author: CARLSON, Justice,

text:
    James B. YELVERTON v. Rhonda H. YELVERTON.
    No. 2004-CT-01684-SCT.
    Supreme Court of Mississippi.
    July 26, 2007.

      Michael J. Malouf, Melissa A. Malouf, Jackson, attorneys for appellant.
    Damon Scott Gibson, attorney for appel-lee.
   CARLSON, Justice,

for the Court.

¶ 1. The Chancery Court for the First Judicial District of Harrison County entered a final judgment granting Rhonda H. Yelverton (Rhonda) a divorce from James B. Yelverton and ordering James to pay Rhonda lump sum alimony in the amount of $250,000 (with minimum monthly payments of $5,000); child support in the amount of $2,500 per month; periodic alimony in the amount of $2,500 per month; twenty-five percent of James’s annual adjusted gross income above $150,000; and $10,000 in attorney’s fees. James appealed to us, assigning five issues, and Rhonda cross-appealed, assigning one issue. We assigned this case to the Court of Appeals, which affirmed the chancery court’s judgment in toto on both direct appeal and cross-appeal. We granted James’s petition for writ of certiorari, and upon careful consideration of the record and the applicable law, we find that the judgment of the Court of Appeals must be reversed and this case remanded to the trial court for further proceedings consistent with this opinion.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. The Court of Appeals meticulously set out the relevant facts of this case, which we thus present here verbatim:

James and Rhonda were married on September 7, 1988, and have three children. At the time of the filing of the divorce in February of 2002, Jason was nineteen,[] Blake was eleven and Elizabeth was ten. The Yelvertons lived in Hattiesburg, Mississippi[,] and Lafayette, Louisiana, prior to moving to Gulf-port, Mississippi[,] in 1992. James was a car salesman, and Rhonda was a registered nurse. James took a job as the manager of Turan Foley Mitsubishi, which he and Rhonda later purchased in 1996 for $488,000. Turan Foley Mitsi-bushi then became Jim Yelverton Imports. In 2001, James sold fifty-two percent of the business to Ed Wettach for $654,825.93. The two executed a memorandum of agreement, that was introduced into evidence, and explained that James retained forty-eight percent of the business and his silent partner, Wettach, held the remaining fifty-two percent. This sale became complete in January 2001.
Since the time Elizabeth was born in January of 1992, Rhonda did not work. She began working as a nurse part-time in April of 2002. In December 2002, James and Rhonda purchased a residence referred to as the Magnolia property as an investment. James and Rhonda separated on January 25, 2002, and Rhonda filed for divorce on February 18, 2002, on the ground of habitual cruel and inhuman treatment^] After the separation, James resided at the Magnolia property, and Rhonda resided in the marital home with the children. On March 13, 2003, the chancellor entered a temporary order awarding the parties joint legal custody of the children and Rhonda having sole physical custody and James having visitation. The chancellor further ordered James to pay child support in the amount of $4,000 per month and temporary alimony. Rhonda was awarded use of the marital home and was responsible for the house note. At the time, the chancellor appointed James Koerber to assess the worth of Jim Yelverton Imports.
After the entry of this temporary order, James filed a motion for modification listing debts which he had not previously mentioned. However, James violated the temporary order, because he failed to pay both the court ordered child support and alimony. Rhonda filed complaints for contempt against James for his failure to pay both child support and alimony. A hearing was held on the contempt matters on October 15, 2003. At that hearing, evidence was shown that James had only paid Rhonda $11,286.90, when he had owed her over $50,000 in child support and alimony. The chancellor reserved the contempt issue for trial. The trial took place on November 17, 2003, and January 20, 21, 23, and 26, 2004, in the Chancery Court of the First Judicial District of Harrison County. Both James and Rhonda Yelverton testified along with other witnesses, including James Koerber, who was appointed by the court to evaluate the worth of Jim Yelverton Imports, and Ed Wet-tach, James’s silent partner. Koerber reviewed the business documents of Jim Yelverton Imports and rendered his opinion that James’[s] forty[-eight] percent interest was worth $490,974 after appropriate discounts. James along with the company accountant, Ed Joe, argued that James and Wettach orally agreed that should the stock of the corporation be sold, Wettach would receive $612,288 (his investment in the company) first and then the two would split the remaining proceeds. Koerber dismissed this agreement since there was no documentation created when this transaction occurred in January of 2001, and it was not until August 2003, after the divorce complaint was filed, that this agreement was put into writing. The parties then agreed that the determination of the value of James’s forty eight percent of the company should be left to the court.
The parties’ joint tax returns were admitted into evidence to prove the couple’s income. In 2001[J the partiesf’] total income was $436,742 and in 2002 their income was $873,408 even though Rhonda only began working again part-time in August 2002. After reviewing these tax returns and hearing testimony regarding the loan issue stated above from Wettach to Jim Yelverton Imports, the chancellor found the value of James’s forty-eight percent to be $490,974.
The chancellor rendered his findings of fact and conclusion of law on April 13, 2004, and entered his judgment on April 29, 2004. The court granted Rhonda a divorce on the grounds of cruel and inhuman treatment, awarded Rhonda primary custody and control of the minor children, and awarded James visitation after he and the children successfully completed counseling. The court also ordered James to pay child support in the amount of $2,500 per month and to provide medical and dental insurance for the minor children and for the parties to divide non-covered expenses. James was also ordered to pay college expenses for all three children. The court ordered the marital home and the Magnolia property to be sold and the proceeds divided after paying off the mortgage and loans.
The court awarded James ownership of Jim Yelverton Imports, but he was ordered to pay Rhonda $250,000 in lump sum alimony to be paid in minimum installments of $5,000 per month. The parties were ordered to each be responsible for their own personal debt, and Rhonda was awarded $2,500 per month in periodic alimony along with twenty-five percent of James’[s] income over and above the annual adjusted amount of $150,000. Rhonda was also awarded the automobile that she was driving.
The court found James in contempt for his failure to pay ordered child support and spousal support and awarded Rhonda a judgment in the amount of $40,771.83, which was to be paid within sixty days. Lastly, James was ordered to pay Rhonda’s attorney’s fees in the amount of $10,000 and court costs.
James filed a motion to reconsider on May 10, 2004. Rhonda filed another contempt action on June 3, 2004. On July 1, 2004, the court heard both the motion to reconsider and the contempt action. The chancellor amended his judgment to require $25,000, which was represented by a deed of trust between James and Jim Yelverton Imports to be paid to Jim Yelverton Imports out of the sale of the Magnolia property before the parties split the equity. Regarding the contempt action, James had only paid Rhonda $4,526.22 between April 1, 2004, and June 30, 2004. The court had ordered James to pay $40,771.83 in arrear-age, monthly amounts of $2,500 in child support, $2,500 in periodic alimony and $5,000 in lump sum alimony. He was to pay this within sixty days of the judgment. Evidence also showed that James received funds in the amount of $158,202.13 during this time period.
At this hearing, James testified that he had numerous credit card debts, a new wife and baby to care for. However, evidence was presented that showed while Rhoda and the two minor children had sold the marital home and moved into an apartment as ordered by the court, James had gotten remarried, purchased a Mercedes for his new wife and they were living at the Magnolia property previously ordered to be sold by the chancellor. Therefore, the court found James in wilful contumacious contempt.[]

Yelverton v. Yelverton, 961 So.2d 48, 50-52, 2006 WL 2406765, 2006 Miss.App. LEXIS 613, -2-8, ¶¶ 4-13.

PROCEEDINGS BEFORE THE COURT OF APPEALS

¶ 3. On direct appeal, James argued that the chancellor erred in awarding Rhonda (1) lump sum alimony in the amount of $250,000 (with a minimum payment of $5,000 per month); (2) $2,500 in monthly child support; (3) $2,500 in monthly periodic alimony; (4) an additional twenty-five percent of James’s income over $150,000; and (5) $10,000 in attorney’s fees. Additionally, Rhonda cross-appealed alleging that, on the motion to reconsider filed by James, the chancellor erred in directing that the proceeds of the sale of the Magnolia Place property be applied to a $25,000 deed of trust to Jim Yelverton Imports.

¶ 4. The Court of Appeals affirmed the trial court on all issues. Today, we reverse the judgment of the Court of Appeals, and remand this case to the trial court for further proceedings consistent with this opinion.

