Who has Standing to Appeal?
February 3, 2014 § 1 Comment
Whether a party has standing to appeal is a question that does not often surface in our courts, but it did in a recent COA case.
The case of Posey v. Pope and Posey, handed down January 28, 2014, offers an interesting scenario invoving a standing issue on appeal.
Madison Posey died in 2004, leaving approximately 138 acres of land to his surviving wife, Gladys. Madison and Gladys had four children: Dorothy, Willard, Robert and Paul.
Dorothy had been deeded 2 1/2 acres by her father in 1984, and she used another 25 acres of the 138 on which she built and maintained fences, cut timber, and constructed buildings.
Some time around 1994, Willard began using some 60 acres of the 138 from which he cut timber, sharing the proceeds with his mother. He never obtained a deed for any of the 60 acres.
In 2007, by two, separate deeds, Gladys conveyed 132 acres of land to Paul and Robert, retaining a life estate.
Dorothy and Willard filed suit to set aside the 2007 deeds on the grounds of undue influence and adverse possession. The chancery court concluded not only that the deeds should be set aside because they were procured by undue influence, but also that Dorothy and Willard had title by adverse possession.
Robert and Paul appealed only from the decision that Dorothy and Willard had title via adverse possession. They did not attack the chancellor’s ruling of undue influence.
Dorothy and Willard moved to dismiss the appeal on the basis that the court’s finding of undue influence deprived Robert and Paul of standing to appeal solely from the adverse possession ruling. The COA agreed, and dismissed the appeal. Here’s what Judge Barnes, writing for a unanimous court said:
¶7. “[P]arties have standing to ‘sue or intervene when they assert a colorable interest in the subject matter of the litigation or experience an adverse effect from the conduct of the defendant, or as otherwise authorized by law.’” DeSoto Times Today v. Memphis Publ’g Co., 991 So. 2d 609, 612 (¶8) (Miss. 2008) (quoting Fordice v. Bryan, 651 So. 2d 998, 1003 (Miss. 1995)). Clearly, as recipients of the deeds from Gladys, the Appellants had standing to participate in the underlying chancery court action.
¶8. However, as a result of the chancellor’s ruling of undue influence, which voided the deeds, the Appellants no longer maintained any property interest when the appeal was filed. “A party’s claim ‘must be grounded in some legal right recognized by law, whether by statute or by common law[,]’ and that party must be able to show that it has ‘a present, existent actionable title or interest.’” In re City of Biloxi, 113 So. 3d 565, 570 (¶13) (Miss. 2013) (quoting City of Picayune v. S. Reg’l Corp., 916 So. 2d 510, 526 (¶40) (Miss. 2005)). Since the Appellants do not appeal the chancellor’s decision to void the warranty deeds, they no longer possess a “present, existent actionable interest” in the property at issue. The Appellants have also acknowledged that, at the time of appeal, Gladys was the only person who would benefit from a reversal of the chancellor’s finding that the Appellees gained title through adverse possession. Consequently, we find the Appellants lack standing to appeal the chancellor’s decision.
The appellants argued that they had standing as “anticipatory heirs,” which the COA rejected for the reason that Mississippi does not recognize heirship status until a person has died. They also contended that Paul had obtained a POA from Gladys that empowered him to pursue litigation on her behalf, which the court also rejected because she had never joined in the action, either at trial or on appeal.
One significant reason you should be interested in this case is that it highlights how joinder and non-joinder of persons in litigation may have repercussions that you should consider well before you file the initial complaint and any counterclaim. This result would likely have been avoided had Gladys been brought in as a party.
Another reason is that you need to analyze the effect on your client’s interests of limiting issues on appeal. Reading between the lines in this case, it appears that Robert and Paul were doing their best to keep Gladys out of the cross-fire among the siblings (indeed, she died during pendency of the appeal), but the result was the end of their litigation. I’m not being critical of or even questioning any legal advice in this particular case, but as a matter of general principle, always exercise independent, objective judgment and give advice on how to proceed based on that judgment; never let the clients call the shots about who should or should not be included as a party, or what issues should or should not be pursued.
Involuntary Partition by Spouses for Homestead Property
January 7, 2014 § 2 Comments
Mississippi law provides, essentially, two avenues by which parties who share joint interests in real property may effect a partition of their interests: (1) the property interests may be divided by decree of a chancery court per MCA 11-21-3; or (2) the parties may reach a signed agreement, per MCA 11-21-1.
In 2009, the Mississippi legislature amended MCA 11-21-1, the voluntary agreement provision, to add the following language:
(2) Homestead property exempted from execution that is owned by spouses shall be subject to partition pursuant to the provisions of this section only, and not otherwise.
I think most practitioners read that language to mean that, unless the spouses agreed, there could be no partition of homestead property by partition action between them. Whether that interpretation is correct was the subject of a recent MSSC decision.
Elise Noone filed a complaint for divorce charging her husband, Frank, with habitual cruel and inhuman treatment. The chancellor denied the divorce in 2011. The parties were joint tenants with right of survivorship in some 67 acres of land in Copiah County, upon which they claimed homstead. Since the divorce was denied, the property remained in joint ownership.
Elise then filed an action for declaratory judgment to determine whether the chancellor had the power to partition the property, or, at least, to the extent that the value of the property exceeded the $75,000 maximum amount of the homestead exemption, and, if so, asking the court to make a partition of the property. She then filed a motion for summary judgment arguing that the language “exempted from execution” in MCA 11-21-1(2) limited application of the statute to the value of the property exempt from execution only. Frank countered that the language is not limiting, but intends that any homsetead property can be subject to partition only by agreement, and not otherwise.
The chancellor agreed with Frank, and Elise appealed.
