                         IN THE SUPREME COURT OF MISSISSIPPI

                                      NO. 2001-CA-01454-SCT

IN THE MATTER OF THE CONSERVATORSHIP OF
BUFFY BRANTLEY: BILLY BUTLER,
INDIVIDUALLY AND AS NEXT FRIEND OF YZETTE
BRIDGET BUTLER, JUSTIN PRICE BUTLER,
ROSHANDA TATYONA NESHA BUTLER AND
ANTRISA FONTAE’ BUTLER, MINORS

v.

LEE GIRTHA BRANTLEY, INDIVIDUALLY, AND AS
GUARDIAN OF BRIDGETTE NICKS, YASMINE
NICKS, AND JAMES NICKS, JR., AND ISAAC BYRD
d/b/a ISAAC BYRD & ASSOCIATES

DATE OF JUDGMENT:                                  08/27/2001
TRIAL JUDGE:                                       HON. H. DAVID CLARK, II
COURT FROM WHICH APPEALED:                         SCOTT COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS:                           ROBERT M. LOGAN
ATTORNEYS FOR APPELLEES:                           FELECIA PERKINS
                                                   KATHRYN N. NESTER
                                                   AUDREY CAROLYN CURRY
                                                   TERRY R. LEVY
NATURE OF THE CASE:                                CIVIL - WILLS, TRUSTS, AND ESTATES
DISPOSITION:                                       AFFIRMED IN PART; REVERSED AND
                                                   REMANDED IN PART - 02/12/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


        EN BANC.

        CARLSON, JUSTICE, FOR THE COURT:

¶1.     This appeal arises from upon an order granting partial dismissal of a complaint filed by Billy Butler,

Yzette Bridget Butler, Justin Price Butler, Roshanda Tatyona Nesha Butler and Antrisa Fontae' Butler

(collectively the "Butlers") and the subsequent entry of final judgment by the Scott County Chancery Court.
This order and final judgment provided, inter alia, that the final judgment was entered pursuant to Miss. R.

Civ. P. 54(b). The Butlers' complaint sought, inter alia, that they be awarded a portion of a court-approved

settlement. The settlement agreement at issue purported to discharge all claims regarding the alleged

medical malpractice of the Mississippi Baptist Medical Center and others in relation to the treatment of

Buffy Brantley (Buffy). The Butlers, Buffy’s father and half-siblings, argue that they were necessary parties

who were either not included in the settlement or fraudulently induced to waive their valid claims. Following

the partial dismissal of their complaint, the Butlers appeal, presenting the following issues for the Court’s

consideration:

        I.       WHETHER THE TRIAL COURT ERRED IN GRANTING PARTIAL
                 DISMISSAL OF PLAINTIFFS' CLAIM WHEN THEY SUED FOR
                 A PORTION OF A CONTINGENT WRONGFUL DEATH
                 SETTLEMENT INTENDED TO COVER ALL POTENTIAL
                 CLAIMANTS.

        II.      WHETHER THE TRIAL COURT ERRED IN GRANTING PARTIAL
                 DISMISSAL OF PLAINTIFFS' CLAIM WHEN THEY ALLEGE
                 INSUFFICIENT PROCESS AND RESULTING LACK OF
                 JURISDICTION OVER PERSON WITH RESPECT TO THE
                 CONSERVATORSHIP PROCEEDINGS.

                                                 FACTS

¶2.     Buffy is the daughter of Billy Butler (Butler) and Lee Girtha Brantley (Brantley). Butler and

Brantley were never married. They parted ways, and both have since married and have children from other

spouses. Yzette Bridget Butler, Justin Price Butler, Roshanda Tatyona Nesha Butler and Antrisa Fontae'

Butler (the Butler children) all live with Butler and are half-siblings of Buffy. Bridgette Nicks, Yasmine

Nicks, and James Nicks, Jr. (the Nicks children) are also half-siblings of Buffy and reside with Brantley,

their mother.

                                                     2
¶3.     In November 1997, Buffy suffered a traumatic illness and was treated at the Mississippi Baptist

Medical Center in Jackson, Mississippi. As a result of alleged medical malpractice, Buffy suffered

permanent injury. A complaint was filed against Mississippi Baptist Medical Center and others in Hinds

County Circuit Court by Brantley, as next friend of Buffy.1 A settlement was reached pursuant to a written

agreement dated January 19,1997, between Mississippi Baptist Medical Center and other defendants. The

settlement was for $10 million and constituted a full and final release of all claims on behalf of Buffy. The

agreement stated: "The release must be approved by the court and must include all claimants and

potential claimants." (emphasis added).

