IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI 2011-CA-00861 LOUISE J. PIERNAS APPELLANT VERSUS CHARLENE CAMPISO APPELLEE BRIEF OF APPELLANT ON APPEAL FROM THE CHANCERY COURT OF HANCOCK COUNTY ORAL ARGUMENT IS NOT REQUESTED JAMES L. GRAY ATTORNEY FOR APPELLANT P. O. BOX 1682 PICAYUNE, MS 39466 (601) 749-2700 MSBARNO.-

CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies pursuant to Rule 28(a)(l) of the Mississippi Rules of Appellate Procedure that the following persons have an interest in the outcome of the case. These representations are made in of that the Justices of this Court may evaluate possible disqualification or recusal. Louise J. Piemas Appellant 25215 Karley Drive Picayune, MS 39466 James 1. Gray Appeal Counsel for Appellant P. O. Box 1682 Picayune, MS 39466 Jason B. Purvis Matt Quinlivan Appeal Counsel for the Appellee 2510 14th Street Suite 1001 Gulfport, MS 39501 Honorable Sanford R. Steckler Chancellor of 8 th Chancery District P. O. Box 659 Gulfport, MS 39502 l:.h- SO CERTIFIED this the 15 day of November, 2011. JrujJo"~ Uant 11

TABLE ON CONTENTS Certificate ofinterested Persons... " Table of Authorities... " Statement of the Issues....................................................... ii IV I Statement of the Case... 2 Summary of the Argument... 4 Argument... 6 Procedural Background... 6 Sununary of the Law Analysis ofthe Issue 8 11 Conclusion... 16 Certificate of Service... 17 III

TABLE OF AUTHORITIES CASES Alladin Constr. Co.. Inc. V John Hancock Life Ins. Co., 914 So.2d 169 (Miss. 2005).... 10 Brown v. Credit Center, Inc., 444 So.2d 358 (Miss. 1983)... II Ferrell v. River City Roofing, Inc.., 912 So.2d 448 (Miss. 2005)... 10 Gant v. Maness, 786 So.2d 401 (Miss. 2001)..................................... 9 Johnson v. Cityo/Cleveland, 846 So.2d 1031 (Miss. 2003)... 10 Magee v. Garland, 799 So.2d 154 (Miss.App. 2001)................................ 9 Monsanto Co. v. Hall, 912 So.2d 134 (Miss. 2005)............................... 10 Montgomery v. Woolbright, 904 So.2d 1027 (Miss. 2004).......................... 9 Moore ex rei. Benton County v. Renick, 626 So.2d 148 (Miss. 1993)... 10 Norris v. Cox, 860 So.2d 319 (Miss. App. 2003).................................. 9 Pearl River County Bd o/supervisors v. South East Collections Agency, Inc., 459 So.2d 783 (Miss. 1984)... II Roebuckv. McDade, 760 So.2d 12 (Miss. 1999)... 11 Simpson v. Boyd, 880 So.2d 1047 (Miss. 2004)... 11 Watson v. Johnson, 848 So.2d 873 (Miss.App. 2002).............................. II STATUTES Section 15-1-13, Mississippi Code of 1972, as amended 9 OTHER AUTHORITIES Black's Law Dictionary, Revised Fourth Edition... II Mississippi Rules of Civil Procedure, Rule 56 Mississippi Rules of Civil Procedure, Rule 60 9 8 IV

