author: CARLSON, Presiding Justice, WALLER, Chief Justice,

text:
    Louise MEADOWS and Lavelle Meadows v. Kendall T. BLAKE, M.D., Mississippi Baptist Health Systems, Inc. d/b/a Mississippi Baptist Medical Center.
    No. 2008-CA-02074-SCT.
    Supreme Court of Mississippi.
    June 10, 2010.

      Robert V. Greenlee, Ridgeland, Shane F. Langston, Jackson, attorneys for appellants.
    Leo Joseph Carmody, Jr., Pamela Sue Ratliff, Stuart Robinson, Jr., Gaye Nell Lott Currie, Eugene Randolph Naylor, Jackson, attorneys for appellees.
    Before CARLSON, P.J., DICKINSON and PIERCE, JJ.
   CARLSON, Presiding Justice,

for the Court:

¶ 1. Louise Meadows and Lavelle Meadows (the Meadowses) filed suit against Kendall T. Blake, M.D. (Blake) and Mississippi Baptist Health Systems, Inc. d/b/a Mississippi Baptist Medical Center (Baptist) in the Circuit Court of the First Judicial District of Hinds County, alleging medical negligence in the care and treatment of Louise Meadows (Louise) and loss of consortium on behalf of Lavelle Meadows (Lavelle). Blake and Baptist filed their Defendants’ Joint Motion to Dismiss for Plaintiffs’ Failure to Comply with the Requirements of Miss.Code Ann. § 11 — 1— 58, which the trial court granted, dismissing the Meadowses’ claims with prejudice. Thus, the Meadowses perfected this appeal. Finding that Blake and Baptist waived their defense asserting the plaintiffs’ failure to comply with Mississippi Code Section 11-1-58, we reverse and remand to the trial court for further proceedings consistent with this opinion.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On August 31, 2004, the Meadowses filed their Complaint against Blake and Baptist, asserting medical negligence in the care and treatment of Louise between January 27, 2004, and March 30, 2004, resulting in amputation of part of Louise’s right leg, as well as a loss of consortium claim by Lavelle. The Meadowses attached their Certificate of Plaintiffs’ Attorney to the complaint (referencing Mississippi Code Section 15-1-36) in which their attorney certified that he had requested the medical records from the defendants but the records had not been produced at the time of filing the complaint. The Meadowses obtained the medical records from Baptist on September 10, 2004, and several months later, on June 13, 2005, the Meadowses filed another Certificate of Plaintiffs’ Attorney (referencing Mississippi Code Section 15-1-36) in which their attorney certified that “after receiving the medical records from the Defendants, I reviewed the facts of this case and consulted with at least one (1) expert ... and that I have concluded on the basis of such review and consultation that there is a reasonable basis for the commencement of this action against the Defendants.” Baptist and Blake filed their Answers on January 14, 2005, and January 20, 2005, respectively, both containing a motion to strike and dismiss the Meadowses’ complaint for failure to comply with Mississippi Code Section 11-1-58.

¶ 3. Thereafter, on February 27, 2005, Louise died. Lavelle thus filed his Motion for Leave of Court to File First Amended Complaint on July 20, 2005, in which he was “seeking [the trial court’s] permission to amend the complaint to add claims of wrongful death and to add as Plaintiffs Kaye Burt and Judy Brown, daughters and additional wrongful death beneficiaries of Louise Meadows.” Blake filed his response, which Baptist joined. Later, on January 15, 2006, Baptist also filed its Suggestion of Death to suggest upon the record the death of Louise.

¶ 4. On March 30, 2007, more than two years after this suit was filed, Blake and Baptist filed their Joint Motion to Dismiss for Plaintiffs’ Failure to Comply with the Requirements of Miss.Code Ann. § 11 — 1— 58, asserting that the suit must be dismissed based on the Meadowses’ failure to file their Certificate of Plaintiffs’ Attorney within ninety days after the medical records were produced. Blake and Baptist also filed their Joint Motion to Dismiss Suit Without Prejudice for Failure to Substitute Parties and Incorporated Memorandum of Authorities on this date. The Meadowses filed responses to both Motions. Subsequently, on February 8, 2008, the Hinds County Circuit Court entered its Order and Judgment of Dismissal With Prejudice granting Defendants’ Joint Motion to Dismiss for Plaintiffs’ Failure to Comply with Miss.Code Ann. § 11-1-58, dismissing the case with prejudice. Based on its dismissal for failure to comply with Section 11-1-58, the trial court dismissed as moot the Defendants’ Joint Motion to Dismiss for Failure to Substitute Parties and Plaintiffs’ Motion to Amend Complaint. From the trial court’s judgment of dismissal, the Meadowses appeal to this Court.

FACTS AND PROCEEDINGS IN THIS COURT

¶ 5. During the first week of November 2009, after the Meadowses perfected this appeal and after the filing of both the appellants’ brief and the appellees’ briefs, Lavelle died. Thus, on November 12, 2009, counsel for the Meadowses filed a Notice of Suggestion of Death; and Motion to Stay Briefing Schedule or, in the Alternative, for Enlargement of Time to File Reply Brief with this Court. The following was stated within the Suggestion of Death and Motion:

The above identified sole heirs of the deceased Appellant intend to open an estate in the name of their deceased father, seek appointment as administra-trix(es), and move this Court for substitution as party Appellant(s) in the above styled cause pursuant to Miss. R.App. P. 43(a). Undersigned counsel, therefore, moves this Court for a suspension of the briefing schedule pursuant to Miss. RApp. P. 43(a) to allow a reasonable time for the sole heirs to be appointed personal representative(s) of Appellant’s estate and until the heirs have an opportunity to move the Court for substitution as the party Appellant(s).

An Order was entered in which this Court stated “that the Notice of Suggestion of Death; and Motion to Stay Briefing Schedule or, in the Alternative, for Enlargement of Time to File Reply Brief filed by counsel for Appellants is granted in that Appellants’ reply brief is due on January 12, 2010.” In their timely-filed reply brief, the Meadowses incorporated the following motion:

Contemporaneous with the filing of this Reply brief, and in light of the recently issued letters of administration, the Meadows move this Court pursuant to Miss. RApp. P. 43(a) to substitute as named plaintiffs and appellants in place of Lavelle Meadows, deceased, and Louise Meadows, deceased, the following: Kaye Burt, individually and as ad-ministratrix, heir and wrongful death beneficiary of the estate of Louise Meadows, deceased, and as administra-trix and heir of the estate of Lavelle Meadows, deceased; and Judy Brown, individually and as heir and wrongful death beneficiary of the estate of Louise Meadows, deceased, and as heir of the estate of Lavelle Meadows, deceased.

¶ 6. On January 28, 2010, Blake filed his Motion to Strike Appellants’ Request for Substitution, or, in the Alternative, for Additional Briefing on Whether Requested Substitution is Permissible Under Mississippi Law, and Baptist filed its Joinder. This Court subsequently entered its Order denying the Motion; however, this Court ordered counsel for the Meadowses to file the appropriate motion for substitution of parties pursuant to Mississippi Rule of Appellate Procedure 48(a) and gave Baptist and Blake the opportunity to file their responses, including any citation of authority in opposition to the motion for substitution of parties. This Court also stated that it would consider this additional issue on appeal as well as the other issues already raised. Pursuant to this Court’s Order, the Meadowses filed their Appellants’ Rule 43(a) Motion to Substitute, and Baptist and Blake filed their responses in opposition to the Motion to Substitute which are now before this Court.

