Vera Mae Miller Wood v. Emma Miller

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2013-CA-00620-COA

VERA MAE MILLER WOOD, RUBY MILLER APPELLANTS
BARNES, ELOISE MILLER WORTHINGTON,
NANNIE MILLER MOTEN, MARY ANN
MILLER, EARL MILLER, CLEOTHA MILLER,
MAGNOLIA MILLER, ALBERTA MILLER
FOUNTAIN, MAGGIE MILLER AND
ANDERSON MILLER, JR.

v.

EMMA MILLER, CARL LEON MILLER, APPELLEES
SYLVIA KAY MILLER, AUDREY H. KEMP
AND DONNA MICHELLE SMITH

DATE OF JUDGMENT: 03/01/2013
TRIAL JUDGE: HON. CYNTHIA L. BREWER
COURT FROM WHICH APPEALED: YAZOO COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS: DANIEL ELLIS MORRIS
ATTORNEYS FOR APPELLEES: JAMES MORTIMER CREWS III
RICHARD J. ROHMAN
NATURE OF THE CASE: CIVIL - REAL PROPERTY
TRIAL COURT DISPOSITION: DETERMINATION OF HEIRSHIP AND
PARTITION IN KIND OF 261 ACRES OF
REAL PROPERTY
DISPOSITION: AFFIRMED - 06/02/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE GRIFFIS, P.J., ROBERTS AND FAIR, JJ.

ROBERTS, J., FOR THE COURT:

¶1. This appeal concerns the Yazoo County Chancery Court’s partition of 261 acres of
agricultural property among sixteen people. For the first time on appeal, Appellants1 claim

that they obtained portions of the property through adverse possession, and that the will that

devised some of the property to two of the Appellees was invalid. Because those issues are

procedurally barred, we affirm the chancellor’s judgment.

FACTS AND PROCEDURAL HISTORY

¶2. When Anderson Miller died in 1929, he left his 261-acre property to his two sons,

Thornton and Thomas Miller. As tenants in common, Thornton and Thomas each owned an

undivided one-half interest in the property. Thornton died intestate in 1982. His widow,

Magnolia Miller, was his only heir-at-law. After the administration of Thornton’s estate,

Magnolia became the owner of his one-half undivided interest in the property. Magnolia

died in 1986. Through her will, Magnolia left her entire estate in equal shares to Audrey

Kemp and Donna Smith.

¶3. Anderson’s other son, Thomas, died intestate in 1984. Thomas’s estate was never

administered. His sons Albert, Anderson, Sylvester, and Willie inherited his undivided one-

half interest in the property. However, because Willie died with no heirs, his interest in the

property went to the heirs of his brothers. As a result, Albert, Anderson, and Sylvester each

had an undivided one-sixth interest in the property. Their interests in the property descended

through them on to their heirs.

¶4. After Albert died, his nine children inherited his interest in the property. Anderson’s

1
We typically refrain from using general designations such as “Appellants.” We
make an exception in this case based on the difficulty involved in collectively referring to
the eleven appellants by name.

2
interest went to his widow and son. Collectively, Albert’s heirs and Anderson’s heirs are the

eleven appellants. Sylvester’s interest went to his widow and his two children. Sylvester’s

heirs are three of the five appellees. Appellants have not asserted any claims against them.

¶5. In 2004, Kemp and Smith filed a complaint to confirm and quiet title to the property,

determine heirship, and partition the property. They amended their complaint in 2007. In

early 2009, Judge Janace Harvey-Goree2 conducted a hearing on Kemp and Smith’s amended

complaint. On April 16, 2009, the chancellor entered a judgment confirming and quieting

title to the property. The chancellor also ordered that the property be partited.

Approximately one year later, the commissioners filed their report detailing the method by

which the property would be partited into three shares.

¶6. In October 2010, Appellants filed a separate petition in the same cause and sought to

obtain title to all of the property by adverse possession. Appellants’ petition was not filed

as a counterclaim. Appellants never scheduled a hearing on their petition, and they never

presented any evidence to support their claim.