STATEMENT OF THE ISSUES 1. DID THE TRIAL COURT ERRONEOUSLY GRANT SUMMARY JUDGMENT TO THE APPELLEE? 1

STATEMENT OF THE CASE On September 16, 20 I 0, Chancellor Sanford R. Steckler granted Summary Judgment to the Appellee, Charlene Campiso, which Summary Judgment was filed on September 20, 2010 pursuant to Rule 56 ofthe Mississippi Rules of Civil Procedure. The Chancellor committed reversible error in granting Summary Judgment to Charlene Campiso because a genuine dispute existed of at least two material facts. First was the location of the record title boundary line between the property of the Appellant, Louise J. Piemas, and the property of the Appellee, Charlene Campiso. Second, was whether or not Louise J. Piemas has obtain ownership of property to which she may not have had record title by adverse possession of the property for 10 continuous and uninterrupted years. In an effort to allow the Chancellor to correct his error and reconsider the Summary Judgment, the Appellant, Louise J. Piemas, filed a Motion to Vacate Summary Judgment on October 6, 2010 pursuant to Rule 60(b) of the Mississippi Rules of Civil Procedure. The Motion to Vacate Summary Judgment was timely filed because the motion was based upon a mistake in fact and law. The Motion to Vacate Summary Judgment was taken under advisement by the Chancellor, and said motion was denied by the Order Denying Motion to Vacate Summary Judgment signed by the Chancellor on May 20,2011 and filed on May 24,2011. The May 20, 2011 order of the Chancellor denied the Motion to Vacate Summary Judgment without an opinion or explanation by the Chancellor. The Chancellor found no genuine issue of material fact existed to deny Summary Judgment to Campiso when in fact the sworn Complaint of Piemas stated the existence of an old fence line that she had actual knowledge of existed from the time she took possession in 1992 until the partial destruction of the old fence in 2007, and that her possession had been open, 2

notorious and adverse. This fact was further asserted in the sworn Opposition to Defendant's Motion for Summary Judgment. Thus placing the issue of her adverse possession in controversy. Further, Peimas placed the issue ofthe location of the record title boundary line by her sworn Complaint in which she alleged that the old fence line was the accepted boundary line between the properties as indicated in the subdivision plat and when she asserted that the location of the property line by a recent survey commissioned by Campiso was not correct in its location of the property line. Thus, placing the issue of the location ofthe record title line in dispute. The Chancellor was in error to grant summary judgment to Campiso and was again in error in denying Piemas' Motion to Vacate Summary Judgment when at least two genuine issue of material fact existed in the record ofthis cause. 3

SUMMARY OF THE ARGUMENT Appellant, Louise J. Piernas, initiated this action by sworn Petition filed September 25, 2009 requesting in Count I of her Petition for the Chancery Court to adjudicated the boundary line between her property in a platted subdivision and the property of Charlene Campiso in a later platted phase of the same subdivision. In Count 3 of her Complaint, she alleged that she had acquired ownership of the property now being claimed by Campiso by adverse possession up to an old fence line that existed when she took title to and possession of the property in 1992, and that such possession was continuous, open, notorious and not interrupted until September of 2009, well over 10 years. On May 14, 2010, Charlene Campiso filed a Motion for Summary Judgment alleging that she was the owner of the property as shown by the survey plat attached as Exhibit "B" to her Motion and that she was entitled to a summary judgment because Piernas had not shown any evidence of adverse possession. Campiso' s argument that there was no genuine issue of material fact seems to be based upon her assertion that Piernas had "no evidence to show that she had exclusive possession under a claim of ownership." This claim is without merit. The sworn Petittion of Piernas (meeting the requirements of an affidavit) is sufficient to place in controversy the issue of her adverse possession into controversy. She has sworn that she was in actual open, notorious, uninterrupted and adverse possession up to the fence line for more than 10 continuous years from 1992 until 2009. This alone is sufficient to defeat summary judgment. Piernas further swore to this fact in her Opposition to Motion for Summary Judgment. The sworn Petition and Opposition are based upon the personal knowledge of the affiant who was the person in actual possession ofthe property. The Chancellor erred in granting summary judgment when genuine issues of material fact 4

were in dispute by sworn affidavits. The non-moving party is not required to prove her case in opposing summary judgment. She is only required to bring specific credible evidence of a factual dispute. The personal observations of Pie mas are credible and specific evidence of adverse possession. Further, the survey plat commissioned by Carnpiso shows the existence of the old fence line, and the interpretation of that survey plat is an issue for trial. Also, the accuracy of the location of the record title boundary between the parties is a factual dispute. The mere offering of a recent survey plat is insufficient to take the matter out of factual dispute. Piernas has not yet been afforded the opportunity to hire her own surveyor or submit other evidence to demonstrate that the survey commissioned by Campiso is accurate or inaccurate. She is not required to submit such evidence merely because a Motion for Summary Judgment has been filed. This Court should reverse the Chancellor's granting of summary judgment to Carnpiso and remand this matter back to the trial Court to proceed to trial on the merits. 5

