author: KITCHENS, Justice,

text:
    COMMUNITY TRUST BANK OF MISSISSIPPI, as Successor in Interest to the Madison County Bank v. FIRST NATIONAL BANK OF CLARKSDALE and Karen K. White.
    No. 2013-CA-01840-SCT.
    Supreme Court of Mississippi.
    Sept. 4, 2014.

      Robert Coffman Richardson, William H. Leech, Ridgeland, Timothy James Anzen-berger, attorneys for appellant.
    Gene D. Berry, Kathleen Shorkey Cook, Jackson, attorneys for appellees.
    Before RANDOLPH, P.J., LAMAR and KITCHENS, JJ.
   KITCHENS, Justice,

for the Court:

¶ 1. First National Bank of Clarksdale (FNB) secured a loan of more than $800,000 with, inter alia, a deed of trust on real property in Oxford, Mississippi (the “Oxford property”), with the understanding that the bank would become the primary lien holder on the realty. FNB acquired title insurance from Mississippi Valley Title Insurance Company (“Mississippi Valley”), to insure itself against the ■ risk of an undiscovered superior lien holder. No formal title search on the property was performed, although Mississippi Valley’s agent did discover the existence of another deed of trust on the property held by Community Trust Bank (CTB). However, he never relayed this information to FNB or to Mississippi Valley and issued the policy without regard to this prior recorded lien. Years later, CTB’s loan went into default and CTB initiated foreclosure proceedings, which alerted FNB to the existence of CTB’s deed of trust on the Oxford property. FNB instituted this suit in the Chancery Court of Lafayette County seeking to be subrogated to the primary lien holder position on the property in the amount that it had paid to satisfy the original primary deed of trust. After a bench trial, the chancellor found that the doctrine of equitable subrogation applied and granted primary status to FNB. CTB appealed.

¶ 2. We reverse the judgment of the chancery court and render judgment in favor of Community Trust Bank. Based upon the facts presented, subrogation is not equitable.

FACTS AND PROCEDURAL HISTORY

¶ 3. In 2003, Abner’s Inc., owned by Abner White, executed and delivered a deed of trust on an Abner’s Chicken Fingers restaurant property in Oxford, Mississippi (the Oxford property), with the First National Bank of Oxford in the amount of $272,922.17. This instrument was filed for record with the Chancery Clerk of Lafayette County. In 2005, another of Abner’s business entities executed a deed of trust with CTB, formerly Madison County Bank, on the same realty in the amount of $361,616.00. This deed of trust likewise was recorded by the Chancery Clerk of Lafayette County. When CTB made the loan, it was well aware that First National Bank of Oxford was in the primary lien holder position.

¶ 4. In 2007, Abner White and his wife, Karen White, divorced. As part of the Whites’ property settlement agreement, Abner transferred legal title to the Oxford property to Karen. CTB was unaware of this transaction. Under the terms of the Whites’ agreement, Karen was obligated to pay off all debts on the Oxford property in exchange for its being deeded to her. She also received through the divorce one other property on which she was obligated to pay debts. To consolidate her debts, Karen approached Ben Bolton at FNB for a large loan to pay off the debts on the properties she had acquired through the divorce.

¶ 5. FNB’s policy regarding nonresidential real estate loans required either a title commitment and a title insurance policy or an abstract with an attorney’s opinion on the state of the title. Bolton testified that, in the case of loans over $250,000, it generally was the policy of FNB to obtain the extra security provided by a title commitment and insurance policy. When FNB was considering whether to offer this loan, Ben Bolton asked attorney Matt McKenzie to “provide ... a title insurance policy and to act as settlement agent.” McKenzie performed due diligence on the Oxford property and, as an authorized agent for Mississippi Valley, drafted the title insurance policy. During the course of his research, McKenzie discovered the existence of the CTB lien on the Oxford property. According to McKenzie, Abner White told him that he was going to move the CTB deed of trust “to a separate piece of collateral.” This never was done. As to any discussion with CTB about its deed of trust on the Oxford property, McKenzie said that he could not recall anything, although there were notes indicating that he knew how much was needed to pay on the CTB loan in order for CTB to relinquish its primary lien position to FNB. McKenzie’s title commitment ultimately did not list the CTB lien on the Oxford property, and the title insurance policy was issued without reference to that lien.

¶ 6. Based on the title commitment, and insured to be the primary lien holder on the Oxford property, in 2007, FNB lent Karen White $808,893.16. The loan was secured, in part, by a deed of trust on the Oxford property. The terms of the loan documents made it clear that FNB anticipated having a primary lien holder position . on the Oxford property and indicated that FNB had paid off First National Bank of Oxford’s deed of trust on the property in the amount of $205,448.71 from the proceeds of the new loan. There is no mention of CTB’s deed of trust. For the next three years, both loans were paid regularly, although CTB was unaware that Abner had transferred ownership of the property tó Karen, or that FNB now had a lien on the property. During a period of about three years, Karen paid approximately $560,000 on the FNB loan, paying it down from approximately $800,000 to $240,000.

¶ 7. In 2010, the CTB loan went into default. During the course of its collection proceedings, CTB became aware of FNB’s lien on the property. McKenzie, the closing attorney whom CTB alleges represented FNB, attempted to work with CTB and coiivince it to take a junior lien position, but to no avail. When CTB attempted to foreclose, FNB, at the behest of Mississippi Valley, filed the present subrogation action. During the bench trial, FNB argued that it was entitled to equitable sub-rogation, claiming that it never had “actual knowledge” of the CTB deed óf trust, and that equitable subrogation would not prejudice CTB, as it still would be in the secondary position on the property, the position for which it originally had bargained. CTB argued that McKenzie’s actual knowledge of the CTB lien transferred to FNB, and that its position was prejudiced because it was now behind a larger loan than the one to which it initially had agreed.

¶ 8. The chancellor ultimately sided with FNB and applied equitable subrogation, stating:

The law as it relates to Community Trust Bank is as follows: If a junior lienholder would not be prejudiced and would essentially be put in the same position he held upon his obtaining judgment, or here the case is deed of trust, equitable subrogation may be applied. To allow the junior lienholder to benefit from the other’s mistake is inconsistent with the principals [sic] of equity and justice.

The chancellor noted that CTB did very little in relation to its taking of the secondary lien on the property: it did not get title work, title insurance, or do an appraisal, and it “attributed little or no value to the subject property.” The chancellor determined that FNB did not have actual notice of the CTB lien, that McKenzie was not FNB’s attorney in the transaction, and that, even if he was, his knowledge of the CTB lien would be imputed or constructive knowledge for FNB, neither of which is a bar to equitable subrogation. The chancellor awarded equitable subrogation to FNB in the amount of $205,481.71, the amount that it had paid to become the primary lien holder. After the judgment, FNB filed a motion pursuant to Rule 59 of the Mississippi Rules of Civil Procedure to alter or amend the judgment to include five percent interest on the amount originally awarded to it. After a hearing, the chancellor agreed and amended the judgment to include interest. CTB appealed.

ANALYSIS

¶ 9. This Court reviews questions of law de novo, and it reviews the factual findings of the chancery court under an abuse of discretion standard. Matter of Estate of Mason, 616 So.2d 322, 327 (Miss. 1993).

¶ 10. Mississippi is a race-notice jurisdiction. “Every conveyance, covenant, agreement, bond, mortgage, and deed of trust shall take effect, as to all creditors and subsequent purchasers for a valuable consideration without notice, only from the time when delivered to the clerk....” Miss.Code Ann. §89-5-5 (Rev. 2011). The priority of all instruments filed for record on a piece of real property is “governed by the priority in time of the filing of the several instruments .... ” Id. In other words, when it comes to the order in which the holders of several liens on a property may collect on their loans, it is first recorded, first served.

¶ 11. Subrogation is an equitable doctrine whereby a court may circumvent the race-notice principles and substitute a later-filed lien into the primary lien holder position on a tract of real estate, such that the substitute creditor “succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies, or securities.” First Nat’l Bank of Jackson v. Huff, 441 So.2d 1317, 1319 (Miss.1983). This Court has recognized and encouraged the application of equitable subrogation. See Prestridge v. Lazar, 132 Miss. 168, 95 So. 837, 838 (1923) (“The courts should rather incline to extend than restrict the operation of the doctrine.”). FNB seeks to be subrogated to the primary position that CTB occupied under our statutory race-notice scheme. In effect, FNB is asking us to ignore our race-notice statutes in the interest of what it perceives to be fairness.

¶ 12. When determining whether equitable subrogation should apply, “[t]he controlling consideration is the actual facts. The question is: What is natural justice under the actual facts of the situation?” Prestridge v. Lazar, 132 Miss. 168, 95 So. 837, 838 (1923). Ultimately, determining whether equitable subrogation applies is done on a case-by-case basis. See Huff, 441 So.2d at 1319. Above all, subro-gation must be equitable to the parties involved. “The determination of whether subrogation is applicable is a factual determination of each particular case with consideration of fairness and justice as its guiding principles.” Id. “The doctrine of subrogation is one of equity and benevolence; its basis is the doing of complete, essential, and perfect justice between the parties, without regard to form, and its object is the prevention of injustice. It does not rest on contract, but upon principles of natural equity.” Prestridge, 95 So. at 838 (internal quotation omitted). Accordingly, although certain factors may weigh more heavily for or against subrogation, ultimately it is awarded only after carefully weighing all of the facts and circumstances and deciding what the fairest result would be.

¶ 13. The relevant facts we must consider are as follows. FNB lent Karen White $808,893.16, secured in part by a new deed of trust on the Oxford property, with the expectation that it was now in the primary lien holder position. FNB paid $205,448.71 to satisfy First National Bank of Oxford’s primary lien on the Oxford property. The loan to Karen White was made with the assurance by Mississippi Valley that no other liens encumbered the Oxford property, despite Mississippi Valley’s agent’s being aware of the CTB lien on the property, and despite the fact that a timely and appropriate title search was not conducted by anyone. Over the next three years, Karen paid back more than $550,000 of her loan from FNB. When FNB discovered CTB’s lien on the property, it instituted this suit for subrogation in the amount it had paid to satisfy the original primary lien on the property, $205,448.71. Given that Karen White had paid down her FNB loan from more than $800,000 to $240,000, this subrogation amount would largely cover the remaining amount of the loan. The chancellor granted subrogation in the amount of $205,448.71 and later amended the judgment to include interest from the date the payment was made, thus awarding an even greater subrogation amount to FNB. We must analyze these facts and consider the factors that weigh for and against subrogation.

