MISSISSIPPI SUPREME COURT OPINIONS HAND DOWN DATE: 8/31/2017

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1 MISSISSIPPI SUPREME COURT OPINIONS HAND DOWN DATE: 8/31/2017 Topics: Real property - Parol evidence - Transfer of partnership interest - Section Instrument of writing - Property description - Section (a)(1) - Partnership property WHITE v. WHITE, NO CA SCT Civil HON. PERCY L. LYNCHARD, JR. DESOTO COUNTY CHANCERY COURT JOHN THOMAS LAMAR, III, JOHN THOMAS LAMAR, JR. ROBERT RYAN REVERE Presiding Justice Randolph Affirmed. Bill White and his son, Tommy White, were partners in a business that owned and operated convenience stores. During the course of the partnership, Bill married Anita White. In 2005, Tommy bought his father s share of the partnership for $21,318.10, but in dissolving the partnership, Bill and Tommy neglected to execute and file deeds transferring the partnership s real property. When Bill s health declined rapidly, Anita and Tommy began to clash over Bill s healthcare. During this time, Tommy realized that he and his father had failed to execute deeds transferring the partnership s real-property assets. Tommy used a durable power of attorney his father had given him years before to execute quit-claim deeds transferring the partnership property to himself. Tommy filed a petition for a conservatorship for his father s benefit and sought appointment as his father s conservator. Anita filed a counterclaim that challenged Tommy s fitness to serve as his father s conservator and sought to have Tommy return all assets he had transferred to himself using his father s power of attorney. The chancellor agreed that a conservatorship was appropriate, but he appointed a third party as Bill s conservator. When Bill died, the conservator filed a motion asking to be discharged from his duties and to be allowed to distribute the assets of the conservatorship to Bill s estate. The parties agreed to an order discharging the conservator and to a distribution of funds held by the conservator to Bill s estate. The chancellor s order made no mention of Anita s action to set aside the deed transfers. Anita filed suit to set aside the quit-claim deeds and to redeem the real property Tommy had acquired using his father s power of attorney. The parties filed competing motions for summary judgment. The chancellor held that Anita s action was barred by res judicata, granted Tommy s motion, and denied Anita s cross-motion for summary judgment. Anita appealed. The case was remanded. On remand, the chancellor determined the 2005 instrument transferred the property. The court found the 2009 quitclaim deeds inconsequential and declined to analyze whether Tommy s use of the power of attorney in 2009 breached a fiduciary duty to Bill. Anita appeals. Page 1 of 7

2 Analysis: Issue 1: Parol evidence Anita argues that Bill s will was unambiguous, and therefore the 2005 instrument was inadmissible parol evidence of testamentary intent. But Tommy did not seek to admit the 2005 instrument as evidence of testamentary intent. Because the document was admitted to show that the property had been adeemed prior to the testator s death, its admission did not violate the parol evidence rule. Issue 2: Transfer of partnership interest Any interest in or claim to land may be conveyed not only by deed or will but by any other instrument of writing signed and delivered. Section provides that [a]ny interest in or claim to land may be conveyed to vest immediately or in the future, by writing signed and delivered; and such writing shall have the effect to transfer, according to its terms, the title of the person signing and delivering it, with all its incidents, as fully and perfectly as if it were transferred by feoffment with livery of seizin, notwithstanding there may be an adverse possession thereof. The 2005 instrument is a writing which was signed, sealed, and delivered. The instrument evinces Bill s intent to transfer title to all [partnership] property to [Tommy]. Although Anita argues that the property description in the instrument is insufficient, the 2005 instrument purported to transfer all [partnership] property. And evidence was presented at trial that the partnership owned only land in Mississippi and that the Yalobusha properties were partnership properties. Section (a)(1) provides that [p]roperty is partnership property if acquired in the name of the partnership. The 1981 deed, which addresses four tracts of land, acknowledges that the property is and has always been considered owned by Charles W. White and Charles Thomas White and was purchased and has been paid for from partnership funds. The 1992 deed lists the grantees as Charles W. White and Charles T. White, as tenants in common. At trial, the testimony revealed that all of these properties were treated as partnership property, that they were purchased with partnership funds, that the property taxes were paid with partnership funds, and that the rent from the properties was collected by and paid to the partnership. Thus, the evidence supports the chancellor s determination that the property was partnership property. Page 2 of 7

3 SCOTT PENN, INC. v. MISSISSIPPI WORKERS COMPENSATION GROUP SELF-INSURER GUARANTY ASSOCIATION, NO CA SCT Civil Topics: Insurance - Workers Compensation Self-Insurers Fund - Collection of assessments - Supersedeas order - Appeal bond HON. JOHN HUEY EMFINGER MADISON COUNTY CIRCUIT COURT KATHRYN LINDSEY WHITE, JAMES D. SHANNON JENNIFER HUGHES SCOTT, ANDREW D. SWEAT, KIMBERLY NELSON HOWLAND Presiding Justice Randolph Affirmed. Analysis: The Mississippi Workers Compensation Group Self-Insurer Guaranty Association was ordered by the Mississippi Workers Compensation to assess former members of the Mississippi Comp Choice Workers Compensation Self-Insurers Fund. Subsequently, the Guaranty Association filed suit in the Madison County Circuit Court to collect the assessments. Former members of Comp Choice appealed the circuit court s grant of summary judgment in favor of the Guaranty Association. The remaining members of Comp Choice argue that issues remain in dispute as to whether the former members owe any debt and whether the Commission s assessment order is valid, thus precluding summary judgment. However, they attack the validity of the Commission order, an issue not before the Madison County Circuit Court and not relevant to this collection action. That is an issue currently before the Hinds County Circuit Court, with no action taken since 2013 when the final appellate brief was filed. The remaining members of Comp Choice submitted no evidence in response to the motions for summary judgment. While they did request additional time for discovery, the trial court denied the request, because this action had been pending for more than five years. During that time, the former members of Comp Choice did not initiate any discovery to obtain the information they claimed they needed to avoid summary judgment. Moreover, Comp Choice s appeal in the Hinds County Circuit Court does not bar Guaranty Association s right to collect the assessment, absent a supersedeas order from the Hinds County Circuit Court or an appeal bond. Comp Choice has had more than six years to obtain a supersedeas order from the court to stay this collection action but has failed to obtain the necessary order. Thus, there exists no genuine dispute of material fact as to whether the Guaranty Association was entitled to judgment as a matter of law. Page 3 of 7

