In the Matter of the Estate of Marion King, Deceased: Susan Atkins and Kevin Atkins v. Joyce King

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-CA-01764-COA

IN THE MATTER OF THE ESTATE OF APPELLANTS
MARION KING, DECEASED:
SUSAN ATKINS AND KEVIN ATKINS

v.

JOYCE KING APPELLEE

DATE OF JUDGMENT: 11/20/2018
TRIAL JUDGE: HON. C. MICHAEL MALSKI
COURT FROM WHICH APPEALED: MONROE COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS: BEN LOGAN
ATTORNEY FOR APPELLEE: SARAH CLINE STEVENS
NATURE OF THE CASE: CIVIL - WILLS, TRUSTS, AND ESTATES
DISPOSITION: AFFIRMED - 05/26/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

J. WILSON, P.J., FOR THE COURT:

¶1. The executors of the estate of Marion King appeal from a judgment holding that the

assets of a pest control business that King once owned and operated were the property of

King’s wife, Joyce, and not of his estate. The chancery court’s judgment is supported by

substantial evidence. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Marion King departed this life in August 2012. He was eighty-seven years old. He

was survived by his wife of thirty-two years, Joyce, and his daughter, Susan Atkins.

Marion’s will named Susan and her husband, Kevin Atkins, as co-executors and left his
entire estate to Joyce, Susan, and Kevin to “share and share alike,” i.e., one-third to each.

The executors filed a petition to probate the will, and Joyce waived process and joined the

petition. The chancery court granted the petition.

¶3. In 2015, the executors filed a motion to compel an accounting and determine

ownership of a business (Mid South Pest Control1) and to require Joyce to deliver assets of

the business to the estate. The executors alleged that Marion owned Mid South Pest Control,

an unincorporated sole proprietorship or partnership, at the time of his death and that Joyce

had wrongfully “converted” the business’s assets to her “exclusive use and control.”

¶4. In March 2018, the chancery court ruled that Joyce was “the sole and rightful owner

of Mid South Pest Control” and that Marion’s estate “own[ed] no interest in the business.”

The court cited a purchase agreement, promissory note, and bill of sale, all signed in 1989

or 1990, by which Marion had conveyed Mid South Pest Control to Joyce. The court also

cited an operating agreement for Mid South Pest Control LLC, dated October 1, 2012, that

named Joyce and her son, Jerry Hadaway, as the LLC’s two owners/members.2 The court

further stated that the executors had failed to appear at the March 2018 hearing on the matter.

The court ruled that “any claims of ownership . . . of Mid South Pest Control other than those

asserted by Joyce . . . [were] dismissed with prejudice and [that] ownership of Mid South

Pest Control [was] confirmed solely in Joyce.”

1
“Mid South” is hyphenated in some documents, but more often it is not. We omit
the hyphen throughout this opinion, including in direct quotations from the record.
2
Hadaway passed away in 2017. Pursuant to the operating agreement, his interest
in the LLC passed to Joyce upon his death.

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¶5. In June 2018, the executors filed a motion to set aside the March 2018 order. They

alleged that they did not receive notice of the March 2018 hearing and that the court’s ruling

against the estate was entered by mistake. The court subsequently granted the executors’

motion to set aside the March 2018 order and set the matter for a new hearing.

¶6. Following the hearing, the chancellor entered a memorandum opinion and judgment.

The chancellor again held that Joyce was “the sole and rightful owner of Mid South Pest

Control” and that Marion’s estate “own[ed] no interest in Mid South Pest Control.” The

chancellor reached this conclusion for two reasons. First, the chancellor stated that the

executors’ claim appeared to be barred by an October 2017 agreed order entered in Jerry

Hadaway’s estate (Hadaway), which was also pending before the same chancellor. The

Hadaway order found that Marion had conveyed Mid South Pest Control to Joyce and,

therefore, that Marion owned no interest in the business at the time of his death. For that

reason, the Hadaway order denied a similar claim that the executors, on behalf of Marion’s

estate, had asserted against Hadaway’s estate. Second, the chancellor stated that even if the

Hadaway order “did not exist,” he would have reached “the same conclusion” based on the

evidence and testimony presented in this case. Accordingly, the court held that the estate’s

claims to ownership of the assets of Mid South Pest Control were “dismissed with

prejudice.” The executors filed a notice of appeal from the chancery court’s judgment.

