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In re Estate of Pannagl

Court of Appeals of Mississippi

November 4, 2014

IN THE MATTER OF THE ESTATE OF LOUIS S. PANNAGL, JR., DECEASED: LOUIS CURT PANNAGL AND SAMMI PAULA PANNAGL SPENCE, APPELLANTS
v.
DAVID LAMBERT AND MARK HOLMES, APPELLEES

COURT FROM WHICH APPEALED: PIKE COUNTY CHANCERY COURT. DATE OF JUDGMENT: 06/24/2013. TRIAL JUDGE: HON. DEBBRA K. HALFORD. TRIAL COURT DISPOSITION: DETERMINED WILL WAS REVOKED BUT DENIED SANCTIONS.

FOR APPELLANTS: FRANK G. VOLLOR.

FOR APPELLEES: ALTON LAMAR WATTS.

BEFORE LEE, C.J., ROBERTS AND CARLTON, JJ. GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., NOT PARTICIPATING.

OPINION

Page 40

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

LEE, C.J.

[¶1] This appeal arises from the chancellor's denial of a motion for attorney's fees and costs. Finding that the chancellor abused her discretion, we reverse and remand.

PROCEDURAL HISTORY

[¶2] On August 19, 2011, David Lambert (Lambert) filed a petition in the Chancery Court of Pike County to probate a copy of Louis S. Pannagl Jr.'s (Louis) last will and testament. Louis was Lambert's stepfather. The sworn petition alleges that the original of the will was lost and that it was not destroyed by Louis with the intent to revoke it. Louis's original will could not be found. On January 30, 2012, Louis Curt Pannagl (Curt), Louis's son, filed an objection to the probate of Louis's will. On May 2, 2012, a hearing was held on the motion of Curt to compel Brady Kellems (Kellems) to give a deposition. Kellems, an attorney, had been contacted by Louis about his will. The court granted the motion. That same day, Lambert filed a motion to amend the petition, asking the chancellor to declare that Louis died intestate and to appoint Donis Smith Pannagl (Donis) the administrator. Donis is Louis's widow and Lambert's mother.

[¶3] On May 7, 2012, Sammi Paula Pannagl Spence (Sammi), Louis's daughter, filed an objection to the probate of Louis's will. On January 31, 2013, Curt and Sammi (hereinafter Curt) filed a motion for summary judgment and for sanctions under Mississippi Rule of Civil Procedure 11 and the Litigation Accountability Act, Mississippi Code Annotated section 11-55-1 (Rev. 2012). Lambert filed his response to that motion on February 1, 2013. After a hearing on February 27, 2013, the chancellor granted Curt's motion for summary judgment, but denied his motion for sanctions. Curt appeals the chancellor's denial of sanctions, asserting that Lambert intentionally withheld pertinent information from the court, constituting fraud, and that the filing of this action was frivolous.

FACTS

[¶4] In April 2011, Louis contacted Kellems about changing his will. This will was dated April 23, 2001, and had been drawn up by Kellems. Louis sent Kellems and David Carrigee (Carrigee), an attorney, some notes regarding the changes to be made to his will. Among these notes was a handwritten document entitled: " Preparation for Will to be written by Brady Kellems before May-June 2011," and dated January 18, 2011. This document listed changes Louis wanted to make to his will. At the bottom of the first of two columns, the document states: " The Will of April 23rd 2001 Brookhaven/Brady Kellems has been destroyed and March 23, 1993." On Kellems's copy of the document, the words, " and March 23, 1993," were written in a different-color ink. The document is signed by Louis at the top of the page, underneath its title. The signature matches Louis's signature on other documents, and his widow, Donis, testified that the document was in Louis's handwriting. The original handwritten document could not be found. Curt did not learn of this document until Kellems's deposition on November 12, 2012, more than a year after the original petition was filed.

[¶5] After Louis's death on June 8, 2011, Donis contacted Carrigee. On June 17, 2011, Carrigee sent Donis a letter with several attachments. The attachments included the will of April 23, 2001, and the handwritten document described above. Donis testified that she looked at the attachments and showed them to Lambert. Lambert ...


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