Revenge of the Missing Link
February 14, 2017 § Leave a comment
“Heir property” is an often-heard term in Mississippi, used to describe the convoluted and sometimes impossibly complicated ownership of real property that has passed through several generations without administration of an estate or probate of a will.
Walter and Ressie Quinn inherited an interest in some property from Walter’s mother. Although most of the siblings quitclaimed their interests to the Quinns, one sibling quitclaimed her interest to Jessie and Arma Morton. The Quinns filed suit against Arma for partition of the property. They did not join Jessie.
When Arma filed her answer she did not include a defense of failure to join a necessary and indispensable party (R12(h)(2)).
The court ordered a sale of the property, which took place on the courthouse steps on September 29, 2014. When it came time to confirm the sale, Arma raised for the first time that the sale was invalid for failure to join Jessie as a party. So the Quinns filed an amended pleading adding Jessie as a party, and the Mortons waived process and filed an answer. At a final hearing, it was discussed that, although Jessie objected to a sale, he declined to testify.
Following court proceedings, the judge signed a judgment confirming the sale and finding that Jessie had failed to show that he had been prejudiced in any way by the sale. The judgment also found that Jessie had failed to show prejudice because Arma had failed to raise a R12(h)(2) defense. Arma and Jessie appealed.
In Morton v. Quinn, handed down December 13, 2016, the COA reversed and remanded. Judge James wrote for the majority:
¶10. Since the first issue is dispositive, we decline to address the other issue on appeal. “[T]he decision of a trial judge will stand ‘unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.’” Ashmore v. Miss. Auth. on Educ. Television, 148 So. 3d 977, 983 (¶17) (Miss. 2014) (quoting Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 34 (¶4) (Miss. 2003)). After the amended petition was filed, adding Jessie as a respondent, the sale was not vacated, and Jessie was not given a chance to meaningfully participate in the disposition of his property. Jessie favored a partition in kind rather than a sale, yet he was not afforded the opportunity to respond to the Quinns’ request for a judicial sale.
¶11. Mississippi Code Annotated section 11-21-11 (Rev. 2004) permits a judicial partition by sale only where: “[A] sale of the lands, or any part thereof, will better promote the interest of all parties than a partition in kind, or if the court be satisfied that an equal division cannot be made.” At the hearing to confirm the judicial sale, the Quinns asserted that Jessie had to illustrate that the omission of his name as a respondent resulted in prejudice. The trial court afforded him with an opportunity to testify as to any prejudice that he may have incurred. Jessie declined to testify but asserted that he was prejudiced by the sale since he preferred a partition in kind. Moreover, the record shows that Jessie lived on the property, and that the sale would directly affect the location of his patio and other fixtures. Since the disposition of the land directly impacted Jessie’s rights to the subject property, the judicial sale should have been vacated.
¶12. In Shaw v. Shaw, 603 So. 2d 287, 294 (Miss. 1992), the Mississippi Supreme Court held, “While the question of joinder of an absent person generally must be timely raised in the trial court, an appellate court may consider the issue even though it was not initially raised below, and may do so sua sponte.” In the present case, the nonjoinder was raised, but it was not properly raised by the filing of a motion. However, Jessie did raise the matter at the hearing to confirm the sale, which sufficiently preserved the matter on appeal. “Rule 12(h)(2) of the Mississippi Rules of Civil Procedure requires [parties] to raise the issue of failure to join a necessary and indispensable party in the pleadings under [Mississippi ] Rule [of Civil Procedure] 7(a) or by motion for judgment on the pleadings or at the trial on the merits.” Marathon Asset Mgmt. LLC v. Otto, 977 So. 2d 1241, 1246 (¶14) (Miss. Ct. App. 2008).
¶13. The supreme court has noted that “parties whose rights are to be affected are entitled to be heard . . . . Furthermore, they must be notified in a manner and at a time that is meaningful.” Aldridge v. Aldridge, 527 So. 2d 96, 98 (Miss. 1988) (internal citations omitted). Jessie was not properly noticed or added as a respondent until a year after the matter was initiated. Once the Quinns filed their second amended petition for a judicial sale, naming Jessie as a respondent, the sale of the subject property should have been vacated and renoticed for a proper sale, involving all parties if Jessie’s in-kind partition did not materialize. Nevertheless, the court presumed that since Jessie and Arma were husband and wife, Jessie had knowledge of the actions regardless of his omission as a respondent in the matter. We find that presumption was in error.
Several lessons in this:
- The COA has made clear in many cases, including this one, that the mere fact that you know about litigation does not confer jurisdiction over you.
- When Jessie finally awoke and decided to participate, I guess he should have been more forceful in asserting his objection to the sale.
- I would have affirmed, because after the amended complaint was filed Jessie was given the opportunity to object and even to testify in opposition to the sale at the confirmation hearing, but he declined. As a trial judge, one often wonders how far we have to go to accommodate people who simply will not protect themselves even when they have the means to do so.
- When you have litigation involving “heir property,” jump through every hoop and go to extra trouble to discover and get process on everyone who has or claims to have an interest in the property. That extra attention may avoid big headaches later.