IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-01789-COA IN THE MATTER OF THE ESTATE OF DELVYN NELSON, DECEASED: ROBERT PERKINS, NATURAL FATHER OF DELVYN NELSON, DECEASED; L.P., A MINOR, BY AND THROUGH HER NEX T FRIEND AND NATURAL MOTHER, JUANITA CROOM; K.P., A MINOR, BY AND THROUGH HER NEX T FRIEND AND NATURAL MOTHER, ATLAY NELSON; AND A.G., A MINOR, BY AND THROUGH HIS NEX T FRIEND AND NATURAL MOTHER, NYKESHIA GREEN APPELLANTS

v. ROSHIDA NELSON APPELLEE DATE OF JUDGMENT: 12/16/2016 TRIAL JUDGE: HON. PATRICIA D. W ISE COURT FROM W HICH APPEALED: HINDS COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT ATTORNEYS FOR APPELLANTS: GINNY Y. KENNEDY CECIL MAISON HEIDELBERG ATTORNEYS FOR APPELLEE: CARLOS EUGENE MOORE ASHLEIGH LAUREN QUINN NATURE OF THE CASE: CIVIL - W RONGFUL DEATH DISPOSITION: AFFIRMED IN PART; REVERSED AND RENDERED IN PART - 07/26/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. CARLTON, J., FOR THE COURT: ¶1. The Hinds County Chancery Court entered an o rder nam ing Roshida Nelson and herm inor daughter Tina 1 as the sole heirs at l aw and wrongf ul death benef

i ciaries of Delvy

n Nelson. The appellants now a ppeal, arguing the f

ollowing assig n me n ts o f error: (1) the chancellor e rred in d eterm inin g t h a t Robert Perkins and his natural children were not wrongf ul death benef

icia r i es, (2) the chancellor erred b y a djudicating Tina as a wrongf ul death benef

i ciary , (3) the wrongf

ul death statute is unconstitutional, and (4) the chancellor erred by f ailing to apply the doctrine of unclean hands sua sponte. ¶2. Upon our review, we f ind that the c hancellor e rred in part in her determ ination of the wrongf ul death b enef

iciaries. Accordingly , we af f irm in part, and reverse and r ender in part. FACTS ¶3. Delvy

n Nelson was born to Roshida Nelson on January 26 , 2 0 1 2

. D e l v y n w a s transf erred to the neonatal i ntensive care unit at t he University of M ississippi Medical Center (UMMC) in Jackson a nd died on June 2, 2012, while a p atient at U MMC. The death certif i cate, dated J uly 3, 2012, stated that Delvy n’s cause of death was “sepsis, f ungal” due

to or as a consequence of “m ultiple organ sy stem f

ailure, cardiopulm onar y d isease, and congenital heart disease.” ¶4. Af ter Delvy n was born, Roshida f

iled an action to determ ine paternity against Robert Perkins in the D istrict C ourt of S um ter County , Alabam a. Roshida and Perkins were never

m arried, and P e r kins w as not listed on Delvy n’s birth certif

icate. A f ter Roshida f

iled the paternity action, Perkins denied that he was Delvy n ’s n atura l f

a t h e r and requested genetic testing. Perkins f

urther de n i e d p a t e rnity when Roshida sought f inancial support f

rom Perkins

1 We u se a f

i ctitio u s n am e to p ro tect th e p riv acy o f th e m in o r ch ild

. 2through the Social Security Adm inistration. ¶5. Although Delvy

n tragically died bef

ore the parties received the test results, the results revealed that P erkins was Delvy n’s f ather. The results were f iled with the Alabam a court

on June 18, 2012. On that sam e day , Roshida f iled a m otion to d ism iss her action regarding paternity due to D elvy

n’s d eath, and the m otion was granted without objection f rom Perkins. The Alabam a court dism i ssed the action without an adm ission or adjudication of paternity

. ¶6. In D ecem

ber 2 013, Roshida, individually and on behalf of Delvy n’s wrongf

ul death benef iciaries, f iled a m e dical m a lpractice suit ag a i n s t UMMC. The record r ef lects that Roshida did not n a m e Perkins as a plaintif f and s h e d id not notif

y him of t he com m encem ent of the action. The m a lpractice s uit was settled, a nd the settlem e nt proceeds were deposited in the registry of the circuit court pending t he determ i nation of Delvy n’s w ron g d eath benef iciaries. ¶7. On February 26, 2014, R oshida f iled a petition to adjudicate Delvy n’s heirs at law and wrongf ul death benef

iciaries in t he Hinds County Chancery Court, a nd s he published notice of t he petition in The Clarion L edger on April 14, 21, a nd 28, 2014. Perkins acknowledged notice of the petition. ¶8. On February 1 0, 2015, nearly a y ear af ter Roshida f

iled her petition t o a d

j u d i cate Delvy n’s h eirs and w rongf

ul death benef

iciaries, Perkins f

i led a m otion asking the Alabam a district court to am end its order dism issing the action regarding paternity and d eclare h im Delvy n’s f ather. The Alabam a

court granted Perkins’s m o tion. ¶9. Roshida s ubsequently f iled a m otion to set aside the adjudication o f paternity , which

3the Alabam a court granted on August 12, 2015. I n setting aside the adjudication of paternity ,

t h e A labam a court ultim ately held that Perkins was not t he legal f ather of Delvy

n . T h e Alabam a court explained that af ter the original action regarding paternity was dism issed in 2012, no subsequent hearing a ppeared on the docket, “no r w a s e v i d ence of [ Perkins’s] adm ission of p a t e r n i t y p resented to t he [ c]ourt, and [ Perkins] did not adm it p aternity of [ Delvy n ] b y statem e nt i n open [ c]ourt nor b y f iling any docum ent acknowledging paternity of [ Delvy n].” Perkins appealed to the Alabam a Court of Appeals, w hich af f irm ed the district court’s f indings. ¶10. P e r kins t hen f

iled a n answer to Roshida’s February 26, 2014 petition to a d j u d i c a t e D e l v y n ’ s h e irs and wrongf

u l d eath benef

iciaries. In his answer, Perkins alleged that a s Delvy n’s natural f

ather, he and his other m inor children, Lisa, Kim , and Alan, qualif ied as wrongf ul death benef

iciaries. 2 ¶11. The chancellor i n t he instant case entered an order on Decem ber 16, 2016, f

inding that Roshida and Tina wer e D elvy n’s sole heirs a t law and wrongf ul death benef

iciaries. The

c hancellor h eld t hat neither Perkins nor his other m inor children m e t the s t a t u t o r y requirem ents to be determ ined Delvy n’s w r ongf

ul death benef

iciaries a n d t h e r e f

ore they could n ot recover wrongf

ul death benef

its. I t is f rom this order that P erkins, Lisa, Kim , and Alan appeal.
DISCUSSION

2 We u se f

ictitio u s n ame s t o p r o tect th e p riv acy o f t h e m i n o r ch ild ren . L isa is rep resen ted in th is actio n b y h e r n atu ral m o th er, Ju an ita C ro o m . K im is rep resen ted in th is actio n b y h er n atu ral m o th er A tlay N elso n . A lan is r ep resen ted in th i s actio n b y h is n atu ral m o th e r N y

k esh i a G reen . 4I. Determ ination of Wrongful Death Beneficiaries

¶12. In this appeal, P erkins, Lisa, Kim , and Alan a rgue that t he chancellor’s determ ination of wron gf

ul death b e nef

iciaries was clearly erroneous. “W e apply a lim i ted s tandard of review to appeals f

rom chancery court.” In re Estate of Ivy , 1 21 So. 3d 226, 232 (¶29) (Miss.
Ct. App. 20 1 2 )

. U p o n r e v iew, “[ w]e w ill n ot disturb the f actual f indings of a chancellor unless s uch f

indings are m anif

estly wrong or clearly erroneou s.” Id

. (internal quotation

m ark om itted). W e apply a de novo standard of review to questions of

law. Id

. ¶13. Mississippi’s wrongf ul death statute, Mississippi Cod e A n n o tated section 11-7-13 (Rev. 2004), provides:
W h enever t he death of any person . . . shall be caused by a n y r eal, w rongf u l or negligent a ct or om ission

. . . as would, if d eath had not ensued, have entitled the party injured or dam aged th e r e b y t o m aintain an action and recover dam ages in respect thereof

. . . and such deceased p erson shall have lef t a . . . f ather or m other, o r s i s ter, or brother, the person o r corporation, or both t hat would have b een liable if death had not ensued

. . . s h all b e liable f or dam a ges, notwithstanding the death, and the f act that d eath wa s instantaneous shall in no case af

f ect t he right of recovery . The action f o r such dam ages m ay be brought in the nam e of the personal representative of the d eceased person . . . f or the benef

it of all persons entitled under the law to recover, . . . o r by the parent f or t he death of

a child . . . or by

a sister f o r the death of a brother

. . . or a brother f

or the death of a brother, or all parties interested m a y join in the suit, a nd there shall be but one (1) suit f or t he s am e death which shall ensue f or the benef it of a ll parties concerned, but t he determ i nation of such suit shall not b a r a n o t h e r action unless it be decided on its m erits. Except as o therwis e provided in Section 11-1-69, in such action t he p a r t y or p arties suing shall recover such dam ages allowable by law as the jury

m ay determ ine to be just, taking into consideration all the d am ages of every kind to the decedent and all dam ages of

every kind to any

and all parties interested in the suit.

