Parker v. Ross

• Decision Date: 10 May 2022
• Docket Number: 2020-CA-01055-COA
• Court: Mississippi Court of Appeals
• Parties: ROY HAL PARKER, JR., AS CONSERVATOR OF THE ESTATE OF WILLIAM MATTHEW ROSS, A VULNERABLE ADULT AND INCOMPETENT TO MANAGE HIS AFFAIRS; JAMES HAL ROSS, JR.; AND JASON HURDLE ROSS APPELLANTS v. SUZANNE DICKSON ROSS, INDIVIDUALLY, AS TRUSTEE OF THE JAMES HAL ROSS REVOCABLE TRUST, AS EXECUTRIX OF THE ESTATE OF JAMES HAL ROSS, AND AS MEMBER/MANAGER OF H AND S I, LLC, H & S II, LLC, H & S III, LLC, AND H & S IV, LLC; H AND S I, LLC; H & S II, LLC; H & S III, LLC; H & S IV, LLC; THOMAS W. DALLAS; FRED M. HARRELL, JR.; PINNACLE TRUST COMPANY INC.; PINNACLE HOLDING COMPANY, LLC D/B/A PINNACLE TRUST COMPANY; AND PINNACLE HOLDING COMPANY INC. APPELLEES

ROY HAL PARKER, JR., AS CONSERVATOR OF THE ESTATE OF WILLIAM MATTHEW ROSS, A VULNERABLE ADULT AND INCOMPETENT TO MANAGE HIS AFFAIRS; JAMES HAL ROSS, JR.; AND JASON HURDLE ROSS APPELLANTS v. SUZANNE DICKSON ROSS, INDIVIDUALLY, AS TRUSTEE OF THE JAMES HAL ROSS REVOCABLE TRUST, AS EXECUTRIX OF THE ESTATE OF JAMES HAL ROSS, AND AS MEMBER/MANAGER OF H AND S I, LLC, H & S II, LLC, H & S III, LLC, AND H & S IV, LLC; H AND S I, LLC; H & S II, LLC; H & S III, LLC; H & S IV, LLC; THOMAS W. DALLAS; FRED M. HARRELL, JR.; PINNACLE TRUST COMPANY INC.; PINNACLE HOLDING COMPANY, LLC D/B/A PINNACLE TRUST COMPANY; AND PINNACLE HOLDING COMPANY INC. APPELLEES

No. 2020-CA-01055-COA

Court of Appeals of Mississippi

May 10, 2022

DATE OF JUDGMENT: 08/28/2020

RANKIN COUNTY CHANCERY COURT HON. HAYDN JUDD ROBERTS TRIAL JUDGE

ATTORNEY FOR APPELLANTS:

CHUCK McRAE

ATTORNEYS FOR APPELLEES:

ADRIAN WESTBROOK MILLS

LUKE DOVE

CECIL MAISON HEIDELBERG

R. MARK HODGES

JAMES A. BOBO

JOSHUA MICHAEL COE

CHARLES EDWARD COWAN

MICHAEL ALLEN AKERS

MARK C. BAKER SR.

EN BANC.

LAWRENCE, J.

¶1. James Hal Ross (Ross) created certain trusts before his death in an effort to provide for his three sons from another marriage and the sons' step-mother after his death. James Hal Ross, Jr., Jason Hurdle Ross, and Roy Hal Parker, Jr., as conservator of the estate of William Matthew Ross (the Ross sons) filed a complaint in the Circuit Court of Hinds County, against their step-mother and others, alleging the mismanagement of the trusts and to recover real property they alleged was improperly sold. The Hinds County Circuit Court transferred the lawsuit to the Rankin County Chancery Court since some of the alleged real property sold from the trust was located in that county. All defendants either filed or joined a motion to dismiss or, in the alternative, for summary judgment, alleging (1) a three-year statute of limitations precluded the lawsuit; and (2) Matthew failed to prove his mental disability, thereby tolling the statute of limitations. The Rankin County Chancery Court dismissed the complaint as time-barred for the reasons asserted by the Defendants. The Ross sons appeal. We affirm the chancery court's grant of summary judgment as to all claims barred by the three-year statute of limitations. Finding that the allegations relating to mismanagement of the trust and the recovery of real property are governed by a ten-year statute of limitations and that Matthew created a genuine issue of material fact as to his unsoundness of mind, we reverse the judgment in part and remand the case to the trial docket of the Rankin County Chancery Court.

FACTS AND PROCEDURAL HISTORY

¶2. James Hal Ross left a will naming Suzanne Dickson Ross, his wife and step-mother to his three sons, as executrix of his estate. In his will, he left some personal items to Suzanne and bequeathed the remainder of his estate to the James Hal Ross Revocable Trust (Revocable Trust), which Ross created on November 28, 2000. The Revocable Trust provided that Ross and Suzanne were its beneficiaries during Ross' lifetime. Pursuant to its terms, the Revocable Trust terminated upon Ross' death, and its assets were to be transferred to two different trusts. The first trust was the "Marital Trust," for the benefit of Suzanne. The second trust created upon Ross' death was the "Credit Trust," which provided for Suzanne and the needs of Ross' three sons from a previous marriage, James Hal Ross, Jr., Jason Hurdle Ross, and William Matthew Ross. This planned termination and transfer eventually occurred when Ross died on February 3, 2003.

