        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2012-CA-00326-COA

DONALD BREEDEN                                                             APPELLANT

v.

WILLIE FAYE BREEDEN BUCHANAN AND                                            APPELLEES
NATIONWIDE PROPERTY & CASUALTY
INSURANCE COMPANY

DATE OF JUDGMENT:                         02/10/2012
TRIAL JUDGE:                              HON. PRENTISS GREENE HARRELL
COURT FROM WHICH APPEALED:                MARION COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   TINA LORRAINE NICHOLSON
ATTORNEYS FOR APPELLEES:                  ANDREA LA’VERNE FORD EDNEY
                                          RICHARD ANTHONY FILCE
                                          ERIK M. LOWREY
                                          JASON RICHARD BUSH
                                          NAKIMULI ONI DAVIS
NATURE OF THE CASE:                       CIVIL - INSURANCE
TRIAL COURT DISPOSITION:                  DISMISSED COMPLAINT AND DENIED
                                          LEAVE TO AMEND COMPLAINT
DISPOSITION:                              AFFIRMED IN PART AND REVERSED
                                          AND REMANDED IN PART: 04/01/2014
MOTION FOR REHEARING FILED:               04/14/2014 - DENIED; AFFIRMED IN PART
                                          AND REVERSED AND REMANDED IN
                                          PART - 02/03/2015
MANDATE ISSUED:

      EN BANC.

      GRIFFIS, P.J., FOR THE COURT:

             MODIFIED OPINION ON MOTION FOR REHEARING

¶1.   This case is before the Court on a motion for rehearing. The motion is denied.

However, the original opinion is withdrawn and substituted with this opinion.

¶2.   This case considers two questions. First, whether the circuit court properly dismissed,
under Mississippi Rule of Civil Procedure 12(b)(6), the claims made by Donald Breeden

against his former wife, Willie Faye Breeden Buchanan, and Nationwide Property &

Casualty Insurance Company. Second, upon dismissal, whether the circuit court properly

denied the plaintiff’s motion for leave to amend the complaint.

                       FACTS AND PROCEDURAL HISTORY

¶3.    Breeden and Buchanan were married on June 21, 2002, in Marion County,

Mississippi. During their marriage, they lived in a home located in Sandy Hook, Marion

County, Mississippi. Effective May 27, 2010, Nationwide sold Breeden a homeowner’s

policy that covered this home. Breeden was the named insured.

¶4.    In July of 2010, Buchanan demanded a divorce from Breeden. Buchanan drafted a

complaint for divorce, a property-settlement agreement, and a quitclaim deed. The property-

settlement agreement and the quitclaim deed transferred Breeden’s interest in the home to

Buchanan. Breeden alleges that Buchanan threatened him with a loaded gun and said she

would shoot him if he did not sign the papers. Breeden signed the complaint for divorce,

the property-settlement agreement, and the quitclaim deed.

¶5.    The joint complaint for divorce was filed on July 7, 2010, in the Chancery Court of

Marion County. On October 5, 2010, Chancellor Eugene L. Fair Jr. signed the judgment of

divorce. The judgment indicated that the parties had attached a property-settlement

agreement.1

¶6.    Shortly after their divorce was final, Breeden moved to Kentucky. Buchanan

       1
       The complaint in the record only includes the first two pages of the divorce
judgment. Neither the signature page nor the property-settlement agreement was attached.

                                            2
remarried and continued to reside in the Sandy Hook home.

¶7.    On April 24, 2011, a fire completely destroyed the home and all of its contents. The

house was a total loss. The home was covered by the Nationwide policy.

¶8.    Nationwide received timely notice of the loss. Nationwide did not pay Breeden for

the loss. Nationwide claimed that Breeden was not due any payment under the policy of

insurance because he did not have an ownership interest in the home as of April 24, 2011.

Although Buchanan was not a named insured on the policy, Nationwide communicated with

Buchanan about the claim and made payments to her.2

¶9.    On August 17, 2011, Breeden filed a complaint in the Marion County Circuit Court

against Buchanan and Nationwide.

¶10.   On September 19, 2011, Buchanan filed a motion to dismiss under Mississippi Rule

of Civil Procedure 12(b)(6). In the motion, Buchanan gave three reasons to dismiss the

complaint. First, she asserted that the intentional-tort claims were barred by a one-year

statute of limitations. Second, she asserted that the claims that sought to set aside the

property- settlement agreement were subject to the jurisdiction of the chancery court, not the

circuit court. Third, she asserted that the remaining contractual claims should be dismissed

because Breeden had no insurable interest in the marital home. On October 18, 2011,



       2
          On June 28, 2011, Nationwide distributed the dwelling coverage limit of $295,400.
The amount of $123,384.84 was paid to the lienholder, the Small Business Administration,
and the balance of $172,015.16 was paid to Buchanan. The actual cash value for the
damage to the personal property in the home was $132,100.40. Of that amount, Nationwide
made an advance payment of $4,000 to Buchanan. The remaining balance, $128,100.40,
was deposited into the registry of the court after Nationwide received notice of this
litigation.

                                              3
Nationwide filed a motion to dismiss on similar grounds.

¶11.   On November 9, 2011, Breeden filed a motion for leave to file a first amended

complaint. In the amended complaint, Breeden sought to withdraw his claim that the

property-settlement agreement should be set aside, add claims for battery and conversion

against Buchanan, and detail more facts to support the claims against Nationwide.

¶12.   On February 13, 2012, the circuit court entered the following order:

       The court heard oral argument on various motions, and after having reviewed
       the pleadings on file, the motions and accompanying memoranda in support
       thereof, after due deliberation and consideration[,] finds that the separate
       defendants’ motions to dismiss are well taken and should be granted, and
       [Breeden’s] motion to file [an] amended complaint should be denied.

       The court finds that the pleadings reflect no insurable interest in [Breeden] in
       and to the policy or to the proceeds[,] as [Breeden] transferred and conveyed
       his right, title, and interest in and to the insured property to his former spouse,
       [Buchanan], as part and parcel of their divorce proceeding and property
       settlement agreement, this transfer and conveyance having transpired several
       months before the occurrence of the loss[,] which is the subject matter of
       [Breeden’s] complaint.

       Finding that [Breeden] had no insurable interest in and to the property – and
       thus no entitlement to any of the insurance proceeds [–] it follows that
       Nationwide did not breach the insurance contract by failing to pay [Breeden]
       any insurance proceeds from the loss, nor [did it] act in bad faith.

