source: Caselaw Access Project

author: CHANDLER, Justice, for the Court. DICKINSON,

license: Public Domain

text:
    In the Matter of the ESTATE OF Thelma M. McCULLOUGH, Deceased. Arlean Morant Leach, Daniel Lawrence Morant, Jr., Linda Ann Morant, Tommy Earl Morant, Carolyn Ann Morant Fairley, Johnny Earl Morant, James Morant, Jr., Jessica Morant and Kendrian Collins v. Geraldine YATES, Administratrix, Jim Hood and State of Mississippi.
    No. 2009-CA-00149-SCT.
    Supreme Court of Mississippi.
    Feb. 18, 2010.
    Rehearing Denied April 29, 2010.

      Arin Clark Adkins, Jackson, Nathan Lester Clark, III, Lester Clark, Jr., Lexington, attorneys for appellants.

      Office of the Attorney General by Shawn Stephen Shurden, Wilson Douglas Minor, Patricia Ann Catchings, attorneys for ap-pellees.
    Before GRAVES, P.J., DICKINSON and CHANDLER, JJ.
   CHANDLER, Justice, for the Court.

¶ 1. In this appeal, the appellants seek a determination that they are the heirs at law of Thelma Morant McCullough (McCullough), deceased, in order receive the assets of her estate through representation. At the time of McCullough’s death, she left no surviving spouse, children, or parent. While she was an only child born to James Jefferson Morant and Alice 0. Bush, McCullough had five half-siblings through the marriage of her father to Rosetta Johnson in 1937. Daniel Lawrence Morant was McCullough’s half-brother and the alleged father of the appellants Arlean Morant Leach, Daniel Lawrence Morant, Jr., Linda Ann Morant, Tommy Earl Mor-ant, Carolyn Ann Morant Fairley, and Johnny Earl Morant; and alleged grandfather of James Morant, Jr., Jessica Morant, and Kendrian Collins (herein after collectively “Leach”). Leach, her siblings, and her nieces and nephew are the alleged children and grandchildren of Daniel Lawrence Morant, the half-sibling of McCullough.

¶2. McCullough died intestate on October 19, 2003. On January 6, 2004, Geraldine Yates filed a petition to open an estate and a petition for letters of administration in the Chancery Court of the First Judicial District of Hinds County, Mississippi. The chancery court issued a decree for letters of administration appointing Yates as the adminis-tratrix of the estate of Thelma M. McCullough, deceased (the Estate). On February 3, 2004, Yates filed a petition for determination of heirs in the Chancery Court of the Fust Judicial District of Hinds County, Mississippi. On February 8, 2005, the chancery court filed a judgment determining heirs in estate. The chancellor determined a number of legal heirs and awarded them their respective shares of the Estate.

¶ 3. However, on January 18, 2006, pursuant to a petition to close the Estate, the chancery court, on its own motion, reconsidered its February 8, 2005, judgment. Accordingly, the chancery court reset a hearing to determine heirs for the Estate and requested that all parties be noticed of the proceeding. By order, on January 23, 2006, the chancery court, on its own motion, reopened the case. The chancery court also set aside the judgment determining heirs and set a date to conduct a hearing to determine heirs of the Estate.

¶ 4. The chancery court issued its order and opinion on the petition to determine heirs on November 28, 2006. The order denied the petition for determination of heirs at law and determined that Leach was time-barred from inheriting through Daniel Lawrence Morant pursuant to Mississippi Code Section 91-1-15 and, therefore, she could not inherit from the Estate. See Miss.Code Ann. § 91-1-15 (Rev. 2004). Following the chancery court’s order, Leach filed a petition requesting reconsideration of the prior order and, alternatively, contested the constitutionality of Mississippi Code Section 91-1-15. Leach later filed an amended petition requesting reconsideration of the prior order, determination and adjudication of heirship in petitioners, or alternatively, contesting the constitutionality of statute. Because Leach challenged the constitutionality of Section 91-1-15, the Attorney General filed a response to Leach’s amended petition.

¶ 5. After this series of events and a number of hearings, the chancery court issued a final judgment and opinion of the court. In its final judgment, the chancery court determined that Leach had failed to meet her burden of proof that there was sufficient evidence to adjudicate Daniel Morant, Sr., as the putative natural father of Leach and her siblings. Pursuant to Mississippi Code Section 91-1-15, an illegitimate child may inherit from his or her natural parent provided certain statutory requirements are met. See Miss.Code Ann. § 91-1-15. The chancery court determined that Leach had failed to prove by any genetic or scientific evidence that Daniel Morant, Sr., was the natural father and that she was time-barred for failure to establish paternity within the time requirements prescribed by Section 91-1-15. Therefore, the chancery court determined that Leach had failed to prove that she and her siblings were the heirs at law of McCullough. The chancery court also determined Leach had failed to prove her constitutional challenge to the validity of Mississippi Code Section 91-1-15 beyond a reasonable doubt. From this January 8, 2008, final judgment and opinion of the court, Leach appeals to this Court. Finding no error, we affirm the chancellor’s decision.

FACTS

¶ 6. Thelma Morant McCullough was born November 28, 1911. She died on October 19, 2003, in Hinds County, Mississippi. She married Benjamin McCullough, and they had no children. Benjamin predeceased McCullough.

¶ 7. McCullough was the only child of James Jefferson Morant and Alice O. Bush. However, her father, James Jefferson Morant, married Rosetta Johnson Morant in 1937. James Jefferson Morant and Rosetta had five children: Daniel Lawrence Morant; Arlena Morant Shack; James Jefferson Morant, Jr.; David Richard Morant; and Asbury Benjamin Mor-ant. McCullough’s parents, James Jefferson Morant and Alice O. Bush, died in 1948 and 1974, respectively.

¶ 8. Although the record is somewhat unclear, it appears four of McCullough’s half-blood siblings died, leaving no children. James Jefferson Morant died on January 8, 1961; Arlena Morant Shack died in 1966; Asbury Benjamin Morant died sometime in 1985; and David Richard Morant died on February 2, 1991. These siblings predeceased McCullough and had no surviving children.

¶ 9. The chancery court incorrectly found that two of McCullough’s half-blood siblings had left surviving heirs. Daniel Lawrence Morant died on January 27, 1978, and left seven surviving children: Daniel Morant, Jr; Arlean Morant Leach; Linda Morant; Tommy Morant; Carolyn Morant Fairley; Johnny Morant; and James Morant. James Morant, alleged son of Daniel Lawrence, preceded McCullough in death and left three surviving children: James Morant, Jr.; Jessica Mor-ant Lender; and Kendrian Collins. No adjudication of paternity was ever made with regard to the estate of Daniel Lawrence Morant by his alleged illegitimate children after his death in 1978. In fact, no estate was opened after Daniel Lawrence Morant died, because he allegedly had nothing of value at the time of his death.

¶ 10. On January 6, 2004, Geraldine Yates filed a petition to open the estate and for a letter of administration for the estate of Thelma McCullough, deceased. On February 3, 2004, Yates filed the petition to determine heirs. The chancery court held that adjudication of the paternity of the illegitimate children of Daniel Lawrence Morant was not done within the statutory limits of Mississippi Code Section 91-1-15(3), and for that reason, the claim to the estate of McCullough was barred. Leach now appeals from that decision.

DISCUSSION

¶11. In Dr. KB. v. J.G., 9 So.3d 1124, 1127 (Miss.2009), this Court set out the standard of review for chancery matters, stating that a chancellor’s finding of fact will not be overruled by the appellate court when it is supported by substantial evidence, unless the chancellor applied an erroneous legal standard or there was manifest error. Dr. KB., 9 So.3d at 1127 (citing Grafe v. Olds, 556 So.2d 690, 692 (Miss.1990)). See also Mann v. Buford, 853 So.2d 1217, 1219 (Miss.2003).

I. Mississippi Code Section 91-1-15

¶ 12. Leach argues that the chancery court erred by finding that her claim to be adjudicated an heir was time-barred pursuant to Section 91-1-15. Miss.Code Ann. § 91-1-15 (Rev.2004). Leach contends that her claim accrued at the time of her putative aunt’s, McCullough’s, death in 2003 and not at the time of her putative father’s, Daniel Lawrence Morant’s, death in 1978. The chancery court determined that Leach had failed to prove by clear and convincing evidence that she and her siblings were the natural children of Daniel Lawrence Morant, therefore, she was unable to inherit from McCullough, Daniel Lawrence Morant’s half-sibling, through representation.

