Byrd v. Woods, et al.


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Docket Number: 2011-CA-00347-COA
Oral Argument: 04-05-2012
 

 

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Court of Appeals: Opinion Link
Opinion Date: 06-19-2012
Opinion Author: Fair, J.
Holding: Affirmed in part, reversed and remanded in part.

Additional Case Information: Topic: Real property - Service of process by publication - M.R.C.P. 4(c)(4) - Legitimacy - Motion to reconsider - M.R.C.P. 59 - Summary judgment sua sponte - Doctrine of laches - M.R.C.P. 60(b)
Judge(s) Concurring: Lee, C.J., Griffis, P.J., Barnes, Ishee, Roberts, Carlton, Maxwell and Russell, JJ.
Non Participating Judge(s): Irving, P.J.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - REAL PROPERTY

Trial Court: Date of Trial Judgment: 02-03-2011
Appealed from: Franklin County Chancery Court
Judge: Debbra Halford
Disposition: SUMMARY JUDGMENT GRANTED TO APPELLEES
Case Number: 2009-135

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Samson Byrd




STEVEN PRICE NIXON SEAN A. MILNER



 
  • Appellant #1 Brief

  • Appellee: Lottie Woods, Cornelius Byrd, Jr., Jeremy Howell, as Attorney-in-Fact for Cornelius Byrd, Jr., Jeremy Howell, Individually, Wendy McEwen Howell, Individually, Michael W. Byrd and G&G Outdoors, LLC K. MAXWELL GRAVES JR. LOTTIE WOODS (PRO SE) GENE D. BERRY WAYNE SMITH WALTER FRED BEESLEY  

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    Topic: Real property - Service of process by publication - M.R.C.P. 4(c)(4) - Legitimacy - Motion to reconsider - M.R.C.P. 59 - Summary judgment sua sponte - Doctrine of laches - M.R.C.P. 60(b)

    Summary of the Facts: Cherry Byrd left eighty acres of land to his sons, James Leslie Byrd and Cornelius Byrd. In a partition action each son received forty acres. James had at least five children, among them Samson and Lottie Woods. Cornelius had at least one, Cornelius Fred Byrd, Jr. Lottie filed a complaint for adverse possession of Cornelius’s forty acres, claiming to be his sole and only heir. She published process for Cornelius, his unknown heirs, and any other person claiming an interest in his property. Cornelius Fred, a resident of Chicago, entered his appearance and claimed to be the only child of Cornelius. Cornelius Fred produced an Illinois birth certificate that reflected Cornelius as his father. Lottie and Cornelius Fred appeared in open court and announced a settlement. Samson filed a letter to “officials of the chancery court” and asserted that he and three other siblings objected to the actions taken by his sister Lottie and Cornelius Fred. He requested that any disposition of the family land be halted. Later, a final agreed judgment was entered, holding Cornelius Fred to be the only child of Cornelius and sole owner of all of his father’s property. Lottie was vested with title to ten acres by agreement. Samson filed a complaint against Lottie and Cornelius Fred for relief from judgment under M.R.C.P. 60(b), or injunction, or adverse possession, or to quiet title. Samson asserted that Lottie was only on the property with his permission; that he and his predecessors had been in possession of the property for well over ten years; that service of process was insufficient; and that Cornelius Fred was an illegitimate child. Cornelius Fred and the Howells filed a motion for summary judgment. They also filed a separate motion for partial summary judgment as to Cornelius Fred’s legitimacy. The chancellor dismissed all of Samson’s claims with prejudice. Samson appeals.

    Summary of Opinion Analysis: Issue 1: Service of process M.R.C.P. 4(c)(4) states that if a defendant cannot be found after diligent search and inquiry, shown by sworn complaint or filed affidavit, he may be made a party by publication. In the 2007 adverse possession action, Lottie filed an affidavit of diligent search and inquiry to obtain a publication summons. However, she must have known that her brother (and her other siblings) would have an interest in the “family land” she sought to adversely possess. They were both potential heirs of Cornelius and believed the property belonged to their family. Further, Lottie and Samson were not estranged, so it is unlikely she could not find him after diligent search and inquiry. But Lottie did not serve Samson personally, nor did she mention or serve her other three siblings. Therefore, Lottie did not obtain service of process on Samson by publication because her affidavit was not made in good faith after diligent inquiry. Neither he nor Lottie’s other siblings are bound by the 2007 judgment. Issue 2: Legitimacy In the 2009 action, the defendants’ motion for partial summary judgment contained a copy of Cornelius Fred’s birth certificate. It reflects Cornelius as his father, and it specifically notes that Cornelius Fred is “legitimate.” By presenting Cornelius Fred’s birth certificate to the court, the defendants made out a prima facie case of legitimacy. A party opposing summary judgment may not rest upon the allegations of his pleadings but must set forth specific facts showing that there is a genuine issue for trial. Samson did not present any evidence. Thus, the chancellor had no choice but to grant partial summary judgment and vest title in Cornelius Fred to all of his father’s property. Issue 3: Motion to reconsider On the same day he filed his notice of appeal, Samson also filed a motion to reconsider in the chancery court. A motion to reconsider is generally filed under M.R.C.P. 59 and can stay an appeal, but any post-trial motion must be filed within ten days to render a notice of appeal ineffective. Samson is procedurally barred from raising this issue on appeal because of his failure to preserve the chancellor’s ruling on his motion. He filed his motion for reconsideration thirty days after judgment was rendered. Issue 4: Summary judgment Samson argues that the chancery court erred in granting full summary judgment because only the Rule 60(b) claims and the legitimacy issue were noticed for hearing. Further, he argues that the facts related to his adverse possession claim were disputed, making summary judgment inappropriate. A court errs in granting summary judgment sua sponte on an issue not raised in the moving party’s motion for summary judgment. The opposing party is entitled to notice and an opportunity to respond. As neither summary judgment motion encompassed Samson’s adverse possession claim, he was not on notice to respond, and it was error to grant summary judgment on that issue. Thus, this issue is remanded. Issue 5: Doctrine of laches Samson argues that the chancellor erred in granting summary judgment based on the six-month time bar normally applied under Rule 60(b)(1)-(3). Samson’s complaint was filed under Rule 60(b) as an independent action. The 2007 judgment does not bind Samson because he was not properly served with process. He did not have to obtain relief from that judgment under Rule 60(b), so there is no merit to this assignment of error. However, under the circumstances of this case, the doctrine of laches has clearly attached. Samson was given a hearing on his complaint where the chancellor allowed him to present whatever proof he had of his claims. He was also allowed to explain what evidence existed that would support his allegations of ownership under any theory. Further, the chancellor’s finding on the timeliness of his Rule 60(b) motion was only one basis for her grant of summary judgment. Although it may have been error to rely on the six-month deadline normally applied under Rule 60(b)(1)-(3), it is well established that the right result reached for the wrong reason will not be disturbed on appeal.


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