. . . . In an action brought pursuant to t he provisions o f this section by the

. . . f ather, m other, sister or brother of the deceased

. . . such p arty or parties m ay recover

5as dam ages property dam ages and f uneral, m e dical or other related expenses incurred by o r f

or the deceased as a result of such wrongf ul or negligent act or om ission

. . . , whether an e state has been opened or n ot. Any am ount, but only such an am ount, a s m ay be recovered f or property d am age, f

uneral, m edical or other related expenses shall be subject only to the pay

m ent of the debts or liabilities of the deceased f or property dam ages, f

uneral, m edical o r o ther rel ated expenses. All other dam ages recovered under the provisions of this sec t i o n shall n ot be s ubject to the pay m ent of the debts o r liabilities of the deceased, except as hereinaf ter provided, and such dam ages shall be distributed as f

ollows: . . . if the d eceased has no husband, nor wif e, n or children, the dam ages shall b e d i s tributed equally to the f ather, m other, brothers and sisters, or such of t hem as the deceased m ay have living at his or her death.

. . . T here shall not be, in any case, a distinction between the kindred of the whole and half blood of e qual degree. The provisions of t his section shall a pply

. . . t o the m other on account of the death of an illegitim ate child

. . . , and they shall have all the benef its, rights a n d rem edies conf erred by this s ection on legitim ates. The provisions of this section shall apply

. . . to the natural f a t h e r o n account of the death o f the illegitim ate child

. . . , a nd they shall have a l l the benef its, rights and rem edies conf erred by this section on legitim ates, if t he survivor has or establishes t he right to inherit f rom the deceased under Section 91-1-15. ¶14. W e now turn to review each wrongf ul-death benef

iciary ’s claim

. 3

3 In L o n g v. M

cK in n ey , 8 9 7 S o . 2 d 1 6 0 , 1 7 5 -7 6 (¶6 7 ) (M iss. 2 0 0 4 ), th e su p rem e co u rt ru led : S ectio n 1 1 -7 -1 3 p ro v id es th at w ro n g f u l d e ath litig a t io n m ay b e b ro u g h t b y th e p erso n al rep resen tativ e o f th e d e ce a s e d o r b y an y o n e o r m o re o f sev e ral sta tu to ry b en ef

iciaries, f o r th e b en ef

it o f all en titled to reco v er. U n less all p erso n s en titled to reco v er j o i n in th e su it, th o se w h o d o h av e a f id u ciary o b lig atio n to th o se d o n o t. M iss. C o d e A n n . § 9 1 -1 -2 7 (R ev . 2 0 0 4 ) p ro v id es f o r a ch an cery d eterm i n atio n o f th e h eirs at l aw o f a d eced e n t ; th a t i s , th o se w h o in h erit in th e ab sen ce o f a w ill. A lth o u g h o u r statu t es m an d ate n o sp ecif ic p ro ced u re f

o r th e id en t if

icatio n o f w r o n g f

u l d eath b en ef

iciaries, a ch an cery co u rt m ay m ak e su ch d eterm in atio n s. T h o se b rin g in g th e a c t i o n , to g eth er w ith th eir co u n sel, h av e a d u ty to id en tif y th e b en ef

iciaries, an d th ey sh o u ld d o so early

in th e p ro ceed in g s .

6A. Roshida ( Delvyn’s Mother) ¶15. In h er order d e term ining Delvy n’s heirs at law and wrongf ul death benef

i ciaries, the chancellor interpreted section 11-7-13 and ruled that Roshida and her daughter, Tina, were the sole wrongf

ul death benef

iciaries and heirs at law of Delvy n. ¶16. The record ref

l ects that Roshida was not m arried to D elvy n’s natural f

ather at the tim e of his birth. Accordingly , Delvy n would be considered an illeg i t i m a t e child. Section 11-
7-13 provides that, as to the m other of an illegitim ate child, “ [ t]he p rovisions of this section shall apply

. . . to the m other o n a ccount of the death o f a n i llegitim ate c hild

. . . and they shall have all t h e benef

its, rights and rem edies conf erred by this section on legitim ates.” W e theref ore f ind that the chancellor pr o p erly determ ined Roshida to be a wrongf ul-death benef iciary of Delvy n. B. Tina (

Delvyn’s Half Sister) ¶17. The Appellants challenge the chancellor’s f inding that T i n a w a s a w rongf ul death benef iciary of Delvy

n . The record ref

lec t s t h a t the Appellants never raised this a rgum ent bef ore the chancellor, nor did they object to Tina’s status as a b e n e f i c i ary . However, the record f urther ref l ects that Roshida did not raise the issue of waiver on appeal. ¶18. Sect i o n 11-7-13 provides that the wrongf u l death benef

iciaries a r e t he b rothers and sisters “ as the deceased m ay h ave living at h i s o r her d eath.” Section 11-7-13 s pecif ically provides that “[ t ]here shall not be, in any case, a distinction between the kindred of the whole and half blood of equal degree.” Delvy n was born on J a nuary 26, 2012, a nd he died on June

A c co rd in g ly , w e f

in d th a t th e d eterm i n atio n o f w ro n g f u l-d eath b en ef

iciaries w as p ro p erly b ef o r e th e ch an cello r. 72, 2012. At trial, Roshida testif ied that at t he tim e o f Delvy n’s death, she did not have any other living children, nor was she pregnant. ¶19. On appeal, Roshida ref utes the Ap p e l l a n t s ’ a r gum ent that h er daughter Tina is not entitled to wrongf

ul death benef

its. R oshida acknowledges that the record does not ref lect whe n Tina was conceived, but she m aintains that “on about June 19, 2 014, [ Tina] was approxim a tely one y ear old.” The record shows that Delvy n died two y ears prior on June 2,
2012. At trial, R o s h i da d id not claim that she was pregnant at the t im e of Delvy n ’s death.
On appeal, Rosh i d a ’ s counsel argues that “[ t]he possibility still exists that [ Tina] was conceived bef

ore [ Delvy

n’s] death and [ Roshida] was ignorant of such f act d u e to the

tum ultuous circum stances s urrounding the death o f her inf ant child, Delvy

n [

. ] ” R o s h i d a c i t es
t o F izer v. Davis (

Estate of Davis) , 706 So. 2d 244, 2 47 (¶13) (Miss. 1 998), wh e r e t h e
suprem e court held that “a preborn child who i s viable at the tim e of a relative’s death and is u l t i m ately born alive, is ‘living’ such that he o r she can be a w rongf ul death benef

iciary under the law.” Roshida a rgues that Tina “ was possibly in existence” at the tim e of Delvy n’s death, and, since Tina is l i v i n g , s h e is entitled t o wrongf u l death benef

i ts. Contrary to Roshida’s c o u n s el’s claim s now on appeal, Roshida did not testif y at trial that she was conf used or ignorant regarding Tina’s concep t ion. R oshida testif ied that she was not pregnant at the tim e of Delvy n’s death. The record a l so s hows that on June 19, 2014, m ore than two y ears a f

ter Delvy n’s death, T ina was approxim ately one y ear old. Accordi n g l y , calculations show that Tina was not conceived o r p o s s i b l y i n existence at the tim e of Delvy n’s death on June 2, 2012.

8¶20. In In re Estate of D avis , 706 So. 2d at 2 4 7 ( ¶ 1 3 ) , t h e suprem e court reviewed a

chancery court’s determ ination of whether an unborn f e t us who was at six and one-half

m onths gestation at the tim e o f his brother’s death could r ecover as a wrongf ul death benef iciary within th e me a ning of section 11-7-13. T he suprem e court reversed the chancellor’s determ ination a nd held that the f acts of that c ase “clearly present a situation in which the preborn child

. . . was viable at the tim e of his b rother’s death” and theref ore it “is

am ong that class of persons def ined as ‘living’ f

o r p u r p oses of the w r ongf ul death statute such t hat he is a benef

i ci a r y under the statute.” Id

. at 245, 248 (¶¶1, 1 7). The appellants subm itt e d an af

f i davit f r om a doctor certif

ied in t he f

ield of obstetrics and gy necology wherein the doctor stated that Rico Davis, t he preborn child at issue, “was approxim ately six and one-h a l f mo n t h s gestation” on the day his brother died and e stim ated “that the probabilities of Rico’s survival at t hat point would have b een better than ninety

- f ive p e r c e n t.” Id

. a t (¶15) (internal quotation m ark om itted). The su p r e me court f ound that the appellee
f ailed to of f er a ny m edical evidence to ref ute the af f idavit. Id

