IN THE SUPREME COURT OF MISSISSIPPI. v. No CA PRINCIPAL BRIEF OF APPELLANT SARAH HODNETT ORAL ARGUMENT REQUESTED

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1 E-Filed Document Mar :55: CA Pages: 31 IN THE SUPREME COURT OF MISSISSIPPI SARAH HODNETT APPELLANTS v. No CA TIMOTHY HODNETT APPELLEE PRINCIPAL BRIEF OF APPELLANT SARAH HODNETT ORAL ARGUMENT REQUESTED On Appeal from the Chancery Court of Sharkey County, Mississippi No OLIVER E. DIAZ, JR. Miss. Bar No P.O. Box 946 Madison, Miss E: W: OliverDiazLaw.com David Neil McCarty Miss. Bar No DAVID NEIL MCCARTY LAW FIRM, PLLC 416 East Amite Street Jackson, Miss T: E: W: McCartyAppeals.com Attorneys for Appellant

2 IN THE SUPREME COURT OF MISSISSIPPI SARAH HODNETT APPELLANTS v. No CA TIMOTHY HODNETT APPELLEE CERTIFICATE OF INTERESTED PERSONS Pursuant to Miss. R. App. P. 28(a)(1), the undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Sarah Hodnett, Appellant 2. Oliver E. Diaz, Jr.; and David Neil McCarty, of the David Neil McCarty Law Firm, PLLC, Appellate Counsel for Appellant 3. E. Stephen Williams, of Young Wells Williams, P.A., Trial Counsel for Appellant 4. Timothy Hodnett, Appellee 5. Philip Mansour, Jr., of Mansour & Adams, counsel for Appellee 6. Bank of Anguilla, Appellant 7. Benjamin McRae Watson and J. Stevenson Ray, of Butler Snow, counsel for Appellant Bank of Anguilla 8. The Honorable W. Hollis McGehee, Special Judge, Sharkey County Chancery Court So CERTIFIED, this the 13th day of March, Respectfully submitted, s/ David Neil McCarty David Neil McCarty Miss. Bar No Attorney for Appellant i

3 Table of Contents Certificate of Interested Persons... i Table of Contents... ii Table of Authorities... iii Statement of the Issues... 1 Statement of the Case... 1 Statement Regarding Oral Argument... 2 Statement of Assignment... 2 Relevant Facts... 3 Course of Proceedings... 4 Summary of the Argument... 7 Standard of Review... 8 Argument... 9 I. The Brother Did Not Have Standing to Attack the Deeds... 9 II. The Brother s Suit Was Untimely A. The Statute of Limitations Bars This Suit B. Laches Bars the Entire Suit III. The Venue Was Defective IV. There Was No Undue Influence Conclusion Certificate of Service ii

4 TABLE OF AUTHORITIES Cases Bailey v. Estate of Kemp, 955 So. 2d 777, 784 (Miss. 2007)... 15, 16 Barney v. Barney, 203 Miss. 228, So.2d 823, 824 (1948) Belk v. State Dept. of Pub. Welfare, 473 So. 2d 447, 449 (Miss. 1985) Clements v. Kentucky B. Ass n, 983 S.W.2d 512, 512 (Ky. 1999) Comm. on Prof. Ethics and Conduct of Iowa State B. Ass n v. Randall, 285 N.W.2d 161, 163 (Iowa 1979) Const. of 1890, Art. 6, Sec Cooner v. Alabama State B., 59 So. 3d 29, 39 (Ala. 2010)... 21, 22 Donald v. Amoco Prod. Co., 735 So. 2d 161, (Miss. 1999) In re Est. of Hardy, 910 So. 2d 1052, 1054 (Miss. 2005) In re Est. of Ivy, 121 So. 3d 226, 244 (Miss. Ct. App. 2012) Ivy v. Harrington, 644 So. 2d 1218, 1221 (Miss. 1994) Knighten v. Castle, 247 So. 2d 421, (Miss. 1971) Lott v. Saulters, 133 So. 3d 794, 803 (Miss. 2014) Morgan v. Morgan, 431 So.2d 1119, 1122 (Miss. 1983) O Neal Steel, Inc. v. Millette, 797 So. 2d 869, (Miss. 2001) Ravesies v. Martin, 190 Miss. 92, 199 So. 282 (1940) Schmidt v. Catholic Diocese of Biloxi, 18 So. 3d 814, (Miss. 2009)... 9, 10 Starcher v. Byrne, 687 So.2d 737, 739 (Miss. 1997)... 9 Tatum v. Wells, 2 So. 3d 739, 742 (Miss. Ct. App. 2009) Tolliver ex rel. Wrongful Death Beneficiaries of Green v. Mladineo, 987 So. 2d 989, 995 (Miss. Ct. App. 2007) Twin States Realty Co. v. Kilpatrick, 199 Miss. 545, 553, 26 So. 2d 356, 358 (1946)... 15, 16 Walls v. Ivy, 156 So. 3d 315, 317 (Miss. Ct. App. 2010)... 14, 24 Statutes Miss. Code Ann Miss. Code. Ann Miss. Code. Ann , 24 Rules MRAP MRAP MRPC 1.8(a) MRPC 1.8(c)... 20, 22 MRPC, Scope Other Sources 80 A.L.R.5th James W. Shelson, Mississippi Chancery Practice, Venue is controlled by statute, 5:1 (2016 ed.) iii

