author: KING, Justice, KITCHENS, Justice,

text:
    In the Matter of the Guardianship of B.A.D., Wanda Bell and Jane Dennis a/k/a Jane Dennis Morse v. Frances Cathryn (Dennis) FINNEGAN.
    No. 2010-CA-01690-SCT.
    Supreme Court of Mississippi.
    March 15, 2012.

      Ernest W. Stewart, attorney for appellants.
    Mark C. Baker, Sr., Pelahatchie, attorney for appellee.
   KING, Justice,

for the Court.

¶ 1. This guardianship case began in the Youth Court for the City of Pearl. Upon the request of petitioners Wanda Bell and Jane Dennis Morse, the youth court transferred the case to the Rankin County Chancery Court. Later, Bell and Morse requested that the chancery court dismiss their petition, alleging that the court lacked subject-matter jurisdiction. In addition to dismissing the case with prejudice, the chancellor awarded custody of the child to Frances Cathryn Dennis Finnegan, the child’s natural mother.

¶ 2. Aggrieved, Bell and Morse appeal, raising two issues:

I. Whether the youth court erred by transferring the case to chancery court; and
II. Whether the chancellor erred by awarding custody to Finnegan.

This Court determines that the chancellor properly had jurisdiction of the case. However, the chancellor erred by dismissing the case and awarding custody to Finnegan without any on-the-record findings.

FACTS AND PROCEDURAL HISTORY

A. Youth-Court Proceeding

¶ 3. Baby Dennis was born on September 14, 2004. One month later, the youth court held a shelter hearing based on evidence that Baby Dennis had tested positive for marijuana at birth. On November 16, 2004, the youth court adjudicated that Baby Dennis was neglected and awarded custody of the child to Richard Dennis (“Richard”), the maternal grandfather. The youth court granted Richard durable legal custody on December 13, 2005. Richard died in 2009. At the time, Bell was Richard’s live-in companion. Finnegan agreed that Bell could have temporary custody of Baby Dennis. On May 19, 2009, the youth court entered a temporary order to that effect and set a review hearing to occur after one year.

¶ 4. In preparation for the review hearing, Finnegan filed in the youth court a “Written Request for Release of Custody.” The review hearing was set for July 27, 2010. On advice of counsel, Bell and Morse, the maternal great-aunt, filed a petition for coguardianship in chancery court on July 26, 2010. The chancery-court filing did not mention the pending youth-court matter. Bell and Morse appeared at the youth-court hearing and informed the youth court of their chancery-court filing. Bell and Morse then requested that the case be transferred to chancery court; Finnegan objected to the transfer.

¶ 5. The youth court determined that it would be in the child’s best interest if the matter were transferred to chancery court. The youth court stated two supporting reasons for its decision: “(a) the child has not resided with her mother since the child was a few days old; and (b) the chancery court is able to grant long-term relief to the parties and the youth court cannot grant long-term relief.” Accordingly, the youth court entered an order transferring the custody case to chancery court and ordered that all youth-court orders were to remain in effect until the chancery court had rendered a decision.

B. Chancery-Court Proceeding

¶ 6. On September 20, 2010, Bell’s and Morse’s attorney filed a motion to withdraw as counsel in the chancery-court proceeding. The chancellor granted the motion on October 13, 2010. Days later, Bell and Morse, assisted by new counsel, filed a motion to dismiss their petition for coguar-dianship. In their petition, Bell and Morse argued that the youth court had exclusive and priority jurisdiction over the matter; thus, the chancery court lacked subject-matter jurisdiction. During the hearing on the motion, the chancellor expressed his confusion and dissatisfaction with Bell’s and Morse’s motion to dismiss, noting that they had requested the transfer to chancery court. Finnegan’s counsel also expressed that he was perplexed by Bell’s and Morse’s motion to dismiss, because Bell and Morse had requested the transfer. Because Finnegan had objected to the transfer in youth court, Finnegan’s counsel joined the motion to dismiss the petition for coguardianship.

¶ 7. On October 19, 2010, the chancellor entered his final judgment, dismissing the petition for coguardianship with prejudice. In his judgment, the chancellor stated that the youth-court orders were no longer in effect, he deprived Bell of any “authority” over Baby Dennis, and he vested full custody of Baby Dennis in Finnegan as the natural mother. The chancellor also ordered Bell and Morse to pay sanctions in the amount of $750 to Finnegan for filing a frivolous lawsuit. Aggrieved, Bell and Morse timely filed their notice of appeal on November 17, 2010.

ANALYSIS

¶ 8. A motion to dismiss for lack of subject-matter jurisdiction is a question of law, which this Court reviews de novo. Derr Plantation, Inc. v. Swarek, 14 So.3d 711, 715 (¶ 8) (Miss.2009).

I. Whether the youth court erred by transferring the case to chancery court.

¶ 9. Bell and Morse argue that the youth court had exclusive and priority jurisdiction over their case; thus, the youth court erred by transferring the case to chancery court. They also argue that the Mississippi Youth Court Act does not give the youth court authority to transfer its case to chancery court. Finnegan argues that Bell and Morse are judicially estopped from appealing the chancellor’s dismissal. Finnegan further argues that the youth court had properly relinquished its jurisdiction of the matter; thus, the case was properly before the chancellor.

A. Judicial Estoppel

¶ 10. Bell and Morse complain that, while the youth court acceded to their request for transfer to chancery court, it lacked the authority to do so. It is important to note that Bell and Morse are not appealing the youth court’s transfer order. Bell and Morse have appealed the chancellor’s order of dismissal. Challenging the youth court’s transfer order and challenging the chancellor’s order of dismissal are two different actions.

¶ 11. “[J]udicial estoppel arises from the taking of a position by a party to a suit that is inconsistent with the position previously asserted in prior litigation.” Ivy v. Harrington, 644 So.2d 1218, 1222 (Miss.1994). Generally, this Court will employ judicial estoppel to preclude a party from gaining an advantage by asserting as error an issue which it created. See Derr Plantation, 14 So.3d at 720-21 (¶¶ 22-24) (Randolph, J., specially concurring). However, we do not reach Finnegan’s judicial-estoppel argument. Because the issue is one of a court’s jurisdiction, we deem it appropriate to address the merits of the issue.

B. Jurisdiction

¶ 12. Bell and Morse rely on Mississippi Code Section 43-21-151 to support their position. The statute states, in pertinent part, that:

(1) The youth court shall have exclusive original jurisdiction in all proceedings concerning a delinquent child, a child in need of supervision, a neglected child, an abused child or a dependent child except in the following circumstances:
(c) When a charge of abuse of a child first arises in the course of a custody action between the parents of the child already pending in the chancery court and no notice of such abuse was provided prior to such chancery proceedings, the chancery court may proceed with the investigation, hearing and determination of such abuse charge as a part of its hearing and determination of the custody issue as between the parents, notwithstanding the other provisions of the Youth Court Law....

Miss.Code Ann. § 43-21-151(l)(c) (Rev. 2009); see also Helmert v. Biffany, 842 So.2d 1287, 1290-1292 (¶¶ 14-20) (Miss.2003).

¶ 13. Mississippi Code Section 43-21-301 (Rev.2009) provides that “[n]o court other than the youth court shall issue an arrest warrant or custody order for a child in a matter in which the youth court has exclusive original jurisdiction but shall refer the matter to the youth court.” The youth court’s jurisdiction of a case continues until the child’s twentieth birthday, “unless sooner terminated by order of the youth court.” Miss.Code Ann. § 43-21-151(2) (Rev.2009) (emphasis added).

¶ 14. Because the case was initiated in youth court, Bell and Morse argue that the youth court had exclusive and priority jurisdiction of the matter. Although Bell and Morse requested that the case be transferred to chancery court, they argue that the youth court erred in granting their request.

¶ 15. Bell and Morse cite K.M.K. v. S.L.M. ex rel. J.H., 775 So.2d 115 (Miss.2000), to support their position. In K.M.K., a youth court had placed a child in foster care. Id. at 116 (¶ 2). The foster parents had attempted to terminate the natural mother’s visitation rights in youth court without success. Id. at 117 (¶ 4). Thereafter, the foster parents had filed a petition to terminate the natural mother’s and father’s rights in chancery court. Id. at 116 (¶ 3). The mother had filed a motion to dismiss the action, alleging that jurisdiction was improper in the chancery court. Id. at 117 (¶ 4). The chancellor had denied the mother’s motion to dismiss. Id. at 117 (¶ 5). The case came before this Court on interlocutory appeal. Id.

¶ 16. In a five-to-four decision, the Court held that: “a chancery court may not exercise jurisdiction over any abused or neglected child or any proceeding pertaining thereto over which the youth court may exercise jurisdiction if there has been a prior proceeding in the youth court concerning that same child.” Id. at 118 (¶ 10). The Court further explained that its holding upholds the plain meaning of the statute, prevents forum shopping and potentially conflicting orders, and “promote[s] judicial economy by allowing a court already familiar with the parties and situations to hear all petitions dealing with those same parties and situations.” Id. at 118 (¶ 12).

¶ 17. The present case is distinguishable. Although the negligence action concerning Baby Dennis initially was brought in youth court, the youth court voluntarily relinquished its jurisdiction of the custody matter. Bell and Morse filed their petition for coguardianship in chancery court, one day before the youth-court hearing. At the time, their filing was not an appropriate remedy for seeking relief. But during the youth-court hearing, Bell and Morse informed the youth court of their chancery-court filing and requested that the custody matter be transferred to chancery court.

¶ 18. The youth court very well could have denied Bell’s and Morse’s request and retained jurisdiction of the case. See Miss.Code Ann. § 43 — 21—151(l)(c) (Rev. 2009). Instead, the youth court agreed with Bell and Morse, finding that it lacked the ability to provide long-term relief to the parties. The youth court did not explain why it could not provide long-term relief. But the Court notes the frequency of periodic review of youth-court orders. For instance, Mississippi Code Section 43-21-613(3)(a) provides, in pertinent part, that:

Unless the youth court’s jurisdiction has been terminated, all disposition orders for supervision, probation or placement of a child with an individual or an agency shall be reviewed by the youth court judge or referee at least annually to determine if continued placement, probation or supervision is in the best interest of the child or the public. For children who have been adjudicated abused or neglected, the youth court shall conduct a permanency hearing within twelve (12) months....

