source: Caselaw Access Project

author: KITCHENS, Justice, CARLSON, Presiding Justice,

license: Public Domain

text:
    Willie L. WILLIAMS, Jr. v. STATE of Mississippi.
    No. 2009-KA-00080-SCT.
    Supreme Court of Mississippi.
    April 15, 2010.

      Office of Indigent Appeals by Erin Elizabeth Pridgen, Leslie S. Lee, Jackson, Rosharwin Lemoyne Williams, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appel-lee.
   KITCHENS, Justice,

for the Court:

¶ 1. Following a jury trial, Willie L. Williams, Jr., was convicted of attempted armed robbery and sentenced to fifteen years’ incarceration with ten years to serve. Finding that the trial court erred by refusing a cautionary jury instruction on accomplice testimony, we reverse and remand the case for a new trial.

Facts

¶ 2. Stephanie Cannon owned and operated Stephanie’s Discount Store in Rule-ville, Mississippi. On March 22, 2007, she was working in her store when a young man entered and inquired about a certain brand of jeans. Moments later, another man, his face covered with a white shirt, entered the store and pointed a handgun at her. Cannon immediately grabbed her handgun and commenced shooting. Both men fled the store, and, in the process, one dropped a firearm just inside the doorway. When one of the men came back to retrieve the weapon, Cannon shot him. The wounded man ran across the street, leaving a trail of blood.

¶ 3. Cannon called the police and informed them that two men had attempted to rob her. One of the responding officers followed the blood trail and found Terrence Young wounded and lying on the ground behind a nearby house. Young was immediately transported to a hospital. Both handguns wielded by the suspects were recovered by officers, along with a white T-shirt and a blue T-shirt. Two holes had been cut in each shirt, which, according to the testifying officer, appeared to be holes for eyes.

¶ 4. Later that day, Montreal Veal went to the police station looking for his cousin, Terrence Young. When questioned about the incident, Yeal told police officers that Young and Williams had attempted to rob Cannon’s store, but that he, Veal, was not involved. His claim of innocence notwithstanding, Veal was arrested.

¶ 5. Williams also was questioned and arrested that day. Like Veal, he denied any involvement, and told officers that Young and Veal were the real perpetrators.

¶ 6. A few days later, while still hospitalized, Young told the police that he, Montreal Veal, and Willie Williams, Jr., had attempted to rob Cannon’s store. Young’s trial testimony, though more detailed, was consistent with the statement he had given police. According to Young, he and Veal went to Williams’s house on the morning of the robbery attempt after Williams had called and invited them over. Young testified that, once they all had arrived, Williams asked for Young’s handgun so he could rob Cannon’s store. Young testified that the three men devised a plan whereby Veal would enter the store first and distract the clerk. Next, Young and Williams would enter the store, their faces covered, with Williams carrying the gun.

¶ 7. Young testified that the robbery began as planned. According to Young, Veal entered the store first while Young and Williams waited, their faces covered with T-shirts. Williams entered a few minutes later, Young said, pointing the firearm at Cannon, but made it into the store only a few steps before Cannon started shooting. Young testified that he had merely approached the door of the business before all three men were forced to flee from Cannon’s gunfire. When Williams told Young that he had dropped the handgun, Young decided to retrieve it. As Young entered the store and attempted to grab his weapon, Cannon shot him in his abdomen.

¶ 8. Veal also testified at trial, and despite his earlier statement claiming no involvement in the crime, he gave a version of events quite similar to Young’s. Veal testified that he initially had denied being involved because he was afraid.

¶ 9. Williams testified in his own defense, maintaining that Veal and Young were the only two involved in the crime. According to Williams, he did not invite the other men to his house that day, claiming that the two men simply had run out of gasoline near his house. Williams testified that he remained at his house while Veal and Young left to go find gas money from a relative who lived nearby, and that he had no idea they were involved in an attempted robbery until Veal returned and said that Young had been shot. Williams said that he was outside his house, talking with a friend, Cherokee Cox, when the incident took place. Although Cox was identified by Williams, prior to trial, as a potential alibi witness, she was not called to testify.

¶ 10. The jury found Williams guilty of attempted armed robbery; but because the jury was unable to agree upon a life sentence, the judge conducted a separate sentencing hearing. See Miss.Code Ann. § 97-3-79 (Rev.2006). Following that hearing, the trial judge sentenced Williams to fifteen years in custody, with ten of those years to be served, followed by five years of post-release supervision.

Discussion

¶ 11. Williams raises two issues on appeal: (1) whether the trial judge erred in refusing a cautionary jury instruction regarding accomplice testimony; and (2) whether the trial judge erred by not ordering a mistrial, sua sponte, due to improper comments by the prosecution during closing arguments. We find the first issue dispositive.

¶ 12. “Clear law in the State of Mississippi is that the jury is to regard the testimony of co-conspirators with great caution and suspicion.” Derden v. State, 522 So.2d 752, 754 (Miss.1988) (citing Winters v. State, 449 So.2d 766, 771 (Miss. 1984); Simpson v. State, 366 So.2d 1085 (Miss.1979); Thomas v. State, 340 So.2d 1 (Miss.1976)). When determining whether a defendant is entitled to such a cautionary instruction, the trial judge considers whether the witness was in fact an accomplice and whether the witness’s testimony was corroborated. Brown v. State, 890 So.2d 901, 910 (Miss.2004) (citing Burke v. State, 576 So.2d 1239, 1242 (Miss.1991)). Although granting a cautionary instruction regarding the testimony of an accomplice is within the trial judge’s discretion, such an instruction is required when the accomplice’s testimony is the sole basis for the conviction, and the defendant’s guilt is not clearly proven. Wheeler v. State, 560 So.2d 171, 173 (Miss.1990) (citing Holmes v. State, 481 So.2d 319, 322-23 (Miss.1985); Hussey v. State, 473 So.2d 478, 480 (Miss. 1985)).

¶ 13. In refusing the proposed instruction the trial judge stated,

There is a case of Collum, C-O-L-L-UM, that gives the two part test for accomplice’s testimony. Of course, it has got to be an accomplice, but also it has got to be substantially impeached or unreasonable and it does not meet that burden under the two part test of Col-lum, so that would [be] refused.