DISCUSSION

¶ 5. In his petition for writ of certiorari, James asks us to consider whether the Court of Appeals erred in (1) failing to reverse the chancellor’s judgment which ordered James to pay Rhonda a monthly amount which exceeded his net monthly income; (2) failing to reverse the chancellor due to his failure to make the required findings for the lump sum alimony award, and in applying an erroneous legal standard; (3) failing to reverse the chancellor for his failure to make the required findings to support the child support award; and (4) failing to reverse the chancellor for factual findings which were manifestly in error as to the valuation of Jim Yelverton Imports. Keeping in mind that pursuant to M.R.A.P. 17(h), we can “limit the question on review” upon a grant of certiorari, we will restate these issues for clarity in discussion.

¶ 6. When this Court reviews a chancellor’s decision in a case involving divorce and all related issues, our scope of review is limited by the substantial evidence/manifest error rule. R.K. v. J.K., 946 So.2d 764, 772 (Miss.2007) (citing Mizell v. Mizell, 708 So.2d 55, 59 (Miss.1998)). Therefore, we will “not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or a clearly erroneous standard was applied.” Id. Our case law in the area of divorce, child custody and support, alimony, and division of property has evolved over the last three decades. See Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983) (factors to be considered in child custody cases); Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988) (factors to be considered in lump sum alimony cases); Hammonds v. Hammonds, 597 So.2d 653, 655 (Miss.1992) (factors to be considered in periodic alimony cases); Armstrong v. Armstrong, 618 So.2d 1278, 1281-82 (Miss.1993) (discussion of various awards incident to divorce — periodic alimony; lump sum alimony; division of jointly accumulated property; and, award of equitable interest in property); Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994) (factors to be considered in equitable division of marital property); Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994) (definition of marital property to aid chancellor in applying Ferguson factors); Pearson v. Pearson, 761 So.2d 157, 165-66 (Miss.2000) (application of the Hammonds factors with minor revised language, cited by the parties in today’s case); Lauro v. Lauro, 847 So.2d 843, 846-50 (Miss.2003) (discussion on application of Hemsley factors in determining marital or non-marital assets, application of Ferguson factors in equitably distributing marital assets, and application of Armstrong-Hammonds factors in determining if an award of alimony is necessary so as to avoid one spouse suffering a deficit distribution); Haney v. Haney, 907 So.2d 948 (Miss.2005) (“Cheatham factors are really nothing more than an earlier version of the Ferguson factors, and both are used for the same purpose.” Id. at 954, see also, Id. at 955, ¶ 26). Likewise, since the legislative creation of the Court of Appeals, effective 1994, that court also has issued numerous opinions on these subjects, some of which will be hereinafter discussed.

I. WHETHER THE CHANCELLOR ERRED IN AWARDING RHONDA LUMP-SUM ALIMONY IN THE AMOUNT OF $250,000.

¶ 7. James asserts that the chancellor failed to apply the Cheatham factors with regard to lump sum alimony. Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988). James opines that Haney v. Haney, 788 So.2d 862 (Miss.Ct.App.2001) (Haney I) and Miller v. Miller, 874 So.2d 469 (Miss.App.2004) now make it mandatory for a chancellor to make specific findings of fact and conclusions of law regarding the Cheatham factors when awarding lump sum alimony. James argues that had the chancellor applied such factors, lump sum alimony never would have been awarded. James likewise argues that the Court of Appeals failed to reverse the trial court for failure to apply the Cheatham factors, but instead listed the Cheatham factors and stated “All of these factors have been met.” Yelverton v. Yelverton, 961 So.2d at 52-53, 2006 Miss.App. LEXIS at *10, ¶ 16.

¶ 8. History reveals that this Court and the Court of Appeals have considered, at least in part, the guidelines delineated in Cheatham, Haney II, and Miller. In Cheatham, this Court outlined the four factors to consider:

1) Substantial contribution to accumulation of total wealth of the payor either by quitting a job to become a housewife, or by assisting in the spouse’s business. Tutor v. Tutor, 494 So.2d 362 (Miss.1986); Schilling v. Schilling, 452 So.2d 834 (Miss.1984);
2) A long marriage. Jenkins v. Jenkins, 278 So.2d 446, 449 (Miss.1973); Tutor and Schilling, supra;
3) Where recipient spouse has no separate income or the separate estate is meager by comparison. Jenkins, Tutor and Schilling, supra;
4)Without the lump sum award the receiving spouse would lack any financial security. Abshire v. Abshire, 459 So.2d 802, 804 (Miss.1984).
A closer analysis of these cases, however, reveal[s] that the single most important factor undoubtedly is the disparity of the separate estates.

Cheatham, 537 So.2d at 438. Haney III clarified the Cheatham factors and stated, “the Cheatham factors are really nothing more than an earlier version of the Ferguson factors.” Haney III, 907 So.2d at 954. In Haney III, we likewise stated that “the Cheatham factors were simply an earlier attempt by this Court to provide a chancellor with guidelines for awarding what today is called an equitable distribution of marital assets .... we see no Ferguson factor which would be inappropriate in evaluating lump sum alimony” Id. at 955. That being said, James’s assertion is correct that the chancery court was obligated to apply the appropriate factors necessary to determine whether Rhonda was entitled to lump sum alimony, i.e., the Cheatham-Ferguson factors.

¶ 9. Since we have determined that the Cheatham factors are encompassed within the Ferguson factors, the Ferguson factors should now be set forth and applied in all appropriate situations:

1. Substantial contribution to the accumulation of the property (see Cheatham factor No. 1).
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
3. The market value and the emotional value of the assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as [non-marital assets].
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution.
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties.
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity (-See Cheatham factors Nos. 3 & 4).
8. Any other factor which in equity should be considered (-See Cheatham factor No. 2).

Haney III, 907 So.2d at 954-55. Thus, we turn now to the issue of whether the chancery court appropriately applied these factors in considering the issue of lump-sum alimony.

¶ 10. In its final judgment entered consistent with very thorough findings of fact and conclusions of law, the chancery court awarded lump sum alimony in favor of Rhonda in the amount of $250,000. In doing so, the chancellor went to great lengths to explain James’s misconduct. By way of example, “[t]he Court finds that [James] Yelverton, during the course of the divorce, dissipated the assets of the parties, continued to accumulate debts, refused to pay debts that were due and sold the property of the parties in violation of the Court’s Orders and directives.” However, the trial court never set out or applied the Cheatham factors or the Ferguson factors. On appeal, the Court of Appeals outlined the Cheatham factors, but with little discussion. Yelverton v. Yelverton, 961 So.2d 52-53, 2006 Miss.App. LEXIS 613, ¶ 16.

¶ 11. Therefore, since the chancellor in today’s case failed to make adequate findings of fact and conclusions of law as to the Ferguson factors, we are constrained to reverse the chancellor on this issue and remand this case to the trial court to revisit this issue. See Lauro, 847 So.2d at 847; Johnson v. Johnson, 823 So.2d 1156, 1161 (Miss.2002); Sandlin v. Sandlin, 699 So.2d 1198, 1204 (Miss.1997). Upon remand, the chancellor should properly apply the Ferguson factors to his findings of fact.

II. WHETHER THE CHANCELLOR ERRED IN AWARDING RHONDA MONTHLY CHILD SUPPORT IN THE AMOUNT OF $2,500.

¶ 12. James next contends that the chancellor failed to make findings to support his deviation from the child support guidelines as required by Miss.Code Ann. § 43-19-101 (Rev.2004) and Chesney v. Chesney, 910 So.2d 1057 (Miss.2005). According to Miss.Code Ann. § 43-19-101:

(1) The following child support award guidelines shall be a rebuttable presumption in all judicial or administrative proceedings regarding the awarding or modifying of child support awards in this state:
(2) The guidelines provided for in subsection (1) of this section apply unless the judicial or administrative body awarding or modifying the child support award makes a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined under the criteria specified in Section 43-19-103.
(4) In cases in which the adjusted gross income as defined in this section is more than Fifty Thousand Dollars ($50,000.00) or less than Five Thousand Dollars ($5,000.00), the court shall make a written finding in the record as to whether or not the application of the guidelines established in this section is reasonable.