. As a result, the suprem e court determ ined t hat “[ t]he record evidence overwhelm ingly suggests that Rico Davis reached the prenatal age of

viability when destruction of his m other’s lif

e did not necessarily

m ean the end o f h i s l i f

e [ ] ” and w as theref

ore “living” at the tim e of h is brother’s death. Id

. at 248 (¶16) (citing Rainey v. Horn , 221 Miss. 269, 72 So. 2d 4 34 (Miss. 1 954); Terrell v. Rankin , 511 So. 2d 126 (Miss.1987)). However, the Davis court d eclined to a ddress “whethe r the law would allow recovery f or an unborn previable child.” Id . at (¶17). ¶21. W e f

ind that the record b ef

ore us conta i n s n o e v i d e n c e t o s h o w t h a t Tina was

9conceived and viable, and t heref ore “living,” a t the tim e o f D elvy n’s death. Thus, under the statute, Tina is not a wrongf u l d e a th benef

i ciary

. Accordingly , we reverse and render regarding the c hancellor’s f inding that Tina w as a wrongf ul d eath benef

iciary a n d heir-at-law of Delvy n . C. Perkins (

Delvyn’s Natural Father) ¶22. T h e c h a n c e l l o r ruled that Perkins f ailed to m eet t he statutory requirem e n t s t o b e determ ined a wron g f

u l d e a th benef

iciary or an heir-at-law u nder section 11-7-13 and Mississippi Code Annotated section 91-1-15(3)(a)-(c) (Rev. 2013). As a result, Perkins was not entitled to share in the proceeds f rom the wrongf

ul death action. ¶23. The record indicates that genetic testing conf irm ed that Perkins was Delvy n’s natural
f ather. In order to recover wrongf u l death benef

its, section 11-7-13 requires t he f ather o f an illegitim ate child to establish his right to inherit f rom the deceased pursuant to Mississippi Code Annotated section 91-1-15, which provides:
An illegitim ate s hall i nherit f rom and t hrough the i llegitim ate’s natural f ather and his kindred, and the natural f ather of an illegitim ate and his kindred shall inherit f rom and t hrough the illegitim a t e according to the s tatutes of descent and distribution if

: (a) The natural parents p articipated in a m arriage cerem o ny b ef ore the birth of the child . . . ; or (b) There has b e e n a n adjudication of p aternity or l egitim acy bef ore the death of the intestate; or (c) There has been an adjudication of p a t e r n i t y a f t e r t h e d e a t h of

the intestate, b ased upon clear and convincing evidence, in an heirship proceeding u nder Sections 91-1-27 and 91-1-29. H o w e ver, no such claim of inheritance shall be recognized unless the ac t i on seeking an adjudication of paternity

is f iled within one (1) y e ar af ter the death of

1 0the intestate or within n inety (90) day s af ter the f irst p u b l i c a t i on of notice to creditors to present their claim s, whichever is less; and such tim e period s hall r

un notwithstanding t he m inority of a child. T his one y ear lim it ation s hall be self

- executing and m ay not be t olled f or any reason, including lack of

notice . . . . (d) The natural f

ather of an illegitim ate and his kindred shall not inherit: (i) From or t hrough the child unless t h e f a t h e r h as o penly

treated the c hild as his, and has not ref used or neglected to s upport the child . . . . ¶24. It was undisputed t hat Perkins and Roshida were never m arried. 4 The record contains

no adjudication of p aternity or legitim acy bef ore Delvy n ’s death 5 or a f

t er his death, 6 because the Alabam a court set aside its prior adjudication of paternity

. ¶25. I n r e viewing the requirem ents set f orth in section 91-1-15(3)(d)(i), the record contain s

no e v idence to show that Perkins “op e n l y t r e a t ed the child as his, and has not ref used or neglected to support the child.” Rather, the evidence shows that Perkins never actually m et Delvy n o r introduced Delvy

n t o his f

am ily

. Perkins w as not listed o n Delvy n’s birth certif i cate. Moreover, Perkins neglected to support Delvy n. He f ailed to provi d e f

ood or clothing f or Delvy n and did not help with t he b irth expenses. W hen Roshida a ttem pted to obtain child support a nd social s ecurity benef its f rom Perkins, Perkins denied p aternity and challenged her ef

f orts. Perkins did not i nquire about Delvy n’s condition or of

f er to help with Delvy n’s m edical or f

uneral expenses. I nstead, he allowed the paternity a ction against h im

4 S ee M iss. C o d e A n n . § 9 1 -1 -1 5 (3 )(a).

5 S ee M iss. C o d e A n n . § 9 1 -1 -1 5 (3 )(b ).

6 S ee M iss. C o d e A n n . § 9 1 -1 -1 5 (3 )(c). 1 1to be dism issed. W e agree with t he chancellor’s determ ination that Perkins f ailed to establish the requirem ents of section 91-1-15. W e theref ore f ind no error i n the chancellor’s determ ination Perkins could not recover wrongf ul death benef

its f r om Delvy n. D. Lisa, Kim, and Alan ( Delvyn’s Half Siblings) ¶26. Regardi n g t h e s t a t u s o f Lisa, Kim , and Alan as wrongf ul death benef

iciaries, the

c h a n cellor held that “Perkins’s other children cannot recover wrongf ul d e a t h b e n e fi t s t

h r o u g h the deceased child, Delvy n , because [ Perkins] does not me e t t h e requirem ents of section 91-1-15 (3)(a)-(c).” In her order, the chancellor explained: The Mississippi Suprem e Court has recognized the absolute n eces s i ty of m eeting the requirem ents of section 91-1-15 i n order f or a f ather and his kindred to claim wrongf

ul death benef

its through a deceased illegitim ate child. In Estate of Patterson v. Patterson , [ 798 So. 3d 3 47 (Miss. 2 0 0 1 ) , ] the [ suprem e c]ourt hel d t h a t , in an action to determ i ne d eceased illegitim ate child’s heirs at-law, [ a ] h a lf -brother could not inherit because the f ather did not m eet statut o ry r equirem ents to inherit. In [ Jones v. McCoy ( In re E state of McCoy) ], 9 88 So. 2d 929 ( Miss. C t

. A pp. 2008), the [ Mississippi C]ourt [ of Appeals] reversed the chancellor’s f inding that [ the] biological f a t her was [ an] heir-at-law bec ause [ the] f ather f ailed t o show [ his] right to inherit under section 95-1-15(3). See also W illiams v. Farmer , 876 So. 2d 300 ( Miss. 2004). [ Section] 91-l-15(3)(d)(i) provides “the natural f ather of an illegitim ate a nd his kindred sha l l n ot inherit: (i) From or through the child unless the f ather h as openly treated the child as his, and h as not ref u sed or neglected to support the child.” ¶27. As acknowledged by the chancellor, the Mississippi Suprem e C ourt has established that the natural f

ather of an illegitim ate child, as well as the f ather’s “kindred,” can inherit under the wrongf

ul death statute only i f the f ather m e ets the requirem ents of section 91-1-15.
P a t t e r s on , 798 So. 3d at 350 (¶17) (“The wrongf ul death statute provides f or illegiti ma t e s
to inherit, but t hat right is tied to [ section] 91-1-15.”). In Patterson , the suprem e court held

1 2that a natural f ather and his l iving son (the decedent’s half -brother through his f

ather) could

not recover wrongf

ul death benef

its f r o m the d e c e d e n t s ince the n atural f ather f ailed “to
prove by c lear and convincing evidence [ that] not only was [ he] was the biological f ather of [ the d ecedent], but a lso that he w as entitled to inherit f rom [ the d ecedent] as [ an] heir-at-law and as a wrongf

ul death benef

iciary .” Id . at (¶16); see also Bullock v. Thomas , 659 So. 2d 574, 578 ( Miss. 1995) (af f irm ing the chancellor’s judgm ent f ind i ng that a f

ather f ailed to

m eet the requirem ents of section 91-1-15 and theref ore the f ather and his children could not inherit f rom his illegitim ate child). ¶28. In apply i ng guidance f rom the suprem e court, we f ind that the chancellor did not err in determ i ning that Perkins’s children, Lisa, Kim , and A l an, cannot recover wrongf ul death benef its f r om Delvy n. ¶29. W i th regard to the issue of wrongf ul death benef

iciaries, we af

f irm the chancellor’s judgm ent as to Roshida, Perkins, Lisa, Kim , and Alan, and w e reverse and render the chancellor’s judgm e nt as to Tin a . T hus, Delvy n’s s ole wrongf

ul death b enef

iciary is Roshida, and she is entitled to the settlem ent proceeds deriving f rom t he wrongf

ul death of

Delvy n. II. Constitutionality of the Wrongful Death Statute ¶30. The Appellants also argue that “[ t]he [ w]rongf ul [ d]eath [ s ]tatute’s incorporation of [ s]ection 91

- 1

- 1 5 ( 3) violates the

. . . guarantee of equal protection under the laws.” The Appellants cite to Justice McRae’s separate opinion in Patterson , 798 So. 2d at 351-52, in support of their claim that s ection 91-1-15 “c r e a t es a h ierarchy o f rights” and “sets u p a classif ication which is biased a nd/or discrim inates against illegitim ate f athers and their

1 3children, who are siblings with the decedent.”