       [Breeden’s] complaint against the defendant included allegations of assault,
       intentional and negligent infliction of emotional distress, and duress designed
       to induce him to sign the marital dissolution documents, property settlement
       agreement, and the deed conveying title to the insured property. [Breeden’s]
       complaint was filed on August 17, 2011. The marital dissolution and property
       settlement documents and deed were signed by [Breeden] in July 2010, and
       [Breeden] states in his pleading that, immediately after signing the papers[,]
       it was demanded that he vacate the property. In response to this demand[,] he
       vacated the property . . . . It is plain from the face of the pleadings that any
       purported intentional tort occurred in July 2010. As [Breeden] did not file his
       complaint until August 17, 2011, his intentional tort claims are time[-]barred

                                               4
       by [section] 15-1-35 [of the Mississippi Code Annotated (Rev. 2012)].

       IT IS, THEREFORE, ORDERED AND ADJUDGED that separate motions
       to dismiss by the separate defendants, [Nationwide] and [Buchanan,] be . . .
       and the same are hereby GRANTED, and the Plaintiff’s Complaint against the
       separate defendants is hereby dismissed with prejudice.

       IT IS ALSO . . . ORDERED AND ADJUDGED . . . that the Plaintiff’s Motion
       for Leave to File First Amended Complaint . . . be and the same is hereby
       DENIED.

It is from this order that Breeden now appeals.

                                STANDARD OF REVIEW

¶13.    In an appeal of a dismissal of a case under Rule 12(b)(6), we apply a de novo

standard of review. Ralph Walker, Inc. v. Gallagher, 926 So. 2d 890, 893 (¶3) (Miss. 2006).

This Court is “not required to defer to the trial court's judgment or ruling.” Id. at (¶4). “A

Rule 12(b)(6) motion to dismiss for failure to state a claim tests the legal sufficiency of the

complaint.” Rose v. Tullos, 994 So. 2d 734, 737 (¶11) (Miss. 2008). “[T]he allegations in

the complaint must be taken as true[,] and the motion should not be granted unless it appears

beyond reasonable doubt that the plaintiff will be unable to prove any set of facts in support

of her claim.” State v. Bayer Corp., 32 So. 3d 496, 502 (¶21) (Miss. 2010).

¶14.    In the appeal of the denial of a motion to amend, we apply an abuse-of-discretion

standard of review. Pratt v. City of Greenville, 804 So. 2d 972, 976 (¶9) (Miss. 2001). The

circuit court has the discretion to allow an amendment and should freely allow an

amendment, unless the defendant would be prejudiced. Id.

                                       DISCUSSION

       I.     Breeden’s Claims Against Buchanan


                                              5
¶15.   Breeden’s complaint asserted claims against Buchanan for: (1) assault; (2) intentional

and/or negligent infliction of emotional distress; (3) inducement and duress in executing the

property-settlement agreement and deed; (4) wrongful appropriation of insurance funds; (5)

unjust enrichment; and (6) civil conspiracy. The circuit court dismissed all of the claims.

¶16.   The circuit court’s order found “that the pleadings reflect no insurable interest in

[Breeden] in and to the policy or to the proceeds[,] as [Breeden] transferred and conveyed

his right, title, and interest in and to the insured property to his former spouse, [Buchanan],

as part and parcel of their divorce proceeding and property-settlement agreement, this

transfer and conveyance having transpired several months before the occurrence of the loss.”

As a result, the court determined that Breeden no longer had an interest in the property. Also,

the court concluded that the one-year intentional-tort statute of limitations had expired on the

other claims.

                A.    Claim for Negligent Infliction of Emotional Distress

¶17.   Breeden asserted claims for intentional and negligent infliction of emotional distress

against Buchanan. The circuit judge held that these claims were barred by the one-year

statute of limitations in Mississippi Code Annotated section 15-1-35.

¶18.   In Norman v. Bucklew, 684 So. 2d 1246, 1256 (Miss. 1996), the supreme court ruled

that “intentional and/or negligent infliction of emotional distress claims are governed by the

three-year statute of limitations.” Then, in Jones v. Fluor Daniel Services Corp., 32 So. 3d

417, 422 (¶18) (Miss. 2010), the court recognized that it “has been inconsistent in its rulings

on whether an intentional-infliction-of-emotional-distress claim is subject to a one-year



                                               6
statute of limitations under Mississippi Code Section 15-1-35[.]” The court then held:

       Intentional infliction of emotional distress is a tort against the person, as are
       the vast majority of those specifically enumerated in Section 15-1-35 of the
       Mississippi Code. Therefore, a cause of action for intentional infliction of
       emotional distress is “fairly embodied” in the causes of action included in
       Mississippi Code Section 15-1-35. Based on the prior analysis, we hold that
       the tort of intentional infliction of emotional distress is of like kind or
       classification as the torts enumerated in Section 15-1-35, and it too carries a
       one-year statute of limitations. To the extent the Norman case holds
       otherwise, it is expressly overruled.

Jones, 32 So. 3d at 423 (¶26).

¶19.   Breeden’s claims for negligent infliction of emotional distress are subject to the three-

year statute of limitations. See Miss. Code Ann. § 15-1-49 (Rev. 2012). The circuit court

was in error when it determined that Breeden’s claim for negligent infliction of emotional

distress was filed outside of the limitations period. The circuit court’s decision to dismiss

the claim for negligent infliction of emotional distress against Buchanan is reversed and

remanded for further proceedings consistent with this opinion.

              B.     Claims of Intentional Torts

¶20.    Breeden did assert intentional-tort claims against Buchanan for assault and

intentional infliction of emotional distress. Both of these claims are subject to a one-year

statute of limitations. Miss. Code Ann. § 15-1-35. The circuit court determined that,

according to the complaint, the assault was alleged to have occurred in July 2010. The

complaint was filed on August 17, 2011. Thus, section 15-1-35 bars the intentional tort of

assault because it was filed after the limitations period expired.

¶21.   However, the complaint alleged that “[d]uring the entirety of 2010, [Breeden] was



                                               7
physically, psychologically and mentally disabled.” Thus, he argued that the limitations

period should have been tolled under Mississippi Code Annotated section 15-1-59 (Rev.

2012), which reads in pertinent part:

       If any person entitled to bring any of the personal actions mentioned shall, at
       the time at which the cause of action accrued, be under the disability of infancy
       or unsoundness of mind, he may bring the actions within the times in this
       chapter respectively limited, after his disability shall be removed as provided
       by law.

¶22.   Buchanan responds that the complaint does not support a decision to toll the

limitations period. Specifically, she asserts that the complaint does not allege that Breeden

was of unsound mind and contains no reference to tolling the statute. Buchanan argues that

the law is clear that a plaintiff seeking to toll the statute must both invoke the tolling

provision and plead facts to support the claim of tolling. Le Mieux Bros. Corp. v. Armstrong,

91 F.2d 445, 446 (5th. Cir. 1937). Further, Buchanan argues that section 15-1-59 has been

interpreted to mean the person claiming the benefit of the tolling provision must allege and

show he or she is “unable to manage the ordinary affairs of life.” USF&G Co. v.

