Parker v. Livingston

• Decision Date: 07 March 2002
• Docket Number: No. 1999-CA-00813-SCT.,1999-CA-00813-SCT.
• Citation: 817 So.2d 554
• Parties: James E. PARKER, Sr.; Beverly A. Parker; James E. Parker, Sr.; Janice R. Moreland Honeycutt; Debra A. Broxon; Doris O. Rogers; Gloria Van Axelson; Mona Rosa White; Parker Energy Resources, A Florida Corporation; and Parker Family Trust, James E. Parker, Jr., Trustee v. Dan LIVINGSTON; Melvin Burklow; Robert L. Burklow; Eddie R. Burklow; and James Wilson.
• Court: Mississippi Supreme Court

817 So.2d 554

James E. PARKER, Sr.; Beverly A. Parker; James E. Parker, Sr.; Janice R. Moreland Honeycutt; Debra A. Broxon; Doris O. Rogers; Gloria Van Axelson; Mona Rosa White; Parker Energy Resources, A Florida Corporation; and Parker Family Trust, James E. Parker, Jr., Trustee v. Dan LIVINGSTON; Melvin Burklow; Robert L. Burklow; Eddie R. Burklow; and James Wilson.

No. 1999-CA-00813-SCT.

Supreme Court of Mississippi.

March 7, 2002.

Rehearing Denied June 6, 2002.

Rebecca G. Taylor, Jackson, Attorney for Appellants.

Louis B. Lanoux, Jackson, Attorney for Appellees.

Before McRAE, P.J., EASLEY and GRAVES, JJ.

GRAVES, J., for the Court.

¶ 1. This matter is an appeal from the judgment of the Chancery Court of Jefferson Davis County in which the chancellor set aside various transfers of mineral deeds as fraudulent.

FACTS AND PROCEEDINGS BELOW

¶ 2. On June 6, 1990 Dan Livingston, Robert L. Burklow and Melvin Burklow each obtained a summary final judgment in the chambers of the Circuit Court of Santa Rosa County, Florida, against James E. Parker, Sr. ("Parker"). These judgments were for various loans executed between October, 1986 and May, 1987. Nine days later, James Wilson and Eddie R. Burklow obtained similar judgments in the Circuit Court of Santa Rosa County. These individuals will be collectively referred to as the "Plaintiffs." Each judgment was recorded in Florida on the same day it was rendered.

¶ 3. Later the Plaintiffs learned that prior to the entry of the Florida judgments, Parker had transferred certain mineral interests in Mississippi to his wife Beverly and other family members. The Plaintiffs filed papers in the circuit clerk's offices for Lawrence, Lincoln, Jefferson Davis and Simpson counties in November and December of 1991. This was done pursuant to Mississippi's enrollment of foreign judgments statute, Miss.Code Ann. § 11-7-305 (Supp.2001). Unbeknownst to the Plaintiffs at the time, the circuit clerks did not mail the accompanying notices of filing required by the statute.

¶ 4. In January of 1992, the Plaintiffs filed a complaint in the Chancery Court of Jefferson Davis County seeking to set aside as fraudulent, certain conveyances of Mississippi mineral and property interests by Parker to other family members. Named as defendants were Beverly A. Parker, James E. Parker, Sr., Janice R. Moreland Honeycutt, Debra A. Broxon, Doris 0. Rogers, Gloria Van Axelson, Mona Rosa White, Parker Energy Resources, A Florida Corporation, and Parker Family Trust, James E. Parker, Jr., Trustee (collectively "Defendants"). Two years later, on January 11, Parker filed for bankruptcy in the U.S. Bankruptcy Court for the Northern District of Florida. All proceedings in Mississippi were stayed. On August 12, 1994, Parker was discharged from Bankruptcy Court. Shortly thereafter the automatic stay was lifted, which enabled the Plaintiffs to continue their fraudulent conveyance action in Mississippi.

¶ 5. In April 1997, the Jefferson Davis County chancellor issued an order requiring the Plaintiffs to re-enroll their Florida judgments. The chancellor found that the enrollments executed in 1991 did not comply with § 11-7-305. The chancellor reasoned that because the respective clerk's offices had failed to mail notices of the filing to the defendant, the Florida judgments were not liens on the Mississippi properties. The chancellor gave the Plaintiffs thirty days in which to re-enroll their judgments. On April 10 the Plaintiffs filed a "Notice of Mailing of Foreign Judgments" with the Circuit Clerk's offices for Lawrence, Lincoln, Jefferson Davis and Simpson counties.

¶ 6. Fearing the validity of their Florida enrollments might also be attacked, the Plaintiffs attempted to re-enroll their judgments in Santa Rosa County, Florida on June 5, 1997. According to a letter dated July 17th from the Santa Rosa County clerk's office, the Plaintiffs filed copies of the 1990 judgments, but failed to file the accompanying affidavits stating the names and current addresses of the judgment creditors as required by Florida law. Within two weeks, the Defendants filed a motion to dismiss in the Jefferson Davis County Chancery Court based upon the Plaintiffs' purported failure to properly enroll their judgments.

