CHERI BROWN-HOWLE, AS CONSERVATOR OF THE ESTATE AND PERSON OF ELAINE S. BROWN, A NON COMPOS MENTIS APPELLANT
COMMUNITY BANK, CITIMORTGAGE INC. AND SOUTHERN WASTE DISPOSAL INC. APPELLEES
OF JUDGMENT: 04/10/2017
LAUDERDALE COUNTY CIRCUIT COURT HON. LESTER F. WILLIAMSON JR.
ATTORNEYS FOR APPELLANT: WAYNE E. FERRELL JR. BRADLEY S.
ATTORNEYS FOR APPELLEES: J. RICHARD BARRY REED COCHRAN DARSEY
REID STEPHENS MANLEY JAMES CORNELIUS GRIFFIN MATTHEW RICHARD
WATSON CHRISTOPHER DANIEL MEYER
LEE, C.J., FAIR AND WILSON, JJ.
In this case, we must determine whether the circuit court
properly granted summary judgment in favor of Community Bank,
CitiMortgage, and Southern Waste Disposal. Finding no error,
AND PROCEDURAL HISTORY
On July 28, 2008, Elaine Brown obtained a mortgage loan from
North American Savings Bank, secured by her residential
property located in Meridian, Mississippi. The funds from the
mortgage loan were transferred to Brown's account at
Community Bank. Shortly thereafter, these funds were
transferred to another account at Community Bank. The account
holders were Brown and her neighbor, Mike Holmes. The
mortgage was eventually assigned to CitiMortgage. Brown
ultimately failed to make mortgage payments, and CitiMortgage
initiated foreclosure proceedings.
On November 2, 2009, Brown filed a complaint in the
Lauderdale County Circuit Court against Mike Holmes, Angela
Holmes (Mike's wife), Community Bank, and Southern Waste
(Mike's employer). Brown, claiming to be mentally
incompetent, alleged undue influence by the Holmeses in
obtaining the mortgage. Brown also alleged that the Holmeses
misappropriated the loan proceeds, resulting in the
foreclosure of her house. Brown also alleged that Community
Bank intentionally or negligently assisted the Holmeses in
their plan to misappropriate the loan proceeds. Brown further
claimed that she lacked the legal capacity to obtain the
mortgage loan; thus, the transaction was void and
unenforceable. Brown later filed an amended complaint, adding
CitiMortgage as a defendant.
On November 13, 2013, Brown's daughter, Cheri
Brown-Howle, petitioned the Lauderdale County Chancery Court
to appoint her as Brown's conservator. On March 3, 2015,
the chancery court dismissed Brown-Howle's petition due
to her failure to meet the requirements to establish a
The circuit court dismissed the 2009 complaint without
prejudice on January 29, 2015. The circuit court noted that
Brown and her attorney had failed to complete the
requirements to have a conservator appointed, but that Brown
and her conservator could refile the complaint once a
conservator was appointed and the chancery court approved the
lawsuit. Brown filed a motion to reconsider, which the
circuit court denied. Brown appealed this ruling, but the
Mississippi Supreme Court ultimately dismissed her appeal.
On May 29, 2015, Brown-Howle again petitioned the chancery
court to appoint her as Brown's conservator. The chancery
court granted the petition on June 22, 2015, and approved the
second lawsuit on March 7, 2016.
On March 7, 2016, Brown-Howle, as Brown's conservator,
filed a second complaint alleging the same claims as in the
2009 lawsuit. In August 2016, CitiMortgage filed a motion for
summary judgment alleging that the suit was barred by the
three-year statute of limitations. See Miss. Code
Ann. § 15-1-49 (Rev. 2012). Community Bank and Southern
Waste filed similar motions. Brown-Howle responded that ...