author: DAVID S. GORBATY, Judge.

text:
    Toni Swain ORRILL, individually and on behalf of the class v. AIG, INC., AIG Consultants, Inc., AIG. com, Inc., AIG Domestic Claims, Inc., d/b/a AIG Claims Services, Audubon Insurance Company d/b/a Audubon Insurance Group, and ABC, DEF and GHI Insurance Companies.
    Nos. 2009-CA-0566, 2009-CA-0568.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 2009.
    Rehearing Denied Dec. 16, 2009.

      Gregory P. DiLeo, Jennifer B. Eagan, and Madro Bandaries, Madro Bandaries, P.L.C., Jeffrey Berniard, Berniard Law Firm, R. Ray Orrill, Jr., Orrill, Cordell & Beary, L.L.C., New Orleans, LA, for Toni Swain Orrill, on her behalf as well as others similarly situated.
    Fred L. Herman, Law Offices of Fred L. Herman, Steven J. Lane, Stephen J. Herman, Herman, Herman, Katz & Cotlar, L.L.P. New Orleans, LA, Wiley J. Beev-ers, Steven M. Mauterer, Michael F. Somoza, Beevers & Beevers, L.L.P., Gretna, LA, J. Robert Ates, Ates Law Firm, APLC, Destrahan, LA, for Appellants.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   DAVID S. GORBATY, Judge.

|, These consolidated appeals involve two class action suits. The captioned matter was filed in Civil District Court for the Parish of Orleans on October 2, 2005, and the other class action entitled “Oubre v. Louisiana Citizens Fair Plan,” was filed in 24th Judicial District Court for the Parish of Jefferson in November 2005. The ultimate defendant in each lawsuit was Louisiana Citizens Fair Plan (Citizens).

Both lawsuits were filed in connection with alleged failings by Citizens to timely adjust claims and/or timely offer to settle claims following Hurricanes Katrina and Rita.

From the record, briefs and oral argument we have gleaned the following chronology. The Oubre class was certified in July 2006, and the Orrill class was certified in June 2008. From the outset there were conflicts between counsel for the two classes.

|2The Oubre• class definition, which was affirmed by the Louisiana 5th Circuit Court of Appeal, was as follows:

All present or past insureds of Louisiana Citizens Property Insurance Corporation a/k/a LOUISIANA CITIZENS FAIR PLAN, hereinafter referred to as “LCPIC” who on or after August 29, 2005, provided notification of loss resulting from Hurricanes Katrina and/or Rita to LCPIC, and whose loss adjustment was not initiated within thirty (30) days after notification of loss.

The original class definition in Orrill signed on June 6, 2008, read:

All persons insured by or through the Louisiana Citizens’ [sic] Fair Plan, and/or the Coastal Plan, underwritten, administered and/or serviced by any one or more of the named defendants, who sustained damages as a result of Hurricane Katrina to their covered personal and/or rental property and/or real property and improvements who have been unable to receive prompt adjustment within thirty days after notification of their loss, and/or who did not receive a written offer to settle within thirty days after receipt of satisfactory proof of loss of that claim, as provided by their policies of insurance.

Contemporaneously with the activities in Orrill, the Oubre case was moving forward in the 24th JDC. Six months prior to certification of the class in Orrill, Judge Sullivan, the judge presiding over Oubre, approved the class notice, which advised:

At present, this class action covers no other claims of [sic] cause of action other than that clearly set forth in the class definition and effects no other pending litigation, individual and/or class action, brought in the Parish of Jefferson or any other parish which action is not in conflict with the class definition as set forth by this court.
If you have filed your own separate claim as a result of Hurricane Katrina or Rita against Louisiana Citizens which does not make a claim that Louisiana Citizens failed to initiate loss adjustment within thirty | s(30) days after notification of loss, you MAY maintain your own separate lawsuit AND be a member of this class.
By remaining a class member, any claims against Louisiana Citizens for damages arising from their conduct as alleged by the class representatives will be determined in this case and cannot be presented in any other lawsuit.

On October 1, 2008, counsel for the Or-rill plaintiffs and for Citizens filed a joint motion to preliminarily approve a settlement between the parties. The total value of the proposed settlement was $35 million. Additionally, Citizens agreed to pay the actual costs incurred by plaintiffs in an amount up to $250,000. Class counsel sought to certify a settlement class defined as follows:

All present or past insured of Louisiana Citizens Property Insurance Corporation, a/k/a Louisiana Citizens Fair Plan, hereinafter referred to as “LCPIC,” who on or after August 29, 2005, provided notification of loss resulting from Hurricanes Katrina and/or Rita to LCPIC, and whose loss adjustment was not initiated within thirty (30) days after notification of loss and/or whose claims were not followed by a written offer to settle within thirty (30) days after receipt of satisfactory proof of loss.

The Stipulation of Settlement that accompanied the motion for approval specifically stated: “The parties herein acknowledge that this Compromise Agreement, that is entered between the parties to avoid further litigation, is favored by law, has a force equal to the authority of things adjudged and thus has res judicata effect, as per provisions of La. Civ.Code Art. 3078, including members of the class as found in the ‘class definition’ below.” [emphasis added]. The referenced definition is identical to the one found in the motion to approve the settlement.

14A preliminary approval order was signed by the court on October 1, 2008. The order reiterated the class definition, appointed the attorneys to represent the settlement class, and appointed a claims administrator. The order further approved the class notice of proposed settlement, set an “opt out” date, a deadline to object to the settlement, and set a fairness hearing date for the approval. The class notice informed the potential class members that the “opt out” date was December 1, 2008, and that all claims forms for those wishing to remain in the class must be postmarked no later than December 11, 2008. The fairness hearing was scheduled for December 15, 2008.

On October 29, 2008, Judge Sullivan issued a temporary restraining order to Citizens restraining them 1) from processing any claim form by an Oubre class member (as per Oubre class definition); 2) from considering the absence of receipt of an “opt out” form to be a consent by an Oubre class member to be included in Orrill; 3) from taking any action to include, enforce and/or apply the Orrill settlement stipulation against any member of the Oubre class; 4) from filing pleadings in Orrill designed to fund the qualified trust account, and/or authorizing distribution of any funds from that account to Oubre class members; 5) from communicating with any Oubre class member; and 6) from participating in any fairness hearing in Orrill if the purpose of said participation is to seek to include, involve, affect, or impact on the Oubre class members.

Upon learning of the temporary restraining order in Jefferson Parish, on October 29, 2008 Orrill counsel filed in CDC a motion for contempt against Oubre counsel, seeking sanctions, penalties and attorneys’ fees.

lfiA hearing was held on November 10 in which the court heard three motions: 1) the above referenced motion for contempt; 2) a motion to enforce the proposed Onill settlement; and 3) a petition for a temporary restraining order, preliminary injunction, and permanent injunction filed by Orrill counsel against Oubre counsel. The petition alleged numerous breaches of the Code of Professional Responsibility, mainly that employees of Beevers & Beevers were contacting members of the Orrill settlement class by telephone and disseminating false information concerning the settlement. The petition also alleged that Beevers & Beevers’ employees were attempting to get Onill class members to “opt out” of Orrill and to sign a retainer agreement with Beevers & Beevers. Or-rill counsel sought to have Oubre counsel prohibited from making any further contact with Orrill class members. After a hearing on the 10th, the trial court rendered a judgment on November 21, holding Oubre counsel in contempt, granting sanctions, penalties and attorneys’ fees.

On November 13, the trial court issued the temporary restraining order restraining the Oubre counsel from:

[Contacting any member of the settlement class, as defined by the Court on October 1, 2008, in its class definition, by any means whatsoever, including telephone, fax, email, personal contact, correspondence, advertisement or any other form of communication whatsoever without leave of court.

The court denied Onill counsels’ request to have a curative notice mailed to Orrill class members.

Prior to a writ being taken by the Oubre counsel on the temporary restraining order, the trial court reversed itself and ordered that a curative |(inotice be issued to counter the alleged effect of the action taken by Oubre counsel.

On December 1, Oubre counsel sought a writ from this Court. In Orrill v. Louisiana Citizens Fair Plan, 2008-C-1468, December 1, 2008, this Court granted the writ and stated:

The Relators, counsel for the Oubre Class, have the right to communicate with their clients under the circumstances of this case. The trial court abused its discretion by prohibiting the Relators from communicating with their own clients. The trial court’s temporary restraining order to the extent it prohibits Relators from communicating with their clients is hereby dismissed.

Following the ruling from this Court, in a supplemental memoranda in support of the temporary restraining order, Onill counsel alleged that Oubre counsel was mailing a letter to Orrill class members. A copy of a letter on Beevers & Beevers letterhead was attached to the memorandum. It read:

WARNING!!

You probably have received paperwork regarding

LA CITIZENS INSURANCE CO. CLASS ACTION

This paperwork is an attempt to get you to settle

For less than $1,000.

BE ADVISED THAT this paperwork DID NOT come

from Beevers & Beevers, LLP, the Court Appointed

Attorneys for the Class Action Lawsuit against

LA Citizens Insurance Co.

UNDER THE LAW YOU CAN RECEIVE AS MUCH

AS $5,000.00 FOR EACH POLICY/PROPERTY!!

Please call us (504) 361-4287 ASAP!!!

On December 5, the trial court conducted a trial to decide if the temporary restraining should be made a preliminary injunction. On December 22, a judgment was rendered, restraining Oubre counsel from contacting members of the Orrill 17class, using the exact language that was contained in the prior temporary restraining order. In addition, the judgment explained that Oubre counsel “are allowed to contact them own clients who are in the Oubre class action, except that defendants-in-rule are prohibited from disseminating any misleading, or false information about the terms of the settlement in the above-captioned matter to anyone.”

From this judgment, Oubre counsel filed a devolutive appeal, which has been consolidated with the appeal of the contempt rule. In the 2009-CA-0566 appeal, Oubre counsel allege that because the Omll settlement class and the Oubre class has significant overlap, the preliminary injunction is difficult to interpret, and arguably prevents Oubre counsel from communicating with their own clients.

