Howard v. Gunnell


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Docket Number: 2009-CA-01587-COA
Oral Argument: 02-20-2011
 

 

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Court of Appeals: Opinion Link
Opinion Date: 05-17-2011
Opinion Author: Carlton, J.
Holding: Affirmed.

Additional Case Information: Topic: Real property - Tax sale - Agreed order - Substantial performance - Unconscionability - M.R.C.P. 60(b)
Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Barnes, Ishee, Roberts and Maxwell, JJ.
Procedural History: Bench Trial
Nature of the Case: CIVIL - REAL PROPERTY

Trial Court: Date of Trial Judgment: 07-20-2009
Appealed from: Lincoln County Chancery Court
Judge: Edward Patten, Jr.
Disposition: Enforced an agreed Order regarding redemption of property after a tax sale
Case Number: 2005-0164

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Louis Howard




DREW MCLEMORE MARTIN, MELISSA SELMAN MARTIN



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: Johnny Joe Gunnell d/b/a 4-S Company MARK R. HOLMES  

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    Topic: Real property - Tax sale - Agreed order - Substantial performance - Unconscionability - M.R.C.P. 60(b)

    Summary of the Facts: Louis Howard filed a complaint seeking to void a tax sale of his property. Shortly thereafter, Howard and Johnny Joe Gunnell d/b/a 4-S Company, the subsequent purchaser of the property, entered into an agreed order, whereby Howard agreed to pay Gunnell $8,075.26, plus interest at eight percent, in exchange for Gunnell’s interest in the property at issue. Gunnell filed a “Petition to Enforce the Court’s Prior Order and to Adjudicate Ownership of Real Property,” claiming that Howard failed to abide by the terms of the agreed order. The chancellor adjudicated Gunnell as the owner of the property in dispute. Howard appeals.

    Summary of Opinion Analysis: Issue 1: Void order Howard argues that the agreed order at issue violates Mississippi law and is therefore void, along with all the subsequent orders seeking to enforce it. Howard specifically argues that the trial court lacked the legal authority to approve the agreed order transferring Howard’s interest in the property to Gunnell, since the tax deed was void due to Howard’s failure to receive the statutory notice required before a tax sale of his property could occur. Howard waived all alleged errors, including but not limited to, his notice requirement argument, upon entry into the agreed order with Gunnell. Under Mississippi law, a ‘waiver’ presupposes a full knowledge of a right existing, and an intentional surrender or relinquishment of that right and contemplates something done designedly or knowingly, which modifies or changes existing rights, or varies or changes the terms and conditions of a contract. The record shows that the agreed order required Howard to tender to Gunnel the total amount of $8,075.26, together with an interest accrued thereon at the legal rate of eight percent from the date the agreed order was entered until paid, on or before October 1, 2008. The record further shows that Howard failed to comply with the agreed order by paying only the principal amount and making no payments toward the interest amount owed. As such, Howard failed to comply with the terms of the agreed order. Issue 2: Substantial performance Howard argues that the chancellor committed manifest error by failing to recognize that Howard substantially complied with the agreed order. Howard argues that his payment of $8,075.26 prior to the deadline, and his attempt to obtain the amount in interest owed from Gunnell, was substantial performance of the agreed order. The law favors the settlement of disputes by agreement of the parties and, ordinarily, will enforce the agreement which the parties have made, absent any fraud, mistake, or overreaching. In equity it has been generally held that, where a contract has been substantially performed, the party so performing may recover as for a completed performance, less such damages as the other party may have been put to by reason of the matters not performed. There was no abuse of discretion by the chancellor in adjudicating Gunnell as the owner of the property in dispute. The record shows that the agreed order required Howard to pay $8,075.26, plus interest at a rate of eight percent, on or before October 1, 2008. The record further shows that Howard failed to tender the amount due to Gunnell, or to the court, prior to this date. As noted by the chancellor, Howard failed to perform substantially the requirements of the agreed order; instead, he came into the court with unclean hands by failing to comply with the terms in the agreed order. Issue 3: Unconscionability Howard argues that the agreed order in dispute was an illusory and unconscionable agreement. Howard failed to plead or raise the issues of whether the agreed order was an illusory and unconscionable agreement in his pleadings prior to the filing of his M.R.C.P. 60(b) motion. Howard, by raising these issues for the first time in his Rule 60(b) motion, which was filed after his notice of appeal was filed, sought to modify or broaden the chancery court’s previous rulings, which violates Mississippi law. Thus, Howard is procedurally barred from raising the issues now on appeal.


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