ARGUMENT Procedural Background This is a boundary dispute case. The appellant, Louise J. Piernas, filed a Petition to Adjudicate Boundary and Other Relief on September 25, 2009 alleging four Counts. (CP - pg. I) Count I merely request the Chancellor to adjudicate the boundary line between the property of the Appellant, Louise J. Piernas, and the property of the Appellee, Charlene Campiso. Count 2 alleges that Campiso had trespassed upon the property of Piernas be the destruction of a fence line and the cutting of trees, and that such trespass was intentional requesting compensatory and punitive damages. Count 3 alleges that Piernas had acquired certain property lying south of an old fence line by adverse possession if the title boundary line was proven to be somewhere south of the old fence line. Count 4 requested a prohibitive injunction to issue prohibiting Campiso from any further trespass on the property of Piernas. The Appellant, Louis J. Piernas also filed on September 25,2009, an Application for Preliminary Injunction seeking a preliminary injunction against Campiso from conducting any acts upon the property located south of the old fence line. (C.P. - 9) The Application for Preliminary Injunction was notice for hearing on October 19,2009 by a Rule SI Summons served upon Campiso on October 12,2009. (C.P. - 13) Pursuant to the hearing, The Chancellor enjoined and restrained both parties from engaging in any activities on the property located in the disputed areas and from tampering with any structures that may be evidence of possession by either party. (C.P. - 16) The Preliminary Injunction required Piernas to post a $1,000.00 bond. On November 13,2009 the Appellee, Charlene Campiso, filed her Answer and Counterclaim. (CP-IS) The Answer denied the averments contained in the 4 counts of the Petition and the Counterclaim alleged Piernas had caused a cloud on Campiso' s title, emotional 6

distress and caused her unspecified damages and attorney's fees. On May 14,2010, Charlene Campiso, the Appellee, filed a Motion for Summary Judgment avering that no genuine issue of material fact exists to support the claims of Piernas and requesting the claims of Piernas be dismissed and that Piernas be assessed costs of Court and reasonable attorney's fees incurred by Campiso in defense of the claims made by Piernas. (C.P.- 25) In support of her Motion for Summary Judgment, Campiso also filed on May 14, 2010 an Itemization of Material Facts Supporting Defendant's Motion for Summary Judgment. (C.P.- 45) On May 15, 20 I 0, Piernas served Interrogatories and Requests for Production of Documents to Campiso, and a Notice of Service of Discovery was filed in this cause on May 20, 2010. (C.P. - 48) On June 25, 2010, Piernas filed her Opposition to Defendant's Motion for Summary Judgement which was sworn to under oath. (C.P. - 50) In such opposition, Piernas stated that she possessed the property up to the old fence line from 1992 until 2007. She also stated under oath she had evidence that such survey is not accurate. On June 28, 2010, Campiso filed her Notice of Service of Discovery certifying that she had served her discovery responses to the discovery propounded by Piernas on June 23,2010. (C.P. - 54) On June 29, 2010, Campiso filed her Reply to Plaintiffs Opposition to Defendant's Motion for Summary Judgement. (C.P. - 56) In her Reply, Campi so alleges that the affidavit of Piernas was a conclusory, self-serving affidavit unsupported by material facts with no probative evidence. A hearing was held on June 29, 2010 by Chancellor Steckler in which oral arguments of counsel for both parties were heard. (Transcript - pp. 1-20) The Chancellor took the matter under 7

