Breland v. Turnage

• Decision Date: 14 June 2022
• Docket Number: 2021-CA-00698-COA
• Citation: 341 So.3d 1021
• Parties: Jason BRELAND, Appellant v. Joseph C. TURNAGE, Appellee
• Court: Mississippi Court of Appeals

341 So.3d 1021

Jason BRELAND, Appellant

v.Joseph C. TURNAGE, Appellee

NO. 2021-CA-00698-COA

Court of Appeals of Mississippi.

June 14, 2022

ATTORNEY FOR APPELLANT: WILLAM L. DUCKER

ATTORNEY FOR APPELLEE: JOSEPH LEONARD TURNEY

BEFORE GREENLEE, P.J., LAWRENCE AND McCARTY, JJ.

LAWRENCE, J., FOR THE COURT:

¶1. On February 12, 2004, Verdie Regan (Regan) conveyed 34.75 acres of land to her grandchildren Joseph Turnage (Joseph) and Jerred Turnage (Jerred). She also conveyed an adjoining 34.75 acres to her grandson Jason Breland (Breland). She reserved a life estate in both parcels. On October 8, 2007, Jerred conveyed his interest to his brother, Joseph. On December 1, 2018, Regan entered into a "Timber Harvest Agreement" with Williamson and Son Logging LLC, and the company began clear-cutting timber from all seventy acres of the land. Joseph, who was living in Texas at the time, was not informed of this agreement. He later learned about the clear-cutting, traveled to the property, and told the company to stop cutting. The company continued cutting until all the timber was removed. The money for the timber was given to Breland. Joseph sued Breland. On January 26, 2021, a trial was held. At the conclusion of the trial, the chancellor ruled in favor of Joseph and ordered Breland to pay Joseph one-half of the money he had received. Breland appealed this decision and argues: (1) the chancellor erred in denying his motion challenging jurisdiction; (2) the chancellor erred in determining damages; and (3) the chancellor erred in "overruling [Breland's] Motion Objecting to Certain Testimony of the Appellee Joseph Turnage because of Rule 404(b)(2) of [the] Mississippi Rules of Evidence."

FACTS

¶2. On February 12, 2004, Regan conveyed 34.75 acres of land to her grandchildren Joseph and Jerred. Regan reserved a life estate in the land. On October 8, 2007, Jerred signed a quitclaim deed, transferring his property interest in the 34.75 acres to Joseph. "Simultaneously," Regan conveyed an "adjoining parcel" of 34.75 acres to her grandson Breland and reserved a life estate in the land.

¶3. On December 1, 2018, Regan entered into the "Timber Harvest Agreement" with Williamson and Son Logging LLC to "clear cut" all seventy acres of the land, which included the 34.75 acres in which Joseph held a vested remainder. Joseph was not informed of this contract, and he was never shown the contract. In January 2019, Joseph was notified by his sister, Courtney Lemus (Courtney), that the land was being clear-cut. Joseph went to the land and spoke to Ryan Williamson (Williamson). Joseph told Williamson to stop cutting the timber. When this conversation occurred, half of the timber was still standing.

¶4. Williamson contacted Joseph's attorney, Joseph Turney (Turney), and Breland's brother, Jeffrey Breland (Jeffrey).

After conversations with both men, Williamson continued cutting the timber. When the clear-cutting was completed, Williamson and Son Logging LLC sent Breland four checks, totaling $55,620.81. Joseph was never given any money for the clear-cutting of the timber. Joseph filed a complaint on February 4, 2019, against Breland, Regan, Tami Breland (Tami), and Debra Pyke (Pyke). Regan died during the litigation, and she was dismissed as a party. On September 22, 2020, prior to the trial, Joseph sold his 34.75 acres to his sister Courtney and her husband Julio Lemus (Julio).

¶5. On January 26, 2021, a trial was conducted in chancery court. Joseph called seven witnesses.

1. Joseph Turnage

¶6. On direct examination, Joseph testified that he had a vested remainder interest in 34.75 acres of land at the time of timber cutting, and Regan held a life estate for that same parcel. Joseph stated that he was not told about a contract to clear-cut the property. Joseph stated that he first learned that the timber was being cut through his sister Courtney. Once he learned about the clear-cutting, Joseph and his wife, Ann Turnage (Ann), drove to the property. Joseph testified that when he arrived, he spoke to "the guy cutting" the land¹ and said that "it wasn't to be cut." Joseph stated that there was still "standing timber" on the property when he left. He testified that he has not been paid for any of the timber that was clear-cut from the property. Joseph testified that Breland was the only person who got paid for the profit from the clear-cutting. Joseph stated that he sold the clear-cut property to Courtney for less than what he would have sold it for if the timber were still on the land.

