Weeks v. Thomas

• Decision Date: 05 October 1995
• Docket Number: No. 92-CA-00925-SCT,92-CA-00925-SCT
• Citation: 662 So.2d 581
• Parties: Clyde T. WEEKS v. William THOMAS d/b/a William Thomas Engineering Firm.
• Court: Mississippi Supreme Court

Page 581

662 So.2d 581

Clyde T. WEEKS v. William THOMAS d/b/a William Thomas Engineering Firm.

No. 92-CA-00925-SCT.

Supreme Court of Mississippi.

Oct. 5, 1995.

Jack R. Dodson, Jr., Merkel & Cocke, Clarksdale, for Appellant.

Alfred A. Levingston, Levingston & Levingston, Cleveland, for Appellee.

Before HAWKINS, C.J., and JAMES L. ROBERTS, Jr., and SMITH, JJ.

SMITH, Justice, for the Court:

Clyde T. Weeks appeals to this Court from an August 5, 1992, order of the Bolivar County Chancery Court which sustained William Thomas' Motion to Dismiss under M.R.C.P. 12(b)(6) and held in abeyance Thomas' request for sanctions pursuant to M.R.C.P. 11 until this Court renders its decision in this case.

Weeks filed a complaint and amended complaint against the William Thomas Engineering firm alleging that Weeks lost ten feet of his property, Lot 91, Manor Heights Addition to the City of Cleveland, as a result of a supposed error made in the original survey in 1966 by Thomas, or someone under his supervision and control.

Aggrieved with the chancellor's Rule 12(b)(6) dismissal, Weeks appeals, citing five issues for this Court's consideration. Issue I, concerning the chancellor's failure to specify grounds for the Rule 12(b)(6) dismissal, and Issue II, alleging that such action by the chancellor was manifestly wrong, warrant discussion. After thorough consideration of the issues presented, we find all to be without merit and we must affirm the chancellor.

FACTS

William Thomas, a civil engineer in Cleveland, Mississippi, on April 29, 1966, supplied a certificate of the plat for Manor Heights Addition to the City of Cleveland as having surveyed the properties which are in dispute in this case.

On June 18, 1992, Clyde T. Weeks filed a complaint against the William Thomas Engineering Firm alleging that he (Weeks) was the record owner of Lot 91 of the Manor Heights Subdivision in the city of Cleveland. Weeks acquired the property on October 14, 1974. When Weeks purchased the property there was a four foot tall chain link fence erected by a predecessor in title on the east side between his property and Lot 90 which was owned by Edward A. Lyons, et ux. Weeks used and occupied all lands west of the chain link fence. In early 1977 Weeks erected a cypress fence (approximately 8 feet tall) "from the back property line south past the northeast corner of his residence." The chain link fence which Lyons owned and maintained was taken down. On September 11, 1979, Richard A. and Heather A. Gooden purchased Lot 90. The Gooden's extended the wood fence "southerly to the street" and removed the remaining chain link fence.

Weeks' amended complaint states that, "The Plaintiff while trying to sell this property [Lot 91] requested a survey and it was found that the fence erected by the Plaintiff encroached on Mr. and Mrs. Gooden's property some 10 feet." Weeks alleges that he lost the "fenced in property" described as the West 10 feet of Lot 90, and the loss "was the result of the error made when originally surveyed by the defendant or someone under his supervision and control." Weeks requested that the Defendant, William Thomas Engineering Firm, pay Weeks $25,000 for the loss of the ten feet of his property which diminished the value thereof. On June 30, 1992, Weeks filed an "Amended Complaint" which changed the requested relief to $2,500 in attorney's fees and expenses instead of the $25,000 in the original complaint. Weeks states this numerical reduction in the pleadings was an error.

Thomas filed a "Motion For Sanctions Under Rule 11 M.R.C.P." on June 29, 1992 alleging that Weeks and his attorney knew or should have known when the complaint was filed that it did not state a cause of action, hence the complaint was frivolous. Thomas also filed a motion to dismiss arguing insufficiency of process under Rule 12(b)(4) and that there is no such legal entity as William Thomas Engineering Firm. Thomas also requested dismissal based upon rule 12(b)(6) and stated that he was "not charged with constructing nor directing the construction of 'a chain link fence' nor a cypress fence nor anything else on the subject property." Thomas argued that the complaint did not charge Thomas with having made a survey on Lot 91. Thomas argues that Weeks' alleges in his complaint that he (Weeks) became the owner of the west ten feet of Lot 90 by adverse possession, thereby losing nothing. Weeks filed suit in chancery court to establish adverse possession of this ten feet of Lot 90, but was unsuccessful.

