Dorman v. Power, 2014-CA-01705-COA

• Decision Date: 18 October 2016
• Docket Number: NO. 2014-CA-01705-COA,2014-CA-01705-COA
• Citation: 203 So.3d 33
• Parties: Arlan Dorman, Appellant v. Artis Franklin Power, Earl Baker, Sharon Humphries, Robert E. Weathersby, III, and Cynthia Paris Weathersby a/k/a Cindy P. Weathersby a/k/a Cynthia Renee Paris Weathersby, Appellees
• Court: Mississippi Court of Appeals

203 So.3d 33

Arlan Dorman, Appellant

v.Artis Franklin Power, Earl Baker, Sharon Humphries, Robert E. Weathersby, III, and Cynthia Paris Weathersby a/k/a Cindy P. Weathersby a/k/a Cynthia Renee Paris Weathersby, Appellees

NO. 2014-CA-01705-COA

Court of Appeals of Mississippi.

October 18, 2016

JAMES H. ARNOLD JR., FOR APPELLANT.

ARTIS FRANKLIN POWER (PRO SE), CHARLES HAYS BURCHFIELD, JASON EDWARD DARE, FOR APPELLEES.

EN BANC.

CARLTON, J., FOR THE COURT:

¶ 1. Arlan Dorman filed suit against Artis Power, Robert and Cynthia Weathersby, Earl Baker, and Sharon Humphries to confirm title and remove cloud on title to two parcels of land. The defendants filed a motion for summary judgment, which the chancellor granted. Dorman now appeals, asserting the following assignments of error: (1) the chancellor erred in granting summary judgment on Dorman's fraud claim as well as the claim of inadequate consideration; (2) to the extent that Dorman's complaint failed to plead fraud with sufficient particularity, the defect was corrected by the affidavit provided by Dorman as well as a motion to amend to which a sworn complaint was attached; and (3) the chancellor erroneously dismissed Dorman's adverse-possession claim based on a typographical error.

Finding no error, we affirm.

FACTS

¶ 2. In May 2008, Dorman filed suit against Power to confirm title and remove cloud on title to two parcels of land in Montgomery County, Mississippi: (1) a thirteen-acre tract and (2) an eleven-and-a-half-acre tract. Dorman conveyed the property to Power by a warranty deed entered in the land records of Montgomery County on January 7, 2008. In his complaint, Dorman alleged that the warranty deed should be set aside because "[Dorman] was not given adequate compensation and through fraud was deceived by [Power] into signing the deed to him." When Power failed to file an answer, Dorman received a default judgment in July 2009.

¶ 3. Over a year later, in August 2010, Robert and Cynthia Weathersby filed a motion to set aside the judgment on the grounds that Dorman failed to provide notice to the Weathersbys, as rightful owners of the property at issue, of his May 2008 complaint. The Weathersbys also claimed that the land at issue was no longer owned by Power. In their motion, the Weatherbys stated that they possessed fee-simple-absolute title and ownership in and to the 24.7 acres of land at issue by virtue of, and through the conveyance from, Earl Baker and Sharon Humphries by a warranty deed dated March 12, 2008. The record reflects that Baker and Humphries received their ownership of the property by virtue of a warranty deed from Power dated January 29, 2008.

¶ 4. On May 10, 2011, the chancellor set aside the previous judgment in favor of Dorman and granted "ownership, use, and possession" of the property to the Weathersbys. The chancellor granted Dorman leave to amend his petition. The record contains no appeal by Dorman of the chancellor's order.

¶ 5. On May 11, 2011, Dorman filed an affidavit written by Mary Fulgham. In her affidavit, Fulgham stated that she was present when Power gave Dorman the warranty deed to sign. According to Fulgham, Power represented to Dorman that the deed was for a five-acre tract of land with a residence on it when, in fact, the deed described some twenty acres. Fulgham also stated that Power did not pay Dorman any money for the conveyance.

¶ 6. In June 2011, Dorman filed an amended complaint naming Power, Baker, Humphries, Robert, Cynthia, and BankPlus as defendants (hereinafter collectively referred to as "the Weathersbys"), and requesting the chancellor to "adjudicate [Dorman] to be the sole owner by record title or in the alternative by adverse possession" of the property. Dorman stated that he "has been in continuous and uninterrupted occupation and possession of the subject property" since January 7, 2004, during which time his use of the property "has been exclusive and peaceful, open and notorious and undisputed." Dorman also asserted that Power filed to provide him with adequate compensation for the deed and "through fraud was deceived by [Power] into signing the deed to him."¹ Baker and Humphries filed an answer to Dorman's amended complaint on June 28, 2011.