Conservatorship of Melson, 809 So. 2d 647, 653 (¶23) (Miss. 2002); see also Rockwell v.

Preferred Risk Mut. Ins. Co., 710 So. 2d 388, 391 (Miss. 1998).

¶23.   Buchanan also claims that the pleadings do not evidence Breeden being of an unsound

mind. For example, the complaint alleges that Breeden entered a valid contract of insurance

with Nationwide on May 27, 2010, just thirty-eight days before he signed the divorce

pleadings and deed. Courts have rejected efforts to use the tolling provision where the plain

facts show that the person is capable of managing the ordinary affairs of life, such as hiring



                                              8
an attorney to file a lawsuit. Brumfield v. Lowe, 744 So. 2d 383, 387-88 (¶22) (Miss. Ct.

App. 1999).

¶24.   If the analysis stopped here, we would agree with the circuit court that dismissal was

proper. However, the analysis does not stop here.

¶25.   Mississippi Rule of Civil Procedure 12(b)(6) allows the court to dismiss the action for

failure to state a claim. This decision looks to the legal sufficiency of the complaint. More

importantly, Rule 12(b) also provides that “if the motion is granted, leave to amend shall be

granted in accordance with Rule 15(a).” (Emphasis added). Thus, the Rules contemplate

allowing a plaintiff an opportunity to amend the complaint after the motion to dismiss is

granted.

¶26.   Mississippi Rule of Civil Procedure 15(a) provides that “[o]n sustaining a motion to

dismiss for failure to state a claim upon which relief can be granted, pursuant to Rule

12(b)(6), . . . leave to amend shall be granted when justice so requires . . . .” (Emphasis

added). The Rule also allows a party to amend its pleadings at any time “by leave of court.”

And, most importantly, the Rule provides that “leave shall be freely given when justice so

requires.” The Comment adds:

       Prior to the 2003 amendment of Rule 15(a), a party could, as a matter of right,
       amend within thirty days after losing on Rule 12(b)(6) . . . motions on which
       matters outside the pleadings were not presented. In Poindexter v. Southern
       United Fire Ins. Co., 838 So. 2d 964 (2003), the Supreme Court recognized
       that the rule mandated an opportunity to amend upon dismissal under Rule
       12(b) even though circumstances might be such as would make an amendment
       futile. Recognizing that the federal rule gives no such absolute right to amend,
       it was suggested there that “the better course is to temper [Rule] 15(a)’s
       mandate with the paramount concerns of logic, futility of amendment, and
       judicial economy.” Poindexter, 838 So. 2d at 972, Waller, J., concurring.

                                              9
        Now, [Rule] 15(a) expressly provides that in the event a Rule 12(b)(6) . . .
        motion is granted, leave to amend may be granted by the trial court where
        justice so requires.

The supreme court has also explained this Rule:

        Rule 15(a) declares that leave to amend “shall be freely given when justice so
        requires”; this mandate is to be heeded[.] [I]f the underlying facts or
        circumstances relied upon by a plaintiff may be a proper subject of relief, he
        ought to be afforded an opportunity to test his claim on the merits. In the
        absence of any apparent or declared reason – such as undue delay, bad faith or
        dilatory motive on the part of the movant, repeated failure to cure deficiencies
        by amendments previously allowed, undue prejudice to the opposing party by
        virtue of allowance of the amendment, futility of the amendment, etc. – the
        leave sought should, as the rules require, be “freely given.”

Moeller v. Am. Guar. & Liab. Ins. Co., 812 So. 2d 953, 962 (¶28) (Miss. 2002) (quoting

Estes v. Starnes, 732 So. 2d 251, 252 (¶4) (Miss. 1999)).

¶27.    In Webb v. Braswell, 930 So. 2d 387, 392-93 (¶8) (Miss. 2006), the supreme court

held:

        Motions for leave to amend [a] complaint are left to the sound discretion of the
        trial court; the Supreme Court reviews such determinations under an abuse of
        discretion standard; and, unless convinced that the trial judge abused his/her
        discretion, the Supreme Court is without authority to reverse. Grant or denial
        of [a] motion for leave to amend is within the sound discretion of the trial
        court. Amendments to the pleadings are properly addressed to the discretion
        of the [trial] court. Where the plaintiff filed his motion for amendment of
        declaration setting out its exact terms, and such terms were incorporated into
        an order which quoted the text of the motion and which was filed in the cause
        and entered upon the minutes of the court, the amendment was sufficient, as
        against the defendant's contention that the original declaration should have
        been manually amended by interlineation or otherwise. While the trial court
        has discretion to allow an amendment and should do so freely under the proper
        circumstances, an amendment should not occur when to do so would prejudice
        [the] defendant.

(Internal citations omitted) (quoting Preferred Risk Mut. Ins. Co. v. Johnson, 730 So. 2d 574,



                                              10
579 (Miss. 1998)). “[A]n abuse of discretion standard means the judge's decision will stand

unless the discretion he used is found to be arbitrary and clearly erroneous.” Poole v. Avara,

908 So. 2d 716, 721 (¶8) (Miss. 2005) (citing Miss. Trans. Comm'n v. McLemore, 863 So.

2d 31, 34 (Miss. 2003)).

¶28.     Here, we do not have the benefit of an explanation of this ruling by the circuit court.

Breeden argues that there was no reason to support this decision. Buchanan cites the

principle that the trial court is presumed to be correct unless the record shows otherwise.

Myers v. Miss. Farm Bureau Mut. Ins. Co., 749 So. 2d 1173, 1174 (¶4) (Miss. Ct. App.

1999).

¶29.     Buchanan offers three grounds to support the circuit court’s decision: Breeden failed

to give proper notice; the divorce judgment was final and binding; and the circuit court

lacked subject-matter jurisdiction.

¶30.     We find that the circuit court abused its discretion. Our decision is based primarily

on the principle that Mississippi courts have liberally permitted amended pleadings. See,

e.g., Poindexter, 838 So. 2d at 969 (¶23). Without an explanation by Buchanan as to how

the amendment would be futile, we decline to find such.

¶31.     Having reviewed the proposed first amended complaint, we find that Breeden has

indeed pled additional facts that, if accepted as true, may be sufficient to support the tolling

of the statute of limitations. Solely to determine whether the amendment would be futile, we

have concluded that the intentional-tort claims are sufficiently pled in the first amended

complaint. As a result, we find that the circuit court abused its discretion when it denied the



                                               11
motion for leave to amend. We reverse the circuit court’s decision to dismiss the claims for

assault and intentional infliction of emotional distress against Buchanan and direct the circuit

court to allow Breeden leave to file his first amended complaint as to Buchanan. On remand,

the circuit court shall decide the time period or other limitations necessary for the filing of

the first amended complaint, consistent with Rule 15.