Miss.Code Ann. § 43-21-61S(3)(a) (Rev. 2009) (emphasis added). This Court has previously held that “the intent of durable legal custody is merely to avoid the required annual dispositional reviews by the youth court.” In re Sam, 826 So.2d 1266, 1280 (¶ 40) (Miss.2002). Bell was given only temporary custody, which was subject to annual review. Pursuant to Section 43-21-151(2), the youth court terminated its jurisdiction of the case.

¶ 19. Bell and Morse argue that the Mississippi Youth Court Act does not specifically allow the youth court to transfer a case to chancery court, stating that the Act allows transfers only to circuit court. See Miss.Code Ann. §§ 43-21-157, 159 (Rev. 2009). We find a lack of caselaw in which a youth court voluntarily relinquished its jurisdiction and transferred a custody hearing to the chancery court for resolution. But the Youth Court Act does not specifically prohibit the action. The plain language of the Act does allow the youth court to terminate its jurisdiction of a case. See Miss.Code Ann. §§ 43-21-151(2), 43-21-613(3)(a) (Rev.2009). Because the youth court had terminated its jurisdiction, there was no chance of conflicting orders and the like, as expressed in K.M.K.

¶ 20. The Court’s holding today does not suggest that youth courts can simply terminate their jurisdiction to get cases out of their chambers. But, in this case, there is no harm in allowing the chancery court to retain jurisdiction. The issue of neglect was not transferred for the chancery court’s consideration. The youth court had adjudicated Baby Dennis neglected more than six years prior to its transfer order, and there is no evidence in the record of any further abuse or neglect. The matter transferred involves purely custody. Thus, the chancery court’s retention of this case would not run afoul of the youth court’s jurisdiction. To the extent that the chancellor considers the neglect charge, it would be considered only in determining to whom to award custody of Baby Dennis.

¶ 21. In light of this, the Court finds that, pursuant to Section 43-21-151(2), the youth court had authority to terminate its jurisdiction of the case. Thus, the case was properly before the chancellor. In his order of dismissal, the chancellor acknowledged that he properly had jurisdiction of the case. Thus, we affirm this part of the chancellor’s order.

II. Whether the chancellor erred by awarding custody to Finnegan.

¶ 22. Bell and Morse argue that the chancellor erred by awarding custody to Finnegan because (a) he dismissed the action and, thus, cannot rule on the merits of the case; and (b) he failed to make any findings of fact. Finnegan maintains that: (a) when the chancellor dismissed the case, no custody orders were in effect; and (b) because Bell and Morse did not move forward with their petition, no findings of fact were necessary. The Court finds that the chancellor erred by dismissing the action and then ruling on the merits of the case. The chancellor should have proceeded with a full custody hearing, determining the best interest of the child.

A. Dismissal With Prejudice

¶ 23. Bell and Morse moved for dismissal under Mississippi Rule of Civil Procedure 12(b)(1). Rule 12(b)(1) allows the parties to file a motion to dismiss for lack of subject-matter jurisdiction. M.R.C.P. 12(b)(1). “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.” M.R.C.P. 12(h)(3). The question of subject-matter jurisdiction may be raised at any time. Burnette v. Hartford Underwriters Ins. Co., 770 So.2d 948, 951 (¶ 7) (Miss.2000) (citing M.R.C.P. (12)(h)(3) emt.).

¶ 24. First, Bell and Morse argue that the chancellor had dismissed the action and thus could not rule on the merits of the case. They cite the definition of “subject-matter jurisdiction” to support their position, stating that:

Black’s Law Dictionary (8th Ed. 2005), defines “subject-matter jurisdiction” as “^jurisdiction over the nature of the case and the type of relief sought; the extent to which a court can rule on the conduct of persons or the status of things.”

They cite no other authority to support their position.

¶ 25. The Court finds that the chancellor could not dismiss the action with prejudice and, after doing so, proceed to rule on the merits of the ease. In Rayner v. Raytheon Company, 858 So.2d 132 (Miss.2003), this Court held that a dismissal with prejudice indicates a ruling on the merits, which is not appropriate for a dismissal for want of jurisdiction. In Rayner, Rayner sued Raytheon in state court. Id. at 133 (¶ 2). Raytheon removed the case to federal court. Id. Rayner then filed a motion to remand. Id. The federal court dismissed the case for lack of subject-matter jurisdiction and denied the request for remand. Id. Rayner later sought relief in state court. Id. at 133 (¶ 3). The circuit court dismissed the case, with prejudice, for lack of jurisdiction. Id.

¶ 26. On appeal, this Court determined that the circuit court did lack jurisdiction based on removal. Id. at 133 (¶ 5). “[O]nce removed to federal court, a case remains within the jurisdiction of the federal courts until an order is entered remanding the matter back to the state court.” Id. at 133 (¶ 6). The Court also determined that a dismissal with prejudice indicated a ruling on the merits, which was improper. Id. at 134 (¶ 9). The Court stated:

We modify the decision of the circuit court only to the extent that dismissal was with prejudice. Generally, a dismissal with prejudice connotes an adjudication on the merits. See generally Foundry Sys. & Supply, Inc. v. Indus. Dev. Corp., 124 Ga.App. 589, 185 S.E.2d 94, 95 (1971) (The phrase “with prejudice” in [the context of when an action is dismissed with prejudice] means an “adjudication on the merits and final disposition, barring the right to bring or maintain an action on the same claim or cause. Pulley v. Chicago, R.I. & P.R., 122 Kan. 269, 251 P. 1100 (1927). Black’s Law Dictionary, 4th ed., p. 555”). Thus, lacking jurisdiction, the circuit court was without authority to address the merits. The circuit court should have simply dismissed this case for lack of jurisdiction.

Id. The Court reiterated its conclusion in Cook v. Children’s Medical Group, P.A., holding, in pertinent part, that: “If a court does not have subject matter jurisdiction to hear a case, then it cannot have jurisdiction to decide issues of fact and law....” Cook v. Children’s Med. Group, P.A., 756 So.2d 734, 743(37) (Miss.1999).

¶ 27. Thus, the chancellor could not dismiss Bell’s and Morse’s petition based on the question of subject-matter jurisdiction and then rule on the merits of the case.

B. Ruling on the Merits

¶ 28. The youth-court order, which transferred the case to chancery court, stated that the youth court’s orders would remain in effect until the chancellor rendered a decision. The chancellor granted the motion to dismiss and regarded the dismissal as a termination of the youth-court orders. Concerned that the custody of Baby Dennis would have been left in limbo, the chancellor awarded custody to Finnegan as the natural parent.

¶ 29. Under the natural-parent presumption, “it is presumed that it is in the best interest of a child to remain with the natural parent as opposed to a third party.” In re Dissolution of Marriage of Leverock and Hamby, 23 So.3d 424, 429(19) (Miss.2009). But that presumption may be rebutted by evidence that the parent relinquished the right “through abandonment, desertion, or other unfitness, and if it is otherwise overcome by an overriding concern for the best interest and welfare of a child.” Id. We do not suggest that Finnegan is unfit to have custody of Baby Dennis. But with these allegations, Finnegan is not automatically entitled to custody without some on-the-record findings.

¶ 30. Based on this Court’s review of the record, the chancellor failed to consider the history of this case before making his decision. The hearing transcript shows that the chancellor neither reviewed the youth-court record nor Finnegan’s “Written Request for Release of Custody” before rendering judgement:

COURT: Before you got here, Mr. Stewart, I asked Mr. Baker if he — I should have asked y’all earlier, but I — do you have a copy of the youth court file?
MR. STEWART: I do not, Your Honor.
COURT: What’s the word? Are we going to be able to get it?
MR. ROBERTS: The word is it’s on the way.
COURT: Do you want to join in his Motion to Dismiss?
MR. BAKER: Yes, Judge, we do.
COURT: All right. Court grants it. Dismissed. I’m also going to award sanctions to the defendant in the sum of $750 to be payable—
MR. BAKER: Your Honor, will the Court duly note that a decision has been rendered in this matter?
COURT: Yes.
MR. BAKER: In accordance with the order of the corrected review hearing officer order. So I don’t want there to be any argument that youth court orders are still in effect.
COURT: No. I’m getting a copy of that youth court file delivered and it’s going to be made a part of this record. Let me see the Order that you have. You represent to me as an officer of the court, sir, that this is a good, valid, and authentic copy of the Final Order that was entered by the youth court?
MR. BAKER: Yes, Your Honor.
COURT: Okay. All right. The matter is dismissed.
MR. BAKER: Okay, Your Honor.
COURT: And I’m going to award the defendant $750 in attorney’s fees for — this matter is frivolous. The whole way it has been handled has been frivolous. I had to sit here and listen to a lawyer read to me a motion — he essentially read it to me verbatim for about — how long was it?— almost 30 minutes. This is the most frivolous conduct I’ve seen, that you would go to the youth court and ask for the matter to be transferred here and then file the guardianship here and then turn around and ask for it to be dismissed, but you’re getting what you want, and that is — custody, by the way, needs to go to this lady.
MR. BAKER: Thank you, Your Honor. And I want to make sure the Order indicates Ms. Wanda Bell has no further—
COURT: It’s dismissed with prejudice.
MR. BAKER: Okay.
MR. STEWART: Your Honor, if I may, please, I would like—
COURT: Don’t argue with the Court after the Court has ruled.
MR. STEWART: I’m not arguing with the Court, Your Honor. I just want to make a record that — never mind, strike it.
MR. BAKER: Thank you, Your Honor.
COURT: I do now — I have handed to me a copy — an entire copy of the youth court [sic], and the Order previously presented to me by Mr. Baker is very clear that it is the same one. These will be placed under seal inasmuch as they are youth court records.

¶ 31. As reflected by the trial transcript, the chancellor did not receive a copy of the youth-court file, which included Finnegan’s ‘Written Request for Release of Custody,” until after he had ruled on the matter. Because the chancellor had not seen the youth court file, it was impossible for him to give any consideration to its contents in making his decision. The chancellor abused his discretion by dismissing the case and then awarding custody to Finnegan without any on-the-record findings.