¶31. The record ref

lects that on May 25, 2 016, the A p pellants f i led a m em orandum in the chancery court responding to R oshida’s argum ent that P erkins, Lisa, K im , and Alan f ailed

to m eet t he s tatutory requirem ents to receive wrongf ul death benef

its f rom Delvy n. In this

m em orandum , the A ppellants challenged the constitutionality of section 1 1-7-13 as applied

to the natural f

ather of an illegitim ate chil d a n d t h e c h i ldren of the n atural f ather. In her
Decem ber 16, 2016 order determ i ning the wrongf ul death benef

iciaries, the chancellor did not address the Appellants’ constitutional claim

. ¶32. Mississippi Rule of Civil Procedure 24(d) “requires that proper notice be g iven to the Attorney General when the constitutional i t y o f a s t atute is challenged to af f ord him an opportunity to intervene and a rgue the question of constitutionality .” Barnes v. Singing River Hosp. Sys ., 733 S o. 2 d 199, 202 (¶9) (Miss. 1999) (internal quotation m ark om itted). Mississippi Rule of Appellate Procedure 44(a) “ sim ilarl y requires service of a n y appellate brief challenging the validity of a statute on t he Attorney General, the city a ttorney , or other chief legal of

f icer of the governm e ntal bo dy involved.” I d

. (internal quotation m ark

om itted). The Appellants provided the Attorney General with a c opy of their appellate brief

. It appears that the Appellants have theref ore c om plied with the requirem ents of Mississippi Rule of Appellate Procedure 44(a). ¶33. H o w e v e r , t

h e r e c o r d ref

lects that the Appellants f

ailed to provide the A ttorney Ge n e r a l wit h n o t i c e o f t heir constitutional challenge at the trial level. The record s hows that the Appellants f

irst notif i ed the Attorney General of their challenge to the constitutionality of the

1 4statute in their notice o f appeal. W e thus f ind that the Appellants h ave not com plied with the requirem ents of Mississippi Rule of Civil Procedure 24(d). This Court has held that “parties challenging the constitutional i t y o f a statute m ust notif y the Attorney General under Mississippi Rule of C ivil P rocedure 24(d).” Brown v. W aldron , 1 86 So. 3d 955, 961 (¶19) (Mi s s . Ct. App. 2016). The suprem e court h as procedurally barred challenges to the

con s t i t u t i o n a lity o f a statute where an appellant has f ailed t o com

ply with t he notice requirem ents of Mississippi Rule of Civil Procedure 2 4(d). Powers v. T iebauer , 939 So. 2d 749, 754-55 (¶17) (Miss. 2005); In re D.O. , 798 So. 2d 417, 4 23 (¶22) (Miss. 2001); Pickens

v. Donaldson , 748 So. 2 d 684, 691 (¶31) (Miss. 1 999); s ee also 5K Farms, I nc. v. M iss

. Dep’t of Revenue , 94 So. 3d 221, 224 (¶12) (Miss. 2012). ¶34. Since the A ppellants f ailed to provide n otice t o the Att o r n e y G e n e r a l p u rsuant to Mississippi Rule of C ivil P rocedure 24(d) r egarding their challenge to t he constitutionality of the wrongf

ul d eath statute’s incorporation of section 91-1-15(3), we f in d t h e i s s u e procedurally

barred, and we decline to address it.
III. Doctrine of Unclean Hands ¶35. Finally , Perkins claim s that Roshida f ailed to give him notice of the wrongf

ul death action against UMMC. As a result, Perkins c l a i ms “ R o shida has unclean hands and

. . . should not now be allowed to benef i t f r om her willf ul breach of

her f iduciary duties.” ¶36. “The doctrine of unclean hands provides that he who com es into e q uity m ust com e with clean hands.” In re Estate of R ichardson , 903 So. 2d 51, 55 (¶15) (Miss. 2005) (internal quotation m arks om itted) ( citing Thigpen v. Kennedy , 238 So. 2d 744, 74 6 ( M i s s . 1970)).

1 5The suprem e court h as “f urther expounded upon the m eaning of u nclean hands, stating: the

m eaning of this m axim is to declare that n o person as a com p laining party can h ave the aid of a court of e q u i t y w h e n h is conduct with respect to the transaction in question has been characterized by wilf

ul inequity

. ” Id

. (intern a l q u o t a t i on m a rk om itted). A chancellor
possesses a duty to apply this d octrine sua s ponte “when it is e v ident by the f a c ts of the case that the unclean hands doctrine is applicable.” Estate of Van Ryan v
. M cMurtray , 505 So. 2d 1015, 1019 (Miss. 1987). ¶37. In turning to the case b e f o r e us, we recognize that “[ a] wrongf ul d eath benef

iciary

m ay bring suit with or without the knowledge and agreem ent of the rem aining benef iciaries

or estate representative.” W illing v. Estate o

f Benz , 958 So. 2d 1240, 1 256 (¶44) (Miss. Ct. App. 2007) (citing Long v. McKinney , 897 So. 2d 160, 176 (¶68) (Miss. 2004)). However, the representative benef

iciary m ust provide r easonable notice “(i) to all other wrongf ul death benef iciaries; (ii) to the personal representative of the decedent if o ne has been appointed; and (iii) to each person who bears a r e l ationship to the deceased specif i e d i n s e ction
11-7-13.” Long , 897 So. 2d at 176 (¶68). ¶38. Roshida adm i ts she did n ot give Perkins notice of t he wrongf ul death action against
UMMC. However, we do not f ind Roshida’s f

ailure to give notice am ounts to a “ willf ul act

. . . which

. . . t r a n s g r e s s[ ed] equitable standards of conduct.” R oshida and Perkins were

never m arried, Perkins consistently denied paternity , a n d P erkins f ailed to m e et the statutory requirem ents to constitute a wrongf ul d eath benef

iciary of Delvy

n. See Miss. C o d e Ann. §§ 11-7-13, 91-1-15.

1 6¶39. W e f ind t he doctrine of unclean hands is inapplicable unde r t h e f a c t s o f this case. Accordingly , the Appellants’ claim is without m erit. ¶40. AFFIRMED IN PART; REVERSED AND RENDERED IN PART. BARNES, J ., CONCURS. IRVING, P.J., FAIR, GREENLEE A ND TINDELL, JJ., C ONCUR I N PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. LEE, C.J., CONCURS IN R E S ULT ONLY WITHOUT SEPARATE WRITTEN OPINION. WILSON, J., CONCURS IN P A R T AND IN THE RESULT WITH SEPARATE WRITTEN O P I N I O N, J OINED BY FAIR, J.; L EE, C.J., GREENLEE AND TINDELL, JJ., JOIN I N PART. W ESTBROOKS, J ., CONCURS IN PART A N D DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. GRIFFIS, P.J., D ISSENT S W I T H SEPARATE WRITTEN OPINION, JOINED IN PART BY WESTBROOKS AND TINDELL, JJ. WILSON, J., CONCURRING IN PART AND IN RESULT: ¶41. I reach the sam e result as the lead opinion but f or som ewhat dif

f erent reasons. First , I concur w ith the lead o pinion that, based on Mississippi Suprem e Court precedent apply ing

our wrongf

u l death statute, Lisa, K i m , and A lan are n ot am ong Delvy n’s wrongf

ul death benef iciaries. 7 I agree with Judge Grif f is that t hey seem to q

ualif y as b enef iciaries under the plain language o f the wrongf ul death statute, but we are bound by Mississippi S uprem e Court precedent even if

it is wrongly decided. S

econd , I disagree with the lead opinion’s f inding

7 I also co n cu r w ith th e lead o p in io n th at P erk in s an d T in a a r e n o t am o n g D elv y n ’s w r o n g f u l d eath b en ef

iciaries. A s to T in a, th e o n ly ev id en ce in th e reco rd sh o w s th at sh e w as n o t co n ceiv ed u n t il af

ter D elv y n ’s d eath

. In a p l ead in g f iled o n J u n e 1 9 , 2 0 1 4

— i .e. , m o re th an tw o y ears a f

ter D elv y n d ied

— N elso n stated th at T in a w as t h e n “ ap p ro x im ately 1 y ear o ld .” M o r e im

p o rtan t, N elso n sp ecif

ically testif

ied th at sh e w as n o t p reg n a n t w h e n D elv y n d ied

. T h ere is n o reco rd e v id en ce th at c o n f licts w ith N elso n ’s sw o r

n testim o n y . T h eref

o re, th e o n ly r eco r d ev id en ce sh o w s th at T in a w as n o t liv in g a t th e t im e o f D elv y n ’s d e ath

. S

ee In re E s ta te o f D a vis , 7 0 6 S o . 2 d 2 4 4 , 2 4 8 -5 0 (¶¶2 2 -2 8 ) ( M i s s . 1 9 9 8 ) (M ills, J., sp ecially co n cu rrin g ) (co n c l u d i n g th at a n o n v iab le u n b o rn ch ild is “liv in g ” f o r p u rp o s es o f th e w r o n g f u l d eath statu te); C

h i ld s v. G en
. M

o to rs C o rp
. , 7 3 F

. S u p p . 2 d 6 6 9 , 6 7 4 -7 5 (N .D

. M iss. 1 9 9 9 ) (sam e). 1 7that the appellants w aived their constitutional c hallenge. Third , I would address the

appellants’ c onstitutional challenge on the m erits and hold that the wrongf ul d eath statute is constitutional as applied to them

. Fourth , a lthough Nelson has not r aised the issue, I cannot ignore that t here is no credible evidence in the record that Lisa, Kim , and Alan a re Delvy n’s paternal half

-siblings. This lack of evidence would require us to reverse and rem and f or f ur t h e r p r o c e edings if the f actual issue rem ained m aterial to t he outcom e of the case. H o w e v e r , t h e i ssue is m oot in l ight of our conclusion t hat Lisa, Kim , and Alan are not Delvy n’s wrongf

ul death benef

iciaries even assum in g that they are his half

- siblings. I address these f

our issues in turn below.
I. The Wrongful Death Statute ¶42. If we were writing on a clean slate, I would agree with Judge Grif f is’s interpretation of the wrongf

ul death statute. The statute clearly states: “There shall not be, in any case, a distinction between the kindred of the whole and half blood of equal degree.” Miss. Code
Ann. § 11-7-13 (Rev. 2 004). It also provides that when, as in this case, the deceased has no
spouse or children, “dam ages s hall be distributed equally to the f ather, m other, brothers and sisters.” Id. Thus, absent som e exc lusion, Perkins, Lisa, Kim , and Alan all q ualif y as wrongf ul death benef

iciaries of Delvy n. ¶43. However, t he statute goes on to state: “The p r o v i s i o ns of this section shall apply to