¶ 13. Half-blood siblings may inherit under certain statutory restrictions. See Miss.Code Ann. § 91-1-5 (Rev.2004). Section 91-1-5 states “[tjhere shall not be, in any case, a distinction between the kindred of the whole and half-blood, except that the kindred of the whole-blood, in equal degree, shall be preferred to the kindred of the half-blood in the same degree.” Id. Mississippi law provides for inheritance by collaterals, such as children of half-blood siblings, by representation through the blood relationship of a parent. See Miss.Code Ann. § 91-1-3 (Rev.2004). Section 91-1-3 states:

When any person shall die seized of any estate of inheritance in lands, tenements, and hereditaments not devised, the same shall descend to his or her children, and their descendants, in equal parts, the descendants of the deceased child or grandchild to take the share of the deceased parent in equal parts among them. When there shall not be a child or children of the intestate nor descendants of such children, then to the brothers and sisters and father and mother of the intestate and the descendants of such brothers and sisters in equal parts, the descendants of a sister or brother of the intestate to have in equal parts among them their deceased parent’s share. If there shall not be a child or children of the intestate, or descendants of such children, or brothers or sisters, or descendants of them, or father or mother, then such estate shall descend, in equal parts, to the grandparents and uncles and aunts, if any there be; otherwise, such estate shall descend in equal parts to the next of kin of the intestate in equal degree, computing by the rules of the civil law. There shall not be any representation among collaterals, except among the descendants of the brothers and sisters of the intestate.

Miss.Code Ann. § 91-1-3 (Rev.2004) (emphasis added).

¶ 14. In 1981, Mississippi amended its descent and distribution statute with regard to the inheritance rights of illegiti-mates. Mississippi Code Section 91-1-15 states:

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

Miss.Code Ann. § 91-1-15 (Rev.2004) (emphasis added).

¶ 15. The law requires that an adjudication of paternity be made within one year after the death of the intestate or within ninety days of publication of notice to creditors. Miss.Code Ann. § 91-1-15. However, in response to the United States Supreme Court decision in Trimble v. Gordon, the Mississippi Legislature enacted an amendment to Section 91-1-15 to allow easier access by illegitimates to make claims against an intestate. The amendment included a provision for those deaths occurring prior to its adoption and made an exception for establishing paternity for intestates who died prior to 1981. The statute provides:

A remedy is hereby created in favor of all illegitimates having any claim existing prior to July 1, 1981, concerning the estate of an intestate whose death occurred prior to such date by or on behalf of an illegitimate or an alleged illegitimate child to inherit from or through its natural father and any claim by a natural father to inherit from or through an illegitimate child shall be brought within three (3) years from and after July 1, 1981, and such time period shall run notwithstanding the minority of a child.

Miss.Code Ann. § 91 — 1—15(3)(d)(ii) (Rev. 2004).

¶ 16. In order for Leach and her siblings to inherit from McCullough, their putative aunt, through representation, they first had to establish paternity through their putative father, Daniel Lawrence Morant. See Miss.Code Ann. §§ 91-1-3 and 91-1-5 (Rev.2004). Daniel Lawrence Morant died in 1978, and Leach did not try to establish paternity until 2003, after the death of McCullough.

¶ 17. Leach argues that this Court should find the death of McCullough, not Daniel Lawrence Morant, should determine the date from which adjudication of paternity should begin to run. She relies on three cases to support her argument. While the cases will be discussed below, all the cases cited by Leach are dated prior to the three-year deadline set July 1, 1984, for adjudicating deaths prior to 1981. In addition, paternity was established in all the eases within the July 1, 1984, deadline.

¶ 18. In Miller v. Watson, 467 So.2d 672 (Miss.1985), Watson sought to be determined the sole heir at law of her mother, Eunie Miller. Miller, 467 So.2d at 673. Miller claimed to be the illegitimate son of Watson’s deceased brother, J.D. Miller, and sought a half interest in the estate of Watson’s mother, Miller’s alleged grandmother. Id. Although Miller had not filed for an adjudication of heirship after the death of his father and was seeking to be declared an heir of his grandmother, his filing fell within the three years prescribed by the 1981 amendment. Id. at 675.

¶ 19. However, both sides stipulated that Miller was indeed the illegitimate son of J.D. Miller and the grandson of the decedent, Eunie Miller. Id. This Court determined that Miller’s answer included a cross-petition that sufficiently raised an allegation that he was the illegitimate son of J.D. Miller, which also gave him an interest in his grandmother’s estate. Id. Further, the action in Miller was brought prior to the 1984 deadline. This Court held that the stipulations that (1) Miller was the illegitimate son of J.D. Miller and (2) Miller and Watson were the only two interested parties in the estate, were sufficient to adjudicate Miller as an heir of Eunie Miller’s estate. Id. In effect, this Court held that Miller’s cross-petition and the stipulations were sufficient to prove paternity. Id.

¶ 20. Leach also relied on the pre-1984 case Matter of Estate of Kimble, 447 So.2d 1278 (Miss.1984). In Kimble, a granddaughter sought to assert an interest in the estate of Earl B. Kimble, her alleged grandfather, via her deceased mother. Id. at 1278. Larsen’s deceased mother was the alleged illegitimate daughter of Earl B. Kimble. Id. As stated in Kimble:

Any claim existing prior to July 1, 1981, concerning the estate of an intestate whose death occurred prior to such date by or on behalf of an illegitimate or an alleged illegitimate child to inherit from or through its natural father and any claim by a natural father to inherit from or through an illegitimate child shall be brought within three (3) years from and after July 1, 1981, and such time period shall run notwithstanding the minority of a child.

Id. at 1280. It is noteworthy that Larsen first sought to prove paternity and then sought to assert a claim against Kimble’s estate. Id. at 1278. Indeed, this Court determined that Larsen “had a remedy as of July 1, 1981, contingent upon her establishing that Earl B. Kimble was the father of her deceased illegitimate mother.” Id. at 1282 (emphasis added). In other words, Larsen, as the putative granddaughter, had an interest in Kimble’s estate only through representation.

¶21. Leach also cites the pre-1984 case, Estate of Kidd v. Kidd, 435 So.2d 632 (Miss.1983), in which Emma Gunn Web-ber, the putative daughter of Mack Kidd, petitioned to determine heirship. Estate of Kidd, 435 So.2d at 633. This Court determined that Webber had an heirship claim and not a paternity action. Id. at 634. Prior to Trimble, Webber had no cause of action under Mississippi law. Id. This Court held that “[a] cause of action accrues only when it comes into existence as an enforceable claim; that is, when the right to sue becomes vested.” Id. at 635. Therefore, Webber’s cause of action did not accrue until the death of her putative father in 1978. Id. This Court held that the cause was for a petition for heirship which accrued at the time of the death of the intestate, Mack Kidd. Id. The Court also held that Mack Kidd’s death in 1978 subjected the case to the Trimble decision. Id. at 636.

¶ 22. More recently, this Court, in Mann v. Buford, 853 So.2d 1217, 1220 (Miss.2003), held that an illegitimate son’s heirship claim was barred by the time limits established in Section 91-1-15. In Mann, the alleged illegitimate son of William Henry Mann, who died in September 1981, waited until the death of Mann’s widow, Gertrude Mann, before filing a petition to determine heirship. Id at 1220. His claim was not filed until January 31, 2000, more than eighteen years after the death of his putative father. Id. This Court found that the son’s claim was barred, as it should have been filed within the time limits set forth by Section 91-1-15. Id.

¶ 23. The Mississippi Court of Appeals decided a somewhat similar case in In re Estate of Davidson, 794 So.2d 261 (Miss. Ct.App.2001). Pringle claimed to be the illegitimate daughter of W.H. Davidson, who died intestate in September 1975. Id. at 263. She filed a petition to determine heir at law in 1998, after the death of W.H. Davidson’s wife, Della Davidson. Id. Prior to this action, Pringle had never asserted her claim as Davidson’s daughter. Id. Pringle did not attempt to bring her claim until the death of Della Davidson, the wife of W.H. Davidson, who died in 1997. Id.

¶ 24. The Court of Appeals stated:
It is true that illegitimate children do have the right to inherit from their natural fathers. Holloway v. Jones, 492 So.2d 573, 574 (Miss.1986); Larsen, 447 So.2d at 1283; Trimble v. Gordon, 430 U.S. 762, 776, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). Nonetheless, the illegitimate child must prove paternity by clear and convincing evidence. Miss.Code Ann. § 91 — 1—15(3)(c) (Rev.1994); Gusta, 540 So.2d at 33; Larsen, 447 So.2d at 1283; Crosby, 195 So.2d at 71; Hulitt, 220 Miss, at 832, 72 So.2d at 206. Further, the child must make his claim to the estate of his father within one year from the time of his father’s death. Miss. Code Ann. § 91-1-15 (Rev.1991). However, Pringle’s situation would fit into the amended section of the statute which reads:
A remedy is hereby created in favor of all illegitimates having any claim existing prior to July 1,1981, concerning the estate of an intestate whose death occurred prior to such date by or on behalf of an illegitimate or an alleged illegitimate child to inherit from or through its natural father.... [The claim] shall be brought within three years from and after July 1, 1981, and such time period shall run notwithstanding the minority of a child.
Id. Clearly, Pringle did not bring her claim in the statutorily prescribed time limit and therefore is barred from now bringing this claim over fourteen years late.

