author:
CHANDLER, Justice, DICKINSON, Presiding Justice, RANDOLPH, Presiding Justice,
      COLEMAN, Justice,

text:
    In re LIEN Against M/Y Areti and M/Y Lady Linda: Trinity Yachts, LLC v. Mike & Jerry’s Paint & Supply and State of Mississippi, ex rel., Attorney General Jim Hood. In re Lien Against the M/Y Areti and M/Y Lady Linda: Mike & Jerry’s Auto Parts, Inc. d/b/a Mike & Jerry’s Paint & Supply v. Trinity Yachts, LLC.
    Nos. 2012-IA-01667-SCT, 2013-CA-01155-SCT.
    Supreme Court of Mississippi.
    Dec. 11, 2014.

      Thear Jules Lemoine, James Grady Wyly, III, Gulfport, attorneys for appellants (No. 2012-IA-01667-SCT).
    R. Douglas Vaughan, Francis A. Courte-nay, Jr., Douglas T. Miracle, attorneys for appellees (No. 2012-IA-01667-SCT).
    R. Douglas Vaughan, Francis A. Courte-nay, Jr., attorneys for appellants (No. 2013-CA-01155-SCT).
    Thear Jules Lemoine, James Grady Wyly, III, Gulfport, attorneys for appel-lees (No. 2013-CA-01155-SCT).
   CHANDLER, Justice,

for the Court:

¶ 1. This case involves a classic contract triangle among the owner of two yachts, an independent contractor hired to paint the yachts, and an unpaid paint supplier. The owner challenged a lien the unpaid paint supplier established and enforced on two multimillion-dollar yachts under construction at the owner’s Gulfport shipyard. See Miss.Code Ann § 85-7-31 (Rev. 2011). We affirm the trial court’s grant of summary judgment in favor of the owner on a finding that privity did not exist between the owner and the unpaid paint supplier. See Valverde v. Spottswood, 77 Miss. 912, 28 So. 720 (Miss.1900).

FACTS AND PROCEEDINGS BELOW

¶ 2. Shipbuilder Trinity Yachts, LLC (“Trinity”) contracted with West Coast Marine (“West Coast”) for West Coast to perform the paint and faring job on two multimillion-dollar yachts under construction at Trinity’s shipyard in Gulfport. The construction contract between Trinity and the purchasers of the yachts specified the use of the DuPont paint brand. DuPont representatives participated in writing the specifications. The construction contract also provided that Trinity would have DuPont representatives present at certain times to supervise the application of DuPont products in accordance with the specifications. West Coast ordered and received paint from DuPont paint distributor Mike & Jerry’s Paint & Supply (“Mike & Jerry’s”). Mike & Jerry’s did not have a direct contract with Trinity to provide the paint to West Coast and did not provide the paint to West Coast pursuant to any promise from Trinity to pay Mike & Jerry’s directly.

¶ 3. West Coast fell behind on payments to Mike & Jerry’s. With $236,562.16 in outstanding invoices, Mike & Jerry’s placed a lien on the two yachts under Mississippi Code Section 85-7-7. Mike & Jerry’s filed the petition to establish and enforce the liens on December 2, 2011, in the Circuit Court of Harrison County. The circuit court issued a writ of seizure for the two yachts on December 12, 2011. The sheriffs department delivered the notices of seizure to the shipyard and placed them on the hulls of the yachts, but the yachts remained at all times in the possession of Trinity.

¶4. After the seizure of the yachts, Trinity apparently entered into an agreement to withhold from future West Coast invoices the amount of money owed Mike & Jerry’s for the purpose of paying Mike & Jerry’s directly so that Trinity could deliver the yachts to the purchasers free of liens. The record contains an email thread between Trinity and West Coast as well as a draft letter outlining this plan. The record also contains a subsequent letter from West Coast to Trinity rejecting Trinity’s request for indemnification for the debt claimed by Mike & Jerry’s. This letter states in part “[t]he entire amount of [Mike & Jerry’s] outstanding invoices was in fact withheld from monies due to [West Coast] in connection with its work on the two vessels, but [Trinity] never paid these monies over to [Mike & Jerry’s]. The [Mike & Jerry’s] obligation is thus entirely your clients, not [West Coast’s].”

¶ 5. On August 10, 2012, Trinity filed a motion seeking to declare Mississippi Code Section 85-7-31, the enforcement statute for the lien, unconstitutional due to lack of due-process protections. On April 12, 2012, Trinity filed a motion to dismiss the petition for writ of seizure, arguing that a valid lien did not exist in favor of Mike & Jerry’s because the two parties are not in privity with each other. Both motions were denied. This Court granted Trinity’s interlocutory appeal regarding the constitutionality of the statutes. The State, while taking no position on the merits of the litigation between Trinity and Mike and Jerry’s, intervened as required by Mississippi Code Section 7-5-1 and authorized by Rule 24 of the Mississippi Rules of Civil Procedure. The State provided a brief presenting its position that the statute is constitutional and that Trinity had waived its right to challenge the constitutionality of the statute by relying on the statute as a defense in a motion to dismiss. In November' 2012, Mike & Jerry’s filed a motion for leave to file a second amended complaint in November, for the purpose of adding West Coast and causes of action to the litigation.

¶6. On November 13, 2012, Trinity filed a motion for summary judgment, arguing lack of privity. The interlocutory appeal on the constitutional challenge was stayed pending the outcome of the summary judgment proceedings. The circuit court granted summary judgment to Trinity, finding that lack of privity between Trinity and Mike & Jerry’s defeated Mike & Jerry’s claim to establish a lien. The two cases are consolidated on appeal.

THE TRIAL COURT CORRECTLY GRANTED SUMMARY JUDGMENT TO TRINITY YACHTS DUE TO LACK OF PRIVITY BETWEEN TRINITY AND MIKE & JERRY’S.

¶7. This Court reviews grants of summary judgment de novo. This case requires this Court to interpret and apply Mississippi Code Section 85-7-7 for the first time since 1900. Valverde v. Spottswood, 77 Miss. 912, 28 So. 720 (1900). Section 85-7-7 provides: .

There shall be a hen on all ships, steamboats and other water craft for work done or materials supplied by any person in this state for or concerning the building, repairing, fitting, furnishing, supplying or victualing such ships, steamboats or other water craft, and for the wages of the persons employed on board such vessel, boat, or craft, for work done or services rendered, in preference to all other debts due and owing from the owners thereof. The said lien shall expire six (6) months after the claim is due, unless judicial proceedings have been commenced to assert it.

Miss.Code Ann. § 85-7-7 (Rev. 2011). In Valverde, the Court rejected a workman’s attempt to place a lien on a steam tug where the vessel owner had paid an independent contractor in full to perform repairs, and that independent contractor had failed to pay the workman. Id. at 721. The Court held, specifically interpreting Section 85-7-7:

The sole question here is whether an independent contractor for repairs, having no connection with the vessel for navigation, and no connection as agent of the owner for any purpose, but holding an adversary relation to the owner in respect to the power of contracting debts for the repair of such vessel, has any power to create and fasten a lien upon the vessel in the process of making repairs thereon. Certainly the owner of a vessel by any contract with him would confer a lien for such work or material; and the equity of the statute would extend this lien to debts contracted by an agent of the owner, made within the scope of such agency. But the plea here avers, and the demurrer admits, that Smith, who contracted the debt sued on, was not in any sense the agent of the owner of the steamer Adelaide, in contracting such debts, but as such contractor, held a relation in respect to the owner entirely opposite, in its essential features, to that of being his agent.... and not being the owner, nor the agent of the owner, his contracts gave no lien on the vessel for the debts, nor did they bind the owner therefor.

Valverde, 28 So. at 721 (emphasis added). In essence, following well-established principles still in effect today, the Court held that a repairman must be in privity with the vessel’s owner or such owner’s agent: in order to establish a lien on the vessel under Section 85-7-7, and that privity of contract between the vessel owner and the workman did not exist. Id. Likewise, here, privity between Mike & Jerry’s and Trinity does not exist.

¶ 8. West Coast, the entity that contracted the debt with Mike & Jerry’s, was not the owner or agent of the vessel. Seizure under this lien statute was therefore not an available mechanism for relief for Mike & Jerry’s. Privity cannot be created merely by an owner’s knowledge or even specification of the identity of the supplier the independent contractor will use. Nor can privity be created retroactively by a subsequent promise by the owner to pay. Something more is required, and that something is simply not present in this case.

¶ 9. Declining to require privity would leave us with a statute that does not require notice or privity prior to seizing another’s property. The absence of a notice requirement prior to seizure distinguishes this statute from stop-notice or mechanic’s lien statutes, and is, in essence, what makes the privity requirement constitutionally necessary. Consider how the absence of privity is compensated for by notice in the context of stop-notice and mechanic’s lien statutes. See Corrugated Indus., Inc. v. Chattanooga Glass Co., 317 So.2d 43 (Miss.1975). In fact, notice requirements are excused where the parties are in common-law privity. The stop-notice and mechanic’s lien statutes are designed to enable recourse where privity between the parties is lacking. But here, the water craft lien statute at hand is not so designed, but rather contemplates privity without notice. It tips to the practicalities of securing grounds for in-rem or quasi-in-rem jurisdiction. This Court got it right 114 years ago when we construed the statute — not merely the underlying facts of Spottswood’s case — to require the existence of privity between the parties in order to establish a lien.

¶ 10. The specification of DuPont paint and Mike & Jerry’s as the paint supplier in the contract between Trinity and West Coast did not establish privity between Trinity and Mike & Jerry’s because it did not confer rights or impose obligations on Mike & Jerry, a party outside the contract. For example, if Mike & Jerry’s had declined to do business with West Coast, Trinity would not have privity on the grounds of that contract to sue Mike & Jerry’s for failing to fulfill the specifications of Trinity’s contract with West Coast.

¶ 11. Mike & Jerry’s further argues that a lien arose in its favor against Trinity when Trinity withheld payments due West Coast for the purpose of paying Mike & Jerry’s directly. “But privity with the owner, within the meaning of the lien statute, exists only when the creditor, in furnishing the materials or performing the labor, has acted on the owner’s obligation, express or implied, to pay therefor as a primary debtor.” Harper Lumber & Mfg. Co. v. Teate, 98 Fla. 1055, 125 So. 21, 23 (Fla.1929). Trinity entered into the purported agreement to reduce future West Coast invoices after Mike & Jerry’s provided the supplies to West Coast. “A subsequent promise by the owner to pay for materials previously furnished to the contractor, and upon the contractor’s credit, cannot operate retroactively to create between the owner and materialman a state of privity which did not exist at the time the materials were furnished.” Id. at 24. The amendment to the Master Service Agreement between Trinity and Mike & Jerry’s did not operate retroactively to create privity between Trinity and Mike & Jerry’s sufficient to create a lien in Mike & Jerry’s favor.