¶ 14. Because FNB is subrogated only to the principal amount it paid to obtain primary status, it argues that CTB is behind the same loan it was behind all along. This is consistent with the general consensus of most commentators on the subject. For example,

Subrogation will be recognized only if it will not materially prejudice the holders of intervening interests. The most obvious illustration is that of a payor who lends the mortgagor more money than is necessary to discharge the preexisting mortgage. The payor is subrogated only to the extent that the funds disbursed are actually applied toward payment of the prior hen. There is no right of subrogation with respect to any excess funds.

Restatement (Third) of Property: Mortgages § 7.6 cmt. e. (1997). FNB’s position is that, when it made the $800,000 loan to Karen White, it was subrogated to the primary lien holder position only in the principal amount of $205,000, the portion of the $800,000 that it used to pay off the original primary lien. Since this is exactly what the chancellor granted to FNB, FNB contends that CTB was not prejudiced and the subrogation is equitable.

¶ 15. However, the facts of this case clearly demonstrate prejudice to CTB as a result of subrogation. After FNB had lent Karen White $800,000 and paid $205,000 to satisfy the original loan' on the Oxford property, Karen White proceeded to pay more than $550,000 back to FNB, bringing the outstanding balance on her $800,000 loan down to approximately $240,000. At oral argument, counsel for CTB represented to the Court without contradiction that the original lien would have been paid down to approximately $12,000 in that same time frame if it had continued being paid off at its normal rate. Instead of being behind a $12,000 hen, CTB now finds itself behind a lien of $205,000, plus interest. It is as if the original primary lien had been frozen in time — while collecting interest — from the date that it was paid by FNB. This clearly was prejudicial to CTB, as it allowed FNB, in effect, to bury the subrogation amount of $205,000 underneath the actual loan amount of $800,000. And now FNB is in a position to recover the entire subrogation amount, plus interest, as if Karen White had not paid one cent on the original loan since 2007. This is materially prejudicial to CTB and weighs heavily against subrogation.

¶ 16. Further, CTB was prejudiced not only by the amount of the new loan it was placed behind, but also by the fact that the loan it was placed behind involved two completely unknown and unanticipated parties. CTB agreed to a deed of trust in secondary position on the Oxford property because it determined that Abner’s, Inc., was very likely to pay off the primary deed of trust secured by First National Bank of Oxford. Abner’s, Inc., had a good reputation and was a profitable business, and, as owner of the Oxford property, had significant incentive to pay off the primary lien on the property. CTB did not agree to be behind an $800,000 deed of trust between FNB and Karen White. Essentially, CTB now is owed money by Abner’s, Inc., that is secured by a deed of trust on real estate that Abner’s, Inc., no longer owns. Abner’s, Inc., has markedly less incentive to pay the CTB loan, as it does not retain any interest in the Oxford property. Further, at oral argument, counsel for CTB argued that the calculus of CTB’s decision to accept a deed of trust on the Oxford property would have been substantially different if it had known that the owner of the Oxford property was Karen White. This additional prejudice to CTB also weighs against subrogation.

¶ 17. We also must consider the fact that FNB and Mississippi Valley had constructive notice of CTB’s deed of trust. “Every title-bond or other written contract in relation to land may be acknowledged or proved, and certified and recorded, ... and the proper certificate thereof and delivery to the clerk of the chancery court of the proper county ... shall be notice to all subsequent purchasers of the existence of such bond or contract.” Miss. Code Ann. § 89-5-7 (Rev. 2011) (emphasis added). “The registration of an instrument is constructive notice to the world of the contents of the paper there recorded....” Simmons v. Hutchinson, 81 Miss. 351, 33 So. 21, 22 (1902) (emphasis added). When CTB dutifully recorded its deed of trust on the Oxford property in the office of the Lafayette County Chancery Clerk, FNB, Mississippi Valley, and all other interested parties were put on constructive notice of the existence of that deed of trust. FNB wanted to become the primary lien holder on the property, and Mississippi Valley insured FNB that it was. The failure to discover the deed of trust, which provided notice for “the world” to see in the office of the chancery clerk, clearly constituted negligence.

¶ 18. FNB is correct when it states that constructive notice of a lien and negligence are not bars to equitable subro-gation. See Prestridge, 95 So. at 838 (holding that constructive notice of a lien did not bar subrogation); see also Huff, 441 So.2d at 1320 (“We hold that ordinary negligence will not per se bar subrogation .... ”). The general rule is that actual knowledge and culpable negligence are the only absolute bars to subrogation. As an equitable matter, we agree that neither negligence nor constructive knowledge constitutes a per se bar to subrogation. Instead, each merely is a consideration that must be weighed along with other operative factors. FNB has pointed to numerous jurisdictions which have held that subrogation is not barred by constructive knowledge or negligence, but it has not pointed to a single case in which these factors required subrogation. In weighing the equities, although constructive knowledge of a lien and negligence in failing to obtain actual knowledge of a lien do not bar subrogation, .they certainly do not weigh in its favor. CTB’s deed of trust was valid and was recorded in the chancery clerk’s office, available for any interested party to view. FNB failed to check for the presence and status of liens on the Oxford property. Mississippi Valley, which did have actual notice of the deed of trust through its agent McKenzie, insured FNB against the risk of an undiscovered superceding lien on the property. If negligence is to be distributed between the banks, there is none to assign to CTB, as it has done nothing wrong. This factor must weigh against subrogation.

¶ 19. FNB also argues, and the chancery court in part relied upon, the fact that CTB secured its loan in part with equipment and other chattels as collateral. FNB argues that CTB did not perform due diligence when it also secured its loan with a deed of trust on the Oxford real property. FNB claims that CTB assigned little to no value to the deed of trust, relying instead on the value of the collateral in the personalty. Additionally, as CTB did not periodically check on the status of the primary lien in front of it, it was not relying on becoming the eventual primary lien holder on the Oxford realty. We fail to see how this in any way changes the fact that CTB had a valid, recorded deed of trust on the Oxford property, or how it obviates FNB’s or Mississippi Valley’s duty to determine whether an intervening interest existed on the Oxford property when FNB made its loan. The chancellor’s reliance on this factor was erroneous.

¶ 20. Finally, FNB argues that the existence of its title insurance should not be a factor to be considered by this Court in determining whether equitable subrogation is appropriate. However, in the context of equitable subrogation, this Court long ago stated that we must examine “natural justice under the actual facts of the situation....” Prestridge, 95 So. at 838 (emphasis added). The existence of FNB’s title insurance and Mississippi Valley’s failure to report CTB’s recorded deed of trust on the Oxford property to FNB are relevant facts that equity requires us to consider. Other courts have found that the principles of equity required consideration of the negligence of a title insurance company which bungled the transaction in the first place. After all, “[ejither they insure or they don’t. It is not the province of the court to relieve a title insurance company of its contractual obligation.” Lawyers Title Ins. Corp. v. Capp, 174 Ind. App. 633, 369 N.E.2d 672, 674 (1977) (quotation omitted). In determining that the existence of title insurance was relevant to a consideration of equity, the Missouri Court of Appeals of the Eastern District stated that “[i]t is strange equity indeed, which would protect [the title insurance company] from the results of its negligence at the expense of [the party opposing subrogation], which is totally innocent in the matter.” Landmark Bank v. Ciara-vino, 752 S.W.2d 923, 929 (Mo.Ct.App. 1988). More recently, the Supreme Court of Kentucky found that, in the context of equitable subrogation, the existence and potential negligence of a title insurance company which has insured the party seeking subrogation is relevant to the overall consideration of the equities.

The equities favor holding the most culpable party responsible for the loss. In this case, the most responsible party is not a party to the case. However, the Court presumes that both lending institutions involved in this case have viable claims against their respective title insurance companies. Those title insurers are engaged in the very profitable business of assuring that their lending institution customers receive a clear title by insuring such. If the title insurer’s examiners bungle the title search, no matter how innocent the mistake might be, then the title insurers must ultimately be held liable.

Wells Fargo Bank, Minnesota, N.A. v. Com., Finance and Admin., Dep’t of Revenue, 345 S.W.3d 800, 808 (Ky.2011).

¶ 21. Once again, we must ask ourselves, “What is natural justice under the actual facts of the situation?” Prestridge, 95 So. at 838. As explained above, if subrogation is permitted, CTB is prejudiced. If subrogation is denied, CTB can foreclose on the Oxford property and collect what it is owed to the extent of the property’s value. If the value of the property exceeds the outstanding amount of CTB’s loan, then FNB may recoup the remainder. FNB- also may file a claim with Mississippi Valley, the title insurance company that insured FNB against the risk of an intervening lien on the Oxford property, and whose agent, McKenzie, discovered CTB’s intervening lien and then failed to inform anyone about it.

¶ 22. Overall, to allow FNB subrogation over CTB would be inequitable in this case. While FNB may not have had actual knowledge of CTB’s lien, it was, nevertheless, on constructive notice of the lien by virtue of its having been recorded in the office of the chancery clerk. The fact that CTB is prejudiced by subrogation, in that it now is behind a much larger lien between two unanticipated parties, weighs most heavily against subrogation. And, while constructive notice of an intervening lien and negligence on behalf of the party seeking subrogation áre not per se bars to subrogation, they are factors that necessarily must weigh against it. By themselves, these factors are enough for this Court to reverse the chancellor’s granting of subrogation to FNB. The safety valve of FNB’s title insurance, and the additional circumstances of Mississippi Valley’s failure to make its insured aware of CTB’s recorded lien, further substantiate our decision.

CONCLUSION

¶ 23. We hold that natural justice under the facts of this case inexorably weighs against subrogation in favor of FNB. CTB was materially prejudiced by being placed secondary to a lien of a value and between two parties that it never agreed to be behind. It now finds itself behind a loan amount that has grown despite consistent and substantial payments by the borrower. FNB has recouped more than twice the amount of the original primary lien on the Oxford property. FNB failed to undertake the most basic of precautions: a title search, and it had, at the least, constructive knowledge of CTB’s lien. Instead, FNB relied upon Mississippi Valley to determine the status of the liens on the Oxford property, and FNB paid Mississippi Valley to insure that it would be the primary lien holder on the property. FNB is not the primary lien holder, and it now is in a position to call upon its title insurance company for indemnification. Mississippi Valley easily could have prevented this problem. The chancery court erred in holding that CTB was not prejudiced by FNB’s subrogation; it erred in failing to weigh FNB’s constructive notice of the CTB lien against FNB; and it erred in failing to consider the possible negligence of Mississippi Valley, which arguably created this dispute. Subrogation is an equitable doctrine, and under the facts of this case, granting subrogation to FNB is not equitable. Community Trust Bank is the primary lien holder on the Oxford property because its deed of trust was recorded first in time. We reverse the decision of the Chancery Court of Lafayette County and render judgment in favor of Community Trust Bank.

