270 So. 3d 976
Miss. Ct. App.2018Background
- On December 22, 2010, Mellie Cooley executed a warranty deed transferring his Hattiesburg home to his sister, Katie Dent; Cooley died January 16, 2011.
- In April 2011 Albinnie Bryant (Cooley’s niece) was appointed administrator of Cooley’s estate and in July 2011 sued Dent to quiet title, alleging lack of capacity, undue influence, and fraud; a lis pendens was filed.
- On May 21, 2012 Dent conveyed the property to Christopher and Cathy Gray.
- Bryant’s original complaint was dismissed without prejudice for lack of prosecution on October 19, 2016; she refiled and amended in February 2017 to add the Grays and assert that Cooley’s wife failed to sign the deed under Miss. Code § 89-1-29.
- The chancery court dismissed Bryant’s amended complaint, concluding a three-year statute of limitations barred the suit and that fraud allegations failed to satisfy Rule 9(b); the court did not address the wife-signature claim.
- The Court of Appeals reversed as to the statute-of-limitations ruling (holding a ten-year limitations period applies), affirmed the Rule 9(b) dismissal as to fraud pleading, and remanded for further proceedings on other issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicable statute of limitations (action to recover land/cloud on title) | Bryant: ten-year limitations (action to recover land/equitable claim) | Defendants: three-year limitations applies (court below relied on cases involving non-possessory claims) | Court: Ten-year statute (Miss. Code §§ 15-1-7, 15-1-9) governs; reverse and remand |
| Sufficiency of fraud pleading under Rule 9(b) | Bryant: alleged undue influence and fraud in procurement of deed | Defendants: fraud not pled with particularity per Rule 9(b) | Court: Bryant’s allegation was conclusory and failed Rule 9(b); dismissal on this ground affirmed |
| Validity of deed for missing spouse signature (§ 89-1-29) | Bryant: deed void because Cooley’s wife did not sign as required | Defendants: not resolved below; defendants argued other defenses | Court: Issue not decided by chancery court; may be addressed on remand |
Key Cases Cited
- Scaggs v. GPCH–GP, Inc., 931 So.2d 1274 (Miss. 2006) (standard of review for dismissal and taking complaint allegations as true)
- Lincoln Elec. Co. v. McLemore, 54 So.3d 833 (Miss. 2010) (statute-of-limitations issues reviewed de novo)
- O'Neal Steel, Inc. v. Millette, 797 So.2d 869 (Miss. 2001) (distinguishable: judgment lien case holding lack of possessory interest affects characterization)
- In re Estate of Reid, 825 So.2d 1 (Miss. 2002) (ten-year limitations applied where heir sought to set aside decedent’s real-property transfers for undue influence)
- Lott v. Saulters, 133 So.3d 794 (Miss. 2014) (suit to remove cloud on title is an action to recover land)
- Howard v. Harper (In re Estate of Harper), 947 So.2d 854 (Miss. 2006) (Rule 9(b) requires time, place, and contents of false representations to be pleaded)
- Jay Foster PLLC v. McNair, 175 So.3d 565 (Miss. Ct. App. 2015) (court may treat appellee’s failure to brief as confession of error in some circumstances)
- Archie v. City of Canton, 92 So.3d 1279 (Miss. Ct. App. 2012) (same guidance on appellee’s failure to file brief)