In re Estate of Davidson, 794 So.2d at 266 (emphasis added). The Court of Appeals held that Pringle had to have proven, by clear and convincing evidence, her heirship between the time of W.H. Davidson’s death in 1975 and July 1, 1984. Id. The Court of Appeals barred Pringle’s claim for failure to bring suit within the statutory time limit and for bringing the claim more than fourteen years late. Id.

¶ 25. Leach contends that she had no claim until the death of McCullough, as no one can be an heir while that person is still living. Kimble, 447 So.2d at 1282. However, Leach and her siblings had a claim in the estate of their putative father, who died in 1978. Leach and her siblings did not establish paternity after their putative father’s death, instead waiting until after McCullough’s death in 2008 to establish paternity. Because Daniel Lawrence Morant died in 1978, after the Trimble decision and the amendment of Section 91-1-15 by the Legislature, Leach and her siblings had three years from July 1, 1981, or until July 1, 1984, to seek the adjudication of paternity as the natural children of Daniel Lawrence Morant. Any claims to Daniel Lawrence Morant’s estate should have been made prior to July 1,1984. An estate was not opened after Daniel Lawrence Morant’s death. It is through their putative father that Leach and her siblings are seeking to assert a claim, through his estate, which they failed to do during the properly allotted time. Instead, Leach waited more than twenty-five years before attempting to adjudicate paternity. As such, Leach’s claim is twenty-five years past-due and is therefore barred by the statute of limitations set forth in Mississippi Code Section 91 — 1—15(3)(c). Accordingly, the chancery court did not err in denying Leach’s petition to determine heirship.

II. Constitutionality

¶ 26. Leach argues that Section 91-1-15 is unconstitutional under the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment of the United States Constitution, and she is deprived of a property interest. Leach made general arguments concerning violations of the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment of the United States Constitution in her petition and amended petition requesting reconsideration of the prior order, determination and adjudication of heirship in petitioners, or alternatively, contesting the constitutionality of statute, and at the September 21, 2007, hearing on the petition. At the hearing, Leach argued more specifically concerning the alleged violation of the Equal Protection Clause. However, Leach did not make a definitive argument concerning the Due Process Clause in terms of substantive and procedural due process until her reply brief on appellate review.

¶ 27. When this Court considers the constitutionality of a statute, the challenging party is faced with a strong presumption of constitutionality and must prove beyond a reasonable doubt that the statute violates the Constitution. Hemba v. Miss. Dep’t of Corrections, 998 So.2d 1003, 1005 (Miss.2009); Univ. of Miss. Med. Ctr. v. Robinson, 876 So.2d 337, 339-340 (Miss.2004); Richmond v. City of Corinth, 816 So.2d 373, 375 (Miss.2002). Any doubt is resolved in favor of upholding the validity of a statute. Robinson, 876 So.2d at 339-340. “If possible, courts should construe statutes so as to render them constitutional rather than unconstitutional if the statute under attack does not clearly and apparently conflict with organic law after first resolving all doubts in favor of validity.” Richmond, 816 So.2d at 375 (quoting Jones v. State, 710 So.2d 870, 877 (Miss.1998)).

A. Equal Protection Clause

¶ 28. Leach argues that Section 91 — 1—15(3)(c) controls because her claim accrued at the death of her putative aunt and not that of her putative father. In the event that this Court does not agree, Leach argues that the Court must consider whether Section 91 — 1—15(3)(d)(ii), which provides for the establishment of paternity of illegitimates who died prior to 1981, is constitutional. In other words, Leach argues that, but for her and her siblings’ status as illegitimates, they would be entitled to inherit from McCullough.

¶ 29. This Court already has addressed the issue of whether Section 91-1-15 violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. See Kimble, 447 So.2d at 1282-83. In Kimble, this Court found no violation of the Equal Protection Clause. Id. at 1283. This Court based its holding, in part, on Trimble and the subsequent United States Supreme Court case Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978).

¶ 30. As previously noted, in Trimble, the United States Supreme Court held an Illinois law that did not allow illegitimate children to inherit from their father was unconstitutional. Trimble, 430 U.S. at 776, 97 S.Ct. 1459. In its analysis, the United States Supreme Court set the standard of review as being “at a minimum, that a statutory classification bear some rational relationship to a legitimate state purpose.” Id. at 766-67, 97 S.Ct. 1459 (quoting Weber v. Aetna Cas. & Surety Co., 406 U.S. 164, 172, 92 S.Ct. 1400, 1405, 31 L.Ed.2d 768 (1972)). The Court rejected a previous argument to apply a “strict scrutiny” standard. Id. at 767, 97 S.Ct. 1459. See Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976). The Supreme Court held that the law denied ille-gitimates Equal Protection under the Fourteenth Amendment. Id. at 776, 97 S.Ct. 1459. In coming to its decision, the Supreme Court analyzed the State’s proposed interests of (1) promoting legitimate family relationships; and (2) having a procedure for property disposition. Id. at 768-770, 97 S.Ct. 1459.

¶ 31. In regard to the first interest, the Trimble Court reiterated that the Supreme Court previously had rejected any argument that “a State may attempt to influence the actions of men and women by imposing sanctions on the children born of their illegitimate relationships.” Trimble, 430 U.S. at 769, 97 S.Ct. 1459. On the first interest, the Trimble Court stated:

The status of illegitimacy has expressed through the ages society’s condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual as well as an unjust way of deterring the parent.

Trimble, 430 U.S. at 770, 97 S.Ct. at 1465 (citing Weber v. Aetna Cas. & Surety Co., 406 U.S. 164, 175, 92 S.Ct. 1400, 1406, 31 L.Ed.2d 768 (1972)). The Supreme Court also stated “[t]he parents have the ability to conform their conduct to societal norms, but their illegitimate children can affect neither their parents’ conduct nor their own status.” Id.

¶ 32. In regard to the second interest, the Trimble Court acknowledged that the issue of proof of paternity was more problematic than that of determining one’s mother. Id. at 770-71, 97 S.Ct. 1459. The Trimble Court stated:

The more serious problems of proving paternity might justify a more demanding standard for illegitimate children claiming under their fathers’ estates than that required either for illegitimate children claiming under their mothers’ estates or for legitimate children generally. We think, however, that the Illinois Supreme Court gave inadequate consideration to the relation between § 12 and the State’s proper objective of assuring accuracy and efficiency in the disposition of property at death. The court failed to consider the possibility of a middle ground between the extremes of complete exclusion and case-by-case determination of paternity. For at least some significant categories of illegitimate children of intestate men, inheritance rights can be recognized without jeopardizing the orderly settlement of estates or the dependability of titles to property passing under intestacy laws. Because it excludes those categories of illegitimate children unnecessarily, § 12 is constitutionally flawed.

430 U.S. at 770-771, 97 S.Ct. at 1465. The Court determined that the effect of the statute impacted far beyond its purpose and that “[difficulties of proving paternity in some situations do not justify the total statutory disinheritance of illegitimate children whose fathers die intestate.” Id. at 772-73, 97 S.Ct. 1459.

¶ 33. Subsequent to Trimble, the United States Supreme Court decided Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978). In Lalli, the Supreme Court upheld a far harsher New York law which required that adjudication of paternity be established before the death of the father. Id. at 275, 99 S.Ct. 518. The Supreme Court distinguished Trimble from Lalli’s position because, in Trimble, a judicial declaration of paternity did not suffice for an illegitimate to inherit from his or her father; rather the father had to acknowledge the child and marry the mother in order for the child to inherit. Lalli, 439 U.S. at 266-67, 99 S.Ct. 518. The New York statute at issue in Lalli, Section 4-1.2, required only proof of paternity before the putative father’s death and did not require a means to legitimize the child. Id. at 267-68, 99 S.Ct. 518. The purpose of the New York statute was different from that of the Illinois statute in Trimble. Id. at 268, 99 S.Ct. 518. The Lalli Court stated:

The primary state goal underlying the challenged aspects of § 4-1.2 is to provide for the just and orderly disposition of property at death. We long have recognized that this is an area with which the States have an interest of considerable magnitude.

Id. at 268, 99 S.Ct. 518 (citations omitted). In Lalli, the Supreme Court also stated the State’s “interest is directly implicated in paternal inheritance by illegitimate children because of the peculiar problems of proof that are involved.” Id. “Thus, a number of problems arise that counsel against treating illegitimate children identically to all other heirs of an intestate father.” Id at 269, 99 S.Ct. 518. The Supreme Court determined that the imposition of the New York statute requiring proof of paternity by illegitimates prior to the death of the putative father was substantially related to an important state interest that it was intended to promote. Id. at 275, 99 S.Ct. 518. As a result, the Supreme Court found no violation of the Equal Protection Clause. Id.

