author: MAXWELL, J.,

text:
    Jeff DICKERSON, Appellant v. Bonnie Lynn DICKERSON, Appellee.
    No. 2008-CA-01100-COA.
    Court of Appeals of Mississippi.
    April 20, 2010.

      James L. Penley, Jr., Vicksburg, attorney for appellant.
    Mareie Tanner Southerland, Vicksburg, attorney for appellee.

      Before KING, C.J., ISHEE and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Jeff and Bonnie Lynn (“Lynn”) Dickerson were divorced in the Warren County Chancery Court. The divorce was granted on the ground of Jeffs uncon-doned adultery. The chancellor classified, valued, and divided the parties’ property. The chancellor also awarded attorneys’ fees to Lynn. On appeal, Jeff raises the following issues:

I. Whether Lynn’s “unfaithfulness” constituted a ground for divorce;
II. Whether the chancellor erred in her distribution of marital property and debt;
III. Whether the chancellor erred in awarding lump-sum alimony to Lynn; and
IV. Whether the chancellor erred in awarding attorneys’ fees to Lynn.

Finding no reversible error, we affirm.

FACTS

¶ 2. Jeff and Lynn were married for the first time in 1999. After about two-and-a-half years together, they divorced. Though the couple parted ways for a short time, in June 2003, they remarried. However, they separated again in April 2006, and Lynn filed for divorce the next month.

¶ 3. Years before meeting Lynn, Jeff started Dickerson Tire Company (“Dickerson Tire”). He operated the company as a sole proprietorship throughout the parties’ marriage. Lynn testified her main priority was helping Jeff operate Dickerson Tire, which she did for no salary. She also held a real-estate license and performed real-estate work part time.

¶ 4. Debbie Snyder regularly visited Dickerson Tire. She had previously been married to one of the tire store’s employees. At some point after her divorce, Snyder became romantically involved with Jeff. At trial, Snyder admitted she had been sleeping with Jeff for more than a year, but she denied doing so before Jeff and Lynn separated. Jeff also denied the affair occurred prior to his separation from Lynn.

¶ 5. However, Susan Brasfield, who had been married to another Dickerson Tire employee, testified that in early 2005 Jeff and Snyder had dinner together one night while Lynn was out of town. Brasfield testified that the next day Jeff and Snyder admitted to other Dickerson Tire employees they were romantically involved. Brasfield also testified that Jeff and Snyder were openly intimate with each other in the shop and that Snyder would often sit on Jeffs lap and “kiss on him.” Bras-field claimed Jeff also gave Snyder money on numerous occasions.

¶ 6. Snyder testified about an incident involving Lynn that occurred in 2004. According to Snyder, she and Lynn went to a “topless bar.” The two met a man, who accompanied them to Lynn’s and Jeffs residence. Snyder explained that she, Lynn, and the unidentified man then went “skinny dipping” in a nearby lake. However, Snyder admitted that she did not “see anything sexual happen” between them.

¶ 7. Following Lynn’s separation from Jeff, Lynn lived with her mother. She met her mother’s next door neighbor, Larry Wade, and eventually became romantically involved with him. Wade testified that he had been having a sexual relationship with Lynn since February 2007 and had provided for her financially since that time.

PROCEDURAL HISTORY

¶ 8. Lynn filed for her second divorce from Jeff on May 22, 2006. She alleged habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. Jeff filed an answer and counterclaim alleging habitual cruel and inhuman treatment as well as adultery. In the alternative, Jeff requested an irreconcilable differences divorce. Lynn later amended her divorce complaint to include uncondoned adultery as a ground for divorce. Jeff and Lynn have no minor children, so there were no custody or child support issues.

¶ 9. On May 23, 2008, the chancellor entered a written final judgment granting Lynn a divorce based upon Jeffs uncon-doned adultery. The judgment included a distribution of the marital property that favored Lynn.

¶ 10. The parties stipulated that multiple items of personal property should be classified as marital. Of these items, they agreed Lynn should receive $12,020 worth of personal property, and $27,002.83 worth of personal property would be distributed to Jeff.

¶ 11. Responsibility for the parties’ credit card debt was in dispute. The chancellor found that $14,167.10 in credit card debt was marital debt, which the chancellor ordered Jeff to pay.

¶ 12. The parties also disputed the proper designation and/or distribution of the following four significant pieces of property: Dickerson Tire, which had equity in the amount of $215,065.42; two pieces of real property with a total equity of $44,849.49; and a 2001 Lexus vehicle with equity of $2,668.98. The chancellor found Dickerson Tire was Jeffs separate property. However, the chancellor determined the two real-estate properties and the Lexus were marital property. Lynn was awarded ownership of the Lexus and $28,269.37 of the net sale proceeds from the two properties. The chancellor ordered the remaining balance of the net sale proceeds to be applied to Lynn’s award of attorneys’ fees. Jeff was also ordered to pay Lynn’s attorneys’ fees that the net sale proceeds of the real properties were insufficient to cover. Finally, the chancellor ordered Jeff to pay Lynn $10,096.02 in lump-sum alimony, which represented the amount owed on the 2001 Lexus vehicle.

STANDARD OF REVIEW

¶ 13. This Court will not disturb a chancellor’s findings unless the chancellor’s decision was manifestly wrong or clearly erroneous, or the chancellor applied an improper legal standard. Wallace v. Wallace, 12 So.3d 572, 575 (¶ 12) (Miss.Ct.App.2009). We review questions of law de novo. George v. George, 22 So.3d 424, 427 (¶ 4) (Miss.Ct.App.2009).

DISCUSSION

I. Lynn’s Alleged Adultery

¶ 14. Jeff argues the chancellor should have granted him a divorce on the ground of adultery based on (1) Lynn’s alleged adultery with the unidentified man from the “skinny-dipping” incident, and (2) Lynn’s relationship with Wade after her separation from Jeff.

¶ 15. Mississippi Code Annotated section 93-5-1 (Supp.2009) provides that adultery is a ground for divorce, unless the parties colluded in procuring the divorce or cohabited after the plaintiffs knowledge of the adultery. “Where adultery is alleged, the chancellor is required to set forth specific findings of fact and conclusions of law in this regard.” Reynolds v. Reynolds, 755 So.2d 467, 469 (¶ 7) (Miss.Ct.App.1999) (citation omitted). Where a chancellor does make such findings, his or her decision will not be set aside on appeal unless the chancellor manifestly erred. McAdory v. McAdory, 608 So.2d 695, 699 (Miss.1992).

¶ 16. Our supreme court has explained: “adultery cannot be committed by an unmarried woman with an unmarried man, the gist of the offense being voluntary sexual intercourse of a married person with a person other than the offender’s spouse.” Owen v. Gerity, 422 So.2d 284, 287 (Miss.1982). Adultery may be proven by either direct evidence or, because of the often “secretive nature” of the conduct, circumstantial evidence. Dillon v. Dillon, 498 So.2d 328, 330 (Miss.1986). The plaintiff must prove by clear and convincing evidence: (1) an adulterous inclination and (2) a reasonable opportunity to satisfy that inclination. Atkinson v. Atkinson, 11 So.3d 172, 177 (¶ 20) (Miss.Ct.App.2009) (citation omitted). Establishing an “adulterous inclination” requires proof of either the defendant’s infatuation with a particular person or general adulterous propensity. Lister v. Lister, 981 So.2d 340, 344 (¶ 23) (Miss.Ct.App.2008).

¶ 17. Here, the chancellor made the following findings of fact:

During the trial, [Snyder] testified that in August 2004, she and [Lynn] went to a bar in Louisiana where [Lynn] convinced a man to go home with them. [Snyder] further testified that while [Jeff] was asleep in his bedroom, [Lynn] went swimming with the man and took her shirt off in front of him. [Snyder] also stated that she believed the two ( [Lynn] and the unidentified man) had sex that night. This testimony was contradicted by [Lynn] who testified that she in fact went to bed with [Jeff] that night and that it was [Snyder] who slept with the unidentified man. This was the only testimony presented regarding [Lynn’s] alleged adulterous behavior pri- or to the parties’ separation.
[Brasfield] ... offered testimony regarding [Jeffs] and [Snyder’s] adulterous relationship. [Brasfield] stated that while [Lynn] was out of town in early 2005, [Jeff] and [Synder] had dinner together one night[,] and that the next day both admitted to her, and other employees of Dickerson Tire, that the two were in fact having a sexual relationship. [Brasfield] stated that after [Jeffs] and [Snyder’s] admission, they were openly intimate with one another at [Dickerson Tire]. She stated that on one occasion she witnessed [Snyder] sitting in [Jeffs] lap. [Lynn] testified that [Jeff] confessed to having an illicit relationship with [Snyder] during the marriage. [Jeff] denied that he ever had sexual relations with [Snyder] prior to their separation.

¶ 18. Thus, there was abundant evidence of Jeffs adultery, including Jeffs and Snyder’s multiple admissions. Accordingly, the chancellor was well within her discretion in granting a divorce to Lynn. This is true even though Jeff asserts that Lynn also had adulterous affairs of her own.