The MSSC handed down its decision on December 12, 2013, in Noone v. Noone, Justice Coleman writing, for a unanimous court, explained:
¶7. Elise maintains that, by using the phrase “homestead property exempted from execution,” the Legislature meant specifically to incorporate Section 85-3-21, the homestead exemption statute. Section 85-3-21 allows one to hold up to $75,000 worth of his or her homestead property exempt from execution by creditors. Miss. Code Ann. § 85-3-21 (Rev. 2011). Creditors can access the value of homestead exempted property that exceeds $75,000. Id. Elise’s primary argument is that Section 11-21-1(2) applies only to the extent that the property is actually exempt from execution. In other words, she contends that the law applies the same way to spouses seeking to partition land by decree as to creditors – the law creates a limit on homestead property exempt from execution, and that limit is applicable in all situations where homestead property is invoked. If she were correct, because the Noones’ property is valued at more than $600,000, Elise would still be able to partition the large majority of the property.
¶8. The issue, in the narrowest sense, is the interpretation of the phrase “homestead property exempted from execution.” Miss. Code Ann. § 11-21-1(2) (Supp. 2013). When the meaning of a statute is plain and unambiguous, “the court should simply apply the statute according to its plain meaning and should not use principles of statutory construction.” City of Natchez, Miss. v. Sullivan, 612 So. 2d 1087, 1089 (Miss. 1992) (citations omitted). The potential meanings of “homestead property exempted from execution” are two: (1) the phrase could mean that the entire homestead property is under the ambit of Section 11-21-1, and therefore partition must be by written agreement of the owners; or (2) the phrase could mean that Section 11-21-1 applies only to the $75,000 that is exempt from execution by creditors under Section 85-3-21.
¶9. If the interpretation of that phrase were a true matter of first impression for the Court, then the latter reading might be plausible. However, in similar contexts, the Court has restricted the meaning of “homestead property exempted from execution” to the former. See Hendry v. Hendry, 300 So. 2d 147, 148 (Miss. 1974) (“Homestead value is relevant only in considering the claims of creditors in relation to the homestead upon which exemption is claimed.”); accord Stockett v. Stockett, 337 So. 2d 1237, 1240 (Miss. 1976). Hendry and Stockett have foreclosed any ambiguity. Therefore, in the instant case, the Court is tasked with nothing more than applying the logic underlying Hendry and Stockett.
¶10. In Hendry v. Hendry, a husband sold homestead property without obtaining his wife’s approval. Hendry, 300 So. 2d at 148. Pursuant to Mississippi Code Section 89-1-29 (Rev. 2011), a conveyance so made cannot be upheld. Section 89-1-29 provides, generally, that a conveyance of a “homestead exempted from execution” is not valid or binding unless signed by the owner’s spouse. Id. The Hendry Court held the value limitation on homestead property relevant only to creditors. Hendry, 300 So. 2d at 149. Therefore, the law voided the entire conveyance – not just the portion subject to exemption from creditors. Id.
¶11. The Stockett Court discussed the issue even more explicitly. Stockett, 337 So. 2d at 1239-41. In Stockett, the decedent left all of his property equally to his wife and son. Id. at 1238. The son tried to partition the homestead property of the widow (formerly owned by the decedent) but was denied because of Mississippi Code Section 91-1-23, which limits a devisee’s right to partition a decedent’s “exempt property” occupied by the widow of the deceased. Id. The decedent’s son argued that Section 91-1-23 protected the property only to the extent the value equaled the amount exempt from execution. Stockett, 337 So. 2d at 1239. The Court disagreed, holding that the limit found in Section 85-3-21 protects creditors, while Section 91-1-23 protects widows. Id. at 1240-41; see Miss. Code Ann. §91-1-23 (Rev. 2013). The Stockett Court wrote:
We have not varied in this interpretation of these statutes since 1905 when we said, in Moody v. Moody, 86 Miss. 323, 38 So. 322[, 323 (1905)]: “The limit of value placed by law on the amount of land which can be held as exempt is solely for the protection and benefit of creditors-to prevent unreasonable amounts from being held exempt from execution to the prejudice of those to whom just debts might be due. But the question of value has no place in a consideration of the rights of the surviving widow to the use and occupancy of the homestead. . . .”
Stockett, 337 So. 2d at 1240.
¶12. Both Section 91-1-23 and Section 11-21-1 invoke the exemption from creditors found in Section 85-3-21. However, the reasoning employed by the Stockett Court applies to the case sub judice. Just as Section 91-1-23 protects widows from involuntary partition, Section 11-21-1 protects spouses from involuntary partition. Neither statute protects creditors. The phrase “homestead property exempt from execution” serves as a descriptive phrase identifying the property that one (or, in the instant case, a married couple) inhabits. As shown above, we repeatedly have held that the Legislature’s decision to use the phrase “homestead property exempt from execution” in other statutes identifies the specific type of property that the Legislature wants to protect. The phrase is not, as Elise argues, intended to bring the specific limitations on creditors’ rights to other, unrelated statutes.
That’s a pretty definitive decision. The statute is to be read as protective of spouses, and any interpretation that conflicts with that intent will be rejected.
Another Non-Family-Use Case
August 7, 2013 § 2 Comments
I’ve mentioned here before that I am no big fan of the “family-use” doctrine that morphs separately-owned property into marital merely because it was used by the family.
There are some exceptions to the rule, however, as I have posted about. Here is a post where the COA refused to apply it. Here is another post where I pointed out cases holding that neither plantation and maintenance, nor payment of taxes, nor even joint titling convert separate property into marital.
The latest case, Renfro v. Renfro, decided by the COA on July 30, 2013, is yet another where the appellate court did not agree with the chancellor’s application of the concept.