¶ 32. In youth court, the primary goals are to protect the child and also facilitate reuniting the family, if found to be in the child’s best interest. See Miss. Code Ann. § 43-21-103 (Rev.2009). In every child-custody matter, the polestar consideration is the best interest of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). Thus, the best interest of Baby Dennis is more important than Finnegan’s natural-parent status. Several years have elapsed since Finnegan has had custody of Baby Dennis, and it was inappropriate for the chancellor to grant Finnegan custody without evidence that she has rehabilitated herself and other relevant factors. The chancellor should not have awarded custody to Finnegan without determining whether she was suitable to regain care, custody, and control of Baby Dennis. See In the Interest of R.D., 658 So.2d 1378, 1387-1389 (Miss.1995). Additionally, the best interest of Baby Dennis far outweighs Bell’s and Morse’s desire to have their petition dismissed or the chancellor’s desire to teach them a lesson.

¶ 33. Because the matter was properly before the chancellor, and Baby Dennis’s future was in question, the chancellor should have proceeded with the custody hearing. The allegations in this case necessitate a thorough review of the youth-court record, a hearing on the matter, and possibly a guardian ad litem to represent the child’s best interest.

CONCLUSION

¶ 34. This is a unique situation, and this Court’s holding is limited to the facts of this case. We hold that the case was properly before the chancellor. Thus, the chancellor erred by dismissing the case with prejudice and awarding custody to Finnegan without any on-the-record findings. As such, we find that a custody hearing, with on-the-record findings, is required to determine whether reuniting Finnegan and Baby Dennis are within the child’s best interest. We affirm in part and reverse in part and remand the case to the Chancery Court of Rankin County for further proceedings consistent with this opinion.

¶ 35. AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

WALLER, C.J., CARLSON, P.J., RANDOLPH, CHANDLER AND PIERCE, JJ., CONCUR. KITCHENS, J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND LAMAR, J.

KITCHENS, Justice,

concurring in part and in result:

¶ 36. While I agree that the chancellor erred by awarding custody to Finnegan without a hearing to consider the child’s best interests, I respectfully disagree with the majority’s interpretation of the Youth Court Act. The Youth Court Act does not allow a youth court to “voluntarily relinquish” jurisdiction over a child who has been adjudicated neglected. See Maj. Op. at ¶ 19. However, because the Mississippi Constitution vests chancery courts with jurisdiction over “minor’s business,” and because the jurisdiction of our chancery courts cannot be diminished by statute, I agree that the chancery court did have jurisdiction to hear the matter. For these reasons, I respectfully concur in part and in result.

Chancery Court Jurisdiction

¶ 37. As for the chancery court’s jurisdiction over this matter, the Youth Court Act is very clear that “[t]he youth court shall have exclusive original jurisdiction in all proceedings concerning ... a neglected child.... ” Miss.Code Ann. § 43-21-151(1) (Rev.2009) (emphasis added); accord K.M.K. v. S.L.M. ex rel. J.H., 775 So.2d 115, 118 (Miss.2000) (‘We hold that a chancery court may not exercise jurisdiction over any abused or neglected child or any proceeding pertaining thereto over which the youth court may exercise jurisdiction if there has been a prior proceeding in the youth court concerning that same child.”) (emphasis in original). The majority holds that a youth court has the authority to terminate its “exclusive original jurisdiction” under Mississippi Code Section 43-21-151(2). Maj. Op. at ¶ 13. However, when read in its entirety, it is clear that Section 43-21-151(2) concerns only cases involving delinquency, not cases of neglect:

Jurisdiction of the child in the cause shall attach at the time of the offense and shall continue thereafter for that offense until the child’s twentieth birthday, unless sooner terminated by order of the youth court. The youth court shall not have jurisdiction over offenses committed by a child on or after his eighteenth birthday.

(Emphasis added.) Therefore, the Youth Court Act does not provide a means by which a youth court may “voluntarily relinquish” or “terminate” jurisdiction. Indeed, I can think of no instance in which a Mississippi court may choose to surrender its “exclusive original jurisdiction.” See e.g., Jackson v. State, 67 So.3d 725, 730-31 (Miss.2011) (vacating this Court’s denials of applications for post-conviction relief because the trial court had “exclusive, original jurisdiction” over the proceedings).

¶ 38. Nevertheless, Section 159 of Article 6 of the Mississippi Constitution provides that “the chancery court shall have full jurisdiction [over] ... minor’s business,” and such jurisdiction, granted by the Constitution, “cannot be diminished by statute.” White v. White, 26 So.3d 342, 347 (Miss.2010). Therefore, despite statutory language to the contrary, the chancery court did not err in exercising jurisdiction over the matter of Baby Dennis’s custody. The majority correctly finds that the chancellor erred in awarding custody to the natural mother without determining the child’s best interest; thus I concur with reversing the custody award and remanding the case for a full custody hearing.

DICKINSON, P.J., AND LAMAR, J., JOIN THIS OPINION.

      . Typically the Court uses initials or an alias to protect the anonymity of children. Because the child's initials are “B.A.D.,” we forego the use of her initials and refer to her simply as Baby Dennis.

      . Finnegan’s request was accompanied by her own statement, several character references, a college transcript, related certificates of achievement, and miscellaneous photographs.

      .Besides the initial neglect action in youth court following Baby Dennis's birth, the record is void of any further allegations of abuse or neglect.


source: Caselaw Access Project

author: DICKINSON, Presiding Justice,

license: Public Domain

text:
    SIERRA CLUB v. MISSISSIPPI PUBLIC SERVICE COMMISSION and Mississippi Power Company, Inc.
    No. 2011-CA-00350-SCT.
    Supreme Court of Mississippi.
    March 15, 2012.
    Robert B. Wiygul, attorney for appellant.
    Office of the Attorney General by Justin L. Matheny, L. Christopher Lomax, Harold Edward Pizzetta, III, Shawn Stephen Shurden, Leo Ernest Manuel, Ben Harry Stone, Tim A. Ford, William L. Smith, Ricky J. Cox, attorneys for appellees.
    Before DICKINSON, P.J., RANDOLPH and PIERCE, JJ.
   DICKINSON, Presiding Justice,

for the Court.

¶ 1. The Mississippi Power Company (“MPC”) applied to the Mississippi Public Service Commission (“Commission”) for permission to proceed with construction of a new power generation facility that would employ a new technology not in operation anywhere else in the United States, and to begin assessing the cost of construction (capped at $2.88 billion) to its current customers. The Sierra Club opposed the project before the Commission, but the Commission entered an order in favor of MPC. The Chancery Court of Harrison County affirmed, and the Sierra Club appealed.

¶ 2. When the Commission grants authority for such projects, Mississippi law requires it to make findings supporting its decision; and, according to the statute, the Commission’s findings must be “supported by substantial evidence presented” which “shall be in sufficient detail to enable [this] court on appeal to determine the controverted questions presented, and the basis of the commission’s conclusion.” We find the Commission’s approval of the project fails to satisfy this requirement, so we reverse the chancery court’s judgment and the Commission’s order and remand to the Commission for further proceedings.

¶ 3. REVERSED AND REMANDED.

WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ, CONCUR.

      . Miss.Code Ann. § 77-3-59 (Rev.2009).


author: MAXWELL, J.,

text:
    SIMPSON COUNTY, Mississippi, Appellant v. Don F. McELROY, Appellee.
    No. 2009-CA-01874-COA.
    Court of Appeals of Mississippi.
    April 19, 2011.
    Rehearing Denied Aug. 16, 2011.
    Certiorari Granted Aug. 16, 2011.
    Certiorari Dismissed March 15, 2012.

      William Robert Allen, Robert 0. Allen, Brookhaven, attorneys for appellant.
    W. Terrell Stubbs, attorney for appellee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Don McElroy sued Simpson County, Mississippi, for failing to warn him of a dangerous road condition caused by a rain storm. The County claimed it was entitled to sovereign immunity under Mississippi Code Annotated section 11-46-9(1) (Supp. 2010). The circuit court rejected the County’s immunity-based defense and instead found the County liable under section ll-46-9(l)(b) for failing to exercise ordinary care in placing warning signs along the road.

¶ 2. We find the circuit court erroneously applied Mississippi Code Annotated section ll-46-9(l)(b) and also failed to apply the immunizing provision in section 11-46-9(l)(d). Because we find the County is statutorily immune from McElroy’s claim, we reverse and render.

FACTS AND PROCEDURAL HISTORY

¶3. On February 5, 2004, heavy rains pounded Simpson County, washing out a culvert below Shorter Road, a county-maintained road. That evening, local residents notified the County of the washout. The County’s road manager, Gary Sullivan, sent road foreman, William “Red” Busby, to close the road. The residents watched as Busby and his crew placed on each side of the washout two-foot by two-foot white fiberglass signs with “Road Closed” painted in fluorescent orange. The crew also strung two strands of four-inch wide yellow warning tape across the road, with fluorescent streamers hanging between the strands of tape. Afterwards, they left Shorter Road to work on other road hazards created by the storm.

¶ 4. Early the following morning, McEl-roy drove across the washout at fifty miles per hour. His truck struck the hole created by the washout, badly injuring his knee. He testified he did not .see any warnings signs or warning tape.

¶ 5. McElroy sued the County under the Mississippi Tort Claims Act (MTCA). He alleged the County (1) failed to properly design, construct, and maintain Shorter Road and (2) failed to warn of the dangerous condition caused by the washout. The County moved for summary judgment on both claims, arguing the County was entitled to immunity under Mississippi Code Annotated section 11^46-9(1). The circuit court reserved its ruling on the County’s motion until after evidence was presented at a bench trial.

¶6. The circuit judge found McElroy failed to meet his burden of proof on his road-design, construction, and repair claim and entered judgment in favor of the County on that claim. But the circuit judge found McElroy’s failure-to-warn claim was controlled by Mississippi Code Annotated section 11 — 46—9(l)(b), which he concluded “requires that ordinary care be exercised in the warning of dangerous conditions.”

