Robinson v. Burton, 2008-CP-01776-COA.

• Decision Date: 14 December 2010
• Docket Number: No. 2008-CP-01776-COA.,2008-CP-01776-COA.
• Parties: Rosa ROBINSON and Willie Washington, Appellants v. Ivey BURTON and Hilda Burton, Appellees.
• Court: Mississippi Court of Appeals

49 So.3d 660

Rosa ROBINSON and Willie Washington, Appellants

v.Ivey BURTON and Hilda Burton, Appellees.

No. 2008-CP-01776-COA.

Court of Appeals of Mississippi.

Dec. 14, 2010.

Rosa Robinson, Appellant, pro se.

Willie Washington, Appellant, pro se.

Beth Burton, Mark Ivey Burton, Kosciusko, attorneys for appellees.

Before LEE, P.J., GRIFFIS and MAXWELL, JJ.

MAXWELL, J., for the Court:

¶ 1. Ivey Burton and Hilda Burton requested the Attala County Chancery Court partition a 119.54-acre parcel of land in which they owned an undivided interest. Several relatives, including Rosa Robinson and Willie Washington, who also owned an interest, objected to the land being partitioned. The chancellor ultimately ordered a partition sale, finding it was in the best interest of all property owners. He reasoned this was the only practical option given the numerous shares into which the land was divided and the small size of many of the interests. We find no manifest error in this decision.

¶ 2. Robinson ¹ additionally claims the chancellor was biased and held racial prejudices against her. Though Robinson never sought to have the chancellor recuse himself from the case, our plain-error review of the record reveals no evidence of bias to warrant reversal.

¶ 3. Finding no merit to Robinson's remaining arguments, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 4. The parties in this appeal all held an interest in a 119.54-acre parcel of land.² There were a total of thirty-nine interest holders. The Burtons collectively owned approximately forty-eight percent of the land, while every other person owned five percent or less. Robinson owned less than two percent of the parcel, and Washington owned less than one percent. Many others owned less than one percent.

¶ 5. Following a three-day hearing, the chancellor ordered the land and the timber on it sold and the proceeds divided among the interest holders. He concluded this was the only practical option that "would best promote the interest of all undivided interest owners." The chancellor recognized that some of the heirs, including Robinson, desired to retain fee-simple ownership. But the chancellor found this task "to be next to impossible based on ... the various minute interests owned by the other thirty-eight (38) undivided interest owners." The chancellor concluded that separating thirty-nine tracts of varying size would be an extremely expensive task considering that each individual tract would have to be surveyed. He further noted the timber varied "in quantity and quality throughout the 119.54 acre tract."

¶ 6. After the chancellor entered a judgment directing the sale of the land, Robinson filed a motion in the Mississippi Supreme Court to stay the sale. The supreme court denied the stay, but granted Robinson leave to file for a stay in the chancery court. However, by the time Robinson filed her January 6, 2009, motion to stay in the chancery court, the land and timber had already been sold approximately two weeks earlier on December 22, 2008.

¶ 7. Robinson proceeds pro se on this appeal as she did at the trial level. ³ She alleges numerous errors, many of which are unclear. But from our review, we discern that the crux of her arguments center on (1) the chancellor's alleged improper disposal of the property; (2) the chancellor's alleged impartiality and racial bias; and (3) the chancellor's refusal to grant a continuance.

¶ 8. Concerning the second issue, the Burtons, represented by counsel, filed a motion to strike Robinson's brief. They argue the brief should be stricken because of its highly disrespectful overtures toward the chancellor. See M.R.A.P. 28(k). They additionally allege Robinson's appeal is frivolous and request damages sustained as a result. See M.R.A.P. 38. By order entered December 9, 2009, the supreme court found the motion should be "passed for consideration with the merits of the appeal." Thereafter, the supreme court assigned the appeal to this court.

STANDARD OF REVIEW

¶ 9. We employ the familiar "manifest error" standard of review to a chancellor's decision to order a partition sale of land. Cathey v. McPhail & Assoc., Inc., 989 So.2d 494, 495 (¶ 3) (Miss.Ct.App.2008). Under this standard, we will not disturb a chancellor's factual findings unless the chancellor's decision was manifestly wrong or clearly erroneous, or the chancellor applied an improper legal standard. Wallace v. Wallace, 12 So.3d 572, 575 (¶ 12) (Miss.Ct.App.2009). In conductingthis review, we are restrained from substituting our own judgment for that of the chancellor, even if we disagree with his or her findings of fact and would arrive at a different conclusion. Coggin v. Coggin, 837 So.2d 772, 774 (¶ 3) (Miss.Ct.App.2003). But when reviewing a chancellor's interpretation and application of law, our standard of review is de novo. Tucker v. Prisock, 791 So.2d 190, 192 (¶ 10) (Miss.2001).

DISCUSSION

I. Sanctions

¶ 10. We first address the Burtons' request that we sanction Robinson by striking her brief and deeming her appeal frivolous.

