Estate of Moffett v. Southgate Timber Co.
| Docket Number: | 2005-CA-02293-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 11-21-2006 Opinion Author: SOUTHWICK, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Property damage - Standing - Cutting of timber - Section 95-5-10 - Real party in interest - M.R.C.P. 19 - M.R.C.P. 17(a) Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - PROPERTY DAMAGE |
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| Trial Court: |
Date of Trial Judgment: 11-02-2005 Appealed from: Jones County Chancery Court Judge: Sarah P. Springer Disposition: SUIT DISMISSED Case Number: 2000-0135-E |
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| Party Name: | Attorney Name: | |||
| Appellant: | EVELYN TOLBERT, ADMINISTRATRIX OF THE
ESTATE OF ELIZABETH MOFFETT |
ROBERT A. DAVIS |
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| Appellee: | SOUTHGATE TIMBER COMPANY | MATTHEW ANDERSON TAYLOR |
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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: | Property damage - Standing - Cutting of timber - Section 95-5-10 - Real party in interest - M.R.C.P. 19 - M.R.C.P. 17(a) |
| Summary of the Facts: | Elizabeth Moffett died intestate in 1917. The 120 acres that she owned at her death is now owned by the heirs and devisees of her nine children. Among those heirs are Elouise Gaines and Nathaniel Crump, who own a combined 5/72 interest in the property. In 1999, Gaines and Crump executed warranty timber deeds on the 120 acres to Mark Isle and Jesse Edwards. Southgate Timber Company then contracted with Isle and Edwards for the timber. After the timber was cut, the Moffett estate was reopened solely to authorize suit against the timber deed grantees and their assign, Southgate. In 2000, Evelyn Tolbert, as newly-named administratrix of the Moffett estate, filed suit against Southgate, Isle, and Edwards. Southgate later filed a cross-claim against Isle and Edwards, and a third-party complaint against the cotenants Gaines and Crump. Isle and Edwards were not served with process and have never appeared. A month later, two individuals claiming to own an interest in the property filed to intervene. In May 2004, Southgate filed a motion to dismiss for failure to state a claim upon which relief may be granted and for lack of subject matter jurisdiction, or in the alternative for summary judgment. The estate sought to amend the complaint to add some of the Moffett heirs as plaintiffs. The chancellor denied the motion to amend and granted the defense motion to dismiss. The estate appeals. |
| Summary of Opinion Analysis: | The chancellor found that the estate was not a proper plaintiff in this litigation, since title to an intestate’s real property descends to that person’s heirs and does not pass through the estate. Standing to bring suit exists in Mississippi if a party can assert a colorable interest in the subject matter of the litigation or experience an adverse effect from the conduct of the defendant. Tolbert filed suit as the administratrix of Moffett’s reopened estate. The estate had no colorable claim to the long-deceased Moffett’s real property, nor any authority to bring suit regarding it. Whatever convenience arises from having an entity such as an estate represent a large number of heirs does not override the requirement that the actual parties in interest be the plaintiffs. The chancellor found that this litigation was governed by section 95-5-10. If the owner of an interest in the land authorized the cutting of timber, the remaining owners have no claim under the statute. The right to the penalty is a joint right; what bars one owner to the penalty bars all owners. Since two owners authorized the cutting of timber from the Moffett land, other owners may not use the penalty statute for their claims. The only statutory exception to the exclusive remedy is that the penalty for cutting and taking away timber shall not limit actions or awards for other damages caused by a person. Owners whose timber is cut because of the trespass or other completely nonpermissive act of a wrongdoer are limited to the procedures and remedies of section 95-5-10. After setting out the events that led to the cutting and asserting a right in the estate to bring suit, the complaint alleged that Southgate and the two individuals who got the timber deeds did “enter the land of the Moffett Estate, without permission of all the heirs and proceeded to cut, remove and sell timber” when the defendants knew that they had not received permission from all owners. The complaint set out the amount of damages based on the fair market value of the trees, and sought to impose liability on the defendants for that value and for attorneys’ fees, jointly and severally. That language is proper notice of a claim for waste, or in the chancellor’s view, for trespass and conversion. If the consenting cotenants are considered indispensable parties in a claim for waste against their assigns, they may be joined under M.R.C.P. 19. The estate argues that the court erred in refusing to substitute the nonconsenting heirs for the estate as plaintiffs. Substitution was denied because the chancellor found that adding the new plaintiffs would be futile. However, the original complaint was sufficient notice to permit evidence to be presented of waste. The only reason to dismiss would be because the estate is the named plaintiff. M.R.C.P. 17(a) states that no suit is to be dismissed for the absence of the real party in interest. Therefore, the case is reversed and remanded. |
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