Volmer v. Volmer, et al.
| Docket Number: | 2003-CP-00118-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 04-06-2004 Opinion Author: Irving, J. Holding: AFFIRMED IN PART; REVERSED AND REMANDED IN PART |
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| Additional Case Information: |
Topic: Rule 11 sanctions Judge(s) Concurring: McMillin, C.J., King, P.J., Thomas, Lee, and Myers, JJ. Concur in Part, Dissent in Part 1: Griffis, J. Concur in Part, Dissent in Part Joined By 1: Southwick, P.J., Bridges, and Chandler, JJ. Procedural History: Sanctions Nature of the Case: CIVIL - OTHER |
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| Trial Court: |
Date of Trial Judgment: 12-17-2002 Judge: Percy L. Lynchard, Jr. Disposition: RULE 11 SANCTIONS GRANTED Case Number: 99-8-1053 |
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| Party Name: | Attorney Name: | |||
| Appellant: | In the Matter of the Estate of Shirley M. Volmer: Joseph K. Volmer, Executor |
PRO SE |
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| Appellee: | John A. Volmer and Eleanor J. Volmer Patterson | GEORGE MCFALL |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Rule 11 sanctions |
| Summary of the Facts: | In a case involving a contest of the last will and testament of Shirley Volmer, the court found that Joseph Volmer used undue influence over Shirley in the execution of her will. Joseph appealed, and the Court of Appeals affirmed. While the case was on appeal, Volmer filed a motion for judgment notwithstanding the verdict, or in the alternative, for a new trial. Eleanor Patterson, Volmer's sister, responded by filing a motion for sanctions. On the same day, Volmer filed a pleading in an attempt to withdraw his previously-filed motion. Patterson's attorney filed an attorney’s affidavit and an attorney’s report of fees and expenses. The chancellor granted Rule 11 sanctions against Volmer for attorney fees and court costs in the amount of $1,425.97. Volmer appeals. |
| Summary of Opinion Analysis: | Volmer argues that the chancellor ignored M.R.C.P. 12(a). However, Rule 12(a) is not applicable to the facts of this case. Volmer also argues that the chancellor ignored M.R.C.P. 41(a) and claims that, since Patterson’s attorney never filed an answer to his motion for a new trial before Volmer filed a notice of dismissal, his voluntary dismissal was proper. The right of a voluntary dismissal is terminated by an answer or motion for summary judgment. At the time of Volmer’s withdrawal of his motion, Patterson had not filed an answer. However, his motion was very untimely, and he, although not a lawyer, was chargeable with knowledge that the court did not have jurisdiction over the case when he filed the motion because jurisdiction had been lost when he filed the notice of appeal. Although the court did not err in ordering sanctions, the sanctions are excessive and are reduced to $250. In addition, in his notice of appeal, Volmer uses disrespectful language. Therefore, sanctions are imposed on Volmer in the amount of $250 for use of the disrespectful language. |
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