¶ 19. Although Jeff never uses the term “recrimination,” he raises, in essence, a recrimination argument. The defense of recrimination “is founded on the basis that the equal guilt of a complainant bars his/her right to divorce, and the principal consideration is that the complainant must come into court with clean hands.” Harmon v. Harmon, 757 So.2d 305, 309 (¶ 10) (Miss.Ct.App.1999). But our precedent makes clear that one party’s adultery, even if established at trial, does not prevent the chancellor from granting a divorce to that party. Id. at (¶ 12). See also Miss.Code Ann. § 93-5-3 (Rev. 2004) (“If a complainant or cross-complainant in a divorce action shall prove grounds entitling him to a divorce, it shall not be mandatory on any chancellor to deny such party a divorce, even though the evidence might establish recrimination on the part of such complainant or cross-complainant.”). For instance, in Parker v. Parker, 519 So.2d 1232, 1236 (Miss.1988), our supreme court reversed a chancellor’s decision denying a woman, who had committed post-separation adultery, a divorce based on recrimination. The court reasoned:

While this Court is not suggesting con-donation of the conduct of the appellant wife after the separation of the parties, when we balance out the uncontradicted evidence that the conduct of the appellee was responsible for the separation of the parties and the dissolution of their marriage; that the misconduct of the appellant wife occurred after the destruction of the marriage; and that the [Legislature has, in the least, greatly weakened the defense of recrimination; we are of the opinion that the learned chancellor erred in denying a divorce to [the] ap-pellantf.]

Id. Here, Jeff primarily relies on Snyder’s testimony to support his contention that Lynn committed adultery prior to the parties’ separation. However, Snyder admittedly did not observe anything of a sexual nature occur during the sole encounter between Lynn and the unidentified man. Jeffs argument rests on Snyder’s testimony about the “skinny-dipping” incident, but the conduct described by Snyder falls short of the definition of adultery. Owen, 422 So.2d at 287. Furthermore, although Lynn and Wade both admitted having a sexual relationship since February 2007, their relationship began months after the parties’ separation and did not cause the separation. On the other hand, the evidence showed Jeff committed adultery pri- or to the parties’ separation and continued his relationship with Snyder up until and well after his separation from Lynn.

¶ 20. For these reasons, we are unable to say that the chancellor committed manifest error in granting a divorce to Lynn based upon Jeffs uncondoned adultery.

II. Distribution of Property

¶ 21. Jeff contends the chancellor’s distribution of marital property is not supported by substantial evidence. Jeff acknowledges the chancellor addressed the factors set forth in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). However, he argues the chancellor failed to give adequate weight to his efforts in accumulating assets and Lynn’s alleged lack of contributions.

¶ 22. Jeff argues that essentially all of the income brought into the marriage was from Dickerson Tire. He also claims that Lynn, who is a licensed realtor, engaged in only minimal efforts to buy and sell houses in order to increase their income. He characterizes Lynn as a spendthrift, who lived off of the profits from Dickerson Tire, but contributed basically nothing to the business.

¶ 23. The supreme court’s decision in Ferguson sets forth the proper framework for property designation and distribution. Chancellors are directed to (1) classify the parties’ assets as marital or separate; (2) determine the value of those assets; (3) divide the marital estate equitably based upon the factors set forth in Ferguson; and (4) consider the appropriateness of alimony if either party is left with a deficiency. Larue v. Larue, 969 So.2d 99, 104 (¶ 11) (Miss.Ct.App.2007) (citing Ferguson, 639 So.2d at 928-29). The Ferguson factors include:

(I) contribution to the accumulation of property, (2) dissipation of assets, (3) the market or emotional value of assets subject to distribution, (4) the value of assets not subject to distribution, (5) the tax and economic consequences of the distribution, (6) the extent to which property division may eliminate the need for alimony, (7) the financial security needs of the parties, and (8) any other factor that in equity should be considered.

Hults v. Hults, 11 So.3d 1273, 1281 (¶ 36) (Miss.Ct.App.2009) (citing Ferguson, 639 So.2d at 928-29). In applying the Ferguson factors, chancellors should consider each party’s marital fault. Singley v. Singley, 846 So.2d 1004, 1013-14 (¶ 26) (Miss.2002). Furthermore, there is a presumption that “the contributions and efforts of the marital partners, whether economic, domestic or otherwise are of equal value.” Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994).

¶ 24. In applying the Ferguson factors, chancellors must support their decisions with findings of fact and conclusions of law. Goellner v. Goellner, 11 So.3d 1251, 1263 (¶ 44) (Miss.Ct.App.2009) (citation omitted) (citing Ferguson, 639 So.2d at 929). In reviewing these findings, we do not conduct a Ferguson analysis anew. Goellner, 11 So.3d at 1264, 1266 (¶¶ 45, 52). Rather, we examine the chancellor’s judgment as well as the record to ensure that the chancellor applied the correct legal standard and did not commit an abuse of discretion. Id.

¶ 25. Here, the chancellor was presented with the difficult task of equitably dividing the property. Jeff and Lynn agreed upon the classification and valuation of many items of property, but submitted others for the chancellor to decide. The chancellor thoroughly analyzed the facts and applicable law in a sixty-one page final judgment. Twenty-one of these pages are devoted solely to issues related to property division. The chancellor ultimately ordered an equitable division and awarded an unequal sum favoring Lynn, which Jeff argues was error. After reviewing the record, we cannot say that the chancellor’s decision was manifestly wrong or clearly erroneous.

¶ 26. Jeffs argument primarily rests on the assumption that his efforts in accumulating marital property were greater than Lynn’s. Jeff suggests that Lynn spent much of her time gambling and made no contribution to the marriage. He also contends she failed to build her real-estate practice to assist Jeff in paying bills. In fact, at trial, Jeff testified that Lynn never worked with him at Dickerson Tire, and she contributed nothing to the operation of the business.

¶ 27. However, testimony by both Lynn and Brasfield contradicted Jeffs characterization of Lynn’s efforts. According to Lynn, she worked thirty hours per week and made significant contributions to the operation of Dickerson Tire by performing “whatever needed to be done.” Brasfield agreed that Lynn performed “pretty much everything ... except for the actual physical work on the vehicles.” These tasks included answering the phone, taking payments, paying creditors, as well as assisting customers and placing orders for them. Several witnesses testified Lynn secured newspaper and television advertisements for the business. Although Jeff alleges Lynn did not adequately utilize her status as a licensed realtor to contribute income, the chancellor heard evidence that Lynn had little time to devote to her realty practice given the amount of time she spent working for Dickerson Tire.

¶ 28. In any event, contribution to the accumulation of marital property is but one factor to be assessed in the overall Ferguson analysis. Another factor is each party’s assets not subject to equitable distribution. Our case law makes clear that Ferguson is to be applied in light of each party’s non-marital property. Welch v. Welch, 755 So.2d 6, 9 (¶ 19) (Miss.Ct.App.1999). For example, in Welch, we found no reversible error where a chancellor awarded two-thirds of the marital estate to a spouse based primarily on the fact that the other spouse owned a substantial separate estate. Id. at 8-10 (¶¶ 10, 19, 25).

¶ 29. Here, the chancellor recognized Dickerson Tire was a substantial non-marital asset owned by Jeff. The parties agreed that the business had a value of $300,000 and an equitable value of $215,065.42 at the time of the parties’ separation. Thus, Jeffs separate estate is of considerable value given the parties’ overall assets. There is a substantial disparity between Jeffs and Lynn’s separate estates given that Lynn has no separate estate. Without going into an exhaustive list of all the chancellor’s Ferguson findings, we also point out that the chancellor noted Jeffs marital fault — his adulterous relationship prior to the parties’ separation — and trial testimony that Lynn performed household duties such as cleaning.

¶ 30. This Court has held that chancellors need not divide the marital estate equally when ordering an equitable division. See, e.g., Goellner, 11 So.3d at 1264 (¶ 45) (citation omitted). Indeed, an unequal division may be appropriate under certain circumstances. After reviewing the chancellor’s findings and the record, we find the chancellor acted well within her discretion in applying Ferguson. Accordingly, we decline to disturb her findings on this issue.

III. Lump-Sum Alimony

¶ 31. The chancellor ordered Jeff to pay $10,096.02 in lump-sum alimony. This is the exact amount owed on Lynn’s 2001 Lexus vehicle, which she drove during the marriage. Jeff argues this award was inappropriate because: the marriage was short; Lynn possesses a real-estate license; and Lynn has been living with a man who is providing for her.

¶ 32. The decision of whether to award alimony and the amount of the award are matters left to the chancellor’s discretion. Lofton v. Lofton, 924 So.2d 596, 599 (¶ 12) (Miss.Ct.App.2006) (citing Voda v. Voda, 731 So.2d 1152, 1154 (¶ 7) (Miss.1999)). Lump-sum alimony is used as a tool to prevent unfair property division. See Ferguson, 639 So.2d at 926. This type of alimony has also “been described as a method of dividing property under the guise of alimony.” Id. (citations omitted). Thus, a lump-sum award may be necessary where the marital property is not easily divided between the parties. Cf. Haney v. Haney, 907 So.2d 948, 955 (¶ 29) (Miss.2005) (“Haney III”). Further, a lump-sum award “is a final settlement, not subject to modification.” Hubbard v. Hubbard, 656 So.2d 124, 130 (Miss.1995).