advisement, and on September 16, 2010 Chancellor Steckler signed a Judgment Granting Summary Judgment to Campiso, which Judgment was filed on September 20,2010. (C.P. - 62) A Motion to Vacate Summary Judgment was filed by Piernas on October 6,2010 pursuant to Rule 60(b) alleging the Court had made a mistake in law and fact. (C.P. - 66) A Notice ofthe Motion was served on the Court and counsel for Campiso on October 5, 2010 noticing a hearing for November 18,2010. Campiso filed her Response to Motion to Vacate Summary Judgment and Motion for Citation for Contempt on November 2, 2010. (C.P. -73) Campiso noticed a hearing on her Motion for Citation of Contempt for November 18,2010. (C.P. -79) The hearing was re-noticed for December 1, 2010 by counsel for Campiso. (C.P.- 81) A hearing was held before Chancellor Steckler on December 1,2010 on Piernas' Motion to Vacate Summary Judgment and Campiso's Motion for Citation of Contempt. (Transcript - pp. 20-32) After hearing arguments from counsel for both parties, Chancellor Steckler took the Motions under advisement. On May 20, 2011, the Chancellor signed an Order Denying Motion to Vacate Summary Judgment which was filed on May 24, 2011. In that Order, Chancellor Steckler denied Piernas' Motion to Vacate Summary Judgment without an opinion or written findings. The Appellant, Louise J. Piernas, filed her Notice of Appeal on June 20, 2011 appealing the Summary Judgment granted to Charlene Campiso on September 16,2010 and the Order Denying Motion to Vacate Summary Judgment entered on May 24, 2010. (C.P. - 85) Summary of the Law Adverse Possession The issues in this boundary dispute are the correct location of the record title boundary of the property owned by Piernas and Campiso and whether or not Piernas acquired title or 8

ownership of property by adverse possession. Adverse possession is established by Section 15-1- 13 of the Mississippi Code of 1972, as amended. The pertinent language in that statute reads as follows: Ten (10) years actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10 years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commended or continued, shall vest in every actual occupant or possessor of such land full and complete title, saving the persons under the disability of minority or unsoundness of mind the right to sue within ten (10) years after the removal of such disability a provided in Section 15-1-7... For possession to be adverse, it must be (I) under claim of ownership; (2) actual or hostile; (3) open, notorious and visible; (4) continuous and uninterrupted for a period often years; (5) exclusive; and (6) peaceful. Magee v. Garland, 799 So.2d 154, 157 (Miss.App. 2001) Questions of whether the character of land possession was open, notorious, and visible is one of fact for the purpose of adverse possession claim. Norris v. Cox, 860 So.2d 319, 324 (Miss.App. 2003) Summary Judgment Summary Judgment is a procedural right established by Rule 56 of the Mississippi Rules of Civil Procedure. In the comment to Rule 56, it states that "The purpose of Rule 56 is to expedite the determination of actions on their merits and eliminate unmeritorious claims or defenses without the necessity of a full trial." The standard for reviewing a grant or denial of summary judgment is the same standard as is employed by the trial court under M.R.C.P. 56(c). Gant v. Maness, 786 So.2d 401, 403 (Miss. 2001) see also Montgomery v. Woolbright, 904 So.2d 1027, 1029 (Miss. 2004) The appellate Court conducts a de novo review of an order granting or denying summary judgment and examines all the evidentiary matters before it - admissions in pleadings, answers to 9

