Dunn v. Dunn
| Docket Number: | 2002-CA-00283-SCT Linked Case(s): 2002-CA-00283-SCT |
|
| Supreme Court: | Opinion Link Opinion Date: 06-12-2003 Opinion Author: Waller, J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Real property - Filing of cross-appeal - Motion for rehearing - M.R.A.P. 40 - Res judicata - Unjust enrichment Judge(s) Concurring: Pittman, C.J., Smith, P.J., Cobb, Diaz, Carlson and Graves, JJ. Non Participating Judge(s): Easley, J. Dissenting Author : McRae, P.J. Procedural History: Bench Trial Nature of the Case: CIVIL - REAL PROPERTY |
|
| Trial Court: |
Date of Trial Judgment: 01-23-2002 Appealed from: Oktibbeha County Chancery Court Judge: Dorothy W. Colom Disposition: Reformed a deed in favor of the Appellee and ordered the Appellant to pay an amount owed pursuant to a mortgage on the real estate. Case Number: 1999-0361-C |
|
| Party Name: | Attorney Name: | |||
| Appellant: | Todd W. Dunn |
DAVID MICHAEL BRISOLARA |
||
| Appellee: | Judy H. Dunn | DOLTON W. McALPIN |
|
|
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: | Real property - Filing of cross-appeal - Motion for rehearing - M.R.A.P. 40 - Res judicata - Unjust enrichment |
| Summary of the Facts: | The Oktibbeha County Chancery Court reformed a certain real estate deed in favor of Judy Dunn and against Todd Dunn and ordered Judy to pay $42,973.57, an amount owed pursuant to a mortgage on the real estate, to the Merchants & Farmers Bank in Starkville. Judy made the payment. Todd appealed to the Supreme Court which reversed and rendered. Judy then filed, in the chancery court, a motion for restitution and other relief against Todd to recover the $42,973.57 paid by her to satisfy the debt against the real estate. The court granted Judy’s motion, and Todd appeals. |
| Summary of Opinion Analysis: | Issue 1: Cross-appeal Todd argues that Judy is procedurally barred from presenting this claim because she failed to present her claim for restitution to the Supreme Court by way of a cross-appeal. Following precedent from other states, an appellee should not be required to file a cross-appeal unless he or she is aggrieved by the trial court's judgment. Because Judy won a favorable judgment in the chancery court, her position on appeal was to have the Court affirm the judgment. She did not seek to alter or reverse the judgment below and therefore, she was not required to raise any issues on cross-appeal. Issue 2: Motion for rehearing Todd argues that Judy is procedurally barred from presenting this claim because she failed to file a motion for rehearing. Under M.R.A.P. 40, motions for rehearing are properly brought when the court has overlooked or misapprehended points of law or fact. Here, the Court did not overlook or misapprehend any points of law or fact because the issue of restitution was not raised in the first appeal. The issue of restitution could not have been raised before the Court in a motion for rehearing because there was absolutely no evidence in that record concerning any actions by the parties in response to that part of the judgment which ordered Judy to pay the bank. The only thing Judy could do was what she did. She went back to the chancery court, made a record that the payment was remitted, and asked for restitution. Because she could not have raised the issue of restitution in the first appeal, res judicata does not apply to her claim. Issue 3: Unjust enrichment The equitable principle of unjust enrichment clearly applies in this case. When Judy was divested of title, Todd, the owner, got the property back debt-free as Judy had paid off his indebtedness. Todd is not entitled to profit from Judy's payment. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