5 Statement of the Issues Presented for Review I. The Brother Did Not Have Standing to Attack the Deeds. II. III. IV. This Brother s Suit Was Untimely. The Venue Was Defective. There Was No Undue Influence. Statement of the Case This case is about a family and their property, and how the son is trying to destroy the family trust they created. The father owned 440 acres over in Humphreys County the family called Fish Lake. Before his death in 2009, he transferred Fish Lake to his wife. The daughter of the family is a lawyer, and she drew up the deed for the land transfer between her parents. Afterwards, the mother, the daughter, and a son created a family trust together. Fish Lake was transferred from the mother into the family trust. The deeds and the trust were publically recorded at the Humphreys County courthouse. Everything was fine for years in fact, for 4 years and 6 months it was stone quiet. But after their mother died, the son suddenly filed a lawsuit. Even though he was a stranger to the property, and it had happened years ago, he claimed that Fish Lake should have never been transferred from their father to their mother. And even though he helped create the family trust, he now claimed it should be destroyed. Even though the deeds and the trust had all been publically recorded in 2009, the son pretended that somehow he did not know what all had happened. The daughter defended herself by pointing out that the statute of limitations on any claim the brother might have would have run 1 year and 6 months before he filed suit. Yet the trial court disregarded the time bar bizarrely condemning the daughter for drawing up the deeds and 1

6 trust, even though an express Rule of Professional Conduct allows her to do just that for her family. The trial court also ignored the reality that the deeds were recorded years ago, and that the son admitted he helped created the trust in 2009 as well. After disregarding the time bar, and placing a higher duty on the daughter than any imposed by law or ethics, the trial court set aside the deeds and trust. Aggrieved by the destruction of her parents deeds and the family trust, the daughter appealed. Statement Regarding Oral Argument Pursuant to MRAP 34(b), oral argument would assist the Court in resolving this case and unpacking the multiple legal errors that were committed. Oral argument will illuminate how the brother never had standing in the first place to file this lawsuit, and it will establish completely that he filed suit over 1 year and 6 months too late. This Court has never addressed the Family Rule in our Rules of Professional Conduct, which allow lawyers to draft wills and trusts for their family members, and oral argument can assist in showing how that useful doctrine shields the sister s actions from any undue influence. Statement of Assignment Pursuant to Pursuant to MRAP 16(d)(1) and (d)(2), the Supreme Court should review this appeal. First, there is an issue of first impression in this case in applying the Rules of Professional Conduct. While our Rules expressly contain a Family Rule to allow an attorney to draft wills, trusts, and other documents for their family which make them a beneficiary, the trial court swept aside two deeds and a trust when the lawyer in this case did just that. While the Supreme Court of Alabama has ruled that it is allowed by their parallel rule to do just what the lawyer in this case did, our Court has never addressed this point. In addition to this being a question of first impression, it is also a fundamental and urgent issues of broad public importance, as it governs the ability of lawyers to provide legal 2

7 counsel to their family. The Bench, Bar, and public would benefit from a cohesive and concrete ruling from the Supreme Court on these issues. Relevant Facts Nearly all of the core facts of this case are uncontested. This case is about two parents and the property they owned property Dewitt, the father, and Barbara, the mother. They had two children Sarah, their daughter, and Tim, their son. Dewitt raised catfish and row crops, and Barbara was the bookkeeper for the farm. 4:21. The daughter, Sarah, has been a lawyer since 1989, and served as Rolling Fork s municipal judge for over 20 years. 4:16, 3:379. The son, Tim, could not be more different than his sister. In contrast to her life of public service, Tim was in and out of trouble with the law whether minor infractions like several game violations for hunting out of season or not wearing orange, or more serious scrapes with the law. 1:127, 117; 3:379. Among other property, their father Dewitt owned 440 acres in Humphreys County. 1:10. The family called the land Fish Lake. 1:17. In the spring of 2009, Dewitt executed a warranty deed transferring all rights in Fish Lake over to his wife, Barbara. 1:10. 1:10. Sarah prepared the deed for her father at his request. 4:39, 45. The deed was recorded in Humphreys County on September 18, :10. Dewitt passed away in the summer of :5. Sarah testified that the origins of the Family Trust were from her mother s idea. 4:126. The daughter explained that her mother and father decided what the terms of the Trust would be, and that her mother wanted Family Trust created. 4:129. They had had actually obtained a tax identification number for the trust back in :128. Sarah recounted how her mother wanted the Trust so she could avoid probate and going through that procedure. 4:129. 3

8 Even though the Family Trust already had a tax ID number back in 2007, Tim said that he believed the family including him all came together in Fall of 2009 to formalize it. 1:118, 123. Tim thought we formed the Hodnett Land Trust... in September of :118. He explained that this meant My mother, my sister and myself created the Family Trust. 1:118. Sarah drew up the documents for the Family Trust. 4:51. Barbara and Sarah were set out as the Original Trustee, and Tim was listed as a Successor Trustee. 1:22. Barbara was the primary beneficiary. 1:22. Stephanie Hodnett a CPA who was married to a cousin of the family filed tax returns for the Family Trust in :176-77, 4:128, 4:123. She also notarized the deeds and trust for Barbara. 5:184. In the fall of 2009, Barbara executed a warranted deed transferring all rights in Fish Lake to the Family Trust, in which Sarah served as trustee. 1:20. Sarah also drew up this deed. 4:47. Like the Spring Deed from Dewitt to Barbara, the Trust and this Fall Deed were all recorded in Humphreys County on September 18, :20, 22. Present in discussions about forming the Trust in 2009, Tim also testified that he knew about the Certificate noting that the Trust was on file in Humphreys County. 5:241. After that day, nothing happened for several years. Things were quiet. Fish Lake generated some income from hunting leases that began in 2010 and : Barbara used her income under the Family Trust for her living expenses, paid the [grand]children s tuition at Sharkey-Issaquena Academy, paid her bills, and paid taxes on the land itself and paid insurance to State Farm. 4: Then, several years after the Family Trust was created, Barbara passed away, on September 9, :6. Course of Proceedings A few months after his mother passes, Tim leapt into action and sued Sarah under a theory that she had undue influence on their parents. 1:4, 7. Even though Tim himself helped 4