¶ 12. Mike & Jerry’s argues that this case is factually distinct from Valverde in that, in Valverde, the owner had fully paid the independent contractor, while, here, Trinity allegedly had not paid West Coast the money West Coast would have used to pay its debt to Mike & Jerry’s. But this factual distinction does not eliminate or satisfy the privity requirement. Regardless of the state of invoices between Mike & Jerry’s and West Coast and West Coast and Trinity, the direct relationship between Mike & Jerry’s and Trinity is still lacking.

¶ 13. The dissent argues that the Agreed Orders that dismissed the liens and ordered that the amount in controversy be paid into the court’s registry permitted Mike & Jerry’s to assert claims to the money beyond their original lien claim. We cannot agree. The trial court’s order extinguishing the liens with prejudice was not intended to, nor did it have the effect of, converting the cause of action to a general claim against the money by any interested party after notice. In fact, it is illogical that Trinity would have voluntarily subjected itself to claims outside Mike & Jerry’s petition. In the Agreed Orders, the trial court ordered “any claim, right, action, or lien Mike & Jerry’s may have to or against [the vessels] dismissed with prejudice, the same [claim, right, action or lien] being allowed to continue, in rem, against [the money] deposited with the Registry of the Court.” Because the trial court ordered the extant causes of action to continue, and merely substituted the in rem object of the claim, the subject matter of Mike & Jerry’s claims was not altered. Rather, the effect of extinguishing the liens on the yachts was to enable the delivery of the yachts to the ultimate purchasers free from Mike & Jerry’s claim on the physical vessel.

¶ 14. All parties intended that ultimate disposition of the money (now represented by a letter of undertaking) was entirely contingent on the merits of the lien and seizure that originated the action. This is evidenced by Trinity’s challenge to the lien and seizure via a Summary Judgment Motion after the yachts were freed for delivery. With respect to the dissent’s position, a holding that the agreed orders transformed the cause of action into claims outside the petition would raise serious due-process concerns. Under the trial court’s order, and by mutual consent of the parties, the money represents, and is contingent upon, the merits of Mike & Jerry’s seizure of the yachts under the lien statute.

¶ 15. Finally, we reject the dissent’s position that unjust enrichment is a valid ground for relief against Trinity. Mike & Jerry’s never asserted an unjust-enrichment claim. We observe that the underlying litigation is currently active against the party who contracted the debt with Mike & Jerry’s — West Coast — and that West Coast has legal mechanisms available to hold Trinity accountable for any unpaid debts as the litigation unfolds.

¶ 16. Trinity argues that, as applied in this case, Section 85-7-31 is unconstitutional. But because Mike & Jerry’s has no lien, we see no need to discuss that issue in this case.

CONCLUSION

¶ 17. Unfortunately, Mississippi’s Water Craft Seizure Act was not the appropriate legal mechanism for Mike & Jerry’s to recover the debt it is due. Mike & Jerry’s was not in privity with the owner of the yachts at the time it provided West Coast, an independent contractor, the paint and faring supplies. The trial court appropriately granted summary judgment to Trinity on the grounds brought forward in this particular appeal. Our opinion is not a comment on the ultimate responsibility of parties to make right their debts. We affirm the trial court’s grant of summary judgment. We dismiss the interlocutory appeal challenging the constitutionality of the lien-enforcement statute.

¶ 18. AFFIRMED.

WALLER, C.J., KITCHENS, PIERCE AND KING, JJ., CONCUR. DICKINSON, P.J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER AND PIERCE, JJ.; WALLER, C.J., JOINS IN PART. RANDOLPH, P.J. DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY COLEMAN, J.; LAMAR, J., JOINS IN PART. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., AND LAMAR, J.

DICKINSON, Presiding Justice,

concurring:

¶ 19. I agree with Justice Chandler’s opinion, but I write separately to explain my disagreement with Justice Coleman’s view that the language of Section 85-7-7 requires a lien in favor of Mike Jerry’s. The beginning sentence of the statute reads:

There shall be a lien on all ships, steamboats and other water craft for work done or materials supplied by any person in this state for or concerning the building, repairing ... such ships....

¶ 20. First, Mike Jerry’s is not a “person in this state;” it is a paint business located in Jefferson, Louisiana. Thus, a “plain reading” of the statute precludes the lien in favor of Mike Jerry’s.

¶ 21. Second, there was no “work done or materials supplied” to the vessels by Mike Jerry’s. The record clearly demonstrates that Mike Jerry’s sold the paint to West Coast Marine in Seattle, Washington, which in turn, furnished the paint to the vessels. Were we to interpret the language “supplied by any person in this state for or concerning materials” to reach beyond the person who actually provided the materials to the vessel, and apply it to every entity in the chain of distribution of those materials, liens would be created in favor of the landowner who supplied the oil that went into the paint; to DuPont, which manufactured the paint; to Mike Jerry’s, which bought it from DuPont and sold it to West Coast, and to West Coast, which actually supplied it to the vessel. Justice Coleman’s interpretation of the lien statute — that it protects anyone who sold any material concerning the vessel, with no requirement that it be sold to the vessel or its owner — would reach even the manufacturer of a screwdriver that sold it to a hardware store, that sold it to an employee of a subcontractor.

¶ 22. Section 85-7-7 was not written to reach so far as Justice Coleman suggests, as evidenced by Valverde v. Spottswood, in which this Court, more than a hundred years ago, held that liens created by the statute are created only in favor of those in contractual relationships with the owner which, in this case, is Trinity. Mike Jerry’s had no contract with Trinity; nor did Mike Jerry’s ever supply any paint to Trinity. Mike Jerry’s sold paint to West Coast Marine.

CHANDLER AND PIERCE, JJ., JOIN THIS OPINION. WALLER, C.J., JOINS THIS OPINION IN PART.

RANDOLPH, Presiding Justice,

dissenting:

¶ 23. Four glaring errors were committed by the trial court in granting summary judgment in favor of Trinity and denying Mike & Jerry’s motion to amend its complaint to add Trinity as a defendant. The trial court failed to distinguish the present case from Valverde v. Spottswood, 77 Miss. 912, 28 So. 720, 721 (1900). The facts presented in Valverde are so markedly distinguishable as to provide no support for Trinity’s argument, the trial court’s grant of summary judgment, or the majority’s affirmance. Second, Section 85-7-7 of the' Mississippi Code does not require that there be a contract or privity to establish or enforce a lien. The plain language of the statute provides a mandatory lien for any person who performs work on or supplies material to a water craft. Third, the trial court ignored its own May 4, 2012, Agreed Order which released and dismissed Mike <& Jerry’s hens on the two yachts, placing in their stead an amount of money equal to Mike & Jerry’s claim. The suit then became one to obtain a judgment against the money deposited by Trinity into the court’s registry. When the lien statutes are read together, as written, it is clear that Mike & Jerry’s is entitled to pursue its claim for judgment. Finally, based on the contracts involved in this dispute, Trinity assumed the contractual obligation to pay Mike & Jerry’s when it withheld money due and owing to West Coast. Trinity has never paid Mike & Jerry’s or West Coast for the paint used •on the two yachts and, thus, was unjustly enriched. Each error will be discussed more fully below. A fuller recitation of the facts and procedural history assists in this analysis.

A. Factual Background and Procedural History

¶24. Trinity contracted with Douglas Von Allmen to build a custom, 183-foot, tri-deck motor-yacht with a price tag of $42,000,000, and with Areti, Ltd., to complete construction of another yacht, 197 feet, 11 inches long, with a price tag of $62,000,000. The contracts specified that the paint would be supplied by Mike & Jerry’s, an authorized DuPont jobber for the New Orleans/Mississippi Gulf Coast marketplace, and applied by West Coast. Not only was the specific brand of marine finishes (DuPont) specified, but the distributor (Mike & Jerry’s) was specified as well.

¶ 25. Pursuant to the contract for M/Y Areti (Hull No. T043), Trinity was responsible for furnishing all materials and constructing and painting the yacht. Attached to that contract was another contract entitled MASTER SERVICE AGREEMENT (MSA), which reads in pertinent part:

The Contractor [West Coast] agrees to pay promptly, and to see that any subcontractor pays promptly, all bills for labor, material, or other Work in furtherance of the Agreement and to permit no liens of any kind to be fixed upon or against the property of the Company [Trinity] or any third party because of or arising out of the Work.

Also attached to the contract was a NO LIEN CERTIFICATE which required that all invoices for materials furnished to Trinity for the building of the yacht be paid prior to the date of delivery, such that there would be no encumbrances on the vessel.

¶26. Pursuant to the agreement between Douglas Von Allmen and Trinity for the construction of M/Y My Lady Linda (Hull No. T050), Trinity agreed to furnish all labor and materials required to complete the yacht in accordance with the plans and specifications. The agreement also provided that a “no-lien” affidavit be delivered on completion of the yacht, stating that “all invoices for materials, equipment and supplies furnished by the Builder [Trinity] to the Yacht have been paid in full and that all laborers, craftsmen, and subcontractors ... have been paid in full....” Attached to this agreement was a similar MSA, which, in pertinent part, reads:

The Contractor agrees to pay promptly, and to see that any Sub-Contractor pays promptly, all bills for labor, material, or other Work in furtherance of the Agreement and to permit no liens of any kind to be fixed upon or against the property of the Company or any third party because of or arising out of the Work.

¶ 27. West Coast was selected by Trinity to apply the marine finishes, per the specifications, to the yachts. Pursuant to the MSA between Trinity and West Coast, Trinity contractually had the authority to withhold funds to pay Mike & Jerry’s if West Coast failed to pay. Ultimately, Trinity withheld funds from West Coast equal to Mike & Jerry’s claims and later paid the claimed amount into the court’s registry.

¶28. Other than Trinity’s selection of West Coast to apply the marine finishes, DuPont controlled all aspects of painting the yachts — from the distributor supplying the marine finishes to the minute details of painting the yachts. DuPont submitted more than thirty pages of specifications for paint and fairings to Trinity. Page twenty-one of the specifications identified not only the business entities, but also the persons by name and position — specifying Mike & Jerry’s and its principal, Glen Bohte, as the distributor, along with six of DuPont’s advisory representatives who were to be on site from start to finish.