¶ 33. Past cases have required chancellors to apply the Cheatham factors to determine whether lump-sum alimony is appropriate. See, e.g., Davis v. Davis, 832 So.2d 492, 499 (¶ 26) (Miss.2002); White v. White, 868 So.2d 1054, 1058 (¶ 9) (Miss.Ct.App.2004). The Cheatham factors include:

1) Substantial contribution to accumulation of total wealth of the payor either by quitting a job to become a [homemaker], or by assisting in the spouse’s business.
2) A long marriage.
3) Where [the] recipient spouse has no separate income or the separate estate is meager by comparison.
4) Without the lump[-]sum award the receiving spouse would lack any financial security.

Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988) (internal citations omitted).

¶ 34. In the present case, the chancellor applied these factors. As to the first factor, the chancellor noted: Lynn quit her job she held at the time of the parties’ second marriage; the parties agreed Lynn would help Jeff operate Dickerson Tire; Jeff testified Lynn promised him she would become a successful real-estate agent but stopped pursuing this goal; the evidence supported that Lynn in fact helped Jeff operate Dickerson Tire; there was no evidence or testimony regarding the effect Lynn’s work at Dickerson Tire had on Jeffs accumulation of wealth; and Lynn was employed with a real-estate firm during the marriage. The chancellor weighed this factor neutrally in her analysis of lump-sum alimony. As to the second factor, the chancellor found the parties’ three-year marriage prior to their separation also weighed neutrally. On the third factor, the chancellor noted: Lynn had a current real-estate license; Jeff testified that Lynn was “less than motivated” in performing her real-estate work; Lynn’s income is totally based on commissions and fluctuates partly based upon the real-estate market and partly based on her personal efforts; and Lynn’s separate income was significantly less than Jeffs. The chancellor weighed this factor in favor of awarding Lynn lump-sum alimony. As to the fourth factor, the chancellor pointed out that the evidence showed: Lynn had no savings or retirement accounts; she is totally provided for by Wade; Lynn could be “left without a roof over her head at the whim of Mr. Wade”; Jeffs separate estate is valued at $215,065.42; and Lynn has no separate estate. The chancellor weighed this factor in favor of awarding lump-sum alimony. Based on these findings, the chancellor concluded that the balance of equities favored awarding lump-sum alimony. She ordered Jeff to pay lump-sum alimony to Lynn in the amount of $10,-096.02 — the remaining balance owed on the 2001 Lexus that was awarded to Lynn.

¶ 35. Recently, our supreme court in Haney III explained the Cheatham factor test is an antiquated version of Ferguson ⅛ equitable division factors:

Clearly, the Cheatham factors were simply an earlier attempt by this Court to provide a chancellor with guidelines for awarding what today is called an equitable distribution of marital assets, under appropriate circumstances. Indeed, we see no Ferguson factor which would be inappropriate in evaluating lump[-]sum alimony. Although we continue to refer to certain payments as “lump[-]sum alimony,” these payments are really no more than equitable distribution in the form of lump[-]sum cash, rather than an equitable portion of certain property which cannot be divided equitably.

Haney III, 907 So.2d at 955 (¶ 26). Haney III explained lump-sum alimony is closely tied to equitable distribution, and it is really nothing more than equitable distribution in the form of cash. In addition, the supreme court observed the Ferguson factors have essentially consumed the Cheat-ham factors.

¶ 36. The supreme court later reaffirmed its Haney III holding in Yelverton v. Yelverton, 961 So.2d 19, 25 (¶¶ 8-9) (Miss.2007). In evaluating the chancellor’s lump-sum award, the Yelverton majority found “the Ferguson factors should now be set forth and applied in all appropriate situations.” Id. at (¶ 9). Since the chancellor in Yelverton failed to apply the Ferguson or Cheatham factors, the supreme court reversed on the issue of lump-sum alimony and remanded the case with instructions for the chancellor to apply Ferguson. Yelverton, 961 So.2d at 26 (¶¶ 10-11).

¶ 37. The supreme court has further instructed it is improper to award lump-sum alimony “based upon nothing more than one spouse’s need and the other’s ability to pay.” Haney III, 907 So.2d at 955 (¶ 28). Rather, “[m]ore justification is needed. That is why the Cheatham factors and the Ferguson factors were provided.” Id.

¶ 38. Here, the chancellor made findings of fact and conclusions of law, applying the Cheatham factors. The chancellor’s analysis was thorough. Notably, in awarding lump-sum alimony to Lynn, the chancellor considered the disparity in the parties’ respective incomes; Jeffs significant separate estate compared to Lynn’s non-existent separate estate; and Lynn’s lack of financial security in part because she has no savings or retirement accounts. We cannot say that the chancellor manifestly erred in her determination on the issue of lump-sum alimony.

¶ 39. Having considered the supreme court’s recent decisions in Haney III and Yelverton, we point out that chancellors should analyze the Ferguson factors (which necessarily include the Cheatham factors) in awarding lump-sum alimony. However, our precedent supports that failure to apply Ferguson is not reversible error where Cheatham is applied, and the award is supported by substantial evidence. See, e.g., Davis, 832 So.2d at 499-500 (¶¶ 26-29). Such is the case here. We decline to disturb the chancellor’s lump-sum alimony award under our limited standard of review.

IV. Attorneys’ Fees

¶ 40. The chancellor ordered Jeff to pay Lynn’s attorneys’ fees, which totaled $15,056.39. Jeff had already paid almost half of these fees as of the date of the divorce judgment. In the judgment, the chancellor ordered Jeff to pay the remaining balance. The chancellor ordered the majority of these attorneys’ fees to be paid from the sale of the parties’ real-estate properties, with Jeff paying the amount remaining ($2,013.41) after the real-estate proceeds were applied to Lynn’s award of attorneys’ fees.

¶ 41. Jeff does not take issue with the hourly rate charged by Lynn’s attorneys. Instead, he argues the number of hours logged by her attorneys was excessive. Specifically, he claims the divorce case was simply a continuation of prior temporary matters. He contends many of the same issues were presented, and Lynn’s attorneys spent too much time on the divorce litigation. Jeff also argues the chancellor should have considered the factors in McKee v. McKee, 418 So.2d 764 (Miss.1982), in determining the proper amount of the award.

A. Amount of the Award

¶ 42. Here, the parties stipulated that the items billed by Lynn’s attorneys were legitimate, and the amount was reasonable. Matters stipulated at trial are procedurally barred from being appealed. See State ex rel. Holmes v. Griffin, 667 So.2d 1319, 1327 (Miss.1995). Accordingly, Jeff has waived any argument as to the amount billed by Lynn’s attorneys. However, we will address the chancellor’s award.

¶ 43. An award of attorneys’ fees is a matter largely within the sound discretion of the chancellor. Smith v. Smith, 614 So.2d 394, 398 (Miss.1993). Appellate courts are reluctant to disturb a chancellor’s discretionary determination of whether to award attorneys’ fees. Id. They are also hesitant to second guess the amount of any award. Id. This is especially true in divorce cases where chancellors have wide authority and discretion in setting appropriate attorneys’ fees. Hartley v. Hartley, 317 So.2d 394, 395 (Miss.1975).

¶ 44. Attorneys’ fees should only be awarded in an amount that compensates for services rendered. McKee, 418 So.2d at 767. The fees must be fair to all concerned after determination that the legal work was reasonably required and necessary. Id. Chancellors should apply the following factors in determining the proper amount of the award:

[A] sum sufficient to secure [a] competent attorney is the criterion by which we are directed. The fee depends on consideration of, in addition to the relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.

Id. (internal citation omitted).

¶ 45. Jeff does not address all the McKee factors, but primarily argues: (1) the case did not involve novel or difficult questions, and (2) Lynn was financially able to pay. We agree that some of the same issues were undoubtedly revisited in the divorce matter. But we do not view this case as a routine continuation of the temporary matters. The divorce hearing itself spanned four days and involved calling multiple witnesses. The chancellor also required both parties to submit briefs in support of their positions. Though some issues were agreed upon, many issues were contentiously debated. Notably, each party asserted multiple acts by the other allegedly constituting fault-based grounds for divorce.

¶ 46. In addition, there is ample support in the record that Lynn is not financially capable of paying her attorneys’ fees. The record shows that Lynn worked for Dickerson Tire for the entirety of the marriage for no salary, and she was heavily dependent on Jeff to provide for her. Also, Lynn testified that she had difficulty generating her own independent income in her real-estate practice due to Jeffs actions. Specifically, Lynn alleged Jeff had stolen her 2001 Lexus vehicle, which deprived her of a means of transportation to her real-estate job. Lynn testified that for this reason, she was unable to work for much of 2006 and during the early part of 2007. According to Lynn, she earned about $8,700 for the entire year of 2007 and generated about $1,000 per month during the months she had transportation.

