Drake v. Drake


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Docket Number: 2011-CA-01587-COA
Linked Case(s): 2011-CT-01587-SCT ; 2011-CA-01587-COA
Court of Appeals: Opinion Link
Opinion Date: 07-30-2013
Opinion Author: Maxwell, J.
Holding: Dismissed
Additional Case Information: Topic: Wills & estates - Interlocutory order - M.R.C.P. 54(b)
Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Roberts, Carlton, Fair and James, JJ.
Procedural History: Bench Trial
Nature of the Case: CIVIL - WILLS, TRUSTS AND ESTATES
Trial Court: Date of Trial Judgment: 09-27-2011
Appealed from: Rankin County Chancery Court
Judge: John Grant
Disposition: DISMISSED ONE OF TWO CLAIMS BY APPELLANT AGAINST APPELLEE
Case Number: 67,148
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: In The Matter of the Estate of Kenneth Lee Drake, Deceased: Benjamin Lee Drake




 JOHN R. MCNEAL JR.



  
  • Appellant #1 Brief
    		•
    Appellee: Bennie Larry Drake JOHN DENVER FIKE  
    Synopsis provided by:

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    Topic: Wills & estates - Interlocutory order - M.R.C.P. 54(b)
    Summary of the Facts: Benjamin Lee Drake (Benjamin Lee) brought an action against his uncle Bennie Larry Drake (Bennie Larry), alleging that Bennie Larry unduly influenced Benjamin Lee’s father to change the beneficiary of his life-insurance policy from Benjamin Lee to Bennie Larry and to convey a piece of real property to Bennie Larry’s son. The chancellor dismissed the life-insurance claim because Benjamin Lee had failed to file the claim within three years of discovering his uncle’s alleged fraud. But the chancellor recognized that the real property claims was still viable. Benjamin Lee sought an interlocutory appeal but also filed a separate general notice of appeal. The Supreme Court dismissed his separate petition for permission for an interlocutory appeal under M.R.A.P. 5. Bennie Larry then filed two motions to dismiss the general appeal which the Supreme Court denied.
    Summary of Opinion Analysis: Under M.R.C.P. 54(b), absent certification by the trial court of the order’s finality, a trial court order which disposes of less than all of the claims against all of the parties in a multiple party or multiple claim action is interlocutory. Since the order under review is not final, the appellate court lacks jurisdiction to consider it.


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