Powell v. Evans, et al.
| Docket Number: | 2011-CA-00516-COA Linked Case(s): 2011-CA-00516-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-14-2013 Opinion Author: Fair, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Real property - Partition - M.R.C.P. 60(b)(6) - Necessary party - M.R.C.P. 25 - M.R.C.P. 19 Judge(s) Concurring: Lee, C.J., Griffis, P.J., Barnes, Roberts, Carlton, Maxwell and James, JJ. Concur in Part, Dissent in Part 1: Ishee, J. Concur in Part, Dissent in Part Joined By 1: Irving, P.J. Procedural History: Enforcement of Agreed Judgment Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 01-13-2011 Appealed from: Jasper County Chancery Court Judge: H. David Clark Disposition: PROPERTY PARTITIONED Case Number: 2008-2003 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Julia Powell a/k/a Julia Ann Powell |
TERRY L. CAVES
JERRY DEAN SHARP |
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| Appellee: | Bennie Jake Evans and Mary Margaret Gregory | DAVID M. RATCLIFF DAVID NEIL MCCARTY LILLOUS ANN SHOEMAKER ANDREW STEVEN CARDWELL | ||
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: | Real property - Partition - M.R.C.P. 60(b)(6) - Necessary party - M.R.C.P. 25 - M.R.C.P. 19 |
| Summary of the Facts: | Julia, Mary Margaret, and Bennie owned all of what they thought was 37.98 acres of a “forty” that was once the property of their parents. Julia had record fee simple title to 2.02 acres located within the boundaries of the forty, acquired from grantees of her parents. The description of the property to be divided by partition was described as “less and except” those two acres. All three thought the excluded parcel fit into the northwest corner of the forty. When the three siblings could not agree on division, the two sisters sued Bennie, filing a complaint for partition “in kind” and for the surface acreage only. During early stages of the litigation, it was discovered that the “forty” they thought they owned was actually a “long forty” and that their joint property involved 47.64 acres instead of 37.98 acres. After the parties represented to the chancellor that they had settled the matter, the chancellor signed an order setting out an agreed-upon method of division of the property. Bennie, Mary Margaret, and Julia all signed the order, as did their attorneys. All three siblings had contracted in the final judgment that division would be by acreage (rather than by value as contemplated in a statutory contested partition), with Julia and Mary Margaret receiving 5.94 acres each, and with Bennie receiving the remaining 35.64 acres. When the surveyor went onto the land, he discovered that the house Julia was living in, which she and everyone else had represented to be located on the “excepted” 2.02 acres, was not, but actually sat on the “heir property” they were dividing by agreement. The house sat 20.47 feet west of the western boundary of Julia’s 2.02-acre description. The chancellor signed his second “final” judgment. He found that his prior final judgment, and the contract it embodied, could be accomplished. He directed that the description of Julia’s 2.02 acres, which was represented to be beneath her home, be amended by deed so it would be located where she had said it was, and that the remaining 47.54 acres in the long forty be divided as had been agreed by all the siblings almost two years earlier. Julie appeals. |
| Summary of Opinion Analysis: | This appeal addresses a real-estate contract embodied in a final judgment with an agreed partition as its subject. Where a contracting party can feasibly be given what he bargained for, specific performance is the preferred remedy. Julie seeks extraordinary relief under M.R.C.P. 60(b)(6). In her motion she asserted only that “the Judgment is unenforceable since it is ambiguous and unenforceable.” The chancellor was eminently correct in his conclusion that a claim of adverse possession, by any party involved, was not properly before the chancery court on Julia’s Rule 60(b)(6) motion. It had not been pled and, under the rules of pleading, was waived and could not be raised by the contracting parties because it merged into the agreement they had submitted and signed, which was approved and memorialized by the chancellor in a judgment entitled to res judicata treatment. While the chancellor would have been within his discretion in interpreting the intent of the parties in the agreed final judgment and fashioning a remedy to carry out that intent, the second final judgment must be reversed because of the issue of necessary parties. On November 4, 2010, Belissa, Julia’s daughter, recorded a warranty deed from Julia to herself dated November 3, with a description almost exactly matching that of the two acres described in her mother’s deed. M.R.C.P. 25 and M.R.C.P. 19 are to be viewed together. Although Rule 25 requires a motion before the lower court, the joinder of necessary parties under Rule 19 can be raised for the first time on appeal, or even noticed by the reviewing court sua sponte. Since Belissa’s title to the property she was deeded is likely to prove to be only as good as Julia’s, she has an undeniable interest in the present litigation that is distinct from her mother’s. Before rendering a judgment, the trial court must, at the minimum, notify Belissa and allow her a meaningful opportunity to be heard on the specific issues before the court. |
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