¶ 24. REVERSED AND RENDERED.

DICKINSON AND RANDOLPH, P.JJ., LAMAR, CHANDLER, PIERCE, KING AND COLEMAN, JJ„ CONCUR. WALLER, C.J., NOT PARTICIPATING.

      . Abner was to deed the properties to Karen and then lease them from her, paying to her rental income on the two properties.

      . First National Bank of Clarksdale does business in Oxford as the Bank of Oxford. Bank of Oxford and First National Bank of Oxford are separate entities.

      . A title insurance policy insures a lender against the risk of one or more undiscovered, intervening lien holders on the property. The title commitment is drafted to set out the terms and conditions under which a policy will be issued. According to Brad Jones, vice president and claims counsel of Mississippi Mississippi Valley Insurance Company, a title commitment is not a substitute for a certificate of title and is not intended to be a representation of the status of the title to the lender.

      .Both FNB and McKenzie deny that McKenzie was FNB’s attorney. Rather, McKenzie claimed that he represented "[t]he transaction.”

      . FNB also secured the loan with a deed of trust on a second Abner's Chicken Fingers restaurant property in Starkville, Mississippi.

      . As Abner's, Inc., still was the obligor on the loan between itself and CTB, Abner’s, Inc., continued to pay the CTB loan, despite the fact that the property had been deeded to Karen.

      .FNB argues that only actual knowledge, not constructive or imputed knowledge, is a bar to equitable subrogation.

      . “On a motion for a new trial in an action without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of judgment.” M.R.C.P. 59.

      . The parties have separated the main argument regarding subrogation into several sub-parts. We discuss subrogation as one issue, as it is a matter of balancing the facts and circumstances of the case to reach an equitable outcome, rather than any one dispositive factor’s being determinative.

      . This is the practical result of FNB's argument. Immediately upon its payment of the original lien, it contends that it was subrogat-ed to $205,000. If FNB immediately had sought subrogation when it paid the primary lien, $205,000 is the only amount to which it would have been entitled. However, it now has been several years since that amount was paid off, and FNB has recouped more than $550,000 from the borrower. FNB nevertheless maintains that it is entitled to $205,000, plus interest. So, as time passed, and FNB has recovered more from Karen White, the subrogation amount actually has increased as interest was added. Oddly enough, according to FNB, the more FNB recovered on its loan, the more time passed, and the bigger FNB's subrogation amount became.

      . At oral argument, counsel for FNB argued that CTB never monitored the status of the original primary lien on the Oxford property. Accordingly, Karen White could not have been paying that lien at all while CTB’s lien still was being paid, which would have resulted in CTB’s being behind the full subrogation amount plus interest. But the fact is, Karen White did pay down her loan. She paid back more than $550,000. FNB's "what if” proposition has no merit where, as here, Karen White consistently paid back more than twice the amount of the original primary lien.

      . FNB’s argument, if followed to its logical conclusion, would mean that, as long as a lender pays off the primary lien after negligently failing to discover an intervening secondary lien, equitable subrogation should be granted as a matter of course. This cannot be the case. Lenders cannot be incentivized to blind themselves willfully to the existence of other liens on collateral and then claim that their lack of actual notice requires subrogation.


source: Caselaw Access Project

author: WALLER, Chief Justice, KING, Justice,

license: Public Domain

text:
    Dianne TRUDDLE, as Mother and Wrongful Death Beneficiary of Eric Carmichael, Deceased v. BAPTIST MEMORIAL HOSPITAL-DESOTO, INC.; and Sunil Malhotra, M.D.
    No. 2013-CA-00707-SCT.
    Supreme Court of Mississippi.
    Nov. 6, 2014.

      Benjamin N. Philley, Ridgeland, attorney for appellant.
    Walter Alan Davis, Oxford, Sarah Katherine Embry, Clinton M. Guenther, Greenwood, attorneys for appellees.
   WALLER, Chief Justice,

for the Court:

¶ 1. Diane Truddle, as mother and wrongful-death beneficiary of Eric Carmichael, sued Baptist Memorial Hospital-De-Soto, Inc., and Dr. Sunil Malhotra after Carmichael committed suicide upon being discharged from Baptist. The trial court granted summary judgment in favor of Baptist and Dr. Malhotra and entered a final judgment in their favor as a matter of law. Truddle appealed to this Court. Finding that the trial court did not err in granting Defendants’ motion for summary judgment, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 9, 2008, Carmichael was admitted to Baptist complaining of chest pains and was seen by internist Dr. Malho-tra. After undergoing some tests, Carmichael was diagnosed with a gastric ulcer, gastritis, esophagitis, questionable pericar-ditis, and normal coronary arteries following a heart catheterization.

¶ 3. On June 12, 2008, the night before Carmichael was discharged from Baptist, he became agitated and aggressive. He took the IV out of his arm and attempted to leave the hospital, but nurses stopped him and forced him back to his room. During this encounter, one nurse stated that Carmichael said someone was “trying to rape him.” Truddle characterized this episode as a hallucination, but Dr. Malho-tra and Baptist pointed to the deposition of Jeremy Newsome, a friend of Carmichael, who stated that this was in jest. The attending nurse that night noted the incident on Carmichael’s chart; however, Dr. Malhotra was not informed of the incident and did not review the nurse’s note before discharging Carmichael the next day.

¶ 4. Prior to discharge, Carmichael and Truddle told Dr. Malhotra that Carmichael wished to remain in the hospital a few more days. In her deposition, Truddle stated that she told Dr. Malhotra that she did not want Carmichael to be discharged because “he had had an outburst the night before” and that Carmichael stated that “something they gave me [medications] made me crazy.” Among the drugs Carmichael was prescribed was Reglan, which Truddle asserts potentially put Carmichael at a higher risk of suicide. However, neither Carmichael nor Truddle raised any concerns about Carmichael hurting himself or having any suicidal ideation. Despite Truddle’s concerns, Carmichael was discharged, and Dr. Malhotra told Carmichael to return if he did not feel better. Dr. Malhotra also scheduled a followup visit to check Carmichael’s progress and treatment of the ulcer.

¶ 5. Carmichael and Truddle returned for his followup appointment with Dr. Mal-hotra four days later. Truddle stated that she told Dr. Malhotra that Carmichael was complaining that the medications he was taking were “making [him] crazy,” and that Carmichael had been complaining that “[h]e had a mental status change on [the night before he was discharged].” Trud-dle also stated that she told Dr. Malhotra that Carmichael refused to leave the hospital with her the day he was discharged from Baptist. Dr. Malhotra examined Carmichael for the gastrointestinal issues that were the basis for his admission to Baptist. Truddle then stated that Dr. Malhotra wrote Carmichael another prescription for Reglan and told him he did not have to take any more pain medication and that Carmichael should follow up with him in three to four weeks.

¶ 6. The day after seeing Dr. Malhotra, and five days after being discharged from Baptist, Carmichael told his friend Natlin Porter that he was “tired of living.” That same day, Carmichael told his cousin that he needed a gun, and that he wanted to see his deceased cousin, Tavares. Carmichael subsequently drove from Southaven to Sardis to retrieve the handgun he used to kill himself. The next day, Carmichael called his girlfriend and asked her to take care of his sister and mother if something happened to him. He then sent a text message to a number of his friends saying he wanted them to know that he was now resting in peace. Later that day, six days after being released from Baptist and two days after his last appointment with Dr. Malhotra, Carmichael barricaded himself in his bedroom and committed suicide.

¶ 7. Subsequently, Carmichael’s mother, Truddle, filed a medical-malpractice and wrongful-death suit against Dr. Mal-hotra and Baptist, setting out claims for medical negligence, vicarious liability, breach of warranty, wrongful death, torturous breach of contract, gross negligence, and punitive damages. Both partiés took part in substantial discovery, and each retained experts. Truddle’s experts indicated they would testify that Dr. Malhotra and Baptist were negligent, breached the applicable standard of care, and proximately caused Carmichael’s suicide. Experts for Dr. Malhotra and Baptist stated they would testify that Dr. Malhotra and Baptist acted reasonably under the circumstances and did not cause Carmichael’s suicide.

¶ 8. Baptist and Dr. Malhotra also filed motions for summary judgment. In their motions, Baptist and Dr. Malhotra asserted that, under Mississippi law, a suicide is actionable only when a defendant’s intentional wrongful act proximately caused an irresistible impulse resulting in the suicide. Baptist and Dr. Malhotra argued that Truddle never pleaded, nor could she create, a genuine issue of material fact as to “any intentional wrongful act” committed by the defendants that caused Carmichael to commit suicide.

¶ 9. The trial court held a hearing on the motions, took the arguments under advisement, and subsequently granted Dr. Malhotra’s and Baptist’s motion for summary judgment.

DISCUSSION

I. Whether the trial court erred in holding that Mississippi law bars medical-negligence actions arising from an individual’s suicide.

¶ 10. This Court reviews a trial court’s grant of a motion for summary judgment de novo. Hospital MD, LLC v. Larry, 138 So.3d 922, 925 (Miss.2014). We review the evidence presented in the light most favorable to the party opposing the motion. Johnson v. Pace, 122 So.3d 66, 68 (Miss.2013). Summary judgment in favor of the moving party is appropriate as a matter of law when, taking all the evidence together in the motion, “there is no genuine issue as to any material fact.” Miss. R. Civ. P. 56.