¶4.     Brantley petitioned the Scott County Chancery Court to be appointed the conservator of Buffy and

her estate. She also petitioned the court for the authority to settle the claim. The court granted these

requests on April 4, 1997.2

¶5.     On January 5, 1998, Brantley and the Nicks children filed a Petition for Authority to Settle Doubtful

Claim. This petition stated that a claim would be settled on behalf of Buffy, but did not explain the amount

of the settlement, who would receive the settlement proceeds, or the amount of attorney fees. It did

mention that Mississippi Medicaid Division had a lien for $183,256.113against the $10 million settlement

proceeds.



        1
        Lee Girtha Brantley, as Next Friend of Buffy C. Brantley, a Minor v. Mississippi
Emergency Association, P.A., MEA, Inc., Jon Finch, D.O., Jon Meyer, M.D. and Mississippi
Baptist Medical Center, Hinds County Circuit Court, Cause No. 251-96-1152-CIV.
        2
          Butler asserts that neither the court docket, the court file, nor the order appointing the conservator
reflect that process was served on him.
        3
         The chancellor, however, found the amount of the lien to be $183,662.11.

                                                       3
¶6.     The following day, January 6, 1998, Butler executed a waiver of process by which he voluntarily

consented to waive notice of any hearings regarding Buffy, and he also waived process of all amended

petitions filed with the estate.

¶7.     On January 15, 1998, Brantley and the Nicks children filed an Amended Petition For Settlement

of Doubtful Claim. In light of the waiver signed by Butler, he was given no notice. This particular amended

petition stated that the settlement amount was $9,350,000.

¶8.     Brantley and the Nicks children contacted Butler on January 21, 1998, to obtain power of attorney

from him allowing Brantley to sign a release on his behalf, and to obtain a Relinquishment of Inheritance

Rights. Butler was not informed of the settlement details before signing these documents.

¶9.     On January 22, 1998, Brantley and the Nicks children filed a third Petition (Second Amended

Authority To Settle Unliquidated And Doubtful Claim of a Minor). This petition was also filed with no

notice to Butler. This petition informed the court that there was a $10 million settlement, and explained that

$500,000 was allocated to Brantley and $150,000 was allocated to the Nicks children, who reside with

Brantley. This petition never mentioned Butler or his children.

¶10.    Paragraph 9 of this final petition stated:

                 That, as a part of this proposed settlement, the parties desire to
                 compromise, settle and foreclose any inchoate claims, for the past, present
                 and future loss of love, society, companion, [sic] support and services of
                 Buffy Brantley allegedly resulting from the conduct made the subject of the
                 civil action referenced above.

¶11.    This settlement petition was approved by the court, and an order was issued and dated January

26, 1998. The following is a breakdown of the settlement disbursements:

                 TOTAL SETTLEMENT                                           $10,000,000.00

                                                      4
                        Expenses                                                80,159.05
                        Lien                                                   183,662.11
                        Buffy's Estate                              **5,454,833.51
                        *Byrd & Associates                                   3,894,471.53
                        Lee Girtha Brantley, Individually                    **297,595.23
                        Nicks children                               ** 89,278.57
               _____________________________
                *40% contingent attorney fee
                **after attorney fee

Butler and the Butler children were never made aware of the hearing and received nothing from the

settlement.

¶12.    On January 28, 1998, Brantley signed a release on behalf of herself, Butler (pursuant to the power

of attorney), Buffy and the Nicks children releasing the circuit court defendants (Baptist Medical Center

and others).

¶13.    On November 12, 1999, Butler, individually and as next friend of the Butler children filed a First

Amended Complaint praying that the chancery court would (1) set aside the January 26, 1998, order

appointing Brantley conservator of Buffy; (2) set aside the power of attorney signed by Butler dated

January 21, 1998; (3) set aside the Relinquishment of Inheritance Rights signed by Butler, dated January

21, 1998; (4) reopen the issue of allocation of the $10 million settlement proceeds, including attorney's fees;

(5) order all defendants to return to the registry of the court all sums received from the settlement; (6)

award Plaintiffs their rightful portion of settlement proceeds; and (7) award Plaintiffs punitive damages.

¶14.    An order dated December 21, 2000, granted partial dismissal of the complaint insofar as it sought

to set aside the appointment of Brantley as conservator, and insofar as it sought a portion of the damages

arising from injuries suffered by Buffy.



                                                      5
¶15.    The Butlers pursuant to Miss. R. Civ. P. 15(a), filed a Second Amended Complaint to Set Aside

Settlement, For Damages and Other Relief dated January 9, 2001. The chancellor entered an Order

Granting Partial Dismissal of the Complaint and Entry of Final Judgment pursuant to Miss. R. Civ. P.