¶ 34. This Court decided Kimble in 1984, well after the United States Supreme Court’s decisions in Trimble and Lalli and after the Mississippi Legislature passed the 1981 and 1983 amendments to Section 91-1-15. This Court found no violation of the Equal Protection Clause and stated:

The 1981 amendment and the 1983 clarification thereof clearly eliminated the “unsurmountable” statutory barrier condemned in Trimble v. Gordon, supra, while at the same time shortened the limitation period within which to bring a claim and increased the standard of proof to sustain such a claim. In doing so we believe that the amendment in 1981 and clarification amendment in 1983 will effectively afford the illegiti-mates equal protection of the law, while at the same time accomplish the legitimate state interest of (1) avoiding the litigation of stale or fraudulent claims, (2) the fair and just disposal of an intestate decedent’s property; and (3) the repose of titles to real property. Estate of Kidd v. Kidd, supra. Justice will thereby prevail wherein all may take comfort, legitimates and illegitimates alike, that they will be treated, equally under the laws of the State of Mississippi.

Kimble, 447 So.2d at 1283 (emphasis added).

¶ 35. Section 91-1-15 does require certain criteria, including an option to prove paternity of any illegitimate children within a restricted period after the putative father’s death. Miss.Code Ann. § 91-1-15 (Rev.2004). These requirements place a higher burden on illegitimate children to inherit from their fathers than legitimate children. However, as the Supreme Court of the United States and this Court both previously have held, the State has a legitimate interest in protecting the family and the estates of the deceased by requiring adjudication of paternity within a reasonable timeframe. Kimble, 447 So.2d at 1283. The purpose of Section 91-1-15 in the context of intestate succession is to (1) avoid litigation of stale or fraudulent claims; (2) cause fair and just disposal of property; and (3) facilitate repose of title to real property. Id. Further, the imposition placed on illegitimates in Mississippi is much less severe than the New York statute in Lalli, because it provides for the establishment of paternity after the putative father’s death for a limited period. Accordingly, Leach cannot prove that Section 91-1-15 is unconstitutional under the Equal Protection Clause and, thus, the chancery court’s ruling is affirmed.

B. Due Process Clause

¶ 36. In Caracci v. International Paper Co., 699 So.2d 546, 558 (Miss.1997), this Court refused to consider an issue where a party gave a general statement of its position on an issue and failed to brief and give authority for the argument. Here, Leach generally stated in her petition and amended petition for adjudication of heir-ship that Section 91-1-15 violated the Due Process Clause. However, Leach argued more in terms of the Equal Protection Clause at the hearings. It is not until her reply brief that Leach alleges and provides authority for a violation of both substantive and procedural due process. Nonetheless, we will address both the substantive and procedural due process issues.

1. Substantive Due Process.

¶ 37. Substantive due process protects an individual’s life, liberty, or property interests against “certain government actions regardless of the fairness of the procedures used to implement them.” Harris v. Miss. Valley State Univ., 873 So.2d 970, 984 (Miss.2004) quoting Hall v. Bd. of Trustees of State Inst. of Higher Learning, 712 So.2d 312, 319 (Miss.1998); Univ. of Miss. Med. Ctr. v. Hughes, 765 So.2d 528, 536 (Miss.2000). “The test for a violation of substantive due process is ‘whether the governmental action is rationally related to a legitimate governmental purpose.’ ” Hughes, 765 So.2d at 540 (quoting Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 124-25, 98 S.Ct. 2207, 2213, 57 L.Ed.2d 91 (1978)).

¶ 38. Again, this Court has held that Section 91-1-15 serves a legitimate state interest. Kimble, 447 So.2d at 1283. In Kimble, this Court held that the State had a “legitimate state interest of (1) avoiding the litigation of stale or fraudulent claims, (2) the fair and just disposal of an intestate decedent’s property; and (3) the repose of titles to real property” by implementing Section 91-1-15. Id. As a legitimate state interest exists in the adjudication of paternity, Section 91-1-15 can not be said to violate substantive due process.

2. Procedural Due Process.

¶ 39. Procedural due process provides for notice and an opportunity to be heard. Harris, 873 So.2d at 986 (citations omitted). Leach argues in her reply brief that she was denied procedural due process as she was not given a hearing to put forth evidence that she and her siblings were the rightful heirs of McCullough, through Daniel Lawrence Morant by representation. She argues here, not so much that Section 91-1-15 is unconstitutional as that it was misapplied, and as such, she was deprived of due process. Leach claims that the chancery court misapplied Section 91-1-15 by barring her from recovery under subsection (3)(d)(ii) pertaining to the time period to establish paternity when the statute, in general, and subsection (3)(c), in particular, do not define the terms “intestate” or “natural father”; and by ignoring Kimble and Miller.

¶ 40. Leach can point to no procedural due process violations. She had notice and an opportunity to be heard on her heirship claim. In order to inherit from her putative aunt, she had to establish paternity. She had notice of her putative father’s death, and paternity was not established after his death within the required time period. Leach’s only avenue of inheritance is through representation, but it requires establishment of paternity.

¶ 41. There was no need for a hearing to put forth evidence to show that Daniel Lawrence Morant was indeed Leach’s father. She should have requested such a hearing more than twenty years ago. A claim for deprivation of procedural due process fails, and the chancery court’s ruling is affirmed.

CONCLUSION

¶ 42. Leach and her siblings failed properly to adjudicate themselves as the illegitimate children of Daniel Lawrence Morant in the time prescribed by Section 91-1-15. As such, the petition to be determined heirs of McCullough, the deceased, is barred by the time provision of Section 91-1-15. Miss.Code Ann. § 91-1-15 (Rev. 2004).

¶ 43. Additionally, Section 91-1-15 does not violate the Equal Protection Clause or the Due Process Clause of the United States Constitution. This Court previously determined that Section 91-1-15 did not violate the Equal Protection Clause. Kim-ble, 447 So.2d at 1283. Further, Leach and her siblings have not been deprived of either their procedural or substantive due process rights. Mississippi has a legitimate state interest in the legislation propounded in Section 91-1-15, therefore, the statute does not violate any substantive due process rights. In addition, Leach had notice of her putative father’s death and would have been afforded a hearing for adjudication of paternity, however, she failed to make such a petition within the statutory limits of Section 91-1-15. The decision of the Chancery Court of the First Judicial District of Hinds County is affirmed.

¶ 44. AFFIRMED.

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

DICKINSON,

Justice, concurring in result only.

¶ 45. Because I cannot agree with the majority’s construction of Mississippi Code Section 91-1-15, I respectfully concur in result only. Our analysis of this matter necessarily must begin and end with the plain language of the statute. See Miss. Code Ann. § 91-1-15 (Rev.2004). Section 91-1-15(3) provides that “[a]n illegitimate shall inherit from and through the illegitimate’s natural father and his kindred ... if ... [tjhere has been an adjudication of paternity after the death of the intestate. ... However, no such claim ... shall be recognized unless the action seeking an adjudication of paternity is filed within one (1) year after the death of the intestate .... ” Miss.Code Ann. § 91-1-15(3) (Rev.2004) (emphasis added). I cannot agree with the majority’s reading of “the intestate” to mean “natural father.” (Maj. Op. at ¶ 16). The plain language of the statute states that an illegitimate child shall inherit from his natural father’s kindred as long as there is an adjudication of paternity within one year of the death of the intestate. In the case sub judice, “the intestate” from which Leach and her siblings seek to inherit is Thelma McCullough. Leach attempted to establish paternity within a year of McCullough’s death. Therefore, Leach’s action to adjudicate paternity so as to inherit from Thelma McCullough was timely brought. However, because I cannot say the chancellor committed manifest error in finding Leach and her siblings provided insufficient evidence to support an adjudication of paternity, the judgment of the trial court should be affirmed.

LAMAR AND KITCHENS, JJ., JOIN THIS OPINION.

      . James Morant, Jr.; Jessica Morant; and Kendrian Collins are the children of James Morant, an alleged, deceased son of Daniel Lawrence Morant.

      . The chancery court noted that three of McCullough's half-siblings predeceased her without any children, however, the record indicates that four of her half-siblings died without children: James Jefferson, David, As-bury, and Arlena.

      . The chancery court found that two of McCullough's half-siblings had surviving children. However, the record indicates that Daniel Lawrence Morant was the only half-sibling of McCullough to have any children. Daniel Lawrence Morant had seven children. One of Daniel Lawrence’s children was named James Morant. This son, James Mor-ant, as the record indicates, was deceased and had three children: James, Jr.; Jessica; and Kendrian.

      . Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). In Trimble, the United States Supreme Court addressed the constitutionality of a statute which permitted an illegitimate child to inherit by intestate succession only from his or her mother, not the father, pursuant to the Illinois Probate Act. Trimble, 430 U.S. at 763, 97 S.Ct. at 1461-62. The Trimble court held that the Illinois statute violated the Equal Protection Clause of the Fourteenth Amendment. Id. at 776, 97 S.Ct. 1459.

      . Miller's father had died prior to 1981, and he was claiming a half interest in the estate of his grandmother through his father.

      . Leach claims that there was nothing in the estate of their father upon which to make a claim after his death.

      . Under Mississippi law, when a person dies intestate, the distribution of the estate is determined by statute. As such, in the present situation, the estate of McCullough would pass to Daniel Lawrence Morant. As he preceded her in death, it would pass to his estate. No claim was made to his estate within the time limits.

      . Leach does not assert lack of notice as part of her procedural due process claim. She acknowledges that she received notice from the Administratrix.


author: PIERCE, Justice, DICKINSON, KITCHENS, Justice,

text:
    Gene JONES, Ashley Craft, Ralph Scott, Hardy Gordon, James Williams and Reggie Williams v. FLUOR DANIEL SERVICES CORPORATION.
    No. 2008-CA-00456-SCT.
    Supreme Court of Mississippi.
    Feb. 18, 2010.
    Rehearing Denied April 29, 2010.

      Thomas Quitman Brame, Jr., attorney for appellants.
    Gary E. Friedman, Steve J. Allen, Saundra Brown Strong, attorneys for appellee.
   PIERCE, Justice,

for the Court.

¶ 1. This case comes before this Court for the second time on appeal from the Jasper County Circuit Court’s grant of Fluor Daniel Services Corporation’s Motion for Summary Judgment. The trial court dismissed the plaintiffs’ claims of intentional infliction of emotional distress with prejudice as barred by the statute of limitations. We affirm the trial court on all issues.

FACTS

¶ 2. The six plaintiffs in this case are all African-American males and former employees of Fluor Daniel Services Corporation. While employed with Fluor Daniel, they worked under the direct supervision of Rudy Amaro, a Mexican man. The plaintiffs’ complaint alleges Amaro committed a number of racially-motivated offenses while acting in the scope, course, and authority of his employment. The plaintiffs filed a joint action against Fluor Daniel, claiming Fluor Daniel is vicariously liable for Amaro’s actions. The complaint alleges these actions constitute “a wrongful and malicious discharge, a negligent infliction of emotional distress, a willful and malicious breach of the duty of good faith and fair dealings, a retaliatory discharge, and a grievous and malicious tort under other various theories of the law.” Amaro also was named a defendant, but was never served with process and is believed to have returned to Mexico.

¶ 3. This case came before this Court on appeal previously from the trial court’s prior grant of summary judgment. Jones v. Fluor Daniel Services Corp., 959 So.2d 1044 (Miss.2007) (“Jones 7”). In Jones I, this Court reversed the trial court’s grant of summary judgment as to the claim of “tortious infliction of emotional distress” and remanded the matter to the trial court for further proceedings on that issue alone. We stated, “[i]n viewing the record in its entirety in the light most favorable to the plaintiffs, we find there is enough evidence to maintain a cause of action for intentional infliction of emotional distress.” Id. at 1050. This Court affirmed the trial court’s grant of summary judgment as to all other issues.

¶ 4. On remand, Fluor Daniel again moved for summary judgment-this time alleging the statute of limitations had run on the plaintiffs’ intentional-infliction-of-emotional-distress claim. All the plaintiffs were laid off between October 27, 2001, and February 22, 2002. This action was not commenced until April 4, 2003. The trial court found that, although intentional infliction of emotional distress is not listed specifically as one of the intentional torts barred by a one-year statute of limitations in Mississippi Code Section 15-1-35, this Court established that the one-year statute of limitations applies to claims for intentional infliction of emotional distress in CitiFinancial Mortgage Co., Inc. v. Washington, 967 So.2d 16, 19 (Miss.2007). The trial court further found that the defendant did not waive the statute-of-limitations defense, granted Fluor Daniel’s motion for summary judgment, and dismissed the plaintiffs’ claim as time-barred. Aggrieved by the trial court’s grant of summary judgment, the plaintiffs again appeal to this Court.

ANALYSIS

¶ 5. The plaintiffs raise the following issues on appeal:

I. Whether the trial court erred by granting summary judgment as to the plaintiffs’ intentional-infliction-of-emotional-distress claims.
II. Whether the trial court erred in applying a one-year statute of limitations to an intentional-infliction-of-emotional-distress claim.
III. Whether the trial court abused its discretion by allowing the defendant to file its Answer to the Amended Complaint four years late.
IV. Whether the trial court abused its discretion by allowing the defendant to propound initial discovery more than four years late.

¶ 6. This Court reviews an order granting summary judgment de novo. Mantachie Natural Gas Dist. v. Miss. Valley Gas Co., 594 So.2d 1170, 1172 (Miss. 1992) (citing Clark v. Moore Mem’l United Methodist Church, 538 So.2d 760, 762 (Miss.1989)). Furthermore, this Court reviews questions of law, including statute-of-limitations issues, de novo. Stephens v. Equitable Life Assurance Soc’y of U.S., 850 So.2d 78, 81 (Miss.2003) (quoting ABC Mfg. Corp. v. Doyle, 749 So.2d 43, 45 (Miss.1999)). Where summary judgment is at issue, “[t]he evidence must be viewed in the light most favorable to the party against whom the motion has been made.” Id. In those instances, “[a]ll that is required of a non-movant to survive a motion for summary judgment is to establish a genuine issue of material fact.” Simmons v. Thompson Mach, of Miss., Inc., 631 So.2d 798, 801 (Miss.1994).

I.

¶ 7. The plaintiffs contend that the court erred in allowing Fluor Daniel to maintain the defense of statute of limitations asserted in the original answer. The plaintiffs allege that Fluor Daniel has waived its right to rely on the statute of limitations as a defense in this matter, and rely on the fact that Fluor Daniel pleaded the statute of limitations as a defense in nonspecific terms. The exact language on which the plaintiffs focus comes from Fluor Daniel’s original answer, in which it stated that the claim “may be barred by statutes of limitations.” (Emphasis added.) The plaintiffs essentially assert that the use of the word “may” rather than “is” is a failure to plead affirmatively the defense of statute of limitations. This argument is without merit.

¶ 8. The plaintiffs allege that “more critical to the determination of this point is the fact that the Defendant did absolutely nothing to advance or assert any argument that the statute of limitations had run ... while participating in this litigation for years and years.” This Court has said, “A defendant’s failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver.” Miss. Credit Center, Inc. v. Horton, 926 So.2d 167 (Miss.2006).

¶ 9. The relevant issue in Horton was whether or not the defendant waived his right to compel arbitration by waiting more than eight months to pursue his right to arbitrate, while actively participating in the litigation. The defendant asserted that right in his answer, but did not file a motion to compel arbitration or request a hearing on the motion within what this Court considered a reasonable time. Furthermore, the defendant in Horton substantially engaged in the litigation “by consenting to a scheduling order, engaging in written discovery, and conducting [a] deposition.” Id. at 180. He provided no explanation for the delay.

¶ 10. This Court held, “[although participation in the litigation is an important factor to be considered, more is required to constitute a waiver.” Id. We found that participation in the litigation, coupled with substantial and unreasonable delay in pursuing the right to compel arbitration, constituted a waiver of that right. Id. We further pointed out that “prejudice to the party resisting arbitration is a factor to be considered.” Id. at n. 7 (citing Russell v. Performance Toyota, Inc., 826 So.2d 719, 724 (Miss.2002)).

¶ 11. Finally, the Horton Court said, “[o]ur holding today is not limited to assertion of the right to compel arbitration.” Id. at 180. We found that unreasonable failure to timely assert any right which could terminate the litigation could lead to a waiver of such right if coupled with participation in the litigation process. In an attempt to define what constitutes an unreasonable delay, this Court stated:

We decline today to set a minimum number of days which will constitute unreasonable delay in every case, but rather we defer such findings for the trial court on a case by case basis. We do hold however that — absent extreme and unusual circumstances — an eight month unjustified delay in the assertion and pursuit of any affirmative defense or other right which, if timely pursued, could serve to terminate the litigation, coupled with active participation in the litigation process, constitutes waiver as a matter of law.

Id. (emphasis added).

12. In the present matter, there is uncertainty as to when the plaintiffs’ claim for intentional infliction of emotional distress was raised. The plaintiffs’ original complaint states that the defendant’s actions constitute “a negligent infliction of emotional distress.” The complaint does not mention intentional infliction of emotional distress. The defendant stated in its answer that “[t]he plaintiffs’ claims, to the extent any are stated, may be barred by statutes of limitations.”

