IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI NO. 201S-CA CA-00739

Transcription

1 E-Filed Document Nov :30: CA COA Pages: 10 IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI NO. 201S-CA CA SHELBY J. KILPATRICK APPELLANT/CROSS-APPELLEE v. V. HOUSTON T. JARVIS, JR. & WILLIAM C. JARVIS APPELLEES/CROSS APPELLANTS RESPONSIVE BRIEF OF APPELLEES/CROSS-APPELLANTS HOUSTON T. JARVIS, JR., AND WILLIAM C. JARVIS TO REPLY BRIEF MARK A. SCARBOROUGH P. 0 O.. BOX 3662 MERIDIAN, MS TELEPHONE: 601/ FACSIMILE: 601/ masatty82@att.net MSB #6501

2 IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI NO CA SHELBY J. KILPATRICK APPELLANT/CROSS-APPELLEE V. HOUSTON T. JARVIS, JR. & WILLIAM C. JARVIS APPELLEES/CROSS APPELLANTS CERTIFICATE OF INTERESTED PERSONS 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. Shelby Jean Kilpatrick- Defendant/ Appellant/Cross-Appellee Spinks Law Inc.-Attorneys for Appellant/Cross-Appellee George H. Spinks-Attorney for Appellant/Cross-Appellee Houston T. Jarvis, Jr., and William C. Jarvis-Plaintiffs/Appellees/Cross Appellants Mark A. Scarborough-Attorney for Plaintiffs/ Appellees/Cross Appellants Hon. Joseph Kilgore- Chancellor, Trial Corni s/ Mark A. Scarborough Mark A. Scarborough MSB #650J Mark A. Scarborough, Attorney P. 0. Box 3662 Meridian, MS Phone No.: 601/ Fax No.: 601/

3 TABLE OF CASES, RULES AND OTHER AUTHORITIES Mississippi Cases Allgood v. Allgood, 473 So.2d 416 (Miss. 1985)...., Brooks v.brooks, 882 So.2d 230, 233 (Miss. 2004) Calcote v. Calcote, 583 So.2d 197, 199 (Miss. 1991) , Cooper et al v. Gilder et ai, No CA COA ,......, Curtis v. Curtis, 59 So.3d 623, 629 (Miss. 2011)..., ,3 Griffin v. Armana, 687 So.2d 1188, (Miss. 1996) In Re Atkins v. Sartin, 42 So.2d 754 (Miss. 1982) In Re Bodman v. Bodman, 674 So.2d 1245 (Miss. 1996) McBride v. McBride, 110 So.3d 356, 360 (Miss. 2013) Perkins v. Perkins, 787 So.2d 1256, 1261 (Miss. 2001) Sojourner v. Sojourner, 247 Miss. 342, 153 So (Miss. 1963)

4 TABLE OF CONTENTS Cross!Appellants' Summary of Res]?onsive Argument Cross! Appellants' Responsive Argument Cross! Appellants' Conclusion Cross! Appellants' Certificate of Service

5 SUMMARY OF RESPONSIVE ARGUMENT The trial court's failure to include Jeanie's $83, Certificate of Deposit as an asset of Bud's Estate was a clear error oflaw and manifest injustice, and warrants reversal on that lssue.

6 CROSS-APPELLANTS' RESPONSIVE ARGUMENT The trial court erred in failing to grant that part of the Cross-Appellants' Amended Motion for New Trial or Amendment of Judgment that sought the imposition of a constructive trust on additional sums of money. The trial court was faced with the task of determining what assets were a part of Bud's Estate. The trial court found that the balances remaining in Bud's checking account and liquid CD on the date of his death should be assets of his Estate, and the trial court brought them into the Estate by the imposition of a constructive trust. "A constructive trust is a fiction of equity" and "... a formula through which the conscience of equity finds expression." Griffin v. Armana, 687 So. 2d 1188, (Miss. 1996). "Constructive trusts are created for the purpose of preventing unjust enrichment...". Allgoodv. Allgood, 473 So.2d 416 (Miss. 1985). The constructive trust cases have been cited in other parts of our brief, and those arguments are also adopted and incorporated herein by reference. See also Calcote v. Calcote, 583 So.2d 197, 199 (Miss. 1991), and Cooper v. Gilder et ai., No CA-793-COA, quoting Sojourner v. Sojourner, 153 So.2d 803 (Miss. 1963). Houston and Bill's motion under Rule 59 of the Mississippi Rules of Civil Procedure gave the trial court a chance to reconsider its prior [mdings on certain matters. The trial court denied the Rule 59 motion in part, but granted it in part. The trial court granted Houston and Bill a constructive lien against Jeanie's interest in the real property that formerly belonged to Bud. The significance of that ruling was not readily apparent at the time. "An appeal from a denial of a Rule 59 motion may address the merits of the entire underlying proceeding...". Curtis v. Curtis, 59 So.3d 623, 629 (Miss. 2011), citing Perkins v. Perkins, 787 So.2d 1256, 1261 (Miss. 2001). This appellate Court "... must ask whether (the

