Sheila Russell v. Donnie Euvon Horn Byrd
226 So. 3d 114
| Miss. Ct. App. | 2017Background
- Vernon Wylie died in 2006 leaving a 1972 will and 1979 codicil that specifically devised the “South part of the bottom” to Sheila Russell and the “North part of the bottom” to Donnie Byrd, with the remainder to be shared equally; Russell and Byrd were named co-executors and jointly filed for probate.
- Byrd filed a “motion to construe will” in May 2008; the record shows service by mailing the motion to Russell’s attorney but no Rule 81 summons personally served on Russell as required for will-construction matters.
- Russell’s attorney moved to withdraw in December 2008 and was allowed to withdraw on February 23, 2009; that same day a hearing on Byrd’s motion to construe was held and Russell did not appear.
- The chancery court construed the will as void in its specific devises for uncertainty and applied the residuary share-and-share-alike clause to divide the property; Russell later sought relief under Rule 60 and argued she lacked notice of the Rule 81 proceeding.
- The appellate court held the court’s will-construction judgment void for lack of proper Rule 81 service (no personal Rule 81 summons and no waiver by appearance on the merits), vacated the partition based on that construction, but affirmed the chancery court’s separate boundary-line ruling resolving a deed/metes-and-monuments dispute.
Issues
| Issue | Plaintiff's Argument (Russell) | Defendant's Argument (Byrd) | Held |
|---|---|---|---|
| Whether Rule 81(d) required personal service (Rule 81 summons) for will-construction and whether lack of such service voids the judgment | Rule 81(d) requires a petition/complaint and a Rule 81 summons for will construction; Russell was not served and therefore the judgment is void | Byrd contends Russell waived any defect by (a) general notice of a hearing, (b) failure to raise Rule 81 in trial court, and (c) pursuing post-judgment relief | Court held Rule 81 summons required; Russell was not served and did not waive service by defending on the merits, so will-construction judgment is void; vacated partition |
| Whether Russell waived the service defect by filing/arguing a Rule 60 motion and later participating in proceedings | Russell argued her Rule 60 motion was not a defense on the merits and therefore did not waive lack of service | Byrd argued the issue was waived by Russell’s post-judgment participation and failure to raise Rule 81 at earliest opportunity | Court held pursuing Rule 60 relief is not a merits defense and did not amount to waiver; jurisdictional service defect may be raised on appeal |
| Whether appellate court should address the unraised Rule 81 issue for first time on appeal | Russell asserted the jurisdictional/service defect can be raised on appeal and Serton permits addressing such defects even if first raised on appeal | Byrd argued appellate waiver rules foreclose consideration where issue was not properly preserved | Court applied Serton and similar precedent, concluded the Rule 81/service defect is jurisdictional and reviewable on appeal; relief granted |
| Validity of boundary line (deed construction between an artificial ditch and Martin Creek Branch) | Russell argued the natural Martin Creek Branch was the monument and that evidence (including FSA records and survey) supported her claim | Byrd (and chancellor) argued the man-made ditch matched the deed calls, distances, and acreage better and was the identifiable monument | Court affirmed the chancellor’s factual finding that the artificial ditch was the deed monument; substantial evidence supported the result |
Key Cases Cited
- Paw Paw Island Land Co. v. Issaquena & Warren Ctys. Land Co., 51 So.3d 916 (Miss. 2010) (standard of review: chancellor’s factual findings not reversed unless manifestly wrong)
- Clark v. Clark, 43 So.3d 496 (Miss. Ct. App. 2010) (in Rule 81 matters a Rule 81 summons must be issued or service is defective)
- Reasor v. Jordan, 110 So.3d 307 (Miss. 2013) (discussion of waiver of service and due process concerns)
- Stratton v. McKey, 204 So.3d 1245 (Miss. 2016) (complete absence of service offends due process and may not be waived)
- Serton v. Serton, 819 So.2d 15 (Miss. Ct. App. 2002) (jurisdictional Rule 81 service defects may be raised for first time on appeal)
- S & M Trucking LLC v. Rogers Oil Co. of Columbia, 195 So.3d 217 (Miss. Ct. App. 2016) (clarifies waiver: appearance that defends on the merits may waive insufficiency of process)
- Schustz v. Buccaneer, Inc., 850 So.2d 209 (Miss. Ct. App. 2003) (defending on the merits may preclude later jurisdictional objections)
- Moran v. Sims, 873 So.2d 1067 (Miss. Ct. App. 2004) (monuments—natural and artificial—are valid methods for describing land)
- Heiter v. Heiter ex rel. Sheffield, 192 So.3d 992 (Miss. 2016) (appellate deference to chancellor’s weighing of evidence)