E-Filed Document Apr 6 2017 10:50:18 2016-CA-00444 Pages: 16 IN THE SUPREME COURT OF MISSISSIPPI NO: 2016-TS-00444-SCT L. H. MANNING, VIRGINIA WARREN, JOHN HENRY MANNING, EVA MANNING, GEANNIE JONES, AND NIKIESHA FUNCHESS VERSUS Appellants JOAN FRITSCHEN MANNING, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF EDWARD RICHARD MANNING, DECEASED, ROBERT PERRY, PAIGE PERRY AND PIKE NATIONAL BANK Appellees APPEAL FROM THE CHANCERY COURT OF PIKE COUNTY J. Larry Buffington, Special Judge BRIEF OF APPELLEES ROBERT PERRY AND PAIGE PERRY WAYNE DOWDY (MSB 6177) DOWDY COCKERHAM & WATT Post Office Box 30 Magnolia, MS 39652 (601) 783-6600 telephone (601) 783-3670 facsimile waynedowdy@waynedowdy.com Counsel for Appellees Robert Perry and Paige Perry ORAL ARGUMENT NOT REQUESTED
IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO: 2016-TS-00444-SCT L. H. MANNING, VIRGINIA WARREN, JOHN HENRY MANNING, EVA MANNING, GEANNIE JONES, AND NIKIESHA FUNCHESS APPELLANTS V. JOAN FRITSCHEN MANNING, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF EDWARD RICHARD MANNING, DECEASED, ROBERT PERRY, WIFE PAIGE PERRY, AND PIKE NATIONAL BANK APPELLEES CERTIFICATE OF INTERESTED PARTIES 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 this Court may evaluate possible disqualification or recusal. 1. L. H. Manning - Appellant 2. Virginia Warren - Appellant 3. John Henry Manning - Appellant 4. Eva Manning - Appellant 5. Geannie Jones - Appellant 6. Johnell Matthews, Attorney - Appellant 7. Nikiesha Funchess - Appellant 8. Joan Fritschen Manning - Defendant in lower Court proceeding. 9. Estate of Edward Manning -Defendant in lower Court proceeding. 10. Robert Perry - Appellee 11. Paige Perry - Appellee 12. Wayne Dowdy, Attorney - Appellee 13. Pike National Bank, Defendant in lower Court proceeding. THIS the day of March, 2017. -i-
Respectfully Submitted, DOWDY COCKERHAM & WATT By: s/ Wayne Dowdy WAYNE DOWDY #6177 P.O. Box 30 Magnolia, MS 39652 Telephone: (601) 783-6600 Facsimile: (601) 783-3670 waynedowdy@waynedowdy.com -ii-
TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... i, ii TABLE OF CONTENTS... TABLE OF AUTHORITIES... iii iv STATEMENT OF ISSUES... 1 STATEMENT OF THE CASE... 2 A. NATURE OF THE CASE, THE COURSE OF PROCEEDINGS, AND ITS DISPOSITION IN THE COURT BELOW... 2 B. STATEMENT OF FACTS RELEVANT TO THE ISSUES PRESENTED FOR REVIEW... 4 ARGUMENT AND AUTHORITIES... 7 A. PERRYS WERE ENTITLED TO SUMMARY JUDGMENT BECAUSE THE RELIEF SOUGHT BY APPELLANTS (IMPOSITION OF AN IMPLIED CONSTRUCTIVE OR RESULTING TRUST) IS BARRED BY SECTION 15-1-39, MISS. CODE ANNO... 7 B. ANY DEFECT IN THE ACKNOWLEDGMENT OF THE 1994 DEED FROM THE MANNING PARENTS TO ED MANNING IS CURED BY THE PROVISIONS OF SECTION 89-5-13, MISS. CODE ANNO... 7 CONCLUSION... 9 CERTIFICATE OF SERVICE... 10 -iii-
TABLE OF AUTHORITIES CASES PAGE Barriffe v. Estate of Lawson, 153 So.3d 613 (Miss. 2014). 8 Conner v. Conner, 238 Miss. 471, 119 So.2d 240. 7 Jones v. Jones, 84 So.2d 414, 226 Miss. 378 7 Prewett v. Buckingham, 28 Miss. 92 (1854). 8 Rimmer v. Austin, 191 Miss. At 668, 4 So.2d 224 (Miss. 1941) 8 Stebbins v. Hayes, 379 So.2d 898 (Miss. 1980). 8 Sullivan v. Nobles, 211 Miss. 330, 51 So.2d, 736 (1951). 8 RULES Rule 54(b), MRCP 3 STATUTES Section 11-47-3, Miss. Code Anno. 6 Section 15-1-39, Miss. Code Anno. 1, 3, 6,7,9 Section 89-3-1, Miss. Code Anno. 8 Section 89-3-3, Miss. Code Anno. 9 Section 89-3-7, Miss. Code Anno. 9 Section 89-3-9, Miss. Code Anno. 9 Section 89-5-3, Miss. Code Anno. 9 Section 89-5-13, Miss. Code Anno. 1 -iv-
STATEMENT OF THE ISSUES 1. Whether the lower court erred in granting Summary Judgment in favor of Robert Perry and Paige Perry, since the Appellants claim for imposition of an implied trust (constructive or resulting) is barred by Section 15-1-39, Miss. Code Anno. 2. Appellants requested relief that the 1994 Quitclaim Deed be declared void for lack of proper authentication is barred by Section 89-5-13, Miss. Code Anno., the Quitclaim Deed having been filed of record in the land records of the office of the Chancery Clerk of Pike County, Mississippi on May 19, 1994. -1-
