IN THE SUPREME COURT OF MISSISSIPPI NO CA SUSAN WESTEDT APPELLEE APPELLANT S BRIEF

Transcription

1 E-Filed Document Mar :16: CA Pages: 17 IN THE SUPREME COURT OF MISSISSIPPI NO CA SOCORRO SAYLON O BRIEN INDIVIDUALLY, AND SOCORRO SAYLON O'BRIEN AS EXECUTRIX OF THE ESTATE OF CARROLL J. O'BRIEN APPELLANT v. SUSAN WESTEDT APPELLEE APPELLANT S BRIEF APPEAL FROM THE CHANCERY COURT OF SIMPSON COUNTY MISSISSIPPI Oral Argument Not Requested L. WESLEY BROADHEAD MSB # 9332 POST OFFICE BOX 446 MENDENHALL, MS (TELEPHONE) ATTORNEY FOR APPELLANT, SOCORRO SAYLON O BRIEN INDIVIDUALLY, AND SOCORRO SAYLON O'BRIEN AS EXECUTRIX OF THE ESTATE OF CARROLL J. O'BRIEN

2 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 Court of Appeals may evaluate possible disqualification or recusal: 1. L. Wesley Broadhead, attorney for Appellant; 2. Laura Glaze, attorney for Appellee; th 3. Honorable David Shoemake, presiding Chancellor, 13 Chancery District; 4. Socorro Saylon O Brien individually, and Socorro Saylon O'Brien as Executrix of the Estate of Carroll J. O'Brien, Appellant; and, 5. Susan Westedt, Appellee. Respectfully submitted, /s/ L. Wesley Broadhead Counsel for Appellant -i-

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii STATEMENT OF THE ISSUES... iv STATEMENT OF THE CASE... v SUMMARY OF THE ARGUMENT... vii ARGUMENT I. FACTS... 1 II. STANDARD OF REVIEW... 2 III. DISCUSSION... 3 CONCLUSION... 8 CERTIFICATE OF SERVICE ii-

4 TABLE OF AUTHORITIES Statutes Miss. Code , 9, and Miss. Code , et seq....4 Miss. Code Miss. Code Cases Anderson v. Alps Automotive, Inc., 51 So.3d 929 (Miss. 2010)...2 Ayers v. Petro, 417 So.2d 912 (Miss. 1982)...3 Bennett v. Hill-Boren P.C., 52 So.3d 364 (Miss.2011)...2 In re Estate of Davis, 510 So.2d 798 (Miss.1987)...7 Matter of Last Will and Testament of Winding v....7 Estate of Winding, 783 So.2d 707 (Miss.2001) McKinney v. King, 498 So.2d 387 (Miss.1986)...4 Moody v. Moody, 38 So. 322 (Miss.1905)...7 Mosby v. Mosby, 962 So.2d 119 (Ms.Ct.App.2007)...4 Moseley v. Smith, 180 So.3d 667 (Ms.Ct.App. 2014)...6 Stockett v. Stockett, 337 So.2d 1237 (Miss.1976)...8 Van v. Grand Casinos of Miss. Inc., 767 So.2d 1014 (Miss.2000)...2 Rules MRCP iii-

5 STATEMENT OF THE ISSUES A. Whether Carroll J. O Brien and Appellee s joint tenancy was terminated by the Quitclaim Deed dated and recorded on May 18, 1995, in the Land Records of Simpson County in Book 971 at Page 257. B. Whether purported conveyance of Appellee s undivided one-half interest in the Subject Property contained in the Quitclaim Deed dated and recorded on May 18, 1995, in the Land Records of Simpson County in Book 971 at Page 257 is void or voidable. C. Whether Appellee s claim to set aside or void Carroll J. O Brien s conveyance of his undivided one-half interest in the Subject Property to himself and Appellant contained in the Quitclaim Deed dated and recorded on May 18, 1995, in the Land Records of Simpson County in Book 971 at Page 257 should be dismissed with prejudice as a matter of law because it was filed after the expiration of the applicable statutes of limitation. D. Whether Appellant s statutory right to undisturbed possession of the exempt homestead should have been considered by the court when ruling on Appellee s Motion for Summary Judgment. -iv-