              C.      Breach of Contract and Other Claims

¶32.   Breeden’s complaint also asserted claims against Buchanan for inducement and duress

in executing the property-settlement agreement and deed, wrongful appropriation of

insurance funds, unjust enrichment, and civil conspiracy.

¶33.   As to the claim against Buchanan for inducement and duress in executing the

property-settlement agreement and deed, the circuit court included this claim in the paragraph

that dismissed the claims for intentional torts.       Specifically, the circuit court ruled:

“[Breeden’s] complaint against [Buchanan] included allegations of . . . duress designed to

induce him to sign the marital dissolution documents, property settlement agreement, and the

deed conveying title to the insured property.”

¶34.   Breeden claims that the dismissal order did not address his breach-of- contract claims.

He argues that the claim for inducement and duress in the execution of the property-

settlement agreement and deed was a breach-of-contract claim, and not a tort claim, where

he sought to set aside the property-settlement agreement and deed as void.

¶35.    In his brief, Breeden admits that he alleged facts that would support the tort of

menace, and menace is an intentional tort with a one-year limitations period under section



                                              12
15-1-35. However, Buchanan has cited no authority for the proposition that a claim to void

a judgment for misconduct in the inducement or duress in the signing of a contractual

agreement is an intentional tort subject to the one-year limitation period. As a result, we find

no legal authority for the circuit court’s decision to dismiss such claims under section

15-1-35. As such, we would treat these claims as discussed with the other intentional torts

above.

¶36.     We also note that Breeden attempted to voluntarily withdraw this claim in circuit

court. In his response to Buchanan’s motion to dismiss, Breeden stated:

         [Breeden’s] [c]omplaint demanded that the Property Settlement Agreement
         and Deed be set aside. [Breeden] asserts that the Chancery Court has
         exclusive jurisdiction over those issues. [Breeden] disagrees that the Circuit
         Court lacks jurisdiction of those claims, but agrees that he may assert them in
         Chancery Court. [Breeden] [states he would withdraw] those claims but
         reserve[s] the right to assert them in Chancery Court. In fact, [Breeden’s]
         proposed First Amended Complaint withdraws [Breeden’s] claim that the
         property settlement agreement and deed should be set aside.

However, the amended complaint was never filed.

¶37.     Because we have determined that it was error for the circuit court to not allow

Breeden leave to file the first amended complaint, despite Breeden’s attempt to withdraw this

claim, we will remand this claim to be considered as pled in the first amended complaint.

¶38.     The circuit court’s February 13, 2012 order does not specifically address the claims

against Buchanan for wrongful appropriation of insurance funds, unjust enrichment, and civil

conspiracy. Yet the order stated that the motions to dismiss are granted “and the Plaintiff’s

Complaint against the separate defendants is hereby dismissed with prejudice.” We find no

legal basis for the circuit court to have dismissed Breeden’s claims against Buchanan for

                                               13
wrongful appropriation of insurance funds, unjust enrichment, or civil conspiracy. These

claims are not intentional torts and are not subject to the one-year limitations period. To the

extent these claims were dismissed, we reverse the circuit court’s dismissal and remand the

case for further proceedings consistent with this opinion.

       II.    Breeden’s Claims Against Nationwide

¶39.   Breeden’s complaint asserted claims against Nationwide for: (1) breach of contract;

(2) bad-faith denial of insurance benefits; (3) intentional and/or negligent infliction of

emotional distress; and (4) civil conspiracy with Buchanan to deprive Breeden of insurance

proceeds. The circuit court dismissed all of the claims.

¶40.   Buchanan’s claims against Nationwide may not be considered in the same perspective

as the claims against Buchanan. Instead, we must first consider whether the circuit court

erred by not converting the motion to dismiss to a motion for summary judgment because the

court considered matters outside the complaint.

              A.     Whether the court converted the motions to dismiss to
                     motions for summary judgment, without proper notice
                     and a hearing.

¶41.   Breeden argues that the circuit court violated Mississippi Rule of Civil Procedure

12(b)(6) and improperly considered matters outside of the complaint. By doing so, Breeden

claims that the court improperly converted the motion to dismiss under Rule 12(b)(6) to a

motion for summary judgment under Rule 56, but failed to follow the procedural

requirements of Rule 56(c).3

       3
          There are several cases where the supreme court and this Court have determined
that the trial court has erred in converting a Rule 12 motion to a Rule 56 motion without

                                              14
¶42.     In an appeal of a dismissal of a case under Rule 12(b)(6), we apply a de novo

standard of review. Ralph Walker, Inc., 926 So. 2d at 893 (¶3). This Court is “not required

to defer to the trial court's judgment or ruling.” Id. at (¶4). “A Rule 12(b)(6) motion to

dismiss for failure to state a claim tests the legal sufficiency of the complaint.” Rose, 994

So. 2d at 737 (¶11). “[T]he allegations in the complaint must be taken as true[,] and the

motion should not be granted unless it appears beyond reasonable doubt that the plaintiff will

be unable to prove any set of facts in support of her claim.” Bayer Corp., 32 So. 3d at 502

(¶21).

¶43.     A Rule 12(b)(6) motion requires that we look at the allegations of the complaint. The

facts included above were taken from the complaint. In the record before us, Breeden

attached the following documents to the complaint:

         C      Exhibit “A” – identified as “the declarations pages of the policy” (three
                pages from the Nationwide policy).

         C      Exhibit “B” – the complaint for divorce filed on July 7, 2010.

         C      Exhibit “C” – identified as the “Judgment for Divorce incorporating
                property settlement agreement” (Exhibit “C” only includes the first two
                pages of the judgment).

Nationwide’s motion to dismiss included several exhibits:

         C      Exhibit “A” – Nationwide’s memorandum of authorities.

         C      Exhibit “B” – the entire divorce judgment (identical to Complaint
                Exhibit “C,” but with a copy of the chancellor’s signature page).



following the requirements of Rule 56. See Sullivan v. Tullos, 19 So. 3d 1271, 1276 (¶19)
(Miss. 2009); Lopez v. McClellan, 2008-CA-01857-COA, 2010 WL 1664937, at *4 (¶19)
(Miss. Ct. App. Apr. 27, 2010).

                                               15
       C      Exhibit “C” – the complaint for divorce (identical to Complaint Exhibit
              "B").

       C      Exhibit “D” – the complete Nationwide insurance policy (Complaint
              Exhibit “A” and the additional pages of the policy).

       C      Exhibit “E” – a copy of the complaint. (This exhibit also included, as
              part of the judgment of divorce, the entire Agreement for Settlement of
              Property Rights and Maintenance signed by Buchanan and Breeden.)

