Miles, et al. v. Miles
| Docket Number: | 2005-CA-00158-COA Linked Case(s): 2005-CT-00158-SCT ; 2005-CA-00158-COA |
|
| Court of Appeals: |
Opinion Link Opinion Date: 06-27-2006 Opinion Author: ROBERTS, J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Partition of real property - Hearing - M.R.C.P. 53(g)(2) - M.R.C.P. 6(d) - M.R.C.P. 7(b)(1) - Chancellor’s instructions - Survey - Valuation Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - REAL PROPERTY |
|
| Trial Court: |
Date of Trial Judgment: 12-14-2004 Appealed from: WEBSTER COUNTY CHANCERY COURT Judge: Dorothy W. Colom Disposition: CHANCELLOR ENTERED FINAL JUDGMENT AND CONFIRMED SPECIAL COMMISSIONERS’ REPORT REGARDING PARTITION OF REAL PROPERTY. Case Number: 2003-81-C |
|
| Party Name: | Attorney Name: | |||
| Appellant: | RICKY C. MILES AND CHRISTY M. YOUNG |
JAN R. BUTLER |
||
| Appellee: | TONY L. MILES | DEWITT T. HICKS |
|
|
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. |
|
| Topic: | Partition of real property - Hearing - M.R.C.P. 53(g)(2) - M.R.C.P. 6(d) - M.R.C.P. 7(b)(1) - Chancellor’s instructions - Survey - Valuation |
| Summary of the Facts: | H.C. Miles, Jr. and Mattie Gray Miles lived in Webster County. They had three children: Ricky, Christy, and Tony. The GM & O railroad owned a right-of-way across the Miles’ property which divided the Miles’ property into two parcels. The Miles’ home was on the forty-acre eastern parcel. Mr. Miles built a shop on the eastern parcel and conducted his carpentry business out of that shop. The western parcel contained approximately eighty acres and had no structures. Ricky and Christy moved out of state. Mr. and Mrs. Miles deeded 2.02 acres of the eastern parcel to Tony, and Tony built his home on that property. Tony also used Mr. Miles’s shop to conduct his contracting business. After Mr. Miles died, Tony continued to use the shop. When Mrs. Miles died, her will left Ricky, Christy, and Tony each an undivided one-third interest in the eastern and western parcels. Ricky and Christy filed a complaint for partition of land naming Tony as the sole defendant. Ricky and Christy asked the chancery court to partite the land into three equal parcels and sell the ancestral home along with a small lot. They later filed an amended complaint additionally requesting the court to grant them access to the western parcel across the railroad right of way. Tony filed a counter-complaint for partition requested that the chancery court award him the entire east parcel. Tony also requested that the chancery court order him to pay owelty to Ricky and Christy to compensate them and to equalize the division. The chancellor appointed three commissioners to inspect the property and render a decision regarding whether the property can be partited in kind or whether a sale should be made with a division of the proceeds of the property. The special commissioners agreed that both parcels could be partited in kind. The commissioners’ report stated that, as for the western parcel, Christy should receive 49.47 acres and Tony should receive 24.74 acres. As for the eastern parcel, the commissioners found that it was not practical to award Tony the tract that contained the ancestral home and the shop because the value would be more than one-third of the total value of the East Parcel. To that end, the commissioners concluded that Ricky should receive the ancestral home and the shop and the 1.6 acres that surrounded it as well as an additional 13.47 acres of the eastern parcel. As for Tony’s share of the eastern parcel, the commissioners concluded that Tony should receive 21.94 acres. The chancellor issued a judgment confirming the special commissioners’ report. The chancellor added a slight modification to the special commissioners’ report by giving Ricky an easement for ingress and egress over Tony’s tract on the east parcel. Ricky and Christy appeal. |
| Summary of Opinion Analysis: | Issue 1: Hearing Ricky and Christy argue that the chancellor erred when she did not conduct a hearing on their objections to the special commissioners’ report. While section 11-21-25 provides that the chancellor has authority to set aside the special commissioners’ report upon a showing of good cause, nothing in the statute mandates conducting a hearing on objections to the special commissioners’ report. Ricky and Christy cite M.R.C.P. 53 and argue that the language of Rule 53 certainly suggests that a court should conduct a hearing upon objections to the commissioners’ report. M.R.C.P. 53(g)(2) suggests that the chancellor must conduct a hearing when a party submits objections in the form of a motion and when a party complies with the rules on noticing a hearing. M.R.C.P. 6(d) directs that notice of a hearing on a motion shall be served not later than five days before the time fixed for the hearing. Ricky and Christy did not submit their objections in the form of a motion and did not notice a hearing. In addition, M.R.C.P. 7(b)(1) states that an application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. Under M.R.C.P. 53(g)(2), the chancellor was required to accept the special commissioners’ findings of fact unless manifestly wrong. Considering the particular circumstances of this case, the chancellor did not abuse her discretion in failing to conduct a hearing on Ricky and Christy’s objections. Issue 2: Chancellor’s instructions Ricky and Christy argue that the special commissioners failed to follow the chancellor’s instructions in that they did not award Tony the tract of land on the eastern parcel that contained the ancestral home and the shop. The chancellor instructed the special commissioners to award Tony the ancestral home if practicable. The special commissioners found that such an award was not practical. According to Ricky and Christy, such an award was practicable because, even if Tony received an inequitable portion of the eastern parcel, the chancellor could have remedied that inequity through owelty. A partition in kind is the preferred method of partition of property under Mississippi law. That the chancellor did not award Tony the ancestral home combined with an obligation to pay owelty to Ricky is a matter within the chancellor’s wide discretion. Issue 3: Survey Ricky and Christy argue that it was improper to use a survey prepared by Mr. Ed Springer of Springer Engineering because Tony was prepared to call Springer as an expert witness. Ricky and Christy present no evidence of an inequitable result based on Springer’s survey. Bare allegations of impropriety, without more, are insufficient to overcome the discretion afforded to the chancellor. Ricky and Christy also argue that because Springer’s survey failed to account for omitted portions of the real property, it was impossible to accurately and equitably partition the property. Ricky and Christy did not object to the special commissioners’ using the fence line as the proper boundary. In effect, Ricky and Christy failed to submit a contemporaneous objection. Their failure is tantamount to waiver on appeal. In addition, no party disputed that Mr. and Mrs. Miles treated the fence line as the true and correct boundaries to the western parcel. As such, the surveyor, the commissioners, and the chancellor all sought to partite the property that Mr. and Mrs. Miles claimed as their own. Issue 4: Valuation The special commissioners valued the shop and its surrounding 1.6 acres at $7,500. Ricky and Christy argue that the commissioners had no basis to conclude on that value because no one presented any evidence regarding the valuation of the shop or the valuation of the 1.6 acres that surrounds it. It is improper to value property where there is no evidentiary basis for that valuation. The evidence shows that Tenhet submitted an appraisal and that it was admitted into evidence. The appraisal placed a value on the shop and included a per acre valuation. Accordingly, there was an evidentiary basis for the valuation of the shop and the surrounding property. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