¶29. On December 2, 2011, Mike & Jerry’s filed its Petition to Establish and Enforce Water Craft Liens, setting forth its claims that it was owed $236,841.01 for products it supplied to paint the yachts when they were under construction and owned by Trinity. On December 8, 2011, it filed a motion for writ of seizure, requesting that the sheriff seize the two yachts. On December 12, 2011, the court issued the Writ of Seizure, and a hearing was set for December 15, 2011. A copy of the writ was attached to each vessel, but the summons could not be served on a person, as the owner of Trinity was out of the country and had directed that no Trinity employee accept service of the summons.

¶ 30. Once Trinity had knowledge of Mike & Jerry’s unpaid claim, Trinity and West Coast began negotiations for Trinity to withhold money it owed West Coast and Trinity would pay Mike & Jerry’s directly. Trinity withheld an amount from West Coast equal to its debt due West Coast in the amount of Mike & Jerry’s claim, yet it failed to pay the withheld money to Mike & Jerry’s. Ultimately, Trinity paid neither West Coast nor Mike & Jerry’s for the paint, despite the purchasers/owners having paid for the yachts painted per the specifications and plans.

¶ 31. No appearance was made directly on behalf of the yachts or purchasers/owners. It was not until April 12, 2012, that Trinity made an appearance by filing a motion to dismiss Mike & Jerry’s petition. Trinity claimed Valverde prevented Mike & Jerry’s from establishing liens and contested the constitutionality of the lien statute. Trinity also asserted, inter alia, in its Motion to Dismiss, that the rights of unpaid suppliers were limited to Mississippi Code Section 85-7-181 and that Mike & Jerry’s did not comply with the statute’s requirements. This motion was denied by the trial court. On the same day, Trinity filed an Emergency Motion for Expedited Hearing, alleging that one of its yachts was scheduled for delivery to the purchasers/owner on or about April 25, 2012.

¶ 32. On May 4, 2012, on the joint ore tenus motion of Trinity and Mike & Jerry’s, the court entered an Agreed Order dismissing with prejudice “any claim, right, action, or lien Mike & Jerry’s may have to or against Hull T043,” but allowing Mike & Jerry’s to continue its proceeding against $136,971.67, which was deposited by Trinity into the registry of the court. The court made the following findings: (1) Hull T043 was scheduled for delivery at a uncertain date in the near future; (2) Trinity had moved to dismiss the action (which the Court denied), to extinguish the liens (the Agreed Order extinguished the lien), and to recover the seized property (the Agreed Order allowed Trinity to recover Hull T043); (3) the parties agreed to “substitute any claim, right, action, or lien Mike & Jerry’s may have to or against Hull T043, replacing in its stead the sum of ... $136,971.67, to be paid by Trinity Yachts ... and paid into the Registry of the Court;” and, of great import; (4) Mike & Jerry’s agreed to release “any claim, right, action, or lien” it may have had against Hull T043. Thus, Mike & Jerry’s was allowed to preserve its right to pursue its remedy against the money placed in the court registry to “be tried as other cases in the court,” after giving notice to all interested parties. See Miss.Code Ann. §§ 85-7-31 and 85-7-49. On May 7, 2012, Trinity paid the sum into the registry of the court. On June 4, 2012, Trinity paid an additional $149,663.43 into the registry of the court for Hull T050. Although Trinity paid these amounts into the registry of the court, it, in fact, already had withheld the monies from West Coast once it was made aware of the disputed claims.

¶ 33. Although the liens against the vessels had been released by Mike & Jerry’s and dismissed with prejudice by the court, Trinity then filed a Motion for Summary Judgment on November 13, 2012, arguing that, because no privity or contractual relationship existed between Trinity and Mike & Jerry’s, the vessels had been improperly seized, and the liens asserted by Mike & Jerry’s were not proper, ergo, Mike & Jerry’s was not entitled to recover the money or maintain an action against Trinity. Mike & Jerry’s subsequently filed a Motion for Leave to File a Second Amended Complaint, adding both Trinity and West Coast as defendants to its suit.

¶ 34. The trial court heard arguments on both motions. During the hearing, the trial court stated that, “I find that the statute [85-7-7] per se does not require the privity of contract between the parties. Seeing no contractual relationship and the ... nonexistence of an agency relationship, the motion for summary judgment is granted.” On June 11, 2013, the trial court denied Mike & Jerry’s motion to add Trinity as a defendant “on the grounds of futility, because no contract or privity existed between Mike & Jerry’s and Trinity, nor did Mike & Jerry’s properly perfect a lien or claim under Mississippi’s ‘Stop Notice’ statute, Miss.Code Ann. § 85-7-181, and consequently Mike & Jerry’s cannot assert a viable claim against Trinity....” The trial court granted Trinity’s Motion for Summary Judgment and ordered that Trinity’s “security” placed into the court’s registry be returned.

B. Discussion of Errors

1. Valverde v. Spottswood

¶ 35. Trinity argued, and the trial court agreed, that the ruling of Valverde held that a lien could not be created against the vessel or the owner by an independent contractor. After a thorough review of the Valverde record, it is clear that Valverde is so markedly distinguishable from the present case that it provides no support to Trinity’s argument that Mike & Jerry’s should not be allowed to pursue its claim for the marine finishes demanded by the purchasers/owners and builder/owner, which were supplied to and applied to the yachts at Trinity’s behest. Valverde does not require a separate contract or privity with the owner to perfect a hen. The word “privity” is not found in the text of the Valverde opinion.

¶ 36. In Valverde, the owner of the vessel (Spottswood) contracted with George ’ Smith (contractor) to repair his steamer. Valverde, 28 So. at 721. Smith, in turn, hired several laborers to perform repair work on the vessel and asked Val-verde to supply groceries to the vessel during the time the workers repaired the steamer. Spottswood (owner) and Smith (contractor) agreed upon a price for such repairs. Spottswood already had paid Smith the agreed-upon price in full, absent knowledge of the disputed claims. Id. Smith, however, did not pay Valverde the entire amounts owed for the victuals or the laborers. At the time of Spottswood’s payment to Smith, Spottswood was wholly unaware of Valverde’s claim for supplies and the laborers’ claim for work' performed, as those claims were made subsequent to Spottswood’s payment to Smith. Id.

¶ 37. Valverde filed a declaration on March 17, 1898, asserting that, from March 23, 1897, until May 1, 1897, he had sold Smith various and sundry groceries, for which he had not received full payment. Valverde also asserted in his declaration that he had been assigned seven separate claims by laborers who had performed work on the vessel but were not paid in full for their labor. The total amount unpaid was approximately $210.° On the same day, a writ of seizure was filed against the vessel, authorizing the sheriff to seize the vessel. The vessel was returned after Spottswood paid a bond in the amount of $419.50.

¶ 38. On April 25, 1898, Spottswood filed a “Special Plea,” stating that (1) he had contracted with Smith to repair his vessel, (2) the agreed-upon sum of $1,051 was paid in full (unlike today’s case), (3) Smith had no interest in his vessel (unlike builder/owner Trinity), and (4) the contract price was paid long before he knew Smith was incurring debts without his knowledge or approval (unlike today’s case). On April 28, 1898, Valverde demurred Spotts-wood’s Special Plea, stating that Spotts-wood presented no defense and Spotts-wood’s payment to Smith did not operate to discharge the lien. The court overruled the demurrer, and, after Valverde declined to reply or plead further, dismissed the case. Valverde timely appealed.

¶ 39. On appeal, the Court held that Smith was not the agent or owner of the steamer (as was builder owner Trinity) and Smith’s contracts could not bind the owner. Valverde, 28 So. at 721. Valverde and “his assignors knew, or ought to have known, that they were not dealing with the owner of the steamer, or with his agent, and they had no reason to believe that Smith carried with him authority to contract for the owner; (neither of which applies to today’s case, for Mike & Jerry’s and DuPont knew Trinity was the owner, and that either Trinity or its paint contractor had authority to procure paint to fulfill Trinity’s contractual obligation, see FSC Sec. Corp. v. McCormack, 630 So.2d 979, 988 (Miss.1994) (holding that an agent is one who acts under either the express or apparent authority of a principal) and the consequences of their negligence must be borne by them (no issue of negligence was alleged in today’s case)).” Id. The Court affirmed the judgment of the circuit court. Id. The Valverde Court held that, as the facts were presented in that particular case and in the absence of other relevant factors, no lien could be had by the grocer on that particular vessel. The facts of the present case are so dissimilar as to make Valverde inapplicable.

¶ 40. Spottswood exercised no control over the labor or materials used in the ship’s repair. Trinity did as builder/owner. The Valverde Court noted that the owner did not order the specific material that was used to repair his steamer. Val-verde, 28 So. at 721. Conversely, in the present case, both the builder/owner (Trinity) and the purchasers/owners specifically required that DuPont marine finishes be acquired from Mike & Jerry’s and used on the yachts. Trinity was contractually obligated to paint the yachts using DuPont paint distributed by Mike & Jerry’s. Spottswood already had paid Smith the full amount owed for the repairs, without the knowledge that his contractor, Smith, had not yet paid his grocer for supplies or laborers for their work. There was no other “debt due and owing from the owner” to perfect a lien against the vessel. See Miss.Code Ann. § 85-7-7. In today’s case, there was money “due and owing from the owner [Trinity],” as Trinity had not paid, and still has not paid, West Coast or Mike & Jerry’s the amount owed and withheld by Trinity for the marine finishes. Trinity was aware of Mike & Jerry’s claim while West Coast was still applying the finishes to the yachts and withheld money it owed to West Coast equal to the claimed amount. In the present case, Mike & Jerry’s timely asserted a claim against the vessels, pursuant to Section 85-7-7.

¶ 41. Trinity argues that Valverde is the only case addressing the application of Section 85-7-7. However, the case of Kornosky v. Hoyle, 97 Miss. 562, 52 So. 481, 481 (1910), is instructive, as it also involves the owner of the vessel, as does the present case. In Komosky, Hoyle filed a replevin suit against Kornosky (owner) for the balance owing Hoyle for repairs made to Kornosky’s boat. Id. After Kornosky refused to pay Hoyle the amount owed, Hoyle sued out a writ of replevin for the boat. Id. That Court stated that

[t]he court below held that chapter 85, Code of 1906, [now 85-7-7] which gives a lien, and a remedy therefor, on watercraft for work done or materials supplied in building, repairing, and furnishing the same, was appellant’s only remedy for the collection of the amount due him by appellee. In so holding the court erred. At common law the appellant had a possessory lien for work done and materials furnished in repairing the boat, carrying with it the right to hold the same against the owner until his charges were paid.