¶ 11. The Burtons claim that Robinson's brief should be stricken under Rule 28(k) of the Rules of Appellate Procedure. Rule 28(k) provides that "[a]ny brief containing language showing disrespect or contempt for the trial court will be stricken from the files, and the appropriate appellate court will take such further action as it may deem proper." Though the manner in which Robinson chooses to cast her accusations against the chancellor arguably toes the line of Rule 28(k), we decline to sanction Robinson by striking any part of brief. See Young v. Benson, 828 So.2d 821, 824 (¶ 11) (Miss.Ct.App.2002) (refusing to strike pro se appellant's brief, which may have asserted "baseless claims of error, including that the chancery clerk violated her civil rights ... [and that] the trial judge was not impartial").

¶ 12. The Burtons also seek to invoke Mississippi Rule of Appellate Procedure 38, which allows us to "award just damages and single or double costs to the appellee" if we find an appeal is frivolous. The supreme court "has equated the Rule 38 frivolousness to the definition of the same concept in Mississippi Rule of Civil Procedure 11." Harris v. Harris, 988 So.2d 376, 380 (¶ 16) (Miss.2008). The inquiry turns on "whether a reasonable person would have any hope for success." Id. This objective inquiry is determined from the vantage point of a reasonable person in the litigant's position when he or she filed the claim. Mark S. Bounds Realty Partners, Inc. v. Lawrence, 34 So.3d 1224, 1228 (¶ 12) (Miss.Ct.App.2010). Pro se litigants are subject to the same sanctions as represented parties. Dethlefs v. Beau Maison Dev. Corp., 511 So.2d 112, 118 (Miss.1987).

¶ 13. The Litigation Accountability Act also provides for sanctions if the court, upon request or its own motion, finds that a claim is brought "without substantial justification." Miss.Code Ann. § 11-55-5(1) (Rev.2002). The Legislature defined this phrase to include claims that are "frivolous, groundless in fact or in law, or vexatious, as determined by the court." Miss.Code Ann. § 11-55-3(a) (Rev.2002). The supreme court has held that the Act and Rule 11 are not conflicting; rather each augments the other. See Stevens v. Lake, 615 So.2d 1177, 1184 (Miss.1993).

¶ 14. Though some of Robinson's arguments could perhaps be deemed frivolous, we decline to impose sanctions. Our supreme court has found it inappropriate to sanction a party who has presented a justiciable claim, where the other party incurred no additional expense by defending other exaggerated claims. Dethlefs, 511 So.2d at 118. Robinson's primary argument is that the chancellor improperly disposed of her family property. We cannot agree with the Burtons that Robinson could not have reasonably hoped to prevail on this claim. This is especially so given the strong preference against a partitionsale.⁴

¶ 15. Further, while Robinson's brief does contain seemingly exaggerated and unsupported claims, the Burtons have not specifically identified the assertions they deem frivolous. Nor have they explained the prejudice they have suffered as a result of defending the appeal. Indeed, the Burtons do not even attempt to respond to most of Robinson's allegations but instead focus almost exclusively on the partition sale. For these reasons, we find sanctions inappropriate.

II. Procedural Bars

¶ 16. Before addressing Robinson's arguments, we note Robinson cites no legal authority in her appellate brief. This omission alone serves as a recognized procedural bar to our consideration of her claims.⁵ Dampier v. State, 973 So.2d 221, 228 (¶ 20) (Miss.2008). She further fails to specifically identify assignments of error as required by our appellate rules, which we have also held to be a procedural bar. Reed v. State, 987 So.2d 1054, 1056-57 (¶¶ 6-8) (Miss.Ct.App.2008) (citing M.R.A.P. 28(a)(3)).

¶ 17. Our supreme court has emphasized that "[p]ro se parties should be held to the same rules of procedure and substantive law as represented parties." Dethlefs, 511 So.2d at 118. But at the same time, the supreme court has instructed that we "credit not so well pleaded allegations so that ... meritorious [claims] may not be lost because inartfully drafted." Ivy v. Merchant, 666 So.2d 445, 449 (Miss.1995). Filings of pro se litigants in criminal cases are held "to less stringent standards than [those] drafted by lawyers." McFadden v. State, 580 So.2d 1210, 1214 (Miss.1991). And we afford this same deference to pro se litigants in civil cases. Zimmerman v. Three Rivers Planning and Dev. Dist., 747 So.2d 853, 856 (¶ 6) (Miss.Ct.App.1999).

¶ 18. With these rules in mind, we choose to proceed in spite of Robinson's procedural defaults. But our review is limited to "any self-evident error for which no authority would be necessary." Kellar v. Miss. Employment Sec. Comm'n, 756 So.2d 840, 842 (¶ 6) (Miss.Ct.App.2000) (citing Johnson v. State, 154 Miss. 512, 513, 122 So. 529 (1929)) (hold...