IN THE SUPREME COURT OF MISSISSIPPI BRIEF OF APPELLANT JOHN OAKS ORAL ARGUMENT NOT REQUESTED

Transcription

1 E-Filed Document Apr :16: CA Pages: 14 IN THE SUPREME COURT OF MISSISSIPPI JOHN OAKS vs. VS. LINDA GREER BALL APPELLANT NO.2014-CA APPELLEE EE BRIEF OF APPELLANT JOHN OAKS ORAL ARGUMENT NOT REQUESTED An Appeal From the Chancery Court of Lincoln County, Mississippi Prepared By: John R. Reeves (MSB #4699) J. Justin King (MSB#101138) Law Offices of John R. Reeves, P.C. 355 South State Street Jackson, MS / Attorneys for John Oaks, Appellant

2 IN THE SUPREME COURT OF MISSISSIPPI JOHN OAKS vs. LINDA GREER BALL APPELLANT NO CA APPELLEE CERTIFICATE OF INTERESTED PERSONS Pursuant to Rule 28(a)(l) of the Mississippi Rules of Appellate Procedure, the undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. Their representations are made in order that the Justices of the Supreme Court and/or the Justices of the Court of Appeals may evaluate possible disqualification or recusal. 1. Honorable Edward E. Patten, Jr., Chancellor 2. John R. Reeves - Attorney for Appellant 3. J. Justin King - Attorney for Appellant 4. John Oaks - Appellant 5. William D. Boemer - Attorney for Appellee 6. Linda Ball Greer - Appellee Isl John R. Reeves John R. Reeves (MBA# 4699) Attorney for Appellant i

3 TABLE OF CONTENTS Page(s) Certificate oflnterested Persons ii Table of Contents iii Table of Authorities... iv Statement of the Issues... 1 Statement of the Case... 2 Summary of the Argument... 3 Argument The Lower Comi EtTed by Finding That the Lease Agreement Executed by Decedent Rose Greer Contains a Valid Contractual Assignment of Rights to Linda Ball A. The Lease is Testamentary in Nature but Fails to Meet the Requirements of a Valid Will B. Ms Ball is Not a Third-Pmiy Beneficiary Assuming that the Provision in Question is a Valid Contractual Assignment of Rights to Linda Ball, the Lower Court EtTed by Denying the Estate's Request for Linda Ball to be Responsible for Payment of Casualty Insurance Premiums Pertaining to the Propetiy Encompassed by the Lease Agreement... 7 Conclusion... 9 Ce1iificate of Service ii

4 TABLE OF AUTHORITIES Pag<;(s) Mississippi Statutes Miss. Code Ann , 5 Mississippi Cases Bums v. Washington Savings, 171 So.2d 322 (Miss. 1965)... 6, 7 Hall v. Wood, 443 So.2d 834, (Miss. 1983)... 8 In re Estate of Holmes, 101 So.3d 1150 (Miss. 2012)... 5, 6 Ford v. Hegwood, 485 So.2d 1044 (Miss. 1986)... 4 iii

5 STATEMENT OF THE ISSUES 1. The lower comi e1ted by finding that the lease agreement executed by decedent Rose Greer contains a valid contractual assignment of rights to Linda Ball. The provision of the lease is testamentary in nature, yet fails to fulfill the legal requirements of a testamentary disposition. Further, assuming that the document is not testamentary in nature, Ms Ball fails to qualify as a third-pmiybeneficiaryunder Mississippi law. 2. Assuming, arguendo, that the lease contains a valid assignment of rights to Linda Ball, the lower court erred in denying the estate's request that Linda Ball be responsible for payment of casualty insurance premiums pe1iaining to the prope1iy encompassed by the lease agreement.

6 STATEMENT OF THE CASE On October 8, 2010, Appellant John Oakes (hereinafter "John") filed a Petition for Probate of Will and for Letters Testamentary. (Clerk's Papers (C.P.), p. 4). An Order Admitting Will to Probate and Granting Letters Testamentmy was entered on October 21, (C.P., p. 10). John filed an Oath of Executor on October 26, (C.P., p. 16). Letters Testamentmywere filed on October 26, (C.P., p. 17). Proof of Notice to Creditors was filed on December 23, (C.P., p. 19). John's affidavit regarding notice to creditors was filed on March 24, (C.P., p. 20). On September 24, 2013, John filed a Complaint for Declarat01y Relief against Appellee Linda Ball (hereinafter "Ms Ball"), David Nunnery, and Jene Nunne1y. (C.P., p. 22). An Order Setting the Case for Trial for October 15, 2013, was entered on October 3, (C.P., p. 32). Linda Ball filed her answer to the complaint on October 23, (C.P., p. 35). David and Jene Nunne1yfiled their answer on November 4, (C.P., p. 41). A stipulation of dismissal regarding David and Jene Nunne1y was filed on Febrnmy 10, (C.P., p. 56). A Judgment on the Estate's Motion for Declaratory Relief was entered on March 20, (C.P., p. 57). John timely appealed on April 21, 2014 (C.P., p. 59). 2