LAW AND ANALYSIS:

Article 3601 of the Louisiana Code of Civil Procedure provides in part: “An injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law; ...” La.Code Civ. Proe. art. 3601 A. To obtain a preliminary injunction, a petitioner must show that he will suffer irreparable injury in the absence of an injunction, that he is entitled to the relief sought, and that he can make a prima facie showing that he will prevail on the merits. Desire Narcotics Rehabilitation Center, Inc. v. State of La., Dept of Health & Hospitals, 07-0390, p. 3 (La.App. 4 Cir. 10/17/07), 970 So.2d 17, 20.

|SA preliminary injunction is an interlocutory procedural tool designed to preserve the status quo between the parties, pending a trial on the merits. Id., 07-0390, p.4, 970 So.2d at 20. The trial court has great discretion to grant or deny relief. Id. An appellate court will not disturb a trial court’s judgment absent an abuse of discretion. Id.

Based on oim review of a fragmented record, the dispute giving rise to the dueling temporary restraining orders arose when the trial court in the Orrill case enlarged the class as originally defined. It did so when it approved the proposed settlement between the Orrill class and Citizens, which settlement included a “new” class definition which subsumed persons originally belonging to the Oubre class only.

In Gulf Oil Co. v. Bernard, 452 U.S. 89, 101-102, 101 S.Ct. 2193, 2200-2201, 68 L.Ed.2d 693 (1981), a case with striking similarities to this one, Gulf Oil and the Equal Employment Opportunity Commission (EEOC) entered into an agreement whereby Gulf Oil would contact persons who had filed discrimination claims against it, and offer a settlement, provided the complainants signed a release for further claims. Some of the recipients of the Gulf Oil letter consulted with attorneys, and a class action was subsequently filed on behalf of the complainants. 452 U.S. at 91-92,101 S.Ct. at 2195-96. Gulf Oil sought a temporary restraining order to prohibit the class attorneys from contacting their clients, citing interference with Gulf Oil’s attempt to settle the claims. The district court issued a temporary restraining order banning all communications concerning the class |flaction between parties or their counsel and any actual or potential class member who was not a formal party. 452 U.S. at 92-93,101 S.Ct. at 2196.

Gulf Oil then sought a modification of the order, allowing it to continue to contact class members, soliciting releases in exchange for backpay. Class counsel responded that it needed to communicate with class members to obtain information about the case and to inform class members of their rights. Oral argument, was heard but no evidence was taken. 452 U.S. at 93-94,101 S.Ct. at 2196.

Other modifications were sought and hearings were held, resulting in an order that “imposed a complete ban on all communications concerning the class action or potential class member who was not a formal party, without the prior approval of the court.” Examples were given of forbidden communications such as solicitation of potential or actual class members, and any statements, “which may tend to misrepresent the status, purposes and effects of the class action” or “create impressions tending without cause, to reflect adversely on any party, any counsel, this Court, or the administration of justice.” The order permitted communications initiated by the client, and communications in the regular course of business. If the attorney asserted a constitutional right to communicate, the attorney was to file with the court a copy of the communication within five days. Gulf Oil, on the other hand, could freely communicate with anyone concerning the settlement agreement. 452 U.S. at 94-95,101 S.Ct. at 2197.

Upon review, the Supreme Court considered the authority of the district court to impose broad limitations on communications between named plaintiffs | mand their counsel to prospective class members, and more specifically, whether the order in the case below is “consistent with the general policies embodied in Rule 23, which governs class actions in federal court.” 452 U.S. at 99,101 S.Ct. at 2199.

The Court concluded that the order was an abuse of discretion. Although the Court recognized the potential for abuses in class-action litigation, the mere possibility of abuses “does not justify routine adoption of a communications ban that interferes with the formation of a class or the prosecution of a class action in accordance with the Rules.... [I]n the absence of a clear record and specific findings of need.” 452 U.S. at 103-104, 101 S.Ct. at 2201-2202.

At the hearing on the preliminary injunction, the testimony was taken of two persons who were both Orrill and Oubre actual or potential class members. According to his testimony, Mr. Henry stated that the property insured by Citizens was located in the Lake Charles area. Thus, any claim made by the Henry’s would be in relation to Hurricane Rita. Originally, the Orrill class did not include claims for Hurricane Rita damages; therefore, the Henry’s were potential members of the Oubre class only. Mrs. Henry’s name was provided to Oubre counsel during discovery. It was not until the Orrill class definition was expanded, did the Henry’s become potential Orrill class members also. Hence, Oubre counsel 1 n maintained a duty to represent the Henry’s. The Henry’s were sent a warning letter.

Floyd Miles testified that he received a letter from the Beevers & Beevers firm. He called the firm to get more information, but when he stated that he had already submitted a claim form for the Or-rill case, the person answering the call told him there was nothing that Beevers & Beevers could do for him, and terminated the call.

Michelle Lirette testified that she was hired by Beevers & Beevers to contact people identified by Citizens as potential class members. The purpose of the call was to inform Oubre class members of the ramifications of the proposed settlement in Orrill, i.e., that the Omll settlement would preclude them from receiving any monies in the Oubre case. It was her understanding that the people she called were members of both classes. Ms. Lir-ette admitted that she did tell some people that attorney’s fees would be deducted from the settlement in Omll, because that was her understanding. This admission differed from her testimony at the November 10 hearing, wherein she stated that two of the Oubre attorneys told her that attorney’s fees would be deducted.

The only other person to testify at the hearing was Suzanne Don de’Ville, the director of litigation for Citizens, explained that it was her understanding that the proposed settlement in Orrill would settle all claims under Orrill.

Boxes of documents were submitted as evidence, in addition to the above testimony. In that respect, this case differs from Gulf Oil v. Bernard, supra. li2However, the evidence submitted does not lead us to a different result. We find that the trial court abused its discretion when it issued the preliminary injunction. It is clear that persons who were once only Oubre actual or potential class members became actual or potential class members in Orrill when the trial court expanded the definition of the Omll class. These persons remained the clients or potential clients of the Oubre counsel, and those counsel maintained an obligation to inform and advise their clients of the ramifications of the proposed settlement in Omll. Although, in our opinion, the “warning letter” could have been worded differently, we find it does not contain any untrue or misleading statement. If the members of either class were confused, it is with good reason. Attorneys were appointed for these persons to advise and guide them through the legal process. The preliminary injunction improperly hindered the Oubre counsel from representing their clients.

Accordingly, for the reasons set forth above, we reverse the judgment of the trial court and vacate the preliminary injunction. This ruling effectively renders the appeal numbered 2009-CA-0568 moot.

JUDGMENT REVERSED; PRELIMINARY INJUNCTION VACATED.

      . Another class action, Chalona v. Louisiana Citizens Fair Plan, was filed in St. Bernard Parish, but was later incorporated into the Orrill lawsuit. It is not germane to this disposition.

      . This judgment was appealed suspensively and is the subject of No. 2009-CA-0568.

      . This judgment is the subject of appeal No. 2009-CA-0566.

      . Rule 23(d) of the Federal Rules of Civil Procedure provides: "(d) ORDERS IN CONDUCT OF ACTIONS. In the conduct of actions to which this rule applied, the court may make appropriate orders: ... (3) imposing conditions on the representative parties or on intervenors ... [and] (5) dealing with similar procedural matters.” (as cited and relied upon in Gulf Oil, 452 U.S. at 99, 101 S.Ct. at 2199.)

      . There was much discussion about Mr. Henry’s status as a class member, i.e., his wife actually owned the property. We will forego a discussion on the law of agency.


source: Caselaw Access Project

author: CARAWAY, J. LOLLEY, J.,

license: Public Domain

text:
    In re Jada Dean SUTTLE (Private Adoption), Plaintiff-Appellee. v. Marcus EASTER, Defendant-Appellant.
    No. 45,236-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2009.
    Writ Denied Jan. 19, 2010.

      Rachel King, for Appellant, Marcus Easter.
    Kimberly S. Smith, for Appellee, Jada Dean Suttle.
    Jerald N. Jones, for the Child.
    Before BROWN, STEWART, CARAWAY, MOORE and LOLLEY, JJ.
   CARAWAY, J.

11 This private adoption proceeding was brought by the stepfather of a three-year-old after the death of the child’s mother. After receiving notice of the proceeding, the biological father opposed the adoption, and a contest over his parental rights ensued with the plaintiff claiming that the biological father had never manifested a substantial commitment to the child. The juvenile court agreed with the plaintiff and terminated the parental rights of the father. For the following reasons, we affirm.

Facts

On May 15, 2009, Jada Dean Suttle initiated proceedings for the private adoption of A.D., the biological daughter of Suttle’s recently deceased wife, April. A.D. was born on May 15, 2006, and her birth certificate does not identify anyone as her biological father. Suttle and April were married five months later on October 14, 2006, and Suttle assumed the duties of parenting the minor child. On November 25, 2008, April, who was predeceased by her parents and had no siblings, died leaving no will designating a tutor or guardian for the minor child. The child has remained in Suttle’s physical custody since April’s death.

The adoption petition requested that notice of the proceedings be given to Marcus Easter, the alleged biological father of A.D., but asserted that his consent to the adoption was unnecessary due to his failure to take any steps to establish his parental rights. The court entered an order placing the minor child in the interim custody of Suttle during the pendency of the proceedings and set the adoption hearing for July 6, 2009. At the hearing, 12Easter made an appearance in proper person and requested DNA testing to determine paternity. The court ordered the testing, appointed an attorney to represent the child and reset the matter for further hearings.

On August 24, 2009, newly enrolled counsel for Easter filed an opposition to the adoption asserting DNA testing results which indicated a 99.999% probability of his paternity. Easter alleged that his attempts to locate April had been unsuccessful and that he had temporarily paid for the child’s care until he learned that another man was claiming to be the father. Lastly, the opposition alleged that a 2007 paternity and child support suit filed by April had been dismissed.

