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O'Neal v. Ketchum

Court of Appeals of Mississippi

June 24, 2014

TANYA MICHAELE O'NEAL A/K/A TANYA MICHAELE PORTER, APPELLANT
v.
STEVEN KETCHUM, APPELLEE

COURT FROM WHICH APPEALED: HARRISON COUNTY CHANCERY COURT. DATE OF JUDGMENT: 02/27/2013. TRIAL JUDGE: HON. JENNIFER T. SCHLOEGEL. TRIAL COURT FOUND NEITHER PARTY HAD TITLE TO THE MOBILE HOME; APPELLEE WAS NOT UNJUSTLY ENRICHED AND DID NOT CONSPIRE TO DESTROY APPELLANT'S COTENANCY; PROPER NOTICE OF THE FORECLOSURE SALE WAS GIVEN.

DISPOSITION: AFFIRMED.

FOR APPELLANT: HERBERT J. STELLY.

FOR APPELLEE: ROBERT H. KOON.

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

OPINION

Page 46

NATURE OF THE CASE: CIVIL - REAL PROPERTY

EN BANC.

LEE, C.J.

¶1. This appeal arises from the trial court's denial of Tanya O'Neal's suit, seeking the court to order the sale and disbursement of proceeds of a mobile home she claimed to own with Steven Ketchum. The Harrison County Chancery Court found that neither O'Neal nor Ketchum had title to the mobile home. The court also found that O'Neal failed to prove that: (1) Ketchum was unjustly enriched; (2) Ketchum and his father had conspired to destroy her cotenancy; or (3) she did not receive the required notice of the foreclosure sale. Finding O'Neal's issues procedurally barred, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In August 1997, O'Neal and Ketchum began a romantic relationship. On May 10, 1999, O'Neal and Ketchum signed a $21,000 promissory note for Clinton Saucier's mobile home in Saucier, Mississippi. Under the terms of the note, O'Neal and Ketchum were to pay Saucier a $3,000 down payment and $500 each month, commencing on June 15, 1999, with the remainder of the balance due on December 15, 2001. The parties agreed to a zero percent interest rate and waiver of any nonrepayment notice, should O'Neal and Ketchum default on payments.

¶3. At trial, O'Neal testified that she paid the $3,000 down payment, but she did not offer any bank statements, copies of checks, or other evidence to support her statement. However, Ketchum did not dispute that O'Neal paid the down payment. O'Neal testified that Ketchum paid Saucier the monthly payments out of her and Ketchum's joint checking account. While no proof of these payments was admitted at trial, both parties testified that the payments were regularly made to Saucier. No evidence to the contrary was shown at trial, and Saucier was not a party to the action.

¶4. On October 29, 2001, Ketchum's father, Ralph Ketchum, purchased the land where O'Neal and Ketchum's mobile home was located from Saucier for $21,000. While Ralph believed that the mobile home was paid off at the time he purchased the land, O'Neal and Ketchum testified that there was still a small balance owed to Saucier at the time of the land conveyance. That same day, O'Neal and Ketchum executed a second promissory note and deed of trust in favor of Ralph for $21,717.90. The note did not include the mobile home. Under the terms of the note, O'Neal and

Page 47

Ketchum would pay Ralph $500 a month until the note was paid in full. The note contained a clause that stated if O'Neal and Ketchum, as the debtors, defaulted on the loan, the entire debt plus interest would become due without notice. Also on October 29, 2001, Saucier executed a warranty deed conveying the land purchased by Ralph to Ketchum and O'Neal as tenants in common.

¶5. When O'Neal and Ketchum brought their first $500 payment to Ralph, they asked Ralph to loan them $15,000 to cover attorney's fees needed to bond O'Neal's father out of jail. Ralph loaned them $5,000, and agreed to defer the couple's payments on the note for ten months so they could repay the loan Ketchum took from his 401(k) to contribute to the attorney's fees. While the grace period was ten months, Ralph only received three additional payments from Ketchum between 2001 and 2003.

¶6. O'Neal and Ketchum ended their relationship in February 2004, and O'Neal moved out of the home. Although inconsistently, Ketchum continued to make payments to Ralph. In 2004, Ketchum made six payments, and he made another payment in January 2007. While Ralph allowed Ketchum to remain on the ...


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