       C      Exhibit “F” – another copy of the Agreement for Settlement of Property
              Rights and Maintenance signed by Buchanan and Breeden.

¶44.   The circuit court granted the motions to dismiss and dismissed Breeden’s complaint.

This was a final, appealable judgment.

¶45.   As to Nationwide’s motion, Breeden argues that the motion included some exhibits,

but they were the same as the exhibits attached to the complaint. However, Breeden

contends that the complaint only had as an attachment “the first few pages of the insurance

policy, [and] Nationwide attached the entire insurance policy.” Thus, Breeden claims that

the circuit court converted the Rule 12(b)(6) motion to a Rule 56 motion because it

considered the entire insurance policy and not just the declarations pages, which Breeden

chose to attach to the complaint.

¶46.   In Sennett v. United States Fidelity & Guaranty Co., 757 So. 2d 206 (Miss. 2000), the

supreme court considered a Rule 12(b)(6) dismissal of a third-party complaint. The Sennetts

claimed that “the [circuit] court, by considering the underlying commercial general liability

insurance policy, looked outside the pleadings.” Sennett, 757 So. 2d at 209 (¶7). The circuit

court considered the plaintiff’s wrongful-death complaint against the Sennetts and the

insurance policies attached to the motion to dismiss the third-party complaint to dismiss the

                                             16
insurance carrier. Id. at (¶8). The court ruled:

       A major factor directing courts to look only towards the pleadings in deciding
       a 12(b)(6) motion is the concern that statements outside of the complaint will
       not provide adequate notice to a plaintiff. However, [w]here plaintiff has
       actual notice of all of the information in the movant's papers and has relied
       upon these documents in framing the complaint, the necessity of translating a
       Rule 12(b)(6) motion into one under Rule 56 is largely dissipated.

Sennett, 757 So. 2d at 209 (¶10) (quoting Cortec Indus. v. Sum Holding, L.P., 949 F.2d 42,

48 (2d Cir. 1991)) (internal quotation marks omitted). The court then determined that the

insurance policy excluded coverage alleged in the Sennett’s third-party complaint and

affirmed the dismissal of the case. Id. at 214 (¶28).

¶47.   This holding was questioned in Bayer Corp., 32 So. 3d at 503-04 (¶¶22-25), where

the court held:

       Notwithstanding this Court's longstanding application of Rule 12(b), Bayer
       relies on Sennett v. United States Fidelity and Guaranty Company, 757 So. 2d
       206 (Miss. 2000), asserting that a trial court may consider matters outside the
       pleadings when ruling on a Rule 12(b)(6) motion. . . . The Court noted that a
       primary purpose for limiting the review of a Rule 12(b)(6) motion to the face
       of the complaint is that considering matters outside the pleadings might
       deprive the plaintiffs of adequate notice of an affirmative defense, and that if
       a plaintiff relies upon the extrinsic documents in framing his or her complaint,
       the concern for adequate notice is “largely dissipated.”

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

       However, rather than adhering to the reasoning in Sennett, this Court has
       affirmed its allegiance to the rule limiting review of a Rule 12(b)(6) motion to
       the face of the complaint. . . .

       [T]he trial court considered matters outside the pleadings when it took into

                                             17
       account the 2001 Settlement Agreement. Having done so, the trial court was
       required to convert Bayer's Rule 12(b)(6) motion into a Rule 56 motion for
       summary judgment. The record shows that the trial court failed to do so,
       depriving the State of actual notice of its intent to rule on the matter as a
       motion for summary judgment. This Court's recent interpretation of Rule
       12(b)(6) . . . and a plain reading of Rule 12(b) establish this as error.

(Internal citations omitted).

¶48.   It is important to note that the complaint against Bayer did not allege a breach of the

2001 settlement agreement, and it did not allege that the 2001 settlement agreement was the

basis for the claims asserted. Bayer Corp., 32 So. 3d at 498 (¶5). Instead, the state sued

Bayer for fraud, and Bayer claimed the state had failed to properly plead fraud with

particularity, as required by Mississippi Rule of Civil Procedure 9(b). Bayer Corp., 32 So.

3d at 498 (¶5). After review, the special master determined that the 2001 settlement

agreement was a release of the claims asserted by the state. Id. at 498-99 (¶6).

¶49.   Breeden’s complaint specifically pled that there were two important documents that

were central to his claim. First, Breeden attempted to attach the final judgment of divorce.

The judgment expressly stated that an executed property-settlement agreement was attached.

Yet Breeden did not attach a complete copy of the entire judgment; he apparently omitted the

signature page and the entire property-settlement agreement. Second, Breeden’s complaint

sought to enforce the insurance policy against Nationwide. Breeden attached a part of, but

not all of, the insurance policy. In fact, he only attached “the declarations pages of the

policy.” The complete copies of these documents were attached to the motions to dismiss.

¶50.   Mississippi Rule of Civil Procedure 8(a)(1) requires that “a pleading which sets forth

a claim for relief . . . shall contain a short and plain statement of the claim showing that the

                                              18
pleader is entitled to relief . . . .” Next, Mississippi Rule of Civil Procedure 10(d) further

provides that “[w]hen any claim . . . is founded on . . . [a] written instrument, a copy thereof

should be attached to or filed with the pleading unless sufficient justification for its omission

is stated in the pleading.” (Emphasis added).4

¶51.   Breeden claims that the circuit judge considered “matters outside the pleadings.”

However, had Breeden simply attached a complete and correct copy of the documents to his

complaint, this would not be an issue. We conclude that the legal principle in Bayer Corp.

does not apply here. Buchanan and Nationwide did not ask the circuit judge to rely on

“matters outside the pleadings.” Instead, they merely asked the circuit judge to consider the

complete and correct copy of documents Breeden himself purported to attach to the

complaint.

¶52.   The United States Court of Appeals for the Seventh Circuit has held:

       A plaintiff is under no obligation to attach to her complaint documents upon
       which her action is based, but a defendant may introduce certain pertinent
       documents if the plaintiff failed to do so. Documents that a defendant attaches
       to a motion to dismiss are considered part of the pleadings if they are referred
       to in the plaintiff's complaint and are central to her claim.

Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993). This

authority is too logical to ignore.

¶53.   Therefore, we find that a motion to dismiss for failure to state a claim limits the

matters that the trial court may consider. However, the court may certainly consider the



       4
         The Advisory Committee Historical Note states that “[e]ffective April 13, 2000,
Rule 10(d) was amended to suggest, rather than require that documents on which a claim
or defense is based be attached to a pleading.” (Emphasis added).

                                               19
contents of the complaint, the documents attached to the complaint, and the documents that

are referred to in the complaint if they are central to the plaintiff’s claim, even though they

are not attached to the complaint. Here, Buchanan’s complaint sought to enforce the terms

of the insurance policy, and only a few pages of the policy were attached. Buchanan may

not complain that it was error for the court to consider the entire policy in the motion to

dismiss.