DISCUSSION

¶ 7. The Meadowses present three issues for this Court’s consideration: (1) whether Blake and Baptist waived their objection to the Meadowses’ lack of strict compliance with Mississippi Code Section 11 — 1— 58(4) by actively litigating the case for nearly three years and by waiting until after the Meadowses had designated their experts before pursuing their defense; (2) alternatively, whether the trial court’s dismissal was erroneous in light of this Court’s abandonment of the rule of strict compliance with Mississippi Code Section 11-1-58 as stated in Wimley v. Reid, 991 So.2d 135 (Miss.2008), and its progeny, and whether this case should be remanded for an evidentiary hearing to determine if the Meadowses complied with Mississippi Code Section 11-1-58(4); and (3) in the further alternative, whether the trial court erred when it dismissed the Meadowses’ case with prejudice when, as stated in Wimley v. Reid, if the plaintiffs fail to comply with the requirements of Mississippi Code Section 11-1-58, then the complaint should be dismissed without prejudice. Further, as previously stated, the issue of substitution of parties is now also before this Court.

¶ 8. “Although this Court employs an abuse-of-discretion standard to an appeal of an order granting or denying a motion to amend, Moeller v. American Guarantee & Liability Insurance Co., 812 So.2d 953, 961 (Miss.2002), we review de novo a trial court’s dismissal of a suit based on a question of law.” Wimley v. Reid, 991 So.2d 135, 136 (Miss.2008) (citing Ralph Walker, Inc. v. Gallagher, 926 So.2d 890, 893 (Miss.2006)). See also Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (Miss.2006) (“When considering a motion to dismiss, this Court’s standard of review is de novo.”). Further, “[w]hen considering a motion to dismiss, the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond a reasonable doubt that the plaintiff will be unable to prove any set of facts in support of his claim.” Penn Nat’l Gaming, Inc. v. Ratliff, 954 So.2d 427, 430-31 (Miss.2007) (citation omitted).

¶ 9. The issues are restated for the sake of today’s discussion.

I. SUBSTITUTION OF PARTIES.

¶ 10. The Meadowses filed in this Court their motion to substitute pursuant to Mississippi Rule of Appellate Procedure 43(a), seeking “to substitute as named plaintiffs and appellants in place of appellant Lavelle Meadows, deceased, and Louise Meadows, deceased, the following: Kaye Burt, individually and as administra-trix, heir and wrongful death beneficiary of the estate of Louise Meadows, deceased, and as administratrix and heir of the estate of Lavelle Meadows, deceased; and Judy Brown, individually and as heir and wrongful death beneficiary of the estate of Louise Meadows, deceased, and as heir of the estate of Lavelle Meadows, deceased.” See Miss. R.App. P. 43(a). Blake and Baptist oppose the motion, arguing that, because the Meadowses failed to effect requisite substitution in the trial court, the motion should be denied. More specifically, they assert that the Meadows-es never moved the trial court for substitution of Louise pursuant to Mississippi Rule of Civil Procedure 25, and because Louise’s death preceded judgment, Mississippi Rule of Appellate Procedure 43(a) has no application to Louise. See Miss. R. Civ. P. 25. Further, Blake and Baptist argue that, since the Meadowses failed to substitute Lavelle as a party-plaintiff in the underlying action, Rule 43(a) also has no application to Lavelle.

¶ 11. Mississippi Rule of Civil Procedure 25(a)(1) states:

If a party dies and the claim is not thereby extinguished, the court shall, upon motion, order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of summons. The action shall be dismissed without prejudice as to the deceased party if the motion for substitution is not made within ninety days after the death is suggested upon the record by service of a statement of the fact of the death as herein provided for the service of the motion.

Miss. R. Civ. P. 25(a)(1). In July 2005, the Meadowses filed their Plaintiffs Motion for Leave of Court to File First Amended Complaint in the trial court. This motion suggested the death of Louise upon the record stating, “[p]laintiff Louise Meadows died on February 27, 2005.” Blake and Baptist argue that, pursuant to Rule 25, the Meadowses thus had ninety days from the date this motion was filed to file their motion for substitution with the trial Court; however, this provision is inapplicable, since the Plaintiffs Motion for Leave of Court to File First Amended Complaint also incorporated the Meadowses motion for substitution. In the motion, the Mead-owses stated: “Plaintiff Lavelle Meadows is seeking this Court’s permission to amend the complaint to add claims of wrongful death and to add as Plaintiffs Kaye Burt and Judy Brown, daughters and additional wrongful death beneficiaries of Louise Meadows. A copy of Plaintiff Lavelle Meadows’ proposed First Amended Complaint is attached hereto as Exhibit ‘A.’” Further, in the attached proposed First Amended Complaint, the Meadowses stated: “Lavelle Meadows, Kaye Burt and Judy Brown, individually and on behalf of all wrongful death beneficiaries of Louise Meadows (“Plaintiffs”), file this first amended complaint.... ” Although the motion referenced Rule 15(a) of the Mississippi Rules of Civil Procedure and not Rule 25, in substance it was undoubtedly both a motion to substitute parties to continue Louise’s claims and a motion to amend the complaint to add a wrongful-death claim. This Court maintains that “ ‘[a] court must look to the content of the pleading to determine the nature of the action. Substance is considered over form.... The label is not controlling.’ ” Am. Bankers Ins. Co. of Fla. v. Booth, 830 So.2d 1205, 1214 (Miss.2002) (quoting Arnona v. Smith, 749 So.2d 63, 66 (Miss.1999)).

¶ 12. The trial court, however, never ruled on the substitution-of-parties issue, but instead declared this issue moot by way of its Order and Judgment of Dismissal With Prejudice granting Defendants’ Joint Motion to Dismiss for Plaintiffs’ Failure to Comply with Miss.Code Ann. § 11-1-58. “[Ojnce a case becomes subject to our appellate jurisdiction, we have authority to address all matters as may appear in the interests of justice and economy.” Pub. Employees Ret. Sys. of Miss. v. Hawkins, 781 So.2d 899, 901 (Miss.2001). From the trial court’s judgment of dismissal, the Meadowses appealed to this Court and now seek substitution of parties pursuant to Mississippi Rule of Appellate Procedure 43. Blake and Baptist assert that Rule 43 “has and can have no application as to Louise Meadows.” Rule 43(a) states:

If a party dies after a notice of appeal is filed or while a proceeding is otherwise pending, the personal representative of the deceased party may be substituted as a party on motion filed by the representative or by any party with the clerk of the Supreme Court. The motion of a party shall be served upon the representative in accordance with the provisions of Rule 25. If the deceased party has no representative, any party may suggest the death on the record and proceedings shall then be had as the appropriate appellate court may direct. If a party against whom an appeal may be taken dies after entry of a judgment or order in the lower court but before a notice of appeal is filed, an appellant may proceed as if death had not occurred. After the notice of appeal is filed, substitution shall be effected in the appellate court in accordance with this Rule 43(a). If a party entitled to appeal shall die before filing a notice of appeal, the notice of appeal may be filed by that party’s personal representative, or, if there is no personal representative, by that party’s attorney of record within the time prescribed by these rules. After the notice of appeal is filed, substitution shall be effected in the appellate court in accordance with this Rule 43(a).