¶ 11. This Court first noted in the seminal case of State for Use and Benefit of Richardson v. -Edgeworth that a rebutta-ble presumption exists “that a person will not destroy himself by suicide.” State for Use and Benefit of Richardson v. Edgeworth, 214 So.2d 579, 585 (Miss.1968). Citing cases denying recovery in wrongful-death actions in which the decedent committed suicide, the Court cited the common-law rule that suicide is an “unforeseeable, intervening cause ... which breaks the causal connection between the wrongful act and the death.” Id. at 586. However, the Edgeworth Court recognized an exception to the common-law rule, allowing recovery against a defendant resulting from a suicide only if the suicide was proximately caused by the intentional act of the defendant, creating an irresistible impulse in the decedent to’ take his or her own life. Id. at 586-88; Collums ex rel. Collums v. Union Planters Bank, N.A., 832 So.2d 572, 578 (Miss.Ct.App.2002); Shamburger v. Grand Casino of Miss., Inc/Biloxi, 84 F.Supp.2d 794, 798-99 (S.D.Miss.1998). The Edgeworth Court reasoned that intentional acts which cause an irresistible impulse to commit suicide should be compensable because “[a] higher degree of responsibility is imposed upon a wrongdoer whose conduct was intended to cause harm than upon one whose conduct was negligent.” Edgeworth, 214 So.2d at 587 (emphasis added).

¶ 12. The Court went on to note that, “[i]f he took his own life through an uncontrollable impulse and without conscious volition to cause death, and the mental condition was caused by the injury, the death was compensable.” Id. at 587 (quoting Prentiss Truck & Tractor Co. v. Spencer, 228 Miss. 66, 87 So.2d 272 (1956)). In sum, to recover against a third party for a decedent’s suicide, the Edgeworth Court held that a plaintiff must plead and prove: (1) the decedent was under an “irresistible impulse” rendering him or her unable to discern the nature or consequences of suicide, and (2) the “irresistible impulse” was proximately caused by the defendant’s intentional conduct. Edge-worth, 214 So.2d at 587. Federal courts have applied Edgeworth in this manner as well. See Shamburger v. Grand Casino of Miss., Inc/Biloxi, 84 F.Supp.2d 794, 798-99 (S.D.Miss.1998); Hare v. City of Corinth, 814 F.Supp. 1312, 1326 (N.D.Miss. 1993), vacated on other grounds by Hare v. City of Corinth, 74 F.3d 633 (5th Cir.1996).

¶ 13. After quoting the general rule against recovery for suicide and this Court’s precedent noted above, the trial court found that “the state of the law in Mississippi at this time is that there exists one exception to the general rule, the irresistible impulse exception.” The trial court then addressed whether Truddle had met the exception, finding the plaintiff had not produced any evidence of an intentional act by Dr. Malhotra or Baptist that created an irresistible impulse within Carmichael to commit suicide. This was “despite the plaintiffs assertion that such [an intentional] act was committed by the hospital or Malhotra by not providing a psychological consult to [Carmichael]”; however, the trial court found that these accusations rose, at most, to the level of mere negligence.

¶ 14. The trial court also noted the withdrawn opinion of Young v. Guild, 2008 WL 4740038 (Oct. 30, 2008), opinion withdrawn on grant of reh’g, substituted at 7 So.3d 251 (Miss.2009). In the withdrawn Young opinion, the then-majority Court noted that, although the irresistible-impulse doctrine remained a part of Mississippi law, “this Court has never addressed its applicability in the context of a medical malpractice case filed against a doctor, who treated a patient for the mental condition which led to a patient’s suicide.” The Court then held that the doctrine was “inapplicable to a physician or other medical provider from whom treatment is sought for a mental condition, where the plaintiff claims that the negligent care led to the suicide.” The trial court in the case sub judice noted the above language but also noted that the case was withdrawn, the second Young opinion superceded the first, and the ultimate decision of this Court never addressed the cross-appeal involving the irresistible-impulse doctrine. Thus, the status of the law in Mississippi remained unchanged.

¶ 15. Truddle argues that the trial court erred in interpreting Edgeworth as prohibiting negligence claims arising from suicide and that Mississippi caselaw “traditionally acknowledged the viability of [negligence claims for suicide] particularly where, as here, the Defendants allegedly owed the decedent some form of duty.” The crux of Truddle’s argument, therefore, is that Carmichael’s suicide was the result of medical malpractice, i.e., negligence.

¶ 16. A medical-malpractice cause of action in Mississippi tracks the typical negligence action, placing the burden on the plaintiff to prove “(1) the existence of a duty by the defendant to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) a failure to conform to the required standard; and (3) an injury to the plaintiff proximately caused by the breach of such a duty by the defendant.” Pace, 122 So.3d at 68 (quoting Hubbard v. Wansley, 954 So.2d 951, 956-57 (Miss.2007)).

¶ 17. Nothing in Mississippi case-law, save the irresistible-impulse doctrine, however, abrogates the general rule that suicide constitutes “an independent, intervening and superseding event that severs the causal nexus between any wrongful action on the part of the defendant.” Shamburger, 84 F.Supp.2d at 798 (citing Nicholson on Behalf of Gollott v. State, 672 So.2d 744, 753 (Miss.1996)). The Edgeworth Court specifically stated that the irresistible-impulse doctrine applied as an exception to the general rule regarding suicide because “[a] higher degree of responsibility is imposed upon a wrongdoer whose conduct was intended to cause harm than upon one whose conduct was negligent.” Edgeworth, 214 So.2d at 586.

¶ 18. Furthermore, this principle extends to medical-malpractice claims. In Haney v. River Oaks Hospital, the plaintiff brought a medical-negligence action against a doctor and hospital where a patient committed suicide after being released from the hospital over her family’s objections. Haney v. River Oaks Hosp., 2006-CA-00219-SCT (Order, May 17, 2007). The trial court granted the doctor’s and hospital’s motion for summary judgment, which this Court affirmed per curium. Id.

19. Nothing in Truddle’s com-comgoes beyond an argument that Dr. Malhotra and Baptist were negligent in not recommending a psychiatric evalua-evaluaeven though Carmichael never told Dr. Malhotra or anyone at Baptist that he was considering suicide. At most, Dr. Malhotra and Baptist were on notice that Carmichael believed his medication was making him “crazy,” and that Carmichael acted bizarrely when he attempted to leave the hospital. Dr. Malhotra and Baptist were never on notice that Carmichael was suicidal. Nevertheless, Truddle argues that the side effects of Reglan include depression and suicide, which should have been investigated. But, under Mississippi law, this failure alone is not sufficient to sustain a cause of action for a suicide. In such a case, the plaintiff must show that the defendant committed an intentional act that led to an irresistible impulse to com-comsuicide in order to prevail. Edge-Edge-214 So.2d at 586-88. Truddle made no such allegation against Baptist or Dr. Malhotra. Therefore, the Desoto County Circuit Court properly granted Baptist’s and Dr. Malhotra’s motion for summary judgment.

¶ 20. In her second argument, Truddle relies on Mississippi Department of Mental Health v. Hall, 936 So.2d 917 (Miss. 2006); Carrington v. Methodist Medical Center., Inc., 740 So.2d 827 (Miss.1999); Mississippi State Hospital v. Wood, 823 So.2d 598 (Miss.Ct.App.2002); and Lyle v. Johnson, 240 Miss. 154, 126 So.2d 266, 269 (1966), asserting that Mississippi law recognizes a defendant’s liability for another’s suicide in the context of a negligence action. However, none of the Mississippi cases cited by Truddle addresses a suicide in which the decedent already had been released from the defendant’s custody. Instead, the cases cited involve patients committing suicide or injuring themselves in the custody and control of the facility, and in some cases, the decedent or plaintiff already had expressed a desire to harm himself or herself. See Miss. Dep’t of Mental Health v. Hall, 936 So.2d 917 (Miss.2006) (state hospital sued in a negligence .action for mental patient who attempted to escape from an unlocked window); Carrington v. Methodist Med. Ctr.„ Inc., 740 So.2d 827 (Miss.1999) (addressing whether defendant was shielded by Mississippi Code Section 41-21-105 after wrongful-death action was filed relating to suicide of a patient in the defendant’s custody who was to be closely monitored); Miss. State Hosp. v. Wood, 823 So.2d 598 (Miss. Ct.App.2002) (wrongful-death action against State Hospital at Whitfield after a patient, voluntarily hospitalized for suicide attempts, committed suicide in the facility); Lyle v. Johnson, 240 Miss. 154, 126 So.2d 266, 269 (1961) (pre-Edgeworth case in which decedent committed to private sanitarium left the premises and drowned).

¶ 21. In contrast, in the case sub judi-ce, Carmichael, who never expressed to Dr. Malhotra a desire to harm himself, was not under the control of Baptist or Dr. Malhotra when he committed suicide. The Mississippi cases Truddle cites for her argument that Mississippi recognizes a defendant’s liability for another’s suicide because he or she owed the defendant a duty of care are inapposite to the facts of this case. In those cases, the defendants had the ability to control the patient’s conduct, whereas here, Baptist and Dr. Malhotra did not. Therefore, we affirm the judgment of the trial court.

CONCLUSION

¶ 22. Truddle failed to allege any intentional conduct on the part of Dr. Malhotra or Baptist that proximately created an irresistible impulse in Carmichael to commit suicide, as required by Mississippi law. And despite Truddle’s allegations, there is no evidence Carmichael ever sought psychiatric treatment from Dr. Malhotra or Baptist. Furthermore, Truddle’s assertion that the defendants committed an intentional act by not providing a psychological consult does not meet the requirements of the irresistible-impulse exception as espoused in Edgeworth. Therefore, the judgment of the Desoto County Circuit Court is affirmed.

¶ 23. AFFIRMED.

RANDOLPH, P.J., LAMAR, CHANDLER AND PIERCE, JJ., CONCUR. KING, J„ DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., KITCHENS AND COLEMAN, JJ.

KING, Justice,

dissenting:

¶ 24. The claim in today’s case is essentially medical negligence based on the failure to address harmful effects of a drug, even after medical providers were informed of these negative effects occurring in the decedent. The trial court and the Majority find that the plaintiffs claim is not actionable, as a matter of law, because the claim is not based on intentional conduct and the decedent was not under the direct supervision of the defendants. I find that the claim is actionable and that there are questions of fact for the jury in today’s case. Therefore, I dissent.