Trial of Easter’s opposition occurred on October 9, 2009, in what the court minutes reflect as a closed courtroom. Easter testified that he is 36 years old, has recently taken employment as a quality assurance supervisor for Game Stop, and has an annual income of approximately $50,000. He has never been married and has a family support system in both the Shreveport-Bossier and Dallas areas. He testified that once he received confirmation that he was the child’s biological parent he contacted a pediatrician, visited a daycare center near his home and made arrangements to enroll A.D. in their preschool program, and moved from a one-bedroom to a two-bedroom apartment. He also indicated his willingness to assume parental responsibility for the child.

Easter testified that he and April met at a party in October of 2005 at the home of Brian Jackson, a mutual friend. Easter and April left the party together, went to Easter’s residence and had sexual intercourse. Three | .¡weeks later, April phoned Easter to tell him that she was pregnant. At approximately six weeks of pregnancy, Easter went to visit April in the hospital where she told him that she suffered from Crohn’s disease. He saw her once more. In January of 2006 he moved from Shreveport to Mesquite, Texas. Easter testified that April called him on May 16, 2006, to tell him that A.D. had been born the previous day. Easter first saw the baby on the weekend of July 4, 2006, when he took her to meet his family.

Easter asserts that he asked April to submit to DNA tests to confirm his paternity both before and after the birth. He claimed that although she agreed, she never made herself or the baby available. Easter also testified that after he returned to Mesquite, he sent April a money order. The amount of the money order, however, was not revealed. Sometime later he sent her a check but stopped payment on it before April had an opportunity to cash it. He did so because his sister told him that another man was claiming to be her father which caused him to question his paternity.

Easter also filed in evidence certain pleadings from a November 2006 “Petition to Determine and/or Declare Paternity and to Establish Child Support” filed by the Louisiana Department of Social Services, on behalf of the minor child seeking a judgment against Easter establishing paternity and child support. The petition alleged that April and Easter “maintained a sexual relationship during 2005” which resulted in the conception and birth of the child.

[,iEaster filed a handwritten answer and admitted to having had a sexual “relationship” with April and to knowledge of both the pregnancy and birth of the baby. Easter did not deny being the father of the child, but requested a DNA test to confirm paternity. The parties filed a joint motion for paternity testing and an order signed on April 19, 2007, directed April, Easter and A.D. to' submit to the collection of tissue samples for DNA testing. No other pleadings from the action which may have occurred were offered into evidence. Easter testified that he submitted to the DNA testing at the designated location in Dallas, Texas, but on or around May 7, 2007, received a letter from Support Enforcement Services which read in pertinent part as follows:

Dear MARCUS EASTER:
Your child support case with the above referenced person has been closed with the Agency.
If you are under obligation to pay child support, any future child support payments should be paid directly to the custodial parent.
The termination of your obligation through this office does not exempt you from making child support payments. You should contact the custodial parent and/or your attorney to determine what actions you should take in the future.

Easter testified that the letter caused him to believe that April knew or was not sure whether he was the father, although he admitted that he had no direct communication with April about the support action at that time. He also claimed that he called support enforcement and was told that the letter meant “nothing” and that he did not have to do anything further. Easter admitted that he never consulted with or hired an attorney to investigate the | ¿paternity issue any further. When asked why he took no affirmative steps to resolve his confusion over paternity, Easter referred only to his failed attempts to contact April to request DNA testing.

After considering the testimony and evidence, the trial judge ruled that Easter had not established his parental rights because he failed to establish a substantial commitment to his parental responsibility as required by La. Ch.C. art. 1138 (hereinafter “Article 1138”). Because of April’s actions in informing Easter of his paternity before and after the child’s birth, the trial court ruled that Easter “knew at a very early stage that there was a significant possibility that [he] had fathered a child.” In a written judgment, the court terminated Easter’s rights per La. Ch.C. art. 1138(D) and certified A.D. for adoption. The instant appeal followed.

Law

Louisiana recognizes three types of adoptions: agency adoptions, private adoptions and intra-family adoptions. La. Ch.C. art. 1170. The matter before us is a private adoption which is governed by Title XII, Chapter 10 of the Children’s Code. La. Ch.C. arts. 1221, et seq. La. Ch.C. art. 1221 reads as follows:

A single person, eighteen years or older, or a married couple jointly may petition to privately adopt a child. When one joint petitioner dies after the petition has been filed, the adoption proceedings may continue as though the survivor was a single original petitioner.

| ^Additionally, La. Ch.C. art. 1224 provides as follows in relevant part:

C. If the adoption petition names an alleged or adjudicated father and his parental rights have not been terminated by a court of competent jurisdiction, he shall be served with notice of the filing of the petition in accordance with Articles 1133, 1134, and 1136 and thereafter, his rights shall be determined in accordance with the provisions of Articles 1137 through 1143.

In keeping with these provisions from Chapter Ten, the trial court applied Articles 1137 and 1138 of the Children’s Code for the adjudication of Easter’s parental rights. Article 1138 of the Children’s Code provides as follows:

A. At the hearing of the opposition, the alleged or adjudicated father must establish his parental rights by acknowledging that he is the father of the child and by proving that he has manifested a substantial commitment to his parental responsibilities and that he is a fit parent of his child.
B. Proof of the father’s substantial commitment to his parental responsibilities requires a showing, in accordance with his means and knowledge of the mother’s pregnancy or the child’s |7birth, that he either:
(1) Provided financial support, including but not limited to the payment of consistent support to the mother during her pregnancy, contributions to the payment of the medical expenses of pregnancy and birth, or contributions of consistent support of the child after birth; that he frequently and consistently visited the child after birth; and that he is now willing and able to assume legal and physical care of the child.
(2) Was willing to provide such support and to visit the child and that he made reasonable attempts to manifest such a parental commitment, but was thwarted in his efforts by the mother or her agents, and that he is now willing and able to assume legal and physical care of the child.
C.The child, the mother of the child, and the legal custodian may offer rebuttal evidence limited to the issues enumerated in Paragraphs A and B of this Article. However, the primary consideration shall be, and the court shall accept evidence concerning, the best interests of the child.
D. If the court finds that the alleged or adjudicated father has failed to establish his parental rights, it shall decree that his rights are terminated.
E. If the coui't finds that the alleged or adjudicated father has established his parental rights, the court shall declare that no adoption may be granted without his consent. The court may also order the alleged or adjudicated father to reimburse the department, or the licensed private adoption agency, or other agency, or whoever has assumed liability for such costs, all or part of the medical expenses incurred for the mother and the child in connection with the birth of the child.

Although an unwed father’s biological link to his child does not, in and of itself, guarantee him a constitutional stake in his relationship with that child, such a link combined with a substantial parent-child relationship will do so. When an unwed father demonstrates a full commitment to the responsibilities of parenthood and an ability to participate beneficially in the rearing of his child, his interest in personal contact with his child acquires substantial protection under the state and federal due process clauses. State in the Matter of R.E., 94-2657 (La.11/9/94), 645 So.2d 205; In re Adoption of B.G.S., 556 So.2d 545 (La.1990), citing Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983); Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979); Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).

Under the statutory scheme implementing these principles, the unwed father is afforded notice and a hearing at which he has an opportunity to demonstrate his biological link and substantial relationship with the child. La. Ch.C. arts. 1130-1143; State in the Matter of R.E., supra. In accordance with the Louisiana Supreme Court’s decision in In re Adoption of B.G.S., supra, the statutes (La. Ch.C. arts. 1137-1138) contemplate that the unwed father’s constitutionally protected interest in a parent-child relationship does not come into existence until the father demonstrates his fitness for parental responsibilities, commitment to those responsibilities, concrete actions taken to grasp his opportunity to be a father, and the potential for him to make a valuable contribution to the child’s development. The burden of proof is upon the putative father to show the preservation of his opportunity to establish parental rights by proving these interrelated elements by a preponderance of the evidence. La. Ch.C. art. 1138; State in the Matter of of R.E., supra. If the father carries this burden, his parental rights become established, no adoption may be granted without his consent, and custody of the child will be granted to him. Id. If the father fails to carry this burden, |3his parental rights are not brought into existence, and the court shall decree that the father’s rights to oppose the adoption are terminated. Id.

The biological father does not necessarily have a fully established protected right to a parental relationship with his child until he demonstrates his fitness and commitment according to the standards provided by the law and our decisions. Due process guarantees him notice, hearing and an adequate opportunity to make such a showing; it does not require, however, that he be presumed fit and committed to parental responsibilities or that the burden of proving otherwise be allocated to the parties supporting the surrender and adoption of the child. State in the Matter of R.E., supra.

It is well settled that an appellate court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. In re A.J.F., 00-0948 (La.6/30/00), 764 So.2d 47. “Where there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even when the appellate court may feel that its own evaluations and inferences are as reasonable as those of the trial court.” In re AJ.F., supra; Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where the fact finder is presented with two permissible views of the evidence, the fact finder’s choice between them is not clearly wrong. Id.

Substantial commitment and parental fitness are factual findings that are entitled to deference unless the trial court is clearly wrong. In re Adoption of J.L.G., 01-0269 (La.App. 1st Cir.2/21/01), 808 So.2d 491, citing In re A.J.F., supra.

Discussion

Easter’s argument to the trial court and this court effectively admits his failure to have complied with the financial and emotional support requisites of Article 1138(B)(1). He does not claim that he ever “manifested a substantial commitment to his parental responsibilities” to the child during the child’s life of three years before commencement of this action after the mother’s untimely death. Instead, Easter attempted to prove under Article 1138(B)(2) that “he made reasonable attempts to manifest such a parental commitment, but was thwarted in his efforts by the mother.”