Miss. R.App. P. 43(a). In today’s case, we note that Mississippi Code Section 11-51-3 states that “[a]n appeal may be taken to the Supreme Court from any final judgment of a circuit or chancery court in a civil case, not being a judgment by default, by any of the parties or legal representatives of such parties. ...” Miss.Code Ann. § 11-51-3 (Rev.2002) (emphasis added). See also DeSoto Times Today v. Memphis Publ’g Co., 991 So.2d 609, 612 (Miss.2008). As such, Lavelle, as both a party to this action and certainly a legal representative of Louise, being her husband, was entitled to appeal to this Court from the final judgment of the Hinds County Circuit Court subsequent to Louise’s death. Thus, according to Rule 43(a), once a notice of appeal has been filed, “substitution shall be effected in the appellate court in accordance with this Rule 43(a),” and this rule is applicable to Louise.

¶ 13. Rule 43 is likewise applicable to Lavelle, who died while this matter was pending before this Court, and subsequent to his death, counsel for the Meadowses properly suggested his death on the record. Accordingly, the Meadowses’ Rule 43(a) Motion to Substitute “as named plaintiffs and appellants in place of Lavelle Meadows, deceased, and Louise Meadows, deceased, the following: Kaye Burt, individually and as administratrix, heir and wrongful death beneficiary of the estate of Louise Meadows, deceased, and as admin-istratrix and heir of the estate of Lavelle Meadows, deceased; and Judy Brown, individually and as heir and wrongful-death beneficiary of the estate of Louise Meadows, deceased, and as heir of the estate of Lavelle Meadows, deceased” is properly before this Court. For the reasons stated, we find that Kaye Burt, individually and as administratrix, heir and wrongful-death beneficiary of the estate of Louise Meadows, deceased, and as administratrix and heir of the estate of Lavelle Meadows, deceased, and Judy Brown, individually and as heir and wrongful-death beneficiary of the estate of Louise Meadows, deceased, and as heir of the estate of Lavelle Meadows, deceased, should be substituted for Louise and Lavelle Meadows as plaintiffs and appellants in this action.

II. WHETHER BLAKE AND BAPTIST WAIVED THE DEFENSE OF THE MEADOWSES’ LACK OF STRICT COMPLIANCE WITH MISSISSIPPI CODE SECTION 11-1-58(4).

¶ 14. The Meadowses assert that Blake and Baptist “waived their objection to [the Meadowses’] lack of strict compliance with Miss.Code Ann. § 11-1-58(4) due to their unreasonable delay in pursuing the defense for nearly three years and until after [the Meadowses] designated their experts and otherwise after actively litigating the merits of the case.” This Court has held that “[a] defendant’s failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver.” MS Credit Center, Inc. v. Horton, 926 So.2d 167, 180 (Miss.2006). In Horton, the defendants delayed pursuing their right to compel arbitration for eight months while participating in the litigation process. Id. at 180-81. This Court held “that — absent extreme and unusual circumstances — an eight month unjustified delay in the assertion and pursuit of any affirmative defense or other right which, if timely pursued, could serve to terminate the litigation, coupled with active participation in the litigation process, constitutes waiver as a matter of law.” Id. at 181.

¶ 15. In today’s case, Baptist and Blake both asserted the defense of the Meadowses’ failure to comply with Section 11-1-58 in their answers, which were filed on January 14 and 20, 2005, respectively. However, Baptist and Blake failed to further assert or pursue this defense until they filed their Joint Motion to Dismiss for Plaintiffs’ Failure to Comply with the Requirements of Miss.Code Ann. § 11-1-58 on March 30, 2007. The Meadowses filed their second Certificate of Plaintiffs’ Attorney pursuant to Section 11-1-58 on June 13, 2005, which still did not trigger Baptist’s and Blake’s pursuit of their defense. During this two-year delay, Baptist and Blake also participated actively in the litigation process. They filed a motion for partial summary judgment, participated in discovery, filed a motion to compel, entered into three scheduling orders, and designated experts. In East Mississippi State Hospital v. Adams, the defendants raised the defenses of insufficiency of process and insufficiency of service of process in their answer but failed to pursue them until almost two years later, while actively participating in the litigation. E. Miss. State Hosp. v. Adams, 947 So.2d 887, 890-91 (Miss.2007). This Court concluded, citing Horton, that the defendants had waived the defenses. Id. at 891. See Estate of Grimes v. Warrington, 982 So.2d 365, 370 (Miss.2008) (failure actively and specifically to pursue affirmative defense while participating in litigation served as waiver of defense). The same must hold true today. In that Baptist and Blake actively participated in the litigation of the merits of this case for two years without pursuing their defense of the Meadowses’ lack of strict compliance with Section 11-1-58, and in that there are no extreme and unusual circumstances, Baptist and Blake waived the defense. We therefore reverse the trial court’s grant of Defendants’ Joint Motion to Dismiss for Plaintiffs’ Failure to Comply with Miss.Code Ann. § 11-1-58 and dismissal with prejudice, and we remand this case for further proceedings. Also, finding this issue dispositive, we elect not to address the remaining issues on appeal.

CONCLUSION

¶ 16. For the reasons stated, we find that the Meadowses’ Rule 43(a) Motion to Substitute has merit, and the substitution of parties is granted. In that Blake and Baptist waived their defense of the Mead-owses’ failure to comply with Section 11 — 1— 58, the trial court erred in granting Defendants’ Joint Motion to Dismiss for Plaintiffs’ Failure to Comply with Miss.Code Ann. § 11-1-58. Thus, we reverse the Hinds County Circuit Court’s Judgment of Dismissal and remand this case for further proceedings consistent with this opinion.

¶ 17. REVERSED AND REMANDED.

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

WALLER, Chief Justice,

Specially Concurring:

¶ 18. I am compelled to write separately to explain our conclusion regarding the defendants’ waiver of Section 11-1-58. It is undisputed that the Meadowses filed their complaint on August 31, 2004, and that they had requested medical records from the defendants prior to filing but had not received them. In this situation, Section 11-1-58(4) required the Meadowses to file their certificate of expert consultation within ninety (90) days of receiving the records. Miss.Code Ann. § 11-1-58(4) (Rev.2002).

¶ 19. The Meadowses received the medical records on September 10, 2004, so they had ninety days, or until December 9, 2004, to file their certificate. That date came and went without a certificate being filed. Thus, the defendants filed their answers on January 14 and 20, 2005, in which they raised the affirmative defense of Section 11-1-58 and included motions to dismiss based on the Meadowses’ failure to comply with Section 11-1-58. Thereafter, the defendants participated extensively in the litigation process for more than two years, until they filed another motion to dismiss based on Section 11-1-58 on March 30, 2007.

¶20. In Horton, this Court held that “[a] defendant’s failure to timely and reasonably raise and pursue the enforcement of any affirmative defense ... which would serve to terminote ... litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver.” MS Credit Center, Inc. v. Horton, 926 So.2d 167, 180 (Miss.2006) (emphasis added). The emphasized portions of this rule are very important. Put simply, the defendant generally must timely raise all affirmative defenses, but if the defense is one which would terminate the litigation, the defendant must also timely pursue the enforcement of the defense.

¶ 21. The pursuit of enforcement is the most important action necessary to preserve such a defense. We noted in Horton that “a party need only assert it in a pleading, bring it to the court’s attention by motion, and request a hearing. Once a hearing is requested, any delay by the trial court in holding the hearing would not constitute a waiver.” Horton, 926 So.2d at 181, n. 9. These are the steps which a defendant must take to timely and reasonably raise and pursue the enforcement of a defense which would serve to terminate the litigation. But these requirements presuppose that the defendant knows or should know that the defense would (not could) terminate the case.