Claudia and Johnny Renfro married in 1987, and had no children. In January, 2011, they separated after Claudia discovered that Johnny was involved in an adulterous affair, and Claudia sued for divorce.
At issue in the divorce was equitable distribution. The parties had accumulated the usual marital things, including cars, retirement accounts and other financial assets, a residence. In addition to all of the other assets, there was a 140-acre tract of unimproved land that Claudia’s mother had deeded to her in 2007.
Following a trial, the chancellor adjudicated all of the assets, including the 140-acre tract, to be marital property subject to division. She allocated one-half of the assets, which totalled in value nearly $600,000, to each party. In her opinion, the chancellor found as to the 140 acres as follows:
The testimony and evidence is substantial that the management of the property, including its enrollment in government programs, planting of trees, leasing for hunting purposes, construction of gates and roads, spraying and paying of taxes was solely at the control of [Johnny]. Further, and perhaps most importantly, [Claudia] indicated that the development and management of the property as a tree farm was for the purposes of providing income for the parties’ retirement. As such, the court finds that the normally non-marital character of the property was changed by the family[-]use doctrine, Algood [v.] Algood, 63 So. 3d 443 (Miss. [Ct.] App. 2011), as well as by conversion by implied gift, Algood, supra, such that the property lost its non-marital nature and now must be considered marital property subject to equitable distribution.
Claudia appealed, complaining primarily that the 140 acres was not marital property subject to division, and that the chancellor had misinterpreted the evidence.
In its opinion, penned by Judge Carlton, the COA found that there was inadequate evidence to support the judge’s finding that the tree farm on the property had been developed as part of the parties’ retirement plan.
As for the other indicia of family use relied upon by the chancellor, the COA said:
[¶16] … We also find error in the chancellor’s determination that Johnny’s actions of enrolling the land in government programs, planting trees, leasing the land for hunting purposes, constructing gates and roads, spraying the land, and paying taxes on the property constituted sufficient evidence to convert the land into a marital asset. See Hankins [v. Hankins,] 729 So.2d [1283]at 1286-87 (¶15); Ory [v. Ory], 936 So. 2d [405] at 411 (¶15). This Court has held that property-tax payments are traceable and do not transmute separate property into marital property. Brock v. Brock, 906 So. 2d 879, 888 (¶50) (Miss. Ct. App. 2005) (quotation omitted) (“[T]he key to determining when there has been transmutation [from separate property to marital property] by commingling is whether the marital interests can be identified, i.e., can be traced.”). We also find no evidence submitted by Johnny to show how the land increased in value during his marriage to Claudia, or that an agreement existed between Claudia and Johnny that Johnny’s actions of managing the land would give him an interest in the property.
¶17. As acknowledged, nonmarital assets may lose their status as such if the party commingles the asset with marital property or uses the assets for the benefit of the family. Johnson, 650 So. 2d at 1286. However, Claudia testified that she and Johnny never used the land for any family purposes. Significant to our analysis, we recognize that in the recent and similar case of Marter v. Marter, 95 So. 3d 733, 737-38 (¶¶14-16) (Miss. Ct. App. 2012), this Court held that evidence that the husband maintained the property inherited by the wife, paid the property taxes, and planted some trees on the property did not convert the property to marital property by virtue of commingling.
¶18. Accordingly, we find the chancellor erred in classifying the 140 acres as marital property. The record fails to show that the real property at issue was converted to marital property through the family-use doctrine, since the property was not used for a family purpose. Additionally, Johnny’s testimony only showed a potential intended purpose for the property in the future. See Deborah H. Bell, Bell on Mississippi Family Law § 6.04 (2005). The record also fails to contain evidence that Claudia commingled the property or used it as collateral for family purposes. See Bell, § 6.04[2]. Also, insufficient evidence exists in the record to show that Johnny contributed anything of significance to the improvement of the property. The record shows little, if any, contribution by Johnny, and shows that Claudia owned the property for only three years while she cohabited with Johnny. For the foregoing reasons we reverse the judgment of the chancery court on the matter of equitable division of the property — specifically, the classification of the 140 acres as marital property — and remand to that court for further proceedings consistent with this opinion.
That is a template you might be able to use in extricating your client’s property from the grasping tentacles of the family-use doctrine.
It’s still beyond me that activities like infrequent use of a beach condo, or fishing in a lake, or use of an antique chair, would convert separate property to marital, while plantation and maintenance would not. But, hey, I’m not complaining. Any exception to this rule is gratefully welcomed by me!
Adverse Possession Refresher
July 24, 2013 § 6 Comments
The COA decision in Roberts v. Young’s Creek Investments, Inc., decided July 16, 2013, is yet another decision in the field of adverse possession that you should file away for future use the next time that you find yourself litigating that issue in chancery court.
All adverse possession cases are fact-driven, and this particular case is no exception. But it’s not the facts we’re interested in here. It’s the law. Here are some excerpts from the opinion that flesh out the legal requirements:
- ¶7 “[F]or possession to be adverse it must be (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Blackburn v. Wong, 904 So. 2d 134, 136 (¶15) (Miss. 2004) (citing Thornhill v. Caroline Hunt Trust Estate, 594 So. 2d 1150, 1152-53 (Miss. 1992)). “We will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous, or applied an erroneous legal standard.” Taylor v. Bell, 87 So. 3d 1134, 1137 (¶6) (Miss. Ct. App. 2012) (citing Buford v. Logue, 832 So. 2d 594, 600 (¶14) (Miss. Ct. App. 2002)). The chancellor must find that the plaintiffs proved each element of their claim by clear and convincing evidence. See Blackburn, 904 So. 2d at 136 (¶16).
