Before McMILLIN, P.j., Coleman, And Diaz, JJ.
The opinion of the court was delivered by: Coleman, J.
STERLING E. WILLIAMS, SR., APPELLANT v. CITIZENS STATE BANK, JEFFREY FORTUNE AND WIFE, ALESIA M. FORTUNE, AND DEWEY B. MILLER, APPELLEES
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: 04/12/95
TRIAL JUDGE: HON. GERALD E. BRADDOCK
COURT FROM WHICH APPEALED: RANKIN COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - REAL PROPERTY TRIAL COURT DISPOSITION DISMISSED WILLIAMS CLAIM TO THE PROPERTY AND THE COUNTER-CLAIMS BY NEW PROPERTY OWNERS.
DISPOSITION AFFIRMED - 3/24/98
MOTION FOR REHEARING FILED:
There can be no simple, succinct way to relate the manner in which this case has come before this Court. That information can only be gleaned from this Court's recitation of the facts which begot the litigation and the course of that litigation in the Rankin County Chancery Court. However, this Court affirms the orders and decrees from which Sterling E. Williams, Sr., has appealed.
I. FACTS K. T. Proctor owned a parcel of land, which contained.58 acres, in Rankin County. Because the ad valorem tax assessed for the year 1985 against Proctor's parcel of land (1985 tax) was not paid, the Rankin County Tax Collector sold Proctor's parcel of land to George Merritt for the sum of $104.41 at the tax collector's public auction on August 25, 1986. Because K. T. Proctor did not pay the 1985 tax and the interest and penalty which had accrued on the unpaid 1985 tax within two years of the date of the auction, the Rankin County Chancery Clerk conveyed this parcel to "George Merritt," whose address was listed as "4704 11th Place, Meridian, MS 39301," by a "chancery clerk's conveyance -- land sold for taxes" (tax deed) dated August 10, 1988, and filed for record on September 7, 1988, in the Rankin County Chancery Clerk's office. The tax deed described Proctor's parcel of land as "1A in SE corner of SE4" in section 5, Township 5, Range 3.
Twenty days later on September 27, 1988, K. T. Proctor executed his Last Will and Testament, Section V. of which read, "I devise unto Shirley Ann Smith the lot on which she is presently residing." Section VI of Proctor's will, a residuary clause, stated: "I devise and bequeath all the rest, residue and remainder of all of my property, real, personal or mixed, wherever situated unto my brothers and sisters, namely, Mary Myles, Lyndora Roby, Mansfield Proctor and L.C. Proctor, share and share alike." K. T. Proctor died on July 5, 1989, and his nephew, M. J. Myles, whom Proctor had appointed the executor his will, arranged to probate Proctor's will in the Rankin County Chancery Court.
On April 27, 1990, Shirley Ann Smith, to whom K. T. Proctor had devised "the lot on which she is presently residing" in Section V. of his will, executed a warranty deed to Sterling E. Williams, Sr., by which she conveyed to Williams "any and all interest and title in the unsurveyed mobile home lot willed by K. T. Proctor to [the grantor]." This lot, which Williams asserts contained.18 acre, was located completely within the.58 acre parcel of land which K. T. Proctor owned before the Rankin County tax collector sold it to George Merritt on August 25, 1986. The warranty deed provided that "[t]he size of the lot will be determined by a survey." The deed's description of the lot to be surveyed located the lot in the "Southeast 1/4 of Southeast 1/4; Section 5[,] Township 5 North; Range 3 East, Rankin County, Mississippi." This warranty deed from Smith to Williams was filed in the chancery clerk's office on May 7, 1990. More than four months later Williams prepared a corrected warranty deed, which Smith executed and delivered to Williams on September 13, 1990. In this corrected warranty deed, Smith conveyed to Williams "any and all interest and title in the mobile home lot willed to SHIRLEY A. SMITH by K. T. PROCTOR." This corrected warranty deed described the parcel by metes and bounds and specified that it contained 0.18 acre. The source of the metes and bounds description was a survey which Williams had commissioned without any participation in its preparation by Smith. By its description, the.18 acre lot was located in "the SE 1/4 of the SE 1/4 of Section 5, T5N, R3E, Rankin County, Mississippi." The corrected warranty deed from Smith to Williams was filed in the chancery clerk's office on September 14, 1990.