STATEMENT OF THE CASE A. NATURE OF THE CASE, THE COURSE OF PROCEEDINGS, AND ITS DISPOSITION IN THE COURT BELOW The Appellants are siblings of Edward Richard Manning (Ed Manning), a retired NBA professional basketball player who lived in Tarrant County, Texas. On January 30, 2015, the Manning siblings filed their Complaint to Determine Ownership of Land by Declaration of Trust, to set aside Warranty Deed, and for Damages, Jury Trial Requested, in the Chancery Court of Pike County, Mississippi. In their Complaint to determine ownership of land by declaration of trust, the Manning siblings named as Defendants: Joan Fritschen Manning, the widow of Ed Manning and the Executrix and sole devisee under his Last Will and Testament; Robert Perry and wife, Paige Perry, (Appellees herein) and Pike National Bank. The Complaint involved a 1994 Quitclaim Deed from the Mannings father and mother, Henry Manning and Addie Manning, both now deceased, Ed Manning, which deed conveyed the family home place, an 87 acre tract of real property in Pike County, Mississippi. After the Quitclaim Deed was executed by Henry Manning, father, and Addie Manning, mother, it was recorded in the Chancery Clerk s office in Pike County on May 19, 1994. In their Complaint filed January 30, 2015, the Manning siblings claim that the 1994 Deed was an implied trust (constructive or resulting) and that the intent of the 1994 Quitclaim Deed was to appoint Edward Manning as Trustee of the land at issue for the -2-
benefit of all heirs of Henry and Addie Manning, and that the land at issue did not belong to Edward Manning in fee simple, but was held by him in an implied constructive or resulting trust for himself and all heirs of Henry and Addie Manning. (R-7). After Ed Manning, grantee in the 1994 conveyance, died, his Last Will and Testament was probated in Tarrant County, Texas, and later ancillary proceeding in Pike County Chancery Court, leaving all of Ed Manning s property, including the Pike County tract, to his widow, Joan Fritschen Manning. After the Judgment Closing Ed Manning s will was recorded in Pike County, Joan Fritschen Manning had conveyed seventy-three acres of the Pike County property to Robert Perry and wife, Paige Perry. The Perrys were named Defendants in the siblings 2015 case. Also a named Defendant was Pike National Bank, the lender for Robert and Paige Perry, and holder of a first deed of trust on the seventy-three acres real property in question. In their separate Answer and Affirmative Defenses, the Perrys affirmatively raised the statute of limitations, and denied that the property was conveyed to Ed Manning in an implied constructive trust or resulting trust. (R.32). The Perrys filed their Motion for Summary Judgment, asserting that the relief sought by the Manning siblings was specifically barred by Section 15-1-39, Miss. Code Anno. Made exhibits to the Perrys Motion for Summary Judgment were the 1994 Quitclaim Deed by the Manning father and mother to Ed Manning (R.47,48), and the affidavit of the attorney who prepared the Quitclaim Deed (R.49, 50). After a Summary Judgment hearing, the Chancery Court Judge entered a separate Final Judgment Dismissing Robert Perry and Paige Perry, and the Court, as required by Rule 54(b), MRCP, expressly determined that there was no just reason for delay, directing entry of Final Judgment as to the Manning siblings claims against Robert -3-