- Claim of Ownership. ¶8. Under the claim-of-ownership element of adverse possession, the chancellor must determine whether the purported adverse possessor’s actions were sufficient to “fly a flag over the property” and put the actual owners on notice that the property was “being held under an adverse claim of ownership.” Apperson v. White, 950 So. 2d 1113, 1117 (¶7) (Miss. Ct. App. 2007) (citing Walker v. Murphree, 722 So. 2d 1277, 1281 (¶16) (Miss. Ct. App. 1998)). The Mississippi Supreme Court has stated:
When determining whether the [possessors] undertook possessory acts sufficient to support a claim of adverse possession, the chancellor must look to the quality and not the quantity of the acts indicative of possession. Possessory acts necessary to establish a claim of adverse possession may vary with the characteristics of the land, and adverse possession of wild or unimproved lands may be established by evidence of acts that would be wholly insufficient in the case of improved or developed lands.
Id. at (¶8) (internal quotations and citations omitted). In the present case, the chancellor determined that the land in dispute was wild land. Therefore, the claim of adverse possession of the 7.79 acres may be proved by a showing of possessory acts that would be insufficient to establish the claim if the 7.79 acres were improved and developed land.
- Hostile. ¶10. “Possession is defined as effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses.” Blankinship v. Payton, 605 So. 2d 817, 819-20 (Miss. 1992). “Possession is hostile and adverse when the adverse possessor intends to claim title notwithstanding that the claim is made under a mistaken belief that the land is within the calls of the possessor’s deed.” Wicker v. Harvey, 937 So. 2d 983-94 (¶34) (Miss. Ct. App. 994 (¶34) (citing Alexander v. Hyland, 214 Miss. 348, 357, 58 So. 2d 826, 829 (1952)). The adverse possessor must also possess the property without permission, because permission defeats any claim of adverse possession. Apperson, 950 So. 2d at 1118 (¶12).
- Open, Notorious, and Visible. ¶13. In addition to the requirements that possession be under a claim of ownership and hostile, possession must also be open, notorious, and visible. To satisfy this element, the possessor “must unfurl his flag on the land, and keep it flying, so that the actual owner may see, and if he will, that an enemy has invaded his domains, and planted the standard of conquest.”Wicker, 937 So. 2d at 994 (¶35) (quoting Blankinship, 605 So. 2d at 820).
- Continuous and Uninterrupted for a Period of Ten Years. ¶14. The plaintiff in an adverse-possession action must be in possession of the property for at least ten years.See Miss. Code Ann. § 15-1-13(1) (Rev. 2012). This period of possession must be continuous and uninterrupted. Id.
- Exclusive. ¶15. Exclusive possession means that the possessor “evinces an intention to possess and hold land to the exclusion of, and in opposition to, the claims of all others, and the claimant’s conduct must afford an unequivocal indication that he is exercising [the] dominion of a sole owner.”Wicker, 937 So. 2d at 995 (¶40) (quoting Rawls v. Parker, 602 So. 2d 1164, 1169 (Miss. 1992)) (internal quotations omitted). It does not mean that no one else can use the property.Apperson, 950 So. 2d at 1119 (¶15). “Exclusivity, within the meaning of the statute, means that the adverse possessor’s use of the property was consistent with an exclusive claim to the right to use the property.”Id. (citing Moran v. Sims, 873 So. 2d 1067, 1069 (¶10) (Miss. Ct. App. 2004)).
- Peaceful. ¶16. … Our supreme court has held that expected disputes associated with the use or ownership of the property are not indicative of the possession not being peaceful. See Dieck v. Landry, 796 So. 2d 1004, 1009 (¶15) (Miss. 2001).
- Permissive Use. ¶17. There cannot be a valid claim of adverse possession when the actual owner has given the possessor permission to use the land. Massey v. Lambert, 84 So. 3d 846, 849 (¶11) (Miss. Ct. App. 2012).
- Color of Title. ¶18. … “Color of title is an instrument of conveyance or a record which appears to convey title[,] but which in fact does not have that legal effect.” Houston v. U.S. Gypsum Co., 652 F.2d 467, 473 (5th Cir. Unit A Aug. 1981). “Thus, for example, an adverse possessor may claim [the property] under the color of title of a defect or imperfect instrument, even though his grantor or a predecessor was entirely without title or interest.”Id. at 474. … The chancellor considered color of title as if it were the first element of adverse possession. However, color of title is not an element of adverse possession. Furthermore, in order to possess land under color of title, there must be a defect or imperfection in the deed that, in effect, denies title or interest to the property.
A checklist for the elements adverse possession is here.
A COA decision by Judge Carlton analyzing adverse possession elements is here.
A COA decision by Judge Roberts discussing some of the adverse possession factors is here.
I was glad to see Judge Irving, for the COA, point out that color of title is not one of the elements of adverse possession. I hear it mentioned in nearly every adverse possession case I hear, and sometimes the contortions people go through to squeeze the facts into that element can be interesting to watch. Color of title may enter into the conversation when there is a defect in the deed conveying title that gives rise to the dispute, but it’s not one of the elements that the court must consider in every adverse possession case.
I don’t know about you, but when I practiced, I could not amass enough cases to help me understand those arcane phrases about unfurling flags and keeping them flying, and that an “enemy has invaded his domains,” and the planting of a standard of conquest, to make me feel comfortable. Every time I encountered an adverse possession case I had images of cavalry charges, bloody banners falling in the clash of arms, and castles stormed by medieval knights.
To Err is Human … to Fix it is the Chancellor’s Job
June 19, 2013 § Leave a comment
Shelly Kelly wanted to rent a house in Greenville. She approached Harrison Barry, who owned some rental property. Instead of a rental, they struck a deal for Shelly to buy some property for $5,000.