¶ 14. We are unable to locate a Mississippi case involving a defendant named Collum which also addresses accomplice testimony. In addition, it appears that the trial judge incorrectly described the test governing whether accomplice testimony, standing alone, is sufficient to support a conviction. While there are Mississippi cases that refer to “unreasonable” or “substantially impeached” accomplice testimony, they tend to focus on whether such testimony is sufficient to support a conviction, not whether a cautionary jury instruction is proper. E.g., Payton v. State, 897 So.2d 921, 937 (Miss.2003); Brown v. State, 682 So.2d 340, 344 (Miss.1996); Ballenger v. State, 667 So.2d 1242, 1253 (Miss.1995); Mason v. State, 429 So.2d 569, 571 (Miss.1983); Moody v. State, 371 So.2d 408 (Miss.1979). The controlling principle is that “the uncorroborated testimony of an accomplice may be sufficient to convict an accused.... However, the general rule is inapplicable in those cases where the testimony is unreasonable, self contradictory or substantially impeached.” Ballenger, 667 So.2d at 1253 (quoting Flanagan v. State, 605 So.2d 753, 757-58 (Miss. 1992)). In such cases, the trial court must direct a verdict of not guilty. Id.

¶ 15. The test for whether evidence is sufficient to support a conviction is more stringent than the test for whether the evidence warrants a cautionary jury instruction. In the first instance, the case never reaches the jury, and the defendant is acquitted. See, e.g., Catchings v. State, 394 So.2d 869, 870 (Miss.1981) (citations omitted). In the second instance, the jury is permitted to find the defendant guilty or not guilty, but is instructed that the uncorroborated testimony of an accomplice should be regarded with “great caution and suspicion.” Walton v. State, 998 So.2d 971, 977 (Miss.2008) (quoting Strahun v. State, 729 So.2d 800, 805 (Miss.1998)).

¶ 16. On appeal, both the State and Williams make the same mistake as the trial court. Both argue that the accomplice’s testimony must be “self-contradictory” or “substantially impeached” to warrant a cautionary instruction, but the cases on which they rely address the sufficiency of the evidence. The State does quote a case from the Court of Appeals that held, “[a] cautionary instruction is warranted when the testimony of an accomplice is ‘unreasonable, self contradictory or substantially impeached.’ ” Clemons v. State, 952 So.2d 814, 318 (Miss.Ct.App.2007) (quoting Ballenger, 667 So.2d at 1253). However, Clemons relies on this Court’s decision in Ballenger which, as discussed above, sets forth the test for whether the uncorroborated testimony of an accomplice is sufficient to support a conviction, not whether a cautionary instruction is required.

¶ 17. This Court also has confused the two tests. In Ellis v. State, 790 So.2d 813, 816 (Miss.2001), just as in Clemons, this Court relied on Ballenger to conclude that “a cautionary instruction is warranted when the testimony of an accomplice is ‘unreasonable, self contradictory or substantially impeached.’ ” Ellis, 790 So.2d at 816 (quoting Ballenger, 667 So.2d at 1253). And, although it did not affect the outcome, this Court repeated Ellis’s mistaken announcement of the rule in obiter dicta in Smith v. State, 907 So.2d 292, 298 (Miss. 2005) (citing Ellis, 790 So.2d at 816). To the extent that Ellis and Clemons suggest that accomplice testimony must be “unreasonable, self-contradictory, or substantially impeached” before a cautionary jury instruction is required, they are overruled. We now clarify that for a defendant to be entitled to a cautionary jury instruction, it is only necessary that the accomplice’s testimony be uncorroborated. Brown, 682 So.2d at 344.

¶ 18. Here, the State argues that the testimony of Veal and Young was substantially corroborated by other evidence. For example, the State points out that Young identified the dropped handgun that was found in the store and that police officers were able to corroborate Young’s statement that he was shot.

¶ 19. However, none of this supports Young’s or Veal’s claims that Williams was involved in the attempted robbery. In determining whether a cautionary jury instruction is required, the testimony that must be corroborated is the testimony tying the defendant on trial to the crime, and it is irrelevant whether other portions of the accomplice’s testimony are corroborated. Holmes, 481 So.2d at 322. In Holmes, this Court reversed a conviction for failure to give a cautionary jury instruction where the only evidence directly tying the defendant to the crime was the testimony of his accomplice. The accomplice, Everette Thompson, testified that he and the defendant burglarized a local co-op store. Id. at 320. The Court noted that there was a footprint at the scene that matched one of Thompson’s shoes, but that this fact merely “eorrobo-rate[d] Thompson’s admission that he had committed the crime.” Id. at 322 (emphasis in original). According to the opinion, the Court “examined the record and ... found no testimony which corroborates that of Everette Thompson as it refers to [the defendant].” Id. The Court reversed, saying that “[w]ithout the testimony of Everette Thompson, there is nothing to indicate that [the defendant] was in any way involved in the burglary of the Co-op.” Id.

¶ 20. Likewise, in the instant case, there is nothing, other than Young and Veal’s testimony, tying Williams to the crime. Without their statements, the evidence would have been insufficient to support a conviction, a fact that is undisputed by the State. When the only evidence against the defendant is the testimony of an accomplice, “the trial judge must accede to the accused’s request and grant a cautionary jury instruction.” Id. at 323 (citing Catchings, 394 So.2d at 870; Green v. State, 456 So.2d 757, 758 (Miss.1984)).

¶ 21. At trial, the prosecutor argued that “the testimony of the co-defendants has been corroborated ... by each other.” Although the State does not make the same argument on appeal, we note that testifying accomplices cannot corroborate each other sufficiently to obviate the necessity of a cautionary jury instruction. This Court has held that a cautionary jury instruction is required even though multiple accomplices testify and may corroborate each other. E.g., Burns v. State, 729 So.2d 203, 223 (Miss.1998); Derden, 522 So.2d at 754. In addition, there is the well-settled rule that a cautionary jury instruction is required when the State’s case is based upon the testimony of an accomplice corroborated only by a confidential informant. Austin v. State, 784 So.2d 186, 193 (Miss.2001) (citing Edwards v. State, 630 So.2d 343, 344 (Miss.1994); Parker v. State, 378 So.2d 662, 663 (Miss.1980)). This is because both accomplice and informant testimony are, “by [their] very nature, looked upon with suspicion and distrust.” Id. If a confidential informant cannot corroborate an accomplice’s testimony because both are inherently untrustworthy, it follows that testifying accomplices cannot corroborate each other for the same reason.