¶ 25. This Court’s seminal case addressing wrongful death claims stemming from suicide is State for Use and Benefit of Richardson v. Edgeworth, 214 So.2d 579 (Miss.1968). The plaintiff in Edgeworth filed suit against justices of the peace and deputy sheriffs, claiming that the decedent’s suicide resulted from the defendants’ abuse of the legal process. Id. at 581. After several efforts to collect bad checks, the defendants went to the decedent’s home at 1:30 a.m. with two arrest warrants. Id. at 583. Upon hearing of the two warrants, the decedent’s wife, who was pregnant, fainted. Id. In an effort to not go to jail, the decedent asked to borrow money from neighbors, but he was unable to get the funds. Id. at 584. The decedent then returned to his home, went into his bedroom, and shot himself. Id.

¶26. This Court held in Edgeworth that “where the suicide is committed in response to an uncontrollable impulse, recovery may be had if the mental state of deceased was substantially caused by the defendants’ intentional wrongful acts, and whether they were substantial factors in bringing about the death by suicide may be issues for the jury.” Id. at 587. Importantly, Edgeworth did not expressly foreclose negligence claims such as the one presented in today’s case. Rather, it specifically addresses irresistible or uncontrollable impulses stemming from a defendant’s intentional conduct. Further, Edgeworth compared the issues presented in that case to Tractor Company v. Spencer, 228 Miss. 66, 87 So.2d 272 (1956), which allowed workers’ compensation death benefits for a suicide which apparently stemmed from an on-the-job compensable injury, not an intentional tort. Id.

¶ 27. As the Majority notes, federal courts have interpreted Edgeworth’s irresistible impulse exception as the only available claim in Mississippi for wrongful death stemming from suicide. See Sham-burger v. Grand Casino of Miss., Inc./Biloxi, 84 F.Supp.2d 794, 798 (S.D.Miss. 1998). A review of this Court’s caselaw, however, supports the contention that the claims in today’s case are actionable. For example, in Young v. Guild, 7 So.3d 251 (2009), this Court addressed the jury instructions given in a medical negligence case against a psychiatrist arising from the decedent’s suicide. One instruction given stated:

the burden of proof is on the plaintiff to prove that the psychiatrist was guilty of negligence which caused the injury. In this case, the plaintiff must prove by a preponderance of the evidence that [the defendant] was negligent in his treatment of [the decedent] and that such negligence, if any, caused her suicide.

Id. at 259. This Court held that the instructions given — including the above-quoted instruction — “fairly and adequately instructed the jury on the applicable primary rules of law. The jury instructions correctly defined the elements of medical negligence, including the standard of care applicable to [the defendant] in this case and treatment of [the decedent].” Like today’s case, the decedent in Young had been discharged from inpatient care a number of days prior to her suicide. Id. at 255. Thus, the Majority’s implication that Mississippi caselaw does not support a cause of action when the decedent has been released from the defendant’s custody is amiss. (Maj. Op. at ¶ 20). Further, the Majority improperly relies on the withdrawn Young opinion. (Maj. Op. at ¶ 14). The opinion relied on by the Majority was withdrawn and substituted by the opinion discussed above.

¶ 28. Further, other cases in Mississippi have allowed wrongful death claims arising from suicide. See Carrington v. Methodist Med. Ctr., Inc., 740 So.2d 827 (Miss.1999). Other jurisdictions permit claims similar to Truddle’s. See Edwards v. Tardif, 240 Conn. 610, 692 A.2d 1266, 1272 (1997) (claim maintained against internist who prescribed large dosage of anti-depressants to decedent without psychiatric evaluation or suicide assessment); Stafford v. Neurological Med., Inc., 811 F.2d 470, 473 (8th Cir.1987) (claim maintained against physician and medical service after form incorrectly stated that decedent, who committed suicide, had a brain tumor). See also Oreutt v. Spokane County, 58 Wash.2d 846, 364 P.2d 1102 (1961) (applying irresistible impulse rule to negligent acts resulting in suicide).

¶ 29. In today’s case, Eric Carmichael was prescribed Reglan. Dr. Noberto Alvarez, a medical expert, testified that Re-glan can affect mental activity and may be associated with suicidal thinking.

¶30. Shortly after taking a dose of Reglan, Carmichael began acting strange. His girlfriend, who was visiting him at the hospital, testified that Carmichael began acting unusual and that she feared he might become violent. Carmichael then ripped his IV lines out of his arm and left his hospital room. He then yelled at and hit the nursing staff who attempted to stop the bleeding from his IV lines. Carmichael also reported to the nursing staff that someone had tried to rape him. Notes of this incident were placed Carmichael’s file, although his treating physician admittedly did not read them. When the physician, Dr. Malhotra, informed Truddle and Carmichael that Carmichael could be discharged, Truddle requested that Carmichael not be discharged because of the events that had occurred the previous night. According to Truddle, Carmichael also asked to stay at the hospital. Despite these requests, Dr. Malhotra discharged Carmichael, instructing him to return if he did not feel better.

¶ 31. Carmichael continued to act strangely after his hospital discharge. At one point, he told Truddle that he no longer wanted to take Reglan because it was “making him crazy.” After a few days, Truddle accompanied Carmichael to a followup visit with Dr. Malhotra. Carmichael reported to Dr. Malhotra that the medicine he had been prescribed was “making him crazy.” Despite this complaint, Dr. Malhotra wrote another Reglan prescription for Carmichael. Carmichael committed suicide two days after the followup appointment with Dr. Malhotra.

¶32. Under the facts of today’s case, Truddle’s claim is actionable. The defendants had notice that Carmichael was experiencing serious side effects from his prescribed medications. Despite requests to no longer take the medication, Dr. Ma-lotra continued to prescribe Reglan. Not addressing the reported, and harmful, effects of the medication is an actionable negligence claim. As such, I disagree with the Majority’s finding that summary judgment was proper in today’s case. Therefore, I dissent.

DICKINSON, P.J., KITCHENS AND COLEMAN, JJ., JOIN THIS OPINION.

      . Truddle does not claim that Reglan caused Carmichael to commit suicide. Instead, she claims that, because Carmichael was taking Reglan, Dr. Malhotra should have known Carmichael was at a higher risk of suicide. And while the record does contain a list of some of the potential side effects of Reglan, the list cited by the dissent from drugs.com does not appear in the record and the record does not indicate that Dr. Malhotra ever referred to that website.

      . Reglan is a gastrointestinal medication which may cause the following side effects: "depressed mood, thoughts of suicide or hurting yourself; hallucinations, anxiety, agitation, jittery feeling, trouble staying still." Re-glan, http://www.drugs.conVreglan.html (last visited November 4, 2014).


author: DICKINSON, Presiding Justice,

text:
    In the Matter of the ESTATE OF Boyce ELMORE, Deceased: Kathleen Elmore Jamison, Administrator v. Cedric WILLIAMS.
    No. 2012-CT-01299-SCT.
    Supreme Court of Mississippi.
    Nov. 6, 2014.

      R. Bradley Best, Oxford, Edward Russell McNees, Booneville, attorneys for appellant.
    William F. Schneller, Jr., attorney for appellee.
   ON WRIT OF CERTIORARI

DICKINSON, Presiding Justice,

for the Court:

¶ 1. Boyce Elmore died on November 5, 2000. More than ten years later, Cedric Williams — claiming to be Boyce’s son— filed a paternity action in an effort to recover under Boyce’s estate. After the chancellor held that Cedric’s action was timely, Boyce’s estate appealed and the Court of Appeals reversed. We agree with the Court of Appeals that the chancellor’s decision must be reversed, but for a different reason.

ANALYSIS

¶ 2. In Mississippi, a nonmarital child may file an action to establish paternity “within one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less ....” Boyce’s estate was not opened during the year following his' death, so the statute’s provision related to the publication of notice to creditors is not applicable.

¶ 3. Two years after Boyce’s death, his wife Kathleen filed a petition for letters of administration in the Marshall County Chancery Court and was named administrator of Boyce’s estate. Because she failed to provide Cedric notice of the estate, the chancellor held that Cedric’s paternity action was timely filed because the estate’s failure to provide him notice tolled the ninety-day limitation period.

¶ 4. The Court of Appeals stated it was “inclined to find that the one-year statute of limitations applie[d],” and that “Cedric is barred from seeking relief because he filed outside of this time period ,...” But because the estate did not argue to the chancellor that the one-year statute of limitations applied, the Court of Appeals refused to apply it. The Court cited the familiar rule that “ ‘a trial court will not be put in error on appeal for a matter not presented to it for decision.’ ” However, the “matter” the estate raised was the running of the statute of limitations under Section 91-1-15. Thus, the matter was presented squarely for the chancellor’s decision.

¶ 5. It is true that the estate’s trial counsel mistakenly told the chancellor during oral arguments that he believed the ninety-day provision, rather than the one-year provision, applied. But how a statute of limitations applies is a legal question. An attorney’s opinion of the law expressed during an oral argument does not absolve the chancellor from his duty to apply the correct law and the plain language of the statute.

CONCLUSION

¶ 6. Cedric’s paternity action brought nearly eleven years after Boyce’s death is time-barred. The chancery court erred in not granting Kathleen’s motion to dismiss. The Court of Appeals correctly reversed the chancellor’s judgment but failed to apply Section 91 — 1—15(3)(c)’s one-year period of limitations. Under Mississippi law, failure to bring a timely paternity claim bars the nonmarital child’s right to inherit as an heir under our statute.

¶ 7. We affirm the judgment of the Court of Appeals, although for different reasons, and likewise reverse and render the judgment of the Chancery Court of Marshall County.

18. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE CHANCERY COURT OF MARSHALL COUNTY IS REVERSED AND RENDERED.

WALLER, C.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

RANDOLPH, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . Miss.Code Ann. § 91 — 1—15(3)(c) (Rev. 2013). In 2005, the Legislature amended the statute and clarified that "[t]his one-year limitation shall be self-executing and may not be tolled for any reason, including lack of notice.” Miss.Code Ann. § 91 — 1—15(3)(c). For purposes of this appeal, this Court will apply the version of the statute in effect when Boyce Elmore died. See Mladinich v. Kohn, 186 So.2d 481, 483 (Miss.1966) ("A statute will not be given retroactive effect unless it is manifest from the language that the legislature intended it to so operate.”).

      . In re Estate of Elmore, No.2012-CA-01299COA, 150 So.3d 709, 711-12, 2013 WL 6171283, at * 3 (Miss.Ct.App. Nov.26, 2013).

      . Id. (quoting McDonald v. McDonald, 39 So.3d 868, 885 (Miss.2010)) (emphasis added).

