OF JUDGMENT: 11/17/2016
COUNTY CHANCERY COURT, HON. JAYE A. BRADLEY JUDGE.
ATTORNEY FOR APPELLANT: COURTNEY PARKER WILSON.
ATTORNEY FOR APPELLEE: ANDY J. ALFONSO III (PRO SE).
Keith O'Brien filed a complaint to confirm and quiet
title, set aside deed, or, in the alternative, reform deed,
and for damages against Michael Rogers, Mary Ann Rogers,
real-estate attorney Andy J. Alfonso III, Coldwell Banker
Alfonso Realty Inc., and Cheryl O'Brien (collectively,
the Defendants). Keith's complaint also included a claim
of legal malpractice against Andy. After a trial, the Jackson
County Chancery Court entered a judgment denying relief.
Keith now appeals the chancellor's judgment and argues
that the chancellor erred in finding that Keith failed to
prove that Andy committed legal malpractice in preparing an
allegedly erroneous warranty deed conveying Keith's
property. Finding error, we reverse and remand to the
chancery court for a determination of damages.
In 1998, Keith and his then-wife, Cheryl, purchased 8.9 acres
in Jackson County, Mississippi, and constructed a house on
the property. The physical address for the house is 6331 Jim
In January 2005, Keith and Cheryl decided to sell their house
located at 6331 Jim Ramsey Road, along with 2.3 acres of land
surrounding the house. Keith and Cheryl listed their house
and the acreage with real-estate agent Shirley Willard of
Coldwell Banker Alfonso Realty Inc. (Alfonso Realty). The
property listing prepared by Shirley reflects a listing price
of $198, 500 for the 2, 400 square foot, three bedroom, 2.5
bathroom house and the 2.3 acres of land.
After listing their house and the 2.3 acres for sale, Keith
and Cheryl conveyed 1.23 acres of their remaining property to
their daughter and son-in-law, Khristina and Scott Storm, via
a quitclaim deed on May 17, 2005. The record shows that this
1.23-acre parcel of land was located in the middle of the 8.9
acres owned by Keith and Cheryl. In deeding the land to the
Storms, Keith had the entire 8.9 acres surveyed and then
divided into three parcels, each with a different address.
For the 1.23-acre parcel of land he deeded to the Storms,
Keith established an address of 6325 Jim Ramsey Road. Keith
testified that he filed the quitclaim deed and survey in the
The record also reflects that Keith and Cheryl intended to
keep the remaining back parcel of land, which consisted of
five acres, and build another house. Keith established the
address of 6327 Jim Ramsey Road for the remaining five acres
Keith testified that about a month after he and Cheryl deeded
the 1.23 acres to the Storms, he received a call from Shirley
informing him that she had found a buyer for Keith and
Cheryl's house and 2.3 acres. Keith and Cheryl eventually
accepted an offer from Michael and Mary Ann Rogers. The
record reflects that Mary Ann is Shirley's niece.
Alfonso Realty recommended that Keith retain Andy to prepare
the real-estate contract and deed and execute the loan
closing on the property. Keith and Andy both testified that they
had never spoken to one another prior to the closing in July
2005. The record shows that Shirley communicated with Keith
and Andy separately regarding the real-estate transaction.
Keith testified that at the closing, he signed the papers
provided to him, including the warranty deed prepared by
Andy. Keith stated that when he was presented with the
warranty deed to sign, no one explained to him what he was
conveying through signing the deed.
As we will discuss in length later in this opinion, Andy
admitted that an attorney-client relationship existed between
him and Keith and the Rogers family. Andy's trial
testimony reflects that he failed to discover that Keith had
previously deeded the 1.23-acre middle parcel to the Storms.
At trial, Andy testified regarding his title search on
Keith's property as follows:
Q. When you did your title search, did it not pop up the fact
that [Keith], prior to the loan closing, didn't actually
own the entire 8.9 acres?
A. I'd have to go back, but there should have probably
been a less and-well, not probably. There should have
been a less and except for that one point something acres,
the Storm property in the middle. That should have appeared
on the deed.
But you didn't catch that and put that on the deed?
A. I'm not sure if I did or didn't.
You've . . . still got the [w]arranty [d]eed?
A. I do. Yea[h]. It's not in the deed. The
less and except is not there.