7 ruling of the trial court) was legal error or manifest injustice...". Curtis at page 629. The appellate Court's review can "... encompass both the denial of reconsideration and the underlying judgment...". McBride v. McBride, 110 So.3d 356, 360 (Miss. 2013). On page 17 of her Reply Brief, Jeanie misquotes Brooks v. Brooks, 882 S02.230, 233 (Miss. 2004). She states that under a Rule 59 motion the movant must show the"... (iii) need to correct a clear error oflaw or to prevent manifest justice" in order to prevail. This was clearly a typographical error, but it serves to remind us ofthe trial court's function. The trial court, being a court of equity, was trying to prevent manifest injustice by using the tools and remedies available to it. A constructive trust was an available remedy, and was the one employed by the trial court. The trial court found that Jeanie would be "unjustly enriched" (CP 297) if the remaining account balances became hers. Providing care for Bud was something that Jeanie chose to do, and she "... benefitted greatly in a financial sense from Bud's assets." (CP 295). The balances that remained in Bud's accounts were no longer needed for his necessities, and equity required that those funds come back into Bud's Estate. But, the trial court's failure to bring the proceeds from the Jeanie's Certificate of Deposit back into the Estate"... was legal error or manifest injustice...". Curtis v. Curtis, 59 So.3d 623,629 (Miss. 2011). Houston and Bill submit that this was also contrary to the reasoning found in the cases they cited previously: In Re Bodman v. Bodman, 674 So.2d 1245, 1250 (Miss. 1996), and In Re Atkins v. Sartin, 422 So.2d 754, 756 (Miss. 1982). Jeanie, much like the Convservator in Bodman, "... violated her fiduciary duty by neglecting the intent of the ward and unlawfully invading the beneficiaries' accounts." (Bodman at page 1250). Jeanie terminated the Certificates of Deposit that Bud owned with both Houston and Bill jointly and also as payable on death beneficiaries, and she used those funds as she chose. Yet she tried to preserve 3

8 the funds that might come to her upon Bud's death, and she did not contribute any of those funds toward her ward's necessities. The Citizens Bank CD # in the amount of$83, was paid to Jeanie in May of2012. (CP 47, Ex. 47). It would be legal error or a manifest injustice if Jeanie was allowed to keep those proceeds. This Court should reverse the trial court on that issue, and find that those proceeds ($83, ) are a part of Bud's Estate. A reversal on that issue and an affirmance of the trial court on all other matters would produce an interesting and equitable result. If one adds the amount of the CD Jeanie withheld ($83,452.19) to the sums that are already subject to the trial court's constructive trust ($157,706.71), the resulting total is $241, If that total is divided by three-one share each for Jeanie, Houston, and Bill- the result is $80, per beneficiary. That would practically restore the CDs that Bud owned with Houston and Bill as payable on death beneficiaries, before the CDs were terminated by Jeanie, and it would allow Jeanie to keep all but $3, or so of the CD that she held out for herself. Also, Houston and Bill would have the right to enforce their constructive lien if Jeanie was unable to pay back the account balances that are subject to the constructive trust. The trial court's finding on the Rule 59 motion is worth repeating here: "The court fmds that this request is well-taken and grants the petitioners (Houston and Bill) a lien upon the real property formerly owned by Houston T. Jarvis, Sr. (Bud's full name) in the amount of$157,706.7l. (CP 319). A result along these lines would achieve both an equitable result and the "manifest justice" that Jeanie mentioned in her brief.

9 CONCLUSION "Manifest justice" would be served and an equitable result would be reached by a finding that Jeanie's $83, CD was an asset of Bud's Estate. The triaj court's failure to include this asset was a clear error of law in both its original Judgment and again in its denial in part of Houston and Bud's Rule 59 motion, and resulted in manifest injustice. The triaj court should be affirmed on its finding that the balances in the checking account and the liquid CD, totaling $157, as of the date of Bud's death, were assets of Bud's Estate. The trial court's imposition of a constructive lien in favor of Houston and Bill in the amount of $157, and against Jeanie's interest in the reaj property should also be affirmed.

10 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Responsive Brief of Appellee/Cross Appellants, Houston T. Jarvis, Jr. and William C. Jarvis, was served on the trial Judge in this cause by Certified Mail, and served electronically on the following counsel of record on November 1, 2016, by the Mississippi Electronic Court System: Judge Joseph Kilgore P. 0. Box 1006 Philadelphia, MS Hon. George H. Spinks Counsel for Appellant/Cross-Appellees P. 0. Box478 DeKalb, MS spinkslaw@hotmail.com j s_r WITNESS MY SIGNATURE on this the day of November, Mark A. Scarborough MSB #6501 Mark A. Scarborough, Attorney P. 0. Box 3662 Meridian, MS Phone No.: 601/ Fax No.: 601 / masatty82@att.net b