ANALYSIS

¶7. On appeal, the executors argue that the Hadaway order does not bar their claim and

that the chancellor erred by finding that Marion validly conveyed Mid South Pest Control to

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Joyce prior to his death. Joyce argues that the chancellor’s ruling was correct and should be

affirmed. She also suggests that this Court lacks jurisdiction because the chancery court’s

judgment was not final and appealable. We address the jurisdictional issue first.

¶8. As set out above, the executors allege that Joyce wrongfully converted assets that

belong to Marion’s estate, and they seek to recover those assets on behalf of the estate. The

chancery court’s judgment declared Joyce the “sole and rightful owner” of the disputed assets

and “dismissed” the executors’ claim against her “with prejudice.” The judgment is final and

appealable because it finally adjudicates and dismisses (with prejudice) the estate’s claim

against Joyce for the return of the disputed assets. The Supreme Court and this Court have

previously exercised jurisdiction over appeals from judgments deciding similar claims filed

by executors to recover assets that allegedly belonged to an estate. See Johnson v. Collins,

419 So. 2d 1029 (Miss. 1982); In re Estate of Hemphill, 186 So. 3d 920 (Miss. Ct. App.

2016). In addition, the Supreme Court and this Court have specifically held that a judgment

allowing or disallowing a creditor’s claim against an estate is final and appealable. In re

Estate of Philyaw, 514 So. 2d 1232, 1236-37 (Miss. 1987) (holding that a decree allowing

a contested claim is appealable even if the estate remains open); In re Estate of Holmes, 188

So. 3d 1229, 1232 n.3 (Miss. Ct. App. 2015) (“[B]oth the Mississippi Supreme Court and this

[C]ourt have exercised appellate jurisdiction over timely appeals from orders either allowing

or disallowing claims against still-open estates.”). There is no sound or logical reason to

require an immediate appeal from a judgment allowing or disallowing a creditor’s claim

against an estate but prevent an immediate appeal from a judgment dismissing a claim

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brought by an estate. Therefore, we hold that the chancery court’s judgment was final and

appealable.

¶9. As to the merits of the appeal, we will affirm the judgment of the chancery court if it

is supported by substantial evidence, unless the chancellor abused his discretion, clearly or

manifestly erred, or applied the wrong legal standard. In re Estate of Hemphill, 186 So. 3d

at 932 (¶46). The chancellor, as the trier of fact, is the sole judge of the credibility of

witnesses and the weight of the evidence. Mayton v. Oliver, 247 So. 3d 312, 322 (¶¶33-34)

(Miss. Ct. App. 2017). We review questions of law de novo. In re Estate of Hemphill, 186

So. 3d at 932 (¶47).

¶10. The executors argue that the chancellor erred by holding that the order in Hadaway

barred their claim in this case. The Hadaway order purports to be an agreed order presented

and signed by counsel opposite with the permission of the executors’ attorney. On appeal,

the executors allege that their attorney never reviewed or approved the order—though, as

Joyce notes, the executors made no such allegation in the trial court. The executors also

argue, inter alia, that the Hadaway order does not bar their claim because they voluntarily

dismissed their claim in Hadaway once they learned that the Hadaway estate had no claim

to an ownership interest in Mid South Pest Control based on the terms of the LLC operating

agreement. See supra n.2. Although we acknowledge the executors’ arguments on this

issue, we conclude that it is unnecessary to address the preclusive effect of the Hadaway

order. As the chancellor found, the evidence and testimony presented in this case is

sufficient to establish Joyce’s ownership of Mid South Pest Control.

