Hurst v. Southwest Mississippi Legal Services Corp.

• Decision Date: 10 December 1992
• Docket Number: No. 89-CA-1185,89-CA-1185
• Citation: 610 So.2d 374
• Parties: Geraldine HURST, Executrix of the Estate of Josie Connerly, Geraldine Hurst, and Kenneth Hurst v. SOUTHWEST MISSISSIPPI LEGAL SERVICES CORP. and Hilda Burnett.
• Court: Mississippi Supreme Court

Page 374

610 So.2d 374

Geraldine HURST, Executrix of the Estate of Josie Connerly Geraldine Hurst, and Kenneth Hurst v. SOUTHWEST MISSISSIPPI LEGAL SERVICES CORP. and Hilda Burnett.

No. 89-CA-1185.

Supreme Court of Mississippi.

Dec. 10, 1992.

Jerry L. Mills, John T. Wakeland, Pyle Dreher Mills & Woods, Jackson, for appellants.

Tomie T. Green, John L. Walker, Jr., Walker Walker & Green, Jackson, for appellees.

Before HAWKINS, P.J., and PRATHER and McRAE, JJ.

McRAE, Justice, for the court:

Appellants ("the Hursts" unless otherwise indicated) filed suit against Southwest Mississippi Legal Services and attorney Hilda Burnett ("Southwest and Burnett" unless referred to separately) in the Circuit Court of Pike County seeking damages for legal negligence and tortious breach of contract. The court granted summary judgment in favor of Southwest and Burnett. On appeal, the Hursts assert that the trial court erred by not permitting the case to proceed to trial. Southwest and Burnett have cross-appealed on grounds (1) that the trial court erred in failing to dismiss Josie Connerly as a party plaintiff; and (2) that the trial court erred in refusing to dismiss Hilda Burnett as a party defendant. Southwest and Burnett also assert that the appeal is frivolous and seek sanctions pursuant to MSCR Rule 38. Finding that a genuine question of material fact exists concerning whether Southwest and Burnett are liable for legal negligence, we reverse the entry of summary judgment and remand for trial. On the cross-appeal, we deny Southwest's and Burnett's request for sanctions and affirm the trial court's denial of motions to dismiss Josie Connerly as a party plaintiff and to dismiss Hilda Burnett as a party defendant.

FACTS

In 1923, one Dewitt Connerly purchased the land involved in this suit and established a residence thereon. In 1937, he forfeited the property to the State of Mississippi for failure to pay taxes but continued to live there. The State of Mississippi conveyed the property to W.A. Pritchard on March 7, 1944.

On March 29, 1947, W.A. Pritchard quitclaimed the property to Dewitt Connerly's daughter, Josie Connerly, who had maintained a residence on the land following her father's death in 1943. The quitclaim deed contained a clause reserving all minerals to Pritchard. Two days later, on March 31, 1947, Pritchard deeded the mineral rights to Roy Ellzey.

In 1954, Josie Connerly conveyed three acres of the property to Kenneth and Geraldine Hurst as a homesite. Mr. and Mrs. Hurst sought a VA loan, but due to the 1937 tax sale, they were required to confirm their title in order to obtain financing. They filed suit in due course, and on February 15, 1955, the Chancery Court of Pike County confirmed fee simple title in Mr. and Mrs. Hurst. The court found that Mr. and Mrs. Hurst's predecessor had good title by virtue of both adverse possession and the quitclaim deed from W.A. Pritchard.

In 1979, the heirs of Roy Ellzey brought suit to confirm title to the minerals and named Josie Connerly and Mr. and Mrs. Hurst as defendants. Southwest undertook the defense and assigned the case to its employee, Hilda Burnett. Burnett filed an answer in January of 1980 which included no affirmative defenses. The case was set for trial on June 27, 1980. On June 26, the day before the trial, Burnett filed a suit on behalf of Josie Connerly and Mr. and Mrs. Hurst seeking to have the 1944 tax title set aside. Burnett also filed a motion for a stay in the Ellzey title confirmation proceedings pending resolution of the newly-filed suit. The court denied the motion for a stay and considered both matters jointly at the June 27th trial.

At trial, the defense sought to prove that Dewitt Connerly had in fact paid his taxes Burnett perfected an appeal on behalf of the defendants, but she never filed a brief despite repeated extensions. Burnett procured the extensions on grounds that settlement negotiations were in progress. In their briefs, the Hursts assert that no settlement negotiations ever occurred.

in 1937 and that the State of Mississippi did not follow proper forfeiture procedures, thus rendering the 1944 tax deed void. The court refused to admit the evidence, however, on grounds that the defendants had failed to specifically plead defects in the forfeiture proceedings as required by statute. Burnett raised no other defense and engaged in no cross-examination. The court entered judgment confirming that Roy Ellzey's heirs held title to the contested mineral rights.