¶7. On cross-examination, Joseph testified that he was not a party to the timber contract. Joseph was asked, "Of what crimes do you stand convicted?" Joseph's attorney objected. Breland's attorney argued that Joseph's prior convictions were important to impeach Joseph. The prior convictions were for child fondling and simple assault. The court asked Breland's attorney what his purpose was for introducing the evidence of Joseph's prior convictions, and Breland's attorney responded, "Credibility." The court responded, concluding, "Mississippi Rules of Evidence prohibit evidence of a particular crime— it's not admissible to prove character ... so I'm going to sustain the objection and exclude questioning about those ... [and] it's close to the ten-year period that it ... needs to be excluded." On redirect, Joseph was asked, "[W]hat did that timber mean to you?" Joseph responded, "Security for future."

2. Ann Turnage

¶8. On direct examination, Joseph's wife Ann testified that she and Joseph never knew about the timber contract until Courtney called her and said, "I didn't know y'all were getting the timber cut." Ann stated that after the call, she and Joseph drove to the property in Mississippi.² She testified, "We got copies of the deeds. We took them out to the logger that was there and said, look, this is not their property. [Regan] doesn't have a right to cut the timber on it." Ann testified that when they left, after telling the logger to stop, there was still timber standing. Ann stated that the logger called Jeffrey who told the logger to "keep on cutting."

¶9. On cross-examination, Ann testified that she and Joseph asked Williamson to stop cutting the trees, and they referred him to their attorney, Turney. On re-direct, Turney asked Ann, "[D]o you recollect the discussion we had over the varying right to cut timber when there's a life estate on the property?" Ann stated that she did remember. Turney asked her if she remembered talking to him about how "a life estate owner has a very limited right to cut timber for a very specific purpose." Ann responded that she remembered, and she also had researched this issue.

¶10. The court also questioned Ann. The court asked who paid taxes on the land, and Ann testified that Regan still paid the taxes.

3. Felicia Alford

¶11. On direct examination, Felicia Alford (Alford), a caretaker of Regan, testified that Regan's memory was fading. Alford also testified that she worked with Jeffrey's wife Tami in providing care to Regan. Alford testified that Tami paid her.

4. Linda Melendez

¶12. On direct examination, Linda Melendez (Melendez), another caretaker of Regan, testified that she helped Tami take care of Regan. Melendez testified that she "did not know about nobody cutting no timber or none of that until all this started coming out." Melendez also stated that Regan was not "aware of things like she used to be." On cross-examination, Melendez stated that she knew Tami had power of attorney to handle Regan's affairs.³

5. Tami Breland

¶13. On direct examination, Tami, Jeffery's wife, testified that she "helped take care of [Regan], paid [her] bills," and "just went and checked on her." She testified that she had seen Regan almost every day for the last two years of Regan's life. Tami testified that she was the only person who paid the caregivers. Tami stated that she did not give Regan a timber contract, nor was she present when Regan was presented with a timber contract. Tami testified that she was never given any money from the timber cutting, Regan was never given any money from the timber cutting, and Tami was not "asked to assist in getting that timber contract executed." Tami also testified that Jeffrey never received any funds from the timber cutting, and he did not benefit from the clear-cutting in any way.

6. Jeffrey Breland

¶14. On direct examination, Breland's younger brother Jeffrey stated that he and his wife lived next to Regan, so they took care of her. Jeffrey was asked, "[I]t has been alleged in this matter that you took part in getting [Regan] to sign a timber contract. Is that accurate?" He responded, "I don't know about signing a contract. I know she ... told me she was having timber cut and such." Jeffrey testified that he was not present when the contract was signed. He testified that for a few years Regan had expressed a desire to have the timber on the seventy acres cut. Jeffrey testified that he told Regan "who was reputable" to hire for clear-cutting land. Jeffrey said he was not "aware" of any unpaid taxes, repairs, or maintenance needs associated with the property. On cross-examination, Jeffrey was asked if he was "ever hurt by helping your grandmother, or did you ever make any request on other family members that they denied?" Jeffrey responded, "No."

¶15. On redirect examination, Jeffrey testified that Pyke and Breland never offered to deposit proceeds from the timber cutting into his bank account. Jeffrey also testified that the "logger had given me some papers, said they were for taxes and things that had to be taken care of before he could cut the timber .... I don't know what was in there if there was a contract in there or it was taxes or something to do with taxes." He said he gave these documents to either Pyke or Breland.

¶16. The court asked Jeffrey, "Why cut the timber?" Jeffrey responded, "My grandmother wanted to cut it; said she wanted to cut it; said she wanted to give my mother, [Pyke], the money because ...