Allen v. Mayer, 07-CA-59390

• Decision Date: 18 September 1991
• Docket Number: No. 07-CA-59390,07-CA-59390
• Citation: 587 So.2d 255
• Parties: Mrs. Mattie M. ALLEN v. Harry MAYER, Jr.
• Court: Mississippi Supreme Court

Page 255

587 So.2d 255

Mrs. Mattie M. ALLEN v. Harry MAYER, Jr.

No. 07-CA-59390.

Supreme Court of Mississippi.

Sept. 18, 1991.

Paul Abston, Meridian, for appellant.

Marvin E. Wiggins, Jr., DeKalb, Robert D. Jones, Jordan & Jones, Meridian, for appellee.

Before ROY NOBLE LEE, C.J., and PITTMAN and BANKS, JJ.

BANKS, Justice, for the Court:

I

Mattie M. Allen (Allen) appeals from an order entered by the Circuit Court of Lauderdale County affirming a County Court decision summarily disposing of her Complaint in Replevin against Harry Mayer, Jr. (Mayer). The matter compels us to treat the following issues: (1) Whether one who claims ownership interest in personalty possessed by another at the time of the other's death is required to assert her claim as a creditor of the estate; (2) Whether under the circumstances here Allen should suffer summary judgment by application of the doctrine of laches; and (3) Whether Allen erroneously relied on a motion to "set aside" the order granting summary judgment to toll the time for perfecting her appeal, thus failing to do so in a timely manner. We answer all of these questions in the negative and reverse.

II

Allen filed a "Complaint in Replevin" against Mayer, her step-grandson, in the County Court of Lauderdale County on The county court set October 14, 1987, as the date for hearing to determine the rights of the parties in the replevin action. On that date Allen was deposed by Mayer's counsel, by agreement of the parties. On October 16, 1987, both parties moved ore tenus to reset the case for trial on November 6, 1987.

September 28, 1987. In this complaint, she alleged that certain articles of personal property that were in the possession of her daughter, Gloria Mayer, at her daughter's death, actually belonged to her. She claimed that Mayer, her daughter's step-son, was in wrongful possession of the items.

On October 19, 1987, Mayer filed an "Answer to the Complaint in Replevin." Accompanying his response was a motion for summary judgment. Offered in support of the summary judgment motion was an affidavit of C. Scott Edmundson, Jr., the attorney for the estate of Gloria Mayer. Allen filed no written response to the motion.

The hearing on the motion was held on October 26, 1987. Buttressing the motion were exhibits consisting of the chancery court files concerning the estate of Gloria Mayer, deceased, and a copy of the probate docket of the estate. The testimony of Joyce H. Smith, Deputy Chancery Clerk of Lauderdale County and Allen's deposition were also before the court.

After considering all the evidence, the county court, in a written opinion, granted the motion for summary disposition and entered an order dated November 9, 1987, to that effect. Some three days later on November 12, Allen, by and through her attorney, moved to set aside the order granting summary judgment. This motion was denied on December 16, 1987. Allen then appealed to the circuit court. In a written opinion dated June 22, 1988, that court affirmed the decision of the county court.

III

In her deposition testimony, Allen claimed that prior to the death of her daughter, Gloria Mayer, she gave her daughter some family heirlooms for safekeeping. At the time of this arrangement, Allen lived in a mobile home and did not have room for the pieces. She alleged that Gloria told her that she (Gloria) would have the furniture refurbished and use it in the Mayer clothing store until Mattie asked for it. No document or other statement evidencing this "safekeeping" arrangement existed. She explained that such a writing was not needed because "you don't do that with your daughter."

Gloria Mayer died on September 20, 1984. In her will, she devised her entire estate, after payments of debts, taxes, and costs of administration to the trustees of the Harry Simon Mayer Inter-vivos Trust to hold and administer said property according to the terms of said trust. Although Mattie was aware of when her daughter's estate was admitted to probate, she chose not file a claim because,

I left that up to Harry. It's just like I tell you, I stayed with Harry so much 'til he seemed like my grandchild, and that did not cross my mind to do a thing in the world about it because I knew he knew all about it and I didn't even bother him with it.

Notice to creditors was given and the estate was closed on August 10, 1985.

After the estate was closed, Harry Mayer, Jr. and Pamela Camp Smith ¹, Gloria Mayer's heirs, divided the trust into which the remaining assets of Gloria Mayer's estate were placed. As part of his share of the trust, Harry Mayer received the furniture involved in this litigation.