¶ 47. Furthermore, some of the attorneys’ fees were generated during proceedings in which Jeff was found in contempt of a court order to pay temporary support. As our precedent makes clear, attorneys’ fees are properly assessed against a party found to be in contempt. Mount v. Mount, 624 So.2d 1001, 1005 (Miss.1993). Moreover, the chancellor noted that Jeff engaged in dilatory tactics throughout the litigation, such as having two restraining orders issued against Lynn under questionable circumstances. There was also evidence that Jeff may have concealed assets, as various items of personal property last known to be in Jeffs possession were unaccounted for. Such wrongful conduct has been held to support an award of attorneys’ fees. Merideth v. Merideth, 987 So.2d 477, 485 (¶¶ 29-30) (Miss.Ct.App.2008) (citing Miss.Code Ann. § 11-55-5(1) (Rev. 2002)); Myers v. Myers, 741 So.2d 274, 281 (¶ 31) (Miss.Ct.App.1998) (citing Pittman v. Pittman, 652 So.2d 1105, 1111 (Miss.1995)).

¶ 48. For these reasons, we find the chancellor did not manifestly err in crafting the attorneys’ fees award.

B. McKee Findings

¶ 49. As already stated, chancellors are instructed to apply the McKee factors in granting or denying attorneys’ fees. The chancellor did not cite McKee itself in her final judgment, but she did cite Baldwin v. Baldwin, 788 So.2d 800, 807 (¶ 19) (Miss.Ct.App.2001), in which this Court recited the McKee factors. Although the chancellor addressed the applicable law, she did not make specific findings regarding the McKee factors. However, where there is substantial evidence in the record supporting the chancellor’s award of attorneys’ fees, the omission of specific findings cannot be deemed reversible error. See Varner v. Varner, 666 So.2d 493, 498 (Miss.1995) (no McKee findings); Prescott v. Prescott, 736 So.2d 409, 416 (¶ 31) (Miss.Ct.App.1999) (no finding of inability of recipient to pay). As previously discussed in detail, substantial evidence supports the chancellor’s award.

¶ 50. We note also that a specific, on-the-record finding of inability to pay is not necessary where attorneys’ fees are awarded due to the other party’s failure to comply with discovery requests. Russell v. Russell, 733 So.2d 858, 863 (¶ 16) (Miss.Ct.App.1999). A specific finding of inability to pay is also not required when attorneys’ fees are assessed against a party found to be in contempt. Mount, 624 So.2d at 1005. The chancellor specified her award included “not only the amount usually incurred during a fault[-]based divorce, but also additional fees associated with [Jeffs] refusal to cooperate with the discovery process.” The chancellor also found Jeff in contempt for violating a court order to pay temporary support.

¶ 51. For these reasons, this assignment of error is without merit.

¶ 52. THE JUDGMENT OF THE CHANCERY COURT OF WARREN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ„ CONCUR.

      . We note that our standard of review is de novo where a chancellor fails to make such findings. Brooks v. Brooks, 652 So.2d 1113, 1117 (Miss.1995); see also Curtis v. Curtis, 796 So.2d 1044, 1049 (¶ 16) (Miss.Ct.App.2001) (citing Brooks, 652 So.2d at 1117-19). Because the chancellor made specific findings of fact in this case, we must apply our deferential manifest-error standard.

      . Dickerson Tire was owned by Jeff for years prior to the marriage. The parties do not challenge the chancellor’s determination that Dickerson Tire was Jeff’s separate property.

      . The chancellor determined that the total market value of the parties' assets subject to equitable distribution was $86,541.30.

      . We note the chancellor determined that multiple items of personal property that could not be located were Lynn’s separate property.

      . As an illustration of this point, the supreme court provided a chart with a side-by-side comparison of the Ferguson and Cheatham factors. Haney III, 907 So.2d at 954 (¶ 25).

      . Jeff states in his appellate brief: "The hourly rate was within the usual[J customary charge in the community. Appellant takes no issue[J with the rate, just the time that was presented."

      . At trial, Jeffs attorney stated: "I have no objection to the time [Lynn’s] attorneys spent on [the litigation] ... or [to] the rate that [they] charge[ ]....” Jeffs attorney later stated:
      I stipulate ... —Your Honor, that the items indicated on the bill were performed by [Lynn's attorneys], [but] I cannot stipulate that any of that was caused by my client. And so, as to the ... items of the bill, I would suggest to the Court that those have been legitimate items, but would deny that my client is responsible for any of that. And I also would stipulate that the fee charged, [Lynn’s attorneys’! hourly rate[,] is reasonable.


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Jennifer HOLDEMAN, Appellant, v. Phillip HOLDEMAN, Appellee.
    No. 2008-CA-01574-COA.
    Court of Appeals of Mississippi.
    May 4, 2010.

      W. Dean Belk Jr., Indianola, Iva Kuyk-endall Horne-Murry, attorney for appellant.
    John H. Daniels, III, Greenville, attorney for appellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court:

¶ 1. The Sunflower County Chancery Court granted Jennifer and Phillip Holde-man a divorce on the ground of adultery after concluding that both parties had committed uncondoned adultery. Pursuant to an agreement reached by the parties, the chancellor awarded Jennifer primary physical custody of their minor child, Ann Linden, and ordered Phillip to pay child support. Feeling aggrieved, Jennifer appeals and asserts that the chancellor erred by (1) failing to address the issue of health insurance for Ann Linden, (2) deviating from the child-support guidelines without making a specific finding for doing so, and (3) failing to properly evaluate the marital estate.

¶ 2. We find merit to issues one and two. Therefore, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

FACTS

¶ 3. Jennifer and Phillip were married on October 3, 1998. Phillip moved out of the marital home on February 14, 2005, and filed for divorce on May 25, 2007. Jennifer filed an answer and counterclaim for divorce, wherein she sought alimony, custody, child support, and an equitable division of the marital estate. Thereafter, the parties reached an agreement with respect to custody and visitation; however, they were unable to agree on alimony, child support, and the division of the marital estate.

¶ 4. Jennifer is a registered nurse and has been the director of nursing for the Mississippi Care Center of Greenville since July 2007. She earns $72,800 per year. Phillip, on the other hand, owns a catfish-farming business and is the sole stockholder of Rockin H, Inc. (Rockin H), a closely-held trucking and dirt-moving company. Phillip admittedly receives a $55,000 annual management fee from Rockin H and contends that this is his only income.

¶ 5. Before the parties married, Phillip owned 165 acres of catfish ponds and a house located in Inverness, Mississippi, which the parties made their marital residence. Sometime during the marriage, Phillip purchased 290 additional acres of land in Sunflower and Humphreys counties.

¶ 6. The chancellor valued the marital estate, excluding the marital home, at $589,675, divided the marital estate, and ordered Phillip to pay $400 per month in child support. The chancellor’s order reads, in part, as follows:

That Phillip Holdeman shall pay child support for the support of his minor child, Ann Linden Holdeman. That Phillip listed his net income at $3,314.00 per month on his financial statement based on 2006 figures. That 14% of that figure is $463.96. He testified at trial that he thought he should pay 14% of $50,000. That 14% of that figure is $583.00 per month. That Phillip testified that he could pay $400.00 per month. That Phillip has agreed that he wishes for his child to remain in private school and therefore he will pay one half of all private school tuition and fees. Phillip shall additionally pay child support in the amount of $400.00 per month beginning on the first day of September, 2008, and continuing’on the first day of each month thereafter.

Additional facts, if necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 7. An appellate court’s “scope of review in domestic[-]relations matters is limited by our familiar substantial evidence/manifest error rule.” Jones v. Jones, 995 So.2d 706, 712 (¶ 19) (Miss.2008) (quoting Clark v. Clark, 754 So.2d 450, 458 (¶ 48) (Miss.1999)). “The equitable distribution of marital assets is committed to the discretion of the chancellor, whose findings will not be disturbed by [an appellate court] unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Id. (quoting Arthur v. Arthur, 691 So.2d 997, 1003 (Miss.1997)).

1. Health Insurance

¶ 8. In her first issue, Jennifer argues that the chancellor erred in failing to address the issue of Ann Linden’s health insurance in the final order. Jennifer directs our attention to Mississippi Code Annotated section 43-19-101(6), which provides that:

All orders involving support of minor children, as a matter of lato, shall include reasonable medical support Notice to the noncustodial parent’s employer that medical support has been ordered shall be on a form as prescribed by the Department of Human Services. In any case in which the support of any child is involved, the court shall make the following findings either on the record or in the judgment:
(a) The availability to all parties of health insurance coverage for the child(ren);
(b) The cost of health insurance coverage to all parties.
The court shall then make appropriate provisions in the judgment for the provision of health insurance coverage for the child(ren) in the manner that is in the best interests of the child(ren).

(Emphasis added). We agree with Jennifer that the chancellor did not address the issue of health insurance for Ann Linden in the order, even though she was required to do so by section 43-19-101(6). Phillip testified that he had always paid the health insurance premium to cover both his daughter and Jennifer. However, Jennifer testified that she was carrying health insurance on herself and that she also had Ann Linden on a dental-insurance policy. There is nothing in the chancellor’s order that requires this arrangement to continue. Therefore, we remand this issue to the chancery court for further consideration. On remand, the chancellor is free to order the continuation of the existing arrangement between the parties or to fashion whatever relief she finds appropriate, taking into consideration the totality of the circumstances.