interrogatories, depositions, affidavits, etc. The evidence is viewed in the light most favorable to the party against whom the motion has been made. If, in this view, the moving party is entitled to a judgment as a matter oflaw, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Id, 403-404 If any triable issues of material fact exit, the lower Court's decision to grant summary judgment will be reversed. Alladin Constr. Co., Inc. v. John Hancock Life Ins. Co., 914 So.2d 169, 175 (Miss. 2005) In reviewing summary judgment, all evidentiary matters before the Supreme Court including, but not limited to, admissions in pleadings, answers to interrogatries, depositions and affidavits will be examined. Monsanto Co. v. Hall, 912 So.2d 134, 136 (Miss. 2005) The movant caries the burden of demonstrating that no genuine issue of material fact exists, and the non-moving party is given the benefit of the doubt as to the existence of a material fact. Id. The Supreme Court's review of the granting of summary judgment is limited to determining whether there existed material issues of fact at the trial level. Moore ex rei. Benton County v. Renick, 626 So.2d 148, 150 (Miss. 1993) For the purposes of summary judgment, a fact is "material" if it tends to resolve any issues properly raised by the parties. Ferrell v. River City Roofing, Inc., 912 So.2d 448, 451 (Miss. 2005) If the undisputed facts can support more than one interpretation, then the Supreme Court will not hesitate to reverse and remand summary judgment for trial. Johnson v. City 0/ Cleveland, 846 So.2d 1031, 1036 (Miss. 2003) The power to grant summary judgment is not discretionary with the trial court, and the applicable test must be met in all cases. Pearl River County Bd o/supervisors v. South East Collections Agency, Inc., 459 So.2d 783, 785 (Miss. 1984) Motions for summary judgment are to be viewed with a skeptical eye, and if a trial court should err, it is better to err on the side of 10

denying the motion. Roebuckv. McDade, 760 So.2d 12, 14 (Miss. 1999) Motion for summary judgment should be overruled unless the trial court finds, beyond a reasonable doubt, that the plaintiff would be unable to prove any facts to support his claim. The trial court is prohibited from trying the issues; it may only determine whether there are issues to be tried. Simpson v. Boyd, 880 So.2d 1047, 1050 (Miss. 2004) The non-moving party in a motion for summary judgment may defeat summary judgment by the submission of an affidavit. Black's Law Dictionary defines an affidavit as " a written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath." (Black's Law Dictionary, Revised Fourth Edition) The power to generate a genuine issue of material fact, the "affidavit or otherwise" must (1) be sworn; (2) be made upon personal knowledge; and (3) show that the party providing the factual evidence is competent to testify. Watson v. Johnson, 848 So.2d 873, 877-878 (Miss.App. 2002) A non-moving party must show more than a mere scintilla of colorable evidence, i.e., they must produce evidence upon which a fair-minded jury could find for them. Id. Where the party against whom a motion for summary judgment is made wishes to attack one or more of the affidavits upon which the motion is based, he must file in the trial court a motion to strike the affidavit. Brown v. Credit Center, Inc., 444 So.2d 358, 365, (Miss. 1983) Analysis of the Issue In this case, Chancellor Sanford R. Steckler granted summary judgment to the Appellee, Charlene Campi so, as to the claims of the appellant, Louise J. Piemas, as set forth in her Petition filed with the Chancery Court. Upon consideration of Piemas' Motion to Vacate Summary Judgment, the Chancellor once again denied to vacate his previous grant of summary judgment 11

based upon any mistake in fact or law. The issue before this Court is whether the Chancellor committed reversible error in granting summary judgment to Campiso and later denying Piernas' Motion to Vacate Summary Judgment. In her Motion for Summary Judgment, Charlene Campiso, alleges she is entitled to summary judgment on the issue of the location of the boundary line between her property and the property of the appellant, Louis J. Piernas. In the motion, Campi so alleges that she is the title record owner of the subject property and that "the Plaintiff [Piernas 1 cannot prove the elements of her adverse possession claim." (R.E. p. 17) Campiso goes on to assert in her motion that "it is undisputed that the old fence line the Plaintiff continually referred to in her Petition is the actual property line." (R.E. p. 17) She also asserts that "It is undisputed that the old fence was destroyed in 2007, which is less that 10 years ago... It is undisputed that the Plaintiff did not go into the alleged possession ofthe property until the replacement fence was built." (R.E. p. 17) This is an incorrect assertion. There is a dispute on these two factual assertions. First, in Count 3 of her Petition, Piernas asserts that her adverse possession of the land was "up to the old fence line and the replacement fence line in 2007 since she took title to Lot 23 of Deer Park Subdivision in 1992." (R.E. p.12) In other words, her adverse possession began in 1992 and was continuous until 2009. Campiso's assertion that the possession did not begin until 2007 in controverted by the sworn factual statement of Piernas in her Petition and by the sworn factual statement in her Opposition to Motion for Summary Judgment where she alleges that "she possessed the property up to the old fence line from the time she entered possession in 1992 until the old fence was destroyed in 2007." (R.E. p. 24) Campiso's assertion in her Motion for Summary Judgment that "It is undisputed that the old fence was destroyed in 2007, which is less than 10 years ago." is technically accurate, but 12

