Little v. Richey

• Decision Date: 07 November 2017
• Docket Number: NO. 2016–CA–01423–COA,2016–CA–01423–COA
• Parties: Anthony LITTLE, Appellant v. Donald RICHEY and Nancy L. Richey, Appellees
• Court: Mississippi Court of Appeals

230 So.3d 336

Anthony LITTLE, Appellant

v.Donald RICHEY and Nancy L. Richey, Appellees

NO. 2016–CA–01423–COA

Court of Appeals of Mississippi.

November 7, 2017

ATTORNEY FOR APPELLANT: SARAH CLINE STEVENS

ATTORNEYS FOR APPELLEES: L. BRADLEY DILLARD, JOHN M. CREEKMORE

BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.

CARLTON, J., FOR THE COURT:

¶1. After a trial held on June 30, 2016, the Monroe County Chancery Court granted Donald and Nancy Richey's complaint seeking to quiet and confirm title and asserting a claim of adverse possession against Anthony Little.

¶2. Anthony now appeals, asserting the following assignments of error: (1) the trial court abused its discretion in denying his motion for additional time to conduct discovery; (2) the Richeys failed to prove each element of their adverse-possession claim by clear and convincing evidence; and (3) the trial court abused its discretion in admitting the deposition of witness Sherry Bortz into evidence.

¶3. Finding no error, we affirm the trial court's judgment.

FACTS

¶4. On January 26, 2011, Donald and Nancy filed a complaint in the Monroe County Chancery Court asserting a claim of adverse possession and seeking to quiet and confirm title to real property. The Richeys initially filed the complaint against Tim Little and any unknown persons having any legal or equitable interest in the real property located in Monroe County, Mississippi. The chancellor later granted the Richeys' motion to join Tim's son, Anthony Little, as a defendant. The agreed order granting the Richeys' motion to join Anthony as a defendant was executed by Bradley Dillard, counsel for the Richeys, and Timothy Ervin, counsel for Tim. The record shows that Timothy Ervin also signed the order as counsel for Anthony.

¶5. The chancellor held a trial on the matter on April 21, 2016. The chancellor dismissed Tim as a defendant due to the fact that he no longer owned the property in question. At that time, Anthony informed the chancellor that Ervin did not, and never had, represented him in the matter at issue. Anthony requested a continuance in order to retain additional counsel.

¶6. The chancellor granted the request and continued the case until June 30, 2016, so that Anthony could retain additional counsel. After moving the trial date to June 30, 2016, the chancellor cautioned Anthony:

[U]nless there is an emergency of some kind, there will not be a continuance, so you need to advise your attorney, if you hire one, of the court date so they will be available because we are going to get this case finalized within the next hopefully few weeks as soon as I check my schedule.

¶7. On June 16, 2016, two weeks before trial, Sarah Cline Stevens entered an appearance in the matter on behalf of Anthony and filed a motion for additional time to conduct discovery. The chancellor denied the motion.

¶8. After the trial, the chancellor entered her opinion and judgment on September 1, 2016, finding in favor of the Richeys as to their claim of adverse possession. Anthony now appeals.

STANDARD OF REVIEW

¶9. "This Court employs a limited standard of review when reviewing the decisions of a chancellor." Powell v. Meyer, 203 So.3d 648, 652 (¶ 16) (Miss. Ct. App. 2016). We will only reverse a chancellor's determinations if "they were manifestly wrong, clearly erroneous, or ... the chancellor applied an incorrect legal standard." Id.

DISCUSSION

I. Denial of Discovery

¶10. Anthony argues that the Richeys failed to properly and timely join him as a defendant in the present case. Anthony asserts that, as a result, the chancellor abused her discretion by allowing the case to proceed to trial without adequate time for him to conduct discovery. Anthony also alleges that the chancellor and counsel for the Richeys "coerced" Anthony into waiving his rights to discovery and time to prepare for a trial by soliciting a verbal waiver stipulating his submission to the jurisdiction of the court and waiving all rights to a continuance. Anthony argues that the inability to conduct discovery left him unable to defend himself against the Richeys' claim of adverse possession.

¶11. The Mississippi Supreme Court has held that "[t]he trial court has considerable discretion in matters relating to discovery and its order will not be disturbed unless there has been an abuse of that discretion." Strickland v. Estate of Broome, 179 So.3d 1088, 1094 (¶ 19) (Miss. 2015) ; see also Blossom v. Blossom, 66 So.3d 124, 126 (¶ 9) (Miss. 2011).