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¶11. Joyce produced a promissory note and an agreement to sell Mid South Pest Control,

both dated December 27, 1989, and a bill of sale for Mid South Pest Control dated January

2, 1990. Marion signed the agreement and the bill of sale, and Joyce signed the agreement

and the promissory note. There is no allegation or evidence that Marion’s signatures were

forged, that he was not competent to sign the documents, or that the agreement was the

product of fraud or duress. On their face, the documents show that Marion sold Mid South

Pest Control and all of its assets to Joyce in exchange for her promise to pay him $20,000.

Joyce testified that she subsequently paid Marion $20,000, though she no longer had records

of the payments. She also testified that she had worked in the business—answering the

phone and doing the bookkeeping, payroll, and taxes—throughout her thirty-two year

marriage to Marion without ever receiving a paycheck. According to Joyce, Marion decided

to sell her the business in 1989 for reasons that had to do with his or her future Social

Security benefits. After Marion’s death, Joyce and her son, who also worked in the business,

formed an LLC to conduct business. As noted above, Joyce’s son died in 2017, at which

point she again became the sole owner of the business.

¶12. The executors presented evidence that until his death, Marion continued to be listed

as the proprietor or owner of Mid South Pest Control in various tax forms, licenses and

certifications, and advertisements. However, Joyce testified that by the time of his death at

age eighty-seven Marion did little or no work in the business. Joyce testified that Marion

continued to hold himself out as the owner as a matter of “pride,” and she never objected

because she “didn’t want to hurt his feelings.” She also testified that he continued to be

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listed on various forms just because she or the accountant “never changed” them.

¶13. Based on all of the evidence, the chancellor found that Marion validly sold Mid South

Pest Control and all of its assets to Joyce in 1989, long before his death, and that Joyce

thereafter ran the business and was its legal owner. Thus, the chancellor found that Joyce

was “the sole and rightful owner of Mid South Pest Control” and that Marion’s estate had

no ownership interest in the business or its assets. The chancellor’s ruling is supported by

substantial evidence, and the executors have identified no legal error in the judgment.

¶14. AFFIRMED.

CARLTON, P.J., GREENLEE, TINDELL, LAWRENCE, McCARTY AND C.
WILSON, JJ., CONCUR. WESTBROOKS, J., DISSENTS WITH SEPARATE
WRITTEN OPINION, JOINED BY BARNES, C.J., AND McDONALD, J.

WESTBROOKS, J., DISSENTING:

¶15. The majority affirms the chancery court’s decision regarding the ownership of Mid

South Pest Control. While I do not disagree with the majority regarding the ultimate

outcome of this case as it pertains to the ownership of Mid South Pest Control, the majority

does not, in my opinion, adequately address the issue of jurisdiction. Because I find the

jurisdictional issue has merit, as discussed below, I respectfully dissent.

¶16. Even if the parties fail to raise the issue, “this Court is required to note its own lack

of jurisdiction.” Michael v. Michael, 650 So. 2d 469, 471 (Miss. 1995). “Generally, parties

may only appeal from a final judgment.” Walters v. Walters, 956 So. 2d 1050, 1053 (¶8)

(Miss. Ct. App. 2007). “A final, appealable judgment is one that adjudicates the merits of

the controversy which settles all issues as to all the parties and requires no further action by

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the [chancery] court.” Id. at 1053 (¶8). “Without a Rule 54(b) certification, an interlocutory

order is only appealable if the Mississippi Supreme Court grants permission under Rule 5 of

the Mississippi Rules of Appellate Procedure; this Court has no jurisdiction to hear it

otherwise.” Jeffers v. Sagat, 235 So. 3d 103, 106 (¶8) (Miss. Ct. App. 2017) (citations

omitted). Even though the judgment is final as to one issue, for such a judgment

“adjudicating fewer than all of the claims to be made final and appealable under Rule 54(b),

the trial court must make an expressed direction for the entry of final judgment and an

expressed determination that there is no just reason for delay.” Id. at (¶10) (quoting Walters,