¶ 22. Therefore, because the trial court failed to grant Williams’s cautionary jury instruction regarding the uncorroborated testimony of his co-defendants, the conviction is reversed, and the case is remanded for further proceedings.

¶ 23. REVERSED AND REMANDED.

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

CARLSON, Presiding Justice,

Specially Concurring:

¶ 24. While I agree with the majority opinion that Williams’s conviction and sentence must be reversed and this case remanded for a new trial due to the trial court’s failure to give an accomplice instruction, I write separately in order to expand the discussion on accomplice testimony and the accomplice instruction.

¶25. The majority opinion correctly notes that a trial judge has, at the most, only two questions to answer in making a determination as a matter of law on whether an accomplice instruction should be given. First of all, the trial judge must determine whether the target witness for whom the cautionary instruction is being considered is an accomplice. Brown v. State, 890 So.2d 901, 910 (Miss. 2004) (citing Burke v. State, 576 So.2d 1239, 1242 (Miss.1991)). If the first question is answered in the affirmative, then the second question the trial judge must answer is whether the accomplice’s testimony is uncorroborated. Id. If the second question is also answered in the affirmative, the trial judge must give the appropriate cautionary instruction for an accomplice on pain of reversal for his/her failure to do so.

¶ 26. In Slaughter v. State, 815 So.2d 1122, 1134 (Miss.2002), we took the opportunity to once again define an accomplice in the criminal context:

This Court has defined an accomplice in prior case law. “An accomplice is a person who is implicated in the commission of a crime.” Brewer v. State, 725 So.2d 106, 124 (Miss.1998). An accomplice has also been defined by this Court as “a person who is implicated in the commission of the crime. That is to say, that if the evidence admits a reasonable inference that the witness may have been a co-perpetrator or the sole perpetrator the cautionary instruction should be given.” Williams v. State, 729 So.2d 1181, 1188 (Miss.1998) (citing Dedeaux v. State, 125 Miss. 326, 87 So. 664 (1921)); Burke v. State 576 So.2d [1239] at 1242 [ (Miss.1991) ].

Slaughter, 815 So.2d at 1134. In fact, to be considered an accomplice in a case, it is not even necessary that the target witness be prosecuted for the crime. Williams v. State, 729 So.2d 1181, 1189 (Miss.1998). Thus, without question, in today’s case, Montreal Veal and Terrence Young were accomplices.

¶ 27. The majority opinion thoroughly addresses the second prong of the accomplice-instruction test concerning whether the testimony of the accomplice(s) is uncorroborated. As noted in the majority opinion, the only testimony in today’s case concerning the commission of the crime comes from Veal, Young, and Stephanie Cannon, the victim, who is the owner and operator of Stephanie’s Discount Store, the target of the attempted robbery. To this day, Cannon has been unable to identify the men who attempted to rob her on the day in question. Thus, as stated in the majority opinion, we are left with the testimony of Veal and Young, both accomplices in this crime, as the only evidence linking Williams to the crime. “[S]ince there was no corroboration of the testimony of these three [accomplices], other than each other, the [accomplice] instruction would be mandatory.” Williams, 729 So.2d at 1189 (citing Holmes v. State, 481 So.2d 319, 322-23 (Miss.1985); Hussey v. State, 473 So.2d 478, 480 (Miss.1985)); see also Edwards v. State, 630 So.2d 343, 343-44 (Miss.1994).

¶ 28. Although the majority recites the critical portion of the jury-instruction conference between the lawyers and the trial judge, I wish to set out verbatim from the record additional discussion during the jury-instruction conference as it relates to proffered instruction number D-ll, which is the accomplice instruction submitted by defense counsel for consideration by the trial court:

BY THE COURT: Okay. And eleven, D-ll, the accomplice’s testimony. Any objection from the State?
BY [THE PROSECUTOR]: Yes, sir. I don’t think that is warranted under the proof as it sits for the Court. I think that’s only proper where the proof offered is the uncorroborated testimony of a co-defendant or an accomplice. In this case the State would argue that the testimony offered by the co-defendants has been corroborated by the victim, at least by the victim and by each other. We don’t think it is proper.
BY THE COURT: Anything else from the Defense on that?
BY [DEFENSE COUNSEL]: We would state that there has not been any corroboration outside the fact that she [victim] says there was a person present. BY THE COURT: There is a ease of Collum, C-O-L-L-U-M, that gives the two part test for accomplice’s testimony. Of course, it has got to be an accomplice, but also it has got to be substantially impeached or unreasonable and it does not meet that burden under the two part test of Collum, so that would refused (sic).

¶ 29. Even though I disagree with the prosecutor’s argument concerning the existence of corroboration of the accomplices’ testimony, at least the prosecutor argued against the accomplice instruction for the correct legal reason. As noted above, the prosecutor correctly argued to the trial judge that an accomplice instruction should be given only when the testimony of an accomplice is uncorroborated. However, notwithstanding the prosecutor’s argument, and as correctly pointed out in the majority opinion, in considering whether the accomplice instruction should have been given in this case, the trial judge made his decision, not on whether the testimony of Veal and/or Young was uncorroborated, but instead, sua sponte, on whether the testimony of Veal and/or Young was “substantially impeached or unreasonable.” The only time a trial judge is required to consider the issue of whether an accomplice’s testimony is unreasonable, self-contradictory, or substantially impeached is when the trial judge is confronted with a defense motion for a directed verdict during trial, or a post-trial motion for judgment notwithstanding the verdict which challenges the legal sufficiency of the evidence. See, e.g., Ballenger v. State, 667 So.2d 1242, 1253 (Miss.1995) (citing Flanagan v. State, 605 So.2d 753, 757-58 (Miss.1992)). Likewise, it is the responsibility of this Court to consider these same factors when considering on appeal a challenge to the legal sufficiency of the evidence to sustain a conviction.