also leaves a factual issue. (R.E. p. 17) This statement implies that nothing remains of the old fence line, but that is not correct. In paragraph 8 of her sworn Petition, Piemas states that on or about August 4, 2009, the Plaintiff encountered a surveyor who was surveying for the new owner of Lot 36, Charlene Campiso. She showed the surveyor the old fence line that had divided Lot 23 of Deer Park Subdivision from Lot 36 of Dee Park Subdivision, Phase II." (R.E. p. 10) This factual statement ofthe personal observations of Pie mas shows that there still existed in 2009 enough remnants ofthe old fence line so that she could show it to the surveyor. Thus, the location of the old fence line is still visible, and that it was not completely destroyed in 2007. Therefore, the location of the old fence line is a factual dispute to be decided at the trial. Campiso also makes the assertion in her Motion for Summary Judgment that "It is undisputed that the Plaintiff did not go into the alleged possession of the property until the replacement fence was built." (R.E. p. 17) This is also inaccurate. As stated above, Plaintiff in her sworn Petition and her sworn Opposition to Summary Judgment alleged that "She possessed the property up top the old fence line from the time she entered possession in 1992 until the old fence was destroyed in 2007." (R.E. p. 24) Campiso makes the assertion in her Motion for Summary Judgment that "Ms. Campiso is the title record owner of the subject property and the Plaintiff [Piemas 1 cannot prove the elements of her adverse possession claim. "(R.E. p. 17) Campiso assumes that the survey plat of George Nobles attached as Exhibit "B" to the Motion for Summary Judgment and his affidavit attached as Exhibit "D" must be accepted as an undisputable fact. (R.E. pp. 21-22) According to Nobles' plat and his affidavit, he located the true record title line some 30 feet south of a fence line that he noted on his plat. This is a factual assertion, and Piemas has contended in her sworn Petition and in her sworn Opposition to Summary Judgment two facts. First, that the old fence 13

line was located on the true record title line. Second, that even if the old fence is not on the true record title line, she owns the property located south of the old fence line by adverse possession. The accuracy of the Nobles survey is a factual assertion that has been disputed, and Piernas should be allowed to present evidence to support her contention that it is not accurate at a trial. The existence of adverse possession by Piernas up to the old fence line is also a factual dispute based upon Piernas' own personal observations to which she has submitted sworn statements in her Petition and her Opposition to Motion for Summary Judgment. In granting Campiso's Motion for Summary Judgment, it appears that the Chancellor was mistaken about a material fact. At the hearing on the Motion for Summary Judgment held on June 29, 2010, Chancellor Steckler asked counsel for Piernas if he wanted the property line to be where the old fence line was. Counsel for Piernas said that is exactly where he wanted it, and counsel for Campiso also agreed. (R.E. pp. 32-33 ) In his order, the Chancellor noted that "Louise Piernas, filed a response without exhibits, affidavits or other documentation to set forth what she believes to be the correct location of the property line, or any other genuine issue of material fact." (R.E. pp. 4-5 ) The Chancellor went on to write that "Louise Piernas failed to meet her burden of bringing forward significant probative evidence demonstrating the existence of the triable issue of fact." (R.E. p. 5) Obviously, the Chancellor did not consider Piernas's sworn Opposition to Summary Judgment as an affidavit, and he did not consider her sworn observation of the existence ofthe old fence line and the location ofthe stakes by Campiso's surveyor as significant probative evidence. Apparently, the Chancellor was mistaken in fact. He did not realize that the old fence line was still observable in a different location from the boundary line as located by Campiso's surveyor. (R.E. p. 21) The Chancellor also may have been mistaken in thinking, as did the attorney for Campiso, that the old fence line was obliterated., although badly 14