. . . the natural f

ather o n a c c o u n t of the death of [ an] illegitim ate c hild

. . . , and [ he] shall have all the benef

its, rights and rem edies conf e rred by this section

. . . , if [ he] has or establishes the right to inherit f rom the deceased under Section 91-1-15.” Id. In this case,

1 8Perkins clearly f ailed to establish h is right to inherit under section 91-1-15 because there was no valid adjudication of

paternity , he did not openly treat Delvy

n as his own, and he f

ailed

to s upport Delvy

n. See Miss. Code Ann. § 91-1-15(3) (Rev. 2013). T heref or e , under the plain language of the wrongf ul death statute, Perkins is not entitled to “the b enef its, rights, and rem edies conf

erred by [ the wrongf

ul death statute].” Miss. Code Ann. § 11-7-13. ¶44. In addition, because Perkins f ailed to s atisf

y the requirem ents of section 9 1-1-15, “his kindred” ( Lisa, Kim , and Alan) “shall not inherit ” f r om D e l v y

n

— i

. e ., t hey are not am ong Delvy n’s heirs a t law

. Miss. Code Ann. § 91-1-15(3)(d) (em p hasis added). However, “[ a] wrongf ul death action is a s e parate action f rom t he estate o f the deceased.” Estate of Smith

v. Smith ex rel. Rollins , 130 So. 3d 508, 514 (¶16) (Miss. 2014) ( quoting Ray v
. Ray , 963 So. 2d 20, 2 6 (¶14) ( Miss. Ct. A pp. 2007)). “[ T]heref ore, the b enef

iciaries of a wrongf

ul death action f or the death of the decedent m ay dif f er f rom the heirs of

the intestate’s estate.” Id. And I agree with Judge Grif f is that nothing in s ection 11-7-13 excludes Lisa, Kim , or Alan
f rom the class of

Delvy n’s wrongful death beneficiaries

. ¶45. Thus, Lisa, Kim , and Alan appear to qualif y as wrongf

ul death benef

iciaries under the plain language of the wrongf ul d eath s tatute. Ordinarily , “if the w ords of a statute are clear and unam

biguous,” we sim

ply apply “the plain m eaning of the statute.” Lawson v. H o neywell Int’l Inc. , 75 So. 3 d 1024, 1027 (¶7) ( Miss. 2 011). However, we a re bound to f ollow Mississippi Suprem e Court precedent. 8 The Suprem e Court ’ s o pinion in Estate of

8 S ee, e .g
. , C

a h n v
. C o p a c In c. , 1 9 8 S o . 3 d 3 4 7 , 3 5 8 (¶3 5 ) (M iss. C t

. A p p . 2 0 1 5 ) (“[ T ] h is C o u rt d o es n o t h av e t h e a u th o rity to o v erru le o r i g n o re [ S ] u p r em e [ C ] o u r t p reced en t.”); R ivera -G u a d ia n a v. S ta te , 7 1 S o . 3 d 1 2 2 1 , 1 2 2 4 (¶1 4 ) (M iss. C t. A p p . 2 0 1 1 ) (“[ W] e m u st f o l lo w [ S ] u p rem e [ C ] o u rt p reced en t . . . .”). 1 9Patterson v. Patterson , 798 So. 2d 347 (Miss. 2001), is c onf using, and it is not entirely clear what issues the Court actually decided in that case. However, I agree with the lead opinion that Patterson seem s to hold that a natural f a ther’s f ailure to satisf

y the requirem en ts of section 91-1-15 not only disqualif ies the natural f

a t her f rom recovering as a wrongf ul death benef iciary but also disqualif

ies any half -siblings through the natural f a ther. Accordingly , I concur in the lead opinion’s resolution of this issue.
II. Waiver ¶46. The l ead opinion acknowledges that the appellants c o mp l i e d w i t h Mississippi Rule of Appellate Procedure 44(a) by serving copies of their appellate brief s, w hich clearly set out the constitutional issues raised, on the A t torney General. The lead o pinion also acknowledges t hat the a

ppellants challenged the constitutionality of s ection 11-7-13 in the

m em orandum of law that they f iled in the chancery c ourt. Nonetheless, the lead opinion
f inds that t h e a p p ellants’ constitutional argum e n ts are “ procedurally barred” b ecause the

a p p e llants did not c om

ply with Mississippi Rule of Civil Procedure 24(d) b y notif y ing the Attorney General in the chancery

court. Ante a t ¶¶33-34. I disagree. ¶47. To begin with, no one has argued that the issue is proced u r a l l y b a r r e d. Af ter the appellants served their opening b rief on the Attorney General as required by Rule 44(a), the
State did not exercise its right to respond under R ule 44(b). M.R.A.P. 44(b). In a ddition, the

a p p ellees addressed the m erits of the appellants’ constitutional argum e n ts and h a v e n o t argued that those issues are w aived or procedurally barred. See Thornton v. Freeman , 242
So. 3d 188, 190 (¶3) (Miss. Ct. App. 2018) (noting t hat the issue of “waiver

. . . can itself be

2 0waived”). Finally , the constitutional issues were debated extensively during oral a rgum ent

i n t h i s C ourt, and no one suggested that the issues were waived or procedurally b a r r e d

. Under these circum stances, there is no reason f or this Court to raise the issue sua sponte. ¶48. More im

p ortant, by its term s, Rule 2 4(d) does not a p ply t o this case. Rule 2 4(d) only requires notice to the Attorney General [ i]n any action ( 1) to restrai n or enjoin the enf orcem ent, operation, or execution of any statute o f the State o f Mississippi by restraining o r enjoining the action of any of

f icer of the State o r any political subdivision thereof , or the action of any agency , board, or com m ission a c t ing under state law, in which a claim is asserted t hat t he statute under which the action sought to be restrained o r enjoined is to be taken is unconstitutional, or ( 2) f o r declaratory relief brought p u rsuant to Rule 57 in which a declaration or adjudication of the unconstitutionality of any statute of the State of Mississippi is am ong the relief requested . . . .
M.R.C.P. 24(d). The appellants do n o t s eek to restrain or enjoin the action of any state “of f i cer” or any “agency , board, or com m ission acting under state law.” Nor is this an action
f or “declaratory relief

” under Rule 57. It is a proceeding to d eterm ine heirs involving only private parties. By its plain term s, Rule 24(d) does not apply in this case. 9 ¶49. The cases that the lead opinion cites ( ante a t ¶33) are m aterially distinguishable. In each of t hose c a s e s , t he party challenging the c o nstitutionality of the statute f ailed to raise the issue in the trial court a nd/or f ailed to com

ply with Rule 44(a) on a

p peal. 10 Here, as the

9 T h e sco p e o f R u le 2 4 (d ) is n arro w er th an R u le 4 4 (a), w h i ch ap p lies in an y ap p eal in w h ich “th e v alid ity o f an y statu te

. . . is raised in t h e S u p r e me C o u rt o r th e C o u rt o f A p p e als.” M .R

. A .P

. 4 4 (a).

10 S ee 5 K F a rm s In c. v
. M

i s s
. D e p ’t o f R even u e , 9 4 S o . 3 d 2 2 1 , 2 2 4 -2 6 (¶¶1 0 -2 0 ) ( M iss. 2 0 1 2 ) (ap p ellan ts f ailed to ch allen g e th e co n stitu tio n ality o f th e statu te in th e tria l co u rt a n d f

ailed to co m

p ly w ith R u le 4 4 (a) o n ap p eal); P o w ers v. T ieb a u er , 9 3 9 S o . 2 d 7 4 9 , 7 5 2 -5 5 (¶¶8 -1 7 ) (M iss. 2 0 0 5 ) (ap p ellan ts f ailed t o ch allen g e t h e co n stitu tio n a lity o f th e 2 1lead opinion acknowledges, the appellants both challenged the constitutionality of the statute

in the trial court and com

p l ied with Rule 44(a) on appeal. This was suf f icient t o preserve the issue. ¶50. The l ea d opinion would hold, sua sponte, t hat the appellants’ constitutional argum e nts are “procedurally

barred” because they did not serve notice on the Attorney General in the trial court. However, the plain la n g u a g e o f Rule 24(d) did not r equire notice i n the trial court, a nd such notice probably w ould not h ave m ade any dif f erence given that the Attorney General has not participated even af ter receiving notice on a p p e a l