9 create the Family Trust 4 years and 6 months prior to his lawsuit, and even though the deeds were all publically filed in 2009, he wanted them set aside. 1:8-9. He also demanded an accounting of the Family Trust. 1:8. 1 When pressed in a deposition, Tim claimed that he just want[ed] Fish Lake to be put in the three grandchildren s name. 1:131. Despite what his father and mother wanted, Tim said If we can t do that, I want half of it and Sarah to get half of it. 1:131. Sarah responded quickly by asserting that the statute of limitations on any suit had long passed. 1:67. She also pointed out in her Answer that Tim had knowledge of the deeds and personally had knowledge of the Family Trust at the time of creation. 1:68. She claimed the whole suit was barred by the passage of time, whether by law or the equitable doctrine of laches. 1:69. Sarah brought her defense that Tim had waited hundreds of days too late before the trial court in a motion for summary judgment. 1:82. In defense to her motion, Tim decided he would claim that Sarah had somehow committed fraud on him even though the deeds were publically recorded in 2009, and he helped create the Family Trust. 1:147. Convinced, the trial court granted summary judgment on Tim s claims regarding the original deed from Dewitt to Barbara. 2:272. Because it had an interest in who owned the property, the trial court joined the Bank of Anguilla to the dispute. 2:276. The Evidence at Trial Was That Barbara Was In Command During trial, the only evidence presented was that Barbara knew what she wanted, how to do it, and was in charge of her faculties to which four witnesses testified. The CPA, Stephanie Hodnett, testified that Barbara knew what she was doing and did not seem under the influence of anybody when executing the Fish Lake deeds or the Family Trust. 5: Tim ultimately amended his complaint twice more. See 1:25; 2:280. The causes of action remained substantially the same. 5

10 A deputy clerk from the Humphreys County Circuit Clerk s Office, one Sharon Neal, agreed with that Barbara knew what she was doing. 5:197. Ms. Neal had notarized two other deeds for Barbara in December of 2010 the year after the Fish Lake deeds and the Trust were created. 5: Ms. Neal testified that Barbara was not confused and recognized her Immediately when she notarized the instruments. 5: Likewise, the Chairman of the Board of the Bank of Anguilla, Fred Miller, testified Barbara was Well organized, and knew exactly what she was doing. 5:207. She was matter-of-fact, the banker testified, and there was not a lot of fluff with her, and she was able to tell me what she wanted. 5:208. If Barbara disagreed with you, she didn t hesitate to say so. 5:208. She was not dependent on anybody, the man from the Bank of Anguilla testified. 5:208. Last, a witness to Barbara s will, Sheila Clements, testified Barbara was capable of making her own decisions and that Not once did she think otherwise. 5:230, 234. In fact, even though he was claiming his mother was somehow under the influence of Sarah, even Tim testified at trial that his mother made her own decisions, and if she disagreed with you, she would say so. 5:248. When pushed to why he did not confront his sister earlier if he really thought she did something wrong, Tim meekly offered Because my mother was still alive, even though he did not think Sarah drew up the Trust correctly. 5: The Final Judgment Casts Aside the Evidence and Creates a New Standard In contrast to the law-based ruling at summary judgment and the evidence at trial, the Final Judgment by the trial court was a startling departure. Even though Mississippi has an express ethical rule that allows lawyers to draft wills and trusts for their parents, the trial court ruled that there is not an exception for parents, and that the duty might even be higher for an attorney working for their parents. Record Excerpts at 5, 3:326. Even though it is not required 6

11 by the Rules, the trial court was incensed Sarah did not send her parents to talk to another lawyer a duty the trial court was convinced she had. R.E. 8, 3:329. As a result of this flawed perception of our Rules of Professional Conduct the trial court ruled that Sarah had undue influence over her parents. R.E. 6-8, 3: Bizarrely, this same ruling held that Barbara Hodnett was not in any way incompetent, but that Sarah simply failed to tell her to seek another lawyer. 3:329. R.E. 8. Even though the statute of limitations is just that a statute and Tim had always testified that he was part of creating the Family Trust in 2009, and the deeds were publically recorded, the trial court found it troubling that an officer of the Court, Sarah, would assert as a defense the time bar. R.E. 7, 3:328. Despite the public nature of the deeds, and that Tim knew about and helped devise the Trust, the trial court found that she had somehow concealed it from him. R.E. 7, 3:328. In light of this flawed perception, the trial court set aside Barbara s deed to the Trust, and also set aside the Family Trust itself. R.E. 8-9, 3: The trial court also withdrew its earlier grant of summary judgment on the Spring Deed between mother and father. R.E. 9, 3:330. Sarah timely appealed the Final Judgment. 3:433. Summary of the Argument For four core reasons the trial court s Final Judgment must be reversed. First, the brother never had standing to attack the deeds in the first place. Tim never had possessory interest in Fish Lake and certainly did not when his father transferred it to his mother, and his mother transferred it to the Family Trust. Absent a possessory interest, he does not have standing to seek any relief at all. This lack of standing means that the Final Judgment must be reversed and rendered. 7