6 STATEMENT OF THE CASE This is an appeal of summary judgment and order denying motion to reconsider (alter or amend summary judgment) wherein the Court divested Appellee s title to real property and declared Appellant as sole owner thereof. At the time of his death on November 19, 2012, Carroll J. O Brien (hereinafter referred to as Carroll ) was married to Appellant, Socorro Saylon O Brien (hereinafter referred to as Socorro ). Prior to this marriage union, Carroll was married to Appellee, Susan Westedt (hereinafter Susan ). During Carroll and Susan s marriage they accumulated certain marital property that consisted of, in relevant part, the marital residence and 103 acres, more or less, located in Simpson County, Mississippi (hereinafter referred to as the Subject Property ). Carroll and Susan owned the Subject Property as joint tenants with full rights of survivorship and not as tenants in common. Carroll and Susan were divorced on or about August 12, After the divorce from Susan, Carroll married Socorro and in 1995 he executed and recorded a Quitclaim Deed that contained the conveyance of his undivided onehalf interest in and to the Subject Property to himself and Socorro, and terminated his joint tenancy with Susan. After Carroll s death and approximately 28 years after her divorce from Carroll and approximately 20 years after Carroll recorded his 1995 Quitclaim Deed, Susan filed her Amended Complaint to Void Deeds and Remove Clouds on Title (hereinafter referred to as Amended Complaint ) against Socorro individually and in her capacity -v-

7 as the Executrix of Carroll s Last Will and Testament and Estate (collectively referred to herein as Socorro ) on January 28, 2015, seeking, in relevant part, the enforcement of the Final Divorce Decree. On February 20, 2015, Socorro filed her Answer and Counterclaim. On October 22, 2015, Susan filed her Motion for Summary Judgment. Socorro responded to the Motion for Summary Judgment by letter to the court dated February 11, 2016, and filed on September 15, On May 17, 2016, the Judgment Granting Summary Judgment was filed. On August 15, 2016, the Order Denying Defendant s Motion to Reconsider (Alter or Amend Judgment) was filed. On September 12, 2016, Socorro timely filed her Notice of Appeal. -vi-

8 SUMMARY OF THE ARGUMENT Per the Final Divorce Decree, ownership of the Subject Property was held by Susan and Carroll as joint tenants with full rights of survivorship. Carroll and Susan s joint tenancy with full rights of survivorship, as aforesaid, was terminated by Carroll s conveyance of his undivided one-half interest to himself and Appellant contained in the Quitclaim Deed dated and recorded on May 18, 1995, in the Land Records of Simpson County in Book 971 at Page 257. Susan owns an undivided one-half interest in the Subject Property. The purported conveyances of Susan s undivided one-half interest contained in the 1995 Quitclaim Deed and the Warranty Deed dated and recorded on February 22, 2000, in the land records of the Chancery Clerk of Simpson County in Book 1064 at Page 242 are void or voidable, and as clouds upon her title should be removed. Susan s title to her undivided one-half interest in the Subject Property is subject to the Court s determination of Socorro s statutory homestead rights. Susan s claims to set aside or void Carroll s conveyance of his undivided onehalf interest in the Subject Property to himself and Appellant contained in the Quitclaim Deed dated and recorded on May 18, 1995, in the Land Records of Simpson County in Book 971 at Page 257 are time barred by the running of the applicable statutes of limitation. Socorro owns an undivided one-half interest in the Subject Property. Socorro and Susan hold title to the Subject Property as tenants in common. -vii-

