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Nethery v. Estate of Nethery

Court of Appeals of Mississippi

May 13, 2014

GREG NETHERY, ADMINISTRATOR OF THE ESTATE OF WILBUR GLEN NETHERY, DECEASED, AND GREG NETHERY, INDIVIDUALLY, APPELLANTS
v.
THE ESTATE OF DORIS NETHERY, DECEASED, AND WILLIAM W. DREHER, EXECUTOR OF THE ESTATE OF DORIS NETHERY, DECEASED, APPELLEE

COURT FROM WHICH APPEALED: HANCOCK COUNTY CHANCERY COURT. DATE OF JUDGMENT: 09/26/2012. TRIAL JUDGE: HON. CARTER O. BISE. TRIAL COURT DISPOSITION: GRANTED MOTION TO DISMISS THE PROBATED CLAIM FOR ATTORNEY'S FEES.

FOR APPELLANTS: WYNN E. CLARK.

FOR APPELLEE: FRANK P. WITTMANN III, WILLIAM W. DREHER JR.

BEFORE IRVING, P.J., CARLTON AND MAXWELL, JJ. LEE, C.J., IRVING, P.J., BARNES, ISHEE, MAXWELL AND JAMES, JJ., CONCUR. GRIFFIS, P.J., ROBERTS AND FAIR, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

OPINION

Page 1000

NATURE OF THE CASE: CIVIL - WILLS, TRUSTS, AND ESTATES

CARLTON, J.

¶1. This appeal stems from the Hancock County Chancery Court's order granting the motion to dismiss a probate claim against the Estate of Doris Nethery for attorney's fees. The chancellor set aside the divorce between Wilbur Glen Nethery and his wife, Doris, upon a motion by Greg Nethery, Glen's son and guardian at the time. Greg and Glen's Estate (Appellants) argue that the chancellor erred in granting the motion to dismiss, claiming that the chancellor granted relief based on a ground Doris's Estate failed to raise or argue in the motion to dismiss. Upon review, we find the probate claim for attorney's fees barred by the ordinary principles of res judicata.[1] We therefore find no error in the chancellor's dismissal of that claim, and we affirm.

¶2. After the perfection of the instant appeal of the denial of the disputed probate claim, the chancellor appointed Greg as administrator of Glen's Estate, relieving the previously appointed chancery clerk [2] from those duties.[3] Then, consistent with the chancellor's appointment,

Page 1001

this court granted the motion to substitute Greg as administrator on appeal.[4]

¶3. Also, during the appeal of this case, Appellants filed a motion requesting this Court to strike a September 18, 2013 letter from Doris's Estate to this Court. We passed this motion for consideration of the merits. In their motion, Appellants claimed that the letter from Doris's Estate constituted an improper argument and also a violation of Mississippi Rules of Appellate Procedure 28(k), 28(c), and 2(b). In the motion to strike, Appellants also requested an award of attorney's fees as a sanction against Doris's Estate and its attorney for violating the rules of appellate procedure. See M.R.A.P. 2(b). Upon due consideration of this motion, we grant Appellents' motion to strike this letter from the record and from any consideration on appeal of this matter. However, we deny the requested relief and sanction of attorney's fees.

FACTS

¶4. Glen and Doris married on October 7, 1987. On May 4, 2006, Doris brought Glen to Attorney William Dreher Jr.'s law offices. At the time, Glen was seventy-four years old and suffering from Alzheimer's disease. Dreher testified that Doris expressed concern over shielding her assets against a claim by Social Security in the event Glen was placed in a nursing home. After meeting with Doris and Glen, Dreher telephoned another attorney, Cecil Woods, and informed Woods that he was sending Doris and Glen to meet with Woods to obtain a divorce. Dreher also explained to Woods that a question arose as to Glen's mental capacity. Doris brought Glen to Woods's office on May 4, 2006, and later that same afternoon they signed a joint complaint for divorce. Doris obtained a judgment of divorce on July 24, 2006, with an attached " Property[-]Settlement Agreement."

¶5. In November 2006, the chancery court appointed Greg, Glen's son, as guardian of Glen after determining that Glen failed to possess the mental and emotional capacity to handle his own affairs. Subsequent to the chancery court entering the judgment of divorce, Doris sold the marital home and placed the joint accounts in her name alone. While visiting with Glen's children during Christmas in 2006, Doris informed them for the first time that she and Glen obtained a divorce.

¶6. On January 22, 2007, Greg moved the chancery court for authority to begin legal action to set aside the divorce and file suit against Doris for fraud, negligent misrepresentation, imposition of a constructive trust, conversion, and a temporary restraining ...


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