Barry asked Edward Lueckenbach, a Greenville attorney, to prepare the deed, but he was not asked to do a title opinion. The attorney went to the Washington County Courthouse, where he got the legal description for “Lots 51 and 52” in Shelton Subdivision, and he prepared a warranty deed.
Kelly bought her property and moved in at 330 Lake Street.
Barry renovated the neighboring property at 332 Lake Street, converting it from a single-family dwelling into a boarding house. He paid for air-conditioning, painting, and plumbing work. He installed a new water heater, furnace, closet, door locks, and doors, including paying for all the necessary materials. Barry allowed Kelly to screen the tenants, based on a complaint she made about noise, and Kelly collected the rent, which she turned over to Barry.
When Kelly received a tax bill for the 332 property, she called Barry to inquire, and he went to the attorney’s office, who advised him that the Lots 51 and 52 on the deed were for two different dwelling houses, one at 330, and one at 332. The attorney contacted Kelly, who refused to sign a corrective quitclaim deed. Barry filed suit to have the deed reformed to reflect the actual intent of the parties, and the chancellor ruled in Barry’s favor. Kelly appealed.
In Kelly v. Barry, decided May 21, 2013, the COA affirmed. Judge Roberts’ opinion sets out the basis for the ruling:
¶12. “A deed may be reformed where it is shown to [have] result[ed] from the mutual mistake of the parties in contracting for it.” Olive [v. McNeal], 47 So. 3d at 739 (¶12) (citing Brown v. Chapman, 809 So. 2d 772, 774 (¶9) (Miss. Ct. App. 2002)). As stated in Brown:
The law permits reformation of instruments to reflect the true intention of the parties when . . . the erroneous part of the contract is shown to have occurred by a mutual mistake, i.e., the party seeking relief is able to establish to the court’s satisfaction that both parties intended something other than what is reflected in the instrument in question[.]
Brown, 809 So. 2d at 774 (¶9). “The party seeking reformation of a deed on a mistake theory bears the burden of proof beyond a reasonable doubt.” Olive, 47 So. 3d at 739-40 (¶13) (citing McCoy v. McCoy, 611 So. 2d 957, 961 (Miss. 1992)).
¶13. Kelly notes that in Olive, this Court affirmed a chancellor’s decision that a litigant had failed to demonstrate mutual mistake because: (1) the document at issue in Olive was titled as a warranty deed; (2) the grantor was literate; (3) the grantor had several opportunities to review the warranty deed; (4) the grantor had some experience in real-estate transactions; and (4) the grantor had an opportunity to discuss the warranty deed with his attorney. Olive, 47 So. 3d at 740 (¶17). Kelly argues that the circumstances in this case are similar to the circumstances in Olive. We disagree.
¶14. Without question, the document at issue in this case was styled as a warranty deed. However, the property description merely indicated that Kelly was acquiring “Lots 51 & 52.” The property description does not indicate that Barry was selling Kelly 330 Lake Street and 332 Lake Street. In preparing the warranty deed, Lueckenbach could have mistakenly believed that “Lots 51 & 52” both applied to a single street address. Barry testified that he did not read the property description. Even if he had, no portion of the property description would have placed him on notice that he was mistakenly transferring title of two separate street addresses.
¶15. Furthermore, Barry’s behavior after the transaction indicated that he believed he never transferred title to 332 Lake Street. He paid for substantial repairs to 332 Lake Street and converted it to a boarding house. And he continued to pay the utility bills, taxes, and insurance premiums that related to the property.
And Kelly collected the rent for Barry and turned it over to him.
Who among us has not had a similar experience? I know I had a scarily similar experience once in Neshoba County where I would have faced litigation at my expense to correct a misdeeded parcel, but for the intervention of a young attorney with a sense of honor and equity, who prevailed upon his client to agree to fix the screw-up that had been the mutual error of two attorneys who put haste ahead of accuracy in drafting the judgment and deeds necessary to settle an estate.
Cases like this one are at the very core of what chancery courts are for.
Oops … and a Further Oops in a Partition Suit
June 18, 2013 § 2 Comments
Sometimes in the euphoria of settlement, when the bright sunlight of concord and goodwill seems to dispel the gray clouds of discord and conflict, in our optimistic pursuit of a written agreement, we lose sight of the details, where devilment always lurks, and out of that inattention things can come dizzyingly unravelled, and then totally unhinged in a most discombobulating way.
That’s more or less what happened at the trial level in the case of Powell v. Gregory, decided by the COA on May 14, 2013.
Siblings Julia Powell, Mary Margaret Gregory, and Bennie Evans believed that they owned a “forty” that had been their parents’ property, and which they came to own via heirship. The “forty” actually consisted of 37.98 acres, or so they thought.
Julia had acquired fee simple title to 2.02 acres from her parents, located in the NW corner of the “forty,” where a home she occupied was located.
The three could not agree on how to divide the property, so the sisters sued Bennie, asking for partition in kind of the surface acreage only.
After suit was filed, the siblings learned that what they thought was a “short forty” of some 38 acres was actually a “long forty” of 47.64 acres, nearly ten acres more than they had anticipated.
[Author’s note: Notice how what everybody believes to be true keeps turning out not to be so?]
After some negotiation, the parties presented the chancellor with an agreed judgment that included the words, “This is a final judgment” (Note: for the uninitiated, that language is required by local rule in that district in any judgment finally adjudicating the ultimate issue). The judgment had attached a county ownership plat showing the general designation of division, with Julia and Mary Margaret to receive 5.94 acres each, and Bennie to receive the remaining 35.64 acres. The parties agreed also to division of taxes and survey expenses. Excepted from the agreement would be Julia’s separate two-acre tract.
The chancellor signed the agreed judgment. No one appealed.
