McCorkle v. Loumiss Timber Co.

• Decision Date: 30 May 2000
• Docket Number: No. 1999-CA-01000-COA.,1999-CA-01000-COA.
• Citation: 760 So.2d 845
• Parties: Donald McCORKLE and Mack H. McCorkle, Jr., Appellants, v. LOUMISS TIMBER COMPANY, W.B. Netterville, Foster Creek Corporation, Timberland Management Services, Inc., K & J Logging, Inc. and J & N Timber, Inc., Appellees.
• Court: Mississippi Court of Appeals

760 So.2d 845

Donald McCORKLE and Mack H. McCorkle, Jr., Appellants, v. LOUMISS TIMBER COMPANY, W.B. Netterville, Foster Creek Corporation, Timberland Management Services, Inc., K & J Logging, Inc. and J & N Timber, Inc., Appellees.

No. 1999-CA-01000-COA.

Court of Appeals of Mississippi.

May 30, 2000.

Samuel P. Westmoreland, Hattiesburg, Attorney for Appellants.

David N. Wilkerson, Woodville, Gene Horne, Centreville, Attorneys for Appellees.

BEFORE SOUTHWICK, P.J., BRIDGES, AND IRVING, JJ.

SOUTHWICK, P.J., for the Court:

¶ 1. In earlier litigation, a father brought suit against his adult children to have a recorded option agreement removed as a cloud on his title to certain real property. The final judgment upheld the option and required the father to permit its exercise. Before that judgment was entered, two of the children brought this damage action against companies who had cut timber on this same land and paid only the father. The timber had been cut almost a year before the purchase option was exercised. The chancery court dismissed the complaint, finding a failure to state a claim, lack of standing and no cause of action. On appeal the sons allege error. We agree in part, as we find that the claim of tortious interference with a contract was sufficient to withstand the motion for dismissal. However, the rest of the present action is barred by the final and unappealed judgment in the earlier litigation. We thus affirm the dismissal of all other claims.

FACTS

¶ 2. Mack H. McCorkle, Sr., the father of the appellants, owned property in Amite County. In early 1994, Mr. McCorkle, Sr., decided to sell the timber growing on his land. He hired Timberland Management Services, Inc., to cruise the property and provide an estimate of the value of the timber. According to affidavits in the record, Timberland did nothing beyond what was necessary to provide the estimate and was not involved in the actual timber cutting. ¶ 3. After receiving the estimate, Mr. McCorkle, Sr., sold the timber to W.B. Netterville. Defendant LouMiss Timber Company stated in discovery that it provided the funds that Netterville used for the purchase. These two defendants state that they and their agents cut and removed the timber. The role of other defendants is unclear. J & N Timber, Inc., filed an answer denying all allegations, apparently including the general allegation that it had any connection to this timber cutting. Foster Creek Corporation never appeared and an entry of default was made by the chancery clerk; no default judgment was ever granted. K & J Logging apparently was never served. Of the four defendants participating in the suit, Netterville, LouMiss, and J & N are all represented by the same counsel, while Timberland is separately represented.

¶ 4. Mr. McCorkle, Sr., was paid approximately $150,000 for the harvested timber. The timber cutting began in mid-May 1994 and was finished one month later.

¶ 5. On March 17, 1994, which was prior to the cutting and perhaps was prior to Mr. McCorkle, Sr.'s contact with Timberland to cruise the timber, two of Mr. McCorkle, Sr.'s sons filed an April 5, 1972, "Agreement" among the deed records of Amite County. As will be described, the ambiguous Agreement was between the father and his sons James McCorkle, who died in about 1977, and the appellant Mack McCorkle, Jr. James McCorkle was found to have been given the right under the 1972 Agreement to purchase a 100/215 interest in the property for $30,000, while Mack McCorkle, Jr., was found to have a right to purchase a 115/215 interest for $35,000. After this suit began, Mack McCorkle, Jr., assigned his right to his brother Donald. The sons' view is that the Agreement was notice that they had an ownership interest in the property. Mr. McCorkle, Sr., filed suit to cancel the agreement as a cloud on his title. The defendants were Donald and Mack McCorkle, Jr., as well as the other heirs of the deceased brother James, who appear to be other brothers and a sister. The answer asserted that the defendants owned the property. They counter-claimed against their father for the wrongful cutting of timber. The defendants, including the two brothers who are parties here, sought an accounting of the value of the timber removed, and actual and statutory damages.