12 Second, Tim waited 18 months too late to file suit. Even if he had standing, the 3 year statute of limitations applied. Tim waited 1 year, 6 months, and 2 days after the time ran to file his lawsuit. This means the entirety of his suit is utterly barred. Under Mississippi law, the uncontested fact that the deeds were publically recorded in September of 2009 also destroys any claim he can have that Sarah concealed information from him. Because he waited 548 days before filing suit, the Final Judgment must be reversed and rendered. Third, even if Tim had standing, and even if his lawsuit were not time-barred by the reality that he waited 18 months too late, he filed it in the wrong county. Mississippi law requires a dispute concerning land to be filed in the county where the land is situated. Tim filed suit in Sharkey County, but the 440 acres of Fish Lake is wholly within Humphreys County. Because he filed his untimely lawsuit in the wrong county, the chancery court did not have venue jurisdiction. As a result, the Final Judgment must be reversed, and this matter remanded to transfer it to the correct county for a trial. Fourth, there was no undue influence in this case. The trial court premised the entirety of its ruling on the flawed foundation that Sarah was required to force her parents to consult with another lawyer instead of helping them draw up a deed or the Family Trust. The reality is that our Rules of Professional Conduct have an express rule which allows her to do exactly what she did. Nothing was concealed in this case, as Sarah recorded the deeds and Trust in Humphreys County. There was no undue influence under our law and rules, and therefore the Final Judgment must be reversed. Standard of Review Every one of the issues raised in this appeal are legal flaws from the lack of standing of the brother to file suit in the first place, to the reality that he filed suit 1 year and 6 months too late, and in the wrong county, to the trial court s refusal to apply the correct law. The Court 8

13 reviews each of this issues de novo, starting at the very beginning. See Starcher v. Byrne, 687 So.2d 737, 739 (Miss. 1997) ( Our standard for review is de novo in passing on questions of law ). ARGUMENT I. The Brother Did Not Have Standing to Attack the Deeds. Because the wayward brother never had a lick of possessory interest in Fish Lake when his father transferred the property to his mother in the Spring of 2009, and not an atom of control when his mother transferred it to the Trust in the Fall of 2009, he never had standing at all to file this suit. In Mississippi, only a person who has an interest in land can file a suit to try to gain control of it. The brother in this case is therefore stranger to the property since he was not a party to the deeds, and because he later admitted under oath he did not even personally want the land, but wanted it for the grandchildren. As a result, this stranger to the land does not have standing to attack the deeds transferring it. The entire attack on the deeds was built on sand, and this Court must reverse and render it. Standing is an aspect of subject matter jurisdiction, and if a person does not have it, this lack of standing robs the court of jurisdiction to hear the case. Schmidt v. Catholic Diocese of Biloxi, 18 So. 3d 814, (Miss. 2009) (internal quotations and citations omitted). As the Court made clear, standing requires a legal right to bring the claim in the first place. Id. The individual s legal interest or entitlement to assert a claim must be grounded in some legal right recognized by law, whether by statute or by common law. Id. (internal quotation, citation, and alteration omitted). As a threshold question, it must be answered whether a party plaintiff in an action for legal relief can show in himself a present, existent actionable title or interest, and demonstrate 9

14 that this right was complete at the time of the institution of the action. Id. (emphasis added, internal quotation and citation omitted). In Schmidt, the Court tussled with an appeal after 157 parishioners of a Pass Christian church filed a suit over land. Id. at 818. The parishioners church had been damaged in Hurricane Katrina, and their bishop had effectively closed it afterwards. Id. The parishioners claimed the bishop had held the St. Paul property in trust for the members of the St. Paul Church, that any financial contributions designated for reconstruction of the church were held in trust for that particular purpose as well. Id. The trial court found the parishioners did not have standing to pursue the suit. Id. at 821. On appeal, the Supreme Court agreed. Id. at 826. The parishioners just did not have a possessory interest in the property, because there was no longer a church. Id. at 828. Plaintiffs' property or beneficial interest in the St. Paul property, if any, was inextricably tied to their status as members of St. Paul Church or Parish. Id. Once the church ceased to exist, so did their standing. Id. Because such church or parish no longer exists, Plaintiffs have no standing to assert a claim for any interest they may or may not have had in church property. Id. The Court ruled that this lack of standing meant that subject matter jurisdiction does not exist over this particular claim. Id. at 829; accord Barney v. Barney, 203 Miss. 228, So.2d 823, 824 (1948) ( we take it as a proposition which can scarcely be disputed that the person who in his own name would petition to have a guardian in an estate removed must be a person who has a legitimate interest present or prospective in that estate, or who has some personal responsibility as regards the estate or the care or welfare of the ward ) (emphasis added). In this case, just like the stranded parishioners in Schmidt, the errant brother has no interest in the 440 acres of Fish Lake. It cannot be disputed that when Dewitt transferred the 10

15 property to Barbara in the Spring of 2009, Tim was an utter stranger to Fish Lake. He had zero possessory interest in the property, and absent that legal interest, cannot now challenge the property transfer years after it happened. If Tim had been a co-tenant on the property, or listed on the deed as having a possessory interest, he might have standing. Yet he even swore under oath in a deposition that not only did he not have one himself, he was filing the lawsuit for the grandchildren he alleged it should have gone to. Yet Tim was not appointed their guardian before filing suit, was not filing as the executor of an estate, and has utterly failed to show how he had a possessory or legal interest which would warrant interfering in a land transfer in His mere blood relationship to the parties to the land transaction is meaningless. The same goes for the Fall 2009 transfer of Fish Lake from Barbara to the Trust Tim is an utter stranger to that process, and cannot try to interfere with it. Like the parishioners in Schmidt, he does not have a possessory interest in the land which might warrant him interfering with it now. It is simply beyond his reach. While standing was not raised as an issue in the trial court, this Court s jurisprudence allows it to be raised for the first time in the context of this appeal. For Tim s lack of standing is a jurisdictional issue which may be raised by any party or the Court at any time. Kirk, 973 So. 2d at 989; see also Tatum v. Wells, 2 So. 3d 739, 742 (Miss. Ct. App. 2009) (standing may be raised even for the first time on appeal). Indeed, in Tatum the Court of Appeals ruled that grandchildren lack standing to contest their grandfather s will, and without that authority, all other assertions of error are moot. Id. Under this clear precedent, Tim had no standing to file any claim attack the validity of the deeds. The effect of this lack of standing is that it destroys every single ruling by the trial court, including the Final Judgment. For any rulings on this case are void ab initio as if it had never existed at the outset. Thus, any ruling on a case brought by someone who lacked standing 11