¶ 22. Here, the defendants timely raised Section 11-1-58 by including it in their answers, and they brought it to the court’s attention by including with their answers, motions to dismiss based on Section 11-1-58. But at the time the defendants filed their answers, there was no doubt that the plaintiffs had failed to comply with Section 11-1-58(4). The defendants knew the date on which the Mead-owses had received the medical records, that ninety days had passed since their receipt of the records, and that no certificate had been filed in that time. Thus, the defendants knew as early as December 10, 2004, that the application of Section 11 — 1— 58 would serve to terminate the Meadows-es’ case. And there was absolutely nothing preventing the defendants from pursuing the enforcement of Section 11-1-58 and achieving that termination by requesting a hearing on their motion to dismiss. Therefore, because they continued to participate actively in the litigation for more than two years, while sitting on their Section 11-1-58 defense, the defendants waived it.

CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR AND PIERCE, JJ., JOIN THIS OPINION.

      .The record reveals that the Meadowses’ attorney actually submitted the certificate pursuant to Mississippi Code Section 11-1-58, which states, in pertinent part:
      (1) In any action against a licensed physician, health care provider or health care practitioner for injuries or wrongful death arising out of the course of medical, surgical or other professional services where expert testimony is otherwise required by law, the complaint shall be accompanied by a certificate executed by the attorney for the plaintiff declaring that:
      (a) The attorney has reviewed the facts of the case and has consulted with at least one (1) expert qualified pursuant to the Mississippi Rules of Civil Procedure and the Mississippi Rules of Evidence who is qualified to give expert testimony as to standard of care or negligence and who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action, and that the attorney has concluded on the basis of such review and consultation that there is a reasonable basis for the commencement of such action;
      (4) If a request by the plaintiff for the records of the plaintiff's medical treatment by the defendants has been made and the records have not been produced, the plaintiff shall not be required to file the certificate required by this section until ninety (90) days after the records have been produced.
      Miss.Code Ann. § 11-1-58 (Supp.2009).

      . Again, the record reveals that the Meadows-es’ attorney actually submitted the certificate pursuant to Mississippi Code Section 11 — 1— 58.

      . The proposed First Amended Complaint was attached to the Motion as an exhibit.

      . "Meadowses” will continue to be used in referring collectively to the plaintifffs) in this action.

      . The identified sole heirs are Kaye Burt and Judy Brown, the daughters of Lavelle and Louise Meadows.

      . The Letters of Administration authorizing Kaye Burt to serve as Administratrix in the estate of Louise Meadows and in the estate of Lavelle Meadows were attached to the reply brief as exhibits.

      . The Meadowses also filed their Appellants’ Motion to Strike Appellees’ Untimely Responses in Opposition to Appellant’s Rule 43(a) Motion to Substitute, and Baptist and Blake both responded thereto; however, the Meadowses’ Motion to Strike is denied in that both Baptist and Blake timely filed their responses based on this Court's Order entered February 17, 2010. A panel of this Court conducted oral arguments on March 30, 2010.

      . The Meadowses failed to raise the issue of whether Section 11 — 1—58(4)'s requirement that an expert be consulted and a certificate filed ninety (90) days after records are produced encroaches upon this Court's rule-making responsibility, since the requirements in this case were post-suit. Wimley v. Reid, 991 So.2d 135, 138-39 (Miss.2008) ("[W]e are unable to ignore the constitutional imperative that the Legislature refrain from promulgating procedural statutes which require dismissal of a complaint, and particularly a complaint filed in full compliance with the Mississippi Rules of Civil Procedure.”). As such, we leave this discussion for another day.

      . After the Meadowses filed their Plaintiff’s Motion for Leave of Court to File First Amended Complaint, Baptist filed its formal Suggestion of Death. Baptist argues that this should trigger the ninety-day period under Rule 25; however, this argument is without merit, since the Meadowses previously had filed their suggestion of death and motion to substitute through their Motion for Leave of Court to File First Amended Complaint and attached proposed amended complaint.

      . Simultaneously with the issuance of today's opinion, this Court has entered an order granting Appellants’ Rule 43(a) Motion to Substitute.

      . Baptist and Blake did not file their motion to dismiss until after the Meadowses had filed their expert designation, even though the primary purpose of Section 11-1-58 is to "prevent the filing of frivolous suits that are not well founded in the law.” Johnson v. Rao, 952 So.2d 151, 164 (Miss.2007) (Graves, J., dissenting).

      . The Meadowses did not file their certificate of expert consultation until June 13, 2005.


source: Caselaw Access Project

author: CARLSON, Presiding Justice, DICKINSON, Justice,

license: Public Domain

text:
    Joe MILLER and Alice Miller v. PARKER McCURLEY PROPERTIES, L.L.C. and Parker McCurley, Individually.
    No. 2009-CA-00435-SCT.
    Supreme Court of Mississippi.
    June 10, 2010.

      Lawrence E. Abernathy, III, Leslie D. Roussell, Laurel, attorneys for appellants.

      Wayman Dal Williamson, attorney for appellees.
   CARLSON, Presiding Justice,

for the Court:

¶ 1. Joe Miller and Alice Miller (the Millers) filed suit against Parker McCurley Properties, L.L.C., and Parker McCurley (McCurley), individually, in the Chancery Court for the Second Judicial District of Jones County, alleging, inter alia, breach of contract and statutory violations by McCurley. This action involves the contract for purchase of a home by the Millers from McCurley, where the home subsequently was rendered uninhabitable by Hurricane Katrina. The chancellor found all the elements of breach of contract and ordered “that all sums paid by the Millers to McCurley be refunded to them less the reasonable fair rental value of the property while they occupied it.” As a result of this ruling, McCurley was able to retain the insurance proceeds as well as the subject property. Aggrieved by the entry of the chancery court’s judgment, the Millers appeal to this Court, and McCurley cross-appeals. In the end, we affirm on both the appeal and the cross-appeal.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On November 1, 2002, McCurley, as seller, and the Millers, as buyers, entered into an agreement pertaining to the sale and purchase of property located at 1119 North 8th Avenue in Laurel. The Agreement provided for a purchase price of $39,000, with a down payment of $3,000. The balance of $36,000 plus nineteen percent interest was to be paid in 300 monthly payments of $575 over a twenty-five-year period. The payments were to be due on the first day of each month, and the Agreement called for a $50 late fee if monthly payments were not received by 5:00 p.m. on the sixth day of each month.

¶ 3. The Millers also were required to pay all property taxes and to purchase and maintain property insurance, at their expense, naming McCurley and Union Planters Bank, along with themselves, as loss payees on the insurance policy. McCurley had executed a deed of trust on the property to Union Planters Bank for an amount not to exceed $55,287.50. However, the Millers were unable to secure insurance, since according to the agreement, the property would not be conveyed, and a warranty deed delivered to the Millers, until all payments had been made to McCurley. As a result, the parties agreed that McCurley would secure the insurance for the Millers, and the Millers would pay McCurley the premiums. McCurley secured insurance on the property in the amount of $35,000, but the Millers were not named as loss payees on the insurance policy.