12(b)(6) and 54(b) on August 28, 2001, again dismissing the complaint insofar as it sought to set aside the

appointment of a conservator and to claim a portion of damages arising from Buffy Brantley's injuries, for

failure to state a claim, pursuant to Miss. R. Civ. P. 12(b)(6). The partial dismissal order found:

                        That neither a natural parent, nor a half-sibling, is entitled to
                recovery of any damages themselves, in the matter of a personal injury
                claim, by and on behalf of an injured minor child.

                        A natural parent and half-siblings are statutory wrongful death
                beneficiaries. Buffy Brantley's injuries are serious and permanent; but
                Brantley is still alive.

                        No portion of the claim for personal injury settled, by and on
                behalf of Buffy Brantley, was a contingent future claim for the wrongful
                death of Buffy Brantley.

                        Neither Billy Butler, as Buffy's natural father, nor his children, as
                Buffy's half-siblings, are entitled to recovery of any damages, in the matter
                of the personal injury claim settled by and on behalf of Buffy Brantley.

                                               ANALYSIS

¶16.    A Rule 12(b)(6) motion to dismiss under raises an issue of law. T.M. v. Noblitt, 650 So.2d

1340, 1342 (Miss. 1995) (collecting authorities). This Court conducts de novo review on questions of law.

Id. When considering such a motion, the allegations in the complaint must be taken as true, and the motion

should not be granted unless it appears beyond doubt on the face of the complaint that the plaintiff will be

unable to prove any set of facts in support of his claim. Lang v. Bay St. Louis/Waveland Sch. Dist.,

764 So.2d 1234, 1236 (Miss. 1999).

                                                     6
           I.      WHETHER THE TRIAL COURT ERRED IN GRANTING PARTIAL
                   DISMISSAL OF PLAINTIFFS' CLAIM WHEN THEY SUED FOR
                   A PORTION OF A CONTINGENT WRONGFUL DEATH
                   SETTLEMENT INTENDED TO COVER ALL POTENTIAL
                   CLAIMANTS.

¶17.       The Butlers contend that the chancery court authorized Brantley and the Nicks children to receive

$650,000 in a settlement claim from which they were improperly excluded. They further contend that

Baptist and others who negotiated this settlement intended the settlement to be final and to cover all

potential claimants, including Butler and the Butler children. Brantley's attorney represented to the chancery

court that they were acting on behalf of all interested parties, yet the Butler children were not mentioned,

and Butler alleges he was fraudulently induced into signing a Power of Attorney and Waiver of Inheritance

Rights.4

¶18.       Insofar as the Butlers argue that the settlement usurped their potential wrongful death claims,

dismissal was proper because Buffy is still alive. Mississippi's wrongful death statute, Miss. Code Ann.

§ 11-7-13 (Supp. 2003), does not recognize "contingent" wrongful death claims. To do so in this case

would usurp Buffy's right to damages to which she would be entitled simply because her relatives anticipate

her death earlier than it will naturally occur. The wrongful death statute is based on the premise that

whenever the death of any person was caused by a wrongful act, neglect or default of another, in such a

manner as would have entitled the injured party to have sued had death not ensued, an action could be

maintained in the name of that person’s executor or administrator for the benefit of certain relatives.

"Implicit in the codification of wrongful death action is the notion that a claim sounding in wrongful death


           4
         This last assertion, referring to fraud, is still pending in the trial court and is not an issue for our
consideration.

                                                       7
comes into being upon the death of the deceased." Gentry v. Wallace, 606 So.2d 1117, 1120 (Miss.

1992). "Our wrongful death statute provides a cause of actions to the survivors of those who die as a

result of wrongful conduct. A person cannot qualify as a 'survivor' until he survives someone." Id. at 1121

(emphasis in original). "A cause of action accrues only when it comes into existence as an enforceable

claim; that is, when the right to sue becomes vested." Id. Butler has based his claim on law that the State

of Mississippi does not recognize. Therefore, there is no claim upon which relief can be granted, and the

trial court was correct to grant a dismissal.

