E-Filed Document Aug 7 2018 16:45:15 2016-CT-00800-SCT Pages: 7 IN THE COURT OF APPEALS OF MISSISSIPPI CLAIRE C. FLOWERS APPELLANT v. No. 2016-CA-00800 KNOX LEMEE FLOWERS APPELLEE RESPONSE IN OPPOSITION TO THE PETITION FOR CERTIORARI Because the Executor s arguments for rehearing have already been considered in detail and rejected by a detailed and scholarly opinion by the Court of Appeals, the Petition does not articulate a reason it should be granted. Indeed, the Court actually ruled in its favor of the Executor and affirmed the trial court on one issue. The Court of Appeals applied Supreme Court precedent, and after dozens of pages of briefing, and an hour of oral argument, further review is unnecessary. For this reason, and because the Court of Appeals was correct in its application of the fact and the law, the Petition must be denied. Standard of Review Rule 17 limits review to cases in which it appears that the Court of Appeals has rendered a decision which is in conflict with a prior decision of the Court of Appeals or published Supreme Court decision. MRAP 17(a)(1). Over a very detailed 14 pages, the majority Opinion by the Court of Appeals took careful note of precedent from the Supreme Court, which included affirming a portion of the chancellor s judgment. This deeply reasoned Opinion does not require review on certiorari. 1
I. The Daughters Had Standing and the Accounting Was Properly Ordered. The Court of Appeals correctly decided that the daughters had sufficient interest to seek an accounting of their mother s estate. The Court fully accepted an argument made by the sisters in the trial court, before this Court, and during oral argument: that they had a shifting executory interest which provided standing to seek an accounting. See Op. at 17. The Court s ruling was based upon established Supreme Court precedent and does not warrant review under MRAP 17. The heart of the Court s ruling is Paragraph 17, where Judge Carlton, writing for the majority, explained Mississippi precedent clearly establishes that vested remainder beneficiaries of a testamentary trust have standing to file suit and that holders of a shifting executory interest have some limited rights that can provide standing to file suit. The Court then cited to the Baumgardner case, which was greatly relied upon by the sisters throughout this litigation. See In re Est. of Baumgardner, 82 So. 3d 592, 599 (Miss. 2012). This recent precedent controls the disposition of this appeal, and should not be disturbed. Like in this case, the trustee in Baumgardner had argued that the daughter does not have standing because she had only a contingent remainder in the home-place land, but the Court found the trustee s argument is without merit. Id. at 600. The Baumgardner Court ruled that [a]lthough [the daughter] did not have a present possessory interest in the property at the time she filed suit, her remainder interest was vested. Id. For [a] remainder interest in an irrevocable trust represents a present fixed right to future enjoyment that gives rise to a vested property interest in trust property even if that interest is subject to complete divestment or defeasance. Id. at 601. Therefore [i]f there is a present right to a future possession, though that right may be defeated by some future event, contingent or 2
certain, there is nevertheless a vested estate. Id. (quoting Hays v. Cole, 221 Miss. 459, 473, 73 So.2d 258, 264 (1954)). As a result, the Court ruled that [b]ecause [the daughter s] interest in the trust property was vested, [the trustee s] argument that she does not have standing because her interest was contingent has no merit. Id. In the ruling by the Court of Appeals, the emphasis was not placed on whether the interest was contingent, or subject to a future event, but whether it was vested. Id. It did not matter if the possibility of taking was remote so long as the interest was explicit. Id. The case directly applied to the Flowers sisters appeal, the Court of Appeals applied it, and as a result the Petition does not establish grounds for review. Furthermore, the Court of Appeals explained in detail why exactly the daughters had standing not just under Baumgardner, but a longer line of cases stretching all the back to 1881, including Columbus & Greenville Ry. Co. v. City of Greenwood, 390 So. 2d 588, 592 (Miss. 1980), Hemphill v. Miss. State Highway Comm n, 245 Miss. 33, 46, 145 So. 2d 455, 461 (1962), and Cannon v. Barry, 59 Miss. 289, 302-05 (1881). Indeed, counsel for the Executor even stood at the podium before the Court of Appeals and stated The Appellant refers heavily on Baumgardner. I agree with him, Baumgardner is the case that is on point, directly. Oral Argument, at 1:04:40 (emphasis added). 1 The entirety of the argument for the Petition should end at the realization that the Executor agrees that Baumgardner applies, the sisters agree it applies, and this Court applied it. While the Executor may not like the Court s application of the law, that is simply the law, and under MRAP 17 there is no basis for further review. 1 The link is at: https://courts.ms.gov/newsite2/appellatecourts/coa/archive/2017/coa42017.php. 3