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5 COPELAND v. COPELAND, NO CA SCT Civil Topics: Modification of chid support - Requested relief - M.R.C.P. 54(c) - Prayer for general relief - After-rising material change in circumstances - Increase in children's hostility - Termination of child support - Clear and extreme conduct HON. PERCY L. LYNCHARD, JR. TATE COUNTY CHANCERY COURT BYRON RUSSELL MOBLEY A. E. (RUSTY) HARLOW, JR., KATHI CRESTMAN WILSON Presiding Justice Randolph Affirmed. Analysis: After their divorce, Gary Copeland and Amanda Copeland were awarded joint legal custody of their minor children, with physical custody awarded to Amanda and visitation awarded to Gary. Gary subsequently filed a Petition for Citation of Contempt and For Modification and a Motion for Temporary Relief, requesting the court to find that there had been a substantial and material change in circumstances entitling Gary to custody of his minor children and attendant child support and grant any general relief deemed proper by the court. After a trial, the chancellor found that the couple s children no longer loved their father and they wished to terminate any relationship with him. The chancellor found that the children s conduct had severed the relationship to the point that Gary was relieved legally of any support of the children. Amanda appeals. Issue 1: Requested relief Amanda argues that the chancellor was manifestly wrong in granting relief that was not requested. However, the pleadings raised the issue of financial support for the children. Additionally, M.R.C.P. 54(c) provides that... every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled by the proof and which is within the jurisdiction of the court to grant, even if the party has not demanded such relief in his pleadings.... And, Gary included a general request for relief in his pleadings. A prayer for general relief is as broad as the equitable powers of the court. Thus, there is no error. Issue 2: After-rising material change in circumstances Child-support changes are warranted where there is a showing of an after-arising material change in circumstances regarding one or more of the interested parties, i.e., the father, mother, or child. The change in circumstances must have been unanticipated by the parties at the time the child-support judgment was entered. Even if, as Amanda argues, the children were hostile to Gary before the divorce decree was entered, Gary presented substantial evidence of an intense increase in the children s hostility after the divorce. Issue 3: Termination of child support A minor child can forfeit his support from a noncustodial parent if the child s conduct is Page 5 of 7

6 clear and extreme. Here, the chancellor not only provided a sound legal basis for his ruling, but rendered detailed factual findings before he decreed that the children had forfeited their right to financial support from Gary based on their clear and extreme conduct and behavior. The chancellor reviewed numerous texts and s from the children to their father, expressing an intense hatred of their father. Even then, the chancellor afforded the children an opportunity to repudiate the texts and s during their live testimony. Each child rejected this invitation and confirmed his or her convictions as to how he or she felt about their father. CONCUR IN PART AND IN RESULT Justice Coleman joined in part by Presiding Justice Randolph and Justice Maxwell DISSENT Presiding Justice Dickinson joined by Justices Kitchens and King and in part by Justice Coleman Page 6 of 7

7 FORKNER v. STATE, NO CT SCT Criminal - ON WRIT OF CERTIORARI Topics: Post-conviction relief - Jurisdiction - M.R.A.P. 4(a) - Authority to entertain motion HON. LILLIE BLACKMON SANDERS WILKINSON COUNTY CIRCUIT COURT WINFRED FORKNER (PRO SE) OFFICE OF THE ATTORNEY GENERAL: LAURA HOGAN TEDDER Justice Kitchens Court of Appeals reversed; Circuit court vacated. Analysis: Years after his direct appeal was affirmed by the Court of Appeals, Winfred Forkner filed a motion for post-conviction relief which the circuit court denied as untimely. Forkner appealed, and the Court of Appeals found that the circuit court was without authority to adjudicate the appeal because Forkner had not obtained the required permission from the Supreme Court. The Court of Appeals also held that the circuit court s lack of authority to entertain the motion deprived the Court of Appeals of jurisdiction over the appeal. The Court of Appeals dismissed the appeal. The Supreme Court granted certiorari. The Court of Appeals correctly found that, because Forkner had filed his motion in the wrong court, neither it nor the circuit court had authority to adjudicate the merits of the motion. But the Court of Appeals incorrectly found that it lacked jurisdiction to determine whether the circuit court had authority to entertain the motion. Pursuant to M.R.A.P. 4(a), a final judgment from which a timely notice of appeal was filed confers jurisdiction upon an appellate court to determine whether the circuit court s disposition was lawful. Thus, the Court of Appeals had jurisdiction to determine whether the circuit court s disposition of Forkner s motion was lawful, and it erred by failing to recognize its jurisdiction. The Court of Appeals should have vacated the order of the circuit court that erroneously adjudicated his motion for post-conviction relief without authority. Therefore, the judgment of the Court of Appeals is reversed and the order of the circuit court is vacated. Page 7 of 7