16 is void ab initio. Tolliver ex rel. Wrongful Death Beneficiaries of Green v. Mladineo, 987 So. 2d 989, 995 (Miss. Ct. App. 2007). In Tolliver, the Court of Appeals ruled that an amended complaint filed in a case where the original complainant lacks standing cannot relate back to the filing of the original complaint, because a complaint cannot relate back to a nullity. Id. at (emphasis added); see also In re Est. of Ivy, 121 So. 3d 226, 244 (Miss. Ct. App. 2012) ( any ruling on a case brought by someone who lacked standing is void ab initio ) (citing Tolliver). Tim did not have a possessory interest in Fish Lake when his father deeded the property to his mother, or when his mother deeded it to the Trust. Absent the merest shred of claimed control over the property, his suit is utterly hollow. This lack of standing robbed the trial court of any jurisdiction to hear Tim s claim about the deeds. As a result, the Final Judgment must be reversed and rendered on this point. 2 II. The Brother s Suit Was Untimely. Because Tim waited 1 year and 6 months beyond the statute of limitations, any claim he could have brought is completely time-barred. The statute of limitations in Mississippi for undue influence is 3 years. Even though both the Spring Deed and the Fall Deed were recorded at the courthouse in September 2009, and the Family Trust was recorded that same day, the wayward brother waited until 2014 to file suit. Tim testified under oath that he knew about the deeds and the Family Trust in 2009 indeed, he even testified in his deposition and at trial that he had a hand in creating the Trust. Under the applicable statute of limitations and the equitable doctrine of laches, he waited over 18 months too long to file suit. As a result, the Final Judgment must be reversed and rendered. 2 Any claim Tim makes about setting aside the creation of the Family Trust was both brought in the wrong venue and time-barred, as set out in sections II and III. 12

17 A. The Statute of Limitations Bars This Suit. Under statute and precedent, Tim only had 3 years to file suit against Sarah regarding the deeds and creation of the Family Trust. The entirety of his original claim was based on undue influence. In Mississippi, you have 3 years to file suit under that cause of action and Tim waited 1 year, 6 months, and 2 days too late. This 548 day gap completely bars every claim he brought in this suit. The Final Judgment must be reversed and rendered as time-barred. When a person does not have a possessory interest in land, but still seeks to attack the transfer, they have 3 years to file suit under the general statute of limitation. O Neal Steel, Inc. v. Millette, 797 So. 2d 869, (Miss. 2001) (when judgment creditor did not seek to possess land, but to transfer it back to another only to assert a lien, 3 year statute applied); Miss. Code Ann (setting statute of limitations for all other actions at 3 years). Indeed, in 2014 the Supreme Court explicitly clarified that claims for duress and undue influence, fraud, and breach of fiduciary duty must be brought within 3 years. Lott v. Saulters, 133 So. 3d 794, 803 (Miss. 2014) (barring the plaintiff s claims as untimely). Both the Spring and Fall Deeds and the Certificate of Trust were all recorded in Humphreys County on September 18, This is a matter of pure fact Tim even attached the recorded instruments to his original complaint. Furthermore, Tim confessed in both his deposition and trial testimony that he not only knew of the Family Trust in 2009, but spoke of it with the phrase we formed the Hodnett Land Trust... in September 2009, explaining that he meant My mother, my sister and myself. Therefore the statute of limitations for Tim to attack the deeds and the creation of the Trust began to run at a minimum on the day they were recorded: September 18, Under the 3 year statute of limitations, he would have had to file suit by September 18,

18 Yet Tim did not sue Sarah for undue influence until March 20, He was 548 days too late not five days late, not one day late, but 1 year, 6 months, and 2 days late. There is simply nothing more to say. The suit was hundreds of days late and must be dismissed completely. Nor is there any way the statute could have been tolled, because the deeds were recorded publically, and Tim knew about the creation of the Family Trust in September of In Mississippi, the public recording of the deeds means that the statute immediately begins to run because it is available to the public, and it is not concealed. Walls v. Ivy, 156 So. 3d 315, 317 (Miss. Ct. App. 2010) (internal quotation and citation omitted); Miss. Code. Ann ( But as between the parties and their heirs, and as to all subsequent purchasers with notice or without valuable consideration, said instruments shall nevertheless be valid and binding ). There are situations where fraud can toll the statute of limitations, but as the Court of Appeals explained in Walls, concealed fraud may toll the statute of limitations, but it will not toll the statute where the instrument is recorded as a matter of public record. Id.(internal quotation, citation, and alterations omitted). Simply put, the rule is that where an alleged fraudulent conveyance of real property is recorded and available to the public, there can be no concealed fraud preventing the running of the statute of limitations. Id. (internal quotation and citation omitted). There was no fraud in this case as the instruments were all publically recorded. In contrast, there is evidence that Tim waited so long to file suit because he was worried about what his mother would think. At one point during the trial, Tim blurted out that he had been suspicious of his sister years before, but didn t do anything Because my mother was still alive, even though he thought Sarah had acted wrongly. Tim s delay due to his fear of attacking his mother s express wishes is not an excuse to the statute of limitations. 14