Id. That Court held that there is “a lien at common law for the building of a ship, if the shipwright has not parted with the possession thereof, ... without paying all that is due for her construction.” Id,. (quoting 19 A. & E. Encyc. Law 1090 (2d ed.)). Chapter 85 of the 1906 Code, like its counterpart Section 85-7-7, “does not abrogate the common-law right. On the other hand, its purpose is to enlarge the same, and give a better remedy, though not exclusive.” The Court held that Hoyle was entitled to one of two remedies: (1) he was entitled to judgment against the owner (Kornosky) for the return of the boat (this is not sought in this case), or (2) he was entitled to the amount of his indebtedness (which is exactly what Mike & Jerry’s presently seeks). Applying the Kornosky reasoning, which is more akin to this case than Valverde, this Court should find that Mike & Jerry’s is entitled to pursue its claim with notice to all interested parties.

2. Mississippi Code Section 85-7-7

¶ 42. Section 85-7-7 of the Mississippi Code reads in pertinent part that “[t]here shall be a lien on all ... water craft for work done or materials supplied ... for or concerning the building ... in preference to all other debts due and owing from the owners.... ” Miss.Code Ann. § 85-7-7 (Rev. 2011). The statute does not include a privity-of-contract requirement. By its plain language, Section 85-7-7 applies to “any person in” Mississippi who worked on or supplied materials to the vessels. “The lien statutes of Mississippi afford an abundance of protection for mechanics and ma-terialmen. But in all cases such persons must take action as a condition precedent to receiving the benefits thereof, and upon their failure so to do their remedies are those of common creditors.” Wortman & Mann, Inc. v. Frierson Bldg. Supply Co., 184 So.2d 857, 860 (Miss.1966) (quoting Jones Supply Company v. Ishee, 249 Miss. 515, 521-22, 163 So.2d 470, 472 (1964)). Mike & Jerry’s timely asserted liens, pursuant to Section 85-7-7, for the paint it supplied for the two luxury yachts under construction by Trinity.

¶ 43. While we can agree that there was no contract between Trinity and Mike & Jerry’s, the contract documents provided for Mike & Jerry’s to supply paint for the yachts. Additionally, Section 85-7-7 does not require a direct contract or privity for a lien to be asserted. The trial court noted as such in his bench opinion— “I find that ^he statute per se does not require the privity of contract between the parties.” However, the trial court mis-stepped when he held, “[s]eeing no contractual relationship and the ... nonexistence of an agency relationship, the motion for summary judgment is granted.”

¶ 44. A lien is an assertion of claims to all interested persons to ensure money is not paid before the claim is resolved and seeks to create a preference to all other debts “due and owing.” The purpose of Section 85-7-7 is to offer protection to laborers, materialmen, and suppliers, a good number of whom would not know whether privy was an outhouse or the sharing of knowledge, nor would they know the difference between privateer and pirate, nor do they have a Philadelphia lawyer (Pennsylvania or Neshoba County practitioner) at their beck and call, nor do they carry around contracts to be signed by owners when delivering materials to a job site.

¶ 45. No requirement of privity is mentioned in Section 85-7-7, Valverde, or Kor-nosky, although the majority uses the word “privity” multiple times in its opinion. After adopting such a requirement and amending the statute, why does the majority fail to consider the alternative argument advanced by Trinity and Mike & Jerry’s? Trinity argued that Mike & Jerry’s improperly filed its action asserting Section 85-7-7 when it should have filed pursuant to Section 85-7-181. Section 85-7-7 is not the exclusive remedy for Mike & Jerry’s. Mike & Jerry’s can seek relief under either Section 85-7-7 or Section 85-7-181. Although I would find that Mike & Jerry’s was entitled to pursue its claim via Section 85-7-7, in the alternative, Mike & Jerry’s was equally entitled to pursue its claim under Section 85-7-181. The trial court improperly held that Mike & Jerry’s did not provide notice to Trinity in accordance with that section. Filing a lien pursuant to Section 85-7-7 provides more than sufficient notice to Trinity regarding its claim. Sections 85-7-7 and 85-7-181 were designed to protect materi-almen and to ensure that they would be paid for products sold. They are for the benefit of materialmen, and every materi-alman does not have to carry a book of contracts for the owners’ execution every time he delivers a two-by-four, can of paint, or plumbing fixture to a project. Mike & Jerry’s is such a materialman.

3. May 4, 2012, Agreed Order

¶ 46. As stated above, Mike & Jerry’s properly filed its petition pursuant to Mississippi Code Section 85-7-7, asserting liens in preference of any other interested party. See Miss.Code Ann. § 85-7-31. The central issue was whether Mike & Jerry’s, or any other interested party, was entitled to the remedies provided under Mississippi Code Section 85-7-49.

¶ 47. At the conclusion of the hearing on Trinity’s motion for summary judgment and Mike & Jerry’s motion to amend its complaint, there were no liens on either vessel, for Mike & Jerry’s had released those liens and the trial court had dismissed the liens against the vessels with prejudice. Trinity should have been judicially estopped from being heard on a motion concerning liens that already had been released and dismissed. The trial court conflated the issues of validity of a lien vel non with whether Mike & Jerry’s demand for monetary judgment was valid. Perhaps this explains the flawed reasoning behind the trial court’s Order and Final Judgment entered on June 11, 2013, when the trial court denied Mike & Jerry’s motion to add Trinity as a defendant.

¶ 48. The liens against the vessels were released by agreement of the parties and order of the court. Upon release of the liens, neither the constitutionality of the water craft seizure statute nor the validity of the liens was to be adjudicated. The actions against the vessels were dismissed with prejudice. The “subject-matter of the suit” had changed from asserting liens and obtaining a monetary judgment, to only obtaining a remedy, i.e., a monetary judgment. Mike & Jerry’s remaining claim was against the money Trinity withheld from West Coast and paid into the court.

¶ 49. In one fell swoop, the trial court dismissed Trinity, an interested party, and gave Trinity the money deposited into the court, contrary to its earlier order which allowed for Mike & Jerry’s to proceed on its claims against the money after releasing its liens and claims against the vessels. The trial court’s order foreclosed Mike & Jerry’s opportunity, and that of another interested party (West Coast), to present their claims and/or defenses to the money in the registry of the court. Although the liens were dismissed with prejudice, the money substituted therefore was still at issue and was improperly released by the trial court. Again, the trial court conflated two issues. Whether there is a right to assert a lien does not control whether there is a valid claim.

4. Contractual Obligation

¶50. Finally, Mike & Jerry’s argued that Trinity had a contractual obligation to pay West Coast per their agreement. Trinity, in fact, withheld money it owed to West Coast for the very paint at issue. Trinity never paid West Coast the total amount it owed it, and Trinity refused to pay Mike & Jerry’s the money withheld. In fact, Trinity failed to disclose that fact to Mike & Jerry’s or the court until late in the proceedings.

¶ 51. Pursuant to the MSA prepared and signed by Trinity, Trinity assumed the obligation to pay .Mike & Jerry’s when it withheld the money it owed to West Coast once it learned that Mike & Jerry’s had not been paid the full amount for the finishing products. The MSA specifically provided Trinity with “the right to set off against any amounts” owing to West Coast if “any liens or other claims are filed” based on West Coast not paying Mike & Jerry’s or any other contractor. This contractual right of set-off was exercised by Trinity for Mike & Jerry’s benefit.

C. Conclusion

¶ 52. Based on these facts and analogous lien statutés, I cannot agree that summary judgment was properly granted in favor of Trinity. Although Trinity had been paid, it pocketed the disputed amount, leaving both West Coast, and the supplier, Mike & Jerry’s, unpaid.

¶53. The trial court improperly held that a contract or privity between the parties must exist in order for a Section 85-7-7 lien to be created. Our statutes provide for no such requirement. Mike & Jerry’s should be allowed to pursue recovery “against all interested parties” for the amount owed for the materials. I submit that summary judgment was not properly granted in favor of Trinity, for the reasons stated herein. Accordingly, I dissent.

¶ 54. The proper disposition would be to reverse the trial court’s denial of Mike & Jerry’s motion to add Trinity as a party and the grant of summary judgment in favor of Trinity. This case should be remanded for proceedings consistent with this opinion, allowing all interested parties (Trinity, Mike & Jerry’s, and West Coast) an opportunity to put forth proof or contest any demands thereof, regarding whether they are entitled to all or any portion of the disputed amount. The question for the trial court to decide is which interested party is entitled to judgment.

COLEMAN, J., JOINS THIS OPINION. LAMAR, J., JOINS THIS OPINION IN PART.

COLEMAN, Justice,

dissenting:

¶ 55. Today’s majority opinion presents an excellent and, I believe, accurate discussion . of the law of Mississippi regarding privity and the necessity of privity in most lien situations. However, I am of the opinion that, in requiring privity for a lien pursuant to Mississippi Code Section 85-7-7 the majority exceeds the .constitutional power of the Court by judicially amending the statute.

¶ 56. Section 85-7-7 provides as follows:

There shall be a lien on all ships, steamboats and other water craft for work done or materials supplied by any person in this state for or concerning the building, repairing, fitting, furnishing, supplying or victualing such ships, steamboats or other water craft, and for the wages of the persons employed on board such vessel, boat, or craft, for work done or services rendered, in preference to all other debts due and owing from the owners thereof. The said lien shall expire six (6) months after the claim is due, unless judicial proceedings have been commenced to assert it.

Miss.Code Ann. § 85-7-7 (Rev. 2011) (emphasis added). The use of the word shall indicates that the Legislature has issued a mandatory directive that the courts of the state, including the Supreme Court, have no choice but to follow. Pickering v. Hood, 95 So.3d 611, 615 (¶ 10) (Miss.2012) (“The statute’s mandatory term “shall” is not a suggestion — it is a mandate.”). Accordingly, a Section 85-7-7 lien exists automatically and by operation of law when a person supplies materials or work for a ship, steamboat, or other water craft. Assuming the statute violates no constitutional provision, the Legislature had the authority to enact it and the Court must enforce it. Once the lien exists, it stands in preference to all other debts due and owing from the owners.