¶ 4. On August 29, 2005, the widespread destruction wrought by Hurricane Katrina rendered the property uninhabitable. The Millers lived other places temporarily before asking McCurley if he had another house available. McCurley provided the Millers with another property on Meadow Lane in Laurel. The Millers made their customary monthly payment of $575 to McCurley in September 2005, and they subsequently made a partial payment for their occupancy of the Meadow Lane property for a portion of October 2005. In October 2005, the Millers moved out of the Meadow Lane property, because, according to the Millers, McCurley had told them their payments would increase on this property after September 2005.

¶ 5. At the time of the loss on August 29, 2005, the insurance on the subject property was with Shelter General Insurance Company (Shelter). Shelter estimated that replacement costs, less nonreeovera-ble depreciation, amounted to $42,720.21; thus, after applying the $1,000 deductible, Shelter paid the policy limit of $85,000 to McCurley. McCurley did not use any of the insurance proceeds to repair the property.

¶ 6. On June 15, 2006, the Millers filed their Complaint against McCurley in the Chancery Court for the Second Judicial District of Jones County, seeking an accounting of all monetary transactions involving the property, including insurance proceeds; an adjudication of the rights of each of the parties to the property; equitable distribution of the insurance proceeds; attorneys’ fees; and any other proper equitable remedies. Before the chancery court, the parties stipulated to the amounts the Millers owed McCurley for insurance from November 1, 2002, through August 2005, and they stipulated to the amounts owed for taxes in the years 2002 through 2004. The parties did not stipulate to the amount owed for taxes for 2005; however, the chancellor determined the Millers’ pro rata share of the taxes through August 2005. The parties also stipulated, and the chancellor found, that the Millers had paid McCurley a total of $25,415.77 in payments through August 2005, which included four late fees. The loan amortization schedule showed that a principal balance of $35,760.67 was owed as of September 1, 2005. The matter was tried on March 18, 2008, Chancellor Franklin C. McKenzie, Jr., presiding. On November 18, 2008, Judge McKenzie entered his Judgment, including findings of fact and conclusions of law, ordering that all sums paid by the Millers to McCurley be refunded, less the fair rental value of the property while the Millers had occupied it, and granting the Millers post-judgment interest at nineteen percent per an-num.

¶ 7. The Millers filed their Motion to Reconsider on December 1, 2008, and McCurley filed his response on December 16, 2008. A hearing on the Motion to Reconsider as well as a motion to supplement the record on the issue of fair market rental value was held before Judge McKenzie on March 3, 2009. On March 11, 2009, Judge McKenzie entered his Order Denying Motion to Reconsider and Judgment. The judge determined that the fair rental value of the property during the Millers’ period of occupancy was $375 per month, and the chancellor thus awarded the Millers judgment against McCurley in the amount of $12,665.77, with post-judgment interest at the rate of nineteen percent per annum. From this judgment, the Millers timely filed their Notice of Appeal, and McCurley filed his Notice of Cross-Appeal.

DISCUSSION

¶ 8. The Millers present five issues for this Court’s consideration: (1) whether the chancellor erred in failing to award the insurance proceeds to the Millers based on the fact that the Millers had paid all of the insurance premiums and therefore, should be entitled to the benefits of the insurance proceeds; (2) whether the chancellor erred in failing to award penalties provided by Mississippi Code Section 75-17-25 for the collection of late fees which violated the provisions of Mississippi Code Section 75-17-27; (8) whether the chancellor erred in failing to rule that McCurley had violated Mississippi Code Section 75-17-1(4); (4) whether the chancellor erred in granting relief which was not requested by McCur-ley; and (5) whether the chancellor erred in failing to award the Millers the insurance benefits, finance charges, and attorney’s fees. McCurley cross-appealed, asking this Court to rule that the proceeds from the policy are held by the seller in trust for the benefit of the buyer, and in the first instance, are to be applied to the remaining balance owed to the seller under the contract and any excess tendered to the buyer. Thus, if the insurance proceeds paid off the balance of the loan, then the buyer is entitled to conveyance of the real property via a warranty deed under the contract. McCurley relies on caselaw from other jurisdictions for this argument.

¶ 9. This Court employs a limited standard of review in reviewing the decisions of a chancery court judge. Parker v. Livingston, 817 So.2d 554, 557-58 (Miss.2002) (citing Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997)). A chancellor’s findings will not be disturbed on appellate review “unless the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard.” Powell v. Campbell, 912 So.2d 978, 981 (Miss.2005) (citing McNeil v. Hester, 753 So.2d 1057, 1068 (Miss.2000); Bank of Miss. v. Hollingsworth, 609 So.2d 422, 424 (Miss.1992)). This Court reviews a chancellor’s decision under an abuse-of-discretion standard. Id. (citations omitted). Questions of law, however, are reviewed de novo. Parker, 817 So.2d at 558 (citing Consol. Pipe & Supply Co. v. Colter, 735 So.2d 958, 961 (Miss.1999)).

¶ 10. The issues will be restated for the sake of today’s discussion.

I. WHETHER THE CHANCELLOR ERRED IN FAILING TO AWARD THE INSURANCE PROCEEDS TO THE MILLERS.

¶ 11. The Millers argue that, because they paid the insurance premiums prior to the destruction of the property, they should receive the insurance proceeds. In determining relief for the Millers, the judge considered “the equities between the parties and the situation in which they find themselves following the destruction caused by Hurricane Katrina.” After a thorough review of caselaw from other jurisdictions concerning the rights of parties in a land-sale contract to insurance proceeds, the judge found the caselaw unpersuasive, especially in light of the fact that Mississippi had ample caselaw on which he could base his decision. As such, the judge ultimately analyzed this case from a breach-of-eontract standpoint.

¶ 12. First, the chancellor recognized the forfeiture clause in the agreement between the parties, which stated, in pertinent part:

In case of failure of the [Millers] to make any of the payments ... or failure to perform any of the covenants for a period of thirty (30) days after the due date thereof, the agreement shall be forfeited and terminated ... and the [Millers] shall forfeit all payments made on this contract, and such payments shall be retained by [McCurley] as due or accumulated rent on the property.

Properly construing Mississippi law, the judge reiterated that “[c]ourts of equity are not friendly to forfeitures,” and “[equity abhors a forfeiture.” Maxey v. Glindmeyer, 379 So.2d 297, 300-01 (Miss.1980) (citations omitted). Next, the judge applied this Court’s decision in Piaggio v. Somerville, 119 Miss. 6, 80 So. 342, 344 (1919) (“the rule is that when a party by his own contract creates a duty or charge upon himself he is bound to discharge it, although so to do should subsequently become unexpectedly burdensome or even impossible; the answer to the objection of hardship in all such cases being that it might have been guarded against by a proper stipulation”). Based on Piaggio, the judge found that McCurley should have planned for contingencies in his contract with the Millers and that he had several options at the time of loss, although it was impossible for him to provide the house to the Millers after its destruction. However, McCurley offered the Millers no relief other than to place them in another house for which they could not afford the payments. There are three circumstances where performance is excused: (1) a subsequent change in the law, rendering performance unlawful; (2) the destruction, from no fault of either party, of an object which has to exist for there to be performance; and (3) the illness or death of the promisor who contracted to render personal services. Id. Only the second circumstance applies in today’s case, and it is applicable in excusing the Millers’ performance under the contract, not McCurley’s performance.

