O'Brien v. Alfonso

• Decision Date: 27 February 2018
• Docket Number: NO. 2016–CA–01787–COA,2016–CA–01787–COA
• Citation: 240 So.3d 471
• Parties: Keith O'BRIEN, Appellant v. Andy J. ALFONSO, III, Appellee
• Court: Mississippi Court of Appeals

240 So.3d 471

Keith O'BRIEN, Appellant

v.Andy J. ALFONSO, III, Appellee

NO. 2016–CA–01787–COA

Court of Appeals of Mississippi.

February 27, 2018

ATTORNEY FOR APPELLANT: COURTNEY PARKER WILSON

ATTORNEY FOR APPELLEE: ANDY J. ALFONSO III (PRO SE)

EN BANC.

CARLTON, J., FOR THE COURT:

¶ 1. Keith O'Brien filed a complaint to confirm and quiet title, set aside deed, or, in the alternative, reform deed, and for damages against Michael Rogers, Mary Ann Rogers, real-estate attorney Andy J. Alfonso III, Coldwell Banker Alfonso Realty Inc., and Cheryl O'Brien (collectively, the Defendants). Keith's complaint also included a claim of legal malpractice against Andy. After a trial, the Jackson County Chancery Court entered a judgment denying relief.

¶ 2. Keith now appeals the chancellor's judgment and argues that the chancellor erred in finding that Keith failed to prove that Andy committed legal malpractice in preparing an allegedly erroneous warranty deed conveying Keith's property. Finding error, we reverse and remand to the chancery court for a determination of damages.

FACTS

¶ 3. In 1998, Keith and his then-wife, Cheryl, purchased 8.9 acres in Jackson County, Mississippi, and constructed a house on the property. The physical address for the house is 6331 Jim Ramsey Road.

¶ 4. In January 2005, Keith and Cheryl decided to sell their house located at 6331 Jim Ramsey Road, along with 2.3 acres of land surrounding the house. Keith and Cheryl listed their house and the acreage with real-estate agent Shirley Willard of Coldwell Banker Alfonso Realty Inc. (Alfonso Realty). The property listing prepared by Shirley reflects a listing price of $198,500 for the 2,400 square foot, three bedroom, 2.5 bathroom house and the 2.3 acres of land.

¶ 5. After listing their house and the 2.3 acres for sale, Keith and Cheryl conveyed 1.23 acres of their remaining property to their daughter and son-in-law, Khristina and Scott Storm, via a quitclaim deed on May 17, 2005. The record shows that this 1.23–acre parcel of land was located in the middle of the 8.9 acres owned by Keith and Cheryl. In deeding the land to the Storms, Keith had the entire 8.9 acres surveyed and then divided into three parcels, each with a different address. For the 1.23–acre parcel of land he deeded to the Storms, Keith established an address of 6325 Jim Ramsey Road. Keith testified that he filed the quitclaim deed and survey in the land records.

¶ 6. The record also reflects that Keith and Cheryl intended to keep the remaining back parcel of land, which consisted of five acres, and build another house. Keith established the address of 6327 Jim Ramsey Road for the remaining five acres of land.

¶ 7. Keith testified that about a month after he and Cheryl deeded the 1.23 acres to the Storms, he received a call from Shirley informing him that she had found a buyer for Keith and Cheryl's house and 2.3 acres. Keith and Cheryl eventually accepted an offer from Michael and Mary Ann Rogers. The record reflects that Mary Ann is Shirley's niece.

¶ 8. Alfonso Realty recommended that Keith retain Andy to prepare the real-estate contract and deed and execute the loan closing on the property.¹ Keith and Andy both testified that they had never spoken to one another prior to the closing in July 2005. The record shows that Shirley communicated with Keith and Andy separately regarding the real-estate transaction. Keith testified that at the closing, he signed the papers provided to him, including the warranty deed prepared by Andy. Keith stated that when he was presented with the warranty deed to sign, no one explained to him what he was conveying through signing the deed.

¶ 9. As we will discuss in length later in this opinion, Andy admitted that an attorney-client relationship existed between him and Keith and the Rogers family. Andy's trial testimony reflects that he failed to discover that Keith had previously deeded the 1.23–acre middle parcel to the Storms. At trial, Andy testified regarding his title search on Keith's property as follows:

Q. When you did your title search, did it not pop up the fact that [Keith], prior to the loan closing, didn't actually own the entire 8.9 acres?

A. I'd have to go back, but there should have probably been a less and—well, not probably. There should have been a less and except for that one point something acres, the Storm property in the middle. That should have appeared on the deed.