2. Child Support

¶ 9. In her next issue, Jennifer contends that the chancellor erred in ordering Phillip to pay only $400 per month in child support, because the chancellor did not comply with Mississippi Code Annotated section 43-19-101(1), which provides that it shall be a rebuttable presumption that fourteen percent of the adjusted gross income of a non-custodial parent shall be awarded as child support for one child. Jennifer also asserts that the chancellor failed to comply with section 43-19-101(2) because she did not specify why she deviated from the child-support guidelines. Section 43-19-101(2) provides:

The guidelines provided for in subsection (1) of this section apply unless the judicial or administrative body awarding or modifying the child[-]support award makes a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined under the criteria specified in Section 43-19-103.

Section 43-19-101(3)(a) provides that when determining adjusted gross income, the chancellor shall consider the following sources:

wages and salary income; income from self[-]employment; income from commissions; income from investments, including dividends, interest income and income on any trust account or property; absent parent’s portion of any joint income of both parents; workers’ compensation, disability, unemployment, annuity and retirement benefits, including an individual retirement account (IRA); any other payments made by any person, private entity, federal or state government or any unit of local government; alimony; any income earned from an interest in or from inherited property; any other form of earned income; and gross income shall exclude any monetary benefits derived from a second household, such as income of the absent parent’s current spouse[.]

¶ 10. Our review of the record leads us to conclude that Phillip’s income is significantly higher than the $54,174 that is reflected on his 8.05 statement. We also conclude that Phillip has substantial income which should be considered for child-support purposes, despite the fact that his 2007 Federal Income Tax Return indicates that his adjusted gross income was a negative $191,051. For example, on Phillip’s individual 2007 Federal Tax Return, line 21, other income, he lists a management fee of $55,000. On Schedule F, Profit or Loss from Farming, Phillip took a depreciation of $18,151. The 2007 Federal Tax Return (Form 1120) for Rockin H shows that the corporation’s total income was $889,455, but that it had a net operating loss deduction of $9,831. More importantly, however, for our purposes, the return shows a depreciation deduction of $127,520 on line 20. We could not find Form 4562, which would explain the depreciation taken, anywhere in the record. It was not attached to the corporate return. Nor is there any explanation in the record as to how the $127,520 depreciation deduction was utilized, even though it was deducted as an expense against the gross income of the corporation.

¶ 11. We acknowledge that Phillip’s personal 2007 Federal Income Tax Return reflects that he did not have any taxable income; however, it is clear that he still earned money. What is unclear is exactly how much he earned. On remand, the chancellor should carefully scrutinize Phillip’s tax returns to determine if there is any income that should be considered in arriving at Phillip’s adjusted gross income, as specified in section 43~19-101(3)(a). As noted, this section provides that the adjusted gross income should be determined by looking, in part, at “all potential sources that may reasonably be expected to be available to the absent parent....” Accordingly, we reverse and remand for the chancellor to make a proper determination of Phillip’s income and to order child support consistent with section 43-19-101(1).

3. Valuation of the Marital Estate

¶ 12. In her final issue, Jennifer argues that there was a substantial decrease in the value of the marital assets that were under Phillip’s sole control between the time that he left the marital home on February 14, 2005, and the time that the matter was heard by the chancellor in June 2008. As a result, Jennifer contends that the chancellor should have either valued the marital estate as of May 25, 2007 (the date that Phillip filed for divorce), or the chancellor should have taken an average of the value of the marital estate for the years 2005, 2006, and 2007. Although Jennifer rests her argument on the fact that Phillip’s net worth has declined drastically from $620,720, where it stood in 2005, to $74,000, where it stood at the time of trial, she fails to set forth facts that show dissipation of assets on Phillip’s part. Furthermore, experts for both parties did not dispute that the reason for Phillip’s decline in net worth is the downturn of the catfish industry.

¶ 13. Moreover, it is clear in this state that “when equitably dividing marital property upon divorce, the date of valuation is necessarily within the discretion of the chancellor.” Hensarling v. Hensarling, 824 So.2d 583, 591 (¶ 25) (Miss.2002) (quoting MacDonald v. MacDonald, 698 So.2d 1079, 1086 (¶ 35) (Miss.1997)). On these facts, we cannot find that the chancellor abused her discretion in valuing the marital estate as of the date of the trial. This issue lacks merit.

¶ 14. THE JUDGMENT OF THE SUNFLOWER COUNTY CHANCERY COURT IS AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT AND ONE-HALF TO THE AP-PELLEE.

KING, C.J., LEE AND MYERS, P.JJ., BARNES, ISHEE, ROBERTS AND MAXWELL, JJ„ CONCUR. GRIFFIS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . As will be discussed later in this opinion, we find that Phillip receives considerably more income that should be taken into consideration in figuring his adjusted gross income for child-support purposes under Mississippi Code Annotated section 43-19-101(3) (Rev. 2009).

      . Mississippi Code Annotated section 43-19-103 (Rev.2009) sets forth circumstances that permit a chancellor to deviate from the child-support guidelines. However, none apply to the facts of this case.

      . Rule 8.05 of the Uniform Chancery Court Rules requires parties in domestic cases involving economic issues or property division to submit a financial disclosure statement. The $54,174 listed on Phillip’s 8.05 statement apparently represents the management fee that he testified that he received from Rockin H. There is no explanation as to why he listed the fee as $54,174 on his 8.05 statement instead of the $55,000 that he testified that he received from Rockin H.

      . Even though Phillip received $55,000 in management fees, he actually lists a loss of $2,508 on line 21. This is because, as explained in an attachment, he had a net operating loss of $57,508 from the previous year.

      . Schedule F reflects gross income from catfish farming of $486,620. The schedule also shows a net farm loss of $184,163.


author: LEE, P.J.,

text:
    GRAY AND ASSOCIATES, INC., a Mississippi Non-Profit Corporation d/b/a The Learning Curve, Appellant v. THE STATE BOARD OF EDUCATION and The Mississippi Department of Education, Appellees.
    No. 2009-CA-00199-COA.
    Court of Appeals of Mississippi.
    May 11, 2010.
    John Doyle Moore, Robert Niles Hooper, attorneys for appellant.
    James T. Metz, Betty Ruth Fox, Jackson, attorneys for appellees.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   LEE, P.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Gray and Associates, Inc. d/b/a/ The Learning Curve (Gray) was an approved supplemental-edueation-services (SE S) provider pursuant to the No Child Left Behind Act of 2001. Gray was on the Mississippi State Board of Education’s approved SES provider list for the school years 2003-04 and 2004-05. After a competition was held in March 2006 for placement on the provider list, Gray was removed from the approved SES provider list. In an affidavit, Juan Gray, Executive Manager of Gray, stated that he was notified in April 2006 that The Learning Curve had been removed from the SES list provided by the State. In August 2006, the State withdrew the changes to the approved SES provider list and left the original approved list in place.

¶ 2. On January 8, 2007, the State published a request for proposals and revised procedures for selection of SES providers, directing all former providers to reapply. Gray submitted its proposal to reapply, which was rejected. Gray applied again and was ultimately placed back on the approved SES provider list.

¶ 3. On June 19, 2007, Gray served its written notice of claim on the Mississippi State Department of Education and the State Board of Education (collectively, the State) pursuant to the Mississippi Tort Claims Act (MTCA). See Miss.Code Ann. §§ 11-46-1 to 11-46-23 (Rev. 2002). Gray contended that removing it from the approved SES provider list from June 2006 through August 2006 caused a loss of business opportunities and profits. On December 11, 2007, Gray filed its complaint in the Hinds County Circuit Court.

¶ 4. The State filed a motion for summary judgment. After a hearing on the matter, the trial court granted the State’s motion, finding that the one-year statute of limitations had run. Gray subsequently filed its notice of appeal, alleging the following: (1) the trial court erred in granting summary judgment as to all claims based on the statute of limitations, and (2) the trial court erred in granting summary judgment as to all claims based on sovereign immunity. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 5. In reviewing a trial court’s grant of summary judgment, this Court employs a de novo standard of review. Anglado v. Leaf River Forest Prods., Inc., 716 So.2d 543, 547 (¶ 13) (Miss.1998). Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). This Court 'will consider all of the evidence before the trial court in the light most favorable to the non-moving party. Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995). The party opposing the motion “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). The entry of summary judgment is mandated if the non-movant “fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled to judgment as a matter of law.” Galloway v. Travelers Ins. Co., 515 So.2d 678, 684 (Miss.1987). This Court also reviews the proper application of the MTCA de novo. Id.

DISCUSSION

I. STATUTE OF LIMITATIONS

¶ 6. In its first issue on appeal, Gray argues that the removal of Gray from the approved SES list was not complete until July 1, 2006; thus, the one-year statute of limitations had not run. Pursuant to section 11-46-11(3), all actions brought pursuant to the MTCA must be filed “within one year (1) next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based.... ” The filing of a notice of claim is required and tolls the statute of limitations. We reiterate that Gray filed its notice of claim on June 19, 2007.

¶ 7. Gray argues that although it was notified in April 2006 of its removal from the approved SES list, it was not actually removed from the list until July 1, 2006. However, in a similar situation, the supreme court found otherwise. In Black v. Ansah, 876 So.2d 395, 396 (¶5) (Miss.Ct. App.2003), Dr. Patricia Black received notice that her employment contract would not be renewed. Dr. Black received the notice prior to the expiration of her contract. Id. Dr. Black argued that she timely filed her claim under the MTCA because her claim did not accrue until the last day of her employment contract. Id. In finding that the statute of limitations began to run when Dr. Black received notice, the supreme court stated that “[w]e find no reason to conclude that a person with known and measurable harm that awaits solely the passage of time to inflict itself, may not sue because of that futurity until the time has passed.” Id. at 399 (¶ 19).