¶ 13. Our longstanding rule on this issue previously has been discussed by this Court:

We find the common law rule, on this subject, stated in the following manner: “‘[wjhere the law casts a duty on a party, the performance shall be excused, if it be rendered impossible by the. act of God. But where a party, by his own contract, engages to do an act, it is deemed to be his own fault and folly, that he did not thereby expressly provide against contingencies, and exempt himself from liability in certain events; and in such case, therefore, that is, in the instance of an absolute and general contract, the performance is not excused by an inevitable accident or other contingency, although not foreseen by, or within the control of the party.’ ”

Hendrick v. Green, 618 So.2d 76, 78 (Miss.1993) (quoting Harmon v. Fleming, 25 Miss. 135, 142 (1852)). McCurley clearly had a duty to provide the property to the Millers, and Hurricane Katrina undoubtedly rendered it impossible for McCurley to continue providing the property to the Millers. However, as reasoned by the judge, McCurley, in agreeing to obtain insurance for the Millers at their expense, where he knew the Millers would be unable to obtain insurance on their own, had a duty to provide adequate insurance on the property. McCurley failed to do so, and his failure to plan for such an event does not render him exempt from liability. McCur-ley failed to provide adequate insurance to repair the house, failed to refund the Millers’ payments to them, and failed to give all or part of the insurance proceeds to the Millers at the time they were received. The judge thus did not abuse his discretion in finding that McCurley was liable to the Millers for their loss. See Callicott v. Gresham, 249 Miss. 103, 111, 161 So.2d 183, 186 (1964) (citing 12 Am.Jur., Contracts, § 386 (1938 & Supp. 1964)) (“If one party to a contract prevents another party from carrying out his part of the agreement, he becomes liable in damages for the breach of the contract.”).

If 14. Finding that the parties had a binding agreement that was breached when McCurley underinsured the property and refused to share all, or a portion, of the insurance proceeds with the Millers, and that the Millers were damaged by no longer having a habitable home, by not having any of the insurance proceeds, and by not being refunded any portion of their payments, the judge found all elements of a breach of contract present in today’s case. See Warwick v. Matheney, 603 So.2d 330, 336 (Miss.1992) (listing elements for breach-of-contract claim). Thus, based on the foregoing, and in light of the evidence before the judge that the Millers never had inquired about the remaining amounts owed on the property, or a payoff coupled with the property’s continued deterioration since Hurricane Katrina, the judge did not abuse his discretion in ruling:

In order to do equity and avoid a forfeiture, the Court orders that all sums paid by the Millers to McCurley be refunded to them less the reasonable fair rental value of the property while they occupied it. Because there was no testimony or evidence presented on the fair rental value of the property the Court will leave the record open for counsel to submit information to the Court on this issue.
Post-judgment interest is granted to the Millers at nineteen percent (19%) per annum since the Court has already ruled that is a reasonable interest rate. McCurley’s purchase price was $5,500.00 and he will have the benefit of the insurance proceeds. He is not entitled to taxes paid by the Millers during the time because Mr. McCurley still owns the property and can start over with it if he wishes to do so. He continues to own it. McCurley alone benefitted from the insurance premiums therefore this Court will not require the Millers to be responsible for the premiums. All other relief sought is denied.

¶ 15. Further, the Millers assert, as a matter of law, that Mississippi Code Section 83-17-1 makes McCurley the Millers’ agent for the procurement of insurance, and in the alternative, makes McCurley the insurer. Section 83-17-l(a) states that “ ‘[a]gent’ means an insurance producer as defined in this section,” and subsection (f) defines an insurance producer as “a person required to be licensed under the laws of this state to sell, solicit or negotiate insurance.” Miss.Code Ann. § 83-17-l(a), (f) (Supp.2009). This statute is inapplicable to today’s case, and the cases cited by the Millers have no application to the facts before this Court. As such, this issue is without merit.

II. WHETHER THE CHANCELLOR ERRED IN FAILING TO AWARD PENALTIES FOR THE COLLECTION OF LATE FEES IN VIOLATION OF MISSISSIPPI CODE SECTION 75-17-27.

¶ 16. Mississippi Code Section 75-17-27 states:

A late payment charge, not exceeding Five Dollars ($5.00) or four percent (4%) of the amount of any delinquency, whichever is greater, if contracted for in writing, shall not be considered a finance charge, but no such charge shall be made unless such delinquency is more than fifteen (15) days past due; provided, however, that such late payment charge may be collected only one (1) time on a specific installment and no late payment charge may be collected on a partial payment resulting from the deduction of a late payment charge from a regular scheduled payment. On loans of One Hundred Thousand Dollars ($100,-000.00) or less having a stated maturity of five (5) years or less, such late payment charge shall in no event exceed Fifty Dollars ($50.00).

Miss.Code Ann. § 75-17-27 (Rev.2009). The Millers assert that their contracted-for late fee of $50 was charged on four occasions in excess of the maximum statutory amount. Section 75-17-27 allows a late-payment charge of five dollars or four percent of the amount of any delinquency, whichever is greater. The statute further provides that if the contracted-for late fee does not exceed the statutory maximum, then it will not be considered a finance charge. Thus, it would follow that a late fee in excess of the statutory maximum will be considered a finance charge.

¶ 17. Here, as properly determined by the judge, the Millers were charged a $50 late fee for the following delinquencies: (1) March 15, 2003, for a delinquency of $1,285; (2) June 13, 2003, for a delinquency of $1,405; (3) February 6, 2005, for a delinquency of $1,955; and (4) April 15, 2005, for a delinquency of $730. When applying four percent to these delinquencies, it yields the following permissible late fees, respectively: (1) $49.40; (2) $56.20; (3) $78.20; and (4) $29.20. Thus, two of the four late fees exceeded four percent of the delinquency, totaling $21.40 paid in late fees in excess of the statutory maximum. Therefore, the amount of $21.40 most be considered a finance charge and will be discussed further below. See Rea v. Breakers Ass’n, Inc., 674 So.2d 496, 500 (Miss.1996) (late charge exceeding maximum amount must be computed as part of total finance charge). Additionally, the judge found, as required by Section 75-17-27, that the record establishes “some delinquency for more than fifteen days” prior to a late-fee assessment. There is nothing before this Court to show that the chancellor was clearly erroneous in making this finding of fact. Thus, there is no merit to this assignment of error.

III. WHETHER THE CHANCELLOR ERRED IN FAILING TO RULE THAT MCCURLEY HAD VIOLATED MISSISSIPPI CODE SECTION 75-17-1(4).

¶ 18. The Millers also assert that McCurley violated Mississippi Code Section 75-17-1(4) by charging a finance charge in excess of ten percent on residential real estate. Section 75-17-1(4) provides:

Notwithstanding the foregoing and any other provision of law to the contrary, any borrower or debtor may contract for and agree to pay a finance charge which will result in a yield not to exceed the greater of ten percent (10%) per annum or five percent (5%) per annum above the index of market yields of the Monthly Twenty-Year Constant Maturity Index of Long-Term United States Government Bond Yields, as compiled by the United States Treasury Department, each calculated according to the actuarial method, on any loan, mortgage or advance which is secured by a lien on residential real property or by a hen on stock in a residential cooperative housing corporation where the loan, mortgage or advance is used to finance the acquisition of such stock. The term “residential real property,” as used in this subsection, means real estate upon which there is located or to be located a structure or structures designed in whole or in part for residential use, or which comprises or includes one or more apartments, condominium units or other dwelling units.