¶ 30. Quite frankly, I would suggest to our trial judges that when confronted with the issue of whether to give an accomplice instruction, if there is any doubt at all as to whether the testimony of the accomplice is uncorroborated, the accomplice instruction ought to be given in the following form:

The Court instructs the jury that John Doe is an accomplice in this case. The Court has already instructed you that you, as jurors, are the sole judges of the weight and credit to be assigned the testimony and supporting evidence of each witness who has testified in this case. However, since John Doe is an accomplice in this case, any testimony of John Doe which you find to be uncorroborated by other evidence should be viewed with great caution and suspicion if you find such uncorroborated testimony to be unreasonable, self contradictory, or substantially impeached.

¶ 31. Finally, in addressing that part of the majority opinion which would overrule this Court’s decision in Ellis v. State, 790 So.2d 813, 816 (Miss.2001), and the Court of Appeals’ decision in Clemons v. State, 952 So.2d 314, 318 (Miss.Ct.App.2007), I cannot find fault with the majority opinion’s analysis as to Ellis and Clemons, because both these cases appear to misstate Ballenger, which clearly was addressing the “unreasonable, self contradictory or substantially impeached” aspect of an accomplice’s testimony from the standpoint of addressing the legal sufficiency of the evidence to sustain a conviction. Ballen- ger, 667 So.2d at 1253. The discussion in Ballenger had nothing to do with the issue of whether an accomplice instruction should have been given. Id. at 1252-53. Concerning the majority’s discussion of Smith v. State, 907 So.2d 292, 298 (Miss. 2005), while Smith admittedly does carry forward the same quote from Ellis citing Ballenger (907 So.2d at 298), Smith correctly guides the trial bench and bar as to when an accomplice instruction is required and the general form which the instruction should take.

Additionally, proposed jury instruction D-l states that an accomplice’s testimony must “always be examined and weighed by the jury with greater care and caution than the testimony of ordinary witnesses.” This is an incorrect statement of the law. We take this opportunity to clarify that when an accomplice instruction is required, the trial court (as was done in this case) must inform the jury that an accomplice’s testimony which is uncorroborated by other evidence must be viewed with great caution and suspicion. Black v. State, 336 So.2d 1302, 1303 (Miss.1976) (citing Hutchins v. State, 220 So.2d 276 (Miss. 1969); Cole v. State, 217 Miss. 779, 65 So.2d 262 (1953)). See also Brown v. State, 890 So.2d 901, 910-911 (Miss. 2004); Ellis v. State, 790 So.2d 813, 816 (Miss.2001) (Uncorroborated testimony of an accomplice may be sufficient to convict an accused but a cautionary instruction is warranted where the testimony is unreasonable, self contradictory or substantially impeached.) (quoting Ballenger v. State, 667 So.2d 1242, 1253 (Miss.1995)). The testimony of an accomplice is not required to be viewed with great caution and suspicion just because he is an accomplice, but instead it is only that portion of an accomplice’s testimony which is uncorroborated by other evidence which is viewed with great caution and suspicion. The jury instruction given by the trial court properly stated that if the jury found the testimony of the alleged accomplice to be uncorroborated by other evidence, then the jury should view his testimony with great caution and suspicion. This is a correct statement of the law, and the trial court did not err in refusing the defense’s proposed instruction D-l.

Smith, 907 So.2d at 298 (emphasis in original).

¶ 32. In sum, I would encourage our trial judges to give accomplice instructions without hesitation when justified by the evidence and the applicable law. If error is to be made when considering a properly worded accomplice instruction, err on the side of giving the accomplice instruction.

¶ 33. Having offered my views on accomplice testimony and the accomplice instruction in general, the inescapable conclusion in today’s case is that because the only direct evidence linking Willie Williams to the robbery was the testimony of two accomplices, Montreal Veal and Terrence Young, and because the trial judge refused to instruct the jury concerning accomplice testimony, I concur in the majority opinion reversing Williams’s conviction and sentence and remanding to the trial court for another trial.

WALLER, C.J., DICKINSON, RANDOLPH, LAMAR AND PIERCE, JJ., JOIN THIS OPINION.

      . The three men were jointly indicted, but the State agreed to a severance of Williams’s case for trial.

      . To be clear, notwithstanding this discussion, the law of this State continues to be that the general rule is the uncorroborated testimony of an accomplice may be sufficient to sustain a conviction. Ballenger, 667 So.2d at 1253 (citing Mason v. State, 429 So.2d 569, 571 (Miss. 1983)).


author: KITCHENS, Justice, WALLER, Chief Justice,

text:
    STATE of Mississippi v. BAYER CORPORATION, Bayer Pharmaceuticals Corporation and Bayer Healthcare, LLC.
    No. 2008-CA-01659-SCT.
    Supreme Court of Mississippi.
    April 15, 2010.

      D. Ronnie Musgrove, J. Leray McNamara, Frank Kolb, Ridgeland, George W. Neville, Jackson, Wilson Daniel “Dee” Miles, III, Andy Lowry, Ridgeland, attorneys for appellant.
    Michael P. Doss, William F. Goodman, III, Steven D. Orlansky, Jackson, Richard D. Raskin, attorneys for appellees.
   KITCHENS, Justice,

for the Court:

¶ 1. The State of Mississippi filed suit in the Chancery Court of the First Judicial District of Hinds County against more than eighty pharmaceutical manufacturers, including Bayer Corporation, Bayer Pharmaceuticals Corporation, and Bayer Healthcare, LLC (“Bayer”). The State alleged that each of the defendants had fraudulently misrepresented the average wholesale prices (AWP) of drugs provided to beneficiaries of the Mississippi Medicaid program, causing the State to overpay drug providers.

¶ 2. After investigating the State’s claim, two special masters appointed by the trial court concluded that a 2001 Settlement Agreement between the State and Bayer made Bayer unique among the defendants, and that because the State had failed to plead around the 2001 Settlement Agreement, its claims against Bayer should be dismissed pursuant to Rules 12(b)(6) and 9(b) of the Mississippi Rules of Civil Procedure. Following the special masters’ recommendation to dismiss for failure to state a claim upon which relief can be granted, the chancellor dismissed with prejudice the State’s claims against Bayer. The State appeals that decision.

FACTS

¶ 3. In 2001, the State of Mississippi and Bayer Corporation entered into a Settlement Agreement after federal officials and forty-seven states had alleged that, during the time period of January 1993 through August 1999, Bayer Corporation had misrepresented the prices at which it had sold certain drugs to the drug providers of those states. In the ensuing Settlement Agreement, Bayer denied that it had engaged in any fraudulent conduct, and noted that it had entered into the settlement agreement in 2001 solely “to avoid the delay, uncertainty, inconvenience and expense of protracted litigation of claims.”