¶ 8. In its brief, Gray concedes that this claim is “arguably” outside the statute of limitations. We agree. Gray admittedly received notice in April 2006 and failed to file its claim within the one-year statute of limitations. The trial court properly granted the State’s motion for summary judgment. This issue is without merit.

¶ 9. We note that Gray also contends the State’s January 2007 re-application process violated all of the same constitutional and legal requirements as the 2006 removal. However, Gray’s written notice of claim and its complaint both fail to raise this specific issue.

II. STATUTORY IMMUNITY

¶ 10. Having found that Gray’s claim was not filed within the one-year statute of limitations, we decline to address its remaining issue.

¶11. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR.


author: MURDOCK, Justice. BOLIN, Justice

text:
    CENTURY 21 PARAMOUNT REAL ESTATE, INC. v. HOMETOWN REALTY, LLC, et al.
    1070904.
    Supreme Court of Alabama.
    Sept. 30, 2009.
    William Dudley Motlow, Jr., and Michael R. Lunsford of Porterfield, Harper, Mills, & Motlow, P.A., Birmingham, for appellant.
    W.F. Horsley of Samford & Denson, LLP, Opelika, for appellees Hometown Realty, LLC; William A. Cleveland; and Cleveland Brothers, Inc.
    James D. McLaughlin of Davis, McLaughlin & Muncie, Auburn, for appel-lee Polo Construction Co., LLC.
    J. Tutt Barrett of Dean & Barrett, Ope-lika, for appellee Stacy Williams Jordan.
    Russell C. Balch and John E. Searcy, Jr., of Akridge & Balch, P.C., Auburn, for appellees Michael Allen Homes, Inc.; Allin & Associates, LLC; and Chris Jordan.
   MURDOCK, Justice.

Century 21 Paramount Real Estate, Inc. (“Paramount”), appeals from a judgment dismissing its claims against Hometown Realty, LLC; Wayne Gentry Builder, Inc.; Michael Allen Homes, Inc.; Polo Construction Co., LLC; Allin & Associates, LLC; Chris Jordan; William A. Cleveland; and Cleveland Brothers, Inc. We reverse and remand the trial court’s judgment.

1. Facts and Procedural History

In 2003, Paramount entered into a business relationship with Cleveland Brothers, a developer in Lee County, whereby Paramount agreed to assist in the marketing of unimproved lots in a subdivision owned by Cleveland Brothers. Specifically, in exchange for Paramount’s agreeing to market the lots to builders for the construction of houses, Cleveland Brothers agreed that builders who purchased the lots would be required to list for sale the houses built on those lots with Paramount. William A. Cleveland, as legal counsel for Cleveland Brothers, drafted a contract to be signed by each of the builders requiring those builders to list the houses they built on the lots for sale with Paramount. The pertinent portion of the contract provides:

“The understanding of the parties hereto is that Purchaser [the builder] intends to construct and sell houses on the subdivision lots to be conveyed pursuant to this contract. Purchaser [the builder] agrees that all of the subdivision lots acquired by Purchaser [the builder] pursuant to this contract and which are offered for sale be listed for sale with Paramount Real Estate, Inc.”

The following builders signed such a contract with Cleveland Brothers: Michael Allen Homes, Wayne Gentry Builder, Polo Construction, Chris Jordan, and Allin & Associates (hereinafter sometimes referred to collectively as “the builders”).

In January 2004, Stacy Williams Jordan (“Jordan”) entered into a “Broker-Sales Associate Contract Independent Contractor Agreement” with Paramount. Pursuant to the agreement between Jordan and Paramount, Jordan agreed to “work diligently and with [her] best efforts to sell all real estate listed with [Paramount].” Paramount contends that the agreement also required Jordan to protect proprietary information concerning Paramount’s clients, property, and contract terms, and not to attempt to divert customers from Paramount.

Jordan’s employment with Paramount was terminated on September 22, 2004. Paramount alleges that, before her employment was terminated, Jordan entered into a business relationship with Cleveland Brothers and that she divulged to Cleveland Brothers proprietary information about Paramount and its clients. According to Paramount, Jordan also began contacting the builders in an effort to have them withdraw their listings from Paramount in contravention of the contracts they had signed with Cleveland Brothers. Paramount also alleges that Cleveland Brothers advised the builders that they were not required to honor the terms of their agreements that required them to list their houses with Paramount because, Cleveland Brothers asserted, the agreements were unenforceable. The builders subsequently listed their properties with Hometown Realty, with whom Jordan allegedly had a business relationship.

On March 30, 2006, Jordan sued Paramount seeking to recover from Paramount $103,737 in real-estate commissions. According to Jordan, on the date Paramount terminated her employment, transactions were pending that she had initiated and that Paramount had subsequently completed, for which Jordan was owed commissions.

On May 18, 2006, Paramount filed its “answer” to Jordan’s complaint. On the same date, it filed a separate document, which it titled “Counterclaim and Third Party Complaint.” In this latter document, Paramount alleged various contract and tort claims against Jordan, William A. Cleveland, Cleveland Brothers, Hometown Realty, and each of the builders relating to the alleged breach or termination by these parties of their contractual and business relationships with Paramount. Among other things, Paramount alleged in its factual recitations that, prior to the termination of her employment as an agent of Paramount, “Jordan conspired with representatives of Hometown Realty, William Cleveland and others to make misrepresentations concerning Paramount,” that these alleged misrepresentations were made “with the intent that third parties would forego doing business with Paramount,” and that, as a result, the builders breached their agreements with Paramount and began listing their houses for sale with Hometown Realty.

Among the numbered “counts” alleged by Paramount is one titled “Intentional Interference with Contract,” in which Paramount alleges that “Paramount had a contractual business relationship with Gently Builder, Allen Homes, Polo Construction, Allin & Associates, and ... Chris Jordan.” Paramount continues by alleging that “Jordan, Cleveland, Hometown Realty and Cleveland Brothers intentionally interfered with the contract or business relationship between Paramount and the [b]uilders.”

In a count titled “Civil Conspiracy,” Paramount alleged that Cleveland, Cleveland Brothers, Hometown Realty, each of the builders, and Jordan “conspired together in a concerted action to suppress, misrepresent, defame, and intentionally interfere with the contractual relationships between Paramount and the other parties,” thereby causing injury to Paramount.

On June 18, 2006, Jordan answered Paramount’s counterclaim. On June 22, 2006, Polo Construction Co. filed an answer and also filed a cross-claim against Jordan, Hometown Realty, and William A. Cleveland. The remainder of the parties that had been sued by Paramount filed motions pursuant to Rule 12(b)(6), Ala. R. Civ. P., to dismiss the claims against them based on an alleged failure by Paramount to state a claim upon which relief could be granted.

On October 23, 2006, Jordan filed a “Motion to Sever Counterclaim and for Separate Trial” in which, among other things, she asserted that a jury would be “confused by a joint trial of the issues raised by the Complaint, Counterclaim and Third-Party Complaint.” In its “Reply to Motion to Sever Counterclaim and for Separate Trial” filed on January 11, 2007, Paramount explained as follows:

“In this lawsuit, Jordan has made a claim against Paramount for commissions she contends were owed to her pursuant to an agency agreement executed between her and Paramount. Paramount interposed a counterclaim against Jordan asserting that she had breached the same agency agreement .... Paramount asserted in the Counterclaim that Jordan, acting in concert with William A. Cleveland, Cleveland Brothers, Inc., and Hometown Realty (collectively ‘the Cleve-lands’) contacted builders who had previously agreed to list properties with Paramount and induced them to breach their agreements with Paramount and list their properties for sale with Hometown Realty. These efforts began while Jordan was still working as an agent for Paramount. Paramount joined as Defendants William A. Cleveland, Cleveland Brothers, Inc., and Hometown Realty, [LLC], alleging that they had conspired with Jordan and had tor-tiously interfered with the business relationship between Paramount and the builders. Paramount also joined as Defendants to the Counterclaim Michael [Allen] Homes, Inc., Wayne Gentry Builder, Inc., Polo Construction [Co.], LLC, and Allin & Associates, Inc. (collectively, ‘the [b]uilders’). Those [b]uilders, at the urging of Jordan and the Clevelands, had repudiated and breached the agreements they entered with Paramount which required then to use Paramount to list properties they offered for sale.”