Miss.Code Ann. § 75-17-1(4) (Rev.2009). However, as argued by McCurley, subsection 5 of this statute provides that the interest rate provided for in the Agreement is lawful. Subsection 5 states:

Notwithstanding the foregoing and any other provision of law to the contrary, any borrower or debtor may contract for and agree to pay and any lender or extender of credit may contract for and receive any finance charge agreed to in writing by the parties, notwithstanding that such charge is in excess of that otherwise allowed on any contract, credit sale, obligation or other extension of credit, regardless of the security taken or the purpose of the extension of credit, under which the principal balance to be repaid originally exceeds Two Thousand Dollars ($2,000.00), or on any series of advances of money pursuant to a contract if the aggregate of sums advanced or originally proposed to be advanced exceeds Two Thousand Dollars ($2,000.00), or on any extension or renewal thereof; and as to any such agreement, the claim or defense of usury or violation of any law prescribing, limiting or regulating the rate of finance charge by any borrower or debtor, or his successors, guarantors, assigns or anyone on his behalf is prohibited.

Miss.Code Ann. § 75-17-1(5) (Rev.2009) (emphasis added). This subsection is applicable where any debtor contracts for and agrees to pay, and any extender of credit contracts for and receives, any finance charge agreed to in writing by the parties, under which the principal balance to be repaid originally exceeds $2,000. This subsection further provides that, as to any such agreement, the claim of usury or violation of any law prescribing, limiting, or regulating the rate of finance charge by any debtor is prohibited. In today’s case, Miller and McCurley contracted for — in writing by the parties — a nineteen percent interest rate where the original principal balance to be repaid exceeded $2,000. Therefore, in accordance with Section 75-17-1(5), the Millers cannot now claim usury or a violation of Section 75-17-1(4). See Dunlap Acres, Ltd. v. Intervest Dev. Corp., 955 So.2d 345, 349-50 (Miss.Ct.App.2006) (Section 75-17-1(5) appears to allow parties to contract for interest at a rate greater than fifteen percent.). Additionally, when adding the previously discussed $21.40 in late fees, which we deem to be a finance charge, to the contracted interest rate, it does not appear that this would render the interest rate usurious under Mississippi law. Thus, the chancellor did not err in finding that neither the late fees nor the interest rate charged are usurious. We thus find this issue to be without merit.

IY. WHETHER THE CHANCELLOR ERRED IN GRANTING RELIEF NOT REQUESTED BY MCCURLEY.

¶ 19. The Millers contend that the judge awarded McCurley an unrequested setoff of rental value together with the $35,000 in insurance proceeds. We disagree with this contention. “A setoff is a counterclaim which the defendant has against the plaintiff, but which is extrinsic to the plaintiffs claim.” Singing River Mall Co. v. Mark Fields, Inc., 599 So.2d 938, 944 (Miss.1992) (citing Black’s Law Dictionary 1372 (6th ed. 1990)). McCur-ley was not awarded a setoff by the judge. Rather, the judge, in seeking an equitable remedy, granted the Millers a refund of all their payments to McCurley, including taxes and insurance, less reasonable fair rental value of the property while they occupied it. This was in no way a setoff to McCurley; it was an award to the Millers, deducting fair rental value for the benefit the Millers received in occupying the property. Also, the judge did not grant McCurley a setoff of the insurance proceeds, but determined, in equity, not to award the proceeds to the Millers. Therefore, this issue is meritless.

V. WHETHER THE CHANCELLOR ERRED IN FAILING TO AWARD THE MILLERS INSURANCE BENEFITS, FINANCE CHARGES, AND ATTORNEY’S FEES.

¶ 20. The issues of insurance benefits and finance charges have been discussed previously; thus, only the issue of attorney’s fees is left to be determined. The judge correctly found no provision for attorney’s fees in the event of breach of contract in the Agreement between the parties, and no statutory basis for awarding attorney’s fees for a breach of contract. Mississippi law is well-settled with respect to awarding attorney’s fees. “ ‘If attorney’s fees are not authorized by the contract or by statute, they are not to be awarded when an award of punitive damages is not proper.’ ” In re Guardianship of Duckett, 991 So.2d 1165, 1179 (Miss.2008) (quoting Hamilton v. Hopkins, 834 So.2d 695, 700 (Miss.2003)). In that there has been no finding for an award of punitive damages, this issue is without merit.

CROSS-APPEAL

¶ 21. On cross-appeal, McCurley argues that this Court should adopt the rule applied by other jurisdictions involving the destruction of a property in the middle of the payment schedule under a land-sale contract prior to the transfer of legal title. McCurley cites authority from Tennessee, Kentucky, Alabama, and Georgia for rules of law that once an insurance company has paid the full amount of the policy to the seller, the proceeds received by the seller must be applied toward the purchase price, and upon the payment of any difference, legal title shall be transferred to the buyer. See King v. Dunlap, 945 S.W.2d 736 (Tenn.Ct.App.1996); Estes v. Thurman, 192 S.W.3d 429 (Ky.Ct.App. 2005); Ala. Farm Bureau Ins. Serv., Inc. v. Nixon, 268 Ala. 271, 105 So.2d 643 (1958); Bruce v. Jennings, 190 Ga. 618, 10 S.E.2d 56 (1940); Martin v. Coleman, 2001 WL 673701 (Tenn.Ct.App. June 18, 2001). The lines of cases from these jurisdictions following this rule of law all were considered by the chancellor and found unpersuasive. The judge determined that Mississippi had ample caselaw on which he could base his decision.

¶ 22. The judge applied the proper legal standard and was able to provide an equitable remedy in today’s case. This proposition might have had some merit when the property was damaged more than four years ago, but today, the effect of applying the rule that the insurance proceeds are to be applied to the remaining balance owed to the seller, McCurley, under the contract, as requested by McCurley on cross-appeal, would leave the Millers with a dilapidated property where they would not only have to bear the cost of the remaining balance owed McCurley, but also potentially unaffordable repair costs and/or demolition expenses. As such, this issue is without merit.

CONCLUSION

¶ 23. For the reasons stated, the judgment of the Chancery Court for the Second Judicial District of Jones County is affirmed on both appeal and cross-appeal.

¶ 24. ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: AFFIRMED.

WALLER, C.J., GRAVES, P.J., KITCHENS AND CHANDLER, JJ., CONCUR. DICKINSON, J„ DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, LAMAR AND PIERCE, JJ.

DICKINSON, Justice,

dissenting:

¶ 25.[W]herever the rights or the situation of parties are clearly defined and established by law, equity has no power to change or unsettle those rights or that situation, but in all such instances the maxim equitas sequitur legem is strictly applicable.

Magniac v. Thomson, 15 How. 281, 299, 14 L.Ed. 696 (1853). For decades, our courts have followed this time-tested, venerable maxim. Today, however, this Court takes a different view — one I believe will, over time, prove exceedingly ill-advised and detrimental to our courts and litigants alike. I have without success attempted to persuade the majority that a chancellor’s equitable powers do not extend to issues controlled by law. I therefore respectfully dissent.

I.

¶ 26. In this contract case, the chancery court — in the name of its equitable powers — disregarded the parties’ contract and instead attempted to achieve what it thought would be a result more just than the law of contracts could deliver. However, absent some finding that the parties’ contract was unlawful, unconscionable, or void, the terms of the contract, together with the principles of contract law, should have controlled the chancellor’s decision.