Perry and Paige Perry. The Chancery Court also separately granted Summary Judgment to another Defendant, Pike National Bank, after having expressly determined that there was no just reason for delay and directing Entry of Final Judgment as to the Defendant, Pike National Bank. The Manning siblings filed their Motion to Reconsider Judgment; to Amend Judgment; to Stay Judgment; and/or Motion for New Trial regarding the Summary Judgment granted the Perrys. However, the Appellant did not ask for reconsideration of the judgment granted Pike National Bank, and did not appeal that Summary Judgment. The Manning siblings now appeal in this Court regarding the Summary Judgment granted in favor of the Perrys. B. STATEMENT OF FACTS RELEVANT TO THE ISSUES PRESENTED FOR REVIEW In 1994, McComb attorney W. Stewart Robison was contacted by one of the Appellants, L. H. Manning, who asked that Robison prepare a quitclaim deed conveying his parents real property in Pike County to Edward Richard Manning, the brother of L. H. Manning and the other Appellants. A son of the grantors, Ed Manning had retired from his pro basketball career and lived in Texas. The property of the parents, Henry Manning and wife Addie Manning, consisted of approximately 86 acres After speaking with L. H. Manning, Robison prepared a quitclaim deed conveying the parents property to Edward Richard Manning. Since L. H. Manning had made no statement or request regarding the creation of a constructive trust or any other type of trust, Robison prepared the deed as an outright grant of title to Edward Richard Manning. (R.47, 48). After he prepared the deed, L. H. Manning requested Robison to accompany him to -4-
a hospital in New Orleans where his father, Henry Manning, was a patient. Robison arranged for a Notary Public licensed in Louisiana to meet Manning and Robison at the hospital. The Notary Public was a practicing attorney. The Louisiana attorney/notary Public attested that Henry Manning and wife, Addie Manning executed the deed, prepared by Robison. The deed was dated May 13, 1994. On May 19, 1994, the deed was recorded in the office of the Chancery Clerk of Pike County, Mississippi, and was recorded in Conveyance Book 353 at Pages 607 and 608. (R.47, 48) After the 1994 deed was recorded, on May 19, 1994, there was no other deed or conveyance of the property, nor was there any sort of legal proceeding regarding the quitclaim deed to Edward Richard Manning, from 1994 until 2013. The father, Henry Manning, and the mother, Addie Manning, died before March 4, 2011,which was the date of the death of Edward Richard Manning. When he died, Ed Manning was still residing in the State of Texas. Before his death, Ed Manning had executed his Last Will and Testament, devising all of his property, to his wife, Joan Fritschen Manning. His will was admitted to probate in Tarrant County, Texas. Thereafter, on February 5, 2013, Ed Manning s will was admitted for ancillary probate in the Chancery Court of Pike County, Mississippi, and Notice to Creditors was published. On June 24, 2013, the Judgment Closing Estate of Edward Richard Manning was entered by the Chancery Court of Pike County, and recorded in the office of the Chancery Clerk. (R.22-26). The Judgment of the Pike County Chancery Court authorized transfer of the subject property to Joan Manning, under the terms of Ed Manning s will. On August 13, 2013, the Manning siblings filed their first Complaint against Ed -5-
