Charlot v. Henry
| Docket Number: | 2009-CA-00719-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 10-19-2010 Opinion Author: Barnes, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Real property - Motion to amend - M.R.C.P. 15(a) - M.R.C.P. 12(e) - Adverse possession Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Ishee, Roberts, Carlton and Maxwell, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 02-09-2009 Appealed from: Harrison County Chancery Court Judge: Margaret Alfonso Disposition: SUMMARY JUDGMENT GRANTED FOR APPELLEES Case Number: 08-00643-2 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Georgia Charlot |
RICKY O. AMOS |
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| Appellee: | Dennis L. Henry and Barbara Hanson Henry | ERIC D. WOOTEN | ||
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 - Motion to amend - M.R.C.P. 15(a) - M.R.C.P. 12(e) - Adverse possession |
| Summary of the Facts: | Dennis and Barbara Henry were granted summary judgment in their boundary-dispute action with their next door neighbor, Georgia Charlot. The judgment found that the Henrys had legal title to the disputed property and ordered Charlot to remove from the Henrys’ property steps to a trailer home and a fence that Charlot had constructed on the property. Charlot appeals. |
| Summary of Opinion Analysis: | Issue 1: Motion to amend Charlot argues that the chancellor erred by not allowing her to amend her answer to plead adverse possession. Adverse possession must be pleaded and proved by the party who relies on it, and failure to do so waives that affirmative defense. Charlot clearly did not file the affirmative defense of adverse possession in her answer to the Henrys’ complaint even though she was given additional time to answer. Six months later and two weeks after the Henrys had filed their motion for summary judgment, Charlot filed a motion to supplement her pleadings in order to add adverse possession as a counterclaim. M.R.C.P. 15(a) provides that a party may amend a pleading as a matter of course at any time before a responsive pleading is served. Otherwise a party may amend a pleading only by leave of court or upon written consent of the adverse party; leave shall be freely given when justice so requires. The complaint filed by the Henrys contains a full description of the property, a deraignment of title with description that even name “the land of Charlot” as one of its boundaries, and the deeds with the full legal description of the land at issue were attached. Had Charlot been confused about the property at issue, her recourse would have been to file a timely motion for a more definite statement under M.R.C.P. 12(e). The Henrys said that they would be prejudiced by allowing Charlot to amend her answer. Applying Rule 15 to the judgment of the chancellor, the chancellor did not abuse her discretion by rejecting Charlot’s motion to amend her answer to assert the affirmative defense of adverse possession as a counterclaim. An application to amend a pleading should be made promptly and not be the result of a lack of diligence. Charlot offered no credible reason for the six-month delay between the filing of her answer and the filing of her motion to amend the answer to raise the affirmative defense of adverse possession. Her excuse was that she was unsure what property was involved in the lawsuit. The Henrys’ complaint specifically described the disputed property by a clear deraignment of title and by a survey by a registered surveyor and an affidavit by the surveyor. The affirmative defense of adverse possession would have existed prior to the filing of the lawsuit, so it was not a fact which would have been found only through discovery. Issue 2: Adverse possession Charlot claims there are five issues of material fact that require a trial on the merits. First is a claim that there are issues relating to Charlot’s adverse-possession claim that exist. However, since she waived her right to assert an affirmative defense of adverse possession, this claim is without merit. Second, Charlot claims there is an issue as to the actual description of the disputed property. Such an argument as that advanced by Charlot might have been allowed to be raised in an adverse-possession proceeding; however, Charlot waived her right to plead adverse possession. Third, Charlot claims that she and her predecessors in title were in possession of the disputed property for more than 100 years. This issue must fail because again it relates to a claim of adverse possession which was waived by Charlot. Fourth, Charlot claims that the location of the original old wire fence, which at one time may have been used as a property boundary, was never established. Charlot waived this argument for two reasons: first is that she accepted and agreed to the Henrys’ description of their property in her answer, and second, such an argument would only be relevant in an adverse-possession action. Finally, Charlot argues that elements of a boundary case have not been proven and that even if the court grants the Henrys’ complaint to confirm title to the property, which the Henrys possess, they will not gain the disputed property because the Henrys were not in possession of the disputed property. Charlot offers no citation of authority for this position, and case law clearly holds that failure to cite relevant authority obviates the appellate court’s obligation to review such issues. |
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