Proctor's brother, Mansfield Proctor, and Proctor's sister, Mary Myles, two of the four beneficiaries of the residuary clause, Section VI. of the will, died before K. T. Proctor. Mary Myles was the mother of M. J. Myles, the executor of K. T. Proctor's will. On March 16, 1990, the George Merritt Tax Company, Inc., conveyed by quitclaim deed to L.C. Proctor and Lyndora Roby, the two surviving beneficiaries of the residuary clause of Proctor's will, a parcel of land described as follows: "One (1) acre in SE corner SE1/4 Section 5 Township 5 Range 3, Rankin County, Mississippi identified as parcel # HO9L 000012 00000, Rankin County Land Roll." This quitclaim deed further recited that it "cover[ed] the County of Rankin of taxes sale on 25th August, 1986, being taxes for the year 1985, and does not cover any subsequent tax sales." George D. Merritt, president of the grantor, executed the quitclaim deed for the grantor, the George Merritt Tax Company, Inc. The quitclaim deed recited that the grantor's address was P. O. Box 568, Meridian, MS 39302. Nearly four months later, on July 2, L.C. Proctor and Lyndora Roby conveyed the entire.58 acre parcel of land to Aaron Flowers, Lyndora Roby's son, by Warranty Deed, and Aaron Flowers filed his deed in the chancery clerk's office that same day. Proctor and Roby described the.58 acre parcel by a metes and bounds description.
More than two years later on September 18, 1992, Aaron Flowers conveyed his.58 acre lot to Jeffrey K. Fortune and Alesia M. Fortune as joint tenants with right of survivorship. Citizens Bank and Trust Company loaned the Fortunes the sum of $17,050.17, from the proceeds of which the Fortunes paid Flowers for his.58 acre lot. As security for its loan, the Citizens Bank and Trust Company received a deed of trust which the Fortunes executed to Roy Noble Lee, Jr., as trustee for the bank. The appellee, Dewey B. Miller, a lawyer in Brandon, had checked the title to Aaron Flowers's.58 acre lot, and after the Fortunes' deed of trust to Lee as trustee for the bank had been filed and recorded, Miller prepared and signed a final certificate of title for the bank. In the final certificate of title, Miller expressed his opinion "that fee simple title in and to the [.58 acre parcel] was vested in [the Fortunes]." In his seven exceptions to the Fortunes' ownership of the.58 parcel, Miller included the deed of trust which the Fortunes had executed to Lee as Trustee for the bank.
The Fortunes established their residence in the house situated on the.58 acre parcel. K. T. Proctor had lived in the house before his death. One afternoon in May of 1993, Jeffrey Fortune was working in his yard when Williams came to him and explained that he owned the portion of the Fortunes' lot that K. T. Proctor had devised to Shirley Ann Smith. After Fortune informed Williams that he must be mistaken, Williams wrote two letters to Jeffrey Fortune and one letter to attorney Dewey Miller, in all of which Williams professed to own the.18 acre trailer-lot which Shirley Ann Smith had twice conveyed to him. In a letter to Jeffrey Fortune dated June 24, 1993, Williams wrote, "Therefore, be advised that I am going to install my fence post on the line indicated by the survey that I had made by the Rankin County Engineers, Inc. by the end of July, which allows you over thirty (30) days to initiate any legal initiatives you see fit to pursue." Williams never built a fence on what he deemed to be the line between his.18 acre lot and the Fortunes' resulting.40 acre lot, but, instead, beginning on May 13, 1994, Williams filed a complaint for injunctive relief against the Fortunes and others in the Rankin County Chancery Court.
While the foregoing facts which begot this litigation were relatively simple, the course of this litigation in the Chancery Court of Rankin County was not as straightforward. Several of the pleadings were omitted from the clerk's papers. The certified copy of the clerk's docket filed as a part of the clerk's papers pursuant to Rule 10(a) of the Mississippi Rules of Appellate Procedure indicates that Williams first filed a complaint for injunctive relief on May 13, 1994. However, the docket further reflects that no process was issued for any defendant in that complaint by the chancery clerk. Notwithstanding Williams' failure to arrange for the service of process on any of the defendants whom he designated in the complaint, the chancellor set this case for trial on October 6, 1994, by a "notice of cases set for trial" filed on September 12, 1994.
The record is opaque about what occurred on October 6, 1994, but two weeks later, on October 20, 1994, Williams filed an "amended complaint for injunctive relief and joinder of persons needed for just adjudication" against Citizens Bank & Trust Co., Jeffrey Fortune and his wife, L. C. Proctor, M. J. Myles, attorney Dewey B. Miller, Lyndora Roby, and Shirley Ann Smith. Williams drafted the amended complaint which he had filed.
While his amended complaint contained no formal prayer for relief other than one "for such other relief either general or special, to which he may be entitled in a court of equity," it is apparent that Williams was "begging the court to rule in favor of [him] whose deed was filed prior to Defendant's [sic] deed." Williams also noted that Dewey Miller, the attorney who had examined the title to the.58 acre lot for Citizens Bank "was aware of and acknowledged the earlier filing of [Williams's] deed and the 'cloud on the title' which it constituted but elected to omit its significance." Williams further asked "that the court disregard the 'tax sale' defense resorted by the Defendants as wiping out the  will's devising the trailer to Shirley Ann Smith for two (2)reasons...." The first reason was that "K. T. Proctor had ample funds to prevent the tax sale of his property which resulted from negligence of relatives who are named as devisees in K. T. Proctor's will." The second reason was that Shirley Ann Smith, to whom K. T. Proctor had devised the "trailer lot," was in disfavor with Proctor's relatives "who were searching for a legal way to disinherit her by failing to pay the taxes...." Williams then concluded that "the heirs in K. T. Proctor's will subsequently repurchased [the trailer lot] as a way of eliminating Shirley Ann Smith."