7 SUMMARY OF THE ARGUMENT The lower court erred in two respects. First, the lease agreement executed by Rose Greer does not contain a valid contractual assigmnent of rights to Linda Ball. The provision of the lease in issue is testamentaty in nature yet fails to fulfill to the legal requirements of a testamentaiy disposition. Fmiher, assuming arguendo that Ms Ball claims status as a third party beneficiaty, this too must fail, as nothing in the four comers of the document indicates that the contract was made for the benefit of Ms Ball. Moreover, the provisions of the lease relating to Ms Ball do not take effect until and unless Ms Greer died. Second, assuming that this court were to find that the provision is a valid contractual assigmnent of rights to Linda Ball, the lower comi erred by denying the estate's request that Linda Ball be responsible for payment of casualty insurance premiums pe1iaining to the prope1iy encompassed by the lease agreement. Simply put, equity demands that if Ms Ball gets the benefits of the assignment she should also get the obligations associated therewith. 3

8 ARGUMENT 1. The Lower Court Erred by Finding That the Lease Agreement Executed by Decedent Rose Greer Contains a Valid Contractual Assignment of Rights to Linda Ball. A. The Lease is Testamentary in Nature but Fails to Meet the Requirements of a Valid Will. The lower court erred by finding that the lease agreement executed by Rose Greer contains a valid contractual assignment of rights to Linda Ball. First, this pmiicular provision of the lease is testamentmy in nature, yet fails to fulfill to the legal requirements of a testamentary disposition. The validity of the lease agreement itself is not at issue. At issue in this matter is a section of a lease, specifically, Section 3, which reads: In the event of the death of the Lessor [Rose Greer], this lease agreement shall not tenninate, rather the 1ights and obligations of the Lessor shall inunediately be transferred to Linda Ball, who will also have the 1ight to receive payments hereunder. Emphasis added. (R.E., p. 10). In Ford v. Hegwood, 485 So.2d 1044 (Miss. 1986), the Mississippi Supreme Comi addressed the question of whether an instrument void as an attempted testamentmy disposition for failing to comply with statutory requirements. The court held, citing vmious authmity, that "[ w ]here an instrument, though in the form of a deed, contains its maker's provision that it makes no present conveyance of an interest in land or otherwise directs that the interest to be conveyed vests in the grantee only upon the death of the grantor, such an instrument is regarded as testamentmy in character and is enforceable only if made in compliance with our statute of wills." Id. reads: The requirements of a valid Mississippi will are codified in Miss. Code Ann , which 4

9 Eve1y person eighteen (18) years of age or older, being of sound and disposing mind, shall have power, by last will and testament, or codicil in writing, to devise all the estate, right, title and interest in possession, reversion, or remainder, which he or she hath, or at the time of his or her death shall have, of, in, or to lands, tenements, hereditaments, or annuities, or rents charged upon or issuing out of them, or goods and chattels, and personal estate of any description whatever, provided such last will and testament, or codicil, be signed by the testator or testatrix, or by some other person in his or her presence and by his or her express direction. Moreover, if not wholly written and subscribed by himself or herself, it shall be attested by two (2) or more credible witnesses in the presence of the testator or testatrix. Here, the circumstances are nearly identical. The only difference being that in Ford a deed was involved, whereas the instrnment at hand is a lease. The point oflaw remains the same. Here, the rights and obligations of the lease transfer to Linda Ball only upon the death of Rose Greer. (R.E., p. 10). This lease contains a provision whereby an interest in the owner's real property is conveyed to Linda Ball upon the owner's death and therefore this provision is testamentaiy in character. Being testamentary in character, the requirements of a valid will must be met, however, the requirements of a valid testamentary disposition are not met. The supreme court addressed the requirements of a valid Mississippi will in In re Estate of Holmes, 101 So.3d 1150 (Miss. 2012). There the court noted that: Mississippi law empowers " [ e ]very person eighteen (18) years of age or older, being of sound and disposing mind" to make a will which, if not " wholly written and subscribed" by the testator, must be " attested by two (2) or more credible witnesses in the presence of the testator or testattix. The attesting witnesses must meet four requirements: First, the testator must request them to attest the will; second, they must see the testator sign the will; third, they must know that the document is the testator's last will and testament; and finally, they must satisfy themselves that the testator is of sound and disposing mind and capable of making a will. 5

10 Id. at The court fiuiher held that the "formalities associated with attesting a will are impmiant, not only as safeguards against fraud by substitution of a different will than the one signed by the testator, but also to make sure a person executing a will is of sound and disposing mind." Id. at The court also held that, impmiantly, a witness to a will "should be some person acquainted with the testator, and having no interest, direct or indirect, as a beneficimy." Id. at Here, the elements of a valid will are not present. Assuming, arguendo, that the Nunne1ys (the couple who signed the lease as lessees) are proper witnesses, they directly benefitted from the execution of the document since they received the right to rent the land (R.E., pgs. 9-16). Further, there is no language in the lease regarding Ms Greer's age or then mental condition or that she signed the document in the presence of the Nunnerys. Because the lease is testamentmy in nature and fails to meet the requirements of a valid will, this provision of the lease should be deemed invalid. B. Ms Ball is Not a Third-Party Beneficiary. Assuming arguendo that Ms Ball claims status as a third-party beneficimy, her argument must fail, as nothing in the four comers of the document indicates that the contract was made for the benefit of Ms Ball. The contract was made for the benefit of Ms Greer and the Nunne1ys. In Bums v. Washington Savings, 171 So.2d 322 (Miss. 1965), the supreme court, citing 17 Am.Jur.2d Contracts Sec. 302, at p. 722 (1964). 17A C.J.S.Contracts Sec. 519(3) (1963), noted that "A third person may sue on a contract made for his benefit between others to the consideration of which he is a stranger." Id., at 324. However, it is the burden of the third person to show that the benefit was in fact made for him or her, as the court fmiher held that a "mere incidental, collateral, or consequential benefit which may accrne to a third person by reason of the perfo1mance of the 6