      . See, e.g., Stringer v. Trapp, 30 So.3d 339, 341 (Miss.2010) (citing Wayne Gen. Hosp. v. Hayes, 868 So.2d 997, 1000 (Miss.2004)) ("The issue of whether the applicable statute of limitations has run is a question of law.”).

        .See, e.g., Caldwell v. N. Miss. Med. Ctr., Inc., 956 So.2d 888, 890-91 (Miss.2007) (citing Pinkton v. State, 481 So.2d 306, 309 (Miss. 1985)) ("When construing the meaning of a statute, we must look at the words of the statute.”).


author: COLEMAN, Justice, DICKINSON, Presiding Justice,

text:
    Glen CONLEY v. Christopher EPPS.
    No. 2012-CT-01914-SCT.
    Supreme Court of Mississippi.
    Nov. 6, 2014.

      Glen Conley, appellant, pro se.
    Office of the Attorney General by R. Stewart Smith, Jr. James M. Norris, Anthony Louis Schmidt, Jr., attorneys for appellee.
   ON WRIT OF CERTIORARI

COLEMAN, Justice,

for the Court:

¶ 1. The Circuit Court of Sunflower County sentenced Glen Conley to life without parole. Conley seeks judicial review of the parole board’s refusal to give him a parole eligibility date. We hold that the parole board lacked the authority to review his sentence of life without parole. Thus, although under different reasoning, we affirm the dismissal of his claim by the Sunflower County Circuit Court and the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. The circuit court convicted Conley of capital murder on July 3, 1998. The jury failed to return a unanimous sentence; therefore, the trial judge sentenced him to life without parole. Conley appealed. He argued that the only available sentences at the time of his crime were life and death and that his sentence of life without parole violated the Ex Post Facto Clause of the United States Constitution. Conley v. State, 790 So.2d 773, 803-04 (¶¶ 115-23) (Miss.2001). The Court found Conley’s ex post facto claims to be without merit. Id. at 804 (¶ 123).

¶ 3. The case sub judice arises from Conley’s unsuccessful attempt to seek a parole eligibility date. After exhausting all administrative remedies through the Department of Corrections for his denial of a parole eligibility date, Conley sought judicial review in the Circuit Court of Sunflower County. The court dismissed his complaint because he presented insuffi-eient evidence as to whether he was entitled to parole eligibility. Conley appealed, and we assigned his case to the Court of Appeals. The Court of Appeals held the doctrine of res judicata barred Conley’s petition, and his claim was without merit. Conley v. Epps, No.2012-CP-01914-COA, 150 So.3d 715, 716-18, 2013 WL 6233895, **1-4 (Miss.Ct.App. Dec.3, 2013). Conley then petitioned for writ of certiorari and we granted it. Under different reasoning than that of the Court of Appeals, we affirm.

STANDARD OF REVIEW

¶ 4. Whether the parole board had the authority to review Conley’s sentence of life without parole is a question of law. When a question of law is raised, the standard of review is de novo. See Brown v. State, 731 So.2d 595, 598 (Miss.1999).

DISCUSSION

Whether the parole board had the authority to review Conley’s sentence of life without parole.

¶5. By applying the doctrine of res judicata, the Court of Appeals treated Conley’s complaint as a petition for post-conviction relief. Conley, 150 So.3d at 716-18, 2013 WL 6233895, at **1-4. Treating Conley’s complaint as a petition for post-conviction relief was inappropriate because Conley sought judicial review—an appeal—of the parole board’s denial of his application for a parole eligibility date. However, we note that Conley’s instant claim mirrors his direct appeal in 2001. See Conley, 790 So.2d at 803-04 (¶¶ 115-23). He restates his original ex post facto claim by articulating in his complaint that the Department of Corrections’ decision to enforce an illegally imposed sentence is a denial of due process. Thus, once again, Conley attacks the legality of his sentence,

and the Court will not reconsider the legality of his sentence.

¶ 6. Aside from his ex post facto claims, Conley argues that, when the language in a trial court’s sentencing order revokes parole eligibility without the lawful authority to do so, the parole board may disregard that portion of a sentencing order as mere surplusage. See Brown, 731 So.2d at 598-99; Kincaid v. State, 711 So.2d 873, 876 (Miss.1998); Temple v. State, 671 So.2d 58, 59 (Miss.1996); Cain v. State, 337 So.2d 935, 936 (Miss.1976). However, Conley misinterprets the Court’s holdings in the above referenced cases.

¶ 7. Conley correctly contends that, when a trial judge’s parole limitation is illegal, the parole board may strike the parole limitation language as mere sur-plusage and affirm the remainder. However, a court—such as the Mississippi Supreme Court—must first determine that the parole limitation is illegal. See Broum, 731 So.2d at 599 (holding that the trial court had no authority to revoke Brown’s parole eligibility, thus the “completely served” language in Brown’s sentence is surplusage) (citing Cain, 337 So.2d at 936; Kincaid, 711 So.2d at 876; Gardner v. State, 514 So.2d 292, 294 (Miss.1987)). In other words, the Court does not empower the parole board to determine whether the trial judge had the lawful authority to revoke parole eligibility, but, when a court determines the trial judge’s parole limitation is illegal, the parole board may then strike the parole limitation language as mere surplusage. In Conley’s 2001 appeal, the Court did not find the language of the trial judge’s sentence to be illegal; therefore, the instant case is without merit. See Conley, 790 So.2d at 803-04 (¶¶ 115-23).

CONCLUSION

¶ 8. The Court of Appeals erred by addressing Conley’s claim as an ex post facto claim. However, the Court of Appeals reached the right result in affirming the dismissal of Conley’s claim because the parole board did not have the authority to grant the relief Conley requested. Thus, we affirm both the dismissal of Conley’s appeal and the judgment of the Court of Appeals.

¶ 9. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ, LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR. DICKINSON, P.J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND KING, JJ,

DICKINSON, Presiding Justice,

specially concurring:

¶ 10. I fully join the majority because, in this case’s current procedural posture, this Court cannot reach the merits of Conley’s ex post facto claim. But I write separately to express my view that this Court erred in its ex post facto jurisprudence in Conley’s direct appeal.

¶ 11. The United States Constitution “provides that ‘[n]o State shall ... pass any ... ex post facto Law.’ ” In Lynce v. Mathis, the Supreme Court of the United States explained that “[t]he bulk of our ex post facto jurisprudence has involved claims that a law has inflicted ‘a greater punishment, than the law annexed to the crime, when committed.’ ” The High Court also explained that “such laws implicate the central concerns of the Ex Post Facto Clause: ‘the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.’ ”

¶ 12. Two elements must exist for a law to “fall within the ex post facto prohibition ....” First, the “law must be retrospective-that is, ‘it must apply to events occurring before its enactment....’” Second, “it ‘must disadvantage the offender affected by it’ by altering the definition of criminal conduct or increasing the punishment for the crime.”

¶ 18. Before April 1994, Mississippi law authorized only one sentence for capital murder, where the jury failed to agree on a sentence: The trial judge was required to impose a life sentence, and the defendant became eligible for parole after serving ten years.

¶ 14. On April 7, 1994, the Mississippi Legislature passed an amendment to the capital-murder, capital-sentencing, and parole statutes that added a new sentence of life without parole. The capital-sentencing statute was amended to reflect that change but still required the trial judge to impose a life sentence if the jury failed to agree. Finally, the Legislature extended the ten-year parole requirement to twenty years. This act took effect July 1, 1994, and specifically stated that its provisions “shall apply to any case in which pretrial, trial or resentencing proceedings take place after July 1, 1994.” But the parole-statute amendment stated that it applied to any person “who, on or after July I, 1994, is charged, tried, convicted and sentenced....”

¶ 15. Then, on August 28, 1994, during a special session, the Legislature amended the parole statute once more, to remove parole eligibility for anyone sentenced to life for capital murder. The amendment took effect from and after its passage and removed the “on or after July 1, 1994” language from the parole statute.

¶ 16. Conley’s crime occurred on May 22, 1994 — more than a month prior to the change in the law. The trial judge sentenced him to life without parole pursuant to the amended law that took effect after Conley’s crime, so. clearly, the law was applied retrospectively to Conley. The only remaining question is whether that amendment disadvantaged Conley “by altering the definition of criminal conduct or increasing the punishment for the crime.”

¶ 17. In deciding Conley’s direct appeal, this Court found' that adding the life-without-parole sentence to capital murder was “ameliorative” — that is, it did not disadvantage Conley — because it did not increase the maximum punishment. But in reaching that conclusion, this Court failed to consider or address that the August parole-statute amendment not only removed parole eligibility for a crime where it previously had existed, but it also effectively increased the mandatory minimum sentence.

¶ 18. In Lynce, the Supreme Court of the United States addressed a similar ex post facto claim when the Florida legislature amended its parole statute to preclude parole for murder-related offenses. The Court explained that changes to parole statutes may implicate the Ex Post Facto Clause because:

As we recognized in Weaver, retroactive alteration of parole or early release provisions, like the retroactive application of provisions that govern initial sentencing, implicates the Ex Post Facto Clause because such credits are “one determinant of petitioner’s prison term ... and ... [the petitioner’s] effective sentence is altered once this determinant is changed.”

¶ 19. The Court conducted an objective analysis of whether “the new statute ‘lengthened the period that someone in petitioner’s position must spend in prison.’ ” Applying that test, the Court found that the statutory amendment, which removed the petitioner’s previously earned parole credits, violated the Ex Post Facto Clause. This decision rested heavily on the Court’s prior decision in Weaver, in which the Court found that a statutory amendment violated the Ex Post Facto clause by depriving the petitioner of his opportunity to earn parole credits in the future.

¶ 20. The Supreme Court’s decisions in Lynce and Weaver turned on the fact that the petitioners in those cases were entitled to an opportunity for parole when their conduct occurred, but lost that opportunity altogether through the statutory amendments. The Court showed that this fact was key to its decision by distinguishing California Department of Corrections v. Morales, in which the Court found that an amendment to California’s parole statute did not violate the Ex Post Facto Clause. There, California amended its parole provision to permit the parole board to defer subsequent parole hearings, after an initial parole hearing, for offenders who had committed multiple murders. The Lynce court explained that Morales did not control because:

Unlike the California amendment at issue in Morales, the 1992 Florida statute did more than simply remove a mechanism that created an opportunity. for early release for a class of prisoners whose release was unlikely; rather, it made ineligible for early release a class of prisoners who were previously eligible — including some, like petitioner, who had actually been released.