¶3. Pursuant to the terms of the trusts, Trustmark National Bank was named as the trustee of both the Marital Trust and the Credit Trust. However, it does not appear that Trustmark ever assumed those duties. Instead, Defendant Pinnacle Trust Company became the trustee of both trusts.^[1] Ross' will was probated, and his estate finally closed on July 29, 2005. On November 12, 2013, the Ross sons filed a petition in the Rankin County Chancery Court seeking to reopen the estate as a result of "maladministration" of the estate on the part of Suzanne and to require an inventory and accounting of all Suzanne's activities as executrix of the estate.^[2] That action was dismissed on October 17, 2014.

¶4. On September 16, 2016, Matthew Ross, by and through his conservator, Roy Hal Parker, Jr., filed a complaint in the Hinds County Circuit Court, First Judicial District, alleging Suzanne mismanaged the trusts and improperly sold real property that was in the trust.^[3] The complaint was amended on January 5, 2017, and added Matthew's other two brothers, James Hal Ross, Jr. and Jason Hurdle Ross, as named plaintiffs. The complaint alleged mismanagement of the trusts, improperly transferring real property that should have been in the trust, conversion, breach of fiduciary duty, breach of duty of loyalty, fraud and misrepresentation, negligence, deception, unjust enrichment, corporate freeze-out, and bad faith against Suzanne, Thomas Dallas, Fred Harrell, and Pinnacle Trust Company. In response, all Defendants either filed or joined another Defendant's motion to dismiss pursuant to Mississippi Rules of Civil Procedure 12(b)(1), 12(b)(3), and 12(b)(6) or, in the alternative, to transfer the case to the Rankin County Chancery Court. On December 12, 2017, the Plaintiffs filed a response to the Defendants' motion to dismiss and challenged the Defendants' request to transfer venue.

¶5. On June 18, 2018, the motion to transfer was granted by the Hinds County Circuit Court, apparently without considering the motions to dismiss.^[4] On September 10, 2018, the Plaintiffs filed a supplemental response in Rankin County to the Defendants' joint motion to dismiss filed in Hinds County.^[5] In that document, the Plaintiffs asserted "the statute of limitations does not bar this action because all claims are timely . . . and because the statute is tolled for [Matthew's] legal mental disability."

¶6. On September 13, 2018, the Rankin County Chancery Court held a hearing on the Defendants' joint motions to dismiss, which previously had been filed in Hinds County before the transfer. The hearing solely focused on a motion to dismiss under Mississippi Rule of Civil Procedure 12(b)(6).^[6] At the hearing, the Ross sons maintained that "the arguments boil down to a statute of limitations issue [as stated] in our supplemental response." At the close of hearing, the court denied the Defendants' motions to dismiss and allowed the Ross sons the opportunity to file a second amended complaint.

¶7. On December 23, 2019, the Plaintiffs filed their second amended complaint in the Rankin County Chancery Court.^[7] In their second amended complaint, the Ross sons stated, among other things, the following:

• On November 28, 2000, James Hal Ross executed his last Will and Testament in which he established a Revocable Trust.

• The Revocable Trust was formed to allow James Hal Ross "control of his assets until his death," and "to care for his wife, his children, and Suzanne's children" after his death. As such, the Revocable Trust created the "Credit Trust and the Marital Trust" to become operative at his death.

• "On June 27, 2005, as Trustee of the Revocable Trust, Suzanne signed a Transfer of Assets . . . from the Revocable Trust to Suzanne individually."

• From the date of James Hal Ross's death on February 3, 2003, until the present, transactions involving "large sums of money," "real property," mineral rights, "timber," land, securities and interest in Mr. Ross's law practice have been manipulated by Suzanne, Harrell, Dallas, and Pinnacle, and "concealed" from Plaintiffs. (Emphasis added).^[8]

• H and S I, LLC is a domestic limited liability company which was formed by James Hal Ross. Suzanne was the LLC manager and registered agent, and Pinnacle Trust was a member of H and S, I LLC.

• The assignment of James' and Jason's interests in H and S I was "expressly prohibited" by the Trust Agreement and the H and S I Operating Agreement.

• The Trust Agreement expressly states that a "beneficiary shall have no power to sell, assign, transfer, encumber or in any manner to anticipate or dispose of any part of his or her interest in the trust assets or in the income produced from the assets." Yet the complaint alleged that is exactly what happened.

• "On July 1, 2005, Pinnacle Trust Company was appointed as Trustee of the Credit Trust and the Marital Trust. The Trust Agreement expressly states that the trustee of the Marital Trust and the Credit Trust shall be Trustmark National Bank."^[9]

• Further, the second amended complaint alleges that Pinnacle Trust Company committed trust violations when it "failed to communicate, failed to properly collect" and "preserve the property intended to comprise the corpus of the credit trust and/or marital trust", "mixed property" that should have been part of the trust that had been "improperly removed" and "charged excessive management fees." The complaint concluded that Pinnacle Trust "should be disgorged" of those fees, and that those fees should be "returned to the corpus of the trust."

¶8. As a result of the above allegations from the second amended complaint, the Ross sons sought the following injunctive relief:

• A "complete accounting" by the Defendants relating to the "Revocable Trust," "the Credit Trust," "the Marital Trust," and "all H and S entities";

• "Compel the trustee to redress the breaches of trust established herein by restoring property" or "paying the monetary equivalent of such property from the corpus of the trusts";

• "Void all acts of the trustee wherein property was wrongfully disposed of, trace such property, and recover the property or its

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