¶ 4. The Settlement Agreement was limited to “covered conduct,” which related to Bayer’s alleged actions regarding qui tarn drugs. In exchange for a release of any civil or administrative claims related to the “covered conduct,” Bayer paid Mississippi $48,608.09 and agreed to provide the State “with true pricing information that accurately reflects the prices at which actual purchasers buy the drug and biological products sold by Bayer” for a period of five years, commencing on the date of the settlement agreement.

¶ 5. On October 20, 2005, four years after entering into the Settlement Agreement with Bayer, the State filed the complaint in this case against Bayer Corporation, Bayer Pharmaceuticals Corporation, Bayer Healthcare, LLC, and more than eighty other pharmaceutical manufacturers, alleging that each defendant had misrepresented the AWPs of drugs sold to drug providers of Mississippi. Specifically, the State alleged that the AWP is a vital part of the formula used by the State’s Medicaid program to establish the amount of reimbursement due from that program to drug providers, and that, as a consequence of the drug manufacturers’ misrepresentation of the AWPs, the State had reimbursed the drug providers of Mississippi at a higher rate than necessary, resulting in monetary damages to the State and its taxpayers. The actual causes of action alleged by the State in the first amended complaint are State Medicaid fraud, deceptive trade practices, and common-law fraud.

¶ 6. On June 1, 2006, Bayer moved to dismiss the State’s claim against the Bayer defendants pursuant to Mississippi Rule of Civil Procedure 12(b)(6), claiming that the 2001 Settlement Agreement barred the State’s claims, and that the State had failed to plead fraud with the particularity required by Mississippi Rule of Civil Procedure 9(b). The special masters recommended granting Bayer’s motion and entered Report, Recommendation and Order No. 2 (R & R No. 2) on July 28, 2006. R & R No. 2 is as follows:

First, contrary to the State’s assertion, the plain language of the release is not limited to claims based on fraud. Rather, the release covers ‘any civil or administrative monetary claim, action, suit or proceeding the State has or may have under any source of law for the Covered Conduct.’ This language plainly requires the dismissal of all claims for pre-settlement conduct pertaining to the six Qui Tam Drugs. All claims as to those drugs are dismissed with prejudice.
Second, the State has pleaded no basis for a claim relating to pre-settlement conduct as to products other than the Qui Tam Drugs. The only mention in the Complaint of any Bayer products occurs in Exhibit B, which refers to AWP data on three products — Koate, Kogenate, and Gamimune — each of which is a Qui Tam Drug covered by the release. Further, the settlement was preceded by a broad based investigation of Bayer led by the federal government and joined by 47 states. Had concerns arisen about price reporting on products other than the six Qui Tam Drugs, we trust that those concerns would have been addressed in the course of the investigation and settlement. In any event, absent any specific allegation of wrongdoing as to Non-Qui Tam Drugs, we find no basis for the State’s claims relating to the pre-settlement period to proceed at this point. If at a later date the State has evidence the comprehensive investigation previously made against Bayer that resulted in the settlement should have included other drugs for the time prior to 2001, the State may biing a new action at that time. All claims for Bayer drugs other than the six Qui Tam drugs prior to 2001 are dismissed without prejudice.
Third, and finally, the State has not pleaded a claim- with respect to the post-settlement time period. The settlement requires Bayer to report to the State on a quarterly basis the average sales price for every one of its drugs. These reports are designed to provide the State with ‘true pricing information that accurately reflects the prices at which actual purchasers buy the drug and biological products sold by Bayer.’ Absent any allegation that Bayer has not complied with this requirement, the State’s claims — to the extent that they are directed at the post-settlement time period — are moot. Those claims are thus dismissed ivith prejudice.

(Emphasis added.)

¶ 7. On September 5, 2006, the special masters entered Report, Recommendation and Order No. 16 (R & R No. 16), granting the defendants’ motion for a more definite statement. R & R No. 16 stated:

Plaintiff, within twenty (20) days of this Order, shall file its amended complaint to comply with Rules 8, 9, and 11 and, at a minimum, shall plead as to each Defendant the specific drug(s) in issue, and if ascertainable, the allegedly fraudulent AWP(s) for each such drug, and the basis for alleging each such AWP was fraudulent.

¶8. Rather than objecting to R & R Nos. 2 and 16, the State filed its first amended complaint on October 5, 2006, alleging that Bayer had inflated its AWPs by at least 17%, knowing that the State would rely on the inflated AWP to establish the reimbursement due to drug providers. The State also listed in Exhibit A to the amended complaint thirty-one drugs marketed and sold by Bayer that allegedly had given rise to the State’s causes of action.

¶ 9. Notwithstanding the State’s amended complaint, the chancery court adopted R & R No. 2 in its entirety on October 10, 2006, dismissing all of the State’s claims against Bayer. All claims to post-settlement conduct regarding any drug marketed and sold by Bayer and all claims related to presettlement conduct related to qui tarn drugs were dismissed with prejudice, and all claims stemming from presettlement causes of actions regarding drugs other than qui tam drugs were dismissed without prejudice.

¶ 10. On November 13, 2007, Bayer moved to dismiss the amended complaint, contending that, although the State had the right to refile a complaint for claims stemming from presettlement conduct related to drugs other than the qui tam drugs, it had failed to plead fraud with the particularity required by Rule 9(b) of the Mississippi Rules of Civil Procedure. Bayer alleged that the State’s amended complaint “merely list[ed] the names of several Bayer drugs, along with a boilerplate allegation — made as to all defendants — that Bayer’s AWPs were ‘at least 17%’ above the ‘true Average Wholesale Price in the marketplace,’ ” and that the State’s “boilerplate allegations of fraud as to Bayer in the Amended Complaint do not suffice to plead around the preclusive effect of Bayer’s 2001 Settlement or the Court’s prior rulings dismissing the State’s claims.” Bayer also noted that, because the amended complaint failed to include “specific allegation[s] of wrongdoing as to non-Qui Tam Drugs[,]” and because there was no explanation in the amended complaint for why “the comprehensive investigation previously made against Bayer that resulted in the settlement should have included other drugs for the time prior to 2001[,]” dismissal pursuant to Rules 9(b) and 12(b)(6) was proper.