. I respectf ully disagree with the lead opinion’s sua sponte invocation of an inapplicable procedural bar.
III. Equal Protection
A. Perkins ¶51. Perkins argues that section 11-7-13 denies f athers of illegitim ate children t he right to equal protection o f the laws. Specif ically , he arg u e s t h a t the law unf airly discrim inates against m en because “the m other has to do nothing t o inherit f rom the child” while the f ather

m ust com ply with the requirem ents of section 91-1-15. Estate of Patterson , 7 9 8 S o . 2 d at 351 (¶21) (McRae, J., specially concurring). ¶52. Perkins’s argum ent igno r e s t h e mo t h e r ’ s “ u nique r ole in childbirth” and “unique ef f orts in carry ing a child to term .” Ra i n e y v
. C h e ver , 1 19 S. Ct. 2411, 2413 (1999)

statu te in th e trial co u r

t); In re D .O

. , 7 9 8 S o . 2 d 4 1 7 , 4 2 3 (¶2 1 ) (M i ss. 2 0 0 1 ) (ap p ellan ts f ailed to ch allen g e th e c o n stitu tio n ality o f t h e statu te in t h e trial c o u rt an d f ailed to co m

p ly w i th R u l e 4 4 (a) o n ap p e al); P icken s v. D o n a ld s o n , 7 4 8 S o . 2 d 6 8 4 , 6 9 1 ( ¶3 1 ) (M i ss. 1 9 9 9 ) (sam e); B ro w n v. Wa ld

ro n , 1 8 6 S o . 3 d 9 5 5 , 9 6 1 ( ¶1 9 ) (M iss. C t

. A p p . 2 0 1 6 ) (ap p ellan ts f ailed to co m

p ly w ith R u le 4 4 (a) o n ap p e al). 2 2(Thom as, J., di s s e n ting f rom t he denial of c ertiorari). Even if it served no o ther purpose, section 11-7-13 recognizes a valid distinction between a parent l ike Nelson, who c hooses to
carry her unborn child to term , and a parent like Perkins, who neglects the child and ref uses to treat the child as his own even af ter the child’s birth. Id. ¶53. Laws that recognize “inherent dif f er ences” between m en and wom e n are n ot per se unconstitutional. Unit e d States v. Virginia , 518 U.S. 515, 533 ( 1996). “[ S]uch classif ications m ay

not be used, as they o nce were, to create or perpetuate the legal, social,

a nd econom ic inf

eriority o f wom en.” Id. at 534 (citation om itted). O bviously , that is not what this law does. There m a y be additional justif ications f or the distinction that section 11-
7-13 d raws between m others and f athers. However, I would hold that it is constitutional as applied to Perkins f

or the reasons given in Justice Thom as’s opinion in Rainey , supra . B. Lisa, Kim , and Alan ¶54. The constitutional issue i s m ore com plicated with respect to Lisa, Kim , and Alan. It would be unjust and unconstitutional to e x c l u d e them f rom the wrongf

ul death recovery solely as a punishm ent f

o r their f ather’s f ailure t o s a t i sf

y section 91-1-15. See Trimble v. Gordon , 430 U.S. 762, 769-70 (1977); Estate of McCullough v. Y

ates , 32 So. 3d 403, 412-13 (¶31) (Miss. 2010). However, the law m ay be justif ied based on o t h e r l egitim ate state interests. See In re Estate of Kimble , 447 So. 2d 1278, 1283 (Miss. 1984). ¶55. Lisa, Kim , and Alan argue that the wrongf u l death statute “discrim inates against the paternal s iblings of the decedent on the bases [ sic] of the d

ecedent’s illegitimacy ” (em phasis added). T o the extent t hat they a rgue that the statute u nconstitutionally discrim inates based

2 3on Delvyn’s illegitim acy , they are alleging a v iolation of Delvyn’s constitutional rights rather

than their own. 11 Such a c laim i s inconsistent with the g eneral rule that a “plaintif f

. . . m ust
assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights

or interests of third par t i e s .” W arth v. S eldin , 422 U.S. 4 90, 499 (1975). “Ordinarily , one

m ay not claim standing

. . . to v indicate the constitutional rights of s om e third party .” Barrows v. Jackson , 346 U.S. 249, 255 (1953). ¶56. There are exceptions to the general rule a gainst third-party standing, but only when “the party asserting the right has a close relationship with t he person who possesses the right and there is a hindrance to the possessor’s ability t o protect his own interests.” Sessions v. Morales-Santana , 137 S. Ct. 1678, 1689 (2017) (brackets o m itted). I n this case, there is an obvious “ hindrance” to any decedent’ s “ a b ility ” to challenge the wrongf ul death statute’s alleged violation of the decedent’s constitutional rights. However, it is f ar l ess clear that paternal half

-siblings’ r e l ationship to the decedent should enable t hem to litigate the decedent’s c onstitutional rights. As t he Suprem e C ourt has recognized, i n s o m e cases, “holders of [ constitutional] rights” m ay “not wish t o assert t hem

. ” Singleton v. W ulff , 428
U.S. 106, 113 -14 (1976). Indeed, a “ good and suf f i cient reason[ ]” f

or deny ing third-party standing is “the avoidance of the adjudication of rights which those not bef ore the Court m ay
not wish to assert.” D u k e P o w e r C o
. v. Carolina Envtl. Study Grp. Inc. , 438 U.S. 59, 80 (1978). Theref

o re, bef ore granting third-party stan d i n g , “ c o u r t s m ust b e sure . . . that the litigant and the person whose rights he asserts have interests which are aligned.” Canfield

11 U n d er th e w ro n g f

u l d eath statu te, it i s irrelev an t w h eth er L isa, K im , an d A lan are illeg itim a t e o r b o rn o f a m arriag e. 2 4Aviation Inc. v. Nat’l Transp

. S a f e t y B d

. , 854 F .2d 7 45, 748 (5th Cir. 1988); accord, e.g. , P o ny v. Cty. of L os Angeles , 433 F.3d 1138, 1147-48 ( 9th Cir. 2006); see also El k G r o v e Unified Sch. Dist. v. N

ewdow , 542 U.S. 1, 15 (2004) (declining to grant t hird-party standing to a parent when “the interests of this parent and this child are not parallel and, indeed, are potentially in conf

lict”), a brogated on other grounds by Lexmark Int’l Inc. v. Static Control Components Inc. , 134 S. Ct. 1377, 1387 (2014). ¶57. W e can hardly “be sure” that a decedent’s interests will be aligned with the interests of his half

-siblings just because they shared a f

a ther—indeed, a f

ather who ref

used to treat the decedent a s his own. Nor can we k n o w whether a decedent w ould f e el discrim inated against or “ wish t o assert” an equal protection claim in this situation. T he alleged “discrim ination” does not appear to b e b ased on any anim us against illegitim ate children. In essence, the alleged discrim ination against the illegitim ate decedent is this:

I llegitim ate Decedent Legitim ate Decedent Paternal half

-siblings are entitled to a share of any wrongf ul death recovery if their father satisfies certain conditions

. Paternal half -siblings are entitled to a share of any wrongf u l death recovery

.

If t he decedent is m arried and/or has children, all wrongf u l death dam a ges are distributed to his or her spouse and/or children; t hus, this distinction com es i nto play only if the illegitim ate decedent d ies without a spouse or children. See Miss. Code Ann. § 1 1-7-13. M oreover, the distinction does not af

f ect the total amount of wrongf ul death dam ages. It only m eans that the w rongf

ul death recovery f

or a legitim ate d ecedent m ay be d ivided a m ong a larger group of relatives t han the recovery f or a n otherwise sim ilarly situated illegitim ate d ecedent. W e

2 5cannot say that a l l or m ost i llegitim ate decedents in this situation would f eel aggrieved or

u n f a i r ly discrim inated against b y the statute. Nor can we say that all o r m ost i llegit i ma t e decedents would want their w rongf ul death dam ages t o be divided am ong ha l f

- siblings through a f

a t her who ref

used to recognize the decedent d uring the decedent’s lif

etim e. Finally , in this case, Delvy n passed away

when he was only

f ive m onths old, so t here is no
way to know whether Delvy

n personally

would have wished to assert such a claim

. ¶58. For all these reasons, we cannot “be sure” that Lisa’s, K i m ’ s, and Alan’s i nterests “are aligned” with Delvy

n’s interests. Canfield Aviation , 854 F.2d at 748. And this m ay not be

a right or a claim that Delvy n w o u l d “ w i s h to assert.” Duke Power , 438 U .S. at 80; Singleton , 428 U.S. at 113-14. Accordingly , I w o u l d n o t g r ant Lisa, K im , and Alan thirdparty standing to assert constitutional claim s on behalf of Delvy n. ¶59. Although Lisa, K im , and Alan lack standing to assert Delvy n’s rights, they m ay still

assert claim s based on their own rights. See Miller v. A l b r i ght , 523 U.S. 420, 451 (1998) (O’Connor, J., concurring i n the judgm ent). However, the wrongf ul d eath statute “ does not draw a distinction based on t he gender” or illegitim acy o f the w rongf u l death benef

iciaries. Id. Theref

ore, claim s b ased on Lisa’s, Kim ’ s, and Alan’s own rights “trigger[ ] only rational basis scrutiny .” Id. ¶60. Under rational basis scrutiny , a statutory classif ication “m

ust be upheld if there is any conceivable state of f

acts that could provide a rational basis f or the classif

ication.” Heller

v. Doe , 5 09 U.S. 312, 320 ( 1993) ( quoting FCC v. Beach Commc’ns Inc. , 508 U.S. 307, 313 (1993)). A rational basis m ay consist entirely of “rational speculation unsupported by

2 6evidence or em pirical data,” id. (quoting Beach Commc’ns , 508 U .S. a t 315), and “courts are

com pelled under rational-basis review to a c cep t a legislature’s generalizations even when there is an im

p erf ect f it between m eans and ends,” id. at 321. ¶61. Apply ing this d ef

erential standard of review, the United States Suprem e Court and the Mississippi Suprem e Court have held that sim ilar statutory r e q u i r e m e nts are at least rationally related to legitim ate state interests such as a v oiding litigation of stale or f raudulent claim s. S e e, e.g. , Lalli v. Lalli , 439 U.S. 259, 268-76 (1978) ( plurality opinion); Estate of McCullough , 32 So. 3 d at 414 (¶35); Estate of K imble , 4 47 So. 2d at 1283. As n oted above, under rational basis scrutiny , a legislative classif ication m ust be upheld a s long as it is rationally related to a legitim ate state interest, even if it is b ased on “generalizations” and the

“ f i t b e t ween m eans a nd ends” is “im perf ect.” Heller , 509 U.S. a t 320. B ased o n t h e s e precedents, I w ould r e ach the sam e conclusion in this c ase and hold that t he wrongf ul death statute is constitutional.
IV. Evidence Regarding Lisa, Kim , and Alan ¶62. I cannot ignore o ne f inal problem with the appellants’ case. The appellants’ brief on appeal asserts t hat “there is no disp u te that [ L isa, Kim , and Alan] are Robert’s natural children, and thus, half

- siblings to Baby D e l v y

n , w h o were living at the tim e of Baby Delvy n’s death.” In s u p p o r t of this claim , the a ppellants cite t o a p assage in Nelson’s testim o ny on cross-exam ination. In the cited testim ony , t he appellants’ attorney questioned Nelson about only

two of the three children: Q D o y o u dispute that [ Kim and Lisa] a r e R o b e r t P e r k i n s ’ n a t u r a l children?

