Nethery v. Estate of Nethery

• Decision Date: 13 May 2014
• Docket Number: No. 2013–CA–00013–COA.,2013–CA–00013–COA.
• Citation: 146 So.3d 999
• Parties: Greg NETHERY, Administrator of the Estate of Wilbur Glen Nethery, Deceased, and Greg Nethery, Individually Appellants v. The ESTATE OF Doris NETHERY, Deceased, and William W. Dreher, Executor of the Estate of Doris Nethery, Deceased, Appellee.
• Court: Mississippi Court of Appeals

146 So.3d 999

Greg NETHERY, Administrator of the Estate of Wilbur Glen Nethery, Deceased, and Greg Nethery, Individually Appellants

v.The ESTATE OF Doris NETHERY, Deceased, and William W. Dreher, Executor of the Estate of Doris Nethery, Deceased, Appellee.

No. 2013–CA–00013–COA.

Court of Appeals of Mississippi.

May 13, 2014.

Rehearing Denied Sept. 9, 2014.

Wynn E. Clark, Pascagoula, attorney for appellants.

Frank P. Wittmann III, William W. Dreher Jr., Gulfport, attorneys for appellee.

Before IRVING, P.J., CARLTON and MAXWELL, JJ.

Opinion

CARLTON, J., for the Court:

¶ 1. This appeal stems from the Hancock County Chancery Court's order granting the motion to dismiss a probate claim against the Estate of Doris Nethery for attorney's fees. The chancellor set aside the divorce between Wilbur Glen Nethery and his wife, Doris, upon a motion by Greg Nethery, Glen's son and guardian at the time. Greg and Glen's Estate (Appellants) argue that the chancellor erred in granting the motion to dismiss, claiming that the chancellor granted relief based on a ground Doris's Estate failed to raise or argue in the motion to dismiss. Upon review, we find the probate claim for attorney's fees barred by the ordinary principles of res judicata.¹ We therefore find no error in the chancellor's dismissal of that claim, and we affirm.

¶ 2. After the perfection of the instant appeal of the denial of the disputed probate claim, the chancellor appointed Greg as administrator of Glen's Estate, relieving the previously appointed chancery clerk² from those duties.³ Then, consistent with the chancellor's appointment, this court granted the motion to substitute Greg as administrator on appeal.⁴

¶ 3. Also, during the appeal of this case, Appellants filed a motion requesting this Court to strike a September 18, 2013 letter from Doris's Estate to this Court. We passed this motion for consideration of the merits. In their motion, Appellants claimed that the letter from Doris's Estate constituted an improper argument and also a violation of Mississippi Rules of Appellate Procedure 28(k), 28(c), and 2(b). In the motion to strike, Appellants also requested an award of attorney's fees as a sanction against Doris's Estate and its attorney for violating the rules of appellate procedure. See M.R.A.P. 2(b). Upon due consideration of this motion, we grant Appellants' motion to strike this letter from the record and from any consideration on appeal of this matter. However, we deny the requested relief and sanction of attorney's fees.

FACTS

¶ 4. Glen and Doris married on October 7, 1987. On May 4, 2006, Doris brought Glen to Attorney William Dreher Jr.'s law offices. At the time, Glen was seventy-four years old and suffering from Alzheimer's disease. Dreher testified that Doris expressed concern over shielding her assets against a claim by Social Security in the event Glen was placed in a nursing home. After meeting with Doris and Glen, Dreher telephoned another attorney, Cecil Woods, and informed Woods that he was sending Doris and Glen to meet with Woods to obtain a divorce. Dreher also explained to Woods that a question arose as to Glen's mental capacity. Doris brought Glen to Woods's office on May 4, 2006, and later that same afternoon they signed a joint complaint for divorce. Doris obtained a judgment of divorce on July 24, 2006, with an attached “Property [-]Settlement Agreement.”

¶ 5. In November 2006, the chancery court appointed Greg, Glen's son, as guardian of Glen after determining that Glen failed to possess the mental and emotional capacity to handle his own affairs. Subsequent to the chancery court entering the judgment of divorce, Doris sold the marital home and placed the joint accounts in her name alone. While visiting with Glen's children during Christmas in 2006, Doris informed them for the first time that she and Glen obtained a divorce.

¶ 6. On January 22, 2007, Greg moved the chancery court for authority to begin legal action to set aside the divorce and file suit against Doris for fraud, negligent misrepresentation, imposition of a constructive trust, conversion, and a temporary restraining order. The chancellor granted Greg the authority to take such action.

¶ 7. On January 23, 2007, Greg moved to vacate the judgment of divorce, claiming that Glen suffered from dementia caused by Alzheimer's disease ; that Doris engaged in risky investment transactions using marital funds without Glen's consent or knowledge; that Doris obtained a no-fault divorce and turned Glen over to his children with no money or property; and that Doris obtained the divorce and property settlement as a result of fraudulent conduct. Greg also filed suit against Doris in chancery court, claiming that Doris obtained the 2006 divorce and property-settlement agreement by fraud and inequitable conduct.