19 Indeed, the trial court even at one point had ruled that Tim s lawsuit was beyond the statute of limitations before retracting its earlier ruling. There was no evidence plead, produced, revealed, or otherwise contained in this case which would warrant setting aside the Legislature s bar of three years. The wayward brother filed his suit 1 year, 6 months, and 2 days late. For this reason alone, the Final Judgment must be reversed, and all the claims in this case rendered as untimely. B. Laches Bars the Entire Suit. In the alternative, the brother neglected to contest the deeds and the Family Trust in a timely fashion, and therefore the longstanding equitable bar of laches stops his claim. The deeds were publically recorded in September of 2009 and Tim testified he knew of the Trust at the same time yet he waited until 2014 to file suit. This delay in asserting his claim was inexcusable, and it prejudices Sarah. The defense of laches applies when one party neglects to assert a right or claim, and such neglect, when taken together with any lapses of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity. Bailey v. Estate of Kemp, 955 So. 2d 777, 784 (Miss. 2007). In determining whether laches can be applied, the court looks to three considerations... (1) a delay in asserting a right or claim; (2) that the delay was not excusable; and (3) that there was undue prejudice to the party against whom the claim is asserted. Id. The policy underlying laches is well-settled: It would be contrary to equity and good conscience to enforce such rights when a defendant has been led to suppose by the word or silence, or conduct of the plaintiff that there was no objection to his operations. Twin States Realty Co. v. Kilpatrick, 199 Miss. 545, 553, 26 So. 2d 356, 358 (1946) (internal quotations and alterations omitted). 15

20 In the Bailey case, the chancellor found that seven years had passed before relief was sought, and the delay was not excusable. 955 So. 2d at Further, there was delay because the decedent could no longer testify to defend himself against the complaints of the Baileys, as he had passed away two years before their suit was filed, and the property at issue had increased in estimated value by several hundreds of thousands of dollars.... Id. at 784. Laches has also been found when a group of children waited 14 years to attempt set aside a deed, even though they knew their father was mentally incapacitated at the time, and the Supreme Court ruled that because of their unreasonable delay in making their claims known, they were estopped by laches to assert their claim. Morgan v. Morgan, 431 So.2d 1119, 1122 (Miss. 1983). In the Twin States case, in applying laches the Court held that we think it was too late, after waiting more than six years and until appellee had invested her money in the purchase of the property, for appellant to complain, so far as any relief in equity is concerned. 199 Miss. at 554, 26 So. 2d at 358. Indeed, [c]onsiderably less time than this has been deemed sufficient as a bar in several cases in point.... Id. Like the Bailey, Morgan, and Twin States cases, Tim waited years after he knew of the Spring and Fall Deeds and the creation of the Family Trust before filing suit. Despite his later allegations that Sarah somehow hid the deeds from him, the uncontested reality is that the deeds and Certificate of Family Trust were all recorded in Humphreys County. They were public documents, and under statute and precedent all were immediately put on notice of their existence. Even if Tim hadn t testified that he knew about them in 2009, he would be charged with legal knowledge. Furthermore, during trial Tim admitted that he sat on his suspicions Because my mother was still alive.... He simply waited too long to assert the claims in this case, and laches bars his claims. The Final Judgment must be reversed and rendered. 16

21 III. The Venue Was Defective. Because the Chancery Court of Sharkey County lacked the venue jurisdiction to hear one syllable of this imagined dispute, the Final Judgment must be reversed and rendered. For generations our law has required that disputes over land must be brought in the county where the land rests. Nonetheless, Tim s struggle to grab the family land in Humphreys County was filed in Sharkey County, where his sister lived not where the 440 acres of Fish Lake rests. This defect in venue is a jurisdictional flaw which warrants total reversal. Our Constitution expressly vests chancery court with the power to address land disputes. And in addition to the jurisdiction heretofore exercised by the chancery court in suits to try title and to cancel deeds and other clouds upon title to real estate, it shall have jurisdiction in such cases to decree possession, and to displace possession.... Const. of 1890, Art. 6, Sec. 160; see also Sec. 159(f) (granting chancery continuing power over its previous areas of jurisdiction, which included land disputes). While chancery courts can hear disputes over land, they must be filed in the correct venue. For the Legislature requires suits over land to be filed in the county where the land rests. Suits to confirm title to real estate, and suits to cancel clouds or remove doubts therefrom, shall be brought in the county where the land, or some part thereof, is situated[.] Miss. Code. Ann (emphasis added). As the Supreme Court has stressed, unlike the discretionary nature of may, the word shall is a mandatory directive. Ivy v. Harrington, 644 So. 2d 1218, 1221 (Miss. 1994) (heavy emphasis by the Court). This leaves no room for discussion as to the place of venue for a land dispute: it must be in the county where the property is situated. If it is not, then the Court must immediately reverse the judgment. 17