¶54.   We find that the circuit judge properly considered the motion to dismiss, consistent

with Mississippi Rule of Civil Procedure 12(b)(6).

              B.     Whether the court erred in granting the motions to
                     dismiss and denying the motion for leave to amend.

¶55.   Previously, we found that the circuit court abused its discretion and committed

reversible error by not allowing Breeden leave to amend his complaint. The basis for that

ruling was that the first amended complaint would not be futile. The same result is not

accorded the claims against Nationwide.

                     i.      Claims for Intentional and/or Negligent
                             Infliction of Emotional Distress

¶56.   As discussed above, the statute of limitations would not be a sufficient ground to

dismiss Breeden’s claims against Buchanan. However, the circuit court’s order also

dismissed Breeden’s claims against Nationwide based on the statute of limitations.

¶57.   An appellate court may affirm a trial court’s judgment if it finds that the trial court

reached the right result despite relying on flawed or erroneous premises. Mason v. S. Mortg.

Co., 828 So. 2d 735, 738 (¶15) (Miss. 2002). Here, we find that the claims for intentional



                                              20
and/or negligent infliction of emotional distress against Nationwide may be dismissed for

failure to state a claim. M.R.C.P. 12(b)(6).

¶58.   First, the tort of intentional infliction of emotional distress requires that the

defendant's conduct must “evoke outrage or revulsion.” Leaf River Forest Prods., Inc. v.

Ferguson, 662 So. 2d 648, 658 (Miss. 1995). In Jenkins v. City of Grenada, 813 F. Supp.

443, 446 (N.D. Miss. 1993), the court ruled that “meeting the requisites of a claim for

intentional infliction of emotional distress is a tall order in Mississippi.”

¶59.   Here, the complaint and the first amended complaint make such allegations against

Buchanan but do not make sufficient allegations against Nationwide. The complaint alleged

that Nationwide failed to pay Breeden the insurance proceeds, delayed the claim, refused to

discuss it with him, and provided information to Buchanan, who was not a party to the

contract. The complaint, as a matter of law, has failed to plead any such conduct that would

constitute the tort of intentional infliction of emotional distress against Nationwide. As a

result, Breeden’s claim for intentional infliction of emotional distress against Nationwide was

properly dismissed for failure to state a claim under Rule 12(b)(6).

¶60.   Second, the tort of negligent infliction of emotional distress requires that Breeden

must plead and prove “some sort of injury or demonstrable harm, whether it be physical or

mental, and that harm must have been reasonably foreseeable to the defendant.” Am.

Bankers' Ins. Co. of Fla. v. Wells, 819 So. 2d 1196, 1208 (¶40) (Miss. 2001). For Breeden

“to recover for mental anguish unaccompanied by demonstrable physical or mental injury,

the defendant's conduct must be malicious, intentional, willful, wanton, grossly careless,



                                               21
indifferent or reckless.” Id.

¶61.   Just as with the intentional-infliction-of-emotional-distress claim, the complaint and

the first amended complaint make such allegations against Buchanan but do not make such

allegations against Nationwide. The complaint, as a matter of law, has failed to plead any

such conduct that would constitute the tort of negligent infliction of emotional distress

against Nationwide. As a result, Breeden’s claim for intentional infliction of emotional

distress against Nationwide was properly dismissed for failure to state a claim under Rule

12(b)(6).

                      ii.       Claims for Breach of Contract, Bad-Faith
                                Denial of Insurance Benefits, and Civil
                                Conspiracy

¶62.   Breeden’s claims for breach of contract, bad-faith denial of insurance benefits, and

civil conspiracy are based on the insurance policy. The circuit court ruled that Breeden had

no “insurable interest” in the Nationwide policy and had no right to the proceeds of the

policy. Specifically, the circuit court ruled:

       The court finds that the pleadings reflect no insurable interest in [Breeden] in
       and to the policy or to the proceeds[,] as [Breeden] transferred and conveyed
       his right, title, and interest in and to the insured property to his former spouse,
       [Buchanan], as part and parcel of their divorce proceeding and property
       settlement agreement, this transfer and conveyance having transpired several
       months before the occurrence of the loss[,] which is the subject matter of
       [Breeden’s] complaint.

       Finding that [Breeden] had no insurable interest in and to the property – and
       thus no entitlement to any of the insurance proceeds [–] it follows that
       Nationwide did not breach the insurance contract by failing to pay [Breeden]
       any insurance proceeds from the loss, nor [did it] act in bad faith.

¶63.   Breeden’s brief does not assert that the circuit court erred in the dismissal of the

                                                 22
complaint, which included claims for bad faith or civil conspiracy. These claims are only

mentioned in the brief as claims asserted in the complaint. Breeden does not cite any

authority or argue that it was error to dismiss these claims. Mississippi caselaw has

consistently held that the “[f]ailure to cite any authority is a procedural bar, and [a reviewing

court] is under no obligation to consider the assignment.” Taylor v. Kennedy, 914 So. 2d

1260, 1262 (¶4) (Miss. Ct. App. 2005) (citation omitted).

¶64.   Breeden argues that the circuit court was in error to determine that he had no insurable

interest in the home. The home, which was Breeden’s and Buchanan's marital residence, was

insured under a Nationwide homeowner’s insurance policy. The policy was effective from

May 27, 2010, to May 27, 2011. The policy insured the home and its contents. At the

beginning of the policy period, May 27, 2010, both Breeden and Buchanan had an insurable

interest in the home because they were married and lived together in the home. The policy

provided that the spouse of the named insured who resides at the same premises is covered

as an insured. Based on the allegations of the complaint, the documents attached to the

complaint, and Nationwide’s motion, the circuit judge determined that Breeden did not have

an insurable interest in the home at the time of the fire loss.

¶65.   The fire loss occurred in April 2011. At that time, Breeden did not have an insurable

interest in the home. Breeden’s complaint did not plead that he had any interest in the home

at the time of the loss. Instead, the factual allegations of the complaint indicated that he did

not have any ownership interest in the home at the time of the loss.

¶66.   In State Farm Fire & Casualty Co. v. Ramsey, 719 F. Supp. 1337, 1339 (S.D. Miss.



                                               23
1989), State Farm insured Ramsey's home under a homeowner's policy, but the home was

foreclosed on in 1987 and deeded to Tower Loan. Nevertheless, Ramsey remained in the

home. Three months later, the home was destroyed by fire. Id. The homeowner’s policy

provided that State Farm “shall not be liable to the insured for an amount greater than the

insured’s interest.” Id. Based on this provision, State Farm argued that because of the

foreclosure sale and trustee's deed, “Tower had the only insurable interest in the dwelling at

the time of the fire[;] [thus] Willie and Georgia Ramsey . . . had no insurable interest.” Id.

