Sullivan v. Tullos


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Docket Number: 2007-CA-00823-COA
Linked Case(s): 2007-CA-00823-COA ; 2007-CT-00823-SCT ; 2007-CT-00823-SCT

Court of Appeals: Opinion Link
Opinion Date: 11-04-2008
Opinion Author: Irving, J.
Holding: Affirmed

Additional Case Information: Topic: Fraudulent sale - Conversion of motion - M.R.C.P. 12(b)(6) - M.R.C.P. 56 - Notice of hearing - Statute of limitations - Conspiracy - Fiduciary duty
Judge(s) Concurring: KING, C.J., MYERS, P.J., ISHEE, J.
Non Participating Judge(s): Lee, P.J., AND Chandler, J.
Concur in Part, Dissent in Part 1: Roberts, J. with separate written opinion.
Concur in Part, Dissent in Part Joined By 1: Griffis, Barnes and Carlton, JJ.
Procedural History: Summary Judgment
Nature of the Case: Civil; Torts; Other Than Personal Injury and Property Damage

Trial Court: Date of Trial Judgment: 02-08-2007
Appealed from: Hinds County Circuit Court
Judge: Bobby DeLaughter
Disposition: SUMMARY JUDGMENT ENTERED IN FAVOR OF DEFENDANTS
Case Number: 251-06-496

Note: This case was later reversed and remanded by the Supreme Court on 10/22/2009. See the SCT opinion at: http://www.mssc.state.ms.us/Images/Opinions/CO58498.pdf

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: BILLY MACK SULLIVAN, TERESA SULLIVAN RANKIN, BILLY H. SULLIVAN, ALICE M. LOWTHER, JAMES H. LOWTHER, JR., JULIAN BARRY LOWTHER, PAUL EDWARD LOWTHER AND SHERRI LYNN LACY




W. TERRELL STUBBS



 

Appellee: EUGENE C. TULLOS D/B/A TULLOS & TULLOS, JOHN RAYMOND TULLOS D/B/A TULLOS & TULLOS, CRYMES G. PITTMAN, INDIVIDUALLY AND D/B/A PITTMAN, GERMANY, ROBERTS & WELSH, LLP, AND BILLY MEANS CYNTHIA A. STEWART, S. WAYNE EASTERLING, G. DAVID GARNER, PAM A. FERRINGTON, ROBERT G. GERMANY  

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Topic: Fraudulent sale - Conversion of motion - M.R.C.P. 12(b)(6) - M.R.C.P. 56 - Notice of hearing - Statute of limitations - Conspiracy - Fiduciary duty

Summary of the Facts: Jeff Wooley, a widower with no children, died intestate. At the time of his death, he owned approximately 423 acres of land. Annie Boone, Wooley’s sister, was appointed administratrix of the estate. Eugene Tullos acted as Boone’s attorney. A judgment approving the final accounting, closing the estate, and discharging the administratrix was entered. The heirs allege that on the same day, Tullos told them that bids had been “invited and accepted on [the] 420 acres of land and that the Defendant, Crymes G. Pittman, had made the highest and best bid of $750.00 per acre.” The heirs executed a warranty deed, prepared by Tullos, to Pittman. Each of the heirs received a check drawn on Tullos’s “regular account” for their portion of the 420 acres. The memo line of each check indicates that it was for the sale of estate land to Crymes G. Pittman. When Pittman later deeded the 420 acres to Tullos, the heirs filed suit against Tullos, Pittman, and various others, contending that the sale was fraudulent and that Pittman had acted as a “straw man” for Tullos to buy the property. The defendants filed a motion to dismiss. During the hearing on the motion, the heirs introduced copies of the checks that were tendered by Tullos to them as payment for the land sold to Pittman. The defendants introduced an appraisal showing the value of the land to be $500 per acre. The court transformed the motion to dismiss into a motion for summary judgment and granted summary judgment for the defendants. The heirs appeal.

Summary of Opinion Analysis: Issue 1: Conversion of motion The heirs argue that the court erred in converting the defendants’ Rule 12(b)(6) motion into a motion for summary judgment under Rule 56, because they were denied the ten-day notice that is required before a hearing on a motion for summary judgment and were not allowed to conduct any discovery. While the court did not explicitly give the parties ten days before ruling on the motion for summary judgment, the record shows that the heirs had ample opportunity to submit evidence to the court. Furthermore, it was the heirs’ actions that led to the court’s conversion of the motion into one for summary judgment, an act that should have been foreseeable by their attorney. The heirs converted the motion when they chose to introduce the checks in defense of the Rule 12(b)(6) motion. The heirs had more than three months after they were first given notice by the court that it was converting the Rule 12(b)(6) motion into a motion for summary judgment during which time, they did nothing to stay the court’s ruling in order to pursue discovery, nor did they pursue any relief under Rule 56(f). Further, once the motion for summary judgment was filed, the heirs could not rest on their pleadings but were obligated to respond, by affidavits or otherwise, setting forth specific facts showing that there was a genuine issue for trial. Instead, they rested on their pleadings and did so to their peril. Issue 2: Statute of limitations The heirs argue that the court erred in finding that the statute of limitations had run against them. The heirs signed the property in question over to Pittman on August 21, 2000. Pittman deeded the property to Tullos on April 10, 2002. The heirs filed suit on April 8, 2005. Neither party disputes that a three-year statute of limitations applies to the heirs’ claims. The heirs argue that Tullos engaged in an act of fraudulent concealment when he indicated in the memo line of the checks given to them that the land was being sold to Pittman. Fraudulent concealment of a cause of action tolls its statute of limitations. If the facts are as the heirs allege them to be, such would be sufficient to toll the statute of limitations until the heirs could reasonably be expected to discover the fraud. The deed to Pittman was not filed until April 10, 2002. Therefore, the heirs could not have discovered the alleged fraud until then. Thus, the statute of limitations began to run on April 10, 2002, and the complaint was timely filed. Issue 3: Summary judgment The court properly granted summary judgment on behalf of the defendants, as the heirs have failed to show any evidence of collusion or conspiracy between Tullos and Pittman. The most they have shown is that the property was sold and then was later transferred to Tullos. Additionally, the heirs have failed to show that they have suffered any harm as a result of the alleged impropriety. The land was appraised as worth five hundred dollars an acre, a figure that the heirs have yet to rebut. Although the heirs question the accuracy of the appraisal, they have offered nothing else indicating the value of the property. Even if Tullos owed the heirs a fiduciary duty, the heirs have presented no evidence that Tullos acted contrary to that duty.


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