¶ 11. On February 25, 2008, Aventis Pharmaceuticals, Inc., filed a motion for judgment on the pleadings, pursuant to Mississippi Rule of Civil Procedure 12(c), on behalf of all defendants in the action. In response, the special masters entered Report and Recommendation No. 33 (R & R No. 33) denying the motion by noting that the State’s amended complaint had cured any specificity defects that had existed in the State’s original complaint, and that additional specificity was not required.

¶ 12. Notwithstanding R & R No. 33, the special masters entered Report and Recommendation No. 35 (R & R No. 35) on April 2, 2008, granting Bayer’s individual motion to dismiss pursuant to Mississippi Rules of Civil Procedure 9(b) and 12(b)(6). The special masters opined that, after R & R No. 2, the State’s only surviving causes of action were those stemming from presettlement conduct related to non-qui tam drugs, and that, because the State had failed to provide the special masters evidence that the comprehensive investigation leading to the 2001 Settlement Agreement should have included drugs other than the qui tam drugs, dismissal of those claims was proper.

¶ 13. The court entered an order adopting R & R No. 35 in its entirety, dismissing all of the State’s claims against Bayer. From this final order, the State filed a timely appeal.

ISSUES

¶ 14. The issues presented by the parties are; (1) whether the trial court erred in granting Bayer’s Rule 12(b)(6) motion to dismiss the State’s presettlement claims regarding non-qui tam drugs, and (2) whether the trial court erred in finding that the 2001 Settlement Agreement barred the State’s claim for damages related to presettlement claims regarding non-qui tam drugs. The State couches its argument as follows:

1. The trial court erred in holding the State to a heightened pleading standard based on a previous settlement agreement which should not have been considered at the motion to dismiss stage.
2. The trial court erred in finding the 2001 settlement agreement barred the State’s claims for drugs not subject to the release.

Bayer couches its argument as follows:

1. The State released any presettlement claims concerning the qui tam drugs as part of its 2001 Settlement Agreement with Bayer.
2. The State has no viable claims related to the post-settlement period for any Bayer products.
3. The first amended complaint alleges no viable claims as to the presettlement period for non-qui tam Drugs.

¶ 15. This case turns on the propriety of the dismissal of the State’s complaint pursuant to Rules 12(b)(6) and 9(b) of the Mississippi Rule of Civil Procedure; therefore this Court need only address whether the State failed to plead fraud with the specificity required by Rule 9(b), and whether dismissal pursuant to Rule 12(b)(6) was proper.

STANDARD OF REVIEW

¶ 16. “In reviewing the grant of a motion to dismiss for failure to state a claim, the appellate court conducts a de novo review.” Webb v. DeSoto County, 843 So.2d 682, 684 (Miss.2003) (citing Lowe v. Lowndes County Bldg. Inspection Dep’t, 760 So.2d 711, 712 (Miss.2000)).

ANALYSIS

(I) Whether the State failed to plead fraud with the specificity required by Rule 9(b) of the Mississippi Rules of Civil Procedure.

¶ 17. Rule 9(b) of the Mississippi Rules of Civil Procedure sets forth the pleading requirements when fraud is alleged. It reads, in relevant part, “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” M.R.C.P. 9(b). If a plaintiffs complaint does not comply with the particularity requirements of Rule 9(b), “the complaint should not survive a motion to dismiss for failure to state a claim under Rule 12(b)(6).” State Indus., Inc. v. Hodges, 919 So.2d 943, 948 (Miss.2006).

¶ 18. In Allen v. Mac Tools, Inc., 671 So.2d 636 (Miss.1996), this Court expounded on Rule 9(b), noting that “[fjraud will not be inferred or presumed and may not be charged in general terms. The circumstances of the alleged fraud such as the time, place and contents of any false representations or conduct must be stated.” Id. at 642 (quoting Brabham v. Brabham, 483 So.2d 341, 342 (Miss.1986)). The Court in Mac Tools relied upon the elements of fraud to determine whether the plaintiffs complaint adequately pled fraud. Id. These elements are:

(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of its truth; (5) the speaker’s intent that the representation should be acted upon by the hearer and in the manner reasonably contemplated; (6) the hearer’s ignorance of its falsity; (7) the hearer’s reliance on the representation’s truth; (8) the hearer’s right to rely thereon; and (9) the hearer’s consequent and proximate injury.

Id. (citing Benson v. Hall, 339 So.2d 570 (Miss.1976); Edmonds v. Delta Democrat Publ’g Co., 230 Miss. 583, 93 So.2d 171 (1957)).

¶ 19. Applying this definition of fraud to the case at bar, the State’s amended complaint alleges that Bayer “caused false Average Wholesale Prices for each of the listed pharmaceuticals to enter the stream of commerce knowing that they would be used by Mississippi as the principal means of estimating the acquisition cost of pharmaceuticals dispensed to beneficiaries of the Medicaid program, causing Mississippi to overpay [Bayer’s] customers.” This allegation alone asserts a knowing, material, and false representation by Bayer with the purpose of deceiving the State, and that the State’s reliance on Bayer’s representation proximately caused the State’s injury. Yet, the State went further to say in the amended complaint that:

Each defendant reported directly, or caused to be reported AWPs for their products on a periodic and continuing basis for publication and dissemination to Mississippi. Each defendant [which includes the Bayer defendants] knew that the AWP information which they provided and caused to be reported was false. Each defendant misrepresented the pricing information with the intent of inducing Mississippi to rely on the false information in reimbursing its customers, the Medicaid providers. Mississippi’s Medicaid program reasonably relied on the false Average Wholesale Prices to reimburse the providers. Each defendant’s misrepresentation are [sic] continuing, as they regularly and periodically continue to issue, cause to be issued, and maintain, false and inflated Average Wholesale Prices for publication by the industry reporting services. As a result of each defendant’s fraudulent conduct, the State has been damaged by overpaying for each defendant’s pharmaceutical products listed in the attached Exhibit A.

¶ 20. The State’s amended complaint meets the specificity requirements of Rule 9(b), and Bayer does not dispute that without the settlement agreement, the amended complaint would have been pled sufficiently against the named Bayer defendants, as it was for each and all of the other defendants. The question, then, is whether the trial court erred in considering the 2001 Settlement Agreement between the State and Bayer when ruling on Bayer’s Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted.