¶7. In May 2012, the chancellor entered a judgment confirming the commissioners’

report. The chancellor awarded one share to Appellants, one share to Sylvester’s heirs, and

one share to Kemp and Smith. In August 2012, Kemp, Smith, and Sylvester’s heirs filed a

motion to recover the agricultural rent that was forfeited as a result of Appellants’ refusal to

allow anyone to lease the property for farming purposes. In March 2013, Judge Brewer held

that Appellants owed Kemp and Smith $70,000 in unpaid rental fees. She also held that

2
Judge Harvey-Goree was the original chancellor in the case. In August 2012, Judge
Harvey-Goree recused and transferred the case to Judge Cynthia Brewer.

3
Appellants owed Sylvester’s heirs approximately $23,000 in unpaid rental fees.

¶8. On appeal, Appellants claim that Judge Harvey-Goree erred when she found that

Kemp and Smith had inherited Thornton’s interest in the property through his widow,

Magnolia. Additionally, Appellants claim that they had adversely possessed all of the

property. Appellants raise no arguments regarding the determination of heirship, the partition

of the property, or the order instructing them to pay waste.

STANDARD OF REVIEW

¶9. We will not disturb a chancellor’s findings of fact “unless the chancellor applied the

wrong legal standard, or the findings are manifestly wrong or clearly erroneous.” In re

Jones, 138 So. 3d 205, 208 (¶7) (Miss. Ct. App. 2014). We review questions of law de novo.

Id.

ANALYSIS

I. INHERITANCE

¶10. Appellants argue that the chancellor erred when she found that Kemp and Smith had

inherited Thornton’s undivided one-half interest in the property through his widow,

Magnolia. Through her will, Magnolia left her entire estate to Kemp and Smith in equal

shares. Magnolia’s will was accepted for probate in 1986. According to Appellants,

Magnolia’s will was not properly authenticated; all of the interested parties were not notified

that her will was going to be probated; and her will did not expressly devise the property at

issue.

¶11. Appellants did not raise this argument before the chancellor. “It is well[]settled that

4
issues presented for the first time on appeal are procedurally barred from consideration.”

Lewis v. Forest Family Practice Clinic P.A., 124 So. 3d 654, 658 (¶16) (Miss. 2013).

Furthermore, Mississippi Code Annotated section 91-7-23 (Rev. 2013) provides:

Any person interested may, at any time within two years, by petition or bill,
contest the validity of the will probated without notice; and an issue shall be
made up and tried as other issues to determine whether the writing produced
be the will of the testator or not. If some person does not appear within two
years to contest the will, the probate shall be final and forever binding, saving
to infants and persons of unsound mind the period of two years to contest the
will after the removal of their respective disabilities. In case of concealed
fraud, the limitation shall commence to run at, and not before, the time when
such fraud shall be, or with reasonable diligence might have been, first known
or discovered.

Magnolia’s will was probated in 1986. Appellants have never raised any claim related to

concealed fraud. Because this issue is procedurally barred and untimely, we will not review

it on appeal.

II. ADVERSE POSSESSION

¶12. Next, Appellants claim that the chancellor should have found that they had adversely

possessed Kemp and Smith’s interests in the property. Appellants filed a petition for adverse

possession, but they never scheduled a hearing on the matter. On October 29, 2012, the

parties convened for a hearing on Kemp and Smith’s motion to pay waste. During

preliminary discussions regarding any matters pending before the chancellor, Appellants’

attorney conceded that he had not scheduled a hearing on the adverse-possession claim. He

indicated that he would schedule a hearing at a later date. He never did. Consequently, the

chancellor never had an opportunity to rule on this issue. It follows that this issue is also

procedurally barred. See Lewis, 124 So. 3d at 658 (¶16).

5
¶13. THE JUDGMENT OF THE YAZOO COUNTY CHANCERY COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., NOT PARTICIPATING.

6