¶ 13. The chancery court, in its findings of fact and conclusions of law, merely stated “[t]he Court finds that based on [James]’s income, the needs of the children and their related expenses, the statutory guidelines should not apply.” Subsection (4) of section 43-19-101 no doubt applies, since James’s adjusted gross income was unquestionably well above $50,000; however, the chancellor’s findings in today’s case fell short of subsection (4)’s requirement that “the court shall make a written finding in the record as to whether or not the application of the guidelines established in this section is reasonable.” Likewise, subsection (4) must be read in conjunction with subsection (2); therefore, in making this finding of the inapplicability of the statutory guidelines, the chancellor failed to fully comply with Miss.Code Ann. § 43-19-101(2) by making a “written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined under the criteria specified in Section 43-19-103.” Indeed, if a ehancel-lor deems it appropriate to deviate from the statutory guidelines, the chancellor must make a written finding or a specific finding on the record that the application of the guidelines is “unjust or inappropriate” as determined by the criteria set out in Miss.Code Ann. § 43-19-103 (Rev.2004), which provides:

(a) Extraordinary medical, psychological, educational or dental expenses.
(b) Independent income of the child.
(c) The payment of both child support and spousal support to the obligee.
(d) Seasonal variations in one or both parents’ incomes or expenses.
(e) The age of the child, taking into account the greater needs of older children.
(f) Special needs that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the proposed guidelines.
(g) The particular shared parental arrangement, such as where the noncustodial parent spends a great deal of time with the children thereby reducing the financial expenditures incurred by the custodial parent, or the refusal of the noncustodial parent to become involved in the activities of the child, or giving due consideration to the custodial parent’s homemaking services.
(h) Total available assets of the obligee, obligor and the child.
(i) Any other adjustment which is needed to achieve an equitable result which may include, but not limited to, a reasonable and necessary existing expense or debt.

Stated differently, in order for this Court to affirm a chancellor’s award which deviates from the guidelines of Miss.Code Ann. § 43-19-101(1), we must find from the record that the chancellor was able to “overcome the rebuttable presumption that the statutory award is the appropriate measure of child support by making an on-the-record finding that it would be unjust or inappropriate to apply the guidelines.” Chesney, 910 So.2d at 1061.

¶ 14. However, the chancellor determined that James was capable of earning at least $12,000 per month after taxes. Applying the mandatory child support guidelines outlined in Miss.Code Ann. § 43-19-101(1), James would be required to pay $2,400 per month. That being said, the chancery court required James to pay an extra hundred dollars a month for child support, which was a clear deviation from the guidelines.

¶ 15. In addition, as explained infra, the chancellor, on remand, will be required to re-evaluate James’s net worth. Upon revisiting this issue, should the chancellor decide again to deviate from the statutory guidelines, the chancellor must make a specific, on-the-record finding which overcomes the rebuttable presumption. Because this issue has merit, we reverse and remand to the chancery court.

III. WHETHER THE CHANCELLOR ERRED IN AWARDING RHONDA MONTHLY PERIODIC ALIMONY IN THE AMOUNT OF $2,500.

¶ 16. Based on the chancellor’s judgment, James is required to pay Rhonda $10,000 per month as follows:

(1) Lump Sum Alimony — $5,000 per month for the next 50 months
(2) Child Support — $2,500 per month
(3) Periodic Alimony — $2,500 per month.

¶ 17. As stated, supra, the chancellor determined that James was capable of making $12,000 a month after taxes, but he also determined that James’s reasonable monthly expenses were $6,429. As for Rhonda, the chancellor determined that the necessary expenses for Rhonda and the children added up to $6,000, and that Rhonda currently earned $2,118.65 per month working part-time as a nurse. The chancellor concluded, however, that Rhonda was capable of working full-time, which would result in an increase in her monthly salary.

¶ 18. Thus, although recognizing that James had to spend $6,429 per month on his expenses, the chancellor ordered James to pay Rhonda $10,000 per month. This award would give Rhonda approximately $12,118.65 a month, although her monthly expenses totaled only $6,000, and would leave James with a negative balance of $4,429 per month. Such action by the chancellor leaves James destitute and in hopeless continuous contempt of court. Furthermore the award is not equitable and fair and is per se unreasonable. See Brooks v. Brooks, 652 So.2d 1113, 1124 (Miss.1995).

¶ 19. In Brooks, the husband was required to pay the wife more per month than he earned. On appeal, this Court stated:

In order to achieve equitable and fair results incident to a divorce, awards of alimony and any division of property should be considered together by a chancellor. We have unequivocally stated that proposition, as follows:
All property division, lump sum or periodic alimony payment, and mutual obligations for child support should be considered together....
In the final analysis, all awards should be considered together to determine that they are equitable and fair.

652 So.2d at 1124 (citing Ferguson, 639 So.2d at 929). (Emphasis in original). Additionally, a “chancellor should consider the reasonable needs of the wife and the right of the husband to lead as normal a life as possible with a decent standard of living.” Brooks, 652 So.2d at 1122 (citing Massey v. Massey, 475 So.2d 802, 803 (Miss.1985)). Thus, Rhonda’s award of periodic alimony must also be reversed and remanded. Consistent with Armstrong, 618 So.2d at 1280-82, and its progeny, the chancellor should consider all payments of support and division of property together to arrive at an equitable and fair result, on this issue and all other issues.

IV. WHETHER THE CHANCELLOR ERRED IN CALCULATING THE VALUE OF JIM YEL-VERTON IMPORTS.

¶20. Finally, James asserts that the chancellor was manifestly wrong in his calculation of the value of Jim Yelverton Imports. The chancellor determined that James and Rhonda possessed only three assets at the time of their divorce: the car dealership (Jim Yelverton Imports) in which Jim owned a 48 percent interest, the marital residence and adjoining lot, and the Magnolia Place property. However, Jim Yelverton Imports is the sole source of income for James. Thus, it is the only source from which James can make his court-ordered payments.

¶ 21. Since we are remanding this case for other purposes, we need not enter into a lengthy discussion on this issue; however, in an effort to lend guidance to the chancellor upon remand, we state here that the chancellor should be mindful that “goodwill,” whether “personal goodwill” or “business enterprise goodwill” shall not be included in the valuation of Jim Yelverton Imports. See Watson v. Watson, 882 So.2d 95, 105, ¶46 (Miss.2004). “[Goodwill is simply not property; thus it cannot be deemed a divisible marital asset in a divorce action.” Singley v. Singley, 846 So.2d 1004, 1011, ¶ 18 (Miss.2002).

¶ 22. The chancellor determined that James’s 48 percent minority interest in Jim Yelverton Imports amounted to $490,974 and that James was capable of earning $12,000 per month after taxes. Based on these evaluations, the chancellor arrived at the specified court-ordered payments. While the chancellor is given great discretion and we will not disturb his findings “unless manifestly wrong, clearly erroneous, or if the chancellor applied an erroneous legal standard!,]” we direct that on remand the chancellor should again reevaluate James’s value in Jim Yelverton Imports. Henderson v. Henderson, 703 So.2d 262, 264 (Miss.1997). Consistent with our discussion, supra, this re-evaluation should exclude goodwill.

¶ 23. Because the above issues are intertwined with the value of Jim Yelverton Imports and James’s income, the chancellor should take all factors into consideration when making an equitable distribution and awarding support payments.

¶ 24. As we said in Lauro:

Equitable distribution is the first step in a divorce matter; therefore, upon remand the chancellor must revisit his awards of alimony and child support. Also upon remand, after the marital assets have been properly divided and alimony and child support properly awarded, the chancellor may revisit his award of attorney’s fees to [the wife] in the event of any modifications in the division of the marital assets and awards of alimony and child support.

847 So.2d at 852.

CONCLUSION

¶ 25. In sum, for the reasons stated, we reverse the judgment of the Court of Appeals on the issues discussed. We note that in his petition for writ of certiorari, James did not ask us to consider the Court of Appeals’ affirmance of the chancellor’s $10,000 award in attorney’s fees for Rhonda; however, as a result of our decision today, the chancellor is not restricted from revisiting this issue, as well as all issues raised on appeal.

¶ 26. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THIS CASE IS REMANDED TO THE CHANCERY COURT FOR THE FIRST JUDICIAL DISTRICT OF HARRISON COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, GRAVES, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR.

      . James B. Yelverton is also referred to in the record as Jim and Jimmy, but for consistency we will refer to him as James.

      . Jason is Rhonda’s child by a previous marriage, but after James’s marriage to Rhonda, James adopted Jason.

      . After filing for divorce in February of 2002, Rhonda and James decided to reconcile. During the reconciliation, the couple decided to purchase the Magnolia Property in December 2002. Subsequent to purchasing the Magnolia Property, Rhonda followed through with the complaint for divorce and in April 2004, a divorce was granted in favor of Rhonda on the grounds of habitual cruel and inhuman treatment.

      . The contempt issue is not before this Court on appeal; thus, we will not address this issue.