The chancery clerk issued process for all of the defendants whom Williams had named in his amended complaint, and all of them were served with process. Only Citizens State Bank, attorney Dewey B. Miller, and the Fortunes filed answers to Williams's amended complaint. Included in all of their answers were motions to dismiss because Williams "ha[d] failed to state a cause of action upon which relief [could] be granted against them." The responsive defendants all filed motions to dismiss the action prior to the scheduled date of the trial. Williams responded to the answering defendants' answers and motions to dismiss, and he also filed a "motion for judgment on the pleadings and/or for summary judgment."
Although the record becomes garbled at this point, the following events can be extrapolated from the clerk's papers. The chancellor set the case for trial on November 7, 1994, but because of one or more continuances which some of the defendants had requested and which Williams opposed, the case was not heard until March 21, 1995. As a result of that hearing, the special chancellor, whom the supreme court had appointed to resolve the case in the wake of the defeat of the chancellor in the 1994 general election, rendered an order on April 12, 1995, which dismissed Williams's amended complaint but gave Williams thirty days leave to amend his complaint. The order also denied Williams's motion for judgment on the pleadings and summary judgment. This order was not filed in the clerk's office until April 18, 1995.
In the meantime, on March 30, Williams filed both a motion to set aside order of dismissal and a second amended complaint for injunctive relief and joinder of persons needed for just adjudication against the same defendants. Later, all of the defendants who had responded to Williams's first amended complaint filed essentially the same answers and motions to dismiss in response to Williams's second amended complaint. However, after the special chancellor had entered the order of dismissal on April 12, 1995, Williams filed a motion to set aside order of dismissal on April 20, to which the Fortunes filed a response on May 26.
On that same day, May 26, the special chancellor conducted a hearing, apparently on Williams's motion to dismiss his second amended complaint, at the Conclusion of which the special chancellor stated that he denied Williams's motion to dismiss his second complaint but granted him the right to file an amended complaint. The special chancellor then noted that Williams had "filed and amended complaint in this matter pursuant to my order." However, the clerk's papers contain no order entered by the special chancellor to reflect his denial of Williams's motion to dismiss his second amended complaint; neither does the certified copy of the docket sheet reflect that such an order was rendered and entered by the special chancellor.
On June 26, Williams filed a "motion to withdraw second amended complaint for injunctive relief and joinder of persons needed for just adjudication" because Williams desired to appeal the order of dismissal which the special chancellor had rendered on April 12. The clerk's papers contain no order entered by the special chancellor in response to Williams's June 26 motion to withdraw his second amended complaint. Nevertheless, on June 6, 1995, Williams filed a notice of appeal of the order of dismissal which the special chancellor had rendered on April 12 and which had been filed on April 18. Pursuant to Williams's notice of appeal, the chancery clerk transmitted the record in this case as it then existed to the supreme court, which assigned docket number 95-CA-0616 to the appeal by letter of the supreme court clerk to Williams dated November 7, 1995.
Notwithstanding Williams's appeal to the supreme court in appeal number 95-CA-0616, the Fortunes filed an extensive second motion to dismiss, motion for sanctions, motion for a more definite statement, answer and defenses to second amended complaint, cross-claim and counterclaim in the chancery court on August 22, 1995. The Fortunes' counterclaim against Williams contained two counts. The first count was for his slander of their title to the.58 acre lot which they had bought from Aaron Flowers. The second count was to remove Williams's two deeds from Shirley Ann Smith as clouds on the Fortunes' title to their lot and to quiet their title to this lot. On August 29, 1995, Williams filed his response to the Fortunes' second motion to dismiss and counterclaim.
On September 20 and 21, 1995, the special chancellor conducted a hearing in this case. Williams called attorney Dewey Miller, Mrs. Ida Williams, wife of the appellant, Milton J. Myles, the executor of K. T. Proctor's will, and Ron Dear, senior vice president of Citizens State Bank, to testify. Williams also testified in his behalf before he rested. After Williams rested, Dewey Miller, the attorney who had issued the title opinion about the Fortunes' lot for Citizens State Bank, moved "[the] court to direct a verdict in his behalf." After the special chancellor heard Miller's and Williams's arguments on Miller's motion for directed verdict, he opined and found as follows:
There's no request for relief against Mr. Dewey Miller. The proof abundantly shows that Mr. Miller examined title for the Citizens Bank. He had no connection to Mr. Williams in any way by virtue of a client or otherwise. And any cause of action against Mr. Miller would certainly have been only by the bank or maybe by the Fortunes. So, ...