¶ 57. Our role in the constitutional framework of our state government “should not place [the Court] in the position of changing the substantive law enacted by the Legislature.”. Little v. Miss. Dep’t of Transp., 129 So.3d 132, 138 (¶ 12) (Miss.2013) (citing Stockstill v. State, 854 So.2d 1017, 1022-23 (¶ 13) (Miss.2003) (“It is not the duty of this Court to add language where we see fit.”)). Stated differently, we have a “constitutional mandate to faithfully apply the provisions of constitutionally enacted legislation.” Tallahatchie Gen. Hosp. v. Howe, 49 So.3d 86, 92 (¶ 17) (Miss.2010). The Legislature “alone has the power to create and modify statutes. It is not the province of the Court to insert requirements where the Legislature did not do so.” Finn v. State, 978 So.2d 1270, 1272-1273 (¶ 9) (Miss.2008) (emphasis added); see also Zambroni v. State, 217 Miss. 418, 64 So.2d 335, 337 (1953) (“It is not our province to write the statutes, but only to construe them as written.”).

¶ 58. I cannot square the majority’s imposition of a requirement of privity with the plain language of the statute, which creates a mandatory and automatic lien. Because I believe the majority exceeds the constitutional power of the Court in judicially modifying the statute, I must dissent.

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

      . The dissents would find that the lien statute does not require notice or privity prior to seizure of personal property. Such a construction would clearly make the statute unconstitutional, as evidenced by the strict notice requirements associated with stop-notice and mechanic’s lien statutes — requirements that exist for the purpose of compensating for lack of privity.

      . The yachts were M/Y Lady Linda, valued at approximately $42,000,000, and M/Y Areti, valued at approximately $62,000,000.

      . This ostensibly was due to Trinity’s failure to pay West Coast.

      . Trinity continued construction and sea trials on the yachts. When the yachts were completed, Trinity deposited the amount of the liens with the Circuit Court so that it could deliver the yachts to the purchasers free of liens. Upon grant of summary judgment to Trinity, the funds were released back to Trinity in exchange for a letter of undertaking in favor of Mike & Jerry’s pending the outcome of this litigation.

      . This agreement to reduce the invoices was pursuant to the Master Service Agreement of the construction contract, which provided:
      (b) In the event any liens or other Claims are filed in violation of this Section, Trinity will have the right to set off against any amounts then due and owing or which may subsequently become due and owing to Contractor.

      . Mike & Jerry's also attempted to add Trinity as a direct defendant, which was denied.

      . The facts of Valverde are not distinguishable in any way that affects the definition and application of the doctrine of privity.

      . Aetna Cas. and Sur. Co. v. Buck, 594 So.2d 280 (Fla.1992); Clark Lumber Co. v. Passig, 184 Kan. 667, 339 P.2d 280, 282 (1959); McCleskey v. Finney, 272 Ala. 194, 130 So.2d 183, 185 (1961).

      . We reject the dissent’s suggestion that Mike & Jerry's petition be considered under the stop-notice statute. Not only did Mike & Jerry’s fail to assert a lien under that statute; that statute has been repealed following the Fifth Circuit’s determination that it was unconstitutional. See Noatex v. King Const. of Houston, L.L.C., 732 F.3d 479, 485-486 (5th Cir.2013).

      . The fact that the agreed orders allowed the suit to continue against money paid into the court’s registry while dismissing the liens so that the yachts could be delivered parallels the procedure in Section 85-7-47. That statute permits a defendant, whose property has been seized under Section 85-7-31, to give a bond and replevy the seized property, with the bond to be awarded to 'the person "in whose favor judgment may be given in the case.”

      . Miss.Code Ann. § 85-7-7 (Rev. 2011).

      . Contrary to Justice Randolph’s assertion that this statement has no basis, Mike & Jerry's sworn affidavit makes no claim that it supplied paint to Trinity. Rather, Mike Jerry's supplied paint to West Coast, which, in turn supplied the paint to the vessels in Harrison County. The fact that the paint was delivered to West Coast (not Trinity) in Harrison County is insignificant.

      . Valverde v. Spottswood, 77 Miss. 912, 28 So. 720 (1900).

      . "There shall be a lien on ail ships, steamboats and other water craft for work done or materials supplied by any person in this state for or concerning the building, repairing, fitting, furnishing, supplying or victualing such ships, steamboats or other water craft, and for the wages of the persons employed on board such vessel, boat, or craft, for work done or services rendered, in preference to all other debts due and owing from the owners thereof. The said lien shall expire six (6) months after the claim is due, unless judicial proceedings have been commenced to assert it." Miss.Code Ann. § 85-7-7 (Rev. 2011).

      .Also referred to as Hull No. T050, M/Y Lady Linda.

      . Trinity warranted that the yacht was approximately seventy percent complete.

      . Also referred to as Hull No. T043, M/Y Are-ti.

      . DuPont does not sell paint directly to builders, but instead uses distributors (jobbers), such as Mike & Jerry’s.

      . Mike & Jerry’s supplied $236,562.16 in paint. It was paid only $221.15 of its bill.

      . Justice Dickinson’s separate opinion states "there was no ‘work done or materials supplied’ to the vessels by Mike & Jerry’s.” (Dickinson Opinion at ¶ 21). There is no basis for this statement in the record. Mike & Jerry’s testified by sworn affidavit that it supplied paint to West Coast in Harrison County. Additionally, Justice Dickinson is seeking to further expand Section 85-7-7 by stating that the statute calls for materials to be provided directly "to the vessel.” Once again, there is no basis for this argument. The statute specifically states that ”[t]here shall be a lien on ■ all ships, steamboats and other water craft for work done or materials supplied by any person in this state for or concerning the building, repairing, fitting, furnishing, supplying or victualing such ships, steamboats or other water craft...." Miss.Code Ann. § 85-7-7 (Rev. 2011) (emphasis added).

      . Trinity was the builder/owner of the vessels until title passed to the purchase/owners. Ownership of the yachts did not pass to the purchasers/owners until construction of the yachts was substantially completed, sea trials were successfully completed, and title passed upon the receipt of the final payment.

      . The majority conflates the concepts of lien law and seizure law. Lien law does not require that notice be given prior to attaching a lien. The actual lien is the notice. However, seizure law does require that notice be given to the owner of the property prior to seizing the property. See Miss. Power Co. v. Goudy, 459 So.2d 257, 282 (Miss.1984) ("In a replev-in case, ... the debtor has sufficient rights in the property that due process requires reasonable advance notice and opportunity to be heard prior to seizure.”) (citing Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972)). See Maj. Op. at ¶ 1, n. 1, ¶ 3, ¶ 15. One only has to look at Paragraph 3 of the majority’s opinion, where it recognizes that notice prior to the seizure was in effect. Notice has nothing to do with privity. The absence of notice does not exist in this case. The majority further states that the privity requirement is “constitutionally necessary.” Maj. Op. at ¶ 9. This statement is made without authority or citation.

      . Trinity already had notice of the claim, and the Court subsequently allowed West Coast to be added as an interested party.

      . "A person having any lien in Sections 85-7-1 through 85-7-9 may enforce the same by making affidavit before any officer authorized to administer oaths of any county where the subject matter of the lien may be, describing therein the property sought to be subjected, setting forth his claim, share or interest therein, and asserting his lien thereon, with an itemized account of his demand, and giving the names of the persons interested therein, and of those, if any, who have a like or other claim or interest in such property; whereupon the clerk or justice shall issue a writ directed to the proper officer and returnable to the proper court, commanding the officer to seize the property, or so much thereof as may be necessary to satisfy the plaintiff’s demand and costs, and to summon the persons named in the affidavit as interested therein, to appear in the court designated, at the time fixed, to answer the complaint.” Miss.Code Ann. § 85-7-31 (Rev. 2011).

      .“Any person interested may contest the demand of the plaintiff ... by filing a statement in writing, under oath, of his defense or claim, itemizing his account, if any he has; and the case shall be then at issue between the parties, and shall be tried as other cases in the court. And the judgment of the court shall be framed so as to adjust the rights of the several parties as to the subject matter of the suit; and judgment may be given against the party liable thereto for any amount, and for the sale of any goods in the hands of the officer, and for any balance not obtained from the sale of the goods, to be made by execution as in other cases, and the costs may be adjudged as the court may consider just; and as many judgments shall be rendered as may be necessary to adjust the rights of the several parties.” Miss.Code Ann. § 85-7-49 (Rev. 2011) (emphasis added).

      . The June 4, 2012, Agreed Order was not made part of the record on appeal.

      . The trial court’s use of the term "security" is misplaced. Mike & Jerry’s agreed with Trinity’s substitution of the money in the stead of the liens on the vessels and gave up its right to pursue "any, claim, right, action, or lien” against the vessels in exchange for the right to proceed on its claims against the substituted property, i.e., the money.

      . The trial court did properly grant Mike & Jerry’s motion to amend its complaint to add West Coast as a defendant.

      . The case did not address that Valverde’s declaration was untimely filed, as it was more than six months after the payment was due. See Miss.Code Ann. § 85-7-7.

      . There is a discrepancy in the record as to whether the amount owed was $209.50 or $210.15.

      .Although the record is unclear about certain dates, it is clear that the vessel was seized only after (1) all the work had been performed, (2) groceries had been delivered by Valverde, and (3) the ship had left and later returned to Mississippi. In the present case, the lien was filed while the yachts were still under construction at the builder/owner's (Trinity’s) yard.

      . This section was repealed on April 11, 2014. However, at the time this litigation commenced, this applicable statute was in effect and its constitutionality is not the subject of the appeal in this case.

      . Therefore, it is not necessary to address the constitutionality of the Water Craft Seizure Act.

      . Trinity concedes as much, for when it made an appearance as an interested party, it responded to Mike & Jerry’s petition "pursuant to Section 85-7-49 of the Mississippi Code, and contested the demand of ... Mike & Jerry’s....”

      .The majority states that the disposition of the money was "entirely contingent” on the merits of the lien and seizure. Maj. Op. at ¶ 14. However, once the liens were released and dismissed, the disposition of the money was contingent on the merits of Mike & Jerry’s claim for a monetary judgment.