¶ 6. This earlier litigation between the father and his children went to trial in April 1995, long after the timber cutting at issue on this appeal was completed. The chancellor held that the Agreement gave the promisees, James and Mack McCorkle, Jr., no present interest in the land but gave them a right to purchase an interest by tendering the price established in the Agreement. The Agreement also permitted a life estate to be retained by Mr. McCorkle, Sr. In the judgment, the heirs of James McCorkle were given 90 days to exercise the option to purchase the 100/215 interest to which he had been entitled, or else the right of purchase would terminate. The counterclaim was dismissed with prejudice on May 25, 1995, and no appeal was taken. It is now a final judgment.

¶ 7. There is no assertion nor evidence that the right that James McCorkle had under the 1972 Agreement to purchase a 100/215 interest in the subject property has ever been exercised. If not, then that right has expired. The purchase price for the 115/215 interest in the property was tendered, but Mr. McCorkle, Sr., would not execute a deed. After a court order, the interest was deeded by the chancery clerk to Mack McCorkle, Jr., on February 15, 1996, reserving to Mack McCorkle, Sr., a life estate. This remainder interest in turn was conveyed by Mack, Jr., to Donald McCorkle.

¶ 8. Of significance to the present litigation, the judgment in the earlier suit dismissed the counterclaim brought by Donald and Mack McCorkle, Jr., that had sought damages from their father for the timber cutting. They asked for an accounting for all the money that their father had acquired and a judgment for all timber taken. They also claimed statutory damages for the trespass and punitive damages for their father's "wilful and malicious failure" to pay them for the timber. In the May 1995 judgment on the first suit, the chancellor dismissed that counterclaim with prejudice. The reason was that the 1972 Agreement was "prospective in nature."

¶ 9. On March 16, 1995, Donald and Mack McCorkle, Jr., filed suit only against LouMiss Timber Company alleging wrongful cutting of the timber located on Mr. McCorkle, Sr.'s property. Thus this suit was filed before the prior suit went to trial. The remaining parties were added through two amended complaints. All of the defendants moved for summary judgment citing the May 25, 1995 judgment as a basis for application of the doctrines of res judicata and collateral estoppel.

¶ 10. On May 11, 1999, the chancellor rejected the grounds of res judicata and collateral estoppel. However, the chancellor found that the sons had failed to state a claim upon which relief could be granted and that they lacked standing to sue. Both decisions were based on the revelations in their own pleadings that they did not have any interest in the land and timber until after the timber had been cut. The complaint was dismissed with prejudice. The trial court specifically cited its May 25, 1995 judgment as a basis for dismissing the complaint, a judgment attached as an exhibit to the complaint. It is from this order dismissing their complaint that the McCorkle sons appeal.

DISCUSSION

¶ 11. The McCorkle sons assert that the trial court used the doctrines of res judicata and collateral estoppel as the basis for dismissing their complaint despite the court's assertion that it was not. They then allege that the application of these doctrines was erroneous. The chancellor in his order specifically stated that the res judicata and collateral estoppel did not apply to this case because there was no identity of parties. Whether deep in the recesses of the chancellor's mind he truly believed that res judicata or collateral estoppel actually applied is not a productive inquiry. What we will review is whether the grounds explicitly named by the chancellor uphold the result. Only if we conclude that the chancellor erred in his legal analysis would we consider other possible bases to uphold the judgment.

I. Judgment on the Pleadings

¶ 12. The chancellor dismissed the complaint because of a failure to state a claim on which relief may be granted. Civil Rules 12(b)(6) and 12(c) serve similar functions of testing the legal sufficiency of the plaintiff's allegations. M.R.C.P. 12(b)(6) & 12(c); Holland v. Kennedy, 548 So.2d 982, 984 n. 3 (Miss.1989). We are presented with a question of law that we review de novo. City of Tupelo v. Martin, 747 So.2d 822, 829 (Miss.1999).

¶ 13. Rule 12(c) states that "after the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If... matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment...." M.R.C.P. 12(c). The motion was not granted until all pleadings were filed, and there is no evidence that the chancellor considered any matters outside the pleadings. Thus Rule 12(c) was an appropriate instrument to use. Whether it was used properly is what we must decide.

¶ 14. The McCorkle sons' second amended complaint asserts that the appellees wrongfully cut timber on the subject property from May 1994 through August 1994. The complaint also incorporates the May 25, 1995 judgment which on its face declared that the McCorkle sons did not have an interest in this property until such time as they tendered the purchase price for the land in accordance with the terms of the Agreement. This amended complaint asserts that the purchase price was not tendered to Mr. McCorkle, Sr., until August 1995.

¶ 15. Thus the plaintiffs' own pleadings agree that they had only the right to...