9 ARGUMENT I. Facts Carroll and Susan were married on January 28, 1961, and divorced on August 12, 1987, with the Final Decree of Divorce contained in the record at Vol.1, 55. During Carroll and Susan s marriage they accumulated certain real property as joint tenants with full rights of survivorship, and not as tenants in common. This real property referred to in this brief as the Subject Property consists of approximately 103 acres and the improvements thereon, including Carroll and Susan s former marital residence. Susan and Carroll s vesting deed is contained in the record at Vol.1, 53. Made part of the Final Decree of Divorce is Carroll and Susan s Property Settlement Agreement. Paragraph 4 provides: It is agreed between the parties that all real property jointly owned by these parties shall remain as same now is, with each party owning a onehalf undivided interest in all real property and that said real property cannot become community property by any future marriages by either spouse. No disposition of any land holdings may be made while both parties are alive unless by mutual agreement in writing. (Vol. 1, 57). Subsequent to the divorce from Susan, Carroll married Socorro. (Vol. 1, 43). Carroll executed the Quitclaim Deed dated and recorded on May 18, 1995, in the Land Records of Simpson County in Book 971 at Page 257 conveying his undivided one-half interest in the Subject Property to himself and his wife, Socorro. (Vol. 1, 61). -1-

10 Carroll J. O'Brien died on November 19, 2012, and Socorro has continued to occupy the Subject Property and pay taxes thereon throughout these proceedings. (Vol. 1, 36 3). Socorro stipulates that all purported conveyances of Susan s undivided one-half interest in the Subject Property contained in the 1995 Quitclaim Deed and the Warranty Deed dated and recorded on February 22, 2000, in the land records of the Chancery Clerk of Simpson County in Book 1064 at Page 242 are void or voidable, and that Susan is the owner of an undivided one-half interest in and to the Subject Property, subject to the determination of Socorro s statutory homestead rights as Carroll s widow. II. Standard of Review When reviewing a trial court's grant or denial of summary judgment, this Court applies a de novo standard of review. Anderson v. Alps Automotive, Inc., 51 So.3d 929, 931 (Miss. 2010). A motion for summary judgment is to be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. MRCP 56(c). The party moving for summary judgment bears the burden of showing that no genuine issue of material fact exists. Bennett v. Hill Boren, P.C., 52 So.3d 364, 368 (Miss.2011). Thereafter, [t]he non-moving party must produce specific facts showing that there is a genuine material issue for trial. Van v. Grand Casinos of Miss., Inc., 767 So.2d 1014, 1018 (Miss.2000). -2-

11 III. Discussion A. Whether Carroll and Susan s joint tenancy was terminated by the Quitclaim Deed dated and recorded on May 18, 1995, in the Land Records of Simpson County in Book 971 at Page 257. Socorro would show that the 1995 Quitclaim Deed being a valid conveyance by Carroll of his undivided one-half interest in the Subject Property to himself and Socorro terminated Carroll and Susan s joint tenancy with full right of survivorship in the Subject Property. Ayers v. Petro, 417 So.2d 912 (Miss. 1982). held: Further, in Mosby v. Mosby, 962 So.2d 119, 124 (Ms.Ct.App.2007), the Court We agree with the chancellor's conclusions and find no error in her decision. Louis's conveyance to Leatrice thoroughly frustrated the intent of the decree that Louis and Carolyn would retain their undivided half-interests as joint tenants until such time as the whole property was sold and the equity divided. After their divorce, Louis and Carolyn continued to hold the property as joint tenants. Shepherd v. Shepherd, 336 So.2d 497, 499 (Miss.1976). As the chancellor recognized, the conveyance to Leatrice imposed a new cotenant upon Carolyn. But the conveyance also severed the joint tenancy and rendered Carolyn a tenant in common with Leatrice. Ayers v. Petro, 417 So.2d 912, 914 (Miss.1982). Thus, not only did the conveyance impose a new cotenant upon Carolyn, it also destroyed her right of survivorship. At this time, if Leatrice died, Carolyn would not survive to Leatrice's half-interest but would become a cotenant with Leatrice's heirs. Id. at 915. Carolyn's loss of her survivorship interest was not intended by the divorce decree, which did not adjust title and contemplated that the parties would retain their respective interests until the property was sold and the equity divided. While Louis was free to dispose of his property as he chose, his conveyance of his half-interest to Leatrice and reservation of a life estate for himself contravened the intent of the divorce decree. Simply put, the decree did not intend to enable Louis to alienate his half-interest but still use and occupy the property indefinitely. The chancellor did not err in granting Carolyn's petition and ordering a partition by sale. -3-