The tests of Article 1138(B)(2) concern actions of both the father and the mother that may or may not lead the father to understand that he is the child’s father and to accept his parental responsibilities. In this case, regarding the mother’s actions, the most important fact is April’s assertion to Easter before and after the child’s birth that she believed him to be the father. Easter did not testify that he was ever told by April anything other than that he was the father. The consistency of April’s claim when coupled with Easter’s knowledge of their sexual encounter represents a strong proof of his paternity even though it is not the equivalent of the DNA testing that ultimately occurred. Article 1138(B)(2), however, does not require a DNA test. As to the mother, it requires that she not “thwart” an understanding that he is the father or his efforts to fulfill his parental commitment. In this case, April did not “thwart” Easter’s understanding of her pregnancy and his | u probable paternity by her silence. Instead, she informed him of her well-founded belief that he was the father. Accordingly, from Easter’s own testimony, he shows that April did exactly what the law expected of her. The parental rights he now belatedly claims were allowed by April to be exercised by Easter beginning at the child’s birth, and he did not act.

In contrast to the directive to the mother under Article 1138(B)(2), the father is charged affirmatively to make reasonable efforts to begin performance of his parental commitment. That effort regarding financial support is shown under Article 1138 to begin during the pregnancy. With this in mind, the first significant period of action (and inaction) of Easter occurred between the time of the child’s birth on May 15, 2006, and the time of the filing of the state’s support action in October of 2006. His actions consisted of a brief summer visit with the mother and child and the tender of two support payments to aid them. The amount of one payment was never stated by Easter, and the other payment was withdrawn. The implications of those acts do not suggest that Easter harbored serious doubt about his paternity. His explanation for stopping payment on the check was not because April informed him that he was not the father. Throughout those first five months of the child’s life, Easter ignored the financial duties and responsibilities of a father while never once protesting to April that she was in error regarding paternity or seeking confirmation of paternity through DNA testing. A measurement of whether he “made reasonable attempts” to fulfill his parental responsibilities during that time period alone finds him lacking.

|12In his argument, Easter asserts that he cannot be held to have neglected and abandoned his parental rights until a DNA test. As shown above, that is not the test of Article 1138, and April gave Easter a consistent view that he was the father. Under the rationale of the rulings of our highest courts, state and federal, discussed above, the unwed father does not waive his paternal rights; they come into existence only as he takes initiatives toward the child. This would include an initiative to clarify any doubt about his paternity as quickly as possible, so as to continue the development of the mutually beneficial and essential bond with the child.

Easter next asserts a timeline for the gestation period for the baby which allegedly gave him much doubt about his paternity. He claims that his one sexual encounter with April was in October 2005, so that the pregnancy lasted only seven months. Nevertheless, from the record, the specific date of the parties’ sexual intercourse was not identified, nor was objective medical evidence presented confirming the child’s premature birth. Moreover, he never reported that he confronted April with these concerns or examined the medical evidence of the gestation period upon the child’s birth. Therefore, with objective evidence in support of this gestation argument missing from Easter’s evidence, the trial court could ignore Easter’s self-serving testimony regarding his timing for the parties’ sexual relationship.

Easter’s argument concerning the state’s support action which was filed five months after the birth also gives him no justification for the continuation of his delinquency regarding a substantial commitment to his | ^parental responsibilities. In the first place, the action itself is notice of his ongoing delinquency since the birth. The state based its petition on April’s continued assertion of paternity to the state authorities. Most importantly, contrary to assertions in Easter’s brief regarding the support action, April did not close the case. She was not a party to the case. The Department of Social Services was the party plaintiff on behalf of the child. Finally, when the support action was dismissed, whatever the unexplained reason for dismissal, Easter was instructed by the state that his obligation for support would continue.

As shown by Article 1138, the unwed father must affirmatively act “to make reasonable” efforts to fulfill parental responsibilities beginning at the child’s birth. Overall, Easter’s assertions rest upon an alleged dilemma which paralyzed him with indecision from the birth throughout the first three years of the child’s life. He asserts his two conflicting desires causing this dilemma. His desire to be a father and make a substantial commitment to this child, and his desire to know for certain that he was the father. Since he never acted to satisfy his desire to establish paternity, he was content to indefinitely defer his other desire and forgo any relationship with the child. Since the record indicates that April acted reasonably at all times, fairly accommodating Easter’s now expressed desire to meet his parental responsibilities, we do not recognize the dilemma which Easter now argues nor do we find it as justification for his inaction under the test of Article 1138.

114In his remaining assignment of error, Easter asserts that the proceedings were improper due to the presence of “several other deputies” “in this closed hearing [which] gives a strong appearance of impropriety that should not be present in our judicial system” and “was intimidating to all witnesses including Appellant.”

In view of this assignment of error and the lack of any contemporaneous objection or other indication in the record concerning other persons in the courtroom, this court requested that both sides provide further information regarding this matter. Easter’s counsel argues that she “noticed the additional deputies and made serious objections” after the trial was complete when her client first called it to her attention. Counsel claims to have “turned around and noticed three (3) deputies sitting behind Appellant and wondered why all the additional persons were present.” Easter himself claimed seeing “five (5) total deputies in the courtroom at different times,” with “three (3) sitting together behind him, with one additional other deputy coming in and out of the courtroom.” He claims that the presence of the officers made him uncomfortable. While Suttle concedes that “two (2) other deputies were present at the back of the courtroom during a portion of the proceeding,” he contends that the individuals were not his friends and have no personal relationship with him.

Title IV of the Louisiana Children’s Code addresses Juvenile Court Administration. Chapter 2 of Title IV contains provisions for the scheduling and conducting of eases. La. Ch.C. art. 407 is found in Chapter 2 and addresses the confidentiality of hearings as follows:

115With the exceptions of delinquency proceedings pursuant to Article 879, child support proceedings, traffic violations pursuant to Chapter 2 of Title IX in parishes with a population between three hundred eighty thousand and four hundred thousand, and misdemeanor trials of adults pursuant to Chapter 4 of Title XV, proceedings before the juvenile court shall not be public. However, the court shall allow the proceedings to be open to the public when the alleged delinquent act committed by the child would be considered a crime of violence as defined in R.S. 14:2(B), or when the alleged delinquent act would be a second or subsequent felony-grade adjudication.

See also La. Dist. Ct. R. 42.3.

The minutes of the trial of Easter’s objection to this adoption reflect that the matter was tried as a closed hearing in accordance with Article 407 of the Children’s Code. Because of the seriousness of a violation of the privacy of the hearing, this court requested the attorneys to give their recollections of the issue to supplement the record. The agreement between these accounts is that two, or possibly three, deputies in addition to the bailiff were in the courtroom together for some unidentified period of time. Easter’s counsel believes the other deputies were assigned to the court. Significantly, however, Easter’s counsel does not assert that in her presentation of Easter’s important testimony, she became aware that his testimony was affected in any manner by the presence of the officers.

While we believe that there was probably some violation of the privacy of the hearing, any such violation was by court personnel whose duties and office require them to honor and maintain the privacy of any such matters before the juvenile court. Moreover, any assertion of prejudice to the appellant is unfounded as his admissions of his failure to provide financial and emotional support to the child are clear. Accordingly, the Imissue raised by appellant does not support a reversal of the trial court’s ruling.

Conclusion

For the foregoing reasons, the judgment of the juvenile court terminating the parental lights of Marcus Easter is affirmed. Costs of this appeal are assessed to appellant.

AFFIRMED.

LOLLEY, J., dissents with written reasons.

STEWART, J., dissents for reasons assigned by J. LOLLEY.

LOLLEY, J.,

dissenting.

| |I respectfully dissent from the ruling of the majority in this matter.

The present matter involves the request of petitioner to terminate the parental rights of the biological father of the child. Proper notice was obviously served on the biological father who retained counsel to represent him in these proceedings.

The proceedings were initiated because of petitioner’s desire to adopt the child who was born of her late mother prior to her marriage to petitioner.

The record clearly shows that the child had lived with her mother and stepfather consistently until the mother’s death. Subsequent to the event, petitioner initiated procedures to adopt the child. However, to move forward with the adoption, the parental rights of the biological father had to first be terminated. A petition for involuntary termination of parental rights was filed in accordance with the provisions of the Louisiana Children’s Code.

The record further indicates that another judge was initially assigned to hear this matter. However, that judge exercised recusal because of familiarity with the petitioner and other members of the Caddo Parish Sheriffs Department. The present judge was assigned, and the proceedings got underway.

1 .¿The hearing was called into session and evidence was presented. At the conclusion of the hearing the court ordered that the parental rights of the biological father were terminated and that the child be freed for the purpose of adoption.

I am of the opinion that reversible error occurred during the proceedings and that the judgment/ruling of the juvenile court judge should be reversed and ultimately declared null.

A petition to terminate the parental rights of a biological parent is the most serious of all actions contemplated by the Louisiana Children’s Code. This petition, whether advanced by the State of Louisiana or, as in the present matter, by the stepparent for purpose of potential adoption, sets the stage to forever sever what is amongst the strongest bonds, that of parent and child. It is, in fact and law, the parental death penalty. Additionally, because of the serious nature of the proceedings and its lasting consequences, a termination of parental rights proceeding has attached to it the second highest burden of proof in law, that of clear and convincing evidence.

The biological father has appealed the ruling of the juvenile court judge on grounds that the allegation did not rise to the level of clear and convincing evidence and on grounds that there was a serious breach of the rule(s) of sequestration at the termination of parental rights hearing itself.

A review of the entire record of these proceedings leads me to conclude that the actions/inactions of the juvenile court judge did, in fact, lead to serious and fatal breaches of the mandated rules of sequestration.

| ^Hearings and the issues of sequestration are extensively discussed in the Louisiana Children’s Code. Article 408 states that it is the duty of the judge to control the proceedings. Article 409 mandates sequestration of witnesses. In matters involving children in need of care, Art. 661 mandates who may be present at the proceedings. Article 1015 deals specifically with termination of parental rights. The sequestration effects of the above articles also are applicable to a termination of parental rights proceedings. Title XII of the Louisiana Children’s Code deals specifically with the issues of adoption. Article 1184 specifically addresses admission to adoption hearings. It also specifically mandates sequestration at the hearing.

The thrust of all of the above articles in the Louisiana Children’s Code is to maintain the confidentiality of the hearings, which are very serious in nature. The reasoning for this is that the parties to the proceedings rightfully should not be subjected to public scrutiny. A notable exception to this, however, is officers of the court.