22 As one commentator has noted, our venue statute is well-worded, and while brief, is nevertheless comprehensive. James W. Shelson, Mississippi Chancery Practice, Venue is controlled by statute, 5:1 (2016 ed.). The statute s application is simple: If the court does not have venue jurisdiction, then the case can be reversed and remanded to the proper venue. Id. The facts here are undisputed. Tim s battle against his sister for Fish Lake is about land only touching Humphreys County. The deed sets out precisely that the 440 acres are only within the confines of that county. Pursuant to the plain language of Section and the strict interpretation given it by Ivy, this suit was filed in the wrong county. This deprived the Sharkey County Chancery Court of authority to hear the dispute, and requires reversal. While both Sarah and the Bank of Anguilla set out in their respective Answers that venue was improper, they did not force the venue defect to a ruling. This Court still has the power to reverse for the venue flaw on appeal, as it cannot be waived. Under Section , filing in the correct county is a statutory predicate to suit. As the Court has explained, one can waive venue when it applies to the person, or in personam. Belk v. State Dept. of Pub. Welfare, 473 So. 2d 447, 449 (Miss. 1985) ( Venue, however, has always been a personal privilege which can be waived when the action is in personam ). Yet when an action is in rem, or against property, venue cannot be waived. Id. The only exception to this [waiver] rule is when, by statute, the place where the action is to be heard is deemed jurisdictional, the primary examples of which are divorce actions, and actions dealing with property. Id.; see also Knighten v. Castle, 247 So. 2d 421, (Miss. 1971) (quoting the venue statute, and concluding We are of the opinion that the suit to cancel the claim of the appellant to the interest of the appellee in the minerals on land located in Clarke County, Mississippi, was properly filed in the Chancery Court of Clarke County, Mississippi ). 18

23 By analogy, and speaking of the tort of trespass to land and under the local action statute, the Court has written that jurisdiction over land cannot be waived, since [t]he effect of the local action doctrine on venue is jurisdictional, i.e. subject matter jurisdiction lies only where the property is located and objections to venue cannot be waived. Donald v. Amoco Prod. Co., 735 So. 2d 161, (Miss. 1999). While there appears to be one ancient case where the Court deemed a dispute over venue and land waived on appeal, see Ravesies v. Martin, 190 Miss. 92, 199 So. 282 (1940), the plain language of the statute requires filing a dispute of this type in the county where the land is situated. The modern authorities conclude that this venue flaw can never be waived. It is beyond dispute that Tim filed this dispute over Humphreys County land in the wrong county, since he chose Sharkey County. This violates the plain language of the land statute and deprived the chancery court of venue jurisdiction to hear the dispute. This flaw cannot be waived, and so the Court must reverse the Final Judgment and remand this case for transfer. IV. There Was No Undue Influence. Because all of Sarah s actions are expressly allowed by our Rules of Professional Conduct, there was no undue influence. The Family Rule of 1.8(c) allows Sarah to represent her parents without ethical conflict. This express provision in our Rules of Professional Conduct allows lawyers to represent their family members when drafting wills or trusts, even when they are a beneficiary. The two deeds Sarah prepared for her family were not conflicts of interest under the Family Rule. The trial court disregarded this clear rule actually holding that there is not an exception for parents, the duty might even be higher.... Because the trial court s creation of a different ethical burden which it decided Sarah violated was legal error, the Final Judgment must be reversed and rendered. Furthermore, Sarah never concealed anything, but 19

24 publically recorded both deeds and the Family Trust. The lack of undue influence and the misapplication of law requires reversal of the Final Judgment. The Rules of Professional Conduct are rules of reason, and several of the Rules define the nature of relationships between the lawyer and others. MRPC, Scope. For instance, Rule 1.8(a) sets out a list of transactions which a lawyer cannot undertake because they are conflicts of interest like enter[ing] into a business transaction with a client, or taking an interest adverse to a client. Yet even if the transaction is generally banned, the lawyer can still proceed provided the terms are reasonable and known to the client, the client can seek independent counsel, and the client consents in writing thereto. MRPC 1.8(a). Another rule bans lawyers from setting themselves up as a beneficiary to a client s will or trust, or from gaining a substantial gift from a client. MRPC 1.8(c). 3 As one source explains, lawyers making themselves the beneficiary of a client raises questions of conflict of interest and undue influence, and also affects the public s perception of the legal profession. 80 A.L.R.5th 597. Yet the same rule recognizes the small-town reality of Mississippi, and provides a clear exemption to this normally banned conduct when there is a family relationship. MRPC 1.8(c). For a lawyer cannot benefit from a client except where the client is related to the donee [recipient]. MRPC 1.8(c) (emphasis added). 3 The rather cumbersome language of the full rule reads: A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee. MRPC 1.8(c). 20

25 The express exception in this Family Rule allows lawyers to prepare wills, trusts, and other financial instruments for family members without fear of ethical conflict. This allows lawyers to be free from what would otherwise be a cartoonish exercise to demand that their aunt or mother first go consult with another lawyer before speaking with them. The Family Rule recognizes how harsh it would be to force a family member to seek outside legal counsel when they had a lawyer already in the family. It would force families who were fortunate enough to have a lawyer to have to pay a stranger, and wall off lawyers from their own families. The Rules are not so severe. The Family Rule provides a safe harbor for lawyers like Sarah who help their family record deeds, draft wills, and prepare trusts. Mississippi is not alone in allowing lawyers to continue to practice law for their family s benefit. As the same learned commentator recognized, [m]ore than 36 states adopted the Model Rules of Professional Conduct that prohibit attorneys from drafting instruments in which the attorney or a family member is given a substantial beneficial interest, unless the client is a relative. 80 A.L.R.5th 597 (emphasis added). While the Family Rule has never been addressed by our courts, we can look to how it has been treated by other jurisdictions. Alabama has ruled that it is not ethical misconduct for a lawyer to name themselves as a beneficiary to a trust when they are related, because the Family Rule stretches to encompass all members of a family by blood or marriage. Cooner v. Alabama State B., 59 So. 3d 29, 39 (Ala. 2010). Alabama has the exact same Rule 1.8(c) as does Mississippi. Id. at 35. In that case, the client was the lawyer s uncle by marriage, not by blood, and the lawyer s wife had died. Id. at The Alabama State Bar argued that the lawyer had committed misconduct by naming himself as a beneficiary in the uncle s trust. Id. at 39. The Bar also argued that argued that the 21