2 7A I m e an, I don’t really know them

. I know them t hrough Key ona. You know, she have brought t hem around m e m a y b e onc e o r twice, but I don’t know them

. Atlay Phillips i s the neighbor of m y s i ster; Sheretta Nelson, who lives with Michael C osby

. So, I m e a n, if they ’re his kids, y ou know, I have no proof that they ’ re his kids. Q And y ou don’t contest that they are, correct?
A W ell, I don’t. Q You don’t contest that they ’re his children if it were established?
A W ell, f

rom what I hear, y eah, they ’ re his kids. ¶63. The only testim o ny about the third child (Alan) was as f ollows: Q Okay

. Isn’t it true that y ou told Ny kes h i a Green that y ou didn’t know who Delvy

n’s f ather was?
A I don’t know a Ny keshia Green. Q Do y ou know [ Alan]?
A No, I don’t. Q Okay . You don’t know that to be Robert Perkins’ son?
A No, I don’t. ¶64. Thus, in context, Nelson m erely testif ied that she had “no proof ” that Kim

and Lisa

were Perkins’s c hildren, although she had “ hear[ d]” that they were. Nelson did n o t even know Alan. Nelson was the only witness who testif ied in the chancery court, and there is no other evidence i n the record concerning these children. Neither Perkins, nor the children, nor the c hildren’s m others testif i ed. It does not appear t hat t hey even attended the hearing. Nor did they s ubm it birth certif icates, DNA tests, o r any

other proof of paternity

. Indeed, there is no evidence in the record that Alan exists, let alone that he is Delvy n’s half -brother.

2 8¶65. In In re Estate of Richardson , 695 So. 2d 587 (Miss. 1997), “the chancellor entered

an order f inding that certain persons were Richardson’s illegitim a te children and theref ore also his legal heirs” and w rongf ul death benef

iciaries. I d. at 588. However, “there [ was] no record that a f

orm al hea r i n g w as ever held or that any interested p arty g ave testim ony or of f ered proof of paternity .” I d. a t 589. On appeal, our Suprem e Court em phasized that “[ i]n order to be declared heirs, t he i llegitim ate children of

. . . Richardson are required to establish paternity b y clear and convincing evidence.” Id. The Suprem e C ourt f urther held that “[ t]he chancellor erred in f

ailing to hold [ a f

orm a l] hearing” o n that issue, and t he Court reversed and rem anded “f

o r the purpose o f conducting a f orm a l h earing t o determ ine the heirs of

. . . Richardson.” Id. ¶66. This case is dif

f e rent f r om Richardson in that a f orm a l hearing was held; however, it is sim ilar to Richardson in that there w as no “proof o f paternity .” T h e r e is literally no evidenc e p e r t a i ning to A lan, and there is only N elson’s t estim ony about what she had “hear[ d]” about Lisa and Kim

. If this f actual issue was still m aterial to the outcom e of the

case, I would reverse and rem and f or a hearing o n t h e issue, as the Suprem e Court did in Richardson

. H oweve r , I c o n c u r with the l ead opinion t hat Lisa, Kim , and Alan do not qualif y as wrongf

ul death benef

iciaries even assum ing t hat they are Delvy n’s half -siblings. Theref ore, this f actual issue is m oot.

* * * * * ¶67. For the f

oregoing reasons, I concur in part and in the result. FAIR, J., JOINS T HIS O PINION. L E E , C . J . , G R E E N L E E AND TINDELL, JJ., JOIN THIS OPINION IN PART.

2 9WESTBROOKS, J., CONCURRING IN PART AND DISSENTING I N PART:

¶68. I agree in p art with the lead opinion. I also agree with Judge Grif f is’s determ ination that Per kins’s other children should recover as wrongf ul death benef

i ciaries. I write separately because I am of t he opinion t hat t he appellants’ f ailure to object or f

ile a m otion under Mississippi Rule of Civil Procedure 59 in the t r ial court is problem atic and presents

a h igh hurdle that they cannot clear simp l y b y a ppealing that issue to this Court. Accordingly , the a

ppellants are p rocedurally bar r e d f r om asserting their claim against the chancellor’s determ ination of Tina as a wrongf

u l death benef

iciary , and the chancellor did

not err. ¶69. In the p r o c e e d i n g h eld o n Decem ber 2014, Roshida’s p ray er of relief was that the chancellor would f

ind that b oth she and her daughter Tina were w rongf u l death benef

iciaries. The lead opinion a cknowledges that the appellants neither raised this argum ent bef ore the chancellor, nor did they object. 12 Ante at ¶17. The record i s also void of a Rule 59 m otion
f iled by the appellants. Accordingly , I would f ind that t he appellants w a i v ed their right to challenge the chancellor’s determ ination because: [ T]his Court does not review m atters on appeal that were not f irst raised at the trial level. Bef

ore an i ss u e c an be presented to t his Court, it m ust f irst be presented to the trial court. This is done by an objection. A tim ely objection brings the issue to the c ourt’s attention, and gives it the opportunity to address the issue.
W ilburn v. W

ilburn , 991 S o. 2d 1185, 1191 ( ¶1 3 ) ( M i ss. 2008). Because the appellants waived the i ssue bef

ore the c hancellor, t his Court s hould not even a ddress whether Roshida

12 T h e lead o p in io n a lso n o tes th at R o s h i d a d id n o t raise th e issu e o f w aiv er o n ap p eal. 3 0raised the issue of “waiver” on appeal. ¶70. Accordingly , I would f i nd no e rror in the chancellor’s f i nding t hat Tina was “living” at the tim e of

Delvy n’s death. ¶71. Theref

ore, I respectf

ully dissent in part. GRIFFIS, P.J., DISSENTING: ¶72. Mississippi Code Annotated section 1 1-7-13 (Rev. 200 4) is the sole controlling authority to det e r m i n e who i s entitled to take t he proceeds f r om a w rongf

u l death action. ¶73. The lead opinion m akes two conclusions that I f ind are f undam e ntally f

lawed. First, the lead opinion agrees that “ Perkins’s other children c annot recover wrongf u l d eath benef

its through the deceased child, Delvy n, b e cause P erkins does not m eet the requirem ents of section 91-1-15 (3)(a)-(c).” Ante at ¶26. Second, the lead opinion concludes:
As acknowledged by the chancellor, t he Mississippi Suprem e Court h a s established that t he natural f ather of an illegitim ate child, a s w e l l as the f ather’s “kindred,” can inherit under t h e w r o ngf ul d eath statute only if the f ather m eets the requirem ents of section 91-1-15. Patterson , 798 So. 3d at 3 50 (¶17) (“The wrongf

u l death statute provides f

or illegitim ates t o inherit, but t hat right is tied to [ section] 91-1-15.”).
Ante at ¶27. ¶74. Neither o f these conclusions are supported by section 11-7-13. Instead, the chancellor and the lead opinion rely on Patter s o n . T h e q uestion is whether the decision in P atterson should govern this case, when it is contrary to the clear and unam biguous l anguage of section
11-7-13. ¶75. Every w rongf

ul death case, and the consideration of section 11-7-13, m ust start with Long v. McKinney , 897 So

. 2 d 1 6 0 (Miss. 2004). There, the suprem e court c riticized its

3 1earlier decisions in wrongf ul death cases, which included Patterson , and ruled:
No area of the l

aw has historically provided m ore m uddled, m isquoted and m isunderstood procedural rules, than civil c l aim s for wrongful death. The blam e f or the perennial scrap over the r u les can be traced t o a t least t wo sources. First, although the i ssue has been debated, the Am erican judiciary

– f e deral and state – has f

ailed to s quarely address the question of whether s u bstantive claim s f o r w rongf

ul de a t h o r i g inated in t he c om m on l aw, r endering them subject to substantial judicial d iscretion; or are creatures of statute, requiring strict, statutory

construction.
S econdly , it appears that in the waning y ears of the Nineteenth Century , o ur own wrongf

ul death statute (the “Statute”) took a wrong turn into p rocedural territory w here it had n o license to trave l

. Wh e n one branch of governm ent (well-intentioned though it m ay be) crosses the l i n e i n to the purview of another, the balance of powers neces s a r y f or ef f icient and ef

f ective governm e nt is upset. So it was with the Statute. As a result, this Court has, for over a c entury, attem pted to provide procedural guidance m islabeled as statutory interpretation; m uch l i k e a ttem pting to place a square peg into a round hole. Consequently, little progress has b e en m a de in settling m a ny troubling issues related to wrongful deat h litigation. The sam e issues and problem s continually a

ppear, and have been addressed on an a d hoc basis, leaving little in the way of dependable precedent

. Id

. a t 1 6 2

- 6 3 (¶¶1-3) (em phasis a dded). The court then used Long as “an opportunity to address a nd clarif

y several of these problem s, and to provide guidance f or t hese issues to the bar and judiciary .” Id. at (¶4). ¶76. Here , t h e issue addressed was not an issue a ddressed in Long

. But, like Long , this case considers an issue that was previously “m uddled, m isquoted a nd m isunderstood.” Id

. at (¶1). Indeed, this case is an opportunity to deal with one of t hose “troubling issues related

to w rongf ul death l itigation.” Id. at (¶3). I urge t he suprem e cou r t t o l o o k c l osely at this case and provide “dependable precedent.” Id.