      . Trinity understood that it might have continued exposure based on the outcome of a trial and submitted a letter of undertaking in favor of Mike & Jerry’s pending the outcome of this litigation.


source: Caselaw Access Project

author: PIERCE, Justice,

license: Public Domain

text:
    In the Interest of a Minor Victoria Denise WAITES. Jeffrey Scott Waites v. Amy Marie Waites RITCHIE and Timothy J. Sanford.
    No. 2012-CT-00884-SCT.
    Supreme Court of Mississippi.
    Dec. 11, 2014.

      S. Christopher Farris, attorney for appellant.
    George H. Gunter, New Augusta, Robert R. Marshall, attorneys for appellees.
   ON WRIT OF CERTIORARI

PIERCE, Justice,

for the Court:

¶ 1. This appeal stems from a petition made by Amy Waites Ritchie (“Amy”) to modify a custody agreement created by Jeffrey Scott Waites (“Scott”) and herself following their divorce two years earlier. Amy petitioned for modification, seeking to move with her two children to Iowa, as Amy planned to remarry there. Although Amy and Scott had agreed to joint physical and legal custody, Amy’s proposed move to Iowa would make the provisions of the agreement unworkable. After initiating the petition, Amy contacted T.J. Sanford (“T.J.”) to let him know she believed him to be her eldest child’s biological father; subsequently, a DNA test proved T.J.’s paternity and he joined the matter seeking custody.

¶ 2. After excluding Scott from consideration under Albright as a non-natural parent, the presiding chancellor awarded full physical and legal custody to Amy rather than T.J. The chancellor allowed visitation for both Scott and T.J., with respect to the eldest child. Scott appealed the court’s order, and the Court of Appeals reversed. Finding Scott’s fatherly actions did rebut the natural-parent presumption afforded to Amy and T.J., the Court of Appeals found Scott should have been considered on equal footing with the natural parents. The Court of Appeals remanded this case to the chancery court with instructions to consider Scott under Al-bright. Amy and T.J. filed a writ of certiorari, which this Court granted. We find the chancellor properly excluded Scott from consideration under Albright. Accordingly, we reverse the Court of Appeals’ decision and reinstate and affirm the judgment of the chancery court.

FACTS AND PROCEDURAL HISTORY

¶ 3. In 2004, seventeen-year-old Amy began dating twenty-one-year-old Scott. But, during this period, Amy also had a brief relationship with T.J. In July 2004, Amy and Scott were married, and on December 16, 2004, Amy gave birth to Victoria. Initially, Scott believed Victoria was his child. Thereafter, Amy and Scott had a child together, Brackston.

¶ 4. In March 2007, T.J.’s mother contacted Amy, informed her that T.J. was about to be deployed with the military, and questioned whether T.J. was Victoria’s father. Amy denied that Victoria was T.J.’s daughter, but Scott overheard the conversation. On March 16, 2007, Scott had a DNA test performed which confirmed that he was not Victoria’s biological father. Nevertheless, Amy and Scott decided not to disclose Victoria’s paternity, and that Scott would continue to raise her as his own child.

¶ 5. On December 15, 2009, the chancery court entered an Agreed Judgment of Divorce as to Amy and Scott. The divorce judgment provided, in pertinent part, that “there were two minor children born unto the parties,” Victoria and Brackston, and that “[t]he minor children have been in the care, control and custody of’ Amy and Scott. The parties were granted joint legal and physical custody of the minor children, with custodial time divided on a week-to-week basis. Both Amy and Scott certified they were Victoria and Brack-ston’s biological parents, although both Amy and Scott knew this to be untrue, as the March 2007 DNA had test confirmed Scott was not Victoria’s father.

¶ 6. Following the divorce, Amy married a man known as “Mr. Ritchie.” The marriage lasted a few months, from May 2010 to December 2010. After divorcing Ritchie, Amy began a relationship with Nick Rhods and planned to move to Iowa with both children, where Rhods lived, after marrying him. On January 17, 2011, Amy contacted T.J. regarding the possibility that he was Victoria’s father. On January 28, 2011, Amy sued T.J. for support. After a DNA test revealed a 99.999% probability that T.J. was Victoria’s, biological father, T.J. filed a Motion for Custody, Visitation and Paternity with respect to Victoria, on March 3, 2011. Then, in November of 2011, Amy initiated a Petition for Modification of the 2009 custody agreement made by Scott and herself, so that she could move the children out of state. Scott opposed.

¶ 7. On March 23, 2012, the chancery court entered its Findings of Fact, Conclusions of Law and Final Judgment. According to the chancery court, Amy, Scott, and T.J. “all seek to have primary physical custody of [Victoria].” The chancery court found, in pertinent part, that:

[g]iven the testimony presented at trial, [T.J.] had to have known that there was a possibility that he may have been the father of [Victoria], especially when he heard [Amy] was pregnant, and calculated the months in his mind. The [c]ourt also recognizes that [T.J.] did little to nothing to inquire or otherwise try to involve himself in the life of a child that could have been his. However, the [c]ourt does not find that [T.J.’s] conduct met the criteria for abandonment as set out in Sellers [v. Sellers, 638 So.2d 481 (Miss.1994) ]. After weighing the rest of the factors set out in Sellers, it would seem that [T.J.] has not engaged in conduct that was overly immoral so as to be a detriment to [Victoria], nor does he appear to be one who is unfit to raise a child, especially since he is currently raising his son from a previous relationship.
Although In re Leverock [, 23 So.3d 424 (Miss.2009),] differs from the case at hand, in that [T.J.] has not “chosen to take an extended holiday from parenthood,” the circumstances are quite similar. Here, [Victoria] has been living with the idea that [Scott] is her biological father her entire life. She has remained in the care and custody of both [Scott] and [Amy] for the past seven years, and has been thriving. According to the holding of Leverock, the [c]ourt cannot now arbitrarily remove [Victoria] from the care and custody of [Scott] and [Amy], just based on [T.J.’s] right as a natural parent.
Leverock is distinguishable in another important way, and that is that we have both natural parents vying for the custody of [Victoria]. The [c]ourt’s analysis does not ignore any and all rights that [Scott] may have to [Victoria] under in loco parentis.
Neither [T.J.] nor [Amy] have done anything to warrant this [c]ourt to deem them unfit to raise their daughter, [Victoria]. [Scott] discovered that [Victoria] was not his biological child in 2007. At that time he had reason to know, or at least should have known, that there was a natural father out there somewhere. However, rather than seek [T.J.] out, [Scott] chose to take no action for the sake of keeping his family together, and continued to support and care for [Victoria]. The [c]ourt finds this to be quite admirable. As such, [Scott] has been effectively acting in loco parentis .... To phase [Scott] entirely out of [Victoria’s] life would be certainly detrimental to her well being.... [Scott] is therefore entitled to visitation rights to [Victoria], The [c]ourt, however, must now decide who should be entitled to physical custody of [Victoria] as between the child’s natural parents, [Amy] and [T.J.],

After conducting an Albright analysis as to Victoria’s natural parents, the chancery court concluded that it would be in Victoria’s “best interest” for Amy to “retain full legal and physical custody ..., subject to visitation of both [T.J.] and [Scott].”

¶ 8. Thereafter, Scott filed a Motion to Set Aside Judgment or in the Alternative to Reconsider the Findings of Fact, Conclusions of Law and Final Judgment and for Modification of the Final Judgment. Scott argued that the chancery court failed to consider him, “who was found to be the father in loco parentis, in the Albright factors[,]” along with Amy and T.J. The chancery court denied Scott’s motion. According to the chancery court, Scott was not entitled to physical-custody consideration in the Albright analysis because he failed to prove that Amy and T.J. “were unfit,” and the Albright analysis for primary physical custody would consider only Amy and' T.J.

¶ 9. Finding that neither Amy nor T.J., as the child’s biological parents, was “unfit” to raise Victoria, Scott, who had “effectively aet[ed] in loco parentis[,T was entitled only to visitation rights. Following the Albright analysis, ■ the chancery court concluded that it would be in Victoria’s “best interest” for Amy to “retain full legal and physical custody ..., subject to visitation of both [T.J.] and [Scott].” Thereafter, the chancery court denied Scott’s Motion to Reconsider. Scott then appealed.

¶ 10. The Mississippi Court of Appeals described this as “a three-way custody action between (1) the natural mother (“Amy”), (2) the mother’s ex-husband (“Scott”), who had supported, cared, and treated the child as his own, and (3) the man who turned out to be the child’s biological father (“T.J.”).” J.S.W., 152 So.3d at 337, 2013 WL 6231797, at *1. The Court of Appeals reversed the judgment awarding custody to Amy, and remanded “for the chancery court to conduct an Al-bright analysis that takes into consideration whether it would be in the child’s best interest for [Scott] to be awarded custody.” See J.S.W., 152 So.3d at 337, 342, 2013 WL 6231797, at **1, 6. The Court of Appeals determined that:

in this “very limited, unique situation,” the fact [Scott] stood in loco parentis by his fatherly actions towards the child does rebut the natural parent presumption. Thus, the chancellor erred by not considering [Scott] on equal footing with [Amy] and [T.J.] when determining which of the three should be awarded custody.

Id. at 337, 2013 WL 6231797, at *1 (quoting Smith v. Smith, 97 So.3d 43, 47 (Miss.2012)) (emphasis in original). On June 3 and June 10, 2014, the Court of Appeals’ denied the motions for rehearing filed by Amy and T.J.

ANALYSIS

I. Whether the Court of Appeals’ decision is contrary to existing law.

¶ 11. The Court of Appeals held that the chancery court “applied the wrong legal standard.” J.S.W., 152 So.3d at 339, 2013 WL 6231797, at *3. According to the Court of Appeals:

[t]he chancellor found that Scott stood in loco parentis to Victoria; that he had supported, cared, and treated her as his own child, even after he learned about her biological parentage; and that he had shared her custody and expenses after the divorce. This put Scott in a “very limited, unique situation[,]” where his supportive actions towards the child — versus the natural parent’s harmful actions-rebutted the natural — parent presumption.

Id. (quoting Smith, 97 So.3d at 47). Relying upon Griffith v. Pell, 881 So.2d 184 (Miss.2004), and J.P.M. v. T.D.M., 932 So.2d 760 (Miss.2006), the Court of Appeals found that “the doctrine of in loco parentis has been used to put the presumed father on equal footing with the natural parent.” J.S.W., 152 So.3d at 340, 2013 WL 6231797, at **4-5. According to the Court of Appeals, “[t]he only difference between this case and Pell and J.P.M. is that, in those cases, the natural father either disclaimed any rights to the child or could not be conclusively established.” Id. at 342, 2013 WL 6231797, at *5. By the Court of Appeals’ estimation, Scott “overc[a]me the natural-parent presumption,” and “should have been considered on equal footing with Amy and T.J. in the chancellor’s Albright analysis.” Id. at 342, 2013 WL 6231797, at *6.