¶ 7. The Weathersbys filed a motion for summary judgment on February 22, 2012. Dorman filed his response to this motion on March 7, 2012, and Dorman again attached the affidavit from Fulgham. Dorman's response to the motion for summary judgment provided that "[Dorman's] claim for adverse possession should include that time that said property was possessed by him upon receiving a deed from his mother and father" conveying to him an interest in the property, along with two other family members, as joint tenants with full rights of survivorship. The record reflects that this deed was conveyed on June 24, 1993. As a result, Dorman asserted that his possession of the property exceeded the ten-year requirement for adverse possession. Dorman attached an affidavit to his response wherein he swore to the truth of the matter.

¶ 8. On May 21, 2012, the chancellor held a hearing on the motion for summary judgment. On July 18, 2012, Dorman filed a motion to amend his complaint. In his motion, Dorman provided that Power defrauded him in the following ways:

Artis Power falsely promised to [Dorman] that in exchange for Dorman giving Power a deed on approximately three acres of Dorman's property that Power would obtain a loan and give Dorman money to work his land including money to repair his bulldozer. Power promised that he would return the deed to Dorman.

... Power further defrauded Dorman by having Dorman sign a deed that gave Power twenty-two acres of Dorman's land rather than the approximately three acres they had discussed. Knowing that Dorman is functionally illiterate, Power presented a deed for twenty-two acres for Dorman to sign and represented to Dorman that the deed Dorman was signing was for three acres.... At the time that Power made these promises and representation[s], Power knew they were false. Dorman, not knowing that Power's promise to obtain a loan and give money was false or that Power had ... Dorman sign away twenty-two acres instead of three, relied on Power's promises and representation. Dorman had a right to rely on Power's promises and representations and these promises and representations were material in that Dorman would not have handed over the deed had Power not made them. Power, however, never made good on his promise to obtain a loan and give Dorman the money and then return the deed to Dorman. Instead Power sold the land to codefendant Earl Baker. Dorman received nothing in exchange for giving Power the deed and when Dorman demanded that Power return the deed, he refused to do so.

... Dorman suffered damages in that he was defrauded out of twenty acres of land and got nothing in return. These damages were proximately cause[d] by Power's fraudulent promises and misrepresentations.

The record reflects no ruling by the chancellor on this motion.

¶ 9. On September 22, 2014, following a hearing, the chancellor granted the motion for summary judgment in favor of the Weathersbys and entered an order stating that "any and all clouds on the title to the property ... are hereby lifted ... and title is hereby confirmed in [the Weathersbys]." The chancellor further held that Dorman's claim for adverse possession failed because "Dorman has not possessed and/or occupied the property at issue ‘continuous[ly] and uninterrupted for a period of ten years.’ "

¶ 10. Regarding Dorman's claims for fraud and fraudulent misrepresentation, the chancellor determined that the issue "is ripe for dismissal because Dorman has failed to plead such claim with specificity pursuant to [Mississippi Rule of Civil Procedure] 9(b)." Finally, the chancellor held that Dorman's claim for inadequate compensation failed "because [Dorman] acknowledged adequate consideration was provided in the [w]arranty [d]eed, and he has not submitted evidence to defeat the rebuttable presumption that consideration exists." On October 16, 2014, the Court entered a final judgment.

¶ 11. Dorman filed a motion for reconsideration on October 22, 2014. The chancellor denied Dorman's motion on December 31, 2014. This appeal followed.

STANDARD OF REVIEW

¶ 12. We review a trial court's grant or denial of summary judgment de novo. Grand Legacy LLP v. Gant , 66 So.3d 137, 143 (¶ 17) (Miss. 2011). Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c). Upon review, this Court must view the evidence "in the light most favorable to the party against whom the motion has been made." Grand Legacy , 66 So.3d at 143 (¶ 17).

DISCUSSION

I. Fraud

¶ 13. Dorman argues that the chancellor erred in granting summary judgment. Dorman asserts that he was induced into signing a deed based on Power's false promises and representations. Dorman specifically alleges that Power defrauded him by promising that if Dorman gave Power a deed on approximately three acres of Dorman's property, Power would then loan Dorman money to work his land and repair his bulldozer. Dorman states that Power promised that he would then return the deed to Dorman. Dorman claims that Power further defrauded him by taking advantage of the fact that Dorman is illiterate, asserting that Power presented Dorman with a deed to sign for twenty-two acres and represented to Dorman that the deed was for only three acres. As a result, Dorman maintains that the chancellor should have set aside the deed that he claims Power fraudulently induced him to sign.

¶ 14. In his appellate brief, Dorman admits that "the original complaint and the amended complaint failed to specify the basis of the fraud." However, Dorman maintains that...