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Brown-Howle v. Community Bank

Court of Appeals of Mississippi

October 23, 2018

CHERI BROWN-HOWLE, AS CONSERVATOR OF THE ESTATE AND PERSON OF ELAINE S. BROWN, A NON COMPOS MENTIS APPELLANT
v.
COMMUNITY BANK, CITIMORTGAGE INC. AND SOUTHERN WASTE DISPOSAL INC. APPELLEES

          DATE OF JUDGMENT: 04/10/2017

          LAUDERDALE COUNTY CIRCUIT COURT HON. LESTER F. WILLIAMSON JR. JUDGE

          ATTORNEYS FOR APPELLANT: WAYNE E. FERRELL JR. BRADLEY S. CLANTON

          ATTORNEYS FOR APPELLEES: J. RICHARD BARRY REED COCHRAN DARSEY REID STEPHENS MANLEY JAMES CORNELIUS GRIFFIN MATTHEW RICHARD WATSON CHRISTOPHER DANIEL MEYER

          BEFORE LEE, C.J., FAIR AND WILSON, JJ.

          LEE, C.J.

         ¶1. 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, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. 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.

         ¶3. 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.

         ¶4. 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 conservatorship.

         ¶5. 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.

         ¶6. 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.

         ¶7. 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. ยง 15-1-49 (Rev. 2012). Community Bank and Southern Waste filed similar motions. Brown-Howle responded that ...


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