Manning s widow and sole devisee Joan Manning, Seeking to Recover Land by Declaration of Trust, Cause No. 57-2013-0421, Chancery Court of Pike County. This case was shortly dismissed by Appellants, without prejudice. Later, another suit by the Manning siblings was filed in United States District Court, Western Division seeking the same relief. However, this case was dismissed by the Court for failure to join a necessary party, Pike National Bank, holder of the Perrys deed of trust of almost $200,000.00, secured by the property which is the subject of this appeal. (R.176). Ed Manning s wife deeded the property to the Perrys on October 18, 2013. (R.176) On January 30, 2015, the Manning siblings filed their Complaint to Determine Ownership of Land by Declaration of Trust, To Set Aside Warranty Deed, and for Damages, Jury Trial Requested. This Complaint was filed in the Chancery Court of Pike County, and is the subject of this appeal.. Notice of Lis Pendens was first filed by the Manning siblings on January 30, 2015, as authorized by Section 11-47-3, Miss. Code Anno. In their Complaint, the Plaintiffs claim that the 1994 Deed was an implied trust (constructive or resulting), and that the intent of the Quitclaim Deed was to appoint Edward Manning as Trustee of the land at issue for the benefit of all heirs of Henry and Addie Manning and that the land at issue did not belong to Edward Manning, in fee simple, but was held by him in an implied constructive or resulting trust for himself and all heirs of Henry and Addie Manning. (R.7). In their Answer and Affirmative Defenses, the Perrys raised affirmatively, the statute of limitations defense, and denied that the 1994 conveyance to Ed Manning contained an implied constructive trust or resulting trust for all of the heirs of Henry and Addie Manning. (R.32). The Perrys filed their Motion for Summary Judgment, stating: The relief sought by -6-
the Plaintiffs is specifically barred by Section 15-1-39, Miss. Code Anno., which provides that relief alleging the existence of a trust must be filed within ten (10) years. The ten-year limitation of Section 15-1-39 is applicable to both express and implied trusts. (R. 44). Made exhibits to their Motion for Summary Judgment were the 1994 Quitclaim Deed by Henry Manning and wife, Addie Manning, to Edward Richard Manning (R. 47, 48), and the affidavit of Mr. Robison, the attorney who prepared the deed (R. 49, 50). The Manning siblings now appeal the lower court s Judgment Granting Summary Judgment in favor of Perrys. ARGUMENT AND AUTHORITIES A. Whether the 1994 deed Is subject to an implied or resulting trust. There is no dispute that on May 13, 1994, Henry Manning and wife, Addie Manning executed and delivered their Quitclaim Deed to Edward Richard Manning. (R. 47-48). There is no dispute that the Quitclaim Deed was filed and recorded, on May 19, 1994, in the office of the Chancery Clerk of Pike County, Mississippi. (R.47, 48). The deed prepared by attorney W. Stewart Robison contained no creation of a constructive trust in the deed or any other type of trust, or that the property was to be held in trust by Edward Richard Manning, other than an outright grant of title to the grantee, Edward Richard Manning. (R.49, 50). The deed had been prepared at the request of L. H. Manning, one of the Appellants. The record title owner of real estate is presumed to be the legal and equitable owner of the same. Jones v. Jones, 84 So.2d 414, 226 Miss. 378 and Conner v. Conner, 238 Miss. 471, 119 So.2d 240. In this case, the Manning siblings were silent and did not advance their implied trust claim for more than nineteen (19) years. Section 15-1-39, -7-
requires that Bills for relief, in case of the existence of a trust not cognizable by the courts of common law and in all other cases not herein provided for, shall be filed within ten (10) years after the cause thereof shall accrue and not after. The Mississippi Supreme Court has held repeatedly that the ten-year statute regarding both express and implied trusts begins to run from the time when the act was done by which the party became chargeable as trustee by implication, which is to say, from the time when the cestui que trust could have enforced his right by suit. In Rimmer v. Austin,191 Miss. at 668, 4 So.2d 224, the Court found that the right to enforce a constructive trust accrues at the time of the act from