¶ 7. The circuit judge held that the County failed to exercise ordinary care by using inadequate signs “in light of the attendant weather circumstances.” The judge found the signs used to close Shorter Road must have blown away in the night. He reasoned that instead of using the signs which were in the back of Busby’s truck, Busby should have gone to the County’s storage barn to get larger signs and barricades. Because he did not, the circuit judge found the County liable to McElroy for $106,896.29.

¶ 8. After an unsuccessful post-judgment motion, the County timely appealed.

STANDARD OF REVIEW

¶ 9. The issue on appeal is whether the County is immune from liability for McElroy’s tort claim based on Mississippi Code Annotated section 11-46-9(1). Immunity is a question of law. Dancy v. E. Miss. State Hosp., 944 So.2d 10, 15 (¶ 16) (Miss.2006). We review questions of law de novo. Madison HMA, Inc. v. St. Dominic-Jackson Mem’l Hosp., 35 So.3d 1209, 1215 (¶ 17) (Miss.2010).

DISCUSSION

¶ 10. There are two distinct reasons we cannot affirm the judgment of the circuit court. First, the circuit court’s basis for imposing liability — Mississippi Code Annotated section ll-46-9(l)(b) — does not apply to this case. Subsection 9(l)(b) only applies to claims arising out of the exercise of ordinary care in performing a statute, ordinance, or regulation. And the circuit court found the County neither performed a statute, ordinance, or regulation nor exercised ordinary care.

¶ 11. Second, though the County did have a common-law duty to warn drivers of known dangerous road conditions, in this case, it was shielded against McEl-ro/s claim for breach of that duty. Because the circuit court failed to apply the immunizing provision found in Mississippi Code Annotated section 11^46-9(l)(d), we have no choice but to reverse its award of tort damages against the County and render a judgment in favor of the County.

I. Mississippi Code Annotated Section 11-46-9(1)

¶ 12. The MTCA waives sovereign immunity for tort claims for money damages against governmental entities and their employees. Dancy, 944 So.2d at 15 (¶ 17). But there are twenty-five specific exceptions from the general waiver of sovereign immunity. Miss.Code Ann. § 11-46-9(1). If any one of these exceptions apply, “the government is completely immune from any claim arising from the act or omission complained of.” Willing v. Estate of Benz, 958 So.2d 1240, 1255 (¶40) (Miss.Ct.App.2007) (citing State v. Hinds County Bd. of Supervisors, 635 So.2d 839, 842 (Miss.1994)).

¶ 13. Section 11-46-9(1) restores sovereign immunity. It does not in itself create duties. We emphasize this because both the circuit court in its order of judgment and McElroy in his brief have incorrectly suggested this statute is the source of the duty to use ordinary care in warning motorists of dangerous conditions.

¶ 14. Contrary to the circuit court’s finding, section 11^46-9(1)(b) does not create a duty of ordinary care. Mississippi Code Annotated section 11-46-9(1)(b) provides:

A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim: ... (b) Arising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid[.]

¶ 15. Like its sister exceptions, this provision immunizes against tort claims. When a government employee has exercised ordinary care in executing (or failing to execute) a statute, ordinance, or regulation, a government entity is immune, even if the statute, ordinance, or regulation is invalid. Miss.Code Ann. § 11-46-9(1)(b). See Shelly Mott Diaz & Robert A. Weems, Exempt or Not Exempt: Clarifying the Confusion Surrounding the Relationship Between the Discretionary Function Exemption and the Performance of Statute Exemption in the Mississippi Tort Claims Act, 80 Miss. L.J. 45 (2010) (noting this exemption is meant to address the rare situation when plaintiff brings a tort claim to test the legality of a rule or regulation). Here, the performance of an underlying statute, ordinance, or regulation is not at issue. Further, the circuit court found the County failed to exercise ordinary care. Therefore, section ll-46-9(l)(b) is wholly inapplicable, and the circuit court’s use of this provision to impose liability was error.

¶ 16. That is not to say the County had no duty to warn. See, e.g., Willing, 958 So.2d at 1251 (¶ 29) & n. 5 (acknowledging the general, non-ministerial duty to warn of known dangerous conditions). But as with all tort claims against government entities, before reaching the question of liability, the circuit court had to ask whether the County is immune based on one of the provision of section 11416-9(1).

¶ 17. The County argues four separate provisions immunize it from liability in this case. Because we find the circuit court failed to apply the “discretionary function” exemption, we must reverse its award of tort damages and render judgment for the County.

II. Discretionary Function

¶ 18. Mississippi Code Annotated section 11 — 46—9(l)(d) provides immunity from claims “[bjased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental'entity or employee thereof, whether or not the discretion be abused[.]” So long as the employee was performing a discretionary function, the government is immune, even if the employee abused his discretion. Barrentine v. Miss. Dep’t of Transp., 913 So.2d 891, 394 (¶ 12) (Miss.Ct.App.2005) (citing Miss.Code Ann. § 11-46-9(1)(d)); see also Collins v. Tallahatchie County, 876 So.2d 284, 289 (¶ 17) (Miss.2004) (finding ordinary-care standard does not apply to Miss.Code Ann. § 11 — 46—9(1)(d)). “Accordingly, in determining whether an act or omission falls within the immunity granted by section 11-46—9(1)(d), the relevant inquiry begins and ends with the determination of whether the conduct complained of was discretionary.” Willing, 958 So.2d at 1250 (¶ 25).

¶ 19. The Mississippi Supreme Court has adopted a two-part public-function test to determine if government conduct is an immune discretionary function. Id. at 1250 (¶ 26) (citing Jones v. Miss. Dep’t of Transp., 744 So.2d 256, 260 (¶ 11) (Miss.1999)). First, we ask “whether the activity involved an element of choice or judgment.” Id. (citations omitted). And, if so, we next ask whether the activity involved social, economic, or political policy. Id.; see also Dancy, 944 So.2d at 16 (¶ 18).

A. Choice or Judgment

¶ 20. To answer this first question, we ask whether the Busby’s action was discretionary or ministerial. Knight v. Miss. Transp. Comm’n, 10 So.3d 962, 968 (¶ 20) (Miss.Ct.App.2009). “A duty is discretionary if it requires an official to use her own judgment and discretion in order to carry out the duty.” Id. (citing Dancy, 944 So.2d at 16 (¶ 19)). “On the other hand, a duty is ministerial and not discretionary if it is imposed by law and its performance is not dependent on the employee’s judgment.” Id. (citations and quotations omitted); see also Covington County Sch. Dist. v. Magee, 29 So.3d 1, 4 (¶ 8) (Miss.2010) (describing an act as ministerial if “its performance [is] required at a time and in a manner or upon conditions which are specifically designated”).

¶ 21. McElroy fails to cite any law or regulation that specifically directed the conduct of Busby and his crew when closing Shorter Road and left them no choice in what warnings signs to use. We reject his argument that Mississippi Code Annotated section ll-46-9(l)(v) created a ministerial duty to warn of dangerous conditions. Like subsection 9(1)(b), subsection 9(l)(v) confers immunity, specifically for failure to warn of unknown or open and obvious dangerous conditions on government property. It does not conversely impose a prescribed time and manner for warning of known, non-obvious dangerous conditions.

¶ 22. Busby exercised his judgment when he chose to use the signs readily available in his truck rather than leave Shorter Road to retrieve barricades and other signs. The circuit court acknowledged as much, stating Busby “chose to utilize the aforesaid method of warning.” Busby’s actions were discretionary, not ministerial. Thus, we find the County meets the first prong of the discretionary-function test. And we note this finding is consistent with other cases holding that warning of road hazards is a discretionary duty. See, e.g., Knight, 10 So.3d at 970 (¶¶ 26-27) (placement of highway warning signs discretionary); Willing, 958 So.2d at 1250-53 (¶¶ 28-33) (method of warning of icy patch on highway discretionary); Barrentine, 913 So.2d at 393 (¶ 8) (failure to place warnings signs on bridge discretionary).

B. Social, Economic, or Political Policy

¶ 23. The second prong of the public-function test limits the scope of discretionary-function immunity to “only those functions which by nature are policy decisions, whether made at the operational or planning level.” Dancy, 944 So.2d at 16 (¶ 17) (citations omitted). “The purpose of the exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Id.

1124. We find the County’s use of road-closure signs involved economic policy. The County’s road manager, Sullivan, testified the County limited its budget for road signs and barricades. To save money, his department made hand-painted fiberglass signs, including the ones Busby placed on Shorter Road. Sullivan testified it was his department’s policy to use barricades and purchased signs for planned road closures, such as construction projects, and to use the “homemade” signs for temporary closures, such as bad weather conditions. In using the fiberglass signs in the back of his truck, Busby was following County procedure, grounded in economic policy. By finding the County liable in tort for Busby’s failure to use more expensive (albeit sturdier) signs, the circuit court was second-guessing the County’s administrative decision to use the “homemade” signs for temporary road closures.

¶ 25. Because the County’s actions also meet second-prong of the public-function test, the County was performing a discretionary function and is, therefore, shielded from liability under Mississippi Code Annotated section 11-46-9(1)(d). Cf. Webb v. County of Lincoln, 536 So.2d 1356, 1358-59 (Miss.1988) (citing State v. Lewis, 498 So.2d 321, 323 (Miss.1986)) (finding county immune for failure to replace stop sign at dead-end street because decision of which roads to repair involved economic considerations); Knight, 10 So.3d at 970 (¶ 28) (finding duty to place warning signs clearly requires the policy considerations in doing so); Barrentine, 913 So.2d at 393 (¶ 8) (finding placement or non-placement of warning signs a discretionary governmental function immune from liability under Miss.Code Ann. § ll-46-9(l)(d)).

¶ 26. Having found section 11-46-9(l)(d) applies, we need not address whether any remaining exceptions apply. Mississippi Supreme Court precedent is clear that where any one exception applies the government is completely immune. Willing, 958 So.2d at 1255 (¶ 40) (citing Hinds County Bd. of Supervisors, 635 So.2d at 842; Pearl River Valley Water Supply Dist. v. Bridges, 878 So.2d 1013, 1020 (¶ 32) (Miss.Ct.App.2004)).