      . Haney I involved an appeal to the Court of Appeals as to the distinction between equitable distribution of property and lump sum alimony. Haney I, 788 So.2d at 865. The trial court had applied the Ferguson factors to the Haney estate to determine each spouse's equal share, but classified the $104,974.77 award to Mrs. Haney as lump sum alimony. Id. Thus, the Court of Appeals reversed and remanded to the trial court instructing the trial court to apply the Cheatham factors br-stead of the Ferguson factors because the Cheatham factors dealt explicitly with lump sum alimony. Id. After attempting to apply the Cheatham factors, the trial court again awarded the sum of $104,974.77 to Mrs. Haney. Haney v. Haney, 881 So.2d 862 (Miss.Ct.App.2003) (Haney II). Once more, the award was appealed to the Court of Appeals in Haney II. Id. The Court of Appeals held that the chancellor "failed to illustrate, analyze or explain how each Cheatham factor affected his consideration and supported the award of lump sum alimony.” Haney II, 881 So.2d at 866. Thus, the Court of Appeals reversed and remanded back to the trial court. Id. at 867. Based on the decision in Haney II, Mr. Haney petitioned for writ of certiorari, which was granted by us. Haney v. Haney, 907 So.2d 948 (Miss.2005) {Haney III). While we determined that no further analysis was necessary by the chancellor who had previously applied the Ferguson factors as opposed to the Cheat-ham factors in Haney III, James’s argument that a chancellor must make specific findings of fact and conclusions of law concerning the awarding of lump sum alimony is still supported by the decision in Haney III.

      . In fact, in Haney III, we did a “side-by-side comparison” of the Ferguson factors and the Cheatham factors to illustrate how the Ferguson factors in essence consumed the Cheat-ham factors. 907 So.2d at 954-55.

      . Watson is applicable here although Watson involved a "solo professional practice” as opposed to Jim Yelverton Imports, which involves two share holders.


source: Caselaw Access Project

author: DIAZ, Presiding Justice,

license: Public Domain

text:
    L. Rodney KNIGHT, Keith Knight and Chad Knight, Being All the Heirs at Law of Eljean T. Knight, Deceased v. Greg TERRELL d/b/a Terrell Security Services and d/b/a GTS Terrell Services.
    No. 2006-CA-00753-SCT.
    Supreme Court of Mississippi.
    July 26, 2007.

      Steven D. Slade, Meridian, Jacqueline K. Thach, Heidelberg, attorneys for appellant.
    Lanny R. Pace, Jackson, attorney for appellee.
    Before DIAZ, P.J., CARLSON and GRAVES, JJ.
   DIAZ, Presiding Justice,

for the Court.

¶ 1. This case asks whether a peace officer appointed by a school board to provide security is immune from suit by virtue of sovereign immunity.

Facts and Course of Proceedings Below

¶2. Eljean Knight and her son Keith Knight were both schoolteachers at Heidelberg High School. A student began a confrontation with Mrs. Knight. Her son attempted to intervene, but at some point Mrs. Knight was pushed or fell to the ground. The injury she suffered caused her death.

¶ 3. Keith Knight filed suit against the school and others, specifically Greg Terrell, an independent contractor doing business with the school as Terrell Security Services. Knight alleged that Terrell failed in multiple ways to perform his duties, which resulted in the death of Mrs. Knight.

¶ 4. Terrell moved for summary judgment, arguing that he was immune from suit by virtue of the Mississippi Tort Claims Act. Miss.Code Ann. § 11-46-1 et seq. (Rev.2002). The trial court granted summary judgment in Terrell’s favor, relying solely on an opinion from the Office of the Attorney General that a “school peace officer” was entitled to immunity by virtue of the Mississippi Tort Claims Act. The trial court further determined that Terrell had not acted with reckless disregard. Because Terrell had not acted with reckless disregard, and because he was found to be under the protection of the MTCA, the trial court found that he was immune to suit.

¶ 5. The case was dismissed, and Knight appeals to this Court, asserting that Terrell does not enjoy statutory immunity, and in the alternative, that even if the statute applies, it is a jury question whether he acted with reckless disregard. This is a case of first impression.

Standard of Review

¶ 6. We employ a de novo standard of review when examining the grant or denial of summary judgment. Heigle v. Heigle, 771 So.2d 341, 345 (Miss.2000). The evidence will always be viewed in the light most favorable to the party against whom the motion has been made, with the moving party bearing the burden of demonstrating that no genuine issue of fact exists. Id.

Is A Peace Officer Appointed by a School Board Afforded Statutory Immunity?

¶ 7. The Legislature allows schools to retain peace officers for the purpose of providing security on school campuses. See Miss.Code Ann. § 37-7-321 (Rev.2001). An accompanying statute grants to these independent contractors the powers of a constable. The authorizing statute reads, in pertinent part:

¶ 8. The peace officers duly appointed by the school board of any school district are vested with the powers and subjected to the duties of a constable for the purpose of preventing all violations of law on school property within the district, and for preserving order and decorum thereon. The peace officers duly appointed by the school board of any school district are also vested with the powers and subjected to the duties of a constable for the purpose of preventing all violations of law that occur within five hundred (500) feet of any property owned by the school district, if reasonably determined to have a possible impact on the safety of students, faculty or staff of the school district while on said property. Provided, however, that nothing in this section shall be interpreted to require action by any such peace officer appointed by a school district to events occurring outside the boundaries of school property, nor shall any such school district or its employees be liable for any failure to act to any event occurring outside the boundaries of property owned by the school district.

Miss.Code Ann. § 37-7-323 (Rev.2001). The general responsibilities of a constable are outlined in Miss.Code Ann. § 19-19-5 (Rev.2003). A constable’s duties fall under the title of “police protection” and are generally immune from suit by virtue of Miss.Code Ann. § 11 — 46—9(l)(c) (Rev. 2002).

¶ 9. Generally speaking, independent contractors are not granted immunity under the MTCA. See Estate of Johnson v. Chatelain, 943 So.2d 684, 687 (Miss.2006) (“With few exceptions, independent contractors are excluded from the definition of ‘state employee’ and therefore do not benefit from the provisions of the sovereign immunity statutes.”). Terrell provided no citation to any case in support of his argument that he is immune from suit by virtue of the MTCA, relying only, as the trial court did, on the opinion of the Attorney General that he was immune under statute.

¶ 10. In 1999, then-State Superintendent of Education Dr. Richard Thompson asked for clarification from the Office of the Attorney General regarding the immunity of the independent contractors retained as peace officers by schools. In response, the Attorney General offered that:

¶ 11. [I]f a school board designates such an off-duty officer as a peace officer pursuant to Miss.Code Ann. Section 37-7-321 and 323, then the school district imbues the security guard with the powers and authority of a constable, which is a law enforcement officer under Miss.Code Ann. Section 19 — 19— 5. As a law enforcement officer, this peace officer would be entitled to certain immunities from some federal and state claims. Additionally, if a security guard is duly appointed to be a peace officer pursuant to Miss.Code Ann. 37-7-321 and 323, then the school district, as part of its statutory law enforcement responsibilities, may enter into an interlocal agreement with other law enforcement entities for the provision of equipment to its peace officer. Nevertheless, it is important to point out that if the acts of the officer are such that he is not granted qualified immunity, the school district faces potential liability for such acts.

1999 Miss. AG LEXIS 201, 1-5 (Miss. AG 1999).

¶ 12. Terrrell argues that the statute “grants to such a peace officer all of the powers of a constable and imposes on such an officer all of the duties of a constable; consequently, such a peace officer is entitled to any immunities afforded constables.” Yet the statute does not contain an express grant of immunity, and it is beyond this Court’s authority to write one into the statute where it does not exist See Univ. of Miss. Med. Center v. Easterling, 928 So.2d 815, 820 (Miss.2006) (the Supreme Court has a “constitutional mandate to faithfully apply the provisions of constitutionally enacted legislation”). Unless or until the Legislature expressly crafts the statute to provide constabulary immunity to independent contractors, we will not draft one where it does not exist.

¶ 13. Accordingly, the trial court erred in finding that Terrell was immune to suit by virtue of the MTCA.

Conclusion

¶ 14. Miss.Code Ann. §§ 37-7-321 and 37-7-323 allow schools to retain independent contractors to work as peace officers on school grounds. However, the Legislature did not provide an express grant of immunity to those independent contractors, and the Court will not create one where it does not exist. We therefore reverse and remand for a trial on the merits.

¶ 15. REVERSED AND REMANDED.

SMITH, C.J., WALLER, P.J., CARLSON, GRAVES, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. EASLEY, J„ CONCURS IN RESULT ONLY.