In the matter before us the petitioner was, and is, a deputy sheriff employed by the Caddo Parish Sheriffs Office. The record clearly reflects that he was wearing his uniform during the entirety of the proceedings. The record also reflects that other uniformed deputies entered the courtroom, sat down and observed the proceedings at the time. This was noted by both the biological father and his counsel. The biological father |4now urges, rightfully in my opinion, that this constitutes a fatal breach of the sequestration rule and that the decision of the juvenile judge should be reversed and the matter be sent back for another hearing.

As previously stated, officers of the court are generally exempted from the sequestration order and allowed to remain or enter the courtroom. I am of the opinion that this exception to sequestration applies only to officers of the court who are assigned to work that courtroom on that date on that case. Because of the nature of the case I am of the opinion that all others are subject to the sequestration rule/order and that it was error to allow their presence in the courtroom.

The majority is of the opinion that this complaint is of no consequence and should not be considered because a contemporaneous objection was not raised by counsel at the time(s) of occurrence. I disagree.

I am of the opinion that the error on the part of the juvenile judge was structural in nature and effect and therefore, any contemporaneous objection was not needed because the proceedings had become a nullity. The issues of structural error have been discussed by other courts of this state, including the Louisiana Supreme Court. It is error which by its very nature is not subject to a harmless error analysis. It impacts the entire framework of the trial from beginning to end without reference to any other trial consideration.

In the matter presently before this court I am of the opinion that the actions of the juvenile court judge failed in the area of maintaining a sequestered courtroom and in maintaining his duty to control the | ^proceedings in the courtroom as mandated by Art. 408. In a proceeding such as this, any officers of the court cannot and should not casually come and go in a sequestered courtroom.

In a proceeding such as the one discussed here, it is of vital importance that all parties leave the courtroom with the feeling and/or opinion that they clearly received their fair day in court. With the stakes as high as they are in a termination of parental rights hearing for the purpose of adoption, these issues are of great importance. It is more important that a civilian with little or no knowledge of proceedings such as these leave the courtroom without feeling the chilling effect of the errors I believe were committed. He, like all others, has the absolute right to be afforded all of the due processes of the law applicable to the case as he stands before the court to answer to.

Accordingly, I respectfully dissent.

      . Easter's sister, Tiffany Alexander, testified that in September 2006, she saw A.D. in a mall in Shreveport accompanied by Suttle. Recognizing the child from the July 4th meeting, she approached Suttle, asked him the child's name and age and whether he was the child's father. Tiffany then called her brother, told him about the encounter and encouraged him to get a DNA test.

      . Rory Jones, a former high school classmate of Easter’s, former brother-in-law of Suttle’s and friend of Brian Jackson's also testified to his knowledge of the events. Jones and Suttle had been acquainted for years but recently parted ways. Jones testified that Jackson had always believed that he was A.D.'s biological father, but that he did not communicate that information to Easter. In fact, Jones had not talked to Easter after his move to Texas. Jones alleged that Suttle asked him not to tell Easter about the adoption proceedings.

      . La. Ch.C. art. 1137 provides:
      A. An alleged or adjudicated father or his representative, if applicable, may oppose the adoption of his child by filing a clear and written declaration of intention to oppose the adoption. The notice of opposition shall be filed with the court indicated in the notice of filing of surrender within fifteen days after the time he was served with the notice of surrender, or from the time he was served with notice of the filing of an adoption petition in the event that no surrender was executed or filed.
      B. Upon receipt of the notice of opposition, the court shall appoint an attorney to represent the child, subject to the limitations set out in Article 1121. Neither the child nor anyone purporting to act on his behalf may be permitted to waive this right. The costs of the child's representation shall be taxed as costs of court.
      er The court shall set the opposition for contradictory hearing, which hearing shall be held within twenty days of the filing of the opposition.
      D. Notice of the hearing shall be served in accordance with Articles 1133 and 1134 on the opposing father, the legal custodian, counsel appointed for the child, and the mother of the child through the agency to whom the child was placed or through the attorney who represented the mother in a private surrender unless otherwise waived in the Act of Surrender executed pursuant to Article 1122.
      E. If paternity is at issue, on its own motion or motion of any party, the court shall issue an order for immediate blood or tissue sampling in accordance with the provisions of R.S. 9:396 et seq. and shall order an expedited report. The hearing resolving this issue shall be held at the earliest time that the results of the testing can be reported to the court.

      . The record also clearly indicates that respondent was identified as the biological father through DNA testing.

      . I feel that the issue of petitioner being in uniform is of no consequence. He could well have been just coming off duty or reporting to duty after the hearing.


author: WALLER, Chief Justice, KITCHENS, Justice,

text:
    James A. BURLEY, Parent/Guardian and Next Friend of Francesca Hill, Joshua Hill and Jakura Hill, Minors v. Eddie E. DOUGLAS and Yazoo Valley Electric Power Association.
    No. 2007-CA-02134-SCT.
    Supreme Court of Mississippi.
    Nov. 5, 2009.
    Rehearing Denied Feb. 18, 2010.

      Eduardo Alberto Flechas, Jackson, attorney for appellant.
    Bradley F. Hathaway, Greenville, Philip A. Gunn, Ridgeland, attorneys for appel-lees.
   WALLER, Chief Justice,

for the Court.

¶ 1. James A. Burley brought the instant wrongful-death action as a result of the deaths of his grandchildren, Joshua and Jakura Hill, minors. The Yazoo County Circuit Court granted summary judgment in favor of the defendants, ruling that Bur-ley lacked standing to bring the suit. Bur-ley appeals that decision. Finding that Burley qualified as an “interested party” under the wrongful-death statute, so that he had standing to commence the suit, we reverse the circuit court’s judgment and remand.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the morning of July 17, 2003, Francesca Hill and her two minor children, Joshua and Jakura, were traveling Carter Road near Yazoo City, Mississippi, when their car was struck by a truck driven by Eddie Douglas. At the time of the accident, Douglas was driving a truck owned by his employer, Yazoo Valley Electric Power Association (“YVEPA”). Hill and her two children were killed in the accident.

¶ 3. On June 7, 2004, James Burley commenced the instant wrongful-death action by filing suit against Douglas and YVEPA in the Circuit Court of Yazoo County, Mississippi. Burley styled his complaint, “James A. Burley, Parent/Guardian and Next Best Friend of Francesca Hill, Joshua Hill and Jakura Hill, Minors v. Eddie E. Douglas and Yazoo Valley Electnc Power Association.” Burley’s complaint alleged that “as a direct and proximate result of Defendants!’] ... willful and wanton misconduct, and gross negligence ... the Plaintiff, James A. Burley, lost the life of his daughter and [two] grandchildren.” The complaint stated that Burley “is the sole and proper person to bring this cause of action for and on their behalf.” Burley sought compensatory damages, as well as $20,000,000 in punitive damages.

¶4. On August 6, 2004, YVEPA answered Burley’s complaint. YVEPA denied liability and asserted, inter alia, Burley’s lack of standing as an affirmative defense to the action. On June 2, 2005, nearly one year after commencement of the instant action, Burley filed petitions for appointment of administrator and for issuance of letters of administration in the Chancery Court of Humphreys County. These petitions represented that Joshua and Jakura were survived by “two grandparents, namely James Burley and Earnestine Hill.” On June 23, 2005, letters of administration were granted to Burley.

¶5. Thereafter, on August 3, 2005, the Humphreys County Chancery Court entered orders determining the heirs-at-law of Joshua and Jakura Hill. Those heirship orders concluded that Burley, among others, was an heir-at-law of both Joshua and Jakura.

¶ 6. On August 30, 2007, YVEPA filed a motion to dismiss or, alternatively, for summary judgment, as to the wrongful-death claims for Joshua and Jakura on the ground that Burley lacked standing to commence a wrongful-death action on their behalf. A hearing was held on the motion, and on November 7, 2007, the circuit court, finding that Burley lacked standing, dismissed the claims brought on behalf of and as to the deaths of Joshua and Jakura, and entered final judgment in favor of YVE-PA.

¶ 7. Aggrieved by the trial court’s order, Burley appeals, assigning two issues for appellate review: (1) whether Burley was the proper party or person to file the subject wrongful-death action; and (2) whether the trial court erred in granting the appellees’ motion to dismiss or, in the alternative, for summary judgment, as to the wrongful-death claims of Joshua Hill and Jakura Hill. We find the first issue, whether Burley had standing to bring the wrongful-death action, dispositive.

STANDARD OF REVIEW

¶ 8. This Court reviews a trial court’s grant or denial of a motion for summary judgment or a motion to dismiss under a de novo standard. Monsanto v. Hall, 912 So.2d 134, 136 (Miss.2005).

DISCUSSION

Whether Burley had standing to file the instant wrongful-death action.

¶ 9. Burley argues that he was a proper plaintiff to commence and maintain this wrongful-death action because he “was judicially determined to be an heir at law and wrongful death beneficiary to the decedents, Jakura Hill and Joshua Hill.” Burley additionally argues that he possessed standing via the letters of administration. YVEPA asserts that Burley lacked standing to bring suit, as he was neither the personal representative of the estates of Joshua and Jakura at the time the complaint was filed, nor was he a statutory wrongful-death beneficiary pursuant to Mississippi Code Section 11-7-13.