CONCLUSION

¶27. A preliminary inquiry in cases governed by the MTCA is whether the government defendant enjoys sovereign immunity based on the application of one of the twenty-five provisions of Mississippi Code Annotated section 11-46-9(1). Here, the circuit court erroneously relied on an inapplicable provision — section 11-46-9(l)(b) — to find liability, not immunity. Further, it failed to apply section 11-46-9(l)(d), which provided the County immunity against McElroy’s tort claim. Therefore, we reverse the circuit court’s judgment of $106,896.29 against the County and render judgment in favor of the County-

¶ 28. THE JUDGMENT OF THE CIRCUIT COURT OF SIMPSON COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ„ CONCUR.

      . The County argues the following provisions apply: (1) subsection 9(l)(d) — immunizing claims for injuries arising from the performance of a discretionary function; (2) subsection 9(l)(q) — immunizing claims for injuries caused solely by a weather condition on the use of streets and highways; (3) subsection 9(l)(v) — immunizing claims for injuries arising from a dangerous condition for which the County did not have notice or was open and obvious; and (4) subsection 9(1 )(w) — immunizing claims for injuries arising from the absence of sign or warning device. Miss.Code Ann. § 11 — 46—9(l)(d), (q), (v), and (w).

      . Mississippi Code Annotated section 11 — 46— 9(1 )(v) provides:

        A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim: ... (v) Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the govemmen-tal entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care[.]


author: LEE, C.J.,

text:
    In the Matter of the ESTATE OF James Z. BOGGAN, Deceased: William James Scott Murphy, Appellant v. Stephenie Velma BAGGETT, Appellee.
    No. 2010-CP-00372-COA.
    Court of Appeals of Mississippi.
    July 26, 2011.
    Rehearing Denied March 13, 2012.

      William James Scott Murphy, appellant, pro se.
    Lester Clark Jr., Lexington, attorney for appellee.
    Before LEE, C.J., MYERS and MAXWELL, JJ.
   FACTS AND PROCEDURAL HISTORY

LEE, C.J.,

for the Court:

¶ 1. This case involves the settling of the Estate of James Z. Boggan, who died in June 2008 in Hattiesburg, Mississippi. In his will, Boggan designated Stephenie Baggett, Scott Murphy, Randi Pace, and Cindy Hill as residuary beneficiaries of his estate. Baggett was designated executrix of Boggan’s estate.

¶ 2. Over the course of settling Boggan’s estate, Murphy filed numerous pro se pleadings in the Lamar County Chancery Court alleging various issues relating to the settling of Boggan’s estate. These issues included the following: (1) Murphy was entitled to funds from the property sold by Boggan several years prior to his death; (2) Baggett committed identity theft; (3) Murphy asked that the Estate’s attorney, Lester Clark, not be compensated for his work; (4) Murphy requested compensation for the pleadings he had filed; (5) Murphy requested reimbursement of various estate funds; and (6) Bag-gett should not be paid for acting as the executrix. The chancellor denied all of Murphy’s motions, finding specifically that there was neither any evidence of identity theft nor any evidence that funds or real property belonging to Boggan were not included in the accounting and inventory. The chancellor noted that Murphy was acting pro se; thus, he was not entitled to compensation for filing numerous motions, most of which, the chancellor noted, were outside the scope of the matter and superfluous. The chancellor also noted the extensive work performed by Clark and awarded him reasonable attorney’s fees.

¶ 3. The chancellor ultimately approved Baggett’s final accounting, authorized the payment of estate-associated expenses, ordered the final disbursement of estate funds, closed the estate, and dismissed Baggett as executrix.

¶ 4. Murphy now appeals, asserting the following issues: (1) the chancellor erred in dismissing forged documents submitted by Baggett; (2) the chancellor allowed Baggett to ignore an order to freeze the Estate’s account; (3) the chancellor erred in allowing a partial disbursement of funds before the final settlement; (4) the chancellor erred in forcing him to pay for Clark’s attorney’s fees; and (5) the chancellor erred in calculating the division of Boggan’s estate because he failed to consider a petition alleging identity theft committed by Baggett. We will address Issues I and V together. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 5. This Court applies a well-settled standard of review when considering a chancellor’s decision. SKL Inv., Inc. v. Am. Gen. Fin., Inc., 22 So.3d 1247, 1249 (¶ 4) (Miss.Ct.App.2009). “We will not disturb a chancellor’s findings unless they are manifestly wrong, clearly erroneous, or the chancellor applied an erroneous legal standard.” Id. We review a chancellor’s decision for an abuse of discretion. Creely v. Hosemann, 910 So.2d 512, 516 (¶ 11) (Miss.2005). Questions of law are reviewed de novo. SKL Inv., Inc., 22 So.3d at 1249 (¶4).

DISCUSSION

¶ 6. We first note that Baggett has failed to file a brief in this matter. This Court has long held that an appellee’s failure to file a brief is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and the brief of the appealing party, that there was no error. Varvaris v. Perreault, 813 So.2d 750, 752 (¶5) (Miss.Ct.App.2001) (citing Dethlefs v. Beau Maison Dev. Corp., 458 So.2d 714, 717 (Miss.1984)). “Automatic reversal is not required where [the] appellee fails to file a brief.” Id. (quoting N.E. v. L.H., 761 So.2d 956, 962 (¶ 14) (Miss.Ct.App.2000)). In order to merit reversal, “[t]he appellant’s argument ‘should at least create enough doubt in the judiciousness of the trial court’s judgment that this Court cannot say with confidence that the case should be affirmed.” Id. (citing Selman v. Selman, 722 So.2d 547, 551 (¶ 13) (Miss.1998)). After considering the record and brief, we can say with confidence that there was no error.

I. ALLEGATIONS OF FORGED DOCUMENTS AND IDENTITY THEFT

¶ 7. Murphy alleges that Baggett forged documents and committed identity theft during the proceedings to settle Bog-gan’s estate. The chancellor found that Murphy had failed to produce any evidence other than his assertions to support these allegations. After reviewing the record, we agree with the chancellor. Murphy has failed to support these allegations with any proof. These issues are without merit.

II. ORDER TO FREEZE THE ESTATE’S ACCOUNT

¶ 8. Murphy argues that Baggett ignored the chancellor’s order to freeze the Estate’s account. During a motion hearing on March 6, 2009, the chancellor denied Murphy’s petition to freeze the Estate’s account except for approximately $82,000 in life-insurance proceeds in a local bank account. The chancellor also instructed Baggett to continue using the business account but to make a strict accounting in terms of expenditures. Murphy contends that the bank account was never frozen, only restricted. However, Murphy’s brief is unclear as to when or how Baggett may have accessed these funds contrary to the chancellor’s order. In fact, the only withdrawals from this account resulted from the disbursement ordered by the chancellor. This issue is without merit.

III. PARTIAL DISBURSEMENT OF FUNDS

¶ 9. Murphy argues that the chancellor erred in allowing a partial disbursement of funds prior to the final settlement. Baggett received the authority from the chancellor to make a partial distribution of $5,000 to each heir from the Estate’s funds. Murphy’s argument is unclear as to why we should find the chancellor in error for authorizing this distribution. This issue is without merit.

IV. ATTORNEY’S FEES

¶ 10. Murphy argues that he should not have to pay for Clark’s services out of his share of the estate. Murphy contends that Clark ultimately worked for Baggett and not Boggan’s estate. However, Murphy has failed to cite any applicable law to support his position. Furthermore, in awarding attorney’s fees to Clark, the chancellor noted the extensive work performed by Clark in working to settle Boggan’s estate. This issue is without merit.

¶ 11. THE JUDGMENT OF THE LAMAR COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR.


author: GRIFFIS, P.J.,

text:
    STONE INVESTMENT COMPANY, INC., Appellant v. ESTATE OF Arlan ROBINSON and William Head Realty, Appellees.
    No. 2009-CA-01971-COA.
    Court of Appeals of Mississippi.
    Sept. 6, 2011.
    Rehearing Denied Dec. 13, 2011.
    Certiorari Denied March 15, 2012.

      Jack Parsons, Tadd Parsons, Wiggins, Dawn Smith, attorneys for appellant.
    Herbert J. Stelly, Gulfport, John Doyle Moore, Ridgeland, attorneys for appellees.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Stone Investment Company, Inc. brought an action against the Estate of Arlan Robinson and William Head d/b/a William Head Realty to recover the earnest-money deposit and other damages that resulted from the breach of a real-estate contract. The Estate and Head responded with their claims to the earnest-money deposit. The chancellor ruled that Stone Investment had breached the contract and forfeited the earnest-money deposit. The chancellor awarded the earnest money deposit to the Estate and Head. We find no error and affirm.

FACTS

¶ 2. Arlan Robinson was the owner of approximately twenty acres of land located at the corner of Highways 26 and 49 in Stone County, Mississippi.

¶ 3. In 2001, Arlan executed his Last Will and Testament. The will named his wife, Martha Robinson, as executrix. Paragraph VI of the will reads:

I do hereby direct my Executrix, at the discretion of my attorney, Honorable Herbert J. Stelly, Sr., to select an auctioneer who, in the opinion and discretion of Honorable Herbert J. Stelly, Sr., shall be best suited for purposes of selling the 20 somewhat acres of Property situated at the corner of Highway 26 and 49 in Stone County, Mississippi next to McDonald’s. I desire that said property be auctioned off and that every effort be made to obtain the highest and best dollar for said property. Honorable Herbert J. Stelly, Sr., is given discretion and is to guide and advise my Executrix with regard to the selection of such auctioneer and the conditions and provisions in which such auction is to be held as well as the fee to be realized by such auctioneer for such services. Out of the proceeds of such auction I direct that any sums realized from the sale of such property be used to retire any obligations which may exist against the Denson property, then such funds shall be applied toward payment of the mortgage on the home situation at 35 Walton Road •with any monies left owed, if any, to be placed in an interest bearing account for the benefit of my son, Dalton; to be received by him at 21 years of age.

¶ 4. Arlan died on June 6, 2005.