Paramount then invoked Rules 13(h) and 20, Ala. R. Civ. P.:

“Rule 13(h) of the Alabama Rules of Civil Procedure states as follows:
“ ‘Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rules 19 and 20.’
“Rule 20(a) of the Alabama Rules of Civil Procedure provides that:
“ ‘[A]ll persons may be joined in one action as [defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief and respect of or arising out of the same transaction, occurrence, or series of transactions and occurrences and if any question of law or fact common to all defendants will arise any action.’
“Rule 20 ‘was intended to abolish the technical objections to joinder previously existing, in order to prevent a multiplicity of actions and allow all parties interested in a controversy to proceed in one action.’ Guthrie v. Bio-Medical Laboratories, Inc., 442 So.2d 92, 96 (Ala.1983). In Mock v. First City National Bank, 352 So.2d 1112, 1114 (Ala.1977), the Alabama Supreme Court quoted with approval the following passage from its prior opinion in Hooper v. Huey, 293 Ala. 63, [69,] 300 So.2d 100[, 105] (1974):
“ ‘Rules 19 and 20, [Ala. R. Civ. P.], which deal with the joinder and alignment of parties!,] are intended to promote trial convenience, prevent a multiplicity of suits, and expedite the final determination of litigation by inclusion in one suit all parties directly interested in the controversy despite technical objections previously existing in many situations.’
“Because the counterclaim against Jordan is grounded in her breach of the same agreement upon which her claim against Paramount is based, those two claims are clearly based upon the same transaction or occurrence, making Paramount’s counterclaim compulsory. See, Ala. R. Civ. P. 12. Because the wrongful act of the Clevelands and the [b]uild-ers were committed in concert with Jordan, and in breach of their respective contractual and common law obligations to Paramount, the predicate facts underlying the counterclaim with respect to all such defendants clearly amount to a ‘series of transactions or occurrences,’ making joinder of all of those parties to the counterclaim proper. As the Alabama Supreme Court noted in Ex parte Turpin Vise Ins. Agency, Inc., 705 So.2d 368, 371 (Ala.1997) ‘[t]here is no absolute rule for determining what constitutes “a series of transactions or occurrences.” Generally, that is determined on a case by case basis and is left to the discretion of the trial judge.’ ”

Paramount then engaged in an in-depth discussion of Ex parte Turpin Vise Insurance Agency, Inc., 705 So.2d 368 (Ala.1997).

On September 27, 2007, the trial court conducted a hearing on all pending motions. This Court has not been favored with a copy of a transcript of that hearing as part of the record on appeal; however, it appears that the issue of the dismissal of Paramount’s claims against parties other than Jordan was raised in relation to the fact that the claims asserted by Paramount against those parties, though included in a pleading titled “Counterclaim and Third-Party Complaint” in which those parties were referred to as “third-party defendants,” were not based on any potential liability by Paramount to Jordan as contemplated by Rule 14, Ala. R. Civ. P.

A few days after the hearing, Paramount filed a “Response to Motion to Dismiss by Third-Party Defendants” in which it again addressed the issue of the inclusion of parties other than Jordan in its “Counterclaim and Third-Party Complaint.” Consistent with the position it had taken in its January 11, 2007, filing, Paramount contended:

“At the September 27 hearing, the Clevelands argued that dismissal of the third-party claim against them was proper because they could not be adjudged liable to [Paramount] for all or part of the claim asserted by Plaintiff Stacy Williams Jordan against [Paramount] as is required by Rule 14 of the Alabama Rules of Civil Procedure. However, because the claims asserted against the Clevelands by [Paramount] unquestionably arise out of ‘the same transaction, occurrence, or series of transactions or occurrences and ... [a] question of law or fact common to [the counterclaim asserted against Jordan by Paramount and the claims asserted by Paramount against the Clevelands] will arise in the action,’ [Paramount] clearly acted in accordance with the provisions of Rule 20(a) of the Alabama Rules of Civil Procedure by joining the Clevelands as parties to the counterclaim asserted by [Paramount] against Jordan. That the Clevelands might not technically be ‘third-party Defendants’ as that term is used in Rule 14 of the Alabama Rules of Civil Procedure does not matter. As the Supreme Court has recognized, what is controlling is the substance of a pleading, not the label attached to it by a party. Ex parte Ward, [Ms. 1051818, June 1, 2007] - So.3d - (Ala.2007).
“While [Paramount] believes strongly that this single action should be allowed to proceed against both Jordan and the Clevelands and other parties joined to the counterclaim asserted against Jordan by [Paramount], [Paramount] requests that this Court exercise its authority under Rule 20(b) of the Alabama Rules of Civil Procedure to order a separate trial of the claims asserted by [Paramount] against the Clevelands and the other parties joined to the counterclaim asserted by [Paramount] against Jordan. By taking such a course of action rather than dismissing what is clearly a proper claim, this Court will avoid penalizing [Paramount] by subjecting it to a possible statute of limitations defense which otherwise could not have been asserted against it. Attached to this response is a pro forma order for consideration by the Court.”

(Emphasis added.)

On October 15, 2007, the trial court entered an order dismissing Paramount’s claims against William A. Cleveland, Cleveland Brothers, Hometown Realty, and each of the builders, as well as certain pending cross-claims between some of these parties. Paramount subsequently filed a motion to alter, amend, or vacate the trial court’s order; the trial court failed to rule on this motion. Paramount appealed to this Court.

II. Analysis

This Court has held that it treats pleadings according to their substance, rather than merely their label. See Water Works & Sewer Bd. of Talladega v. Consolidated Publ’g, Inc., 892 So.2d 859, 864 (Ala.2004) (“This Court has long held that it may consider court filings according to their substance, not their label.”); Ex parte McWilliams, 812 So.2d 318, 322 (Ala.2001) (construing a pleading according to its substance rather than its label). Here, the substance of the additional claims filed by Paramount qualifies those claims as claims that properly could be filed under Rules 13(h) and 20(a), Ala. R. Civ. P., in conjunction with Paramount’s counterclaim against Jordan, which is exactly how Paramount filed them.

Rule 13(h) provides that persons other than the original parties to the action may be joined in accordance with Rule 20 as additional defendants in connection with a party’s filing of a counterclaim. Rule 20(a) provides that all persons may be joined in one action as defendants if the claims against them arise out of the same transactions or occurrences. Here, Paramount’s additional claims arise out of the same transactions and occurrences as its counterclaim against Jordan, involving as they do allegations that Jordan and the additional parties conspired with one another to interfere with Paramount’s contractual rights and business relationships.

Our caselaw supports Paramount’s position that the purpose for which it filed the claims against the additional defendants falls squarely within the policy reasons laid out by Rule 20 for allowing such claims to be joined with a counterclaim. In Guthrie v. Bio-Medical Laboratories, Inc., 442 So.2d 92, 96 (Ala.1983), this Court stated that Rule 20 “was intended to abolish the technical objections to joinder previously existing, in order to prevent a multiplicity of actions and allow all parties interested in a controversy to proceed in one action.” Likewise, in Mock v. First City National Bank, 352 So.2d 1112, 1114 (Ala.1977), the Court explained that

“ ‘Mules 19 and 20, [Ala. R. Civ. P.], which deal with the joinder and alignment of parties, are intended to promote trial convenience, prevent a multiplicity of suits, and expedite the final determination of litigation by inclusion in one suit all parties directly interested in the controversy despite technical objects previously existing in many situations.’ ”

352 So.2d at 1114 (quoting with approval Hooper v. Huey, 293 Ala. 63, 69, 300 So.2d 100, 105 (1974), overruled on other grounds, Bardin v. Jones, 371 So.2d 23 (Ala.1979)). Moreover, “in exercising its discretion in deciding whether to sever claims, the trial court should consider the prejudice that may result to the parties if the claims are severed[] Considerations of practicality, judicial economy, and the possibility of inconsistent results are also relevant in that regard.” Ex parte Turpin Vise, 705 So.2d at 371.

The trial court should have permitted Paramount to bring these additional parties into the case under Rules 13(h) and 20(a), Ala. R. Civ. P., and it should have treated Paramount’s pleadings according to their substance rather than the nomenclature originally given them by Paramount. According to the allegations, the actions of William A. Cleveland, Cleveland Brothers, Hometown Realty, and the builders were committed in concert with Jordan’s actions and they clearly relate to “the same ... series of transactions or occurrences,” Rule 20(a), Ala. R. Civ. P., making their joinder proper. The trial court improperly elevated the form — the nomenclature initially placed on its pleading by Paramount — over the substance of the pleading, and in the process not only failed to apply the principle that this Court will consider the substance of a pleading, but also overlooked the above-quoted principle from Ex parte Turpin Vise regarding considerations of prejudice, as well as practicality and judicial economy.

For these reasons, we reverse the trial court’s order dismissing Paramount’s claims against Hometown Realty, Wayne Gentry Builder, Michael Allen Homes, Polo Construction Co., Allin & Associates, Chris Jordan, William A. Cleveland, and Cleveland Brothers, and we remand the action for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and LYONS, WOODALL, and PARKER, JJ., concur.

STUART, SMITH, BOLIN, and SHAW, JJ., dissent.

BOLIN, Justice

(dissenting).

I respectfully dissent from the main opinion. It is clear from the record that the trial court dismissed the third-party complaint filed by Century 21 Paramount Real Estate, Inc. (“Paramount”), as well as the cross-claims stemming from the third-party complaint, because the third-party defendants were improperly joined. Rule 14(a), Ala. R. Civ. P., allows a defending party such as Paramount to bring into the original action a nonparty who is or may be liable to the defending party for all or part of the plaintiffs original claims against the defending party. Specifically, Rule 14(a), Ala. R. Civ. P., provides:

“At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff’s claims against the third-party plaintiff.”