¶ 10. This Court’s analysis of who has standing to bring a wrongful-death action must necessarily begin and end with Mississippi’s wrongful-death statute (“the Statute”), which provides a cause of action to recover for a person’s wrongful death caused by the defendant’s “real, wrongful, or negligent act or omission.” Miss.Code Ann. § 11-7-13 (Rev.2004). The Statute creates a new and independent cause of action in favor of those named in the statute. Partyka v. Yazoo Dev. Corp., 376 So.2d 646, 650 (Miss.1979) (citing Hasson Grocery Co. v. Cook, 196 Miss. 452, 459, 17 So.2d 791 (1944)). The Statute provides, in pertinent part, as follows:

[T]he action for such damages may be brought in the name of the personal representative of the deceased person or unborn quick child for the benefit of all persons entitled under the law to recover, or by widow for the death of her husband, or by the husband for the death of the wife, or by the parent for the death of a child or unborn quick child, or in the name of a child, or in the name of a child for the death of a parent, or by a brother for the death of a sister, or by a sister for the death of a brother, or by a sister for the death of a sister, or a brother for the death of a brother, or all parties interested may join in the suit, and there shall be but one (1) suit for the same death which shall ensue for the benefit of all parties concerned, but the determination of such suit shall not bar another action unless it be decided on its merits....
[I]n an action brought pursuant to the provisions of this section by the widow, husband, child, father, mother, sister or brother of the deceased or unborn quick child, or by all interested parties, such party or parties may recover as damages property damages and funeral, medical or other related expenses incurred by or for the deceased as a result of such wrongful or negligent act or omission or breach of warranty, whether an estate has been opened or not. Any amount, but only such an amount, as may be recovered for property damage, funeral, medical or other related expenses shall be subject only to the payment of the debts or liabilities of the deceased for property damages, funeral, medical or other related expenses. All other damages recovered under the provisions of this section shall not be subject to the payment of the debts or liabilities of the deceased, except as hereinafter provided, and such damages shall be distributed as follows:
[Djamages for the injury and death of a married man shall be equally distributed to his wife and children, and if he has no children all shall go to his wife; damages for the injury and death of a married woman shall be equally distributed to the husband and children, and if she has no children all shall go to the husband; and if the deceased has no husband or wife, the damages shall be equally distributed to the children; if the deceased has no husband, nor wife, nor children, the damages shall be distributed equally to the father, mother, brothers and sisters, or such of them as the deceased may have living at his or her death. If the deceased have neither husband, nor wife, nor children, nor father, nor mother, nor sister, nor brother, then the damages shall go to the legal representative, subject to debts and general distribution, and the fact that the deceased was instantly killed shall not affect the right of the legal representative to recover.

Miss.Code Ann. § 11-7-18 (Rev.2004).

¶ 11. The Statute provides three categories of potential wrongful-death claimants who may commence a wrongful-death action. The action may be brought “(1) by the personal representative on behalf of the estate and all other persons entitled to recover; (2) by one of the wrongful death beneficiaries on behalf of all persons entitled to recover; or (3) by ‘all interested parties Long v. McKinney, 897 So.2d 160, 168 (Miss.2004) (emphasis added). Each category of potential wrongful-death claimants has an equal right to initiate the suit. J.J. Newman Lumber Co. v. Scipp, 128 Miss. 322, 91 So. 11 (1922). Therefore, it is useful to define these categories of potential wrongful-death claimants, to the extent possible, and to determine if Burley qualifies as one of them.

1. Whether Burley has standing as a personal representative.

¶ 12. “Personal representative” is defined as “[a] person who manages the legal affairs of another because of incapacity or death,” and when it is used by a testator, the term refers to an executor or administrator of the estate. Black’s Law Dictionary 1045 (abr. 7th ed.2000). See also Hill v. James, 252 Miss. 501, 507-08, 175 So.2d 176, 179 (1965) (finding terms “personal representative” and “legal representative” to be synonymous, defined simply as “executors and administrators of persons deceased”).

¶ 13. These titles signify a representative capacity, as distinguished from an individual capacity, even though each representative’s method of appointment may differ, administrators by law and executors by will. Sealy v. Goddard, 910 So.2d 502, 508 (Miss.2005). The authority of the chancery court to appoint an administrator exists only in cases of intestacy. However, an executor is named by the testator in the will, and he thus derives his authority from it and is charged with its execution. Ricks v. Johnson, 134 Miss. 676, 99 So. 142,146 (1924).

¶ 14. First, we must determine if Bur-ley’s appointment as administrator of Joshua and Jakura Hill’s estates was sufficient to give Burley standing to bring the wrongful-death action as a personal representative.

¶ 15. This Court’s recent decision in Delta Health Group, Inc. v. Estate of Pope, 995 So.2d 123 (Miss.2008), is instructive in resolving the current question. In Pope, Ellen Pope’s great-nephew, James Payne, filed a wrongful-death suit against Delta Health Group. Id. At the time Payne filed his complaint, no estate had been opened for the decedent, and thus, Payne had not been appointed as administrator. Id. at 125.

¶ 16. Approximately seven months after filing the wrongful-death complaint, Payne filed a petition for letters of administration. Id. at 124. Delta subsequently filed a motion to dismiss, or in the alternative, motion for summary judgment for lack of standing, averring that Payne lacked standing to assert claims on behalf of Pope’s estate, and further that Payne did not qualify as a “listed relative” pursuant the wrongful-death statute, as he was “merely the son of one of Ellen Pope’s surviving nieces.” Id.

¶ 17. Before the trial court ruled on Delta’s motion, Payne filed a motion to substitute. Payne asserted he had standing to bring the action because he had been appointed administrator of Ellen Pope’s estate. Id. The trial court agreed with Payne and allowed the substitution. Id. Thereafter, the trial court denied Delta’s motion to dismiss, or in the alternative, motion for summary judgment, finding that “James Payne had standing to file the subject lawsuit and/or properly substituted himself as the Administrator of the Estate of Ellen Pope, deceased.” Id.

¶ 18. Delta filed a petition for interlocutory appeal, which this Court granted. Id. at 125. On appeal, we reversed the trial court, holding that Payne lacked standing to file the wrongful-death action. Specifically, we stated:

It is undisputed that when this complaint was filed, no estate had been opened on behalf of Ellen Pope. This Court has held, “It is certainly an undis-putable and invariable rule of law that a right of action must be complete when an action therefor is commenced.... ” Crawford Commercial Constructors, Inc. v. Marine Indus. Residential Insulation, Inc., 437 So.2d 15, 16 (Miss.1983) (citations omitted). The complaint was filed on August 25, 2004, and Payne did not file his Petition for Letters of Administration until February 11, 2005. Long v. McKinney requires that, “[i]n the event the litigants wish to pursue a claim on behalf of the estate of the deceased, such estate must, of course, be opened and administered through the chancery court.” Long v. McKinney, 897 So.2d 160, 174 (Miss.2004). The record is clear that at the time of the filing of the complaint, no estate had been opened on behalf of Pope, thus Payne was not the administrator of a non-existent estate....
The United States Supreme Court has ruled that “standing is to be determined as of the commencement of suit.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 571, 112 S.Ct. 2130, 2142, 119 L.Ed.2d 351, 371 (U.S.1992) (emphasis added). The fact that Payne subsequently was appointed as administrator does not change the undisputable fact that Payne lacked standing to commence the suit.

Pope, 995 So.2d at 125-26.

¶ 19. Here, as in Pope, at the time the lawsuit was initiated, Burley was not the administrator of Joshua’s and Jakura’s estates. The complaint was filed on June 7, 2004, at which time, no estate had been opened on behalf of Joshua or Jakura. Burley did not file his petitions for appointment of administrator and for issuance of letters of administration until June 2, 2005. He was not formally appointed as administrator of the estates of Joshua and Jakura Hill until June 23, 2005, more than one year after he commenced the wrongful-death suit. As no estate had been opened at the time the complaint was filed, Burley could not have been the administrator of nonexistent estates. Pope, 995 So.2d at 126.

¶ 20. The fact that Burley subsequently was appointed administrator of the estates of Joshua and Jakura does not change the fact that Burley lacked standing, as a personal representative, to commence the suit because “standing is to be determined as of the commencement of suit.” Pope, 995 So.2d at 126 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 571, 112 S.Ct. 2130, 2142, 119 L.Ed.2d 351, 371 (1992)).

¶ 21. Since Burley was not the administrator of the estates of Joshua and Jakura Hill at the time he filed the wrongful-death action, he could not qualify as a personal representative of the children’s estates based on his after-acquired status as administrator. Thus, he did not have standing, as a personal representative, to file this wrongful-death action.

2. Whether Burley has standing as a listed relative.

¶ 22. The Statute provides a list of certain identified family members of the decedent, whom we shall call “listed relatives,” who may bring a wrongful-death action. The Statute enumerates only the decedent’s “widow or children ... or husband or father or mother, or sister, or brother.... ” Miss.Code Ann. § 11-7-13 (Rev. 2004).

¶ 23. Burley, as Joshua and Jaku-ra’s grandparent, is not one of the “listed relatives” who may bring suit. The Legislature did not confer upon grandparents standing to bring wrongful-death actions, and it is beyond this Court’s prerogative to expand the list of relatives who may do so. Pope, 995 So.2d at 126. Therefore, Burley lacked standing, as a “listed relative,” to bring the instant suit on behalf of Joshua and Jakura Hill.

3. Whether Burley has standing as an interested party.

¶24. First, we must determine whether an “interested party” may commence a wrongful-death action, or merely join one. The first paragraph of the Statute provides that an action may be brought “in the name of the personal representative of the deceased person[,]” or “by [one of the listed relatives],” or “all parties interested may join in the suit. ...” Miss.Code Ann. § 11-7-13 (Rev.2004) (emphasis added). However, the Statute goes on to allow “an action [to be] brought ... by the widow, husband, child, father, mother, sister or brother of the deceased ..., or by all interested parties.” Id. (emphasis added). Recognizing this language, we have stated that:

[T]here are three alternatives for bringing a wrongful death suit: (1) by the personal representative on behalf of the estate and all other persons entitled to recover; (2) by one of the [listed relatives] on behalf of all persons entitled to recover; or (3) by “all interested parties .... ”

Long, 897 So.2d at 168 (quoting Miss.Code Ann. § 11-7-13). Therefore, we hold, consistent with Long, that, not only may an interested party join a wrongful-death suit, but an interested party may initiate a wrongful-death action under the terms of the Statute.