The court held that the named insured and his wife, who had moved out of the home, were

not entitled to insurance proceeds for the dwelling because at the time of the fire loss, neither

of them had an insurable interest in the property. Id. at 1341-42. The court reasoned that “it

is clear that after the foreclosure sale by Tower [Loan] on June 18, 1987, Tower [Loan] was

the sole owner of the dwelling[,] and neither Georgia Ramsey nor Willie Ramsey had an

insurable interest in the property. Consequently, neither is entitled to recover under the

dwelling provisions of the subject policy.” Id.

¶67.   As to his personal property, Breeden did not plead in the complaint that he had any

personal-property items in the home at the time of the fire. The property-settlement

agreement between Breeden and Buchanan provided that Buchanan would receive the home.

It also gave Breeden specific personal property. The complaint does not allege whether any

of these items were left at the home.

¶68.   Breeden argues that if the property-settlement agreement and deed were set aside,

Breeden would be the legal owner of the insured dwelling and its contents, and he would also



                                               24
have a homestead interest in the property. Breeden is correct with this argument. As to

Nationwide, this would not entitle Breeden to any recovery. As to the circuit court’s order

of dismissal, Nationwide had paid all of the proceeds due under the homeowner’s insurance

policy. Nationwide had paid the mortgage lender, Buchanan, and had interpled the balance

with the court.

¶69.   Based on the complaint and the accompanying documents, there was simply nothing

further that Nationwide owed under the insurance policy. As a result, we find no reason to

disagree with or reverse the circuit court’s legal conclusion as it relates to Nationwide.

Hence, as to Nationwide, we find no reversible error in the circuit court’s order of dismissal.

It is therefore affirmed in part as it relates to Nationwide’s dismissal.

¶70. THE JUDGMENT OF THE MARION COUNTY CIRCUIT COURT IS
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF
THIS APPEAL ARE DIVIDED EQUALLY BETWEEN THE APPELLANT AND
THE APPELLEES.

     LEE, C.J., BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR.
IRVING, P.J., CONCURS IN PART AND DISSENTS IN PART WITHOUT
SEPARATE WRITTEN OPINION. JAMES, J., DISSENTS WITH SEPARATE
WRITTEN OPINION. CARLTON AND FAIR, JJ., NOT PARTICIPATING.

       JAMES, J., DISSENTING:

¶71.   I find that the circuit court lacked complete subject-matter jurisdiction over this

matter; thus, the circuit court erred in dismissing Breeden’s claim with prejudice, rather than

dismissing the claim without prejudice or transferring the case to the chancery court.

Because I find the jurisdictional issue to be dispositive, I would reverse and remand this case

to the Chancery Court of Marion County. Therefore, I respectfully dissent.


                                              25
       I.     Jurisdiction

¶72.   I find that the circuit court lacked complete jurisdiction over the subject matter in this

case and inappropriately split the cause of action. Therefore, I would reverse.

¶73.   Jurisdiction is a question of law, which appellate courts review de novo. Hogrobrooks

v. Progressive Direct, 858 So. 2d 913, 916 (¶9) (Miss. Ct. App. 2003). Jurisdiction is “[a]

court’s power to decide a case or issue a decree.” Black’s Law Dictionary 927 (9th ed.

2009). Complete jurisdiction is a court’s power to decide matters presented to it and to

enforce its decisions. Id. Personal jurisdiction is “[a] court’s power to bring a person into

its adjudicative process.” Id. at 930. Whereas subject-matter jurisdiction is “jurisdiction

over the nature of the case and the type of relief sought[.]” Id. Subject-matter jurisdiction

is a question of the court’s authority to entertain and proceed with a case. Bullock v.

Roadway Express Inc., 548 So. 2d 1306, 1308 (Miss. 1989).

¶74.   Splitting a cause of action is “[s]eparating parts of a demand and pursuing it

piecemeal; presenting part of a claim in one lawsuit, leaving the rest for a second suit.”

Black’s Law Dictionary 1531 (9th ed. 2009). This practice has long been considered

procedurally impermissible. Mississippi is among the majority of states that do not allow

splitting a cause of action. Alexander v. Elzie, 621 So. 2d 909, 910 (Miss. 1992) (citing

Kimball v. Louisville & N. R. Co., 94 Miss. 396 (1909)). Res judicata and the issue of

splitting a cause of action are closely related. Id. (citing Rosenthal v. Scott, 150 So. 2d 433,

436 (Fla. 1963)).

¶75.   In the present case, the circuit court had jurisdiction over the parties, but it did not



                                              26
have complete jurisdiction over the subject matter. This resulted in claim-splitting because

the circuit court did not have jurisdiction to hear part of the case that had been litigated in

chancery court and needed to be reopened according to Breeden.5 Whether Breeden entered

into the property-settlement agreement under duress, and the validity and enforceability of

the property-settlement agreement, are matters exclusively within the jurisdiction of the

chancery court.6 See Miss. Const. art. 6, § 159 (stating that the “chancery court shall have


       5
         Although Breeden did not raise this issue in his original brief before this Court,
Breeden did argue in supplemental briefing that the chancery court, which originally
presided over the property-settlement agreement, was in the best position to preside over the
matter. I would further note that “the question of subject-matter jurisdiction may be raised
at any time.” B.A.D. v. Finnegan, 82 So. 3d 608, 614 (¶23) (Miss. 2012). Article 6,
Section 147 of the Mississippi Constitution provides that the appellate court “may remand
[a case] to that court which, in its opinion, can best determine the controversy.” Thus,
because the chancery court exercises exclusive jurisdiction over the subject matter relating
to divorce, including any change to the divorce decree, I would remand this case to the
chancery court.
       6
       I note that, on the same day that Breeden and Buchanan filed for divorce, the parties
executed a notarized but unfiled document, which read as follows:

       WILLIE FAYE BREEDEN, and DONALD WAYNE BREEDEN, do hereby
       agree to allow [Donald] to live in [the] home at 158 Mt. Bethel Road, Sandy
       Hook, Mississippi[,] until July 21, 2010[,] and to leave his property from our
       [d]ivorce [p]roperty [s]ettlement agreement at 158 Mt. Bethel Road, Sandy
       Hook, Mississippi 39478[,] until [the] [d]ivorce [d]ecree is [f]inal but may be
       removed prior to divorce at his discretion. Property will remain in [the] same
       condition that it appear[ed] on this the 7th day of July 2010 until removed
       from [the] home. If any disasters were to occur to [the] home and personal
       belonging[s] before [the] divorce is final[,] Donald will be entitled to 30% of
       [the insurance for the home content only].