¶19.    However, in the interest of justice, this Court feels compelled to take notice of another aspect of

this case. The original defendants in this case came to a settlement agreement with Brantley believing that

all interested parties were involved, and that, by their agreement, all possible claims encompassing the claim

of medical malpractice would be extinguished. Brantley, the Nicks children, and Butler, by way of power

of attorney, were all involved in this settlement. This settlement was submitted to the chancery court and

was approved; however, the chancery court was unaware of a particular fact which affects the settlement

agreement. The Butler children, according to the record, were never mentioned by Brantley during

settlement agreements or to the chancery court during approval of the settlement. While Butler signed a

power of attorney in favor of Brantley, it said nothing about his minor children who have the same relation

to Buffy as do the Nicks children. Thus, interested parties were left out of the settlement, and their rights

were not represented. In the interest of fairness and equity, we conclude that the approval of the chancery

court of the settlement must be reversed. All monies awarded to Brantley and the Nicks children should




                                                      8
be removed from their possession5 and added to Buffy’s estate. Because of possible conflicts of interest,

a neutral conservator should be appointed to replace Brantley as conservator. This conservator should be

required to make a quarterly accounting for the sake of protection of the estate and Buffy's interests

pursuant to Miss. Code Ann. § 93-13-67 (Rev. 1994).

        II.     WHETHER THE TRIAL COURT ERRED IN GRANTING PARTIAL
                DISMISSAL OF PLAINTIFFS' CLAIM WHEN THEY ALLEGE
                INSUFFICIENT PROCESS AND RESULTING LACK OF
                JURISDICTION OVER PERSON WITH RESPECT TO THE
                CONSERVATORSHIP PROCEEDINGS.

¶20.    Brantley administered Buffy's estate under the conservatorship laws; however, Butler contends that

since Buffy is a minor, this proceeding should be controlled by the law of guardianships. While the

conservatorship and guardianship laws are alike in many aspects, the parties submit that these laws are not

identical insofar as those persons who are required to receive notice. To establish which law should have

been utilized to handle Buffy’s estate, we first take note of the individuals who may be declared wards

under each statute:




        5
          Brantley has failed to establish exactly why she was awarded this amount of monies. This Court
could find only two reasons upon which she could have been awarded this money, future earnings of the
child and medical expenses. Medical expenses were settled separately, and were not paid by Brantley,
and had the award been based on the child's lost future earnings, the father and mother of the child are
entitled to equal sums. Wright v. Standard Oil Co., 470 F.2d 1280 (5th Cir. 1972).
         The same goes for the monies awarded to the Nicks children. Children do not have a cause of
action for injuries to their siblings. Moore v. Kroger Co., 800 F. Supp. 429, 434 (N.D. Miss. 1992),
aff'd mem. 18 F.3d 936 (5th Cir 1994).
         Based on these cases and law, the only reason the parties could have been awarded this money
is based on a contingent wrongful death claim. Since Mississippi does not recognize this claim and Buffy
is not dead, the awards should be added to Buffy’s estate so that it can be distributed properly to all
interested parties.

                                                    9
        Guardians may be appointed for minors, Miss. Code Ann. § 93-13- 15 (1972); or
        incompetent adults, Miss. Code Ann. § 93-13-121 (Supp.1983); a person of unsound
        mind, Miss. Code Ann. §§ 93-13-123, 125 (1972); alcoholics or drug addicts, Miss.
        Code Ann. § 93-13-131 (1972); convicts in the penitentiary, Miss. Code Ann. § 93-13-
        135 (1972); persons in the armed forces or merchant seamen reported as missing, Miss.
        Code Ann. § 93-13-161 (1972); or for veterans entitled to receive moneys from United
        States Veterans' Bureau, Miss. Code Ann. § 35-5-5 (1972) or minor wards of a veteran,
        Miss. Code Ann. § 35-5-7 (1972). The guardian is the legally recognized custodian of the
        person or property of another with prescribed fiduciary duties and responsibilities under
        court authority and direction. A ward under guardianship is under a legal disability or is
        adjudged incompetent.

Harvey v. Meador, 459 So.2d 288, 291 (Miss. 1984). A conservator for the management of property

may be appointed by the chancery court of the county of the residence of any person who "by reason of

advanced age, physical incapacity, or mental weakness is incapable of managing his own estate." Miss.

Code Ann. § 93-13-251 (Rev. 1994). Additionally, "if the court deems it advisable," the conservator may

have charge and custody of the person as well as the property. Id.