¶ 13. In a written response to Fluor Daniel’s motion for summary judgment in Jones I, the plaintiffs stated that they had demonstrated “a viable cause of action on a theory of infliction of emotional distress.” Their argument is based on two cases which directly address intentional infliction of emotional distress. At the hearing on the motion for summary judgment in Jones I, the plaintiffs’ counsel referred to the claims as “intentional infliction of emotional distress.” The trial court’s order granting summary judgment in Jones I described the cause of action as “tortious infliction of emotional distress.”

¶ 14. The plaintiffs’ brief in Jones I refers to its emotional-distress claim as simply “infliction of emotional distress.” However, Fluor Daniel’s brief in Jones I refers to the plaintiffs’ claim as “intentional infliction of emotional distress,” and was filed with this Court on September 9, 2006. This Court subsequently ruled that the plaintiffs’ intentional-infliction-of-emotional-distress claims should survive summary judgment. Jones I, 959 So.2d at 1049. Jones I was handed down on June 21, 2007.

¶ 15. The litigation, of course, was stayed until this Court handed down its ruling that the plaintiffs’ intentional-inflietion-of-emotional-distress claim was still viable on June 21, 2007. Fluor Daniel filed its motion for summary judgment on its statute-of-limitations defense on January 22, 2008 — some seven months later. While this Court ruled, in Horton, that an unjustified eight-month delay in pursuing a defense, coupled with participation in the litigation, is unreasonable and constitutes waiver of that defense as a matter of law, we deferred to the trial court on a case-by-ease basis findings of fact as to what constitutes an unreasonable delay for any time less than eight months.

¶ 16. In the present matter, the trial court granted summary judgment and communicated this through a letter to the counsel of record. Two days later, the plaintiffs filed a motion for findings of fact and conclusions of law “on the issue of the waiver of affirmative defense of statute of limitations.” In its opinion and order, the trial court ruled that “the defendant has not waived [the statute-of-limitations] defense,” but did not expound further on this issue.

¶ 17. It cannot be said that the trial court abused the discretion given to it by this Court in Horton by ruling the defendant had not waived the statute of limitations defense-particularly in light of plaintiffs’ failure to state their claim clearly. Therefore, the trial court is affirmed as to this issue.

II.

¶ 18. The plaintiffs assert that the trial court erred in applying a one-year statute of limitations to an intentional-infliction-of-emotional-distress claim, and that a three-year statute of limitations applies to a claim for intentional infliction of emotional distress. This Court has been inconsistent in its rulings on whether an intentional-infliction-of-emotional-distress claim is subject to a one-year statute of limitations under Mississippi Code Section 15-1-35, which specifically enumerates certain torts which carry a one-year statute of limitations. The statute reads as follows:

All actions for assault, assault and battery, maiming, false imprisonment, malicious arrest, or menace, and all actions for slanderous words concerning the person or title, for failure to employ, and for libels, shall be commenced within one (1) year next after the cause of such action accrued, and not after.

Miss.Code Ann. § 15-1-35 (Rev.2003).

¶ 19. This Court has said, “intentional and/or negligent infliction of emotional distress claims are governed by the three-year statute of limitations.” Norman v. Buclclew, 684 So.2d 1246, 1256 (Miss.1996). In Norman, intentional and negligent infliction of emotional distress are lumped together, and no authority is cited for this proposition.

¶ 20. On the other hand, this Court also has held that intentional infliction of emotional distress is subject to the one-year statute of limitations under Mississippi Code Section 15-1-35. Pierce v. Cook, 992 So.2d 612, 618 (Miss.2008) (citing Slaydon v. Hansford, 830 So.2d 686, 689 (Miss.Ct. App.2002)). Again, we stated “[t]he claim for intentional infliction of emotional distress is subject to a one-year statute of limitations under Mississippi Code Annotated Section 15-1-35 (Rev.2003).” CitiFi-nancial Mortgage Co., Inc. v. Washington, 967 So.2d 16, 19 (Miss.2007) (citing Southern v. Miss. State Hosp., 853 So.2d 1212, 1214 (Miss.2003)). The Pierce analysis centered around whether the tort at issue constituted a continuing tort, and no binding authority was cited for the proposition that intentional-infliction-of-emotional-distress claims are subject to a one-year statute of limitations. To further complicate things, the Southern case cited by the Washington Court does not analyze the statute of limitations for intentional infliction of emotional distress, but rather the statute of limitations under the Mississippi Tort Claims Act.

¶ 21. We opened the door for ambiguity in Dennis v. Travelers Insurance Co., 234 So.2d 624 (Miss.1970), in which this Court held that the one-year statute of limitations found in Mississippi Code Section 15-1-35 applied to an action for “willful, malicious, and irresponsible ... threat of criminal prosecution ... .to enforce a purported civil debt.” The case involved an insurance company sending a letter threatening legal action if the plaintiffs did not pay for damage caused by their son’s vandalism. The Court held that the letter fell within the purview of that statute under the category of “menace,” noting that the term “menace” meant threat. Since the letter written by the defendant was threatening, it fell within the category of menace, and therefore the one-year statute of limitations found in Section 15-1-35 applied.

¶ 22. This Court has “consistently held in many cases ... that where a statute enumerates and specifies the subject of things upon which it is to operate, it is to be construed as excluding from its effect all those not expressly mentioned or under a general clause, those not of like kind or classification as those enumerated.” S.W. Drug Com. v. Howard Bros. Pharmacy of Jackson, Inc., 320 So.2d 776, 779 (Miss. 1975) (emphasis added). In defining “of like kind or classification” with regard to Section 15-1-35, this Court has held, “the fact that wrongful conduct is alleged to be intentional does not determine which statute controls. Dennis means no more than that the absence of a label is, similarly, not controlling.” Nichols v. Tri-State Brick and Tile Co., Inc., 608 So.2d 324, 333 (Miss.1992). We further stated, “[w]here ... the conduct alleged may be fairly categorized as one of the enumerated torts, the one-year statute applies. Otherwise, it does not.” Id. In Nichols, we held that the plaintiffs claims were not time-barred by Section 15-1-35 because its claims were not “fairly embodied in any of the causes there enumerated.” Id. (emphasis added).

¶ 23. The Norman ease creates most of the confusion in our precedent as to which statute of limitations applies. As stated above, the Norman Court held that, “intentional and/or negligent infliction of emotional distress claims are governed by the three-year statute of limitations.” Norman, 684 So.2d at 1256. This Court agrees with the analysis by the Southern District of Mississippi, which pointed out that

the Norman Court did not distinguish between the negligent and intentional infliction of emotional distress torts and instead lumped both together into the category of claims for ‘emotional distress’ damages ... [and] did not acknowledge, much less address and reject all of this substantial precedent on the issue of the statute of limitations applicable to claims for intentional infliction of emotional distress.

Hervey v. MetLife Gen. Ins. Corp. System Agency of Miss., Inc., 154 F.Supp.2d 909, 915 (S.D.Miss.2001) (quoting Hervey v. Metlife Gen. Ins. Corp., 147 F.Supp.2d 517 (S.D.Miss.2001)).

¶ 24. We, like the Hervey Court, are convinced that this Court would not have approached the statute of limitations for intentional infliction of emotional distress “in so cavalier a manner, with nothing more than an oblique reference, unaccompanied by explanation.” Id. at 917. Therefore, we conclude that the reference in Norman “was unintentional, and that consistent with all other authorities which predated and postdated Norman, the one-year limitations period applies.” Id.

¶25. We also find the Fifth Circuit’s analysis in King v. Otasco, Inc., 861 F.2d 438 (5th Cir.1988), to be persuasive. There, the court said, “although not explicitly listed in the one-year statute,” the plaintiffs claims for intentional infliction of emotional distress and outrageous conduct were “undoubtedly intentional torts, and so closely analogous to the common law actions for assault, libel, and slanderous words that they too must fall within the statute’s bar.” Id. at 442 (emphasis added).

¶ 26. Intentional infliction of emotional distress is a tort against the person, as are the vast majority of those specifically enumerated in Section 15-1-35 of the Mississippi Code. Miss. Code Ann. § 15-1-35 (Rev.2003). Therefore, under Nichols, a cause of action for intentional infliction of emotional distress is “fairly embodied” in the causes of action included in Mississippi Code Section 15-1-35. Based on the prior analysis, we hold that the tort of intentional infliction of emotional distress is of like kind or classification as the torts enumerated in Section 15-1-35, as required by Southwest Drug Company, and it too carries a one-year statute of limitations. To the extent the Norman case holds otherwise, it is expressly overruled.

¶ 27. In light of this holding, the plaintiffs’ claims are barred by the one-year statute of limitations found in Mississippi Code Section 15-1-35. Therefore, trial court is affirmed as to this issue.

III.

¶ 28. Jones I was handed down on June 21, 2007, and this matter was remanded to the trial court, after which Fluor Daniel filed an amended answer in January 2008. The plaintiffs complain that the trial court erred in allowing the defendant to file its amended answer approximately four years late.