Keith testified at trial that at the end of 2006, the Rogers
family contacted him and complained that they were paying
higher-than-normal property taxes for the house and 2.3 acres
located at 6331 Jim Ramsey Road. The Rogerses eventually
discovered that due to a mistake in the deed, they were
paying property taxes for the entire 8.9 acres of property.
The record additionally shows that concurrent with the
closing of the property, the Rogerses' first deed of
trust and first mortgage had already attached to the
Keith testified that upon learning of the mistake in the
deed, he went to the Jackson County land-records office where
he was informed that the deed prepared by Andy conveyed all
8.9 acres to the Rogerses, rather than the 2.3 acres listed
for sale. Keith immediately contacted Alfonso Realty and Andy
about the error. Keith testified that Alfonso Realty
confirmed to him that "when they closed that deed, they
closed it on the whole 8.9 [acres]." Keith explained to
Alfonso Realty that "there is a chunk of land in the
middle that [he] didn't own, " referring to the 1.23
acres he deeded to the Storms prior to the real-estate
transaction at issue. Keith testified that Alfonso Realty
then told him, "[Andy] had done a less and except . . .
so they just kind of subtracted the 1.23 acres of the Storms
out of it and now closed it out with the two unconnected
Alfonso Realty and Andy assured Keith that they would correct
the deed. However, the record reflects that once the Rogerses
learned that they owned 8.9 acres, rather than 2.3, they
obtained a second mortgage encumbering the entire 8.9 acres.
Andy testified that after Keith alerted him to the incorrect
deed, he prepared corrective instruments for Keith to sign.
Andy testified that he also had several conversations with
Cheryl, as well as the Rogerses, and "none of them would
come sign these corrective instruments." However, Keith
disputed that Andy ever contacted him to sign corrective
instruments. Keith explained that the Rogers family had
already encumbered the property with a mortgage upon closing
and a second mortgage upon learning that the warranty deed
conveyed the entire 8.9 acres, rather than the 2.3 acres
intended to be sold. The record also shows that Keith stated
that he could not force the Rogers family to convey the
property back to him, particularly since the property was
encumbered. The record reflects that at trial, the following
exchange occurred during Andy's cross-examination of
Q. You brought me the survey months later after all of this
took place and you found out that, I guess, there was a
clerical mistake with the deed that was prepared. And,
actually, none of my secretaries were there that day. I was
there myself. And we met. You brought the surveys to me, we
took a look at them, and you asked me to prepare some
corrective instruments that we needed to straighten it out.
And you pointed out that middle acreage, you pointed out the
back five acres, and you pointed out the front acres. After
preparing those, I gave you a call to come sign the
corrective instruments so we could get something on file down
at the courthouse that would put everybody and their
grandmother on notice that there was an issue, at least. Why
didn't you come?
A. You never approached me about it. In fact, the
conversation we had was that you said the Rogers[es] had
backed out of signing it. I assure everybody in this
courtroom, I would have climbed over brick walls and ran
through fire to get down there to sign what you're
On June 6, 2008, Keith filed his complaint to confirm and
quiet title, set aside the deed, or, in the alternative,
reform the deed, and for damages against the Defendants in
the Jackson County Chancery Court. In his complaint, Keith
alleged that Alfonso Realty breached its contract with Keith
and Cheryl by failing to protect their interests and causing
them to execute the warranty deed selling all of their
property, rather than just a portion, to the Rogerses. Keith
also alleged that Andy was negligent in preparing the deed.
Keith requested damages for emotional distress, depreciation
in the value of his real estate, and inconvenience, as well
as attorney's fees.
On November 7, 2008, Keith requested that the chancery clerk
enter an entry of default against the Rogerses as a result of
their failure to appear, plead, or otherwise defend against
Keith's complaint. The record reflects that the chancery
court entered the entry of default on November 7, 2008.
On December 19, 2008, the chancery court entered an order
transferring the case to circuit court, explaining that after
reviewing the pleadings, "the circuit court is the
appropriate court to hear this matter." The chancellor
stated that because Keith alleged breach of contract against
Alfonso Realty and sought both actual and punitive damages,
"[t]his matter does not fall within the chancery
court's jurisdiction over 'all matters in
On April 20, 2010, Alfonso Realty filed its motion to dismiss
for failure to prosecute or, in the alternative, for summary
judgment in the circuit court. Alfonso Realty claimed that
Keith "ha[d] taken no steps to prosecute his claim over
the twenty-two months this case ha[d] been pending."