      . The statute reads in pertinent part that:
      (1) The school board of any school district within the State of Mississippi, in its discretion, may employ one or more persons as security personnel and may designate such persons as peace officers in or on any property operated for school purposes by such board upon their taking such oath and making such bond as required of a constable of the county in which the school district is situated. (2) Any person employed by a school board as a security guard or school resource officer or in any other position that has the powers of a peace officer must receive a minimum level of basic law enforcement training, as jointly determined and prescribed by the Board on Law Enforcement Officer Standards and Training and the State Board of Education, within two (2) years of the person’s initial employment in such position. Upon the failure of any person employed in such position to receive the required training within the designated time, the person may not exercise the powers of a peace officer in or on the property of the school district.

      . “A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim ... Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury.”


author: DIAZ, Presiding Justice, CARLSON, Justice,

text:
    GRENADA LIVING CENTER, LLC, Community Care Center of Grenada, LLC, Comm Care Mississippi, James S. Williams and James C. Landers v. Cephus COLEMAN, III (substituted for Anne Donaldson), as Personal Representative of Cephus Coleman, Jr., Deceased and on behalf of the Wrongful Death Beneficiaries of Cephus Coleman, Jr., Deceased.
    No. 2006-CA-00169-SCT.
    Supreme Court of Mississippi.
    July 26, 2007.

      Steven Mark Wann, Marjorie Selby Busching, Jackson, attorneys for appellant.
    Charles E. Gibson, III, Jackson, Gigi Gibson, Ridgeland, attorneys for appellee.
   DIAZ, Presiding Justice,

for the Court.

¶ 1. This case addresses when a person is subject to the Uniform Healthcare Decisions Act and when a non-signatory is subject to arbitration.

Facts and Proceedings Below

¶ 2. Cephus Coleman, Jr. was a World War II veteran, paralyzed since eighteen from a wound suffered in battle. In a wheelchair since his service days, he earned a college degree, married, had a child, and served as pastor to a church. In 2003, well into his seventies, Mr. Coleman was living with his half-sister, Anne Donaldson. She needed help caring for him, and sought a nursing home who would accept the Veterans Administration benefits Cephus received. Grenada Living Center accepted the VA benefits, and Anne took steps to have Mr. Coleman become a resident.

¶ 3. In July of 2003 Mr. Coleman became a resident of Grenada Living Center, and he passed away on January 22, 2004, while still a resident. After his death, a suit was filed by Cephus’ son, Cephus Coleman, III, against the nursing home, which responded with the now-familiar motion to dismiss in favor of arbitration. Anne signed the contract for admission and placed her initials by the arbitration agreement. Coleman, wishing to avoid arbitration, argued that his father was never a party to the arbitration agreement and therefore could not have been bound by it.

¶ 4. At a hearing before the trial, the parties stipulated to several facts which are critical to our analysis. First, it was agreed that when Mr. Coleman was mentally competent when his half-sister had him placed in the nursing home. Second, Mr. Coleman was not present when Anne signed the admission agreement and the arbitration agreement. Third, Anne is Mr. Coleman’s half-sister who did not retain power of attorney, a conservatorship, a guardianship, or any other legal power over her half-brother. Mr. Coleman later executed a power of attorney in favor of his half-sister that the parties agreed was not retroactive.

¶ 5. The memoranda of the parties in the trial court and the hearings before the Grenada County Circuit Court focused on the issues on which many arbitration cases often turn, such as whether there was duress in the entering of the contract and if the agreement was unconscionable. After a review of two memoranda, multiple exhibits, and two hearings on the subject, the trial court issued a narrow ruling based on basic contract law: that, generally speaking, a contract is not enforceable against a person unless personally entered into. Accordingly, the trial court found that no contract existed and Mr. Coleman was not bound by arbitration.

¶ 6. Aggrieved, Grenada Living Center appeals, presenting us with one question on appeal: Is a competent person who was not a signatory to a contract bound by an arbitration clause contained within that contract?

Standard of Review

¶ 7. “The grant or denial of a motion to compel arbitration is reviewed de novo.” East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (Miss.2002). We have previously ruled that lawsuits involving negligence at a nursing home affects interstate commerce, thus invoking the Federal Arbitration Act. Vicksburg Partners, 911 So.2d at 515-16.

¶ 8. The FAA requires a two-step inquiry when scrutinizing an arbitration agreement. East Ford, 826 So.2d at 713. First, we must determine if the parties intended to arbitrate the dispute; if so, we next consider “whether legal constraints external to the parties’ agreement foreclosed the arbitration of those claims.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985); East Ford at 826 So.2d at 713. “Under the second prong, applicable contract defenses available under state contract law such as fraud, duress, and unconscionability may be asserted to invalidate the arbitration agreement without offending the Federal Arbitration Act.” Id. at 713; see 9 U.S.C. § 2 (an “agreement in writing to submit to arbitration an existing controversy ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract”).

Discussion

¶ 9. To determine if the parties are bound by arbitration, in this case we must first determine if a contract exists between them. A valid contract must have (I) two or more contracting parties, (2) consideration, (3) an agreement that is sufficiently definite, (4) parties with legal capacity to make a contract, (5) mutual assent, and (6) no legal prohibition precluding contract formation. Rotenberry v. Hooker, 864 So.2d 266, 270 (Miss.2003). In this case we focus on the fourth and fifth factors-whether the parties who executed the contract had the legal ability to create the contract or assent to the contract.

¶ 10. Coleman asserts that Anne could not legally bind his father to arbitration because he was not a party to the contract. In response, Grenada Living Center offers four reasons why arbitration applies.

¶ 11. Grenada Living Center asserts that Anne acted as Cephus’ healthcare surrogate, citing to the Uniform Healthcare Decisions Act. See Miss.Code Ann. § 41-41-203 et seq. (Rev.2005). This argument was never raised before the trial court in any fashion. We have “repeatedly held that a trial judge will not be found in error on a matter not presented to the trial court for a decision.” Purvis v. Barnes, 791 So.2d 199, 203 (Miss.2001). Accordingly, this issue is procedurally barred.

¶ 12. Notwithstanding this procedural bar, we will briefly examine the plain language of the statute for the sake of guidance. Section 1 of the statute defines the requirements for any person who wishes to be a surrogate. There are two pre-conditions: “A surrogate may make a health-care decision for a patient who is an adult or emancipated minor if [1] the patient has been determined by the primary physician to lack capacity and [2] no agent or guardian has been appointed or the agent or guardian is not reasonably available.” Miss.Code Ann. § 41-41-211(Rev.2005) (emphasis added). Therefore, a close reading of the statute reveals that a prerequisite before any other analysis is that a patient may only have a surrogate if they do not have mental capacity to make decisions and they do not have any other person legally available to care for them. Sections 2 and 3 of the statute define who may be a surrogate, but the preconditions of Section 1 must first be met.

¶ 13. In the case at hand, the parties stipulated that Mr. Coleman was competent, and no physician had declared him incompetent. In addition, no agent or guardian had been appointed, and so the first pre-requisite of Section 1 was not met. Accordingly, Mr. Coleman’s half-sister Anne could not have been his healthcare surrogate. Further, it is clear from the statute that the Legislature intended to create a system whereby a family member (or other de facto guardian) could tend to the health needs of a loved one when they were incapacitated. Because Mr. Coleman was not incapacitated, the statutes governing health care surrogates do not apply.

¶ 14. The nursing home also asserted that “neither Mississippi, nor Federal Law require a power of attorney, conservatorship, guardianship or other court-ordered legal authority to admit a resident to a nursing home.” Grenada Living Center provided no citation of authority in this section. Accordingly, this argument is barred, as failure to cite any authority in support of a claim of error precludes this Court from considering the specific claim on appeal. See Grey v. Grey, 638 So.2d 488, 491 (Miss.1994).

¶ 15. Third, the nursing home argued that Anne’s actions could bind Mr. Coleman through express agency, or in the alternative, implied agency. As noted above, Grenada Living Center stipulated before the trial court facts which undercut the theory of express agency, including stipulating that there was no express grant of agency through a guardianship, conser-vatorship, or power of attorney. The trial court found no basis for the nursing home to simply assume the presence of express agency. As to implied agency, this argument was never presented to the trial court and therefore is procedurally barred. See Purvis, 791 So.2d at 203.

¶ 16. Fourth and last, Grenada Living Center asserts that the family of Cephus should be bound to the terms and conditions of the arbitration agreement in the contract. In support, it offers correctly that we have held that non-signatories may be bound by an arbitration agreement when they are third-party beneficiaries. See Smith Barney, Inc. v. Henry, 775 So.2d 722, 727 (Miss.2001) (finding that arbitration clause covered successor to will); Terminix Intern., Inc. v. Rice, 904 So.2d 1051, 1058 (Miss.2004) (wife bound by arbitration clause in contract signed by her husband despite the fact she did not sign).