26 death of the lawyer s wife cut what little familial thread there was in the first place, so he could not claim safe passage under the Family Rule. Id. at 40. The Court disagreed, and conclude[d] that related as that term is used in Rule 1.8(c), Ala. R. Prof. Cond., includes relationships by blood and by marriage and that an affinity relationship between an uncle and his nephew is within the meaning of the term related. Id. We can also see what happens when a lawyer is not related to a client. For instance, one Kentucky lawyer was suspended after she violated their version of the rule because there was no family relationship. Clements v. Kentucky B. Ass n, 983 S.W.2d 512, 512 (Ky. 1999). The lawyer admits that she prepared a Last Will and Testament which included a bequest to her in the amount of $50,000. Id. She was not safe from ethical conflict, because [s]he further admits that she was not related to her client, the testator. Id. The failure of the attorney to have a familial relationship doomed her. There are only two instruments in this case, and under the Family Rule s clear terms, Sarah did not commit any ethical misconduct. The first instrument is the Spring Deed, from Dewitt to Barbara, and the second is the Fall Deed, from Barbara to the Trust. Both of the deeds are fully subject to the Family Rule. Sarah was allowed by the express language of Rule 1.8(c) to draft the Spring Deed for her father to transfer Fish Lake to her mother. Likewise, Sarah was fully protected under the Family Rule for the Fall Deed transferring Fish Lake to the Trust, and in drafting and filing the Family Trust. The express language in 1.8(c) except where the client is related to the donee allows just this conduct. The trial court did not cite Rule 1.8(c) in its Final Judgment or appear to know that it even existed. Indeed, the trial court seemed infuriated that Sarah did not counsel her parents that they needed to seek the advice of independent counsel. The trial court ruled that When parents come to their attorney/child, that attorney has an absolute and ethical responsibility to tell 22

27 them to talk to another lawyer. Yet that language echoes Rule 1.8(a) a markedly different creature than the Family Rule in 1.8(c), which applies when a lawyer drafts an instrument for a parent. The trial court never cited any of the Rules of Professional Conduct in the Final Judgment, but condemned Sarah nonetheless, and based the entirety of its ruling on what it deemed to be ethical misconduct. In the Final Judgment, the trial court even conceded that the burden it had crated might even be higher when parents are involved. There is no such creature. The trial court substituted its own perception of the Rules Rules which do not apply, were not quoted, and were not cited. This legal error in the application of the Rules warrants reversal. Even if the Family Rule did not exist or did not apply, Sarah did not hide or conceal the deeds or the Trust in any way. Rule 1.8(c) pours sunshine into the dark areas of attorney-client relationships, so lawyers cannot hide sketchy financial transactions with clients. For example, the Supreme Court of Iowa was furious at a lawyer who drew up a will for a non-relative client a will where the client left all his property to [the lawyer,] who was named executor. Comm. on Prof. Ethics and Conduct of Iowa State B. Ass n v. Randall, 285 N.W.2d 161, 163 (Iowa 1979). Contrary to the usual procedure in the office no copy of the will was placed in office files; instead the original was placed in [the lawyer s] private drawer. Id. Incredibly, [he] testified he then forgot about it. Id. Iowa needed as much sunlight as possible to cast on that murky situation. Contrast the bright light of Sarah s actions in this case, where both deeds and the declaration of the Trust were literally on public display and Tim testified he knew about them since they were recorded in Both deeds were recorded in fact, the recorded deeds were even attached to Tim s first complaint. The recording of a deed raises a presumption of its delivery, under our law, and broad-day recording of the deeds meant both were valid and 23

28 binding instruments. See In re Est. of Hardy, 910 So. 2d 1052, 1054 (Miss. 2005); Miss. Code. Ann Unlike the lawyer in Kentucky who received tens of thousands of dollars from an unrelated client, Sarah represented her mom and dad in preparing land deeds. Unlike the lawyer in Iowa who secreted a will away in a drawer, Sarah didn t hide the deeds from her brother, but recorded them at the Humphreys County courthouse. And if the lawyer in Alabama was under the Family Rule when he benefitted from his uncle-by-marriage, Sarah s work for her parents was clearly under the confines of 1.8(c). There is simply no ethical prohibition on a lawyer drafting deeds for her parents, and the Rules of Professional Conduct contain an express provision to allow it. Nonetheless, the trial court created an ethical burden which does not exist, cast it onto Sarah s shoulders, ignored the safe harbor provisions of the Family Rule, and then condemned her for violating this imaginary burden. The imaginary ethical problem was not plead by the plaintiff, not raised in the pleadings, and not found in our Rules of Professional Conduct, their Comments, or in our precedent. Furthermore, contrary to the trial court s ruling, as set out above Sarah could not have concealed any information from her brother because the deeds were both publically recorded years before he filed suit. The same day the deeds were recorded, the Family Trust s certificate was also publically recorded. Tim knew about the Trust, and even said under oath he helped create it. There was no evidence of concealment, and legally speaking, there simply was not concealment. See Walls, 156 So.3d at 317 ( When the information is placed in the public domain, the doctrine of fraudulent concealment ceases to be applicable ) (internal quotation and citation omitted). 24