¶ 27. The Millers and McCurley contracted to buy and sell a particular parcel of real estate: 1119 N. 8th Avenue in Jones County, Mississippi. The contract set out the terms of the sale, including the purchase price; the financing agreement; and how, when, and under what conditions title was to be conveyed. The contract adequately described the property. Other contract terms addressed matters such as late fees, taxes, and insurance, as well as some miscellaneous items. The contract rate of interest did not exceed the legal limit set by the Legislature.

¶ 28. After Hurricane Katrina swept across Mississippi, the Millers lived for a time in another house owned by McCurley. However, the contract for the Eighth Avenue property was still in effect, and nothing made performance of any contract obligation impossible. The contract required McCurley to convey title to the described property after the Millers paid the purchase price. The parcel still existed, despite the damage, and nothing in the contract placed the risk of loss on McCurley. Furthermore, nothing in the contract obliged the seller to repair the house before he could require performance by the buyers. The Millers were not renters; they were purchasers. Had the subject of the contract been an automobile, rather than a house, one wonders whether the majority would allow the chancellor — in the name of equitable powers — to relieve the buyer from the obligation to make ear payments.

II.

¶ 29. The majority cites Piaggio v. Somerville, 119 Miss. 6, 80 So. 342, 344 (1919), for the rules regarding when a party to a contract is excused from performance. The majority states that of the “three circumstances where performance is excused, ... [ojnly the second ... applies in today’s case, and it is applicable in excusing the Millersfs] performance under the contract, not McCurley’s performance.” That second situation is “the destruction, from no fault of either party, of an object which has to exist for there to be performance....”

¶ 30. While the severe damage to the house on the property was a catastrophe for the Millers, it did not render contract performance for either side impossible or excusable. The performance required of McCurley was to convey, after receiving $39,000 plus interest from the Millers, title to the property. The performance required of the Millers included, inter alia, paying McCurley and maintaining casualty insurance on the property. And even if one finds some merit in an impossibility-of-performance defense, the record reveals no such attempt. Furthermore, a careful review of the contract reveals that no duties on the part of either party were rendered impossible or otherwise excusable.

¶ 31. As for the insurance issue, the relevant considerations are whether the seller has insured the property for the benefit of the buyer, or whether the buyer has purchased insurance in accordance with a contract with the seller. Although Mississippi has no cases on point, the Georgia Supreme Court explained the issue as follows:

It is the general rule that, where the purchaser goes into possession under a binding executory contract for the sale of improved realty which the seller is able to convey, but where, before the transfer of the legal title is consummated, the improvements are destroyed by fire without the fault of either party, the loss falls on the purchaser as the owner of the equitable title. If in such a case the property was insured by the seller, he holds the insurance money which he may collect on the bargained property as trustee for the purchaser, subject, however, to his own claims for any unpaid purchase-money plus the insurance premiums.

Bruce v. Jennings, 190 Ga. 618, 10 S.E.2d 56, 58 (1940) (citing Mackey v. Bowles, 98 Ga. 730, 734, 25 S.E. 834 (1896); Bispham’s Equity, 5th ed., § 364; 27 R.C.L. 556; 66 C.J. 1052, 1053; Phinizy v. Guernsey, 111 Ga. 346, 349, 36 S.E. 796 (1900); Brady v. Welsh, 200 Iowa 44, 204 N.W. 235 (1925); 40 A.L.R. 603, 605, and cit.; Godfrey v. Alcorn, 215 Ky. 465, 284 S.W. 1094 (1926); 51 A.L.R. 925; 27 R.C.L. 559, § 298; 66 C.J. 1054, 1055 (§ 815); Mehrtens v. Knight, 29 Ga.App. 390, 390, 115 S.E. 506 (1923)).

¶ 32. Other authorities are in accord with the proposition that, where a contract requires the buyer to insure the property to protect the seller, then the following rule applies:

As between a vendor and purchaser, whichever must bear the loss resulting from an injury to the property sold generally is entitled to the proceeds of fire insurance thereon. Thus, if the loss falls on the purchaser, he or she is entitled to the benefit of the insurance proceeds, and to receive it on payment of the full purchase price. In such a case, a vendor who collects the insurance proceeds holds the proceeds as trustee, for the benefit of the purchaser, subject to any claims the vendor may possess for unpaid purchase money or insurance premiums. On the other hand, if the loss falls on the vendor, he or she normally is entitled to the insurance money.

46A C.J.S. Insurance § 1932 (2009) (citing Gillingham v. Phelps, 5 Wash.2d 410, 105 P.2d 825 (1940); Bruce, 10 S.E.2d at 56; Heinzman v. Howard, 366 N.W.2d 500 (S.D.1985); Standard Oil Co. v. Dye, 223 Mo.App. 926, 20 S.W.2d 946 (1929); Pasker v. Harleysville Mut. Ins. Co., 192 N.J.Super. 133, 469 A.2d 41 (App.Div.1983); Brown v. Nw. Mut. Fire Ass’n, 176 Wash. 693, 30 P.2d 640 (1934)).

¶ 33. The Millers agreed to purchase insurance to protect McCurley’s interest in the property. The Millers failed to do what they promised, so McCurley bought the policy, using the Millers’ money, as allowed under the terms of the contract. When Katrina destroyed the house, the insurance company paid the insurance proceeds to McCurley. The Millers undoubtedly are entitled to credit for the insurance proceeds, but they are not entitled to abrogate their contract.

¶ 34. After application of the insurance proceeds, the Millers’ balance was reduced to between seven and eight hundred dollars. Upon payment of that amount, according to the contract, they are entitled to take title. Nothing in the contract or the law, changes that fact. Nor does anything change the fact that the obligations of the parties, as spelled out in the contract, continued after August 29, 2005. The Millers were buying property under a real estate contract. The majority states that it became “impossible for McCurley to continue providing the property to the Millers,” as if he were a landlord. He was a seller. He had no continuing duties, other than those in the contract. Nothing in the contract required the seller to rebuild the house if it became damaged. Purchasers of property, real and personal, protect their interest in property with insurance, not with equitable remedies in chancery court.

¶ 35. We are a court of law, bound to apply it dispassionately. We may wish the Millers had not entered the contract, but they did. And having done so, they should now be entitled to remedies provided by law, not equity. For the reasons stated, I respectfully dissent.

RANDOLPH, LAMAR AND PIERCE, JJ., JOIN THIS OPINION.

      .The chancery court found that Parker McCurley Properties, L.L.C., was not a party to the agreement between the parties nor a recipient of any insurance proceeds. Thus, the chancery court dismissed this entity as a defendant and rendered judgment in its favor.

      . McCurley purchased the house for $5,500 on or around September 12, 2002.

      . This is amortized at approximately $172,500, not including land taxes, insurance premiums, and late fees.

      . The check issued to McCurley by Shelter was actually in the amount of $33,879.11.

      . This property has continued to deteriorate through elemental exposure since the time of the destruction by Hurricane Katrina.

      . Equity follows the law.

        .Senter v. Propst, 190 Miss. 190, 197 So. 100, 104 (1940) ("The rule is that equity follows the law.”) (citation omitted); Daughtrey v. Daughtrey, 474 So.2d 598, 603 (Miss.1985) ("equity follows the law”); Bowling v. Madi

        son County Bd. of Supervisors, 724 So.2d 431, 434 (Miss.App.Ct.1998) ("The more traditional analysis is that injunctive or other equitable relief ... is unavailable if there exists an adequate remedy at law (ellipses in original).

      . The chancellor made no such finding in this case.

      . It is not before this court whether more than one parcel with this address exists. That would have been a matter for the chancery court, if the litigants thought it important.