12 Like Louis in Mosby, Carroll made a post divorce decree conveyance of his undivided one-half interest making Susan a co-tenant with himself and Socorro. B. Whether purported conveyance of Susan s undivided one-half interest contained in the Quitclaim Deed dated and recorded on May 18, 1995, in the Land Records of Simpson County in Book 971 at Page 257 is void or voidable. While the 1995 Quitclaim Deed does contain a signature made by someone on Susan s behalf referencing the 1970 Power of Attorney wherein Susan appoints Carroll as her attorney-in-fact, that signature is not notarized and, therefore, causes the 3-1, et seq. The Court held in McKinney v. King, 498 So.2d 387, 388 (Miss.1986): It is fundamental law that an agent owes his principal absolute good faith and fidelity, and he cannot in the exercise of his authority as agent acquire property or interest therein rightfully belonging to his principal without full disclosure and free consent of his principal. Any property or interest obtained is thereby voidable by, and may be set aside by the principal or his estate. Socorro would show and stipulate that all purported conveyances of Susan s undivided one-half interest in the Subject Property contained in the 1995 Quitclaim Deed and the Warranty Deed dated and recorded on February 22, 2000, in the land records of the Chancery Clerk of Simpson County in Book 1064 at Page 242 are void or voidable, and that Susan is the owner of an undivided one-half interest in and to the Subject Property. However, Susan is not entitled to ownership of Carroll s undivided one-half interest because, as shown above, by and through Carroll s conveyance of his undivided purported conveyance of Susan s interest to be void and of no import. Miss. Code

13 one-half interest to himself and Socorro in the 1995 Quitclaim Deed he terminates the joint tenancy with Susan. Like Carolyn in Mosby, Susan was left with several options, including enforcement of the judgment, or partition. Susan elected to enforce her Final Divorce Decree / Property Settlement Agreement with Carroll. C. Whether Appellee s claim to set aside or void Carroll s conveyance of his undivided one-half interest in the Subject Property to himself and Socorro contained in the Quitclaim Deed dated and recorded on May 18, 1995, in the Land Records of Simpson County in Book 971 at Page 257 should be dismissed with prejudice as a matter of law because it was filed after the expiration of the applicable statutes of limitation. The recording of the 1995 Quitclaim Deed in the public land records of the office of the Chancery Clerk of Simpson County put Susan on notice at the time of its existence. Miss. Code Miss Code Enforcement of Property Settlement Agreement Feeling aggrieved that Carroll may have violated the Final Divorce Decree by making a disposition of his one-half interest in the Subject Property to himself and Socorro without her written consent, Susan commenced her civil action that is, in essence, an action to enforce her Property Settlement Agreement with Carroll. Susan claims Carroll s 1995 Quitclaim Deed is void because the Final Divorce Decree prohibits the disposition of any land holdings while both parties are alive unless by mutual agreement in writing. Susan s attempt to set aside or void his disposition of his one-half interest in the Subject Property to himself and Socorro as being a violation of the Final Divorce Decree is time barred by Miss Code , that provides in relevant part, All actions founded on any judgment or decree -5-

14 rendered by any court of record in this state, shall be brought within seven (7) years next after the rendition of such judgment or decree, or last renewal of judgment or decree, whichever is later. In Moseley v. Smith, 180 So.3d 667, 673 (Ms.Ct.App. 2014) the Court held that because Smith's action was to enforce a court-entered judgment, and not merely a private contract, she had seven years to file her contempt action once the seven-year statute of limitations began to run. Therefore, Susan would have had 7 years from the date Carroll recorded the 1995 Quitclaim Deed to bring her action seeking the enforcement of the Divorce Decree. In this regard, Susan is approximately 12 years too late. Socorro would show that beginning May 18, 1995, Carroll s 1995 Quitclaim Deed was a matter of public record, and as such Carroll did not fraudulently conceal it from Susan. Miss. Code Land Recovery in Equity Assuming arguendo that Susan s claim to set aside or void disposition of his one-half interest in the Subject Property to himself and Socorro is not time barred my Miss. Code , Miss. Code provides for a ten-year statute of limitations for land recovery in equity through explicit reference to Miss. Code , which states: A person may not make an entry or commence an action to recover land except within ten years next after the time at which the right to make the entry or to bring the action shall have first accrued... Susan clearly commenced her claim to set aside or void Carroll s disposition of his one-half interest in the Subject Property to himself and Socorro contained in the 1995 Quitclaim Deed after the expiration of this 10 year -6-