¶ 29. This Court has found, in part through the comment to the rule, that amended pleadings have been liberally permitted throughout Mississippi’s legal history. See Miss. R. Civ. P. 15(a) cmt.; Moeller v. Am. Guar, and Liab. Ins. Co., 812 So.2d 953, 962 (Miss.2002); Beverly v. Powers, 666 So.2d 806, 809 (Miss.1995); Webb v. Braswell, 930 So.2d 387 (Miss. 2006). The grant or denial of a motion for leave to amend is within the sound discretion of the trial court. MBF Corp. v. Century Bus. Commc’ns, Inc., 663 So.2d 595, 600 (Miss.1995); Frank v. Dore, 635 So.2d 1369, 1375 (Miss.1994). While the trial court has discretion to allow an amendment and should do so freely under the proper circumstances, an amendment should not be granted when it would prejudice the other party. Hester v. Bandy, 627 So.2d 833, 839 (Miss.1993). Thus, in the matter before us today, we may reverse the trial court’s grant of Fluor Daniel’s motion to amend its answer only upon finding abuse of discretion by the trial court. Otherwise, the trial court’s grant of this motion to amend must remain undisturbed.

¶ 30. The plaintiffs are incorrect in their assertion that Fluor Daniel must show excusable neglect under Rule 6 of the Mississippi Rules of Civil Procedure. The correct rule governing amendments to pleadings is Rule 15, which is titled “Amended and Supplemental Pleadings.” The situation before us is similar to that dealt with by this Court previously in City of Jackson v. Presley, 942 So.2d 777 (Miss. 2006). The Court then also analyzed an amended answer that was filed four years late and found that the trial judge had erred in granting Presley’s motion to strike the amended answer.

¶ 31. In Presley, the city had filed its original answer and affirmative defenses on June 28, 1999. Presley, as the plaintiff, filed her amended complaint on June 27, 2000. The city did not file an amended answer until August 5, 2004, more than four years later. This Court reviewed the original and amended complaints and noted that the original complaint and the amended complaint were identical, except for one sentence which was added to the amended complaint. The sentence said, verbatim, “Additionally, Presley has incurred property damage as a proximate result of Morton’s negligence and the resulting accident.” This Court noted that the untimely-filed answer and affirmative defenses to the amended complaint also virtually mirrored its timely-filed responsive pleading to the original complaint. However, the city did add three additional affirmative defenses. The added defenses were res judicata, accord and satisfaction, and setoff or credit for sums Presley had received in the settlement of the first lawsuit. The Court found it important that, as of the date of the trial, while the city’s answer (and affirmative defenses) to the amended complaint unquestionably were filed more than four years late, a default judgment was never requested. This Court found that the defendant should have been allowed to maintain the defenses asserted in the amended answer.

¶ 32. In the case sub judice, the plaintiffs added four more plaintiffs, with all their jurisdictional statements and prayers for relief, and also altered the service-of-process allegation for Fluor Daniel. These are the only differences between the first amended complaint and the second amended complaint, which is at the heart of this matter before us. A default judgment never was sought in this matter for the failure of Fluor Daniel to respond to the second amended complaint. Also, the plaintiffs can show no prejudice because Fluor Daniel pleaded the statute of limitations in its original answer.

¶ 33. Because the plaintiffs can show no prejudice from the trial court’s decision to allow Fluor Daniel to amend its answer, and the trial judge did not abuse his discretion in basing his ruling on Presley, we affirm the trial court’s ruling as to this issue.

IV.

¶ 34. Finally, the plaintiffs complain that the trial court allowed the defendants to propound initial discovery (interrogatories and requests for production) in January 2008-more than four years after the litigation had commenced. The plaintiffs claim they never before had been served a request for interrogatories and production of documents, and further assert that the defendants offered no justification for the delay.

¶ 35. The plaintiffs filed a motion for a protective order with the trial court, which was denied as moot. The order pointed out that the motion had been filed prior to the grant of summary judgment, and that accordingly “no trial would be necessary.” The trial court then reasoned that the relief sought by the plaintiffs “is moot.” Therefore, this argument is without merit.

CONCLUSION

¶ 36. In conclusion, the trial court did not abuse its discretion in concluding that the defendant did not waive its statute-of-limitations defense. Furthermore, intentional infliction of emotional distress is of like kind or classification as the torts enumerated in Mississippi Code, Section 15-1-35, and is therefore barred by a one-year statute of limitations. The trial court did not abuse its discretion in allowing the defendant to file an untimely-amended answer, nor did it abuse its discretion in dismissing the plaintiffs’ motion for a protective order as moot. Therefore, the trial court is affirmed on all issues.

¶ 37. AFFIRMED.

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

DICKINSON,

Justice, Dissenting.

¶ 38. With great respect for my colleagues in the majority, I am compelled to record my view that the tort of intentional infliction of emotional distress clearly is not subject to the one-year statute of limitations imposed by Section 15-1-35 of the Mississippi Code-a code section which specifically lists the intentional torts to which it applies. Miss.Code Ann. § 15-1-35 (Rev.2003). Because the statute’s list does not include the tort, and because this Court consistently has held that statutes of limitations are to be strictly construed, I must respectfully dissent.

¶ 39. It should not be surprising that I turn first to the statute’s language. Section 15-1-35 reads as follows:

All actions for assault, assault and battery, maiming, false imprisonment, malicious arrest, or menace, and all actions for slanderous words concerning the person or title, for failure to employ, and for libels, shall be commenced within one (1) year next after the cause of such action accrued, and not after.

Miss.Code Ann. § 15-1-35 (Rev.2003). It requires no analysis or particular legal insight to observe that the tort of intentional infliction of emotional distress is not included in the language chosen by the Legislature. Thus, the statute itself provides no support for the majority’s holding.

¶ 40. While meager authority does exist for the majority’s position, this Court’s precedent for the reverse proposition enjoys far more support. For instance, this Court previously has stated that “intentional and/or negligent infliction of emotional distress claims are governed by the three-year statute of limitations.” Norman v. Bucklew, 684 So.2d 1246, 1248 (Miss.1996). And in Nichols v. Tri-State Brick and Tile Co., Inc., 608 So.2d 324 (Miss.1992), this Court held that the plaintiffs claims were “not time barred by application of § 15-1-35 because its claims are not fairly embodied in any of the causes there enumerated,” and further stated that “[ejven a casual reading of the statute leads inescapably to the conclusion that it does not cover, and was not intended to cover, all intentional tortious conduct.” Nichols, 608 So.2d at 332-333. The Nichols Court further asserted, “[w]e will not squeeze all intentional wrongs into the actions enumerated,” and pointed out that:

[t]his Court has ‘consistently held in many cases ... that where a statute enumerates and specifies the subject of things upon which it is to operate, it is to be construed as excluding from its effect all those not expressly mentioned or under a general clause, those not of like kind or classification as those enumerated.’

Id. (quoting Sw. Drag Co. v. Howard Bros. Pharmacy of Jackson, Inc., 320 So.2d 776, 779 (Miss.1975)) (emphasis added).

¶ 41. As the majority notes, this Court has been inconsistent in its rulings on whether intentional-infliction-of-emotional-distress claims are subject to a one-year statute of limitations under Mississippi Code Section 15-1-35. In support of its view, the majority cites three cases: Southern v. Miss. State Hosp., 853 So.2d 1212, 1214 (Miss.2003); Pierce v. Cook, 992 So.2d 612 (Miss.2008); CitiFinancial Mortg. Co., Inc. v. Washington, 967 So.2d 16, 19 (Miss.2007). Maj. Op. at ¶ 20. As easily can be seen, these cases enjoy far more prestige in the majority’s analysis than their respective holdings suggest they should.

¶ 42. In Southern, this Court said nothing about whether Section 15-1-35’s one-year statute of limitations applied to a claim of intentional infliction of emotional distress. Instead, the Southern Court analyzed the plaintiffs intentional-infliction-of-emotional-distress claim pursuant to the Mississippi Tort Claims Act’s one-year statute of limitations. Southern, 853 So.2d at 1214-16. Thus, Southern provides no authority for the majority’s proposition.

¶ 43. In Pierce, this Court analyzed the underlying tort which gave rise to the claim of intentional infliction of emotional distress as an intentional tort. While the Court did, in dicta, indicate that the statute of limitations for claims of intentional infliction of emotional distress was one year, the analysis was based on whether the tort at issue was a continuing tort. Furthermore, the majority in Pierce cited no authority whatsoever from this Court for the proposition that claims of intentional infliction of emotional distress are subject to a one-year statute of limitations. Pierce, 992 So.2d at 618-20.