¶21.    Since the “Legislature provided a new procedure through conservatorship for supervision of estates

of older adults with physical incapacity or mental weakness, without the stigma of legally declaring the

person non compos mentis,” Harvey, 459 So. 2d at 291-92, it would appear evident at first glance that

a guardianship is utilized for minors and conservatorships for adults. But further analysis of the applicable

statutes reveals that there are no limitations or requirements for age. Since Buffy suffers from a permanent

illness which renders her unable to manage her own estate, either a guardianship or a conservatorship

would be appropriate in this case. However, the use of a conservatorship is more appropriate in this

situation because a guardianship of a minor is terminated when the ward reaches the age of 21, Miss. Code

Ann. § 93-13-75 (Rev. 1994), while a conservatorship can be terminated only if the person is restored in



                                                     10
mind and body. Miss. Code Ann. § 93-13-265 (Rev. 1994). In light of the unfortunate reality that Buffy

will most likely not recover from her severe injuries, a conservatorship is appropriate.

¶22.    Regarding the notice required under a conservatorship, Miss. Code Ann. § 93-13-253 states:


        Upon the filing of such petition, the clerk of the court shall set a time and place for hearing
        and shall cause not less than five (5) days' notice thereof to be given to the person for
        whom the conservator is to be appointed, except that the court may, for good cause
        shown, direct that a shorter notice be given. Such notice shall also be given to the husband
        or the wife, or a descendant or an ascendant, or next of kin of the person for whom the
        conservator is to be appointed, provided the person to whom notice is given is a resident
        of Mississippi, except where such person is himself the petitioner, it being the intention of
        the legislature to require personal service on the person for whom the conservator is to be
        appointed and one relative. If said person is entitled to any benefit, estate or income paid
        or payable by or through the Veterans' Administration of the United States Government,
        such administration shall also be given such notice. Notice may be by personal service by
        the sheriff as in service of other process but nothing herein shall be construed to prevent
        competent persons from accepting notice in person from the clerk or his deputy.

¶23.    According to this statute, which covers both guardianships and conservatorships, Brantley has failed

to meet the requirement of sending notice to next of kin. Butler, being the father of Buffy, would certainly

qualify as being next of kin. However, this mistake is not fatal considering all the facts of the case under

our standard of review on a Rule 12(b)(6) dismissal. Butler asserts in his complaint that he was never

properly served with notice of the conservatorship proceeding, thus, he asserts the chancery court never

had jurisdiction over him. This must be taken as true. However, he also admits that he was present in the

courtroom during the proceeding. This Court held in McCoy v. Watson, 154 Miss. 307, 122 So. 368,

370 (1929), that actual knowledge by a defendant of the pendency of a suit against him is immaterial,

"unless there has been a legal summons or a legal appearance." Brown v. Riley, 580 So.2d 1234,

1237 (Miss. 1991) (emphasis added). A voluntary appearance is an "overt act by which, or as a result of


                                                     11
which, a person against whom a suit has been commenced submits himself of the jurisdiction of the court

in the particular suit." McCoy, 122 So. at 369. While Butler's complaint makes no mention of the fact,

Brantley’s brief, as well as the Finding of Facts and Conclusions of Law issued by the trial court,6 point out

that, while in court, Butler was asked directly if he had any problem with the granting of the

conservatorship, and he responded that he had no objection. This Court concludes that this constitutes an

overt act which submitted Butler to the jurisdiction of the court and therefore amounted to notice of the

proceedings. Therefore, notice was not required to be served on Butler in the conservatorship proceeding.

It was met when Butler made a voluntary legal appearance during the proceeding by answering the

questions put forth to him. Consequently, we affirm the decision of the chancery court on this issue.

                                             CONCLUSION

¶24.    The Butlers have failed to state a claim upon which relief can be granted in either of the two issues

presented to this Court; however, in the interest of justice the court-approved allocation of the settlement

monies must be reversed because necessary parties, the Butler children, were not mentioned in the

settlement proceedings. The monies awarded to Brantley and the Nicks children are therefore to be added

to Buffy's estate. On remand, the chancery court should appoint a neutral conservator to replace Brantley




        6
         In his order, the trial judge stated at paragraph 4, as follows:

        The Court independently recalls the hearing on the Petition For Appointment of
        Conservator, conducted on April 4, 1997; and the Court specifically recalls and takes
        judicial notice that Billy Butler attended the hearing and was questioned by the Court, and
        he indicated to the Court that he had no objection to the appointment of Lee Girtha
        Brantley as Conservator of the person and of the estate of Buffy Brantley.

                                                     12
as conservator in light of possible conflicts of interest in handling Buffy's estate; require a quarterly

accounting of the estate; and conduct further proceedings in accordance with this opinion.

¶25.    AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

     PITTMAN, C.J., SMITH AND WALLER, P.JJ., GRAVES AND DICKINSON, JJ.,
CONCUR. COBB AND EASLEY, JJ., DISSENT WITHOUT SEPARATE WRITTEN
OPINION. DIAZ, J., NOT PARTICIPATING.




                                                   13