      This unfiled document was executed the same day as the property-settlement
agreement, but it was not a part of the final judgment of divorce or the property-settlement
agreement. This document was merely attached as an exhibit to an unfiled first amended
complaint in circuit court. Further, the parties’ property-settlement agreement stated that it
was “a mutually acceptable settlement of all property rights between them[.]” (Emphasis

                                              27
full jurisdiction in . . . [a]ll matters in equity [and] [d]ivorce and alimony”); see also Rogers

v. Eaves, 812 So. 2d 208, 211 (¶15) (Miss. 2002) (noting that all “issues of divorce,

alimony[,] and other related proceedings are all clearly within the subject matter jurisdiction

specifically granted to our chancery courts”); see also Miss. Code Ann. § 9-5-81 (Rev. 2002)

(stating that in addition to the matters conferred upon the chancery court by our constitution,

the chancery court shall have “jurisdiction of all cases transferred to it by the circuit court or

remanded to it by the supreme court; and such further jurisdiction . . . [as] provided by law”).

Therefore, the circuit court erred in ruling on these issues and proceeding to rule on the issue

of Breeden’s insurable interest.

¶76.   Mississippi Rule of Civil Procedure Rule 12(h)(3) provides that if “the court lacks

jurisdiction of the subject matter, the court shall dismiss the action or transfer the action to

the court of proper jurisdiction.” Here, complete jurisdiction was in the Marion County

Chancery Court. In B.A.D. v. Finnegan, 82 So. 3d 608, 614 (¶27) (Miss. 2012), our supreme

court held that it was error to dismiss a case with prejudice for lack of subject-matter

jurisdiction. Under Article 6, Section 147 of the Mississippi Constitution,7 this Court will


added). Therefore, I would refer this document back to chancery court for its consideration,
if any, on remand.
       7
           Article 6, Section 147 of the Mississippi Constitution states:

       No judgment or decree in any chancery court or circuit court rendered in a
       civil case shall be reversed or annulled on the ground of want to jurisdiction
       to render said judgment or decree, from any error or mistake as to whether the
       cause in which it was rendered was in equity or common-law jurisdiction; but
       if the Supreme Court shall find error in the proceedings other than as to
       jurisdiction, and it shall be necessary to remand the case, the Supreme Court
       may remand it to that court which, in its opinion, can best determine the

                                               28
not reverse for the sole reason that a plaintiff has misjudged his forum. White v. Willis, 111

Miss. 417, 71 So. 737, 737 (1916). There must be causes independent of jurisdiction as to

whether the case is for equity or law, and where a party has been denied legal or equitable

rights, a judgment will be reversed, and the case will be sent to the court that is best fitted to

administer justice. Miss. Const. art. 6, § 147; Dilworth v. Fed. Reserve Bank of St. Louis,

170 Miss. 373, 150 So. 821, 824 (1933).

¶77.   Breeden’s rights were denied when the circuit court proceeded with part of the case

that should have been litigated after the chancery court considered the validity of the

property-settlement agreement. Furthermore, transferring the case to the chancery court

pursuant to Rule 12(h)(3) would have been proper in order to avoid interrupting the tolling

of any statute of limitations. In Rayner v. Raytheon Co., 858 So. 2d 132, 134 (¶9) (Miss.

2003), the court held that a dismissal with prejudice indicates a ruling on the merits, which

is not appropriate for lack of jurisdiction. I would find that the circuit court committed

reversible error when it split the cause of action as opposed to dismissing it without prejudice

or transferring it to a court of proper jurisdiction.

       II.     Other Issues

¶78.   Although I find that the jurisdictional issue is dispositive in this case, for the sake of

discussion, I note that I agree with the majority’s finding that the trial court erred in

determining that Breeden’s claim for negligent infliction of emotional distress was filed

outside of the limitations period, and in finding that the circuit court erred when it failed to



       controversy.

                                               29
grant Breeden leave to amend his complaint. However, I find that the circuit court erred in

converting the Rule 12(b)(6) motions to dismiss into Rule 56 motions for summary judgment

without giving Breeden the requisite notice.

¶79.   The majority holds that the circuit court properly considered the motion to dismiss

and, to hold otherwise, would lead to an improper result. I disagree.

¶80.   Rule 12(b) states:

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

¶81.   In the pleadings below, Breeden did not attached the entire policy to his complaint;

instead, he only attached the policy declarations. Later, Nationwide filed the entire policy

as an exhibit to its motion to dismiss, which contained the definitions and information

pertaining to “insurable interest.” It is clear that the circuit court considered matters outside

of the pleadings because it considered the entire policy in determining that Breeden did not

have an insurable interest. Therefore, the motion was converted into one for summary

judgment under Rule 56.8

¶82.   The majority is correct in noting our departure from the rule announced in Sennett v.

United States Fidelity & Guaranty Co., 757 So. 2d 206 (Miss. 2000), where the Mississippi



       8
        The initial notice of hearing set the hearing for October 24, 2011. There was a re-
notice of hearing entered, which set the hearing for November 14, 2011, at 1 p.m.
According to Nationwide and Buchanan, a hearing was held on November 14, 2011, but the
hearing was not on the record, which is why there is no transcript of the proceeding.

                                               30
Supreme Court held that the circuit court could consider insurance policies attached to a

motion to dismiss without converting it into a summary-judgment motion. However, I

disagree with the majority’s finding that the decision in State v. Bayer Corp., 32 So. 3d 496

(Miss. 2010), is not applicable here. In reaffirming its departure from Sennett, the supreme

court has noted that “rather than adhering to the reasoning in Sennett, this Court has affirmed

its allegiance to the rule limiting review of a Rule 12(b)(6) motion to the face of the

complaint.” Delta MK LLC v. Miss. Transp. Comm’n, 57 So. 3d 1284, 1290 (¶16) (Miss.

2011) (emphasis added). In accordance with that decision, review of a Rule 12(b)(6) motion

is limited to the face of the complaint.

¶83.   Upon review of the proceedings below, it is apparent that the circuit court considered

the entire policy that was attached to Nationwide’s motion to dismiss; thus, the motion was

converted into a motion for summary judgment.

¶84.   When a motion to dismiss under Rule 12(b)(6) is converted into a motion for summary

judgment under Rule 56, the nonmoving party must be afforded ten days’ notice of the

court’s intention to conduct a summary-judgment hearing on a date certain. See Delta MK,

57 So. 3d at 1289 (¶13). Here, Breeden was given no such notice.

¶85.   The circuit court did not have complete jurisdiction of the subject matter, which

resulted in claim-splitting. I find that the circuit court committed reversible error when it

split the cause of action rather than transferring the case to the chancery court pursuant to

Rule 12(h)(3), or dismissing the action without prejudice. Accordingly, I would reverse and

remand this case to the Chancery Court of Marion County.



                                              31