(II) Whether dismissal pursuant to Rule 12(b)(6) was proper.

¶21. “When considering a motion to dismiss, the allegations in the complaint must be taken as true and the motion should not be granted unless it appears beyond reasonable doubt that the plaintiff will be unable to prove any set of facts in support of her claim.” Howard v. Estate of Harper ex rel. Harper, 947 So.2d 854, 856 (Miss.2006) (citing Liggans v. Coahoma Sheriffs Dep’t, 823 So.2d 1152, 1154 (Miss.2002)). “This Court must find that there is no set of facts that would entitle a defendant to relief under the law in order to affirm an order granting the dismissal of a claim on a Rule 12(b)(6) motion.” Wilbourn v. Equitable Life Assurance Soc., 998 So.2d 430, 435 (Miss.2008) (citing Lowe v. Lowndes County Bldg. Inspection Dep’t, 760 So.2d 711, 713 (Miss.2000)). A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint, and an inquiry as to the legal sufficiency is “essentially limited to the content of the complaint.” T.M. v. Noblitt, 650 So.2d 1340, 1345-46 (Miss. 1995) (quoting Jackson v. Procunier, 789 F.2d 307, 309 (5th Cir.1986)). This Court has gone further, holding that Rule 12(b)(6) motions “are decided on the face of the pleadings alone.” Hartford Cas. Ins., Co. v. Halliburton Co., 826 So.2d 1206, 1211 (Miss.2001). Moreover, Mississippi Rule of Civil Procedure 12(b) provides in part:

If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56[.]

M.R.C.P. 12(b)(7).

¶22. Notwithstanding this Court’s longstanding application of Rule 12(b), Bayer relies on Sennett v. United, States Fidelity and Guaranty Company, 757 So.2d 206 (Miss.2000), asserting that a trial court may consider matters outside the pleadings when ruling on a Rule 12(b)(6) motion. In Sennett, the core issue was whether the trial court had erred in granting a dismissal pursuant to the defendant’s Rule 12(b)(6) motion after considering an insurance policy that was attached to the defendant’s motion. Id. at 209. This Court joined the ranks of several federal courts of appeal in holding that, in rare circumstances, a trial court may consider documents attached to a defendant’s Rule 12(b)(6) motion to dismiss without converting the motion to dismiss to a Rule 56 motion for summary judgment, as long as the “plaintiff has actual notice of all of the information in the movant’s papers and has relied upon these documents in framing the complaint.” Id. (quoting Cortee Indus, v. Sum, Holding L.P., 949 F.2d 42, 48 (2d Cir.1991)). The Court noted that a primary purpose for limiting the review of a Rule 12(b)(6) motion to the face of the complaint is that considering matters outside the pleadings might deprive the plaintiffs of adequate notice of an affirmative defense, and that if a plaintiff relies upon the extrinsic documents in framing his or her complaint, the concern for adequate notice is “largely dissipated.” Id.

¶ 23. Ultimately, the Court held that, because the third-party complaint was “central and necessary to the Plaintiffs cause of action,” and because the terms of the policy were “clear, plain, and unambiguous,” the trial court did not err in considering it when ruling on the Rule 12(b)(6) motion without converting the motion to a motion for summary judgment. Id. at 211.

¶ 24. However, rather than adhering to the reasoning in Sennett, this Court has affirmed its allegiance to the rule limiting review of a Rule 12(b)(6) motion to the face of the complaint. In Wilboum, 998 So.2d 430 (Miss.2008), the trial judge granted the defendant’s Rule 12(b)(6) motion after considering the effect of a whole-life insurance policy on the plaintiffs complaint. Upon review, this Court held that Rule 12(b) expressly notes that when “matters outside the pleading are presented ... the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.” Id. (quoting M.R.C.P. 12(b)). The Court ultimately vacated the order of dismissal, noting that the trial judge had erred in considering matters outside the pleadings without converting the Rule 12(b)(6) motion into a Rule 56 motion for summary judgment and failing to give the nonmovant, at minimum, ten days’ notice of a hearing for summary judgment. Id. at 436. Similarly, in Sullivan v. Tullos, 19 So.3d 1271 (Miss.2009), this Court held that failure to give a party ten days’ notice after a Rule 12(b)(6) motion has been converted into a Rule 56 motion will result in a reversal of the judgment by this Court. Id. at 1276.

¶ 25. Here, as in Wilboum and Tullos, the trial court considered matters outside the pleadings when it took into account the 2001 Settlement Agreement. Having done so, the trial court was required to convert Bayer’s Rule 12(b)(6) motion into a Rule 56 motion for summary judgment. The record shows that the trial court failed to do so, depriving the State of actual notice of its intent to rule on the matter as a motion for summary judgment. This Court’s recent interpretation of Rule 12(b)(6) and Rule 9(b) in Wilboum and Tullos and a plain reading of Rule 12(b) establish this as error.

CONCLUSION

¶ 26. The trial court’s dismissal of the State’s claims regarding presettlement non-qui tarn drugs is reversed, and this case is remanded to the Chancery Court of the First Judicial District of Hinds County for proceedings consistent with this opinion.

¶ 27. REVERSED AND REMANDED.

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

WALLER, Chief Justice,

concurring in part and in result:

¶ 28. I agree with the majority that the State’s amended complaint satisfies the specificity requirements of Rule 9(b). I also agree that the trial court erred by not converting Bayer’s Rule 12(b)(6) motion to dismiss into a Rule 56 motion for summary judgment, but for different reasons. Conversion to summary judgment is not required every time a trial court considers documents attached to a Rule 12(b)(6) motion. Sennett v. U.S. Fid. & Guar. Co. [“USF & G”], 757 So.2d 206 (Miss.2000). In my view, Sennett is good law if the facts warrant. They do not here, however, because the trial court considered matters outside of both the pleadings and the attached documents — namely, the presettlement investigation. I would reverse and remand on those grounds; and therefore, I concur in part and in result.