¶ 5. On August 25, 2005, Herbert J. Stelly Sr. executed a Complaint Requesting Probate of Will and Appointment of Executrix on behalf of Martha. The complaint asked the chancery court to probate the decedent’s will and to appoint Martha as executrix, “upon taking the oath of office as by law required.” It also asked that her appointment as executrix be without the necessity of bond.

¶ 6. On October 5, 2005, Chancellor Margaret Alfonso executed an Order Allowing Will to Probate. The order admitted the will to probate, appointed Martha as executrix, and waived appraisal and bond. The order also held that “the Clerk of this Court is directed to issue letters of administration to the Executrix, Martha Robinson, upon her taking the oath of office as by law required.”

¶ 7. By letter dated October 11, 2005, Stelly sent both the complaint and the executed order to the Stone County Chancery Clerk. These pleadings were filed by the clerk on October 12, 2005.

¶ 8. On October 11, 2005, Tadd Parsons, an attorney for Stone Investment, sent a letter to Stelly. The letter read as follows:

Bennie Bell at the First National Bank of Wiggins told us you represent the Estate of Arlan Robinson. He also told us that Mrs. Robinson was interested in disposing of the property on Highway 49 and Highway 26, the property being located at Hunters Walk and another parcel. Stone Investment Company, Inc. may be interested in purchasing this property!;] and if your client has a survey of the property, if you would fax them or mail them to us, I will ask them to look at it and let you know whether or not they are interested.

On October 24, 2005, Stelly responded and sent a copy of the survey to Jack Parsons.

¶ 9. On January 17, 2006, Martha signed an Auction Listing Agreement with William Head Realty. This agreement was to facilitate the auction and sale of the property, consistent with the terms of the will. This agreement provided that William Head Realty, as auctioneer, was entitled to receive a ten percent commission from the sale. The agreement also provided that an auction would be held on or about March 14, 2006.

¶ 10. To prepare for the auction, William Head Realty prepared and distributed a “Buyer’s Guide.” The buyer’s guide was issued to all prospective bidders, including Stone Investment. The buyer’s guide included a “Terms of Sale” provision, which provided that a ten percent nonrefundable deposit, based on the contract price, was to be paid by the prospective purchaser after being awarded the bid. The buyer’s guide also included surveys that divided the property into smaller parcels. The survey of the parcel, which is the subject of this dispute (Parcel 1), indicated a sewer easement.

¶ 11. The auction was held on March 14, 2006. Stone Investment offered the highest bid on Parcel 1, in the amount of $312,400. Stone Investment tendered a check, dated March 14, 2006, in the amount of $31,240, to William Head Realty for the required earnest-money deposit for the purchase of Parcel 1. The auctiori also included other parcels.

¶ 12. After the auction, Stone Investment executed a Purchase Contract. The purchase contract was not dated. The purchase contract identified “Martha Robinson” as the Seller and “Stone Investments” as the Purchaser, and it contained the following provisions:

1. THE PURCHASER OFFERS TO BUY THE PROPERTY located in Stone County, Mississippi, commonly known as Wiggins, MS Parcel # 1 and legally described as: See Attached Legal Description(s) subject to any of the following existing matters: ... easements of record ..., if any, for the sum of $312,400....
3. PURCHASER HAS EXAMINED THIS PROPERTY and accepts it in its present “AS IS” condition, and with all faults. Purchaser accepts all faults of the property whether known or unknown, presently existing or that may hereafter arise.... Purchaser in examining and inspecting this property has not relied upon any representations made by the Seller, but is relying solely on his own personal examination and inspection of the property....
6. WARRANTY DEED AND CERTIFICATE OF TITLE shall promptly be furnished by the party responsible for the cost [Purchaser to pay all costs] and shall be prepared by a mutually agreed upon attorney, a certificate of title insurance may be obtained from a title insurance company.... Seller shall cure any title defects to the satisfaction of the title insurance company that the Purchaser may obtain an owner’s title insurance policy subject only to standard exceptions and other matters specifically stated in this contract....
9. CLOSING DATE shall be April 13, 2006, but may be sooner by mutual consent, CLOSING DATE MAY BE EXTENDED up to thirty (30) days if[:] (A) Mutually Agreed to, or (B) title defects are reported which may be cured,....
11. PURCHASER UPON EXECUTION OF THIS AGREEMENT DEPOSITS $31,240, to be held by Agency [ (William Head Realty) ] in a non-interest bearing account, which deposit constitutes a good faith deposit to be applied on the Purchase Price. If this is not accepted, or the title is not insurable as stated above, then the deposit shall be refunded, otherwise the deposit shall be retained by the Agency. Seller may seek damages for breach of contract or specific performance of the contract. If Purchaser does not close by the terms listed in this contract the deposit will be forfeited to the Agency.

¶ 13. On April 11, 2006, Jack Parsons, as the attorney for Stone Investment, sent two letters to William Head Realty. One letter read:

This is your official notification that Stone Investment Company, Inc. has authorized me to notify you that they are electing to purchase the parcel of property that they were high bidder on when you conceded the sale of the Arlan L. Robinson Estate property. You will note in my letter to our client, Wes Parker, the same conditions have to be fulfilled before Stone Investment Company, Inc. will pay for said property. However Stone Investment Company, Inc. informed me they have the money available to purchase the property upon presentation of the Deed conveying good and merchantable title to the purchaser....
¶ 14. The other letter read:
We have been requested to examine the title to the property to be purchased by Wesley Parker. We have done so and have found several matters that will have to be corrected at the closing or before closing. They are as follows, to-wit:
1. Cancellation of all Deeds of Trust on the property. There are several and I presume the funds gotten from the sale will be used to pay those and there be sufficient amount to do so.
2. An adjudication there are no outstanding claims by any creditors against the Estate which would then follow them to the particular parcel of real property.
3. A closure of the estate adjudicating no other liens or claims on the property other than the Deeds of Trust.
I have been informed by Wes Parker that he desires to close this transaction upon being able to secure good merchantable title to the property. This is your official notification that he is electing to purchase the property and is waiting until title insurance can be secured on the property. If you or your proper representative will let us know when this can be done then Mr. Parker will go ahead and close out the sale....

¶ 15. The April 11th letters were dated two days prior to the April 13th closing date set in the purchase contract. The letters neither indicated that time was of the essence nor set a new closing date.

¶ 16. On April 20, 2006, Martha filed a Motion for Authority to Sell Real Estate. The motion attached several contracts for the sale of Arlan’s property, including the purchase contract for Parcel # 1. The motion asked for authority to sell the property and to place the proceeds into an escrow account until the time for filing claims expired. The motion also asked the chancellor to waive bond.

¶ 17. On May 9, 2006, a proof of publication was filed. The proof indicated that the notice to creditors was executed by Martha on January 26, 2006, and it was published in the appropriate newspaper on March 18, March 25, and April 1, 2006.

¶ 18. On May 24, 2006, Chancellor Alfonso entered an Order Authorizing Sale of Real Property. The order ruled that “the Executrix of the Decedent’s estate has complied with said will and several contracts have been entered into at a price deemed by the Executrix as well as by the Court as being fair and reasonable to all parties concerned.” The order identified the sale price of all of the parcels, the amounts owed on the property, and concluded that the amounts owed must be paid at the time of sale. The order authorized the sale and provided that the balance, sales price less mortgages paid, be placed in Stelly’s trust account until further order of the court.

¶ 19. A closing date was scheduled for July 28, 2006. William Petty, the closing attorney, prepared a deed, the HUD-1 Settlement Statement, and releases from various deeds of trust to- be used in the closing. The deed was to be signed by Martha, individually and as executrix of the Estate. All parties attended the closing at Parsons’s office on July 28. At the closing, Stone Investment refused to close the transaction.

¶ 20. The record contains conflicting evidence of the basis for Stone Investment’s refusal to close. Initially, Stone Investment indicated that its refusal was based on deficiencies in the parcel’s title due to the sewer easement. However, Dana Parsons, the president of Stone Investment, later testified that the reason for Stone Investment’s refusal to close on the subject property had nothing to do with the existence of the sewer easement. Rather, Stone Investment had purportedly promised Fred’s Discount Stores, a prospective purchaser of the property, that the parcel would be in place by April 13, 2006. Apparently, however, Fred’s was no longer interested in purchasing the property from Stone Investment in late July. At trial, Stone Investment offered the testimony of two attorneys, as experts in estate and real-estate conveyances, to prove that the title to the property was not merchantable.

¶ 21. On August 15, 2006, Stelly sent a letter to Jack Parsons that read, “Please advise me within 7 days as to whether or not Stone Investment Company, Inc. intends to go forward with the purchase of the Robinson Estate properties.”

¶ 22. On August 23, 2006, Jack Parsons sent a letter to Stelly that read:

I am in receipt of your letter dated August 15, 2006[,] about the above-mentioned matter. Stone Investment Company, Inc. is not interested in consummating the purchase of the Robinson property because there is a sewer line going across it., as it is presently located. Stone Investment Company, Inc. would consider buying both parcels if it would be commensurate with the value of the sewer lines thereon. If your client wants to talk about that, we will be happy to do so otherwise we request the deposit be returned.

¶ 23. On September 26, 2006, Jack Parsons again "wrote a letter to Stelly. Jack Parsons stated that Stone Investment offered to purchase the subject property for sixty-five percent of the initial bid price put forth by Stone Investment. If this was not acceptable, Stone Investment asked for the return of the earnest-money deposit. This letter also stated, “several months have now passed by without tendering the Deed after Stone Investment Company, Inc. elected to purchase. This was a breach of the contract provisions and in addition to that, the instruments tendered were not proper nor was the HUD 1 tendered proper.” The offer was rejected.

¶ 24. On December 18, 2006, Stelly sent a letter to the chancery clerk, which read: “Enclosed, please find for issuance and filing ... Letters Testamentary.” On December 19, 2006, the chancery clerk executed and issued the letters testamentary to Martha as the executrix of the Estate.

¶ 25. On May 25, 2007, Stone Investment filed its complaint against the Estate and Head. The complaint claimed that the Estate and Head had breached the purchase contract and that the Estate was without authority to enter into the purchase contract. The complaint asked the court to order the return of the earnest-money deposit and to enter a judgment for interest, costs, attorney’s fees, and punitive damages.