Subsequently, Weeks voluntarily issued a quitclaim deed to Victor and Betty Jean Tarsi, the owners of Lot 92, property described as the "West 10 feet of Lot 91." Weeks stated that the Tarsi's acquired the 10 feet of property by adverse possession from November 1967, until the date of the quitclaim deed of January 8, 1990, i.e. for nearly thirteen years.

Weeks filed an amended complaint on June 30, 1992. The complaint and amended complaint was filed against the William Thomas Engineering Firm rather than William Thomas. Both complaints failed to allege that Thomas actually surveyed Lots 90 or 91. Both complaints were filed by Thomas Morris on behalf of Weeks.

The chancellor issued its order sustaining Thomas' motion to dismiss and held in abeyance Thomas' motion for sanctions until Weeks had an opportunity to appeal to this Court on the chancellor's ruling to dismiss. Weeks hired new counsel, Jack R. Dodson, Jr. to file his appeal to this Court.

Standard of Review

The Court has held that it conducts "de novo review of questions of law." Bilbo v. Thigpen, 647 So.2d 678, 688 (Miss.1994). The Court "will not disturb the findings of a chancellor unless he is manifestly wrong or clearly erroneous, or an erroneous legal standard was applied." Jordon v. Warren, 602 So.2d 809, 812 (Miss.1992); Bell v. Parker, 563 So.2d 594, 597 (Miss.1990); Williams v. Evans, 547 So.2d 54, 58 (Miss.1989). "When a chancellor's findings are supported by substantial credible evidence in the record this Court will not reverse." Jordon, 602 So.2d at 812.

DISCUSSION

I. THE CHANCERY COURT DID NOT ERR IN NOT SPECIFYING THE GROUNDS FOR DISMISSAL.

Weeks argues that the Chancery Court's order states "no specific factual or legal grounds were given for dismissing the complaint." The chancellor's order reads in part: "1. Defendant's motion to dismiss is hereby sustained. This cause is hereby dismissed with costs assessed against Weeks." Weeks urges this Court not to reach the other issues addressed herein, but to summarily remand this case to the trial court for rehearing so that findings of fact and conclusions of law can be prepared and grounds for dismissal, if any, clearly articulated. Weeks cites as sole authority, Sanford v. Jackson Mall Shopping Center Company, 516 So.2d 227 (Miss.1987), as holding that the trial There are clearly those cases which from the deficiency in pleadings is apparent on the face of the pleadings that it amounts to no pleading whatsoever. In Hamilton v. Poteet, 343 So.2d 1222, 1223 (Miss.1977), this Court stated:

                court's failure to specify grounds for granting a motion to dismiss constitutes error.  In Sanford, the Court considered whether the circuit court improperly reversed the county court's denial of the Jackson Mall's summary judgment motion.  Weeks argues that this Court stated that the "county court should not have granted the motion to dismiss without stating any grounds for the dismissal."  Id. at 230.   It is certainly a better practice for trial courts to state their specific reasons and authority relied upon within their decisions.  However, the quote from Sanford appears to be dicta as no authority was cited by the Court.  In fact, the case law is to the contrary.  We also note in Sanford that the Court stated "should not have" rather than "shall not."
                

We have entertained motions to strike an abstract or motions to require a proper abstract where the defect or deficiency of the abstract was clearly apparent on the face of the abstract.... We will also entertain a motion to dismiss an appeal if appellant does not file an abstract or if the abstract filed is so deficient it amounts to no abstract if such fact can be ascertained from the abstract itself without necessitating an examination of the record.... There is no difference in failing to file an abstract and filing one so deficient that it amounts to no abstract.

In the absence of some showing that the trial court erred, this Court presumes the validity of the chancellor's factual decision in favor of the prevailing party. Gates v. Gates, 616 So.2d 888, 890 (Miss.1993). Also, where the chancellor has made no specific findings, this Court will proceed on the assumption that he resolved all fact issues in favor of the appellee. Estate of Mason, 616 So.2d 322, 329-330 (Miss.1993). See also Carter v. Taylor, 611 So.2d 874 (Miss.1992); Greenlee v. Mitchell, 607 So.2d 97 (Miss.1992); Brown v. Williams, 504 So.2d 1188 (Miss.1987).

In reviewing the decision of the chancellor, this Court in Gilchrist Machinery Company, Inc. v. Ross, 493 So.2d 1288, 1292 (Miss.1986), stated:

We do not consider the evidence de novo but rather apply the familiar substantial evidence/manifest error test.... This is so whether the finding be one of evidentiary fact or of ultimate fact.... Beyond this, with respect to issues of fact where the trial judge made no specific...