Aegler v. Gambrell
| Docket Number: | 2010-CA-00215-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 04-26-2011 Opinion Author: Maxwell, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Contract - Possession of furnishings - Addendum - Insufficiency of service of process - M.R.C.P. 4 - M.R.C.P. 5 - Subsequent pleading Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee and Roberts, JJ. Non Participating Judge(s): Myers, J. Concurs in Result Only: Carlton, J. Procedural History: Summary Judgment; Dismissal Nature of the Case: CIVIL - CONTRACT |
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| Trial Court: |
Date of Trial Judgment: 10-26-2009 Appealed from: Hancock County Chancer Court Judge: Margaret Alfonso Disposition: Summary Judgment Entered Granting Gambrell Possession of Certain Personal Property and Dismissing the Counterclaim of Stuart and Jean Aegler Case Number: C2301-08-643(2) |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Stuart Aegler and Jean Aegler |
MICHAEL D. HAAS JR. |
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| Appellee: | Frances Gambrell | ROBERT THOMAS SCHWARTZ, JEFFREY WARD BERTUCCI | ||
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: | Contract - Possession of furnishings - Addendum - Insufficiency of service of process - M.R.C.P. 4 - M.R.C.P. 5 - Subsequent pleading |
| Summary of the Facts: | Stuart and Jean Aegler purchased Francis Gambrell’s house, after Gambrell moved to her daughter’s home in Indiana because of her health. All of Gambrell’s belongings remained in the house when it was sold to the Aeglers who lived next door until their house was destroyed by a fire. The contract the parties entered into stated the Aeglers were purchasing “7616 Fairway DR, Diamondhead, MS together with the following items: appliances as in place at time of offer [and] all items permanently attached, unless specifically excluded herein.” The contract included the following addendum, drafted by Gambrell’s realtor: “Seller reserves right to remove certain articles prior to closure and all other remaining furnishings are to remain with the house.” The house closed without the Aeglers having an inspection. Several months later, Gambrell’s daughter called the Aeglers to arrange a time for movers to come and remove Gambrell’s property. The Aeglers said they would ship Gambrell her jewelry, photographs, golf trophies, and personal items belonging to her late husband. But they informed her daughter they now owned everything in the house. Further, the Aeglers could not send Gambrell’s clothes because they had already been donated to a local charity. The parties disputed which “furnishings” belonged to whom. The Aeglers argued the main reason they bought the home is because it came furnished. They also expressed dissatisfaction with their newly purchased home. In particular, they were upset the termite damage had not been repaired and that Gambrell had not given them her insurance proceeds to repair the smoke damage caused by the Aeglers’ house fire. The Aeglers said they would return all the personal property— along with the house—if Gambrell agreed to rescind the June 2007 contract. If not, she would not get a single item of personal property. Gambrell sued the Aeglers for breach of contract, asking the chancery court to enforce her right to retrieve certain personal property, a list of which she attached to her complaint. The list included clothing, jewelry, photographs, golf trophies, wall plaques, Christmas decorations, dishes, throw pillows and blankets, small appliances, pieces of furniture, and a golf cart. The Aeglers filed a counterclaim, asking the chancery court to rescind the contract claiming that buying Gambrell’s furnishings was a key reason they purchased the home for $310,000. The Aeglers also asked for the costs associated with buying and maintaining Gambrell’s home (closing costs, taxes, and insurance), $5,000 for needed termite-damage repair, and any insurance proceeds Gambrell received for damage from the June 2007 fire next door. Gambrell moved for summary judgment. The court granted summary judgment on Gambrell’s request for the listed items of personal property and dismissed the Aeglers’ counterclaims. The Aeglers appeal. |
| Summary of Opinion Analysis: | Gambrell claimed the addendum made clear “certain articles” were not being sold along with the house—namely, those articles listed in her complaint. She requested and was awarded possession of those articles. The parties executed the following addendum to the sales contract: “Seller reserves right to remove certain articles prior to closure and all other remaining furnishings are to remain with the house.” There is no doubt the addendum was to protect Gambrell’s right to “move out” of her house, even though the Aeglers had already moved in. By the addendum’s language, the parties anticipated Gambrell’s move would occur prior to closing. However, Stuart waived the time limitation, and Gambrell reasonably relied on Stuart’s assurances Gambrell could remove her property at any time after the closing. The addendum did not act as a forfeiture of all of Gambrell’s property not removed by closing. The addendum did not state “all remaining property,” but instead “all remaining furnishings.” Regardless of how narrowly or broadly one construes “furnishings,” the chancellor correctly pointed out some items of personal property did not become “furnishings” simply because Gambrell kept them in her house. The chancellor was correct to enforce Gambrell’s right to move out and award her possession of her property as listed in her complaint, excepting those items permanently attached, which were clearly purchased by the Aeglers. The chancellor found the Aeglers’ counterclaim, incorporated into their answer, should be dismissed for insufficiency of service of process. The chancellor found the Aeglers failed to comply with M.R.C.P. 4 and 5 because the counterclaim filed with the chancery court did not contain a certificate of service and the cover letter directing the court to file the counterclaim did not indicate a copy had been sent to Gambrell’s counsel. Under the circumstances, the lack of a certificate of service necessitated a finding that service of process was insufficient. As a subsequent pleading, only service under M.R.C.P. 5 was required. Gambrell filed an answer to the counterclaim seventeen days after the counterclaim was filed—evidence that the Aeglers had delivered a copy of the counterclaim to Gambrell’s counsel. However, the material facts are not in dispute on the claims in the counterclaims, and Gambrell is entitled to judgment as a matter of law. There is no evidence Gambrell or her son misrepresented or fraudulently concealed any termite damage. With regard to the insurance proceeds, the Aeglers failed to produce evidence Gambrell was under a contractual obligation to turn over her insurance proceeds. |
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