¶ 44. Finally, in Washington, the Court incorrectly cited Southern for the proposition that intentional-infliction-of-emotional-distress claims are subject to a one-year statute of limitation under Section 15 — 1— 35. Washington, 967 So.2d at 19. As previously stated, the Southern Court analyzed the limitations period under the Mississippi Tort Claims Act, rather than Section 15-1-35.

¶ 45. In order to scrap together support for its weak position, the majority cites nonbinding federal interpretation. Even so, there are federal cases going both ways. See, e.g. Hubbard v. Miss. Conference of United Methodist Church, 138 F.Supp.2d 780 (S.D.Miss.2001), dismissed, 31 Fed.Appx. 153 (5th Cir.2001).

¶ 46. The confusion as to whether Section 15-1-35 applies to claims of intentional infliction of emotional distress stems from this Court’s opinion in City of Mound Bayou v. Johnson, 562 So.2d 1212, 1217 (Miss.1990), in which this Court held:

Our cases suggest the statute’s force is not limited to the eight torts labeled therein. Bush v. City of Laurel, 234 Miss. 93, 103, 105 So.2d 562, 566 (1958) says the statute includes torts “of the type enumerated” in the statute. Dennis v. Travelers Insurance Co., 234 So.2d 624, 626 (Miss.1970) is more expansive, holding that the statute “provides an inclusive listing of the recognized intentional torts.” Southern Land & Resources Co., Inc. v. Dobbs, 467 So.2d 652, 654 (Miss.1985) repeats the point. If this be so, the proscription of the statute necessarily extends beyond the tort labels specifically appearing, for but a moment’s reflection calls to mind any number of intentional tort actions recognized in Mississippi law which are not enumerated as such in Section 15-1-35.... The better view is that statute extends to all actions substantially like unto the enumerated eight and for which no specific statute has been provided.

However, as was true in Washington, the position asserted by this Court in its curious opinion in City of Mound Bayou was wholly unsupported by the cases cited therein. In fact, quite the opposite is true.

¶ 47. In Bush, the Court stated: “A casual reading of Code Section 732, supra, readily reveals that the present action of the appellants is not of the type enumerated in said Code section and that said Code section is, therefore, not applicable.” Bush, 234 Miss. 93, 103, 105 So.2d 562, 566 (1958) (emphasis added). The Dennis Court found that the claim at issue in that matter was “menace,” although not labeled as such in the complaint, and was therefore subject to a one-year statute of limitations because menace is one of the enumerated torts in Section 15-1-35. Dennis, 234 So.2d at 626-627.

¶ 48. Finally, the Southern Land & Resources Court held the precise opposite of what the City of Mound Bayou Court claimed it held. The Southern Land & Resources Court said: “From a review of the legislative history it is apparent that the policy of providing a one-year statute of limitations for listed intentional torts .... has been perpetuated in this state.” S. Land & Res., 467 So.2d at 655. The Court went on to hold that Section 15-1-35 did not apply to an action for damages for wrongful foreclosure, but rather the six-year “catch-all” limitations period found in Mississippi Code Section 15-1-49 applied. Id.

¶ 49. To reach this conclusion, the majority seizes upon the “of like kind or classification” language found in Southwest Drug Company and quoted in Nichols, while ignoring the preceding “under a general clause” requirement. The majority’s attempt to construe the intentional-infliction-of-emotional-distress claim as one “fairly embodied” in Section 15-1-35 offends the century-old rule that, when a statute “is plain and unambiguous ... [i]t is not within the province of this [CJourt to add to the law as the Legislature has written it.” City of Hazlehurst v. Mayes, 96 Miss. 656, 51 So. 890, 891 (1910). What is plain and unambiguous from a reading of Section 15-1-35 is that intentional infliction of emotional distress is simply not included.

¶ 50. For that reason stated herein, I respectfully dissent.

LAMAR AND KITCHENS, JJ., JOIN THIS OPINION.

KITCHENS, Justice,

Dissenting.

¶ 51. I fully concur with Justice Dickinson’s well-reasoned dissent. The torts to which a one-year statute of limitations applies are specifically designated by state statute, and intentional infliction of emotional distress is not one of them. Miss. Code Ann. § 15-1-35 (Rev.2003). In order to add intentional infliction of emotional distress to the statute’s list, it was necessary for the majority to apply nonbinding federal case law.

¶ 52. However, even if a one-year statute of limitations applied, this defense was waived; it cannot be credibly argued that Fluor Daniel did not know the plaintiffs were raising an intentional infliction of emotional distress claim until this Court rendered its opinion. Although the complaint was inartfully drafted, this claim was squarely at issue and thoroughly argued on the defendant’s first motion for summary judgment. In their response to the first motion for summary judgment, filed December 14, 2004, the plaintiffs argued that they had “demonstrated a viable cause of action on a theory of infliction of emotional distress,” and cited two cases which directly address intentional infliction of emotional distress claims, Lee v. Golden Triangle Planning and Development District, Inc., 797 So.2d 845 (Miss.2001), and Brown v. Inter-city Federal Bank for Savings, 738 So.2d 262 (Miss.Ct.App.1999). At the summary judgment hearing, the attorney for the plaintiffs specifically argued that they were pursing a claim for “intentional infliction of emotional distress,” and there was no objection from Fluor Daniel on this point. The order granting summary judgment refers to “tortious infliction of emotional distress,” and cites Pegues v. Emerson Electric Company, 913 F.Supp. 976, 982 (N.D.Miss. 1996), a case defining intentional infliction of emotional distress. Notably, this order was drafted by Fluor Daniel’s attorney.

¶ 53. Therefore, the record indicates that Fluor Daniel was fully aware that the plaintiffs were asserting a claim for intentional infliction of emotional distress, and at no point did Fluor Daniel object. Even when the case was here on the first appeal, one of the issues Fluor Daniel argued in its brief was “whether the circuit court properly granted FDSC summary judgment on the plaintiffs’ claims for intentional infliction of emotional distress.” Again, Fluor Daniel never argued that it was unaware of such a claim, even in its second motion for summary judgment, and it has raised the issue for the first time in the second appeal to this Court. It is disingenuous, at best, for Fluor Daniel now to claim that intentional infliction of emotional distress did not emerge as a claim until June 21, 2007, the date this Court issued its opinion in the first appeal.

¶ 54. Under Mississippi Rule of Civil Procedure 15(b), a complaint is amended to add a claim by implied consent of the parties, if the plaintiff raises the claim in response to a motion for summary judgment, and the trial judge decides the issue on summary judgment without an objection from the defendant. Presswood v. Cook, 658 So.2d 859, 861-62 (Miss.1995). This is precisely what occurred in the instant case; and by failing to object to the intentional infliction of emotional distress claim, Fluor Daniel implicitly consented to litigation of this issue. Therefore, this claim was fully apparent to all parties and the trial court by, at the latest, December 14, 2004, the date the plaintiffs filed their response to Fluor Daniel’s first motion for summary judgment. It was not until three years later, on January 22, 2008, that the defendant raised the one-year statute of limitations issue for the first time. Given the protracted delay in raising this affirmative defense, and Fluor Daniel’s active participation in the litigation, Fluor Daniel acquiesced in the litigation of this issue and waived the statute of limitations defense (assuming, arguendo, that the one-year statute of limitations even applies). Miss. Credit Center, Inc. v. Horton, 926 So.2d 167, 181 (Miss.2006).

¶ 55. Yet, even if it could be legitimately argued that the defendant was first put on notice of the intentional infliction of emotional distress claim on June 21, 2007, Fluor Daniel still waited too long to raise the statute of limitations defense. In Horton, 926 So.2d at 181, this Court held that an eight-month delay was too long:

[Ajbsent extreme and unusual eircum-stances[,] an eight month unjustified delay in the assertion and pursuit of any affirmative defense or other right which, if timely pursued, could serve to terminate the litigation, coupled with active participation in the litigation process, constitutes waiver as a matter of law.

The majority makes no attempt to distinguish Horton from the present case or to explain why a seven-month delay is any different from an eight-month delay when it comes to asserting an affirmative defense.

¶ 56. Thus, while I agree with Justice Dickinson that the statute of limitations for intentional infliction of emotional distress is three years, I also find Fluor Daniel waived this defense- by waiting so long to raise the issue. For these reasons, I respectfully dissent.

GRAVES, P.J., JOINS THIS OPINION. DICKINSON, J., JOINS THIS OPINION IN PART.

      . Lee v. Golden Triangle Planning and Dev. Dist., Inc., 797 So.2d 845 (Miss.2001); Brown v. Inter-city Fed. Bank for Sav., 738 So.2d 262 (Miss.Ct.App. 1999).

      . The Court in Washington pin-cited language from Southern that was quoted directly from the trial court’s order for the proposition that intentional-infliction-of-emotional-distress claims were subject to a one-year statute of limitations pursuant to Section 15-1-35, and not language from this Court's analysis. Washington, 967 So.2d at 19; Southern, 853 So.2d at 1214.