¶ 12. Amy and T.J. assert that:

in a custody dispute between one standing in loco parentis and a natural parent, the parent is entitled to custody unless the natural parent presumption is rebutted. The court may not consider granting custody to a third party, including one standing in loco parentis[,] unless and until the third party rebuts this presumption.

According to Amy and T.J., the “three-way Albnght analysis” contemplated by the Court of Appeals should not be undertaken “until the natural parent presumption is overcome by a finding of unfitness.... ” They added that “[i]f this law is going to be changed, the change needs to be initiated by” this Court.

¶ 13. “A chancellor’s custody decision will be reversed only if it was manifestly wrong or clearly erroneous, or if the chancellor applied an erroneous legal standard.” Smith, 97 So.3d at 46. Scott’s argument, accepted by the Court of Appeals, is that in his role “as in loco paren-⅛[,] [he] did not have to rebut the natural parent presumption. He had just as much right to custody of [Victoria] as did [T.J.] and [Amy].” In other words, as stated by the Court of Appeals, the chancery court “applied the wrong legal standard.” J.S.W., 152 So.3d at 339, 2013 WL 6231797, at *3.

¶ 14. Recently, in Davis v. Vaughn, 126 So.3d 33 (Miss.2013), which involved a custody dispute between a natural father and maternal grandmother, this Court affirmed that a third party’s in loco parentis status, standing alone, could not rebut the natural-parent presumption. According to this Court, “[i ]n loco paren-tis status carries with it the same duties and liabilities that belong to a natural parent, including a right to custody of the child ‘as against third persons' Davis, 126 So.3d at 37 (quoting Farve v. Medders, 241 Miss. 75, 128 So.2d 877, 879 (1961)) (emphasis in original). But, in custody disputes involving natural parents, the natural-parent presumption may only “be rebutted by clear and convincing evidence that ‘(1) the parent has abandoned the child; (2) the parent has deserted the child; (3) the parent’s conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to have custody.’ ” Davis, 126 So.3d at 37 (quoting Smith, 97 So.3d at 46). So:

in a custody dispute between one standing in loco parentis and a natural parent, the parent is entitled to custody unless the natural-parent presumption is rebutted. The court may not consider granting custody to a third party, including one standing in loco parentis, unless and until the third party rebuts this presumption. In other words, “[t]he doctrine of in loco parentis does not, by itself, overcome the natural-parent presumption,” although it may be a factor in determining whether the presumption has been rebutted.

Davis, 126 So.3d at 37 (quoting Smith, 97 So.3d at 46-47) (internal citations omitted) (emphasis added). This Court added that “[i]f the natural-parent presumption is successfully rebutted, the court may then proceed to determine whether an award of custody to the challenging party will serve the child’s best interests.” Davis, 126 So.3d at 37 (citing Smith, 97 So.3d.at 46).

¶ 15. Smith involved a custody dispute between a child’s grandparents and his natural parents. Smith, 97 So.3d at 44. According to this Court, “a natural parent loses the legal presumption that custody should be with him or her only if there has been a clear showing of abandonment, desertion, or unfitness on the part of the parent. The Albright factors are not considered unless such showing has first been made.” Id. (internal citations omitted) (emphasis added). In so holding, this Court emphasized that “[t]he doctrine of in loco parentis does not, by itself, overcome the natural-parent presumption.” Id. at 46-47. And this Court specifically referenced the decisions relied upon by the Court of Appeals in the case sub judice (i.e., Pell and J.P.M.). See id. at 47. According to this Court:

[■i ]n loco parentis can — in very limited, unique situations — sometimes be used to help rebut the natural-parent presumption. In both Pell and J.P.M., a husband learned during the pendency of divorce proceedings that he was not the biological father of a child born of, or just prior to, the marriage. In those cases, we reasoned that the natural-parent presumption had been overcome based on several facts: (1) the husbands stood in loco parentis; (2) they had supported, cared for, and treated the child as their own; (3) they could have been required to pay child support (“with the burden should go the benefit”); and (4) the biological fathers were not really in the picture: the one in Pell had disclaimed any interest in the child and had agreed to relinquish his parental rights, while the one in J.P.M. could not even be determined conclusively. Though in loco parentis was considered in Pell and J.P.M., those cases do not support — nor have we ever suggested— that in loco parentis alone can rebut the natural-parent presumption.

Id. (internal citations omitted) (emphasis added).

¶ 16. However, Smith also included the following footnote:

[i]n Pell, we reversed the chancellor’s termination of the husband’s parental rights and remanded the case for a best-interest Albright analysis; thus, we implicitly found that the natural-parent presumption had been overcome. And in J.P.M., we relied on Pell to affirm the chancellor’s decision to award physical custody to the husband. In doing so, we specifically rejected the wife’s argument that the chancellor had not had the authority to award custody to the husband without first finding that she had abandoned the .child, that her conduct was immoral as to be detrimental to the child, or that she was mentally or otherwise unfit for custody. []

Smith, 97 So.3d at 47 n. 3 (internal citations omitted) (emphasis added). And while this Court further noted Presiding Justice Cobb’s “well-taken” special concurrence in J.P.M., which critiqued the majority for “us[ing] in loco parentis to strip custody from [a natural parent][,]” it. added that Pell and J.P.M. “are limited to their unique facts[,]” and that “in loco parentis was just one of the factors that influenced the Court’s decision in those cases.” Smith, 97 So.3d at 47 n. 4 (quoting J.P.M., 932 So.2d at 781 (Cobb, P.J., specially concurring)).

¶ 17. This Court does not find, per the Court of Appeals’ conclusion, that the chancery court applied the wrong legal standard. J.S.W., 152 So.3d at 339, 2013 WL 6231797, at *3. This Court has stated that the grounds for rebutting the natural-parent presumption involve negative actions/dispositions of the natural parents in relation to the child (i.e., abandonment, desertion, immoral conduct detrimental to the child, unfitness). And the chancery court’s finding, which was not challenged on appeal by Scott or in the Court of Appeals decision, was that Amy and T.J. had not conducted themselves in such a manner as to rebut the natural-parent presumption. Yet, the Court of Appeals determined that Scott’s positive, “supportive[,]” “fatherly actions” operated to rebut the natural-parent presumption and placed him on “equal footing” with Amy and T.J. for purposes of an Albright analysis. J.S.W., 152 So.3d at 337-38, 339, 2013 WL 6231797, at **1, 3. This Court does not find that the Court of Appeals’ position is congruent with the present state of the law.

¶ 18. The facts of this case strike this Court as somewhat distinguishable from the “unique facts” in Pell and J.P.M. Unlike those cases, in which “the biological fathers were not really in the picture[,]” here, upon confirming that Victoria was his daughter, T.J. instituted custody proceedings. Also, the fact remains that, as early as March 2007, Scott was aware that he was not Victoria’s biological father, yet in the 2009 divorce proceedings, both he and Amy actively purported his paternity to the chancery court. Moreover, in Pell, the in loco parentis party had support from the biological father, who sought to wholly relinquish his parental rights and transfer them to the nonbiological father via adoption.

The parties to the paternity suit entered into an agreed order declaring Griffith the biological father, ordering child support, and stating that all other matters would be decided by the chancellor at a later date. Later, Sonny and Griffith [the in loco parentis party and the biological father] filed a motion for declaratory judgment, requesting that Sonny be declared the legal father of the child arguing ... not only that this declaration would be in the best interest of the child but that Sue Ann should be es-topped from denying Sonny’s paternity as well. Griffith agreed to relinquish all parental rights and allow Sonny to adopt the child. The chancellor denied their motion for declaratory judgment, set child support payments, and granted Griffith reasonable visitation.

Pell, 881 So.2d at 185. Unlike the biological father in Pell, in this action, the biological father not only sought custody, but did so to the exclusion of the in loco parentis party. For reasons unknown, the chancellor in Pell denied the natural and in loco parentis fathers’ requests for what was, essentially, an intended adoption. And it appears from Smith that this Court found the presumption rebutted by the exception created in Pell, based upon what the biological father wanted.

¶ 19. Under the present state of the law, in the absence of rebutting the natural-parent presumption via clear and convincing evidence of abandonment, desertion, immoral conduct detrimental to the child, and/or unfitness, “[t]he court may not consider granting custody to a third party, including one standing in loco parentis .... ” Davis, 126 So.3d at 37 (quoting Smith, 97 So.3d at 46-47).

¶ 20. We find the chancellor’s determination in this case to be correct, given the controlling law discussed above.

CONCLUSION

¶ 21. We find the chancellor applied the correct legal standard, and, on this basis, we reverse the Court of Appeals’ decision. Absent a finding that the natural parents had abandoned, deserted, or were unfit to rear their child, the chancellor properly conducted the requisite analysis for custody and thereby properly excluded the in loco parentis party from consideration. Accordingly, we reverse the Court of Appeals’ decision and reinstate and affirm the judgment of the Lamar County Chancery Court.

¶ 22. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE JUDGMENT OF THE LAMAR COUNTY CHANCERY COURT IS REINSTATED AND AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, KING AND COLEMAN, JJ., CONCUR.

      . This case previously was designated confidential in error, and after approval from all parties at oral argument before this Court, the matter is now no longer styled as such. In the Court of Appeals’ opinion below Amy was referred to as "Anne,” Scott was "Jake,” T.J. was "Tommie,” Victoria was "Vanessa,” and Brackston was “Brett.” See J.S.W. v. A.W.R. and T.J.S., 152 So.3d 336, 2013 WL 6231797.

      . See Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983) ("We reaffirm the rule that the polestar consideration in child custody cases is the best interest and welfare of the child. The age of the child is subordinated to that rule and is but one factor to be considered. Age should carry no greater weight than other factors to be considered, such as: health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent, and other factors relevant to the parent-child relationship.”)

        .J.S.W. v. A.W.R. and T.J.S., 152 So.3d 336, 337-38, 2013 WL 6231797, at *1 (Miss.Ct.App. Dec. 3, 2013).

      . As the chancery court noted, Scott “was present when [Victoria] was born, ... cut [Victoria's] umbilical cord, and ... even helped to name her."