¶12. The record reflects that during Tim and Anthony's depositions, the Richeys discovered that Anthony, and not Tim, now constituted the record owner of the property at issue. As a result, the Richeys filed a motion to join Anthony in the action "so that a full adjudication in this cause would be binding on him as well as the other parties." On January 18, 2013, the chancellor granted the Richeys' motion to join Anthony as a defendant. The order granting the motion reflects that Anthony had no objection to the motion. The order also states that Anthony waived service of a summons and complaint on him in the matter. The order provides, in full:

Before the court is a Motion for Joinder of Party filed by [the Richeys], and after having duly considered said Motion and having been advised that attorney Tim Ervin has no objection, nor does proposed Defendant Anthony Little have any objection to same, the court hereby finds that said Motion for Joinder of Party is hereby well taken and should be granted. It is, therefore,

ORDERED AND ADJUDGED that Anthony Little is hereby joined as a party Defendant in this cause, waiving service of a Summons and Complaint on him in this matter.

IT IS FURTHER ORDERED AND ADJUDGED that Defendant Anthony Little may simply adopt the answer of Co–Defendant Tim Little, or may file his own answer as he deems appropriate.

SO ORDERED this the 18th day of January, 2013.

¶13. The record shows that the order was executed by counsel for the Richeys, and by Ervin as counsel for Tim and as "attorney for Defendant Anthony Little." Anthony acknowledged that Ervin signed the order as counsel for him and his father, Tim, but Anthony now maintains that Ervin never actually represented him. Anthony also claims that he never received notice of the January 18, 2013 order. Anthony's argument fails to address the notice given to him in court on April 21, 2016.

¶14. The record reflects that at the initial April 21, 2016 trial date, counsel for the Richeys did not dispute that Ervin never represented Anthony. However, counsel for the Richeys argued:

[Anthony] was joined as a party in January of 2013. This case was filed in January of 2011, so it's been pending for over five years; over three years since [Anthony] has been a party. Apparently, at no point during the course of this case has [Anthony] made any effort to get his own independent counsel.

¶15. Counsel for the Richeys also asserted that Anthony provided a deposition in the matter and argued that "[t]his case has been pending, he's here today, so there was no reason for us to serve him with anything else once that order was entered." Ervin also testified that he "never represented [Anthony] in the litigation at all.... He's not retained me, he's not paid me at all in this litigation."

¶16. At the April 21, 2016 trial, the chancellor questioned both Ervin and counsel for the Richeys about whether Ervin's signature executing the January 18, 2013 order therefore bound Anthony to the order. The chancellor ultimately opined "that there is no alternative but to continue the case." The chancellor continued the case to June 30, 2016, and informed Anthony that he is "now aware of the fact that [he is] a party in the suit," and instructed him to retain an attorney. The chancellor also advised Anthony that she was going to set the case for hearing, and stated that "[u]nless there is an emergency of some kind, there will not be a continuance, so you need to advise your attorney, if you hire one, of the court date so that they will be available[.]"

¶17. Ervin also informed the chancellor that once Anthony obtained counsel, Ervin intended to furnish the attorney with "everything [Ervin possessed] up until this date ... because ... [Anthony has] given a deposition in the past." Significant to the resolution of this instant case, Anthony also executed a waiver of service of process on April 26, 2016, which stated that Anthony had "voluntarily enter[ed] his appearance in this matter and acknowledge[d] his status as a defendant pursuant to a January 18, 2013 order joining him as a party, waiving service of process in this cause." Accordingly, we find that the record reveals that Anthony indeed entered a personal appearance, waived service of process, and acknowledged his status as a defendant. Notably, Anthony raised no objection to the January 18, 2013 order joining him as a defendant.

¶18. On June 16, 2016, two weeks before trial, Stevens entered an appearance in the matter as counsel for Anthony and filed a motion for additional time to conduct discovery. After considering the motion and after a telephone conference, the chancellor entered an order on June 23, 2016, denying the motion. The record shows that Stevens again renewed her motion for additional time at the start of the June 30, 2016 hearing, which the chancellor again denied, explaining that she had "denied that [motion] during our phone conference and that remains the decision of the court, and [she] gave the reasons at that time.... Those reasons continue to exist."¹

¶19. In Robinson v. Brown, 58 So.3d 38, 42 (¶ 10) (Miss. Ct. App. 2011), this Court held that "the decision to grant or deny a continuance is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion that resulted in a manifest injustice." On appeal, "[t]his Court will not reverse the denial of a continuance absent a finding of prejudice." Id. Furthermore, as previously stated, the supreme court has held that "[t]he trial court...