Q. But you didn't catch that and put that on the deed?

A. I'm not sure if I did or didn't.

Q. You've ... still got the [w]arranty [d]eed?

A. I do. Yea[h]. It's not in the deed. The less and except is not there.

(Emphasis added).

¶ 10. Keith testified at trial that at the end of 2006, the Rogers family contacted him and complained that they were paying higher-than-normal property taxes for the house and 2.3 acres located at 6331 Jim Ramsey Road. The Rogerses eventually discovered that due to a mistake in the deed, they were paying property taxes for the entire 8.9 acres of property. The record additionally shows that concurrent with the closing of the property, the Rogerses' first deed of trust and first mortgage had already attached to the property.

¶ 11. Keith testified that upon learning of the mistake in the deed, he went to the Jackson County land-records office where he was informed that the deed prepared by Andy conveyed all 8.9 acres to the Rogerses, rather than the 2.3 acres listed for sale. Keith immediately contacted Alfonso Realty and Andy about the error. Keith testified that Alfonso Realty confirmed to him that "when they closed that deed, they closed it on the whole 8.9 [acres]." Keith explained to Alfonso Realty that "there is a chunk of land in the middle that [he] didn't own," referring to the 1.23 acres he deeded to the Storms prior to the real-estate transaction at issue. Keith testified that Alfonso Realty then told him, "[Andy] had done a less and except ... so they just kind of subtracted the 1.23 acres of the Storms out of it and now closed it out with the two unconnected parcels."

¶ 12. Alfonso Realty and Andy assured Keith that they would correct the deed. However, the record reflects that once the Rogerses learned that they owned 8.9 acres, rather than 2.3, they obtained a second mortgage encumbering the entire 8.9 acres.

¶ 13. Andy testified that after Keith alerted him to the incorrect deed, he prepared corrective instruments for Keith to sign. Andy testified that he also had several conversations with Cheryl, as well as the Rogerses, and "none of them would come sign these corrective instruments." However, Keith disputed that Andy ever contacted him to sign corrective instruments. Keith explained that the Rogers family had already encumbered the property with a mortgage upon closing and a second mortgage upon learning that the warranty deed conveyed the entire 8.9 acres, rather than the 2.3 acres intended to be sold. The record also shows that Keith stated that he could not force the Rogers family to convey the property back to him, particularly since the property was encumbered. The record reflects that at trial, the following exchange occurred during Andy's cross-examination of Keith:

Q. You brought me the survey months later after all of this took place and you found out that, I guess, there was a clerical mistake with the deed that was prepared. And, actually, none of my secretaries were there that day. I was there myself. And we met. You brought the surveys to me, we took a look at them, and you asked me to prepare some corrective instruments that we needed to straighten it out. And you pointed out that middle acreage, you pointed out the back five acres, and you pointed out the front acres. After preparing those, I gave you a call to come sign the corrective instruments so we could get something on file down at the courthouse that would put everybody and their grandmother on notice that there was an issue, at least. Why didn't you come?

A. You never approached me about it. In fact, the conversation we had was that you said the Rogers[es] had backed out of signing it. I assure everybody in this courtroom, I would have climbed over brick walls and ran through fire to get down there to sign what you're talking about.

¶ 14. On June 6, 2008, Keith filed his complaint to confirm and quiet title, set aside the deed, or, in the alternative, reform the deed, and for damages against the Defendants in the Jackson County Chancery Court.² In his complaint, Keith alleged that Alfonso Realty breached its contract with Keith and Cheryl by failing to protect their interests and causing them to execute the warranty deed selling all of their property, rather than just a portion, to the Rogerses. Keith also alleged that Andy was negligent in preparing the deed. Keith requested damages for emotional distress, depreciation in the value of his real estate, and inconvenience, as well as attorney's fees.

¶ 15. On November 7, 2008, Keith requested that the chancery clerk enter an entry of default against the Rogerses as a result of their failure to appear, plead, or otherwise defend against Keith's complaint. The record reflects that the chancery court entered the entry of default on November 7, 2008.

¶ 16. On December 19, 2008, the chancery court entered an order transferring the case to circuit court, explaining that after reviewing the pleadings, "the circuit court is the appropriate court to hear this matter." The chancellor stated that because Keith alleged breach of contract against Alfonso Realty and sought both actual and punitive damages, "[t]his matter does not fall within the chancery court's jurisdiction over ‘all matters in equity.’ "

¶ 17. On April 20, 2010, Alfonso Realty filed its motion to dismiss for failure to prosecute or, in the alternative, for summary judgment in the circuit court. Alfonso Realty claimed that Keith "ha[d] taken no steps to prosecute his claim over the twenty-two months this case ha[d] been pending." Alfonso Realty explained that Keith's claim...