¶ 17. Those cases remain binding precedent, and this case does not stand for the proposition that non-signatories to a contract containing an arbitration clause can never be bound by arbitration. Here, the trial court reasoned in accordance with the stipulations of the parties that “nobody had the authority to speak for Cephus Coleman, Jr. except himself,” and therefore “there is no binding written contract between Cephus Coleman, Jr. and the nursing home requiring arbitration.” We find this reasoning persuasive. Any wrongful death beneficiaries of Cephus can be bound only to the extent he would be bound. Because there was no contract between Cephus and the nursing home in the first place, no arbitration clause exists to be enforced against the wrongful death beneficiaries of Cephus.

Conclusion

¶ 18. The Uniform Healthcare Decisions Act does not apply to those persons who are competent. In addition, for our Court to review a case, the issues must first be presented to the trial court. We cannot examine that which does not exist, and we must counsel parties not to “bootstrap” arguments or submit issues that are not properly before the Court. Accordingly, we affirm the judgment of the Grenada County Circuit Court denying arbitration.

¶ 19. AFFIRMED.

WALLER, P.J., CARLSON, GRAVES, DICKINSON, RANDOLPH AND LAMAR, JJ„ CONCUR. SMITH, C.J., CONCURS IN RESULT ONLY. EASLEY, J., CONCURS IN PART AND IN RESULT. CARLSON, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, C.J., WALLER, P. J., EASLEY, DICKINSON, RANDOLPH AND LAMAR, JJ.

CARLSON, Justice,

Specially Concurring.

¶ 20. While I unhesitatingly join my colleagues in the majority, I deem it necessary to go a little further concerning our discussion on arbitration. While the majority acknowledges this Court’s decisions in Smith Barney, Inc. v. Henry, 775 So.2d 722, 727 (Miss.2001) and Terminix International, Inc. v. Rice, 904 So.2d 1051, 1058 (Miss.2004), there is more to our history concerning arbitration cases.

¶ 21. In Parkerson v. Smith, 817 So.2d 529 (Miss.2002), this Court held, inter alia, that a nonsignatory to a contract containing an arbitration clause, who was not even mentioned in the arbitration clause, could not gain the benefit of compelling arbitration. Id. at 535. However, Parkerson generated four separate opinions. In the wake of the muddied waters created by Parkerson, this Court began a course of attempting to lay out with clarity when parties might or might not be bound by arbitration, beginning with East Ford, Inc. v. Taylor, 826 So.2d 709 (Miss.2002), and Russell v. Performance Toyota, Inc., 826 So.2d 719 (Miss.2002).

¶22. Without citing all our arbitration cases, and those of the Court of Appeals, which are by now legion, I focus only on a few of our cases where we have addressed the issue of nonsignatories in an arbitration setting. I start by citing this Court’s decision in Terminix International, Inc. v. Rice, 904 So.2d 1051, 1058 (Miss.2004) (wife bound by arbitration clause in contract signed by her husband, although she did not sign the contract). In B.C. Rogers Poultry, Inc. v. Wedgeworth, 911 So.2d 483, 491-92 (Miss.2005), we stated:

[S]tate law principles might provide for the arbitration of disputes between a nonsignatory and a signatory to a contract, where there are allegations of substantially interdependent and concerted misconduct. A non-signatory should have standing to compel arbitration where the non-signatory has a close legal relationship, such as, alter ego, parent/subsidiary, or agency relationship, with a signatory to the agreement. See Terminix Int’l, Inc. v. Rice, 904 So.2d 1051 (Miss.2004) quoting Washington Mut. Fin. Group, LLC v. Bailey, 364 F.3d 260, 267 (5th Cir.2004) (“A nonsig-natory party may be bound to an arbitration agreement if so dictated by the ordinary principles of contract and agency.”) See also Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757 (11th Cir.1993); J.J. Ryan & Sons, . Inc. v. Rhone Poulenc Textile, S.A., 863 F.2d 315 (4th Cir.1988); Interocean Ship. Co. v. Nat’l Ship. & Trading Corp., 523 F.2d 527, 539 (2d Cir.1975).

Id. at 491-92. See also Fradella v. Seaberry, 952 So.2d 165, 175 (Miss.2007) (non-signatory to contract containing arbitration clause could compel arbitration against signatory where nonsignatory had certain specified rights and responsibilities to the signatory under the contract); Adams v. Greenpoint Credit, LLC, 943 So.2d 703, 708 (Miss.2006) (“arbitration agreements can be enforced against nonsignatories if such nonsignatory is a third party beneficiary” or if the doctrine of equitable estop-pel applies); Cleveland v. Mann, 942 So.2d 108, 119 (Miss.2006) (decedent’s heirs-at-law in wrongful death action against medical providers bound by arbitration agreement signed by decedent); Sullivan v. Protex Weatherproofing, Inc., 913 So.2d 256, 260-61 (Miss.2005) (case involving a global transaction with several documents found to be integral to the overall transaction — nonsignatory could compel arbitration against a signatory).

¶ 23. This list is by no means all-inclusive. I could go on, but trusting that my point is made, I will stop. Hopefully, my learned colleagues in the majority will react to this separate opinion by stating that the cases I cite are clearly distinguishable from today’s case. If that is their reaction, they would be absolutely correct — and that is my point. The cases I cite today are unquestionably distinguishable from the case sub judice, but I simply felt compelled to briefly discuss this Court’s history in an area of the law that we have struggled mightily to clarify over the past five years.

¶ 24. With this having been said, I unhesitatingly fully concur in the majority’s opinion based on the specific facts and circumstances peculiar to this particular case.

SMITH, C.J., WALLER, P.J., EASLEY, DICKINSON, RANDOLPH AND LAMAR, JJ„ JOIN THIS OPINION.

      . Pursuant to 9 U.S.C. §’ 3, a movant should file a motion to stay proceedings contemporaneously with the motion to compel arbitration.

      . The facts relied upon are those stipulated to by the parties at the second hearing before the trial court.

      . With some notable exceptions. For instance, subject matter jurisdiction may be raised at any time, even for the first time on appeal. See M.R.A.P. 12(h)(3) (“Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action or transfer the action to the court of proper jurisdiction'1); Comment, M.R.A.P. 12 (“Under Rule 12(h)(3) a question of subject matter jurisdiction may be presented at any time ... [and] may be presented for the first time on appeal").

      . Presiding Justice McRae wrote the majority opinion, joined by Justices Diaz, Easley and Graves, and Justice Carlson concurred in result only. Justice Diaz wrote a concurring opinion, joined by Presiding Justice McRae, and Justices Easley and Graves. Justice Cobb wrote a dissenting opinion. Chief Justice Pittman likewise wrote a separate opinion wherein he concurred in part, and dissented in part, and this opinion was joined by Justice Waller, and was joined in part by Justices Cobb and Carlson. Presiding Justice Smith did not participate.

      . In Adams, the nonsignatory was found not to be bound by the arbitration agreement. 943 So.2d at 709.


author: SMITH, Chief Justice, DIAZ, Presiding Justice,

text:
    BEVERLY ENTERPRISES, INC. and Beverly Enterprises-Mississippi, Inc. v. Barbara REED.
    No. 2005-CA-01186-SCT.
    Supreme Court of Mississippi.
    July 26, 2007.

      Louis B. Lanoux, Michael O. Gwin, Jackson, attorneys for appellant.
    Philip W. Thomas, Jackson, Pieter John Teeuwissen, Ridgeland, attorneys for ap-pellee.
   SMITH, Chief Justice,

for the Court.

¶ 1. This nursing home negligence case comes before the Court on appeal from the judgment of the Hinds County Circuit Court, First Judicial District, awarding Plaintiff Barbara Reed $400,000 in compensatory and $1,500,000 in punitive damages. Finding error in the jury instructions and the exclusion of relevant evidence, we reverse and remand for a new trial.

FACTS

¶ 2. Sarah Lewis was admitted to the Beverly-Inglewood care facility in Jackson, Mississippi, on February 27, 2002. At the time, she was forty-five years of age and had previously incurred a series of strokes, the last of which had left her paralyzed on one side. Lewis suffered from numerous additional medical problems, such as hypertension, chronic anemia, and renal failure. She was unable to speak or walk without assistance, and needed a PEG tube inserted for feeding.

¶ 3. Though obviously in poor health at the time of her admittance, Lewis was capable of communicating by nodding and shaking her head, and could use a bedside toilet with support. She had a slight cont-racture in one arm, and could walk for short distances with the aid of two caretakers. After ten months at Inglewood, Lewis was transferred to Compere Nursing Home at the request of her family. At this time she had significant contractures in all of her limbs, and had become completely bed-ridden and unresponsive. She expired at Compere on June 6, 2003.