¶ 25. Next, we must determine if Bur-ley qualifies as an “interested party.” No Mississippi case has explicitly defined who qualifies as an “interested party” for purposes of the wrongful-death statute. However, this Court previously has determined that one who qualifies as an heir of the deceased also qualifies as an interested party under the wrongful-death statute. In Alack v. Phelps, 230 So.2d 789 (Miss.1970), we held that adopted twin boys could still inherit from their natural father, and we specifically stated that the boys were “interested parties” under the wrongful-death statute and should have been included in the wrongful-death action for their natural father’s death. Id. at 793. See also, Estate of Jones v. Howell, 687 So.2d 1171, 1175 (Miss.1996) (holding, without labeling him an interested party, that adopted child could bring wrongful-death action for the death of his natural father); McLemore v. Gammon, 468 So.2d 84, 86 (Miss.1985) (holding, without labeling them interested parties, that adoptive brothers and sisters of adopted child killed in car accident could bring wrongful-death action to the exclusion of the adopted child’s natural siblings); Long, 897 So.2d at 169.

¶ 26. We hold that Burley qualifies as an interested party under the wrongful-death statute, and therefore, he had standing to bring this action. Burley is a blood relative of Joshua and Jakura Hill, and because Francesca Hill — Joshua and Jakura’s mother and their only available “listed relative” — was killed in the same accident that tragically claimed Joshua’s and Jakura’s lives, she was removed from the line of descent and distribution. Thus, at the moment of their deaths, Bur-ley held the status of an heir of Joshua and Jakura Hill, such that, under our laws of intestate descent and distribution, he would have been entitled to inherit property from them. Miss.Code Ann. §§ 91-1-1 to -31 (Rev.2004). His later adjudication by the chancery court as an heir-at-law of the children merely confirmed this status. Thus, when he commenced the suit, Burley qualified as an “interested party” under the terms of the Statute, and he was an appropriate wrongful-death claimant under the facts of this case.

¶27. YVEPA, however, argues that, under the clear language of Long v. McKinney, Joshua and Jakura’s estates “must, of course, be opened and administered through the chancery court” before Burley may pursue a wrongful-death claim on behalf of the estate. See Long, 897 So.2d at 174. We do not think the holding in Long is applicable to this case, for the following reasons.

¶28. Burley did not sue on behalf of the estates of Joshua and/or Jakura Hill. He brought his action as “James A. Bur-ley, Parent/Guardian and Next Best Friend of Francesca Hill, Joshua Hill and Jakura Hill, Minors.” Although this wording is awkward, it is clear that Bur-ley’s complaint does not indicate that Bur-ley brought the suit as personal representative of the deceased children or on behalf of the children’s estates. In fact, Burley’s complaint stated that “the Plaintiff, James A. Burley, lost the life of his daughter and [two] grandchildren.” (Emphasis added.) It indicates that he, individually, had suffered injury. Thus, the original complaint makes no claims on behalf of the estates of either Joshua or Jakura Hill.

¶ 29. Burley’s amended complaint, however, is different. The amended complaint asks for compensatory and punitive damages, as well as damages for “medical expenses, funeral expenses, and, damages to personal property.” (Emphasis added.) It is not inconceivable that this language in Burley’s amended complaint, seeking “pre-death and funeral damages,” indicates that Burley was bringing an action on behalf of the estates of Joshua and Jakura Hill.

¶ 30. YVEPA picks up on this language and argues that Burley’s claims concerning Joshua and Jakura Hill necessarily were brought on behalf of their estates. YVE-PA cites In re Estate of England, and argues that “if none of the listed relatives survives the decedent, the damages become an asset of the decedent’s estate.” In Matter of Estate of England, 846 So.2d 1060, 1066 (Miss.Ct.App.2003) (citing Smith v. Garrett, 287 So.2d 258, 261 (Miss.1973)). Therefore, YVEPA argues, under England, that Burley must have brought the suit on behalf of the estates of Joshua and Jakura Hill, because none of their listed relatives survived. We disagree.

¶ 31. The wrongful-death statute differentiates between who has the authority, or standing, to bring the suit and which wrongful-death claimants may recover what damages, and when they may do so. The Statute confers priority as to which listed relatives may recover damages, but it does not play favorites regarding which potential wrongful-death claimant may bring the suit. See Miss.Code Ann. § 11-7-13 (Rev.2004). The paragraph concerning who may bring the action simply lists the prospective plaintiffs (the personal representative, listed relatives, and interested parties) in a series, separated by “or.” Miss.Code Ann. § 11-7-13. No potential wrongful-death claimant has priority over another. See J.J. Newman Lumber Co., 91 So. at 11.

¶ 32. The paragraph delineating which listed relatives may recover damages, however, does set out priority. Miss.Code Ann. § 11-7-13. It provides that “if [the decedent] has no children all shall go to his wife”; and “if she has no children all shall go to the husband”; and “if the deceased has no husband or wife, the damages shall be equally distributed to the children”; and “if the deceased has no husband, nor wife, nor children, the damages shall be distributed equally to the father, mother, brothers and sisters, or such of them as the deceased may have living at his or her death.” Id. This language clearly indicates a hierarchy of priority as to who may recover damages under the Statute.

¶ 33. Our holding today recognizes the statutory distinction between a party’s authority to bring the wrongful-death action and the party’s ability to recovery damages from it. Burley brought this action as an “interested party,” a status he held because of his qualification as an heir-at-law of Joshua and Jakura Hill. Burley’s later-acquired status as administrator of their estates did not confer upon him standing, as personal representative or otherwise, to commence the wrongful-death action, but merely gave him authority to bring additional claims within that action for certain damages on behalf of the estates.

¶ 34. Hence, Burley brought many different claims within his wrongful-death action. He included claims for his own individual injuries (such as loss of society and companionship, etc.) and claims for property damage and medical and funeral expenses, which may be characterized as claims of the estates. See Caves v. Yarbrough, 991 So.2d 142, 149-50 (Miss.2008) (holding that “the Mississippi wrongful-death statute ... encompasses all claims— including survival claims which could have been brought by the decedent, wrongful-death claims, estate claims, and other claims.”). Burley was required to bring the so-called “estate claims” because the statute instructs that “there shall be but one (1) suit for the same death which shall ensue for the benefit of all parties concerned.” Miss.Code Ann. § 11-7-13.' However, the fact that Burley happens to be seeking the same damages as Joshua’s and Jakura’s estates would seek, namely medical and funeral expenses, does not change the nature of Burley’s suit nor his standing as an interested party to bring it.

¶ 35. Each wrongful-death claimant’s ability to recover damages, and the point when that ability becomes available, is a separate question. The Statute’s first paragraph sets out the potential wrongful-death claimants, allowing the wrongful-death action to be brought by the personal representative of the decedent, by a listed relative, or by an interested party. Miss. Code Ann. § 11-7-13 (Rev.2004). In a later paragraph, however, the Statute provides that the decedent’s property damages and medical and funeral expenses may be recovered by the listed relatives or the interested parties, whether or not an estate has been opened. Id. “Personal representative” is left out of this section.

¶ 36. Therefore, each claimant’s ability to recover these damages becomes available at different times. That difference is tantamount to the fact that the estate “must, of course, be opened and administered through the chancery court” before the claimant may pursue a wrongful-death claim on behalf of the estate. Long, 897 So.2d at 174. In other words, a claimant cannot bring claims on behalf of an estate that does not yet exist. Hence, Burley amended his complaint specifically to seek damages for property damage and medical and funeral expenses only after he was appointed administrator of Joshua and Jakura Hill’s estates. Burley had standing to bring the suit as an interested party from the moment of Joshua’s and Jakura’s deaths, but he gained the ability to recover on behalf of the estates only after those estates came into existence and he was appointed administrator.

¶ 37. The estate has no greater right to bring the suit than does a listed relative or an interested party. J.J. Newman Lumber Co., 91 So. at 11; England, 846 So.2d at 1066. Listed relatives, on the other hand, do have priority in recovering damages. All damages other than those for property damage and medical and funeral expenses are distributed according to the hierarchy of listed relatives discussed above. Miss.Code Ann. § 11-7-13. But if none of the listed relatives survives the decedent, those damages become an asset of the decedent’s estate and are also used in payment of the estate’s debts, with any residue to be distributed according to the will or under the laws of descent and distribution in the case of intestacy. Smith v. Garrett, 287 So.2d 258, 261 (Miss.1973); England, 846 So.2d at 1066. Therefore, no matter who brings the suit, the damages recovered from the suit (other than for individual claims) necessarily will fall to the estate in the event that none of the Statute’s listed relatives survives the decedent.

¶ 38. To sum up, because Burley brought this wrongful-death action as an interested party, he may recover damages for the children’s property damage, if any, and for their medical and funeral expenses, even though he brought suit before the estates were opened. However, those damages are, pursuant to the Statute’s clear terms, subject to the debts and liabilities of Joshua and Jakura Hill’s estates. Furthermore, since Joshua and Jakura were not survived by any of the Statute’s listed relatives, all other damages Burley may recover (other than his own individual damages) will also become assets of those estates, subject to the estates’ debts and liabilities. However, Burley’s ability, or the lack thereof, to seek and/or recover certain damages at specific times from the wrongful-death suit does not determine the character of his standing as a particular type of wrongful-death claimant.

¶39. YVEPA’s final argument is that Burley occupies the same restricted status in relation to Joshua and Jakura Hill as the claimant in Pope held, and that, therefore, Burley has no standing. We disagree.

¶ 40. Payne, the claimant in Pope, does not fit the mold of an “interested party” under the terms of the Statute. First, Payne was merely the son of one of the decedent’s surviving nieces. Pope, 995 So.2d at 124. Thus, Payne would not have been entitled to inherit property under our laws of intestate descent and distribution because he was too far removed from those who would have been so entitled, namely the surviving nieces. See Miss. Code Ann. §§ 91-1-1 to -31 (Rev.2004). Second, because Payne was not within the class of persons entitled to recover, he could not be, and never was, adjudicated to be an heir-at-law of the decedent. Pope, 995 So.2d at 126. Thus, Payne had no relationship with or connection to the decedent at the time of her death which would confer standing upon him as an “interested party” under the Statute. Id. Payne’s later appointment as administrator of the decedent’s estate did not change this.