¶ 21. Here, the effect of the August 1994 amendment to the parole statute was precisely the same. It took a class of prisoners, those sentenced to life for capital murder, and removed their existing eligibility for parole. Because this change occurred after Conley’s conduct, the amendment applied retroactively and his life-without-parole sentence disadvantaged him by increasing the amount of time he must spend in prison. This Court erred by holding to the contrary when it decided his direct appeal. We should reverse our incorrect ex post facto holding in Conley at our first opportunity.

KITCHENS AND KING, JJ„ JOIN THIS OPINION.

      . Lynce v. Mathis, 519 U.S. 433, 440, 117 S.Ct. 891, 895, 137 L.Ed.2d 63 (1997) (quoting U.S. Const, art. I, § 10).

      . Lynce, 519 U.S. at 441, 117 S.Ct. 891 (quoting Colder v. Bull, 3 Dali. 386, 390, 1 L.Ed. 648 (1798)).

      . Lynce, 519 U.S. at 441, 117 S.Ct. 891 (quoting Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981)).

      . Lynce, 519 U.S. at 441, 117 S.Ct. 891.

      . Id. (quoting Weaver, 450 U.S. at 29, 101 S.Ct. 960).

      . Lynce, 519 U.S. at 441, 117 S.Ct. 891 (quoting Weaver, 450 U.S. at 29, 101 S.Ct. 960; citing Collins v. Youngblood, 497 U.S. 37, 50, 110 S.Ct. 2715, 2723, 111 L.Ed.2d 30 (1990)).

      . Miss.Code Ann. § 99-19-101 (Rev. 1993).

      . Miss.Code Ann. § 47-7-3 (Rev. 1993).

      . 1994 Miss. Laws Ch. 566.

        .Id.

      . Id.

      . Id.

      . Id.

      . 1994 Miss. Laws 1st Ex.Sess. Ch. 25.

      . Id.

      . At the time of Conley’s trial, the capital-murder sentencing statute still required the trial judge to impose a life sentence, not life without parole. It appears that the trial judge sentenced Conley to life without parole because the August 1994 amendment to the parole statute effectively turned the available life sentence for capital murder into life without parole.

      . Lynce, 519 U.S. at 441, 117 S.Ct. 891 (citing Collins, 497 U.S. at 50, 110 S.Ct. 2715).

      . Conley v. State, 790 So.2d 773, 803-04 (Miss.2001).

      . Id.

      . Lynce, 519 U.S. at 436, 117 S.Ct. 891.

      . Id. at 445, 117 S.Ct. 891 (quoting Weaver, 450 U.S. at 32, 101 S.Ct. 960).

      . Lynce, 519 U.S. at 442, 117 S.Ct. 891 (quoting Weaver, 450 U.S. at 32, 101 S.Ct. 960).

      . Lynce, 519 U.S. at 439-47, 117 S.Ct. 891.

      . Lynce, 519 U.S. at 442, 117 S.Ct. 891 (citing Weaver, 450 U.S. at 36, 101 S.Ct. 960).

      . Lynce, 519 U.S. at 442, 117 S.Ct. 891 (citing Weaver, 450 U.S. at 36, 101 S.Ct. 960).

      . Lynce, 519 U.S. at 443-47, 117 S.Ct. 891 (citing California Dep’t of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995)).

      . Lynce, 519 U.S. at 443, 117 S.Ct. 891 (citing Morales, 514 U.S. at 507, 115 S.Ct. 1597).

      . Lynce, 519 U.S. at 447, 117 S.Ct. 891.


author: GRIFFIS, P.J., CARLTON, J.,

text:
    In the Matter of the ESTATE OF Boyce ELMORE, Deceased. Kathleen Elmore Jamison, Administrator, Appellant v. Cedric Williams, Appellee.
    No. 2012-CA-01299-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2013.
    Rehearing Denied April 29, 2014.
    R. Bradley Best, Oxford, Edward Russell McNees, Booneville, attorneys for appellant.
    William F. Schneller Jr., attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Kathleen Elmore Jamison, the administrator of the estate of Boyce Elmore, appeals the chancellor’s decision that found Cedric Williams to be an illegitimate son and heir of Boyce. In this appeal, Kathleen argues that the chancellor erred in his application of the statute of limitations. We find reversible error and render a judgment in favor of Kathleen. We also remand for further estate proceedings consistent with this opinion.

FACTS

¶2. On November 5, 2000, Boyce died intestate in Marshall County, Mississippi.

¶ 3. On March 13, 2002, Kathleen filed a petition for letters of administration. In the petition, Kathleen alleged that she was the sole heir-at-law. On August 15, 2003, Kathleen filed an amended petition, adding Tekeyia Elmore Eaton as an additional surviving heir-at-law. On August 21, 2003, the estate was opened and the chancellor appointed Kathleen as the administrator for the estate. On August 25, 2003, letters of administration were issued to Kathleen, and she filed the affidavit of creditors. On August 28, 2003, notice to creditors was published. On September 25, 2003, proof of publication of the notice of creditors was filed.

¶ 4. On March 2, 2011, Cedric filed a motion for removal of Kathleen as the administrator and other relief. Kathleen responded to the motion. She alleged that Cedric lacked standing as an interested party.

¶5. On July 7, 2011, Cedric filed a “Complaint for Determination of Heirs/Paternity.” In response, Kathleen raised three affirmative defenses: (1) lack of standing, (2) failure to state a claim, and (3) statute of limitations. On July 22, 2011, Kathleen filed a motion to dismiss the complaint on these grounds.

¶ 6. After a hearing, on October 11, 2011, the chancellor entered an order that denied the motion to dismiss and permitted Cedric to intervene. A paternity hearing was held on June 19, 2012. On July 11, 2012, the chancellor entered an order finding Cedric to be an illegitimate son of Boyce and an heir of his intestate estate. It is from this judgment Kathleen now appeals.

STANDARD OF REVIEW

¶ 7. In re Estate of Thomas, 883 So.2d 1173, 1176 (¶ 9) (Miss.2004), the supreme court cited the applicable standard of review as follows: “An appellate court will not disturb the factual findings of a chancellor unless such findings are manifestly wrong or clearly erroneous. If there is substantial evidence to support the chancellor’s findings of fact, those findings must be affirmed. On questions of law, this Court reviews the record de novo.” (Internal citations and quotation marks omitted).

ANALYSIS

7. Whether the chancellor erred in applying the ninety-day statute of limitations and finding it tolled rather than the one year statute of limitations found in Mississippi Code Annotated section 91-1-15 (Rev.2013).

¶ 8. Kathleen claims that the chancellor erred, as a matter of law, when he applied the ninety-day limitations period and found it to be tolled rather than the one-year limitations period found in Mississippi Code Annotated section 91-1-15(3)(c).

¶ 9. Cedric has alleged that he was the illegitimate child of Boyce. As such, Cedric claims that he is entitled to inherit from Boyce’s intestate estate.

An illegitimate shall inherit from and through the illegitimate’s natural father ... according to the statutes of descent and distribution if: ...
There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding under Sections 91-1-27 and 91-1-29. However, no such claim of inheritance shall be recognized unless the action seeking an adjudication of paternity is filed within one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less; and such time period shall run notwithstanding the minority of a child. This one-year limitation shall be self-executing and may not be tolled for any reason, including lack of notice. If an administrator is appointed for the estate of the intestate and notice to creditors is given, then the limitation period shall be reduced to ninety (90) days after the first publication of notice, if less than one (1) year from the date of the intestate’s death; provided actual, written notice is given to all potential illegitimate heirs who could be located with reasonable diligence.

Miss.Code Ann. § gi-l-lS^Xc).

¶ 10. Section 91 — 1—15(3)(c) “provides two time periods, only one of which is to be used.”. Thomas, 883 So.2d at 1178 (¶ 19). The chancellor clearly relied on the ninety-day limitations period. He found that Kathleen, as administrator:

[Fjailed to use reasonable diligence to ascertain potential heirs of [Boyce]. [KathleenJ’s failure prohibited [Cedric] from receiving notice of the administration of [Boyce]’s estate, as well as getting notice of publication of [n]otice to [creditors. Thus, [Kathleen]’s failure to give such notice results in the tolling of the 90-day statute. Therefore, [Cedric] was prevented by [Kathleen] from conforming to the statutory time limitation in [section] 91 — 1—15(3)(c) of the Mississippi Code Annotated.

As a result, the chancellor entered a judgment that found that Cedric’s Complaint to Determine Heirs/Paternity had been timely filed, and that he was a lawful heir of Boyce’s estate.

¶ 11. If this case were to be decided under the current version of section 91 — 1— 15(3)(c), Cedric would have been required to file the “action seeking an adjudication of paternity ... within one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less.... ” Under the facts of this case, Cedric’s one-year limitations period would have expired on November 4, 2001. The ninety-day limitations period would have expired at the earliest on November 26, 2003. Since the one-year limitations period would have expired first, section 91 — 1—15(3)(c) would have barred any action to adjudicate paternity after November 4, 2001.

¶ 12. However, our review does not end here. We cannot find the chancellor in error for not applying the one-year limitations period. At the opening of the hearing, Kathleen’s attorney argued to the chancellor: “I think opposing counsel and I agree that under the statute [ (section 91 — 1—15(3)(c)) ], the one-year statute doesn’t apply here because it requires that no administrator has been appointed. Therefore the 90-day period would apply.” Although we are inclined to find that the one-year statute of limitations applies to the facts of this case and Cedric is barred from seeking relief because he filed outside of this time period, we nevertheless rely upon the “well-recognized rule ... that a trial court will not be put in error on appeal for a matter not presented to it for decision.” McDonald v. McDonald, 39 So.3d 868, 885 (¶ 54) (Miss.2010) (quoting Mills v. Nichols, 467 So.2d 924, 931 (Miss. 1985)).

¶ 13. We find no error as to this issue.
II. Whether the chancellor erred in finding that the ninety-day statutory limitation period was not un-tolled.

¶ 14. Kathleen next argues that the chancellor erred when he found the statutory limitation period tolled, but did not find it untolled when Cedric intervened in the estate proceeding. Thus, Kathleen contends that even if we find the ninety-day limitations period is appropriate, the chancellor erred because it ran before Cedric filed the Complaint for Determination of Heirs/Paternity.