¶ 8. The chancellor consolidated the cases and granted a temporary restraining order, prohibiting Doris from disposing of property other than for reasonable necessaries. The chancellor conducted a telephone hearing on November 16, 2007, after a contested hearing on the motion to set aside the divorce. The chancellor determined that the divorce and property-settlement agreement resulted from overreaching and inequitable conduct, and set aside the divorce judgment and property-settlement agreement.

¶ 9. On January 30, 2008, the chancellor entered an order granting the motion to set aside judgment of divorce. On February 8, 2008, the Greg filed a complaint to set aside a deed from Doris to third parties by which Doris conveyed the Hancock County marital home without Glen's signature, in violation of Mississippi Code Annotated section 89–1–29 (Rev.2011). Greg also moved to recover legal fees from the divorce proceedings. However, Greg failed to obtain a ruling from the court on his motion for legal fees prior to Glen's death.⁵

¶ 10. Glen died on August 13, 2008. Greg petitioned to be appointed administrator of Glen's Estate, but the chancellor appointed Hancock County Chancery Clerk Tim Kellar as administrator of Glen's Estate. The chancellor explained that due to “extreme antipathy and distrust” between Doris and Greg, the chancellor appointed a neutral party to serve as administrator.

¶ 11. On September 30, 2008, the chancellor entered an order denying the motion for legal fees, acknowledging Greg's lack of standing to file the motion, since Glen died on August 13, 2008, and Greg was not the administrator of Glen's Estate.⁶ The chancellor stated that $30,000 would constitute a sufficient sum for the fees necessary for the legal work to set aside the divorce and property settlement, and explained that the claim for attorney's fees could be sought by Glen's Estate. The record reflects that Greg appealed this order; however, the appeal was later dismissed by agreement of the parties. The record contains nothing to show Glen's Estate ever pursued a judgment for these legal fees. Therefore, the chancellor entered no judgment allowing these attorney's fees.

¶ 12. Doris died on January 9, 2009. Four days later, on January 13, 2009, Attorney Dreher filed a petition to probate Doris's Last Will and Testament, dated September 17, 2008. The will nominated Dreher as executor, and also listed Dreher as a beneficiary with a one-half interest in Doris's Estate under the residuary clause. Dreher published a notice to creditors and filed a proof of publication with the chancery clerk. Glen's Estate filed a claim against Doris's Estate for $30,000 in attorney's fees (stemming from setting aside the divorce and property-settlement agreement) on April 20, 2009.

¶ 13. On May 3, 2009, Doris's Estate moved to dismiss the probate claim, asserting the ground of “failure to prosecute.” After oral argument, the chancery court entered an order dismissing the claim on September 10, 2012. The chancellor ruled that Glen's Estate failed to take action to pursue claims for attorney's fees in the divorce action, “there being no motion before this court in any cause for attorney's fees.” On September 17, 2012, the chancery court entered an order sua sponte vacating the September 10, 2012 order, with respect to the probated claim of Glen's Estate.

¶ 14. On September 26, 2012, the chancellor entered an order granting the motion to dismiss based on a finding that Greg failed to substitute Glen's Estate as a party in the divorce action in order to pursue the attorney's fees. The chancellor explained that an award of attorney's fees

was never ... made by this court since Greg, as guardian of [Glen], appealed the court's ruling then dismissed the appeal, and [Glen's Estate] did not pursue attorney's fees in the divorce action. Thus, attorney's fees were never awarded or reduced to a judgment against Doris Nethery, and therefore the claim for attorney's fees based upon the court's ruling on September 30, 2008 [,] ... is not a valid claim against her estate.

¶ 15. Glen's Estate moved to alter or amend, for a new trial, or for reconsideration. After a hearing on the motion, the chancellor entered an order on October 24, 2012, denying the motion to alter or amend, for new trial, or for reconsideration, and addressed Greg's lack of standing to raise the claim on behalf of his father's Estate. Glen's Estate then filed this appeal.

STANDARD OF REVIEW

¶ 16. This Court will not reverse a chancellor's findings of fact unless they are manifestly wrong or not supported by substantial credible evidence, or the chancellor applied an erroneous legal standard. Columbia Land Dev., LLC v. Sec'y of State, 868 So.2d 1006, 1011 ( ¶ 14) (Miss.2004). “While we give deference to a chancellor's determination of fact, we review the chancellor's determinations of law de novo.” City of Picayune v. S. Reg'l Corp., 916 So.2d 510, 519 ( ¶ 23) (Miss.2005). This Court also employs a de novo standard of review when reviewing a trial court's grant or denial of a motion to dismiss. Farmer v. State of Miss. Dep't of Pub. Safety, 907 So.2d 981, 984 ( ¶ 8) (Miss.Ct.App.2...