15 statute of limitation, and the court should have dismissed this claim as a matter of law instead of granting summary judgment. Equity Aids the Vigilant and Not Those Who Slumber on Their Rights Additionally barring Susan s claim to set aside Carroll s conveyance in 1995 of his undivided one-half interest in the Subject Property is the equitable doctrine: [E]quity aids the vigilant and not those who slumber on their rights. Matter of Last Will and Testament of Winding v. Estate of Winding, 783 So.2d 707, 711 ( 15) (Miss.2001) (citing In re Estate of Davis, 510 So.2d 798, 800 (Miss.1987)). D. Whether Socorro s statutory right as Carroll s widow to undisturbed possession of the exempt homestead should have been considered by the court when ruling on Susan s Motion for Summary Judgment. Socorro and Carroll were married and occupied the Subject Property, and her statutory right to undisturbed possession of the exempt homestead should have been considered by the court when ruling on Motion for Summary Judgment. Miss. Code provides: Where a decedent leaves a widow to whom, with others, his exempt property, real and personal, descends, the same shall not be subject to partition or sale for partition during her widowhood as long as it is occupied or used by the widow, unless she consent. Likewise, where a decedent leaves a widower to whom, with others, her exempt property, real and personal, descends, the same shall not be subject to partition or sale for partition during the period of his being a widower as long as it is occupied or used by the widower, unless he consent. In Moody v. Moody, 38 So. 322, 323 (1905) the Court ruling on this issue stated: She is entitled to continue to use and occupy the homestead. No matter how elegant or costly, be it ever so humble, it is still the home to her, and to it she has been granted rights which can neither be interfered with nor abridged. So long as she remains a widow, her rights are absolute. She -7-

16 cannot be called on to account for the use and occupancy, nor forced to purchase the rights of her co-tenants; nor is the property subject to partition in kind, nor to sale for the purpose of dividing the excess of the proceeds. In enacting Section the legislature had in mind the protection of the widow or widower from disturbance or harassment in the use or occupancy of the home during widowhood or widowerhood. Stockett v. Stockett, 337 So.2d 1237, 1239 (1976). As a matter of law Socorro s right to undisturbed possession of the exempt homestead provided by statute creates a genuine issue of a material fact and, therefore, summary judgment was not appropriate. Miss. Code , Stockett v. Stockett, 337 So.2d 1237 (1976). CONCLUSION Having shown above that by and through Carroll s conveyance in the 1995 Quitclaim Deed of his undivided one-half interest in the Subject Property to himself and Socorro his joint tenancy with Susan is terminated, that Susan is time barred from seeking any relief associated with Carroll s conveyance in the 1995 Quitclaim Deed of his undivided one-half interest in the Subject Property to himself and Socorro, that subject to Socorro s statutory homestead rights Susan is the owner of an undivided one-half interest in the Subject Property, this Honorable Court should reverse the Judgment Granting Summary. Respectfully submitted, /s/ L. Wesley Broadhead Counsel for Appellant -8-

17 CERTIFICATE OF SERVICE I, L. Wesley Broadhead, Appellant s attorney of record, do hereby certify that I have electronically filed the foregoing Appellant s Brief with the Clerk of Court using the ECF system which sent notification of such filing to the following attorney of record for the Appellee: Honorable Laura M. Glaze. SO CERTIFIED, this the 21st day of March, /s/ L. Wesley Broadhead -9-