After Stacy Williams Jordan sued Paramount to recover real-estate commissions she alleges were due under her employment agreement with Paramount, Paramount filed a counterclaim against Jordan and a third-party complaint against Cleveland Brothers, William A. Cleveland, Hometown Realty, LLC, and each of the builders. The pertinent part of the complaint states:

“COUNTERCLAIM and THIRD-PARTY COMPLAINT
“Comes now the Counterclaim Plaintiff and Third-Party Plaintiff, Century 21 Paramount Real Estate, Inc. (hereinafter ‘Paramount’) and files this counterclaim against Stacy Williams Jordan and this third-party complaint against Hometown Realty, LLC, Michael Allen Homes, Inc., Wayne Gentry Builder, Inc., Polo Construction Company, LLC, Allin & Associates, Inc., Chris Jordan, William A. Cleveland and Cleveland Brothers, Inc.”

(Capitalization in original.)

It is undisputed that Paramount’s third-party complaint does not assert a right of indemnity for any sums Paramount might be forced to pay Jordan. Even assuming Paramount did assert a right of indemnity, the third-party claims are not derivative claims. The third-party claims asserted by Paramount against the third-party defendants are based upon different theories of law than those asserted by Jordan in the original action against Paramount. Specifically, the third-party claims asserted by Paramount against the third-party defendants are based upon separate written instruments. Jordan sued Paramount, to recover real-estate commissions through the enforcement of her employment agreement. Paramount, on the other hand, sued the third-party defendants, seeking enforcement of the contracts between Cleveland Brothers and the various builders. There is simply no way the third-party defendants here can be held liable secondarily to Paramount in the event Jordan recovers real-estate commissions from Paramount. Because the employment agreement between Paramount and Jordan and the contracts between Cleveland Brothers and the builders are separate and distinct agreements, Paramount cannot bring its action under Rule 14(a), Ala. R. Civ. P. See Allstate Ins. Co. v. Hugh Cole Builder, Inc., 187 F.R.D. 671, 674 (M.D.Ala.1999)(“Beeause [Paramount] attempts to assert separate and independent claims and [does] not assert derivative liability on the part of the Third-Party Defendants, [Paramount] cannot bring [its] claims against [the third-party defendants] in the present action under Rule 14(a)[, Fed.R.Civ.P.].”).

Following the trial court’s hearing on the third-party defendants’ motion to dismiss, Paramount filed a “response to motion to dismiss third-party defendants,” apparently requesting for the first time that the trial court exercise its authority under Rule 20(b), Ala. R. Civ. P., and order a separate trial of the claims it had brought against the third-party defendants. Specifically, Paramount asserted that the language in its initial complaint joining the third-party defendants was merely nomenclature and that the third-party defendants had been properly joined by virtue of the counterclaim Paramount had asserted against Jordan. For a better understanding of Paramount’s argument, I quote the pertinent part of its motion:

“At the September 27 hearing, [the third-party defendants] argued that dismissal of the third-party claim against them was proper because they could not be adjudged liable to [Paramount] for all or part of the claim asserted by [Jordan] against [Paramount] as is required by Rule 14 of the Alabama Rules of Civil Procedure. However, because the claims asserted against [the third-party defendants] unquestionably arise out of ‘the same transaction, occurrence, or series of transactions or occurrences and ... [a] question of law or fact common to [the counterclaim asserted against Jordan by [Paramount] and the claims asserted by [Paramount] against [the third-party defendants] ] will arise in the action,’ [Paramount] clearly acted in accordance with the provisions of Rule 20(a) of the Alabama Rules of Civil Procedure by joining [the third-party defendants] as parties to the counterclaim asserted by [Paramount] against Jordan. That [the third-party defendants] might not technically be ‘third-party defendants’ as that term is used in Rule 14 ... does not matter. As the Supreme Court has recognized, what is controlling is the substance of the pleading, not the label attached to it by a party....
“While [Paramount] believes strongly that this single action should be allowed to proceed against both Jordan [as well as the third-party defendants] and other parties joined to the counterclaim asserted against Jordan by [Paramount], [Paramount] requests that this court exercise its authonty under Rule 20(b) of the Alabama Rules of Civil Procedure to order a separate trial of the claims asserted by [Paramount] against [the third-party defendants] joined to the counterclaim asserted by [Paramount] against Jordan. By taking such a course of action rather than dismissing what is clearly a proper claim, this court will avoid penalizing [Paramount] by subjecting it to a possible statute of limitations defense which otherwise could not have been asserted against it....”

(Emphasis added.)

Paramount asserts this same argument in its brief on appeal. As noted previously, it does not appear that Paramount made this argument during the hearing on the motions to dismiss the third-party complaint. Paramount seemingly believes that because it filed a compulsory counterclaim against Jordan pursuant to Rule 13(h), Ala. R. Civ. P., the third-party defendants were automatically joined as parties to that counterclaim in accordance with Rule 20(a), Ala. R. Civ. P. The only related authority cited by Paramount in its brief on appeal is Ex parte Turpin Vise Insurance Agency, Inc., 705 So.2d 368, 371 (Ala.1997). Paramount cites Ex parte Turpin Vise for the proposition that its claims against the third-party defendants are proper because they arise out of the same series of transactions or occurrences as the original action and that “ ‘there is no absolute rule for determining what constitutes “a series of transactions or occurrences” [under Rule 20]. Generally, that is determined on a case by case basis and is left to the discretion of the trial judge.’ ” 705 So.2d at 371 (quoting Ex parte Rudolph, 515 So.2d 704, 706 (Ala.1987)). However, Paramount, in relying on this case, seemingly ignores the fact that it had already served the third-party defendants with a third-party complaint, requiring the third-party defendants to defend that complaint by establishing that they were not secondarily liable to Paramount in the event Paramount was liable to Jordan. The defense to a third-party complaint is not the same defense a defendant would make if joined as an additional defendant to a counterclaim. Certainly Paramount should have realized this fact when the parties filed their answers, stated their defenses, and moved to dismiss the third-party complaint. Paramount cites no authority to demonstrate that the trial court could recharacterize the third-party claims as compulsory counterclaims or that the third-party defendants could be joined under both Rule 14(a), Ala. R. Civ. P., and Rule 13(h), Ala. R. Civ. P. Joinder under these rules is separate and unique.

As previously quoted, Rule 14, Ala. R. Civ. P., provides, in pertinent part:

“(a) When Defendant May Bring in Third Party. At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiffs claims against the third-party plaintiff.”

(Emphasis added.)

Rule 13(h), Ala. R. Civ. P., provides:

“(h) Joinder of Additional Parties. Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rule 19 and 20.”

Rule 20, Ala. R. Civ. P., provides, in pertinent part:

“(a) Permissive Joinder.... All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action.... ”

In Allstate Insurance Co. v. Hugh Cole Builder, Inc., supra, the United States District Court for the Middle District of Alabama, discussing the distinction between joinder under Rule 14 and Rule 13 of the Federal Rules of Civil Procedure, wrote:

“Addressing Rule 14(a), the Fifth Circuit held that impleader is permitted ‘only in cases where the Third Party’s liability was in some way derivative of the outcome of the main claim.’ United States v. Joe Grasso & Son, Inc., 380 F.2d 749, 751 (1967). Thus, for impleader to be available, the Third Party must be ‘ “liable secondarily to the original defendant in the event that the latter is held hable to the plaintiff.” ’ Id. (citation omitted). ‘[A]n entirely separate and independent claim cannot be maintained against a Third Party under Rule U, even though it does arise out of the same general set of facts as the main claim.’ Id. ...
“‘[T]he test for joinder of a Third Party under the impleader rule is not transactional. Thus, it differs from the standards [under Rule 13(a) ] [for] compulsory counterclaims and cross-claims, which are appropriate only if they arise from the same “transaction or occurrence” as the underlying suit. Impleader, in contrast, is narrower. It must involve an attempt to pass on to the Third Party all or part of the liability asserted against the defendant. Thus, it must be an assertion of the third-party defendant’s derivative liability to the third-party plaintiff. An impleader claim cannot be used to assert any and all rights to recovery arising from the same transaction or occurrence as the underlying action..’ ”

187 F.R.D. at 673 (final emphasis added; footnote omitted).

In this case, Paramount sought recovery in a third-party complaint. Paramount recognized late in the game, however, i.e., apparently after the hearing on the motion to dismiss the third-party complaint, that it had used the wrong procedural vehicle to join the third-party defendants. Paramount’s after-the-fact attempt to recharac-terize the third-party claims as compulsory counterclaims should not be allowed.

Based on the foregoing, I do not believe the trial court exceeded its discretion in dismissing the third-party complaint and all cross-claims stemming from the third-party complaint. Therefore, I dissent.

STUART, SMITH, and SHAW, JJ., concur.

      . To the extent that Paramount has some claims against Jordan that it does not have against the other defendants (e.g., breach of her employment contract), Rule 20(a) makes it clear that persons joined as defendants in conjunction with the filing of a counterclaim by the defendant to the original complaint need not all “be interested in ... defending against all the relief demanded.”

      . Certainly, there would have been no prejudice to the newly named defendants if the trial court had granted Paramount's request that it treat Paramount’s pleading according to its substance, rather than its nomenclature. Paramount, however, would be prejudiced by the denial of that request given the fact that the statute of limitations has since run.