¶ 29. In Sennett, this Court recognized an exception to the general rule that a Rule 12(b)(6) motion must be converted into a Rule 56 motion if the trial court considers matters outside the pleadings. Sennett, 757 So.2d at 209-10. In that case, the Sennetts’ complaint alleged that USF & G and Fidelity were obligated under the terms of “an insurance policy” to defend or indemnify the Sennetts against a wrongful-death suit. Id. at 208. USF & G and Fidelity filed a motion to dismiss and attached copies of two insurance policies to their motion. Id. The trial court considered the pleadings and the terms of the two policies in dismissing USF & G and Fidelity. Id. at 209. We held that conversion to summary judgment was unnecessary because: (1) the Sennetts’ complaint referred to the policies; (2) the policies were central and necessary to their cause of action; and (3) USF & G and Fidelity attached the entire policies to their motion to dismiss. Id. at 210 (quoting Sheppard v. Texas Dep’t of Transp., 158 F.R.D. 592, 596 (E.D.Tex.1994)).

¶ 30. Although the majority frames Sennett as an aberration within our longstanding jurisprudence, it is sound law where the facts warrant. The necessity of converting a Rule 12(b)(6) motion to a Rule 56 motion dissipates where a plaintiff has adequate, actual notice of all the information in the movant’s papers and relies on that information in framing the complaint. Sennett, 757 So.2d at 210 (citing Cortec Indus. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991)). Sennett’s exception also is compatible with our rules of civil procedure. Rule 10(c) of the Mississippi Rules of Civil Procedure states that “[a] copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” Miss. R. Civ. P. 10(c). The federal counterpart to Mississippi’s Rule 10(c) is the basis for a bevy of federal courts allowing consideration of documents attached to a Rule 12(b)(6) motion. 5A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure: Civil 3d § 1827, at 443-44 (2004).

¶ 31. Admittedly, as pointed out by the majority, our recent decisions in Sullivan v. Tullos, 19 So.3d 1271 (Miss.2009), and Wilbourn v. Equitable Life Assurance Society, 998 So.2d 430 (Miss.2008), indicate that conversion to summary judgment is necessary where matters outside the pleading are considered. Yet, neither of those cases discussed Sennett or its implications. Sullivan, 19 So.3d 1271; Wilbourn, 998 So.2d 430.

¶ 32. Sennett ⅛ exception would apply in this case but for one important distinction. The State’s amended complaint referred to the 2001 Settlement Agreement. That Settlement Agreement was central and necessary to the State’s cause of action because it controlled which claims were actionable. Furthermore, Bayer attached the 2001 Settlement Agreement to its motion to dismiss. Had the trial court considered only the pleadings and the attached documents, which included the 2001 Settlement Agreement, conversion to summary judgment would not have been required. See Sennett, 757 So.2d at 209-10. But here, unlike Sennett, the trial court looked beyond the face of the pleadings and the attached documents by considering facts surrounding the presettlement investigation. See id. at 209.

¶ 33. As explained below, the comprehensiveness of the presettlement investigation formed the central basis for the trial court’s dismissal. In its Report, Recommendation and Order No. 2, the trial court stated it “trusted” that the presettlement investigation encompassed qui tam and non -qui tam drugs alike. It thus required the State to plead around that investigation in any later complaint. The State had to show that the investigation leading up to the 2001 Settlement Agreement was inadequate.

[T]he [2001] settlement was preceded by a broad based investigation of Bayer led by the federal government and joined by 47 states. Had concerns arisen about price reporting on products other than the six Qui Tam Drugs, we trust that those concerns would have been addressed in the course of the investigation and settlement. In any event, absent any specific allegation of wrongdoing as to Non-Qui Tam Drugs, we find no basis for the State’s claims relating to the pre-settlement period to proceed at this point. If at a later date the State has evidence the comprehensive investigation previously made against Bayer that resulted in the settlement should have included other drugs for the time 'prior to 2001, the State may bring a new action at that time.

(Emphasis added.)

¶ 34. In response to Report, Recommendation and Order No. 2, the State filed its first amended complaint, in which it attempted to distinguish the earlier, pre-settlement investigation. It alleged that particular investigation had “focused upon products and practices where spread and spread marketing techniques were more extreme or flagrant....” The State contended that the subject suit is broader: It attacks an “industry practice” of introducing an Average Wholesale Price inflated by a minimum of seventeen percent.

¶ 35. The trial court found that the State had failed to state a claim for which relief could be granted. It maintained that “it is logical to assume” that concerns about non-Qro torn drugs would have been addressed in the course of the presettlement investigation. Consequently, it dismissed the case, concluding that the State had failed to make any specific allegation that the settlement and investigation leading up to it were inadequate.

¶ 36. The comprehensiveness of the presettlement investigation is a question of fact that is not apparent from the pleadings or the attached documentation. The trial court simply assumed its own facts about that investigation and required the State to plead around those assumptions. More importantly, the presettlement investigation ultimately is immaterial to whether the State has asserted a legally recognizable claim for relief. Even if the presettlement investigation encompassed every drug manufactured by Bayer, that alone would not bar a subsequent claim. The 2001 Settlement Agreement is the only document that precludes any later claims, and it releases only those claims concerning qui tam drugs. The presettlement investigation had no bearing at the 12(b)(6) stage.

¶ 37. The trial court’s consideration of the presettlement investigation necessitated conversion to summary judgment. I would reverse and remand on those grounds.

DICKINSON, J., JOINS THIS OPINION.

      . A qui tarn action is ‘‘[a]n action brought under a statute that allows a private person to sue for a penalty, part of which the government or some specified public institution will receive.” Black's Law Dictionary 1282 (8th ed.2004). The referenced qui tam drugs included (1) Koate-HPAntihemophilic Factor (Human), (2) Kogenate Antihemophilic Factor (Recombinant), (3) Konyne-80 Factor IX Complex (Human), (4) Gamimune N, 5% Immune Globulin Intravenous (Human, 5%), (5) Gamimune N, 10% Immune Globulin Intravenous (Human, 10%), and (6) Thrombate III Antithrombin III (Human).

      . Bayer was the sole remaining defendant in this action after the chancery court transferred all other defendants to the Chancery Court of Rankin County; thus, the order dismissing each of Bayer’s claims was a final and appealable order under Mississippi Rule of Civil Procedure 54(b). M.R.C.P. 54(b).

      . Sennett, 757 So.2d at 209 n. 1; see also 5A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure: Civil 3d § 1327, at 443-47 (2004).