3 2¶77. Any r eview of section 11-7-13 begins with the suprem e court’s long h eld adm onition

that, “ [ o]n appellate review, we strictly cons t r ue Mississippi’s wrongf ul death statute.” Pannell v. Guess , 671 So. 2d 1310, 1313 (Miss. 1996) (em phasis added). ¶78. The language o f section 11-7-13 determ ines who m ay take the proceeds of a wrongf ul death action: [ I]f the deceased h as no husband, nor wif e, nor children, the dam ages shall be distributed equally to the f a ther, m other, brothers a nd sisters, or such of them as t he deceased m ay have living at his or her death.

. . . There shall not be, in any case, a d

i stinction between the kindred of the whole and half blood of equal degree. The provisions of this section shall apply . . . to the m other on account o f the death of an illegitim ate child . . . , and they s hall h ave all the benefits, rights and rem edies conferred by t h is section on l

egitim ates . The provisions of this section shall apply

. . . to the natural f ather on account of the death of the illegitim a te child . . . , and they shall have all the benef

its, rights and rem edies conf

erred b y this section o n legitim ates, if t he survivor has or establishes the right to inherit f rom the deceased under Section 91-1-15. (Em phasis added). ¶79. Because Delvy

n had “ no husband, nor wif e, nor children,” section 11-7-13 provides

t h at “the d am ages s hall b e distributed equally to [ D elvy n’s] f a ther, m o ther, brothers a n d sisters, or such of them as the deceased m ay have living at his or her death.” This sentence gives Delvy

n’s “ brothers and sis t e r s ”

– Lisa, Kim and Alan – equal right to the wrongf ul death dam ages as Delvy

n’s m other and f

a t her.
I. Mother ¶80. Roshida N elson, as Delvy n’s m other, is certainly a wrongf ul death benef

iciary under section 11-7-13.
II. Father

3 3¶81. Robert P erkins, as Delvy n’s f ather, m ay b e a wrongf

ul d eath benef

iciary

. For Robert Perkins to take as a wrongf ul death benef

iciary , section 11-7-13 say s that: The p rovisions of this section shall apply

. . . to t he natural father on a ccount of the death of t he illegitim ate child

. . . , and they shall have all the b enef

its, rights a nd rem edies c onf

erred by this section on l egitim ates, i f t h e survivor has or e stablishes the r ight t

o inherit f

rom the deceased under Section 91-1-15. (Em phasis added). ¶82. Section 11-7-13 specif i cally incorporates section 91-1-15, but only i n the analy sis of the “natural f

ather.” I t clearly s ay s that “the provisions of this section shall apply

. . . to the

n a t u r a l father o n a ccount of the death of the illegitim a te c hild

. . . if t he survivor h a s o r establishes the right to inherit f rom the deceased under Section 91-1-15.” (Em phasis added). This sentence only applies to Perkins, as Delvy n’s natural f

ather. This sentence in section
11-7-13 cannot be read to require section 91-1-15 b e applied to any one but Delvy n’s natural
f ather. T his sentence simply does not apply to Delvy n’s m other or his brothers and sisters. ¶83. Section 11-7-13 say s t hat, f or Perkins to be a w rongf

ul death benef

iciary as Delvy

n’s f ather, Perkins m

ust also show that he has acted in a socially responsible m anner. Thus, as the natural f

ather of an illegitim ate child, Perkins m ust establish that he can “establish[ ] the right to inherit f

rom the deceased under Section 91-1-15.” ¶84. Section 91-1-15 deals with the right to i nherit f rom illegitim ate children. It is in the title on “Trusts and Estates,” the chapter on “Descent and Distribution,” and is titled
“Descent a m ong illegitim ates; def i nitions.” If section 11-7-13 was intended to be interpreted as the lead opinion has, the legislature could have s im ply incorporated the laws of descent

3 4and distribution to establish the wrongf ul death benef

iciaries i n a wrongf

ul death action. 13
This is not what the legislature did. It is im portant t hat t he Legislature, in section 11-7-13, chose not to treat the “kindred” of the natural f

ather the sam e as it did in 91-1-15(3)(d)(i). ¶85. Section 11-7-13 requires that the decedent’s “natural f ather” be subject t o an analy sis of the r ight of inheritance under s e ction 91-1-15. As a result, section 11-7-13 “addresses the inequity of a n atural f

ather of an illegitim ate child benef itting f rom a wrongf

ul-death action when he has f

ailed to acknowledge and support his child.” LePori v. W elch , 93 So. 3d 66, 69 (¶9) (Miss. Ct. App. 2012). ¶86. I concur with the determ i nation that, under section 11-7-13, the chancellor correctly considered Perkins’s right to inherit f rom Delvy

n under section 91-1-15. I agree that Perkins is not a proper wrongf

ul death benef

iciary of Delvy n under section 11-7-13.
III. Siblings ¶87. Section 11-7-13 requires that Delvy n ’s hal f s i b l i ngs are his wrongf ul death benef iciaries. Because Lisa, Kim , and Alan share a b iological f ather, they are Delvy

n’s half siblings. ¶88. Section 11-7-13 requires that Delvy n’s wrongf

ul death dam ages “shall be d istributed equally to the f

ather, m o ther, b rothers and sisters , o r such of t hem as the deceased m ay have living at h is or her death.” (Em phasis added). The n ext sentence provides t hat “[ t]here shall

not be, in any case, a distinction between t he kindred of the whole and half blood of equal

13 F o r ex am

p le, sectio n 9 1 -1 -1 5 (3 )(d )(i) p r o v id es th at “ T h e n a tu ra l fa th er o

f a n illeg itim a te a n d h is k in d

red sh all n o t in h e rit: F ro m o r th ro u g h t h e ch ild u n l ess th e f ath er h as o p en ly treated th e ch i ld a s h is, a n d h a s n o t ref u s ed o r n eg l ected t o su p p o rt th e c h ild . . . .” (E m p h asis ad d ed )

. 3 5degree.” Miss. Code Ann. § 11-7-13. Thus, Lisa, Kim , and A l a n a re required by the

wrongful death statute to be treated no dif f erently than Delvy

n’s m other. ¶89. The lead opinion af f irm s the chancellor’s ruling that “Perkins’s other children cannot

recover w rongf

ul death benef

its through the deceased child, Delvy n, because [ Perkins] does

not m eet the requirem e nts of section 91-1-15 (3)(a)-(c).” There is sim ply no authority in section 11-7-13 to support this conclusion. ¶90. Here, Lisa, Kim , and Alan have b e e n excluded as Delvy n’s wrongf

ul death benef iciaries sim

p ly because Perkins was excluded under section 91-1-15. Although there is s pecif ic statutory language that say s Delvy n’s natural f

ather m ay be excluded pursuant to section 91-1-15, there is no language that would exclude Delvy n’s siblings. ¶91. Lisa, Ki m, a n d Alan are “ half blood” siblings o f Delvy n. T hus, they are Delvy

n’s statutory wrongf

ul death benef

iciaries as Delvy

n’s “brothers and sisters.” They obtained the

status as his wrongf

ul de a t h b e n e f

iciaries d ue to their b lood relationship with Delvy n. Section 11-7-13 clearly a nd spe c i f ically provides that “[ t]here s h all not be, i n any case, a distinction between the kindred of the whole and half

blood of equal degree.” ¶92. Section 1 1-7-13 provides that Delvy n’s f at h e r m a y b e e x c l u d e d under section 91-1-15, but section 11-7-13 m ay not be read to exclude or condition Delvy n’s half s iblings’ rights to their com m on parent’s (the natural f ather’s) status. ¶93. I am of the opinion that chancellor’s exclusion of Lisa, Kim , a nd Alan was m anif estly wrong and clearly

erroneous. I would reverse the judgm ent that concludes Lisa, Kim , and Alan are not proper w rongf ul-death benef

iciaries under section 11-7-13 a n d r e ma n d f or a

3 6h e a r i n g on t he issue of whether Lisa, Kim , and Alan were Delvy n’s half siblings and a r e theref ore entitled to a portion of the settlem ent proceeds. WESTBROOKS AND TINDELL, JJ., JOIN THIS OPINION IN PART.

3 7