105 So. 3d 1171
Miss. Ct. App.2012Background
- Jeanette Smiley devised 50 acres to Gary and Mary Ann and 90 acres to others, conditioned on Gary and Mary Ann living in her home and caring for her; Jeanette executed a durable power of attorney for them and a warranty deed conveying all 140 acres to them, stating they would follow the will; after Jeanette’s death, Gary and Mary Ann clear-cut the ninety-acre tract reserved for others; plaintiffs, ten devisees of the ninety-acre tract, sue for timber removal and misappropriation; defendants settled with some codefendants for $98,000 and Gary and Mary Ann defended the timber-removal claim; chancellor found a trust arising from the deed and awarded damages for wrongful timber removal and misappropriation; court must determine if clear-and-convincing evidence supports a trust and apportion fault to settling defendants/nonparties on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether damages are governed by §95-5-10 or waste | Smiley entity held as trust against plaintiffs | Should be governed by waste or co-ownership analysis | Remand to apply clear-and-convincing standard; damages under §95-5-10 or waste to be resolved on remand |
| Whether a valid trust existed and its type | There was an express or implied trust benefiting plaintiffs | No trust or only constructive/implicit trust | Remand to determine trust existence under clear-and-convincing evidence; type to be identified |
| What is the proper measure of damages for timber removal | Delivered value should be used since willful trespass | Stumpage value or alternative measure may apply | Delivered value is proper; remand needed to re-evaluate if trust not proven |
| Apportionment of fault among settling defendants and nonparties | Fault should be allocated per §85-5-7(5) to all at fault | Settling defendants/nonparties should be apportioned | Remand for specific findings of fault percentages for settling defendants and nonparties |
| Whether misappropriation damages should be reduced for home repairs and living expenses | All misappropriated funds should be damages | Credits for certain expenses proper | Affirm misappropriation award; credits already considered |
| Overall judgment posture on remand | Affirm existing judgment subject to remand | Vacate or revise on remand depending on trust finding | Remand to analyze trust under clear-and-convincing standard and adjust judgment accordingly |
Key Cases Cited
- Stockstill v. Gammill, 943 So.2d 35 (Miss. 2006) (exclusive remedy; damages under 95-5-10 vs waste)
- Masonite Corp. v. Williamson, 404 So.2d 565 (Miss. 1981) (delivered value when trespass willful)
- Lee v. Yeates, 256 So.2d 371 (Miss. 1972) (clear-and-convincing standard for trusts)
- Estate of Langston v. Williams, 57 So.3d 618 (Miss. 2011) (trust issue must be decided under clear-and-convincing standard)
- Bay Springs Forest Prods., Inc. v. Wade, 435 So.2d 690 (Miss. 1983) (valuation of timber— stumpage vs delivered value)
- Tolbert v. Southgate Timber Co., 943 So.2d 90 (Miss. Ct. App. 2006) (co-ownership and waste analysis in timber cases)
- Sanderson v. Sanderson, 824 So.2d 623 (Miss. 2002) (standards of review for chancellor findings)
- Joel v. Joel, 43 So.3d 424 (Miss. 2010) (de novo review of legal conclusions)