¶ 7. Meanwhile, the Plaintiffs filed a subsequent motion to reconsider the April 7th order based upon a procedural defect in the order's issuance. The Plaintiffs argued that the order did not comply with the Mississippi Rules of Civil Procedure, because the opposing counsel had failed to provide them with a copy prior to its being entered by the court. Both motions were considered by the chancellor who issued a ruling setting aside the April 7th order. The Defendants' motion to dismiss was denied, and trial was set for December 11, 1997. In the interim the Plaintiffs filed a motion for sanctions against the defendants, James E. Parker and Beverly Parker.

¶ 8. On December 11, 1997, the fraudulent conveyance suit was tried in the Chancery Court of Jefferson Davis County. At the conclusion of the proceeding the chancellor requested additional briefs and documents from the parties. No ruling was issued until approximately one year later on December 15, 1998. In his final judgment, the chancellor set aside the various deeds as prayed for in the Plaintiffs' complaint. The chancellor also declared that the plaintiffs had fully complied with the provisions of § 11-7-305.

¶ 9. The Defendants filed a motion to dismiss, for reconsideration and new trial, asserting that the Plaintiffs' complaint should have been dismissed because they failed to petition the Supreme Court for a writ of mandamus in accordance with Rule 15 of Mississippi Rules of Appellate Procedure. The chancellor observed that at the close of the case in December 1997, requests were made of both parties to provide briefs and authorities for their respective positions. This request, the chancellor noted, made calculating the moment the matter was actually taken under advisement unclear. The chancellor further noted that manifest injustice would result if the Plaintiffs' case was dismissed. The Defendants' motion was thereafter denied. While the chancellor found in the Plaintiffs' favor on the merits, he failed to rule on the motion for sanctions. Both parties now seek review from this Court.

STANDARD OF REVIEW

¶ 10. A limited standard of review is employed by the Supreme Court in reviewing the decisions of a chancellor. Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997). A chancellor's findings will not be disturbed on review unless he abused his discretion, was manifestly wrong, or made a finding which was clearly erroneous. Bank of Miss. v. Hollingsworth, 609 So.2d 422, 424 (Miss.1992). For questions of law, the standard of review is de novo. Consolidated Pipe & Supply Co. v. Colter, 735 So.2d 958, 961 (Miss.1999).

DISCUSSION

I.

WHETHER THE JUDGMENTS ON WHICH PLAINTIFFS' CLAIMS WERE BASED WERE VOID IN THE ISSUING STATE.

¶ 11. The Defendants first argue that the foreign judgments upon which the Plaintiffs' claims are based are void in the issuing state of Florida because the Plaintiffs did not properly re-record their judgments in Florida. The Defendants cite § 55.10 of the Florida statutes. It reads,

A judgment, order, or decree becomes a lien on real estate in any county when a certified copy of it is recorded in the official records or judgment lien record of the county, whichever is maintained at the time of the recordation, and it shall be a lien for a period of seven years from the date of the recording provided that the judgment, order or decree or separate affidavit is recorded simultaneously with the judgment, order, or decree stating the address of the person who has a lien as a result of such judgment, order or decree. A judgment, order or decree does not become a lien on real estate unless the address of the person who has a lien as a result of such judgment, order or decree is contained in the judgment, order or decree or an affidavit with such address is simultaneously recorded with the judgment, order or decree.

Fla. Stat. Ann. § 55.10(1) (West 1994).

¶ 12. The Defendants admit that the Plaintiffs obtained and recorded their judgments on June 6 and 15, 1990. The Defendants also acknowledge that prior to the lien's expiration on June 5, 1997, the Plaintiffs attempted to re-record their judgments in Florida. The fatal error cited by the Defendants was the Plaintiffs' failure to attach certain affidavits required by law. The Defendants again cite § 55.10 of the Florida statutes. It states in pertinent part that,

The lien provided for in subsection (1) may be extended for an additional period of seven years by re-recording a certified copy of the judgment, order or decree within the ninety-day period preceding the expiration of the lien provided for in subsection (1) and by simultaneously recording an affidavit with the current address of the person who has a lien as a result of the judgment, order or decree. The lien will not be extended unless the affidavit with the current address is simultaneously recorded.

Fla. Stat. Ann. § 55.10(2) (West 1994) (emphasis added).

¶ 13. The Defendants also cite Hott Interiors, Inc. v. Fostock, 721 So.2d 1236 (Fla.Dist.Ct.App.1998). In Hott, a judgment debtor sued a judgment holder seeking a declaration that no liens had attached to the debtor's real property. The question presented to the Florida court was whether a final judgment becomes a lien on real estate when it contains the address of the plaintiff's attorney, but not the address of the plaintiff. Id. at 1237. This question was answered in the negative. The court reasoned that because the wording of § 55.10(1) was not ambiguous, unreasonable or illogical, it would not go beyond the statute's clear wording and plain meaning to expand its reach. Id. at 1238.

¶ 14. The Defendants urge that since the Plaintiffs failed to file the required...