      . The chancellor did not modify custody with respect to Brackston, which Amy and Scott share.

      . Maxwell, J., writing. Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Roberts and Fair, JJ., concur. James, J., concurs in part and dissents in part without separate written opinion. Carlton, J., not participating.

      . See id. at 34-35 (citing Smith, 97 So.3d at 43).

      . See also Leverock, 23 So.3d at 431; Sellers, 638 So.2d at 485 (quoting Moody v. Moody, 211 So.2d 842, 844 (Miss.1968)) ("it is the strong policy of the law of this State that a child shall remain in the custody of one of the parents unless there has been a clear showing that both are unfit”).

        .See also Leverock, 23 So.3d at 431 ("If the court finds one of these factors has been proven, then the presumption vanishes, and the court must go further to determine custody based on the best interests of the child through an on-the-record analysis of the Al-bright factors”).

      . J.P.M. indicated that the "legal father” since the child's birth, who had supported the child under the assumption that he was her natural father and had sustained a "strong father-daughter relationship^]” was her "father in fact[,]” with “legal rights and obligations” different from those of other third parties (e.g., aunts, grandparents). J.P.M., 932 So.2d at 768-70. It is unclear whether the rights afforded were truly custody rights, or whether they were mere visitation rights, but it appears the latter was intended, as this Court ultimately affirmed the chancery-court judgment in J.P.M. Additionally, the chancellor in the case sub judice interpreted J.P.M. as providing solely for visitation. See Griffith, 881 So.2d at 186, ("[MJerely because another man was determined to be the minor child’s biological father does not automatically negate the father-daughter relationship held by [the in loco parentis father] and the minor child.”)

      . See Davis, 126 So.3d at 37 (quoting Smith, 97 So.3d at 46).

      . See Davis, 126 So.3d at 34-35, 37 ("a third party’s in loco parentis status, standing alone, could not rebut the natural-parent presumption”; at most, in loco parentis "may be a factor in determining whether the presumption has been rebutted”); Smith, 97 So.3d at 47 ("[t]n loco parentis can — in very limited, unique situations — sometimes be used to help rebut the natural-parent presumption”; Pell and J.P.M. “do not support — nor have we ever suggested — that in loco parentis alone can rebut the natural-parent presumption”).

      .T.J. testified, "[Scott] can have visitation ... [w]hen he goes and picks up [Brackston], his son, he can visit with my daughter ... because I'm the father."


author: DICKINSON, Presiding Justice,

text:
    In the Matter of the ESTATE OF Charles William WHITE, Deceased: Anita White, Individually and as Executor of the Estate of Charles William White v. Charles Thomas WHITE.
    No. 2012-CT-01083-SCT.
    Supreme Court of Mississippi.
    Dec. 11, 2014.

      John Thomas Lamar, III, John Thomas Lamar, Jr., Senatobia, attorneys for appellant.
    Robert R. Morris, III, Batesville, Robert Ryan Revere, attorneys for appellee.
   ON WRIT OF CERTIORARI

DICKINSON, Presiding Justice,

for the Court:

¶ 1. A chancellor held that res judicata prevented an action to set aside certain deed transfers because the issue had been raised in a conservatorship that had been closed. But because the judgment dismissing the conservatorship was not a final judgment on the merits, we reverse.

FACTS AND PROCEDURAL HISTORY

¶ 2. Charles William White (“Bill”) and his son Charles Thomas White (“Tommy”), were partners in a business that owned and operated convenience stores. In 2000, during the course of .the partnership, Bill married Anita White. In 2005, Tommy bought his father’s share of the partnership for $42,600, but in dissolving the partnership, Bill and Tommy neglected to execute and file deeds transferring the partnership’s real property.

¶ 3. In early 2009, Bill’s health declined rapidly, and Anita and Tommy began to clash over Bill’s healthcare. Tommy wanted his father to receive life-sustaining treatment and Anita wanted her husband to die with dignity. During this time, Tommy realized that he and his father had failed to execute deeds transferring the partnership’s real-property assets. Tommy used a durable power of attorney his .father had given him years before to execute quit-claim deeds transferring the partnership property to himself.

¶ 4. Bill and Anita continued to clash over who had authority to make healthcare decisions for Bill, so Tommy filed a petition for a conservatorship for his father’s benefit and sought appointment as his father’s conservator. Anita filed a counterclaim that challenged Tommy’s fitness to serve as .his father’s conservator and sought to have Tommy return all assets he had transferred to himself using his father’s power of attorney. The chancellor agreed that a conservatorship was appropriate, but he appointed a third party as Bill’s conservator.

¶ 5. When Bill died in June 2009, the conservator filed a motion asking to be discharged from his duties and to be allowed to distribute the assets- of the con-servatorship to Bill’s estate. The parties agreed to an order discharging the conservator and to a distribution of funds held by the conservator to Bill’s estate. The order noted “that W.E. Davis is discharged as Conservator for C.T. White, and that formal accounting is waived,” and “this Con-servatorship is closed.” The chancellor’s order made no mention of Anita’s action to set aside the deed transfers.

¶ 6. In February 2010, Anita filed suit to set aside the quit-claim deeds and to redeem the real property Tommy had acquired using his father’s power of attorney. The parties filed competing motions for summary judgment. Tommy argued that the order discharging the conservator barred relitigation of the conveyances because Anita sought to have the conveyances set aside in the conservatorship. Anita argued that the transfers were not in Bill’s best interests and that the transfers should be set aside and the property returned to Bill’s estate. The chancellor held that Anita’s action was barred by res judicata, granted Tommy’s motion, and denied Anita’s cross-motion for summary judgment.

¶7. Anita appealed to the Court of Appeals, arguing that her action was not barred by res judicata and that the' chancellor had erred by denying her motion for summary judgment. The Court of Appeals affirmed the chancellor, finding that “all four identities of res judicata [were] present,” and that “the chancellor correctly held that the doctrine of res judicata preclude[d] Anita’s second lawsuit.” We granted Anita’s petition for a writ of cer-tiorari.

ANALYSIS

¶ 8. The issue before us is whether the doctrine of res judicata bars Anita’s suit to set aside the quit-claim deeds. If, as Anita argues, it does not, then the chancellor erred in granting Tommy’s motion for summary judgment.

¶ 9. We conduct a de novo review of a trial court’s grant of summary judgment. A civil defendant may raise res judicata in a motion for summary judgment where a plaintiffs suit centers around issues decided in a previous lawsuit. But for res judicata to apply, the defendant must show that the judgment rendered in the previous action was a final judgment on the merits.

¶ 10. A final judgment on the merits is “[a] judgment based on the evidence rather than on technical or procedural grounds.” While our prior cases have considered whether a judgment constituted'a “final judgment on the merits” on a ease-by-case-basis, a judgment generally will not be considered a “final judgment on the merits” when the first case was dismissed for a procedural defect or some other technical ground that prevented the court from reaching the merits of the case. If, in the previous ease, the court did render a final judgment on the merits, res judicata will apply if both cases share four common identities.

¶ 11. In granting Tommy’s motion for summary judgment, both the chancellor and Court of Appeals thoroughly analyzed the four common identities necessary for res judicata to apply, but both courts failed to analyze the threshold requirement of a final judgment. Absent a final judgment, the alignment of the four identities is irrelevant.

¶ 12. The chancellor’s order discharging the conservator did not address any of the contested issues. As our precedent shows, a judgment based on technicalities or procedural issues generally will not be considered a final judgment on the merits. In his order discharging the con-servatorship, the chancellor could have rendered a judgment on the contested claims between Tommy and Anita, but he did not.

¶ 13. The record indicates that the conservatorship was opened in early 2009 and closed when Bill died in June 2009. Far from a final judgment concerning the merits of the contested issues, the final judgment discharging the conservator was based solely on Bill’s death. The chancellor considered no other evidence when entering his order. Although Tommy correctly points out that Anita requested the court set aside the deed transfers in the conservatorship proceeding, the chancellor never addressed the issue.

CONCLUSION

¶ 14. Because there was no final judgment on the merits, we must reverse the judgment of the Court of Appeals and the chancellor’s judgment dismissing Anita’s claims and remand the case to the DeSoto County Chancery Court for further proceedings consistent with this opinion.

¶ 15. REVERSED AND REMANDED.

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

      . Estate of White v. White, No. 2012-CA-01083-COA, 152 So.3d 342, 348, 2014 WL 1190245, at *6 (Miss.Ct.App. March 25, 2014).

      . Conrod v. Holder, 825 So.2d 16, 18 (Miss.2002) (citing Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993)).

      . Little v. V & G Welding Supply, Inc., 704 So.2d 1336, 1337-38 (Miss.1997) (citing Estate of Anderson v. Deposit Guar. Nat’l Bank, 674 So.2d 1254, 1256 (Miss.1996)).

      . EMC Mortg. Corp. v. Carmichael, 17 So.3d 1087, 1090 (Miss.2009) (citing Anderson v. LaVere, 895 So.2d 828, 833 (Miss.2004)) (‘‘[T]he prior judgment must be a final judgment that was adjudicated on the merits.”).

      . Black’s Law Dictionary 920 (9th ed. 2009).

      . Harrison v. Chandler-Sampson Ins., Inc., 891 So.2d 224, 229 (Miss.2005) (quoting Costello v. United States, 365 U.S. 265, 285, 81 S.Ct. 534, 544, 5 L.Ed.2d 551 (1961)) ("If the first suit was dismissed for defect of pleadings, or parties, or a misconception of the form of proceeding, or the want of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit.").

      . Hill v. Carroll Cnty., 17 So.3d 1081, 1085 (Miss.2009). The four common identities are: "(1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person against whom the claim is made.” Hill, 17 So.3d at 1085 (citing Harrison v. Chandler-Sampson Ins., Inc., 891 So.2d 224, 232 (Miss.2005)).

      . EMC Mortg. Corp., 17 So.3d at 1090 (citing Anderson, 895 So.2d at 833).

      . See Miss.Code Ann. § 93-13-267 (Rev. 2013) ("A conservator may resign or be discharged in the same manner as a guardian of a minor and may also be discharged by the appointing court when it appears that the conservatorship is no longer necessary.”). When a person dies, he no longer needs a conservatorship. See Estate of Atkins v. Sartin, 422 So.2d 754, 757 (Miss.1982) (noting that a conservator could not withdraw funds belonging to a person subject to a conserva-torship after the person’s death because the conservatorship ceased upon the person's death).