Alfonso Realty explained that Keith's claim against it
was for damages only. Alfonso Realty also argued as follows:
[Ar]eview of the Listing Agreement and Contract for the
Purchase of Sale of Real Estate evidenced no duty or
contractual requirement that Alfonso [Realty] take
responsibility for the drafting or review of the deed in this
transaction. Even absent the Declaration of Acceptance[, ]
which specifically releases Alfonso [Realty], there would
exist no material fact in dispute supporting [Keith's]
claim of breach of contract.
On October 27, 2010, the circuit court granted Alfonso
Realty's motion for summary judgment. The circuit court
then transferred the remaining claims back to the chancery
court, explaining: "Now that summary judgment has been
granted with regard to the breach of contract and damages,
[the] [c]ircuit [c]ourt does not have jurisdiction to hear
the remaining equity claims."
On November 30, 2011, the chancellor, on her own motion,
entered an order dismissing the case without prejudice after
finding that the case had "been on the docket for twelve
(12) terms or longer without any action being taken
thereon." In response, Keith filed a motion to reinstate
the case, which the chancellor granted on January 9, 2012.
¶20. The record reflects that over the next four years,
this matter was set for trial and continued approximately six
times. The chancellor held a bench trial on September 8,
2016. At trial, Keith presented three witnesses: himself,
Andy, and Joyce Wilkerson, who had prepared an abstract of
Keith and Cheryl's property. At the conclusion of the
trial, Keith made an ore tenus motion for a default judgment
against the Rogerses.
The chancellor denied Keith's claims for relief on
November 17, 2016, and rendered a judgment in favor of the
Defendants. The chancellor found that Keith failed to deraign
title, file a lis pendens, and join all necessary parties as
required by law, thus leaving the chancellor without
jurisdiction to reform title to the property or enter a
default judgment against the Rogerses. The chancellor thus
denied Keith's request for a default judgment. The
chancellor also held that Keith presented insufficient
evidence to sustain his burden of proving that Andy was
negligent in preparing the warranty deed.
Keith now appeals, arguing that the chancellor erred in
finding that he failed to prove that Andy committed legal
This Court employs a limited standard when reviewing appeals
from chancery court. Corp. Mgmt. Inc. v. Greene
Cty., 23 So.3d 454, 459 (¶11) (Miss. 2009). We
review a chancellor's decision for an abuse of
discretion, and we "will not disturb the factual
findings of a chancellor when supported by substantial
evidence unless the chancellor abused his discretion, was
manifestly wrong [or] clearly erroneous[, ] or applied an
erroneous legal standard." Id. We review
questions of law de novo. Id.
Keith argues that the chancellor erred in finding that he
failed to present sufficient evidence to meet his burden of
proving that Andy committed legal malpractice in preparing
the warranty deed conveying Keith's
property. As stated, we review a chancellor's
findings of fact for an abuse of discretion. Id.
In her November 17, 2016 final judgment, the chancellor
addressed Keith's legal-malpractice claim and found as
[Keith] alleged that [Andy] prepared a deed which included an
erroneous description of real estate. [Keith] alleged that
this act constituted negligence, and he requested damages.
The elements of a negligence action are well settled in
Mississippi. Patterson v. Liberty Associates, L.P.,
910 So.2d 1014, 1019 (Miss. 2004). In a negligence action,
the plaintiff must prove by a preponderance of the evidence
that there was a duty, breach, causation, and damages.
Thrash v. Deutsch, Kerigan & Stiles, LLP, 183
So.3d 838 (Miss. 2016) (citing Entrican v. Ming, 962
So.2d 28, 32 (Miss. 2007)). In matters tried in chancery
court, the "chancellor has the sole responsibility to
determine the credibility of witnesses and evidence."
Hall v. Hall, 134 So.3d 822, 826 (Miss. Ct. App.
2014) [(]citing Chamblee v. Chamblee, 637 So.2d 850,
860 (Miss. 1994)[)]. In this matter, the [c]ourt, having
considered the testimony of the ...