When the surveyor went out, he discovered that Julia’s house was actually 20 feet west of the western border of her “excepted property,” amidst the “heir property,” and not located on her excepted parcel. Julia refused honor the agreement. A year after the original agreed judgment was entered, Mary Margaret filed an action for contempt, and Julia in response filed for relief under MRCP 60(b)(6).
The chancellor ruled that the original agreed judgment was contractual and enforceable. He ordered that the description to Julia’s 2.02 acres be amended by deed to be where she said it was, and directed that the remaining acreage be divided among the three by acreage as originally agreed. He denied Mary Margaret’s request to hold Julia in contempt. Julia filed a battery of motions under R59(a), 59(e) and 60, all of which were overruled. She appealed.
So, did the COA’s decision finally untangle the knot? Well, in a word, no.
Judge Fair’s opinion indicates that the court would have liked to, but for one dispositively complicating factor:
¶20. Based on the record before us, the chancellor would have been within his discretion in interpreting the intent of the parties in the agreed final judgment and fashioning a remedy to carry out that intent. However, we must reverse the second final judgment because of the issue of necessary parties. On November 4, 2010, Belissa, Julia’s daughter, recorded a warranty deed from Julia to herself dated November 3, with a description almost (because of what Julia claimed was a scrivener’s error creating a description that does not “close”) exactly matching that of the two acres described in her mother’s deed. So far as the record reveals, the court was not informed of the existence of Belissa’s deed until it was submitted into evidence at the hearing two months later.
So with a couple more runaway cars added to the trainwreck, back the parties go, now to bring Belissa aboard for Round Three of their unhappy saga that began more than five years ago with that hapless partition complaint. Unless something new is injected, my guess is that the outcome at ground level will be pretty much the same this next go-round as it has been up to now.
Clients always seem to be in such sure command of their facts, even when they have no legitimate basis therefor. When you take what they say at face value, especially in a matter as detail-and-fact dependent as a property case, you get what you pay for, so to speak.
DIAMONDHEAD IN THE ROUGH
August 13, 2012 § 1 Comment
Carolyn and Anthony lived together in Louisiana without benefit of marriage. They purchased a home together in Diamondhead, on the Mississippi gulf coast, which they titled as joint tenants with right of survivorship. They had the idea that they would later marry, move from Louisiana, and take up residence in their Hancock County home.
Anthony paid the entire $274,000 purchase price, along with the utilities, taxes, insurance and property owners association dues. Carolyn testified that she used some of her personal property to furnish the house, and she put up drapes and made other cosmetic improvements.
As things sometimes do, the relationship soured, and Anthony filed a petition in chancery court to partite the property by sale, claiming it was not susceptible to partition in kind. He also asked for an adjustment of equities, since he had made the greater contribution to the acquisition. Carolyn denied that Anthony should have the adjustment, since the parties were on an equal legal footing in relation to the property by virtue of the joint tenancy.
The chancellor found that to award Carolyn any money from the partition sale would be an unjust enrichment to her. He also cited MCA 11-21-9, providing for an adjustment of equities between the parties, and 11-21-33, which deals with owelty. He awarded Anthony 100% of the proceeds of sale of the property.
In a rather brief opinion rendered in the case of Jones v. Graphia, on August 7, 2012, the COA affirmed the chancellor. Judge Griffis, writing for the majority, distinguished cases cited by Carolyn and upheld the chancellor’s adjustment of equities per the statute, citing the appellate court’s limited scope of review.
Judges Carlton and Maxwell wrote dissents that are worth a read, particularly if you do a lot of this kind of work.
To me, the significance of this decision is that it comes in the wake of the Cates v. Swain case decided by the COA on April 17, 2012, and authored by Judge Maxwell. That is the case, you may recall, that held an unmarried, same-gender couple not to have acquired any equitable interest in assets accumulated during the relationship. I posted about the case here.
The obvious distinction between the two cases is that in Cates v. Swain the parties intentionally did not title the real property jointly, while in Jones v. Graphia the property was titled in joint ownership.
Once again, if you are advising unmarried couples or individual parties to such a relationship, the implications of these two cases are clear: if the parties do not formalize their relationship, at least one, and maybe both, will have no legal protection. Jones was protected, as the majority opinion pointed out, in the sense that if Graphia had died she would have been vested with 100% title to the property. The court does not say so, but it is implicit in the opinion that, had Jones made any contribution to the accumulation of equity in the property, she would have been entitled to something in the adjustment of equities. Likewise, since Elizabeth Cates was not on the title, and the parties did not have any enforceable contractual obligation to one another, she had no claim to any interest in the property.
JUDGE CARLTON’S PRIMER ON ADVERSE POSSESSION
March 28, 2012 § 1 Comment
To establish adverse possession requires proof by clear and convincing evidence of some rather elusive concepts established by the courts to interpret and apply MCA § 15-1-13. That’s why, whenever I find an exposition on the applicable law, I’m quick to share it so that you can use it.
The most recent useful primer on the subject is Judge Carlton’s opinion in the COA case of Greenwood v. Young, decided February 7, 2012. I’ve stripped out the law to provide you with a skinny you may want to add to your trial notebooks:
¶19. Mississippi Code Annotated section 15-1-13(1) governs claims of adverse possession, providing in part:
“Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title, saving to persons under the disability of minority or unsoundness of mind the right to sue within ten (10) years after the removal of such disability, as provided in Section 15-1-7. However, the saving in favor of persons under disability of unsoundness of mind shall never extend longer than thirty-one (31) years.
In order to establish a claim of adverse possession, the party claiming to have adversely possessed the property must show, by clear-and-convincing evidence, that his possession was (1) under a claim of right or ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful. Pulliam v. Bowen, 54 So. 3d, 331, 334 (¶13) (citations omitted).