Sometime in 1985, Allen called Mayer about the furniture. She told him that she had a house and would like to get the pieces she "loaned" her daughter. She stated that Mayer was rude, told her "no" and that she would have to see his lawyer. She talked to him again in October of 1987 to no avail.

The instant action followed. In her complaint, Allen claimed ownership to and sought to obtain from her step-grandson Mayer filed an answer in which he denied that any relief should be granted to Allen. He maintained that the matter was res judicata pursuant to the order of the chancery court closing the estate of Gloria Mayer. Additionally, he stated that the doctrines of estoppel, laches, and the statute of frauds should prevent Allen from proceeding.

                certain items of furniture alleged to be antique heirlooms valued at $2,050. 2  She maintained that the items were being held in a safe-keeping arrangement for her by her daughter and that she was entitled to immediate possession of the articles
                

In support of the accompanying motion for summary judgment, he filed the affidavit of C. Scott Edmundson, Jr., who was the attorney for Gloria Mayer's estate. In the affidavit, Edmundson stated that Gloria Mayer died seized of the personal property outlined in the "Complaint for Replevin." He also maintained that creditors were notified and no claim was probated as to any of the articles in question. Allen filed no response to the motion.

A hearing on the motion was had on October 26, 1988. Offered in support of the motion were the documents contained in the chancery court file regarding the probate of Gloria Mayer's estate. Allen's deposition was also offered into evidence by Mayer in support of his motion. ³

The trial court, by written opinion and order dated November 9, 1987, granted Harry's motion for summary disposition. The court premised its decision on Allen's failure to file pleadings defending against Mayer's motion. As an alternate ground for its decision, the court stated that as Mattie had both actual and legal notice of the probate of her daughter's estate and she chose not to make any claim to her property, which was included in the assets of Gloria Mayer's estate, she was estopped from "coming to court to retrieve her alleged personal property through action which should have been taken against the estate of her deceased daughter."

IV

The county court premised its grant of summary judgment on two grounds, one on the merits, the other on procedure. As to the procedural reason, the court stated,

[T]he court does immediately note that the pleadings in this cause are completely devoid of any response or answer on behalf of the plaintiff in defense of the motion for summary judgment and is further void of any counter-affidavits or other documentation to voicing the plaintiff's objection to the motion for summary judgment. It is, therefore, the opinion of the court that based upon the pleadings alone, under Rule 56(e) of the Mississippi Rules of Civil Procedure that the court should grant the motion for summary judgment for failure of the plaintiff to file necessary and proper pleadings to defend against same.

Allen states that it was error for the county court to grant summary judgment in favor of Mayer based on her failure to file any response, counter affidavits, or other documentation defending against the motion. She states that in addition to her pleadings, in which she alleged her ownership of the furniture, her deposition was admitted into evidence. Therefore, the record before the lower court was not completely void of any refutation by her.

The record is supportive of Allen's contention. Miss.R.Civ.Pro. 56 provides for summary disposition in cases where no genuine factual dispute between the parties exists. The seminal case construing the procedure to be followed before summarily disposing of a case is Brown v. Credit Center, Inc., 444 So.2d 358 (Miss.1983). There we stated that a trial court a summary judgment motion is based on the pleadings and any affidavits, depositions, and other forms of evidence relative to the merits of the challenged claim ... that are available at the time the motion is made. The movant under Rule 56 is asserting that on the basis of the record as it then exists, there is no genuine issue as to any material fact.

in considering a motion for summary judgment, must review with the utmost care, all evidentiary matters--pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. Id. at 362. (emphasis added) If, after conducting this review, there exists no genuine issue as to any material fact, then the moving party is entitled to judgment as a matter of law. Id. In accord is the advisory comment following the Rule, which states,

Miss.R.Civ.Pro. 56 advisory comment (1990) (emphasis added).

Trial courts are admonished to avoid granting such judgments where to do so would be in derogation of a party's constitutional right to trial by jury. Brown v. Credit Center, Inc., 444 So.2d at 362. The Brown Court advised, also, that summary judgment motions be granted with great caution. Finally, we have noted that "[e]ven where the test prescribed in [Rule 56] for granting a summary judgment appears to have been met in its entirety, a judge is not ordinarily required to...