damaged, the 2007 fence line was relocated in approximately the same position as shown on the plat of the Nobles survey. (R.E. p. 21) This disputed fact was again pointed out to the Chancellor by counsel for Piernas at the hearing on her Motion to Vacate Summary Judgment which was held on December 1,2010. (R.E. pp. 35-26) As set out above, sworn affidavits made upon personal knowledge of the affiant about material facts to put those facts in issue are sufficient to avoid summary judgment. Further, the Court must consider all the record in the case. The sworn Petition of Louise J. Piernas along with her sworn Opposition to Defendant's Motion for Summary Judgment contain factual assertions based upon her own personal observations which are sufficient to place the issue of adverse possession into controversy and the issue of the correct location of the title boundary line between the property of the parties into controversy. The mere filing of a survey is not sufficient to remove the accuracy or correctness of the survey as an issue of fact to be decided at the trial. 15

CONCLUSION The Chancellor has committed reversible error in granting Summary Judgment to the Appellee, Charlene Campiso, on the causes of action pled against her by the Appellant, Louise J. Piernas. At least two significant genuine issues of material fact exists. First, is the factual dispute of the correct location of the title boundary between the property of the Appellant and the property of the Appellee. This issue was placed into controversy by the sworn Petition of the Appellant and her sworn Opposition to the Motion for Summary Judgment in which she stated of her own personal knowledge that she showed Campiso's surveyor the old fence line and notices that the surveyor placed stakes onto her property encroaching about 30 feet. Second, in the event the Court finds that the record title boundary line is in the location as shown by the survey plat of Nobles, the issue of material fact would be whether or not Piernas had obtained ownership ofthe property by adverse possession. By her sworn Petition and her sworn Opposition to Motion for Summary Judgment, Piemas stated under oath of her own personal knowledge that she had been in open, continuous, notorious and uninterrupted possession of all the property up to the old fence line from 1992 until she filed this lawsuit in 2009. These factual assertions meet the requirements of an affidavit and are not merely self-serving, conclusory statements, but are based upon her personal knowledge. Therefore, they are sufficient to place this factual issue into controversy. Therefore, this Court should find that the trial Court was in error for granting summary judgment to the Appellee, Charlene Campiso, on September 20, 2010, and should remand this cause back to the trial Court for trial on the merits. Further, this Court should find that the trial Court was in error for denying the Appellant's Motion to Vacate Summary Judgment for a mistake in fact and law made by the trial Court. 16

CERTIFICATE OF SERVICE I, the undersigned attorney, do hereby certify that I have served a true and correct copy of the foregoing Appellant's Brief upon the following persons by United States Mail, postage prepaid, and addressed as follows: Louise J. Piernas Appellant 25215 Karley Drive Picayune, MS 39466 Jason B. Purvis Matt Quinlivan Appeal Counsel for the Appellee 2510 14th Street Suite 1001 Gulfport, MS 39501 Honorable Sanford R. Steckler Chancellor of 8 th Chancery District P. O. Box 659 Gulfport, MS 39502 Ms. Kathy Gillis Clerk of Supreme Court and Court of Appeals 450 High Street Jackson, MS 39201 SO CERTIFIED, this the /5 %ay of November, 2011. Jame;--L. Gray, attorney. Box 1682 Picayune, MS 39466 MSBarNo" 17