All sides agree Baumgardner is the law, the Court of Appeals applied it, it should not be overturned, as that thoughtful ruling correctly applied existing precedent and explained how standing worked in accounting matters after another daughter was denied an accounting of a trust. Id. at 595. The Executor strains to distinguish the facts and test in one of those cases, Hemphill, from the appeal at hand. Yet this misses the point, and the pages of argument why Hemphill was not directly applicable do not address the central issue in this case: whether the daughters had sufficient interest to seek an accounting. Whether under the Supreme Court s 2012 ruling in Baumgardner, or its 19th century ruling in Cannon, the Court of Appeals explained exactly why the sisters must be allowed an accounting of their mother s estate. This decision was well within the settled law, and the majority s scholarly opinion must stand. For this reason the Petition must be rejected. II. The Court of Appeals Correctly Addressed Standing. Because the Court of Appeals correctly addressed the standing issue in this case, which was a heavy focus of the briefing and the oral argument, the Petition must be rejected. The Estate continues to pretend that this case was about an appeal of a 2008 order. As the Court of Appeals Opinion accurately reflects, this is instead an appeal of a Final Decree made on May 6, 2016. The ruling finding a lack of standing in the Final Decree stated without citation to law that Claire was not a vested remainder beneficiary at this time. R.E. 16-17, 6:851, 854-55. Because the Executor simply repeats the same arguments it previously made, and which were rejected by the Court of Appeals based upon Supreme Court precedent, the Petition should be denied. 4
In its request to this Court, the Executor returns to the same arguments precedent it relied upon in its prior brief and argument to the Court of Appeals. The Executor s argument that the 2008 order somehow barred raising standing was a core focus of briefing by all sides. Yet the Court not only acknowledged that order, see Op. at 12, it then went on to determine standing since that was the core issue in this appeal. As pointed out in Section II below, standing can be raised at any time. The Executor just keeps trying to bite that apple, but the Court has already dealt with this issue. It is also important to note that there was an extensive oral argument in this case, which was combined with the companion case over the father s estate. Both sides were heavily questioned about standing and the interest the daughters had in their mother s estate. See generally Oral Argument at 0:37:45 (where Judge Carlton questions counsel for Jane and Claire about Baumgardner, and what exact interest the daughters possessed). Counsel for the Executor focused heavily on standing in its presentation of oral argument, and stated outright that Baumgardner controlled and should be applied, yet attempted to distinguish this case. OA, at 1:04:44. For many minutes counsel for the Executor argued what type of interest the sisters had. There is nothing in the Petition which establishes why the Court of Appeals strayed from precedent. Likewise, the Executor spills a lot of ink examining the Hemphill case which again, is just about standing. The crux of this repeated argument was the second line in the Summary of the Argument by the Executor, where it protested Claire and Jane have an executory interest and are contingent beneficiaries and as such are not entitled to an accounting or to seek any relief from the estate. Response Brief, at 8. 5
The Executor s Petition focuses on the Hemphill case, and essentially mirrors the twojudge dissent which focused on that issue for the entirety of its three pages. See Opinion, at 31-36 (Tyndall, J., dissenting, joined by Wilson, J.). In and of itself, this conclusively shows that the issue was not just explored by the parties at the trial court, during the briefing on appeal, and during oral argument, but also the Court itself in its deliberation. Even if the issue had been passed upon years ago, it could still have been raised on appeal, because the importance of standing can always be addressed, as the Court of Appeals pointed out in its Opinion. At 16-17. Standing is a jurisdictional issue which may be raised by any party or the Court at any time. Hall v. City of Ridgeland, 37 So. 3d 25, 33 (Miss. 2010) (internal quotations and citations omitted) (emphasis added). Therefore even if the 2008 order was the only time it was addressed, this Court could have sua sponte addressed it. Furthermore, as even the Executor has admitted, Jane was not a party to the 2008 order. Regardless of what Claire may have done, Jane did not agree to the order. Jane s standing under Brenda s Trust undeniably entitles her to a vested interest, which provides standing to ask for an accounting. The Executor s arguments have been addressed and are not worthy of certiorari review. Conclusion The Petition should be denied, as the Court of Appeals considered all of the original assignments of error in a measured and detailed opinion. Indeed, the Court of Appeals granted the Executor an affirmance on the Rule 15 issue. The arguments in the Petition do not warrant certiorari review. Respectfully submitted, this the 7th day of August, 2018. Attorney for Appellant 6
s/ David Neil McCarty David Neil McCarty Miss. Bar No. 101620 DAVID NEIL MCCARTY LAW FIRM, PLLC 416 East Amite Street Jackson, Miss. 39201 T: 601.874.0721 E: dnmlaw@gmail.com W: www.mccartyappeals.com CERTIFICATE OF SERVICE I, David McCarty, certify that I have served a copy of the above and foregoing document to the following via filing with the MEC electronic filing system: Ms. Muriel B. Ellis, Clerk MISSISSIPPI SUPREME COURT Attorneys for Appellee Floyd Melton, Jr. Floyd Melton, III MELTON LAW FIRM, PLLC On August 7, 2018. s/ David Neil McCarty David Neil McCarty 7