956 So. 2d at 1054 (¶12)).

¶17. This Court has consistently held trial courts to a relatively strict adherence to the

language referenced in Walters and Jeffers. Specifically, in Jeffers, this Court explained how

explicit the trial courts must be:

However, the chancery court did not certify the judgment under Rule 54(b).
‘For a judgment adjudicating fewer than all of the claims to be made final and
appealable under Rule 54(b), the trial court must make an expressed direction
for the entry of final judgment and an expressed determination that there is no
just reason for delay.’ Walters, 956 So. 2d at 1054 (¶12). Here, while the
chancellor directed the entry of a final judgment, satisfying the first
requirement, nowhere in the order does the chancellor state that there is no
reason for delay. Therefore, we find the judgment was not a final, appealable
order.

Jeffers, 235 So. 3d at 106 (¶10).

¶18. With specific regards to estates, this Court has addressed such matters in Rush

Foundation Hospital v. Carlisle, 269 So. 3d 222 (Miss. Ct. App. 2018). In Rush, this Court

agreed with the precedent cited above by stating that the “[t]rial judge’s decision whether to

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certify a judgment as final under Rule 54(b) is discretionary. However, should he elect to

certify the judgment as final under Rule 54(b), he must do so in a definite, unmistakable

manner.” Id. at 225 (¶7). The estate in Rush, like the estate in the case currently before this

Court, acknowledged In re Estate of Philyaw, 514 So. 2d 1232 (Miss. 1987). In Philyaw, our

Supreme Court held that a decree allowing a creditor’s claim against the estate was final for

purposes of beginning the thirty-day period in which an administrator may appeal. Id. at

1236-37. This Court in Rush made several distinctions by stating “Estate of Philyaw

considered a judgment that resolved all disputed issues. In addition, Estate of

Philyaw reviewed an issue from an estate filed in 1981, prior to the effective date of [the]

Mississippi Rules of Civil Procedure.” Rush, 269 So. 2d at (¶8). In holding that there was

no final judgment in Rush, this Court stated that “the June 23, 2016 judgment denying Rush’s

claim did not adjudicate all claims, rights, and liabilities involved. No Rule 54(b)

certification appears in the record; thus, the judgment was interlocutory.” Id. at (¶10)

(citations omitted).

¶19. Looking at the instant case, the judgment entered by the chancellor was a dismissal

of several pending motions, including a motion to compel, filed by Marion’s estate

attempting to determine ownership of Mid South Pest Control. All parties involved have

other potential and already accrued interests in the subject estate besides the ownership of

Mid South Pest Control. The chancery court made no express certification in the judgment

as required in Rule 54 and as outlined in Jeffers. In fact, the language used by the chancellor

expressly references other claims not resolved by the subject order as outlined in paragraph

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21 of the subject order:

Accordingly, based upon the testimony and documentary evidence the Court
finds (1) that Joyce King is the sole and rightful owner of Mid South Pest
Control, (2) the Estate of Marion King owns no interest in Mid South Pest
Control, and (3) any and all claims asserted against Mid South Pest Control,
except those of Joyce King, are dismissed with prejudice.

Based upon the authority referenced in this opinion and the chancellor’s own choice of

language in the subject order, it is ambiguous at best as to whether or not the chancery court

intended this to be a final appealable order. As discussed in Rush, supra, there was no Rule

54(b) certification or any language coming close to the requirements. Had the chancellor

included such language, we might not be here, but he did not. The very purpose of the

requirements of Rush is to prevent spending time discussing whether or not an order is

appealable. What language was included leaves open to interpretation what was intended.

As such, I would remand this case and request that the order be amended to specifically

reflect the language required for appealable orders.

¶20. The judgment was not a final appealable order. Absent a specific expression and

certification from the chancery court, this interlocutory matter is not properly within the

jurisdiction of this Court. I would dismiss this appeal for lack of jurisdiction and remand this

matter to the chancery court for clarification of the order pursuant to this opinion. Therefore,

I respectfully dissent.

BARNES, C.J., AND McDONALD, J., JOIN THIS OPINION.

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