CONCLUSION

¶ 41. We find that the circuit court incorrectly concluded that Burley lacked standing to commence a wrongful-death action for the deaths of his grandchildren. Although Burley did not qualify as a “personal representative” or a “listed relative” of Joshua and Jakura Hill, he was an “interested party” because of his relationship as an inheriting heir of the deceased children, a status which later was confirmed by the chancery court’s heirship determination. Therefore, the Yazoo County Circuit Court’s grant of summary judgment in favor of YVEPA is, reversed, and this case is remanded to that court for further proceedings consistent with this opinion.

¶ 42. REVERSED AND REMANDED.

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

KITCHENS, Justice,

Concurring in Part and in Result:

¶ 43. I agree that summary judgment was improper because Mr. Burley was not prohibited from initiating this wrongful-death action as an interested party. However, I disagree with the decision’s implication that a cause of action belonging to an intestate estate cannot exist until an administration has begun.

¶ 44. Relying on Delta Health Group, Inc. v. Estate of Pope, 995 So.2d 123, 126 (Miss.2008), the majority concludes that “[a]s no estate had been opened at the time the complaint was filed, Burley could not have been the administrator of nonexistent estates.” Maj. Op. at 1020. I respectfully disagree with this rationale, for an estate does not come into existence upon commencement of an administration in chancery court. The estates of Joshua and Jakura existed before their grandfather was granted letters of administration, as did any and all causes of action belonging to these estates. The flaw of today’s decision, and that of Pope, is in their implication that a cause of action belonging to the estate of a decedent cannot come into being until administration of the estate has begun. See Pope, 995 So.2d at 125 (“a right of action must be complete when an action therefor is commenced”) (quoting Crawford Commercial Constructors v. Marine Indus. Residential Insulation, Inc., 437 So.2d 15, 16 (Miss.1983)).

¶ 45. At the time Mr. Burley filed this action, it was not that he lacked standing to sue on behalf of the deceased children’s estates; he simply did not then have the capacity to sue as a personal representative. Although the terms are closely related, they are distinct. “Basically put, the capacity to sue is the right to come into court. It is distinguishable from standing to sue which is a right to relief, which goes to the existence of the cause of action.” 67A C.J.S. Parties § 11 (2008) (citations omitted). Standing is not at issue; there can be no dispute that the cause of action existed at the time Mr. Burley filed his complaint. What Mr. Burley lacked at that time was the formal capacity to sue on behalf of his grandchildren’s estates.

¶ 46. There may be instances, as when expiration of a statute of limitations is imminent, and unforeseen circumstances have thrust one into a representative capacity, when he or she must file suit before receiving letters of administration. In such instances, he or she should be able to toll the statute by filing suit and seeking appointment immediately thereafter. An estate’s ability to litigate should not be denied or impaired because no personal representative of a decedent has been formally appointed and duly qualified at a time when it is expedient for a claim or claims to be preserved by the filing of suit. In such circumstances, appointment of a personal representative should be sought without unreasonable delay.

¶ 47. For these reasons, I respectfully concur in part and in result.

GRAVES, P.J., JOINS THIS OPINION.

      . Burley's original complaint was amended on September 20, 2005, to specify that the compensatory damages "represented] loss of society and companionship, the present net cash value of the decedents' life expectancies, hedonic damages, physical and mental pain and suffering, medical expenses, funeral expenses, and damage to personal property.”

      . Hereafter, YVEPA and Douglas will be referred to collectively as YVEPA, except where it is necessary to refer to one or the other in an individual capacity.

      . The wrongful-death claim brought on behalf of Francesca Hill, Burley’s daughter, was not affected by this ruling. In dismissing Bur-ley's wrongful-death claims as to Joshua and Jakura Hill, the trial court expressly found "that there is no just reason to delay” and directed entry of the final judgment "pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure.” The dismissal, therefore, was properly certified under Rule 54(b) as an ap-pealable final judgment.

      . Burley misunderstands the distinction between "statutory heirs” and "statutory wrongful-death beneficiaries.” In his brief, Burley asserts that he was a proper plaintiff to commence and maintain this wrongful-death action because the heirship orders "conclude that [he], among others, is a wrongful death beneficiary, as well as an heir-at-law through intestate succession." (Emphasis added.) However, Burley’s adjudication as an heir-at-law did not simultaneously adjudicate him to be a "statutory wrongful-death beneficiary” ("listed relative”). See footnote 8, infra.

      . The "wrongful death beneficiaries” enumerated in the statute are the decedent’s immediate family members, i.e., "the widow, husband, child, father, mother, sister [and] brother of the deceased.” Miss.Code Ann. § 11-7-13. These family members are known to the bench and bar by the term of art, “statutory wrongful-death beneficiaries.” However, the wrongful-death action can be brought by persons other than a family member, namely the decedent’s personal representative or an "interested party,” who also may “benefit” from recovering damages from the wrongful-death suit. Thus, we will not use the term "beneficiaries” to describe these family members, since any potential wrongful-death claimant technically could be considered a "beneficiary." Instead, for the sake of clarity, we will refer to these family members as "listed relatives,” and we shall refer to all three categories of claimants by the umbrella term, "potential wrongful-death claimants.”

      . Pope also states that "Mississippi Code Annotated Section 91-7-233 (Rev.2004) holds that '[e]xecutors, administrators, and temporary administrators may commence and prosecute any personal action whatever, at law or in equity, which the testator or intestate might have commenced and prosecuted.' Payne held none of the offices mentioned therein when suit was commenced.” Pope, 995 So.2d at 126. Mississippi Code Section 91-7-233, called the "survival statute,” is a separate and distinct law that allows only the personal representative to bring a suit that the decedent could have brought. However, "[w]hen the same wrongful conduct causes both personal injury and death, at the instant of death, the recovery for the personal injury is embraced by the 'one suit' for wrongful death and is not actionable by the estate under the survival statute.” In re Estate of England, 846 So.2d 1060, 1068 (Miss.Ct.App.2003) (citing Edward Hines Yellow Pine Trustees v. Stewart, 135 Miss. 331, 347, 100 So. 12, 14 (1924)). Therefore, the survival statute was inapplicable to the suit in Pope. The wrongful-death statute, as discussed herein, allows the suit to be brought by the personal representative, certain listed relatives, and “interested parties.” Miss.Code Ann. § 11-7-13 (Rev.2004).

      . We have since noted that "a wrongful death action may be brought ‘by all interested parties,’ and ‘all parties interested may join the suit[.]’ ” Estate of Klaus ex rel. Klaus v. Vicksburg Healthcare, LLC, 972 So.2d 555, 559 n. 3 (Miss.2007) (quoting Miss.Code Ann. § 11-7-13).

      . A person who qualifies as a "statutory heir" is one who is eligible to inherit from the decedent under our intestate descent and distribution statutes, and who therefore may be adjudicated by the chancery court as an heir-at-law of the decedent. Miss.Code Ann. §§ 91-1-1 to -31 (Rev.2004). Such a "statutory heir" does not necessarily qualify as a "listed relative” under Mississippi’s wrongful-death statute. Miss.Code Ann. § 11-7-13 (Rev.2004). The descent and distribution statutes enumerate as "statutory heirs,” in descending order of priority, the decedent's spouse and children, the decedent's siblings and parents, and the decedent's grandparents, uncles, and aunts. Miss.Code Ann. §§ 91-1-1 to -11. The "listed relatives” in the wrongful-death statute, however, do not include the decedent’s grandparents, uncles, or aunts. Miss.Code Ann. § 11-7-13. Therefore, a person like Burley-who qualifies as a "statutory heir” under Section 91-1-3 by virtue of being Joshua and Jakura’s grandfather — does not qualify as a "listed relative” under Section 11-7-13, and would not have standing as such to bring a wrongful-death action. However, that person may have standing as an "interested party” to bring a wrongful-death action if none of the higher-priority, statutory heirs survives the decedent. Burley is an example of such an interested party, and his adjudication as an heir-at-law of Joshua and Jakura Hill confirmed that status.

      . Our decision in Long noted that "[t]he possible [wrongful-death] claimants are (1) the heirs (under the will or pursuant to the intestate succession statutes), (2) the estate, and (3) the statutory wrongful death beneficiaries.” Long, 897 So.2d at 169 (emphasis added). Long's categories (2) and (3) coincide with the statutory categories “personal representative” and "listed relatives,” respectively. Thus, Long recognized without stating that the first category we mentioned, "the heirs,” logically coincides with "interested parties.”

      . We have recognized that "Mississippi's wrongful death statute specifies certain individuals who may bring an action for wrongful death and certain other individuals who may benefit from the proceeds of the claim.” Coleman Powermate, Inc. v. Rheem Mfg. Co., 880 So.2d 329, 333 (Miss.2004) (citing R.D. Hursh, Annotation, Assignability of Claim for Personal Injury or Death, 40 A.L.R.2d 500, § 9[a], at 514, 1955 WL 10256 (1955)).

      . Whoever initiates the wrongful-death action has a fiduciary obligation to all the other potential claimants, who may join in the suit. Specifically, we have explained that "bringing suit in such a representative capacity renders the named plaintiff a fiduciary to all he or she proposes to represent, .... [whol must trust the named plaintiff to properly prosecute the litigation ... and handle all funds recovered as trust funds for the benefit of those entitled to them.” Long, 897 So.2d at 169.

      . See footnote 1, supra.

      . That fact is of little consequence, though, because Burley has been appointed the administrator of the estates, and he stands to inherit through the estates as an heir-at-law.

      . It bears noting that the claimant in Pope likely was appointed administrator only by misrepresenting his relationship to the decedent. See Pope, 995 So.2d at 124 (noting that Payne claimed to be the decedent's nephew, the son of her sister, but later was found to be her great-nephew, the son of her sister's daughter, the decedent’s niece).