which the trust results. The Manning siblings theory of recovery is the imposition of an implied or constructive trust regarding the 1994 deed. This was their argument in the lower court, as now on appeal. The right to enforce an implied or constructive trust accrues at the time of performance of the act from which the trust results. Stebbins v. Hayes, 379 So.2d 898 (Miss. 1980). The statute runs from the time when the act was done, by which the party became chargeable as trustee by implication. Rimmer v. Austin, 191 Miss. At 668, 4 So.2d 224 (Miss. 1941). See also Sullivan v. Nobles, 211 Miss. 330, 51 So.2d, 736 (1951); Prewett v. Buckingham, 28 Miss. 92 (1854). Statutes of limitations are not merely suggestions; parties must bring timely claims or else forfeit their right to seek judicial relief. Barriffe v. Estate of Lawson, 153 So.3d 613 (Miss. 2014). B. Whether the 1994 deed was improperly acknowledged. In their prayer for relief (R.15), the Manning siblings also assert that the Quitclaim Deed be declared void for lack of proper authentication. This point is not well taken since -8-
the deed complies with statutory requirements for acknowledgment. Section 89-3-1 dictates that a deed shall not be admitted to record in the clerk s office unless the execution thereof be acknowledged and the acknowledgment or proof duly certified by an officer competent to take the same. Section 89-3-3 provides that a conveyance to be recorded may be acknowledged before a notary public (R.20, 21). Section 89-3-7(a), which details the form of acknowledgment, which should be used, shows that the 1994 deed conforms to the statutory requirements. (R.20, 21). Section 89-3-9 allows for acknowledgment in another state, before any notary public having a seal of office, and states that such acknowledgment before a Notary Public of another state (such as Louisiana) shall be as good and effectual as if the certificate of acknowledgment or proof had been made by a competent officer in this state. Even though the acknowledgment of the 1994 deed conforms to all Mississippi statutory requirements, the Perrys are re-assured by Section 89-5-3, concerning defective acknowledgments, which statute provides that concerning an interest in land, wherever an instrument of conveyance which contains a defective acknowledgment has been of record seven (7) years or more in the land records of the county in which the said land is located, the acknowledgment shall be good without regard to the forms of the certificate of acknowledgment. CONCLUSION The lower Court correctly held that the statute of limitations in Section 15-1-39 began to run at the point in time when Ed Manning became chargeable as trustee by implication, which took place in 1994, when the deed was made and recorded. The relief sought by the Manning siblings is barred by Section 15-1-39. Further, the Mannings siblings claim that -9-
the 1994 deed should be declared void for the lack of proper authentication of acknowledgment, should be denied. Respectfully submitted, WAYNE DOWDY, MSB # 6177 DUNBAR DOWDY WATT, MSB #102868 DOWDY COCKERHAM & WATT 215 East Bay Street Post Office Box 30 Magnolia, MS 39652 (601) 783-6600 Telephone (601) 783-3670 Facsimile waynedowdy@waynedowdy.com -10-
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Brief of Appellees Robert Perry and wife Paige Perry has been served upon counsel for all parties to this proceeding through the Court s electronic filing system. A copy of the above and foregoing has been mailed by United States mail, postage prepaid to the following: Honorable J. Larry Buffington Senior Status Judge P. O. Box 924 Collins, MS 39428-0924 Johnell M. Matthews, Esq. Chrystal M. Matthews,Esq. Matthews & Matthews 4705 Bluebonnet Blvd., Ste. A Baton Rouge, LA 70809 THIS the 6th day of April, 2017. s/wayne Dowdy WAYNE DOWDY -11-