The appeal was ultimately dismissed for lack of prosecution. The Hursts allege that neither Burnett nor Southwest told them about the dismissal. The Hursts claim to have discovered the dismissal some years later after hiring another attorney to find out when their appeal would be heard.

PROCEEDINGS BELOW

On June 5, 1986, Josie Connerly along with Mr. and Mrs. Hurst filed a complaint naming Southwest and Burnett as defendants. The complaint, as later amended, included two counts. The first count sought actual damages in the amount of $800,000 for legal negligence. The second count sought $500,000 in actual damages and $2,500,000.00 in punitive damages for tortious, bad faith breach of contract. Southwest was personally served with process on June 16, 1986.

Southwest answered the complaint on July 31, 1986, and immediately initiated a copious flow of discovery requests and motions. ¹ On February 2, 1989, Southwest filed a motion for summary judgment.

On September 18, 1989, Southwest filed a motion to dismiss Burnett as a party defendant on grounds of improper service of process. Burnett joined the motion on September 20. The trial court quashed the attempted service of process on Burnett but refused to grant the motion to dismiss. On October 11, 1989, the plaintiffs amended their complaint by substituting the Estate of Josie Connerly as a party plaintiff following the death of Josie Connerly in June of 1989.

The case came on for trial on October 13, 1989, and a jury was empaneled. Before either party put on any proof, however, the court conducted a hearing on Southwest's motion for summary judgment and granted it. This appeal and cross-appeal followed.

LAW

I.

WHETHER THE TRIAL COURT ERRED IN GRANTING SOUTHWEST'S MOTION

FOR SUMMARY JUDGMENT?

In his Judgment of Dismissal with Prejudice, the trial judge found as a matter of law that the plaintiffs could not have prevailed in their defense against Ellzey's 1979 suit. Consequently, the judge concluded, any injury or damages the plaintiffs suffered could not have been proximately caused by negligence on the part of their attorney. The judgment does not expressly address the plaintiffs' tortious breach of contract claim. It may be presumed, however, that the judgment covers the bad faith count since the judge granted Southwest's summary judgment motion "in toto" and dismissed the action with prejudice. In the following discussion we shall address the negligence and bad-faith claims separately. We shall also address Southwest's and Burnett's contention that the appellants waived their right to appeal the grant of summary judgment by failing to file a response to the summary judgment motion. Lastly, we shall consider the propriety of hearing a motion for summary judgment after a case is already poised for trial with a jury in place, and where the plaintiff receives no advance notice of the hearing.

A.

The Legal Negligence Claim

The Hursts contend that they would have prevailed as a matter of law in the 1979 suit if Burnett had raised adverse possession as an affirmative defense. The validity of the Hursts' title to the property by virtue of adverse possession was established by the 1955 chancellor's decree which stated:

The said Josie Connerly lived on the land, cultivated the same, tended the same, and held the same openly, notoriously and adversely from the time it was patented [in 1944] by the State of Mississippi until the present time, and that she has perfected a good, valid title by adverse possession of the land, which has cured any defects that may have been in her title, in addition to the fact that she holds a good record title to the land.

The Hursts maintain that Burnett's negligent failure to assert the adverse possession defense directly and proximately caused them to lose their mineral rights.

In response, Southwest and Burnett first suggest that Josie Connerly may have never adversely possessed the subject property at all. This argument fails to recognize the res judicata effect of the 1955 chancery judgment which expressly stated that Josie Connerly had adversely possessed the land. The 1955 judgment clearly establishes, once and for all, that Josie Connerly had obtained a valid title to "the land" by adverse possession. The only real question, then, is whether "the land" that Connerly adversely possessed included both surface and mineral rights, or, as Southwest and Burnett contend, surface rights alone.

The case essentially turns on this point. If "the land" to which the 1955 judgment refers included mineral rights, then the Hursts would probably have been entitled to judgment as a matter of law in the 1979 suit had Burnett only raised the affirmative defense of adverse possession. If, on the other hand, "the land" referred only to surface rights, then the defense of adverse possession would not have been available in the 1979 action. In deciding whether "the land" to which the 1955 judgment refers included mineral rights, we are confronted with a two-fold question:

(1) could Connerly have adversely possessed the minerals without exercising control over them; and

(2) did Connerly relinquish her adverse claim to the minerals by accepting a quitclaim deed from Pritchard which contained a clause "reserving" the minerals to Pritchard?

1.

Could Connerly Have Adversely Possessed the Minerals Without

Exercising Control Over Them?

At the time when Connerly began to adversely possess the land, the...