¶ 26. Head filed an answer, defenses, counterclaim, and cross-claim. In the counterclaim, Head asked the chancery court to award him the full amount of the earnest money and any other damages he was entitled to receive. In the cross-claim, Head asked the chancery court to award him the commission earned on the sale, attorney’s fees, and any other damages he was entitled to receive. The Estate filed an answer, defenses, and counterclaim. The counterclaim sought to retain the earnest money deposit.

¶ 27. On April 8, 2008, the executrix signed and filed her oath. The case was tried before the Honorable James H.C. Thomas on September 1, 2009. On December 4, 2009, the chancellor entered a judgment that contained his findings of fact and conclusions of law. Chancellor Thomas dismissed Stone Investment’s complaint, granted the counterclaims of Head and the Estate that sought forfeiture of the earnest-money deposit, denied the requests for attorney’s fees because there was no contractual provision for attorney’s fees, and dismissed all other claims asserted.

STANDARD OF REVIEW

¶ 28. Under our standard of review, “[the appellate court] will not disturb the findings of the chancellor when supported by substantial evidence unless the chancellor has abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Sanderson v. Sanderson, 824 So.2d 628, 625-26 (¶8) (Miss.2002). However, questions concerning the construction of a contract are questions of law and are reviewed de novo. Ferrara v. Walters, 919 So.2d 876, 881 (¶ 9) (Miss.2005).

ANALYSIS

¶ 29. Stone Investment identified two issues for this Court to consider:

1. The chancery court erred in failing to return the earnest money tendered by Stone Investment Company, Inc.
2. The chancery court erred in finding that Stone Investment Company, Inc. breached the contract when the Estate of Arlan Robinson failed to provide good and merchantable title to obtain the subject property.

In both of these issues, Stone Investment challenges the chancellor’s judgment on the ground that the Estate was not able to convey good and merchantable title to the subject property. Therefore, Stone Investment claims that the Estate was in breach of the purchase contract, and it was error for the chancellor not to order the return of the earnest-money deposit. We first review the alleged deficiencies in the administration of the Estate and next consider the claim that merchantable title could not be delivered.

I. Administrative Deficiencies

¶ 30. This Court first considers whether the Estate was properly administered. The issue here is whether the executrix had the authority to execute the purchase contract or the deed of conveyance. Stone Investment argues that it was not; therefore, she did not.

¶ 31. Stone Investment cites four statutes. First, Mississippi Code Annotated section 91-7-41 (Rev.2004) provides:

Every executor ... at or prior to the time of obtaining letters testamentary ... shall take and subscribe the following oath, viz.:
“I do swear that the writing exhibited by me is the true last will and testament of_, as far as I know and believe, and that I, if and when appointed as executor, will well and truly execute the same according to its tenor, and discharge the duties required by law.” In the case of an administrator with the will annexed, then say “I, as administrator, will,” and “when appointed as administrator, will” etc.

Stone Investment argues that the executrix failed to file an oath, and the letters testamentary did not legally issue. Therefore, Stone Investment contends that Martha was “without authority to act as an Executrix.”

¶ 32. Second, Mississippi Code Annotated section 91-7-197 (Rev.2004) provides:

When- a petition shall be filed to sell or lease land to pay debts or otherwise affecting the real estate of a deceased person, all parties interested shall be cited by summons or publication, which shall specify the time and place of hearing the petition. If the petition be filed by a creditor or by a purchaser to correct a mistake in the description of the land, the executor or administrator shall be cited.

Stone Investment argues that the executrix failed to serve all parties in interest by summons or publication to sell the property. Therefore, Stone Investment contends that it “could not secure good and merchantable title” to the property.

¶ 33. Third, Mississippi Code Annotated section 91-7-187 (Rev.2004) provides:

When the estate of any deceased person consists of real and personal property and it shall be necessary to sell a portion thereof, the chancery court, on petition of the executor, administrator, legatees or distributees, being satisfied that it would be to the interest of the distribu-tees or legatees, may decree a sale of the real estate in preference to the personal estate. .

Here, Stone Investment argues that the executrix failed to “get the court to adjudicate the selling of real estate in preference to selling personal property to pay debts of the estate.” Stone Investment contends that “[flailing’to do this prevents the Executrix [from] having authority to legally sell the real property.”

¶ 34. Fourth, Mississippi Code Annotated section 91-7-199 (Rev.2004) provides:

The court, after service of summons or proof of publication, shall hear and examine the allegations and evidence in support of the petition and the objections to and evidence against it, if any. If on such hearing the court be satisfied that the personal estate is insufficient to pay the debts of the deceased and that the land ought to be sold for that purpose, it may make a decree for the sale of a part or the whole of the land; and when a part only is decreed to be sold, the decree shall specify what part. If the real estate be so situated that a part cannot be sold without manifest prejudice to the heirs or devisees, the court may decree that the whole shall be sold; and the overplus arising from such sale, after the payment of debts and expenses, shall be distributed amongst the heirs according to the law of descents, or amongst the devisees according to the will. The heir or devisee whose lands shall be sold may compel all others holding or claiming under such intestate or testator to contribute in proportion to their respective interests, so as to equalize the burden of the loss.

Stone Investment argues that a hearing was not held, and the chancellor did not hear evidence to satisfy the need to sell the property to pay debts.

¶ 35. Stone Investment challenges the administrative authority -of the executrix. Since Martha failed to follow the statutory requirements, Stone Investment argues that this prevented the legal and binding sale and conveyance of good and merchantable title.

¶ 36. The chancellor’s judgment recognized that deficiencies in the administration of the estate existed. The chancellor, however, determined these deficiencies could have been cured; thus, he ruled that Stone Investment had breached the contract. The .chancellor found:

While the administrative concerns of the procedure followed in the probate of the Estate in not timely obtaining and filing the letters testamentary and oath are troubling to the Court as they relate to whether it makes defective any subsequent action of the Executrix, the 1924 case of Ricks v. Johnson, 99 So. 142, 134 Miss. 676 (1924) makes a distinction between the duties of an executor and an administrator in probate administration which gives further credence to the action of the executor, in stating[:]
“An executor is the person to whom the execution of a last will and testament is, by the testator, confided. He is placed in the stead of the testator. He may enter to the goods and chattels of the testator; he may dispose of them in the payment of the debts, and in the performance of the testator’s will, and may sue for and recover the debts due to him. The executor derives his office from the testamentary appointment alone, and his authority is grounded on the will. And hence he may perform many acts in his character of executor before probate of the will.” Citing Grant v. Spann, 34 Miss. 294.
Thus the Court finds any deficiencies which existed in the probate administration at the time the contract with Stone [Investment] was made or executed could be cured to transfer a good and merchantable title to the real property and that the Executor was carrying out the explicit directions of the will in the manner in which the property was marketed for sale as approved by the Court. Stone defaulted on the contract before merchantable title could be transferred.

¶ 37. The deficiencies that the chancellor refers to relate to the delay in the issuance of letters testamentary. The Estate was opened by the chancellor’s October 5, 2005 order. The chancellor’s order admitted the will to probate and appointed Martha as executrix. The order also held that “the Clerk of this Court is directed to issue letters of administration to the Executrix, Martha Robinson, upon her taking the oath of office as by law required.” However, the oath was not taken (signed) until April 8, 2008, yet the letters testamentary were issued on December 19, 2006. Both of these actions occurred after the purchase contract had been signed and the closing date had passed.

¶ 38. When we consider the statutes cited by Stone Investment, we too are troubled by the executrix’s failure to follow the statutory procedure. Certainly, it is expected of all executors that they take, sign, and file the oath as soon as possible and that they have the letters testamentary issued prior to the time they take action on behalf of the estate. However, we note that the statutory procedure does not include an absolute remedy or legal consequence for the failure to comply with the requirement. Indeed, neither the cases cited by Stone Investment nor the research of this Court have found any case law that would void the transaction.

¶ 39. To support this argument, Stone Investment cites only the Estate of Manscoe v. Simmons, 512 So.2d 682 (Miss.1987). In Simmons, the chancery court approved a probated claim of a real-estate agent, Honey Simmons. Id. at 683. Manscoe died intestate and had no surviving spouse. After Manscoe’s death, Jimmy Coleman, a relative of Manscoe’s wife, qualified as Manscoe’s administrator, believing himself to be the proper heir, and contracted with Simmons to sell the decedent’s real estate. Id. Shortly thereafter, William Champ Goodman, Manscoe’s son, was substituted as the administrator. Simmons continued her effort to sell the property and obtained a contract. But the potential buyers dealt with the estate and bought the property from Goodman directly. Goodman did not sign the contract secured by Simmons. Id. Simmons probated a claim against the estate for her commission. Id. at 464. The supreme court recognized that “[o]rdinarily the administrator does not sell real estate belonging to the decedent,” and cited Mississippi Code Annotated sections 91-7-187 and 91-7-191 as proper statutory authority to sell property. Id. at 684.

¶40. There are two exceptions to the general rule that an executor cannot sell realty as he or she can sell personalty for the payment of debts of the estate: (1) where there is a testamentary power of sale and (2) a sale under court order. Robert E. Williford, Miss. Probate and Estate Administration § 12:1 (3d ed. 2003). Here, the executrix was authorized to proceed with the sale of the subject property under both of these exceptions.

¶ 41. In his will, Arlan expressly directed Martha, as his executrix, to sell this property. The will directed the manner in which the sale was to proceed, by way of auction. Because Arlan had provided Martha with this express testamentary power of sale, the extent of her authority is governed by the language of the will itself; it is not derived from a statute. Kyle v. Wood, 227 Miss. 717, 723, 86 So.2d 881, 883 (1956).

¶ 42. The testamentary power of sale removed the sale at issue from the statutory scheme that Stone Investment urges this Court to apply. Indeed, the statutes only apply in the absence of such authority to sell. Here, Martha carried out the explicit directions of the will in the precise manner it directed. Therefore, Martha, pursuant to the express testamentary power of sale, possessed the legal authority to sell the subject property consistent with the will’s direction.

