Chimento v. Fuller
| Docket Number: | 2006-CA-01494-SCT Linked Case(s): 2006-CA-01494-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 09-27-2007 Opinion Author: EASLEY, J. Holding: Reversed and Remanded in Part |
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| Additional Case Information: |
Topic: Real property - Promissory note - Statute of limitations - Section 15-1-5 - M.R.C.P. 8 Judge(s) Concurring: SMITH, C.J., WALLER, P.J., CARLSON, GRAVES, DICKINSON, RANDOLPH AND LAMAR, JJ. Concurs in Result Only: DIAZ, P.J. Procedural History: Bench Trial Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 07-28-2006 Appealed from: PEARL RIVER COUNTY CHANCERY Judge: James. H.C. Thomas, Jr. Disposition: The chancellor found that the statute of limitations had been tolled in favor of Mills, and he should receive all the proceeds from the sale. Case Number: 27,377-GN-TH |
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| Consolidated: 2001-IA-00057-SCT | ||
| Party Name: | Attorney Name: | |||
| Appellant: | ALBERT JOHN CHIMENTO, SR. |
JAMES L. FARRIOR, III |
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| Appellee: | ROBERT ALBERT FULLER AND GERALD D. MILLS, SR. | BYRON J. STOCKSTILL RICHARD C. FITZPATRICK |
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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: | Real property - Promissory note - Statute of limitations - Section 15-1-5 - M.R.C.P. 8 |
| Summary of the Facts: | Robert Fuller and Albert Chimento, Sr., purchased 31.3 acres of property for $130,000. Fuller and Chimento signed two promissory notes and deeds of trust in the amount of $95,000 to Chimento Home Builders, Inc., and $35,000 to Gerald Mills, Sr. The CHB loan had first priority over Mills’ loan. CHB also assigned its interest to Mohammed Esmail. After Fuller and Chimento failed to pay the $95,000 loan, Esmail began foreclosure proceedings. Fuller filed a complaint seeking injunctive relief on the foreclosure action. Esmail, Chimento, and Mills were named defendants in the suit. However, Mills was never served with process. In 1993, the chancellor enjoined the foreclosure of the property. In 1997, the chancellor entered another order granting a temporary injunction and leave for Fuller to amend his complaint. The trial court entered an order finding that the 1993 order which enjoined foreclosure tolled the statute of limitations on the $95,000 Chimento note. In 1998, Mills notified Chimento and Fuller that he had retained counsel. In 1999, the chancellor ruled in part that the land was to be partitioned by a judicial sale. Fuller filed a motion to reconsider, which the chancellor denied. Fuller filed an interlocutory appeal on the issue of the partition of the land only. Fuller wanted the land to be partitioned in kind instead of by a judicial sale. In Fuller v. Chimento, 824 So. 2d 599, 603 (Miss. 2002), the Court affirmed the chancellor’s ruling which required a partition by sale and remanded the case for further proceedings. The 31.3 acres were sold in August 2003 and the proceeds, less the costs of sale and taxes, in the amount of $199,358.21 were deposited with the chancery court for disbursement. In 2006, the chancellor found that the statute of limitations had been tolled in favor of Mills, and he should receive all the proceeds from the sale. Chimento appeals. |
| Summary of Opinion Analysis: | Chimento argues that there is a three-year statute of limitations for Mills’ note and deed of trust which began to run in January 1991 when the last installment payment was due on Mills’ $35,000 loan, and expired in 1994, and that the statute of limitations is not tolled by simply naming a person in a lawsuit, such as Mills, without anything more. Mills argues that the language of the promissory note signed by Fuller and Chimento waives the statute of limitations. When viewed in context, the language of the note refers to collection of payments by Mills only and does not specifically “waive the statute of limitations” or waive Mills’ obligation to assert his legal rights. Furthermore, the language of the note concerns only collections periods. This language does not operate to excuse Mills from asserting his legal rights in a timely manner prescribed by the applicable statute of limitations. More importantly, the Legislature codified and prohibited any waiver of the statute of limitations by contract in section 15-1-5. While both parties argue either a three-year or six-year statute of limitations, this issue need not be addressed. Mills never filed suit to foreclose on his $35,000 note and never filed suit for collection on the note; therefore, more than six years passed between the time that Mills’ last installment on his note was due and payable, on January 1991, and any action, or more accurately, non-action by Mills. Mills took no action whatsoever to preserve his lien for non-payment of his $35,000 promissory note and deed of trust. Mills never filed a foreclosure action for failure to pay his $35,000 note, which would have protected his real estate collateral. Mills never filed suit on the note to preserve his right to the money owed on the note. In addition, Mills never petitioned the trial court to intervene in the action. Mills completely failed to assert his legal rights to his $35,000 note. Thus, Mills filed no action or pleadings which tolled the statute of limitations as to him. The 1993 order addressed Esmail’s $95,000 note, not Mills’ $35,000 note. This order was not against Mills and his note was not encumbered by the order. Mills argues that his supplemental and amended proposed findings of fact and conclusions of law satisfied the notice pleading requirements of M.R.C.P. 8(a). However, Rule 8© concerning affirmative defenses requires a party to plead its affirmative defenses. Mills never filed any pleadings in the case, nor did he seek to intervene in the case. At best, Mills filed his findings of fact and conclusions of law, however, that was more than ten months after trial and after the chancellor’s May 2000 judgment in the case. Since Mills is barred by the statue of limitations, the chancery court’s judgment awarding Mills all the proceeds from the land sale should be reversed and remanded for proper distribution of the proceeds to Fuller and Chimento. |
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