¶ 15. Cedric filed his motion for removal of Kathleen as administrator on March 2, 2011. Kathleen asserts that this filing restarted, or untolled, the clock on the ninety-day limitations period, which had previously been tolled. She argues that Cedric’s filing demonstrates active participation in the administration process of the estate and obviates the need for any further notice. She claims that the filing of a motion equals a general appearance in the estate matter. Kathleen contends that the ninety-day limitations period should have started to run on March 2, 2011, at the latest.

¶ 16. As stated above, the chancellor found. that Kathleen had failed to give notice to Cedric, and the failure tolled the ninety-day limitations period. The chancellor then held that the effect of Kathleen’s failure to give notice prejudiced Cedric because he “was prevented by [Kathleen] from conforming to the statutory time limitation in [section] 91-1-15(3)(c) of the Mississippi Code Annotated.”

¶ 17. Once Cedric filed a motion in the estate matter, it could no longer be said that he did not have notice of the estate proceeding or the statutory time limitation in section 91-l-15(3)(c). Cedric’s motion for removal of the administrator acknowledged that the estate was opened on August 21, 2003, noted his understanding that Kathleen was appointed administrator, and noted that Kathleen had published notice to creditors but had taken no further action to proceed with the disposition of the estate.

¶ 18. We find that the chancellor should have found the limitations period untolled, or that the limitations period should have begun to run when Cedric had actual notice of the estate proceeding. When he filed his motion, on March 2, 2011, Cedric entered an appearance in Boyce’s estate proceeding and was on notice of Kathleen’s actions. Likewise, Cedric was then on notice that he had ninety days from March 2, 2011, to file a proceeding to adjudicate his paternity under section 91-l-15(3)(c). As a result, the limitations period in section 91-l-15(3)(c) expired no later than May 31, 2011.

¶ 19. Cedric waited until July 7, 2011, to serve and file his Complaint for Determination of Heirs/Paternity. Pursuant to Mississippi Code Annotated section 91 — 1— 15(3)(c), we find that Cedric filed his complaint for adjudication of paternity outside of the ninety-day limitations period. The limitations period for Cedric expired on May 31, 2011, at the latest. Because he did not bring his claim within the required limitations period, Cedric is barred from doing so now. We find that the chancellor committed reversible error. We reverse the chancellor’s judgment that found Cedric to be a lawful heir of Boyce’s, and render a judgment that dismisses Cedric’s Complaint for Determination of Heirs/Paternity. We also remand this action for the chancellor to conclude the administration of the estate consistent with this opinion.

¶ 20. THE JUDGMENT OF THE CHANCERY COURT OF MARSHALL COUNTY IS REVERSED; JUDGMENT IS RENDERED DISMISSING THE AP-PELLEE’S COMPLAINT FOR DETERMINATION OF HEIRS/PATERNITY; AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., IRVING, P.J., ISHEE, MAXWELL, FAIR AND JAMES, JJ., CONCUR. BARNES, J., CONCURS IN RESULT ONLY. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION. ROBERTS, J., NOT PARTICIPATING.

CARLTON, J.,

dissenting:

¶ 21. I respectfully dissent from the majority’s opinion, and I would affirm the chancellor’s judgment. In his opinion, the chancellor found the present case akin to In re Estate of Thomas, 883 So.2d 1173 (Miss.2004), since the administrator in both cases failed to provide notice of the administration of the intestate’s estate to the illegitimate heir. An administrator of an estate possesses “a duty to use reasonable diligence to ascertain potential heirs.” Id. at 1177 (¶ 12). Administrators also possess the duty to “provide notice to known or reasonably ascertainable illegitimate children who are potential heirs and whose claims would be barred if the [ninety]-day statutory period had run.” Id. The chancellor herein acknowledged in his opinion that in Estate of Thomas, the Mississippi Supreme Court reversed the decision of this Court and rendered an opinion holding that the one-year limitation period can be tolled in a determination-of-heirs suit because the administrator failed in her duty to use reasonable diligence to ascertain potential heirs and to provide notice to known or reasonably ascertainable illegitimate children who are potential heirs to the intestate’s estate. Id. at 1179 (¶ 3); see also In re Estate of Johnson, 705 So.2d 819, 822 (Miss.1996); Smith ex rel. Young v. Estate of King, 579 So.2d 1250, 1252 (Miss.1991).

¶ 22. After reviewing the law applicable to the time limitation, tolling, and requirements of due-process notice, and the law favoring inheritance by illegitimate children, the chancellor then provided that in the instant case, the record is apparent that Kathleen, the administrator, knew of Cedric’s status as a the possible illegitimate son of the decedent, Boyce, and failed to provide him notice of the administration. The chancellor acknowledged that Cedric and Boyce worked together, that Cedric’s name was listed in Boyce’s obituary, and that Cedric attended Boyce’s funeral. The chancellor found that Kathleen’s failure to provide Cedric notice of the administration of Boyce’s estate and her failure to provide Cedric with the notice of publication to the creditors prohibited Cedric from conforming to the statutory time limit set forth in Mississippi Code Annotated section 91 — 1—15(3)(c) (Rev. 2013). Under Mississippi law, an administrator acts as the fiduciary for all persons interested in the estate. Estate of Thomas, 883 So.2d at 1177 (¶ 12). The chancellor found that the Kathleen’s failure in her duty to provide such notice resulted in the tolling of the ninety-day time limit of section 91 — 1—15(3)(c). The chancellor then allowed Cedric to intervene and establish heirship and paternity and, after a hearing on this matter, the chancellor entered an order finding Cedric to be the illegitimate son of Boyce.

¶ 23. Similar to the evidence establishing paternity summarized by this Court in In re Estate of Kendrick, 46 So.3d 386, 390 (¶ 17) (Miss.Ct.App.2010), the recoi’d further shows that the chancellor heard testimony from various witnesses with personal-knowledge attesting to Boyce’s public acknowledgments of his paternity of Cedric and also of his financial support of Cedric over the.years. The record shows Boyce paid for Cedric’s college tuition at Northwest Community College. Cedric worked with Boyce at his restaurant and testimony reflects Boyce introduced Cedric as his son. A photograph of Cedric and Boyce was displayed at a family reunion, along with other pictures of family members. The record shows that when Cedric came home from college, he lived with Boyce and his wife, Kathleen. Cedric’s mother, Linda Brown, testified as to her former romantic relationship with Boyce and as to Cedric’s birth at home. She also testified as to her exclusive sexual relationship with Boyce when Cedric was conceived. A review of the testimony in the record from the heirship/paternity hearing shows Boyce publicly acknowledged to others that he had a child coming before Cedric was born. Cedric testified about Boyce’s public acceptance and acknowledgment of him as a son and of Boyce teaching him the restaurant business. Cedric also explained that Kathleen pulled him aside after his father passed away and told him that she knew that Cedric was Boyce’s son. Cedric also testified as to Kathleen’s subsequent change in behavior towards him after Boyce’s death.

¶ 24. The chancellor found that Kathleen alone challenged the paternity, and found that all the other witnesses that testified confirmed Boyce’s acknowledgment of Cedric as his son and supported Cedric’s claim of paternity. After reviewing all the evidence and testimony, the chancellor found by clear and convincing evidence that Cedric was shown to be Boyce’s son.

¶ 25. The majority reverses the decision of the chancellor, finding Cedric to constitute a lawful heir of Boyce, and renders a judgment dismissing Cedric’s complaint for a determination of heirs/paterni7 ty. In Estate of King, 579 So.2d at 1254, the Mississippi Supreme Court explained that the ninety-day time limit is not self-executing, and “operates in conjunction with the probate proceedings to bar the petitioner’s right to assert a claim to the deceased’s property.” The Estate of King court found that the administrator “was required to provide actual notice to known or reasonably ascertainable illegitimate children who were potential heirs and whose claims would be barred by the running of the ninety[-]day period from the notice of publication to creditors under ... [section] 91 — 1—15(3)(c).” Estate of King, 579 So.2d at 1254. The supreme court explained that “to hold otherwise would encourage administrators and executors to do exactly what Mrs. King [ (the administrator) ] did” and, like the Kathleen in the case before us, “benefit as an heir at law” by failing to perform her duty to provide notice and “setting in motion the shorter filing period.” Id. Mississippi Supreme Court precedent holds that an administrator “may not take inconsistent positions which could be detrimental to beneficiaries, on the one hand, and beneficial to herself on the other hand.” Estate of Johnson, 705 So.2d at 823 (¶ 30).

¶ 26. I respectfully dissent, as I find substantial evidence supporting the chancellor’s finding that Kathleen’s failure to provide Cedric notice of the administration of Boyce’s estate resulted in the tolling of the ninety-day time limit of section 91 — 1— 15(3)(c). Accordingly, I would affirm the chancellor’s judgment allowing Cedric to intervene and finding Cedric to be a lawful heir of Boyce. As stated in Estate of Kendrick, 46 So.3d at 389-90 (¶ 14), “we will not disturb the factual findings of a chancellor unless such findings are manifestly wrong or clearly erroneous.” Additionally, “[i]f there is substantial evidence to support the chancellor’s findings of fact, those findings must be affirmed.” Id. at 390 (¶ 14).

      . Before 2005, section 91 — 1—15(3)(c) in relevant part read:
      However no such claim of inheritance shall be recognized unless the action seeking an adjudication of paternity is filed within one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less; and such time period shall run notwithstanding the minority of a child.
      Since 2005, the statute has been amended twice. In 2005, the Legislature amended section 91 — 1—15(3)(c) and added the third sentence of the paragraph, which reads: "This one-year limitation shall be self-executing and may not be tolled for any reason, including lack of notice." In 2008, the Legislature amended section 91 — I—15(3)(c) and added that the 90-day limitation period required actual written notice be given to potential illegitimate heirs.
      The amended language does not determine the outcome of this appeal, so it is not necessary that we consider the amendments further.

      . An administrator possesses a statutory duty to provide notice. See Miss.Code Ann. § 91-1-29 (Rev.2013).

      . See Miss.Code Ann. § 91-1-29 (notice required by statute).

      . See also In re Estate of Robinson, 540 So.2d 30, 34 (Miss. 1989) (finding illegitimate son established paternity of decedent by clear and convincing evidence, which included testimony of witnesses and by implied acknowledgments).

      . See also Estate of King, 579 So.2d at 1252 (finding administrator perpetuated a fraud on the court by failing to tell the court about a potential heir).