¶ 4. Barbara Reed, Lewis’s sister, brought suit on behalf of her estate against Beverly Enterprises, Inc. (BEI), Beverly Healthcare Inglewood, and Beverly Enterprises-Mississippi, Inc. (BEM). The complaint alleged negligence, abuse and neglect, and medical malpractice, and claimed that the Defendants’ conduct caused Lewis physical injuries, pain and suffering, mental and emotional distress, and loss of the enjoyment of life. At no point did Reed claim that BEM or BEI was responsible for Lewis’s death.

TRIAL COURT PROCEEDINGS

¶ 5. During the compensatory damages phase of trial, the Plaintiff presented a total of eleven witnesses, including three designated experts, who testified as to BEM and BEI’s negligence. Reed was the first to take the stand, and testified that she often found her sister lying in her own waste or in otherwise unsanitary conditions. She said the room was not kept clean, and that Lewis was assaulted by a roommate who BEM knew had a tendency for violent behavior. On cross examination, the Defendants attempted to question Reed about a previous lawsuit filed against Bayer Corporation, but their inquiry was halted by the trial court.

¶ 6. Upon conclusion of the evidence, both BEM and BEI moved for directed verdicts, which were denied. The jury returned a general verdict in favor of the Plaintiff in the amount of $400,000. Thereafter, the trial judge determined that the facts of the case warranted a punitive damages hearing. At the conclusion of the punitive phase, the jury awarded Reed an additional $1.5 million dollars. The Defendants’ motions for judgment notwithstanding the verdict (J.N.O.V.), new trial and remitter were denied on April 11, 2005. Judgment was entered on March 8, 2005. Notice of appeal was filed on April 20, 2005. The Defendants raise numerous issues on appeal, however, we deem it necessary only to address the following two points.

DISCUSSION

I. Error in Jury Instructions

¶ 7. BEM and BEI contend that they should have been treated as separate entities instead of simply being labeled “the Defendants” in the instructions submitted to the jury. Because the trial court refused to distinguish between them when instructing the jury, the Defendants argue that the standards of care were unjustifiably meshed together into one cause of action.

II8. When this Court reviews a claim of trial court error in granting or denying a jury instruction, we are required to review all of the instructions as a whole. Richardson v. Norfolk & Southern Ry., 923 So.2d 1002, 1010 (Miss.2006). No instruction should be reviewed in isolation. Burr v. Miss. Baptist Medical Ctr., 909 So.2d 721, 726 (Miss.2005). When analyzing the grant or refusal of a jury instruction, two questions should be asked: Does the instruction contain a correct statement of law and is the instruction warranted by the evidence? Hill v. Dunaway, 487 So.2d 807, 809 (Miss.1986). Defects in specific instructions will not mandate reversal when all of the instructions, taken as a whole fairly — although not perfectly — announce the applicable primary rules of law. Burton v. Barnett, 615 So.2d 580, 583 (Miss.1993). The above standards notwithstanding, this Court will not hesitate to reverse if the instructions, when analyzed in the aggregate, do not fairly and adequately instruct the jury. Richardson, 923 So.2d at 1011.

¶ 9. The instructions given in this case failed to meet even this rather lenient test, as the jury was completely prohibited from finding one entity guilty without also holding the other liable. The claim against BEM was based upon its actions as owner and operator of Inglewood, while Reed’s case against BEI focused on the grandparent corporation’s alleged understaffing via the budget system. These are functions which give rise to separate theories of liability. The jury, however, was not instructed that it must find that BEM and BEI breached separate duties owed to Lewis. As noted above, the instructions that were given left no possibility for finding against one defendant but not the other, nor did they provide for an apportionment between the alleged tortfeasors. P-1, for example, instructed that: “If you find for the Defendants, then your verdict shall be in the following form: “We the jury find for the Defendants.” ”

¶ 10. Instruction P-14, in enumerating the elements of the negligence action, made the duty of BEM indistinguishable from that of BEI. Erroneously merging the corporations together, it read:

If you find from a preponderance of the evidence in this case that:
1. Sarah Lewis was a resident of Defendants nursing home;
2. While a resident of Defendants nursing home, Sarah Lewis was suffering from a mental and/or physical condition requiring care or attention by Defendants;
3. Defendants’ should have been reasonably aware of Sarah Lewis’ condition;
4. Defendants’ failed to provide the care and attention that Sarah Lewis’ condition reasonably required and such failure resulted in injuries to Sarah Lewis; and
5. Defendants’ failure to provide such care and attention was the sole proximate cause or a proximate contributing cause of Sarah Lewis’ injuries; then your verdict shall be for the Plaintiff.”

(Emphasis added).

¶ 11. Not only were these instructions factually flawed and misleading, they were legally inaccurate. No proof was presented showing that BEI had any hands-on responsibilities to patients, nor was there evidence of a contract creating a duty flowing from BEI to Lewis. The complaint itself alleged that BEI’s duty and alleged breach arose only within the context of the budgeting system.

¶ 12. A party is entitled to an instruction regarding a genuine issue of material fact when it is supported by the evidence. DeLaughter v. Lawrence County Hosp., 601 So.2d 818, 824 (Miss.1992). The evidence established that BEM and BEI were separate entities, therefore, each corporation should have been judged by the jury according to the evidence and law specifically applicable to each as a putative joint tortfeasor. See Fielder v. Magnolia Bev. Co., 757 So.2d 925, 932-934 (Miss.1999) (jury instruction should allow for apportionment of fault between joint tortfeasors); Mack Trucks, Inc. v. Tackett, 841 So.2d 1107, 1116-17 (Miss.2003) (stating that under Mississippi Code Section 85-5-7, trier of fact should allocate fault to each party alleged to be at fault). Instructions segregating the claims of duty, breach, causation, and damages against each Defendant were required but were not given. To compound the error, the allowed instructions failed to distinguish between the two entities and further declined to identify any specific duties owed to Lewis by BEM or BEI. Accordingly, upon remand, all instructions that do not comply with these principles should be refused.

II. Exclusion of Evidence

¶ 13. On January 18, 2002, prior to her admission to Inglewood, Lewis initiated a products liability proceeding against Bayer Corporation. In this lawsuit, she alleged that an ingredient found in Alka Seltzer Plus, a drug manufactured by Bayer, caused the strokes that mandated her placement in the nursing home. In the amended complaint, filed February 6, 2002, the claimed damages included “pain, suffering” and “loss of enjoyment of life.” Lewis sought monetary relief for “[a]ssis-tance in day-to-day care,” and for “maintenance and assistance.”

¶ 14. A second claim was filed against Bayer in August of 2003, apparently as part of a multi-district litigation proceeding. Again Lewis claimed “pain, suffering” and “loss of enjoyment of life” and stated that she would require “assistance in day-to-day care, maintenance and assistance. ...”

¶ 15. These allegations essentially mirror those from the complaint against BEM and BEI, wherein Reed claimed the damages of “pain and suffering ... and loss of the enjoyment of life.” She additionally sought recovery for “past and future medical expenses.”

¶ 16. During trial, defense counsel attempted to question Reed about these similarities in damages. After several minutes of testimony, however, the trial court prohibited further questioning and excused the jury. When defense counsel argued that Reed was seeking double recovery, the court replied:

I don’t understand that counsel. I don’t understand that. If the allegations in this case are based upon neglect, then certainly I’m not going to let this jury consider the pain and suffering that Ms. Lewis experienced as a result of taking Bayer. From your analysis, I would have to allow evidence in regarding what pain and suffering Bayer caused her. From what you’re telling the court I need to let all the damages that she’s contending in the other lawsuit in this case....

¶ 17. BEM and BEI contend that this ruling was error, and that they should be given a new trial.

¶ 18. Our well-established standard for reviewing the trial court’s admission or suppression of evidence is abuse of discretion, and the discretion possessed by a trial court in such matters is no doubt great. Stockstill v. Gammill, 943 So.2d 35, 44 (Miss.2006). For a case to be reversed based upon the erroneous admission or exclusion of evidence, the error must result in prejudice or harm that adversely affects a substantial right of a party. Windmon v. Marshall, 926 So.2d 867, 876 (Miss.2006) (quoting Busick v. St. John, 856 So.2d 304, 319 (Miss.2003)).

