception to this long established two-year limitation is where concealed fraud is proven, and in the present case, Kelly knew of the Mississippi will and that it had been filed for probate in Mississippi more than three years before he attempted to contest it. Thus there was no concealment from the only person who could have raised this issue. Without a timely challenge from Kelly, the Chancellor was within her rights to grant the judgment on the pleadings based on the documents filed for probate in common form. Accordingly, we affirm the chancery court judgment and the Court of Appeals’ judgment except we reverse the Court of Appeals’ judgment to the limited extent that it remanded this case for a finding of the personal property located in Mississippi.

¶ 19. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THE JUDGMENT OF THE HANCOCK COUNTY CHANCERY COURT IS AFFIRMED.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., CONCURS IN RESULT ONLY. GRAVES, J., NOT PARTICIPATING.

      . This is the venue statute for proof of wills which provides in pertinent part: "[w]ills shall be proved in and letters testamentary granted by the chancery court of the county in which the testator had a fixed place of residence ... If ... no fixed place of residence and personal property only be disposed of by the will, it may be proved in and letters granted .... [in] the county where the testator died, or of the county in which some of the property may be.” Miss.Code Ann. § 91-7-1 (Rev.2004).