11 contract, or the mere fact that he has been injured by the breach thereof, is not sufficient to enable him to maintain an action on the contract." Id. Further, where the instrnment "is primarily for the benefit of the patties thereto, the mere fact that a third person would be incidentally benefitted does not give him a right to sue for its breach. Id. At ( citing 17 Am.Jur.2d Contracts Sec. 307, at (1964). Rest. of the Law Contracts Sec. 133 (1932); Annot. 81 A.L.R (1932)). The comt also held that: In order for the third person beneficimyto have a cause of action, the contracts between the original parties must have been entered into for his benefit, or at least such benefit must be the direct result of the performance within the contemplation of the patties as shown by its tenns. There must have been a legal obligation or duty on the pmt of the promisee to such third person beneficiaty. This obligation must have been a legal duty which com1ects the beneficimy with the contract. In other words, the right of the third party beneficimy to maintain an action on the contract must spring from the teims of the contract itself. Id. at 325 (citing 17A C.J.S. Contracts Sec. 519(4) (1963)). If it is Ms Ball's argument that she is a third-party beneficiaty of the lease between Ms Greer and the Nunnerys, she fails to meet the requirements set forth in Bums. Nowhere in the lease is it indicated that the lease is made for the benefit of Ball. There is no indication whatsoever that anyone associated with the lease has any legal obligation to Ms Ball. Therefore, Ms Ball fails to meet the requirements to qualify as a third-party beneficiaty under Mississippi law. 2. Assuming that the Provision in Question is a Valid Contractual Assignment of Rights to Linda Ball, the Lower Court Erred by Denying the Estate's Request for Linda Ball to be Responsible for Payment of Casualty Insurance Premiums Pertaining to the Property Encompassed by the Lease Agreement. Assuming that the provision in question is a valid contractual assignnient of rights to Linda Ball, the lower court e1ted by denying the estate's request for Linda Ball to be responsible for 7

12 payment of casualty insurance premiums pe1iaining to the prope1iy encompassed by the lease agreement. Simply put, if Ms Ball gets the benefits of the assigrnnent she should also get the obligations associated therewith. In Hall v. Wood, 443 So.2d 834, 843 (Miss. 1983), the supreme cou1i stated that: The remedial powers of our chancellors are sufficient to vindicate the claims and interests of all litigants. Those powers are as broad as equity and justice require. Those powers have always been marked by flexibility and expansiveness so that appropriate remedies may be decreed to satisfy the needs of the patiicular case. The chancellor's remedial powers are marked by plasticity. Equity jurisdiction permits innovation that justice may be done. That there is no precedent for the precise relief sought is of no consequence. In this situation both the estate and Ms Ball have an interest in having the property insured. The lower comi should have used its equitable powers to require Ms Ball to pay for the casualty insurance premiums peiiaining to the leased property, as it was the equitable thing to do. To place the issue in the form of a question, why should Ms Ball receive the money on the lease and not be responsible for the costs associated with the prope1iy for which she is receiving the money? Eve1y landlord must pay the taxes and insurance on the prope1iy he leases. That is just a cost of doing business. 8

13 CONCLUSION The lower cou1i eited in two respects. The lease agreement executed by Rose Greer does not contain a valid contractual assignment of rights to Linda Ball. The provision of the lease in questions is testamentmy in nature but fails to meet the legal requirements of a testamentary disposition. Assuming, arguendo, that Ms Ball claims status as a third-pmiy beneficiary, she fails to satisfy the requirements ofthird-pmiy beneficiary status. Assuming that the lease contains a valid contractual assignment of rights to Linda Ball, the lower comi should have required Ms Ball to pay the casualty insurance premiums pertaining to the prope1iy. Equity demands that if Ms Ball gets the benefits of the assignment she should also get the obligations. Respectfully submitted, By: Isl John R. Reeves John R. Reeves, MSB# 4699 Law Offices of John R. Reeves, P. C. 355 South State Street Jackson, MS Attorneys for Appellant 9

14 CERTIFICATE OF SERVICE I hereby certify that on April 17, 2015, I electronically filed this document with the Clerk of the Comi using the MEC system which sent notification of such filing to the following: Honorable Edward E. Patten, Jr., Chancellor William D. Boemer, Esq. Isl John R. Reeves John R. Reeves 10