¶ 19. Here, the trial court ultimately concluded that the evidence was “improper and inadmissible.” We disagree. Evidence is relevant if it “tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Miss. R. Evid. 401. Information regarding the Plaintiffs condition prior to the alleged negligence would certainly be relevant in this instance to determine whether or not Lewis had indeed suffered new and distinct injuries at the hands of either BEM or BEI. See Blake v. Clein, 903 So.2d 710, 724 (Miss.2005) (holding testimony about Plaintiffs mental and physical state before treatment by physician was relevant). Therefore, it obviously was proper for defense counsel to question the similarities of these damages in order to determine whether or not they were actually caused by a third party, namely Bayer Corporation.

¶20. Counsel for the Plaintiff argued that this questioning was merely an attempt to prejudice Reed by insinuating that she was litigious. M.R.E. 403 addresses this concern with a balancing test to determine whether the probative value of such evidence is outweighed by the risk of undue prejudice. Palmer v. State, 939 So.2d 792, 795 (Miss.2006).

¶ 21. In this case, the presumption that allegations of wrongdoing were dissimilar is of no consequence. The Defendants should have been afforded the opportunity to sufficiently examine the Plaintiffs witnesses regarding the alleged damages from the other lawsuit as necessary to present their theories of the case, i.e., that Lewis’s preexisting condition, something that was allegedly caused by a third party, was the cause of her deterioration while at Inglewood.

CONCLUSION

¶ 22. Protecting vulnerable members of our society is, without question, an issue of utmost importance. In order to safeguard the integrity of our judicial system however, it is a court’s task to ensure that all parties receive a fundamentally fair trial. As we cannot in good conscience say that BEM and BEI were afforded such, this case is hereby reversed and remanded for proceedings consistent with this opinion.

¶ 23. REVERSED AND REMANDED.

WALLER, P.J., CARLSON, DICKINSON, RANDOLPH AND LAMAR, JJ„ CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J.

DIAZ, Presiding Justice,

dissenting:

¶ 24. Because the trial below had no error, I must respectfully dissent from the opinion of the majority.

¶25. The majority sets the stage by issuing the medical opinion that Ms. Lewis was “obviously in poor health at the time of her admittance.” The majority does acknowledge that Ms. Lewis’ sister “testified that she often found her sister lying in her own waste.” Yet the testimony revealed an even worse scenario. Ms. Reed testified that she had on numerous occasions come to visit her sister at Beverly and had discovered her disabled loved one lying in her own urine and feces. Often it appeared that she had been lying in her own waste for a lengthy period of time. Family members testified that they were told Ms. Lewis could be cleaned later, when they were less busy or not on break. Once Ms. Reed discovered around twenty-three diapers belonging to other patients shoved behind the dresser in her sister’s room.

¶ 26. Ms. Reed also testified that on four or five separate occasions she discovered her sister with dried vomit around her mouth. She also testified that Beverly regularly failed to keep Lewis bathed and in the most basic hygienic condition. Ms. Reed testified that she had informed the staff multiple times about the horrifying state her sister was in; they always promised they were “going to do better.”

¶ 27. Expert testimony was offered that demonstrated Beverly failed to chart Ms. Lewis’ medical condition in violation of state and federal law. There was also expert testimony that Beverly failed to seek medical attention when Ms. Lewis needed care and that the company callously discontinued physical therapy, even leaving the braces Ms. Lewis needed to walk strewn about on the floor. It was also offered that Beverly had a problem with understaffing, leaving what little care there was to be provided to residents to a handful of staff members.

¶ 28. As the majority sets out, after only ten months at Beverly Ms. Lewis “had significant contractures in all of her limbs, and had become completely bedridden and unresponsive.” In other words, her very body had pulled in upon itself.

I. The Jury Instructions.

¶ 29. The majority finds that it must reverse and remand because “BEM” and “BEI” were not offered separate jury instructions. This ignores the most important fact, and the threshold question for our analysis: Are these two companies actually separate entities, warranting separate instructions?

¶ 80. It is undisputed that the same attorneys defended both Beverly entities-both BEI and BEM. They filed joint filings and jointly defended the trial. Beverly’s lawyers never requested separate opening statements for the supposedly “separate” companies. Perhaps most critically, attorneys for Beverly never requested a separate series of peremptory strikes or juror challenges for each supposedly “separate” company. Indeed, Beverly’s original set of proposed jury instructions repeatedly referred to “the Beverly defendants.” Beverly’s own instructions did not include the fiction of separating BEI and BEM. It is also noteworthy that originally Beverly did not request an apportionment instruction.

¶ 31. Nor is there a need for a fiction of separateness. Unlike many such corporate structures developed to place shield after shield in front of assets, BEI and BEM share the same insurer, and the claims concerning the care provided to Ms. Lewis are covered under the same policies. Beverly admitted at trial that the policy limits for each “separate” company were not actually separate from each other; indeed, they were combined.

¶ 32. In my view the trial court committed no error; in light of the above facts any error would still be harmless. Separate instructions would not change the verdict for the plaintiff, nor prejudice the “two” Beverly defendants, as they shared insurance policies.

II. The Exclusion of Irrelevant Evidence.

¶ 33. Prior to her internment at Beverly, Ms. Lewis sued the drug company Bayer, alleging it caused her multiple strokes. It was those strokes that, in part, necessitated her time at Beverly. The trial judge allowed the suit to be brought up on the cross-examination of Ms. Reed, and it was discussed before the jury before defense counsel attempted to bring up the question of damages. Counsel for the plaintiff in this case were not counsel in the other case and asserted they knew little of the case other than its existence.

¶ 34. The boilerplate assertions included in the two complaints were for “pain and suffering” and “loss of enjoyment of life.” On appeal, Beverly argues it should have been able to bring in information about the other case to combat an alleged “double recovery” on behalf of the plaintiff.

¶ 35. However, the trial court differentiated the two cases, ascertaining correctly that pain and suffering from a stroke is simply different from pain and suffering stemming from nursing home neglect. In my view this is correct; they are simply two different creatures. They do not, as the majority theorizes, “essentially mirror” each other. Indeed, not even defense counsel went to that length, admitting to the trial court that “the specific allegations are not the same,” and later conceding again that “the claim in the [Bayer] lawsuit is not neglect.”

¶ 36. Moreover, the trial court recognized the futility of trying another case within a case, refusing to force the attorneys in a nursing home case to differentiate the supposed injuries in a pharmaceutical case (counsel for the plaintiff in this case were not counsel against Bayer and knew little about the ease other than its existence). In its ruling on the matter-which occurred some period of time after the language quoted by the majority-the trial court actually agreed to a limited extent with defense counsel:

[Attorney for Beverly]: ... That’s why the jury is entitled to know [about the other case]. If it’s a wrongful death claim, those damages will carry throughout and until the time of her death[,] which would be through the time that she was in [Beverly], which means that the jury is entitled to know that they’re claiming that someone caused injury to her during the time that she was in [Beverly],
BY THE COURT: Well, I agree. The jury will be entitled to know if they’re claiming that someone else neglected her, if someone else abused her; the jury would be entitled to know that.
I’m not going to let you get into this lawsuit-federal court lawsuit any further. It is improper and inadmissable.

I agree with this reasoning. Under our rules, the trial court has great leeway in the admission of evidence and can exclude that which is not relevant. The majority today greatly limits that power.

¶ 37. The defense was already allowed to bring evidence of the other suit forward, casting doubt upon the damages suffered by Ms. Lewis. Therefore the goal of the defense was actually reached. Yet Beverly wishes even more than this. Indeed, under the majority’s, method, a plaintiff must not only prove her case, she must prove the negative of all other possible cases, even if they are not yet factually or legally developed.

¶ 38. On remand, must the plaintiff now bring forth medical experts to testify about the drug Ms. Lewis used, and its alleged harm? Must they disprove every possible theory, no matter how attenuated or irrelevant, about how she may have suffered other harm? Must they, in essence, try this other case within this case?

¶ 39. For the reasons above, I must respectfully dissent.

GRAVES, J., JOINS THIS OPINION.

      . Instruction D-45, which was refused, sought to specifically instruct the jury to "[djecide each defendant’s case separately.” The Plaintiff’s argument, apparently accepted by the trial court, was based upon the premise that "[tjhere weren't any separate defenses. There was only one defense in this case, and that is that she was a sick woman and all this was going to happen to her anyway, and that was a joint defense.” This conclusion is simply not true; in their respective answers, both Defendants asserted the theory that the injuries complained of were caused by “persons or entities other than this defendant.” They also raised Miss.Code Ann. § 85-5-7 (Rev. 1999) and § 11-75-15 (Rev.2002) dealing with contribution of joint tortfeasors.