The factors:
Claim of Ownership. ¶21. “In the end, the ultimate question is whether the possessory acts relied upon by the would be adverse possessor are sufficient to fly his flag over the lands and to put the record title holder on notice that the lands are held under an adverse claim of ownership.” Hill v. Johnson, 27 So. 3d 426, 431 (¶19) (Miss. Ct. App. 2009) (citations omitted).
Actual or Hostile. ¶23. “The actual or hostile occupation of land necessary to constitute adverse possession requires a corporeal occupation, accompanied by a manifest intention to hold and continue to hold the property against the claim of all other persons, and adverse to the rights of the true owner.” Hill, 27 So. 3d at 431-32 (¶23).
Open, Notorious, and Visible. ¶26. “The mere possession of land is not sufficient to satisfy the requirement that the adverse possessor’s use be open, notorious, and visible.” Webb v. Drewrey, 4 So. 3d 1078, 1083 (¶19) (Miss. Ct. App. 2009) (citation omitted). An adverse-possession claim will not begin “unless the landowner has actual or constructive knowledge that there is an adverse claim against his property.” Id. “An adverse possessor ‘must unfurl his flag on the land, and keep it flying, so that the (actual) owner may see, and if he will, [know] that an enemy has invaded his domains, and planted the standard of conquest.’” Id.
Continuous and Uninterrupted for Ten Years.
Exclusive. ¶29. “Exclusivity, within the meaning of the statute, means that the adverse possessor’s use of the property was consistent with an exclusive claim to the right to use the property.” Hill, 27 So. 3d at 432 (¶27). “Exclusive use is at the most basic level the intent of actual and hostile possession.” Id. “To satisfy the element of exclusivity, ‘the claimant’s conduct must afford an unequivocal indication that he is exercising dominion of a sole owner.’” Stone v. Lea Brent Family Invs., L.P., 998 So. 2d 448, 455 (¶25) (Miss. Ct. App. 2008) (citations omitted). “Exclusive use” does not mean that no one else uses the property. Id. “Rather, exclusive use indicates a right to use the land above other members of the general public.” Id.
Peaceful. ¶30. The adverse possession must be peaceful. Jordan v. Fountain, 986 So. 2d 1018, 1023 (¶17) (Miss. Ct. App. 2008). “The mere existence of a dispute over the use of land does not present an obstacle to satisfy the element of peaceful use.” Hill, 27 So. 3d at 432 (¶29). “Simple disputes often arise between neighboring landowners, but do not rise to the level of destroying the peaceful existence between them.” Id.
Clear and Convinving Evidence. The mere fact that there is contradictory evidence does not mean that the credible evidence is not clear and convincing. See, Stancil v. Farris, 60 So. 3d 817, 824 (¶14) (Miss. Ct. App. 2011) “If clear[-]and[-]convincing evidence could never be shown in the presence of contradictory testimonies, virtually no case requiring a showing by clear and convincing evidence could be proven. Such is clearly not the case.”
You should read the opinion carefully to see how the chancellor applied the law to the facs, and how the COA viewed the chancellor’s ruling. Your case may be distinguishable.
Another adverse possession post highlighting a COA ruling by Judge Roberts is here.
You can find an annotated checklist of adverse possession factors by following the link.
The latest COA case on adverse possession is Massey v. Lambert, decided March 27, 2012, in which the court upheld the chancellor’s ruling that the use of the property had been permissive, which defeats a claim of adverse possession.
PARTITION: BY SALE OR IN KIND?
February 29, 2012 § 5 Comments
Partition is the legal mechanism in Mississippi for dividing joint owners’ interests in real property when they can not otherwise agree to do so. The partition statute is MCA § 11-21-1, et seq.
It seems from where I sit that almost all partition cases come before the court with near-unanimous agreement among the parties that, if the property must be divided, sale will be the most advantageous method.
Even in contested cases, the prevailing view appears to be that the property should be divided by sale. That is not the law in Mississippi, however. Partition in kind is the favored method of division.
In the case of Fuller v. Chimento, 824 So.2d 599, 601-2 (Miss. 2002), the Mississippi Supreme Court laid out the law on the subject:
A partition in kind is the preferred method of partition of property under Mississippi law. Overstreet v. Overstreet, 692 So.2d 88, 91 (Miss.1997); Shaw v. Shaw, 603 So.2d 287, 290 (Miss.1992); Unknown Heirs at Law of Blair v. Blair, 601 So.2d 848, 850 (Miss.1992); Monaghan v. Wagner, 487 So.2d 815, 820 (Miss.1986); Bailey v. Vaughn, 375 So.2d 1054, 1057 (Miss.1979); Mathis v. Quick, 271 So.2d 924, 926 (Miss.1973); Dailey v. Houston, 246 Miss. 667, 151 So.2d 919, 926 (1963); Carter v. Ford, 241 Miss. 511, 130 So.2d 852, 854 (1961); Blake v. St. Catherine Gravel Co., 218 Miss. 713, 67 So.2d 712, 714 (1953); Hilbun v. Hilbun, 134 Miss. 235, 98 So. 593, 594 (1924); Shorter v. Lesser, 98 Miss. 706, 54 So. 155, 156 (1911); Smith v. Stansel, 93 Miss. 69, 46 So. 538, 539 (1908). See also 7 Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi Law § 60:99, at 56 (2001).
The propriety of a partition sale or partition in kind is determined on a case-by-case basis. Wight v. Ingram-Day Lumber Co., 195 Miss. 823, 17 So.2d 196, 197 (1944). To justify a partition by sale, the party seeking the sale must bring his case squarely within Miss. Code Ann. § 11-21-11 (Supp.2001) which states in pertinent part that
If, upon hearing, the court be of the opinion that 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, it shall order a sale of the lands, or such part thereof as may be deemed proper, and a division of the proceeds among the cotenants according to their respective interests.