¶ 43. When an executrix possesses power under the will to sell the land, the sale of such land is not considered a “judicial sale.” Davis v. Sturdivant, 197 Miss. 139, 19 So.2d 499, 500 (1944). Therefore, when a valid testamentary power of sale exists, there is no need to obtain a court order justifying the sale. Id.

¶ 44. Stone Investment’s contention that Martha was required to post bond in order to sell the subject property is also misplaced. The failure of bond does not affect the validity of the sale; rather, the purpose of the bond requirement is to ensure proper application of the funds.

¶ 45. Further, the chancellor apparently cured any potential administrative defects when the chancellor authorized the sale, by order dated May 24, 2006. The Estate asked for a waiver of the bond in its petition for sale, and, indeed, the chancellor acquiesced to the waiver when the executed order authorizing the sale did not require a bond. In lieu of bond, the chancellor’s order instructed that any proceeds realized from the sale were to be applied first to the disposal of any outstanding purchase-money liens on the property.

¶ 46. We also find it instructive to consider when the executrix derived her testamentary appointment. We have found several cases that indicate it is derived upon appointment and none that hold it is derived upon the issuance of the letters testamentary.

¶ 47. Recently, the Mississippi Supreme Court decided Clark Sand Co., Inc. v. Kelly, 60 So.3d 149 (Miss.2011). In Clark Sand, the plaintiff, Ruby C. Kelly a/k/a Ruby Kelley, brought a wrongful-death action as the personal representative of David Bozeman. Id. at 152 (¶¶ 2-3). Bozeman filed a mass-tort personal-injury lawsuit that alleged he had contracted lung cancer due to his exposure to silica. Boze-man died after the action commenced, and Kelley did not amend the complaint or move to be substituted as the real party in interest. The complaint was then dismissed. Id. at 153 (¶¶ 4-5). Kelley then filed a complaint as the executrix of the Estate of Bozeman. Clark Sand answered the complaint and brought a summary-judgment motion that argued the case should be dismissed because Kelley had “no standing to bring the suit because she had not yet been formally appointed executrix of Bozeman’s estate and she was not Bozeman’s wife.” Id. at (¶ 7). The circuit court denied the motion, and an interlocutory appeal was brought by Clark Sand. Id. at 154 (¶ 10).

¶ 48. The supreme court considered whether Kelley had standing as Bozeman’s personal representative. The supreme court ruled:

The first potential wrongful-death claimant is “the personal representative of the deceased person.” Miss. Code Ann. § 11-7-13 (Rev.2004). “Personal representative” is defined as “[a] person who manages the legal affairs of another because of incapacity or death” and when it is used by a testator, the term refers to an executor or administrator of the estate. Black’s Law Dictionary 1045 (abr. 7th ed. 2000). See also Hill v. James, 252 Miss, at 507-508, 175 So.2d at 179 (finding terms “personal representative” and “legal representative” to be synonymous, defined simply as “executors and administrators of persons deceased”).
To have standing as a personal representative to bring a wrongful-death action, the plaintiff must be formally appointed as such prior to filing the complaint for wrongful death.... If the potential claimant has not been formally appointed administrator or executor of the decedent’s estate at the time he or she commences the wrongful-death action, it follows that the person is without standing as a personal representative to bring the suit. See also [Delta Health Group, Inc. v. Estate of] Pope [ex rel. Pope], 995 So.2d [123,] 126 [(¶ 13) (Miss.2008)] (holding that decedent’s great-nephew did not cure lack of standing by subsequently being appointed administrator of decedent’s estate).
It is undisputed that, at the time she filed the suit, Kelley had not yet been formally appointed executrix of Boze-man’s estate, as the Alabama probate court had not yet issued her letters testamentary. So Kelley could not have had standing as Bozeman’s personal representative to bring this action at that time. Long [v. McKinney], 897 So.2d [160,] 174 [(¶ 57) (Miss.2004)].
Her being named executrix in Boze-man’s will does not change this. Until it was probated, Bozeman’s will conferred no legal authority upon Kelley.... An unprobated will “is nothing more than a piece of paper with writing on it,” and it “cannot be relied on to determine the ownership of property because it is not effective as an instrument of title.... ”
... Kelley thus had no authority to bring a wrongful-death claim on behalf of the estate until she was formally appointed executrix thereof. ... Since “standing is to be determined as of the commencement of suit,” and Kelley was not appointed executrix until after she had commenced this action, Kelley could not have had standing as a personal representative to commence this wrongful-death action when she did....

Kelly, 60 So.3d at 155-56 (¶¶ 16-19) (emphasis added). This case is instructive because the supreme court repeatedly stated that the personal representative’s authority comes from the appointment as executrix, not from the issuance of letters testamentary or letters of administration. We find this distinction important here. Stone Investment has cited no other cases to the contrary.

¶ 49. We also must consider the chancellor’s conclusion that the administrative deficiencies could have been cured in advance of the closing. In the purchase contract, Stone Investment was charged with obtaining a certificate of title. Of particular note, Jack Parsons’s letter dated April 11, 2006, to William Head Realty stated: Stone Investment’s intent to go forward with the transaction, that Stone Investment had examined the title to the property and “found several matters that will have to be corrected at the closing or before closing.” The three matters itemized did NOT include the deficiencies relied upon now. Thus, it was within the chancellor’s determination to conclude that Stone Investment had breached the contract due to the existence of the sewer easement and not because of any administrative deficiencies with the Estate. Thus, we find no error in the chancellor’s determination that the administrative issues of the Estate could not be cured to transfer good and merchantable title. Therefore, this Court does not find that the chancellor’s judgment was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Accordingly, as to this issue, the chancellor’s judgment is affirmed.

II. Good and Merchantable Title Tendered in a Timely Manner

¶ 50. In its second issue, Stone Investment argues that the Estate failed to tender good and merchantable title and a proper deed within the prescribed deadline for closing set forth in the purchase agreement. Stone Investment also argues that the deed tendered was improper because it was subject to encumbrances on the property.

¶ 51. We first consider the timeliness argument. The purchase contract included a provision that set the closing date:

9. CLOSING DATE shall be April 13, 2006, but may be sooner by mutual consent, CLOSING DATE MAY BE EXTENDED up to thirty (30) days if[:] (A) Mutually Agreed to, or (B) title defects are reported which may be cured,....

Stone Investment argues that the purchase contract expired by its own terms on April 13, 2006, when no deed had been tendered.

¶ 52. The chancellor determined this allegation had no merit. The chancellor found that the April 11, 2006 letter from Stone Investment’s attorney indicated its intent to go forward with the transaction and placed no date or time restriction on the conveyance. The Estate did what was requested when it obtained, on May 24, 2006, the chancellor’s order that approved the sale of the property. The evidence also indicated that the parties mutually agreed on a closing date scheduled approximately sixty days later, for July 28, 2006. There was no evidence that, during this time, Stone Investment refused to close based on the fact that the contractual closing date had passed. Instead, Stone Investment’s representatives attended the scheduled closing on July 28. It was during the closing on July 28th that Stone Investment refused to close the transaction.

¶ 53. Therefore, we find no error in the chancellor’s decision to reject Stone Investment’s claim that the purchase contract expired by its own terms on April 13, 2006.

¶ 54. Next, we consider Stone Investment’s claim that the Estate failed to tender good and merchantable title and the claim that the deed tendered was improper because it was subject to encumbrances on the property.

¶ 55. There was conflicting evidence of Stone Investment’s refusal to close. Initially, Stone Investment indicated that its refusal was based on deficiencies in the parcel’s title due to the sewer easement. However, Dana Parsons, the president of Stone Investment, later testified that the reason for Stone Investment’s refusal to close on the subject property had nothing to do with the existence of the sewer easement. Rather, Stone Investment had purportedly promised Fred’s, a prospective purchaser of the property, that the parcel would be in place by April 13, 2006. Apparently, however, Fred’s was no longer interested in purchasing the property from Stone Investment in late July 2006. At trial, Stone Investment offered the testimony of two attorneys, as experts in estate and real-estate conveyances, to prove that the title to the property was not merchantable.

¶ 56. The chancellor considered the testimony of the competing four expert witnesses and found that the closing would have cured “any deficiencies by the payment of liens and other title considerations.” The chancellor also rejected the claim that the sewer easement affected the merchantability of title. The chancellor concluded that the “presence of the sewer easement was a known public exception to which Stone [Investment] could not object.” The chancellor found that Stone Investment’s “unilateral effort to defeat the contract on the basis of the sewer easement would be a breach of the contract.” In addition, the chancellor found the reduced offers to purchase the property, letters dated August 3, 2006, and September 26, 2006, contradicted its claim that merchantable title could not be conveyed. Thus, the chancellor found the purchase contract was a binding contract and that merchantable title could be conveyed, with the deficiencies cured at closing.

¶ 57. We again note that the purchase contract required Stone Investment to pay for all closing costs. Paragraph 6 of the purchase contract provides:

WARRANTY DEED AND CERTIFICATE OF TITLE shall promptly be furnished by the party responsible for the cost and shall be prepared by a mutually agreed upon attorney, a certifí-cate of title insurance may be obtained from a title insurance company.... Seller shall cure any title defects to the satisfaction of the title insurance company that the Purchaser may obtain an owner’s title insurance policy subject only to standard exceptions and other matters specifically stated in this contract. ...

Under the purchase contract, Stone Investment was responsible for obtaining a certificate of title. The contract required Stone Investment to examine the title to identify any “title defects.” Then, the contract permitted the Estate, as the seller, an opportunity to cure any such “title defects” to the satisfaction of the title-insurance company. That never happened. Instead, the chancellor determined that Stone Investment had breached the purchase contract when it refused to close the transaction on July 28, 2006, or allow the Estate an opportunity to cure any title defects. We find that the chancellor’s findings of fact are supported by the evidence, and the chancellor’s judgment was not manifestly wrong, clearly erroneous, and did not apply an erroneous legal standard. Accordingly, the chancellor’s judgment is affirmed.

¶ 58. THE JUDGMENT OF THE CHANCERY COURT OF STONE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., MYERS, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR. IRVING, P.J., AND BARNES, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. ISHEE, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . Manscoe’s first name is not supplied in the case.