Robinson v. Burton
| Docket Number: | 2008-CP-01776-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 12-14-2010 Opinion Author: Maxwell, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Real property - Sanctions - M.R.A.P. 28(k) - M.R.A.P. 38 - Procedural bars - M.R.A.P. 28(a)(3) - Partition sale - Section 11-21-11 - Impartiality of judge - Continuance Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Griffis, Barnes, Ishee, Roberts and Carlton, JJ. Non Participating Judge(s): Myers, P.J. Procedural History: Bench Trial Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 10-09-2008 Appealed from: ATTALA COUNTY CHANCERY COURT Judge: J. Max Kilpatrick Disposition: PARTITION SALE ORDERED Case Number: 2007-94 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Rosa Robinson and Willie Washington |
PRO SE |
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| Appellee: | Ivery Burton and Hilda Burton | BETH BURTON, MARK IVEY BURTON |
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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 - Sanctions - M.R.A.P. 28(k) - M.R.A.P. 38 - Procedural bars - M.R.A.P. 28(a)(3) - Partition sale - Section 11-21-11 - Impartiality of judge - Continuance |
| Summary of the Facts: | Ivey Burton and Hilda Burton requested the Attala County Chancery Court partition a 119.54-acre parcel of land in which they owned an undivided interest. Several relatives, including Rosa Robinson and Willie Washington, who also owned an interest, objected to the land being partitioned. The chancellor ultimately ordered a partition sale, finding it was in the best interest of all property owners. Robinson and Washington appeal. |
| Summary of Opinion Analysis: | Issue 1: Sanctions The Burtons request the Court to sanction Robinson by striking her brief under M.R.A.P. 28(k) and deeming her appeal frivolous. Though the manner in which Robinson chooses to cast her accusations against the chancellor arguably toes the line of Rule 28(k), the Court declines to sanction Robinson by striking any part of brief. The Burtons also seek to invoke M.R.A.P. 38. The Supreme Court has equated the Rule 38 frivolousness to the definition of the same concept in M.R.C.P. 11. The inquiry turns on whether a reasonable person would have any hope for success. The Supreme Court has found it inappropriate to sanction a party who has presented a justiciable claim, where the other party incurred no additional expense by defending other exaggerated claims. Robinson’s primary argument is that the chancellor improperly disposed of her family property. Given the strong preference against a partition sale, the Court does not agree with the Burtons that Robinson could not have reasonably hoped to prevail on this claim. Issue 2: Procedural bars Robinson cites no legal authority in her appellate brief. She further fails to specifically identify assignments of error as required by M.R.A.P. 28(a)(3). Thus, the Court’s review is limited to any self-evident error for which no authority would be necessary. Issue 3: Partition sale Section 11-21-11 provides for a partition sale where a chancellor determines a sale of the lands, or any part thereof, will better promote the interest of all parties than a partition in kind; or an equal division cannot be made. There is a preference for partition in kind over partition sale. And chancellors have no authority to decree a sale unless the statutory requisites are clearly met and a substantial reason exists for choosing partition by sale over partition in kind. Here, the chancellor considered dividing the 119.54-acre tract in which thirty-nine heirs owned an interest. He recognized Robinson and other co-owners desired to retain fee simple ownership of their undivided shares. But the chancellor found dividing the land in this manner unfeasible, given the numerous undivided interests where many owned less than one percent of the parcel. The chancellor also noted that surveying the land would be an expensive endeavor because each individual tract would have to be surveyed. He further pointed to evidence showing that the timber was not uniform throughout the tract and that some of the land had road frontage while other portions did not. Based on these reasons, he concluded a partition in kind was unfeasible, and a partition sale was in the best interest of all heirs. Considering the characteristics of the land, the varying sizes of the many individual interests, and the feasibility and realities underlying a division of the tract, there was no error in the chancellor’s decision. Issue 4: Impartiality of judge Robinson argues that the chancellor was disrespectful to her and biased against her. However, at no point prior to or during the trial did she request that the chancellor recuse himself. Nor did she contemporaneously object to the chancellor’s purportedly disrespectful comments. Because Robinson’s accusations of judicial bias neither appear in the record nor are apparent from the context of the chancellor’s rulings, there is no reversible error. Issue 5: Continuance Robinson argues that the chancellor improperly failed to grant a continuance to allow her proposed handwriting expert to testify that the signature on a deed to the property was a forgery. The record shows that Robinson was not diligent in securing the presence of her proposed witness, which is a sufficient basis to deny a request for a continuance. |
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