The use of the conjunction “or” in this statutory scheme provides for a two-prong inquiry into the propriety of a partition sale. A partition sale can be had if it will (1) “better promote the interest of all parties than a partition in kind” or (2) “if the court be satisfied that an equal division [of the land] cannot be made.” Id. See Blair, 601 So.2d at 850. See also Dantone v. Dantone, 205 Miss. 420, 38 So.2d 908, 911 (1949); Cox v. Kyle, 75 Miss. 667, 23 So. 518, 519 (1898). “Affirmative proof of at least one of these statutory requirements must affirmatively appear in the record in order for the court to decree a partition by sale.” Blair, 601 So.2d at 850. Furthermore, a court has no right to divest a cotenant landowner of title to his property by sale over his protest unless these conditions are fully met. Shorter, 54 So. at 156.
The joint owner seeking a partition sale has the burden of proving that the land is not susceptible of partition in kind and that a sale is the only feasible method of division. Overstreet, 692 So.2d at 90-91; Hogue v. Armstrong, 159 Miss. 875, 132 So. 446, 448 (1931).
It is permissible for the court to order partition by sale as to one parcel, and partition in kind as to another. The court’s action has to be supported by the requisite proof. I urge you to read the cases to get a feel for exactly what it is you need to prove.
When you have a partition suit and your client or the other party is objecting to a division in kind, you should expect your position to fail if you do not provide adequate evidence. If you want a sale, you must put on proof how sale will better promote the interests of the parties or that the property can not be equally divided in kind. The party wanting a sale has the burden of proof. If the party wanting a sale has met his burden of proof and you want division in kind, you must put on proof contradicting that of the party wanting a sale.
THE VALUE OF VALUATION
November 17, 2011 § 3 Comments
Some lawyers like to play a cat-and-mouse game in which they go light on some proof, expecting the chancellor to fill in the blanks in their client’s favor. Sometimes that strategy fails calamitously.
The latest case in point is Powell v. Powell, decided by the COA on November 8, 2011, an equitable distribution case. Sherida Powell and her husband James were locked in a battle over the marital estate, the major components of which were the marital residence, some future payments from the sale of a business, and James’s retirement account. The chancellor decided the values based on the proof, and sherida hit the appeal button, complaining that the judge’s adjudication of values was incorrect.
The COA, via Judge Irving, disagreed with Sherida. The opinion is instructive about what works and does not work as proof of values, so I am quoting it here:
¶20. Sherida first attacks the value that the chancery court assigned to the marital home, which James testified was worth $80,000 before he renovated it prior to his marriage to Sherida. Sherida complains that numerous documents could have been provided to prove the value of the home. While such documents could have been provided, they were not–not by James, and not by Sherida. Sherida was entitled to provide whatever documentation she could obtain regarding the value of the home; in the absence of such, we decline to find error with the chancery court’s valuation of the home. * * *
¶21. Sherida next complains that the chancellor erred in “failing to calculate the value” of the future payments on the promissory note from ASAP’s sale. We note that Sherida made no effort to provide a calculation of the future value of the payments. In the absence of any valuation of the ASAP promissory note payments, we decline to hold the chancery court in error in its valuation of the payments.
¶22. Sherida also complains that James’s retirement account should have been considered a marital asset. In her brief, Sherida concedes that the only evidence as to the value of the account came from her trial exhibit 31. That exhibit was simply a summary of Sherida’s valuation of certain assets, including James’s retirement account. It appears that Sherida’s “value” for the account is simply the percentage that she believes she should receive of each of his monthly disability checks. This did not provide the chancery court with an adequate valuation of the retirement account. No other evidence was presented by either party that conclusively established the account’s value. Under these circumstances, the chancery court did not err in declining to evaluate the account as a marital asset.
A few nuggets from this case:
- The chancellor has no duty to go out and develop your proof for you. It’s up to you to put adequate proof in the record to support your client’s position. If you don’t do so, the appellate courts are not going to entertain your complaint that the judge should have found a different way.
- The chancellor can pick and choose what to believe from equivalent proof. In other words, if each party simply lobs up a guess as to a value, the judge can pick which one to swing at and hit. It’s up to you to come up with weightier proof, like an appraisal from a qualified appraiser, or some other weightier source, if you want to have the upper hand as to values.
- If you want the judge to calculate future values or some such, then offer an expert, or a stipulated table, or something of the like. Don’t expect the trial judge to perform actuarial and trigonometric calculations when you have not provided the template to do so.
- If you fail to provide adequate proof of the valuation of a retirement account and the parties’ relative contributions to it, you do so at your client’s peril. Here, the fallout was a finding by the trial court that the account was not marital. In Pierce v. Pierce, 42 So.3d 658 (Miss.App. 2010), the fallout was a remand for further findings of fact.
- If you don’t put evidence into the record, don’t expect to be able to argue about it on appeal. And don’t expect the trial judge to rule in your favor, either.
- Once again … the more difficult you make it for the trial judge to figure out, the less likely you will prevail, as I have often said here before.
- When you have a valuation case, jump on it early. Get your client to bring you as many documents as possible, such as account balances, valuations, appraisals and financial statements. Get tax returns with depreciation info. Collect closing statements and property tax data. Use discovery to get admissions as to admissibility and authenticity of documents, and to admit values. Discover the existence of any other documents. If valuation will be contested, line up your experts. And remember that experts must be designated no later than 60 days before trial, per UCCR 1.10, if you were requested to disclose them in discovery.
There’s another interesting aspect to this case, and you can read about it here.
The Better Chancery Practice Blog 