Bailey v. Estate of Kemp

955 So. 2d 777, 2007 WL 852045
CourtMississippi Supreme Court
DecidedMarch 22, 2007
Docket2005-CA-01468-SCT
StatusPublished
Cited by39 cases

This text of 955 So. 2d 777 (Bailey v. Estate of Kemp) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bailey v. Estate of Kemp, 955 So. 2d 777, 2007 WL 852045 (Mich. 2007).

Opinion

955 So.2d 777 (2007)

Brian A. BAILEY and Janet M. Bailey Lapp
v.
The ESTATE OF William G. KEMP, Deceased, Joe Karr, Executor, Andrew T. Moses, Jr. and Martha Kemp.

No. 2005-CA-01468-SCT.

Supreme Court of Mississippi.

March 22, 2007.
Rehearing Denied May 24, 2007.

*779 John H. Freeland, Michael Reed Martz, John Taylor Moses, attorneys for appellants.

William K. Duke, Oxford, Thomas J. Suszek, Jonathan Masters, Clarksdale, Lynn Chain Cooper, Oxford, attorneys for appellees.

Before WALLER, P.J., DIAZ and DICKINSON, JJ.

DIAZ, Justice, for the Court.

¶ 1. This is a case about whether a contract granted property rights to two individuals.

STATEMENT OF THE CASE

¶ 2. After her husband died in 1976, Janet Bailey Lapp decided to use the proceeds from his life insurance policy to invest in real estate. She granted her son Brian Bailey, a graduate student at Purdue University, full power of attorney to purchase property and manage it as he wished. Brian invested the money into rental properties in Indiana and Florida, but by 1979 the investments had not gone as well as planned, and the decision was made to sell the struggling properties.

¶ 3. Bailey turned to a Holly Springs lawyer named William G. Kemp and a specialist in distressed real estate properties named Andrew Moses. Kemp had long provided legal representation for Janet Bailey Lapp. Strapped for cash, Bailey could not pay the two men for their services, so a deal was struck: Kemp and Moses would negotiate the legal and financial complexities of the sale of the properties in return for a cut of the proceeds. Janet Bailey Lapp would recoup her investment with interest, and the remaining amount would be split equally among Bailey, Kemp, and Moses.

¶ 4. The arrangement was detailed in a contract signed by five parties-Bailey and his wife Lynn, Janet Bailey Lapp, Kemp, and Moses. Each party to the contract *780 signed separately and before a notary public. Because of the geographical distances between the parties, it took roughly a month for the contract to be signed and finalized.[1] The contract, which purported to be retroactive to June 21, 1979, ran to eleven pages and covered in great detail the status of the Bailey family investments and the work Moses and Kemp would perform for the family. It emphasized the complexity of the work involved and the personal efforts Kemp and Moses had invested in the process; that the Bailey family currently had no funds with which to pay the two professionals; and that Kemp and Moses agreed to only be paid if the properties could be successfully sold.[2]

¶ 5. This formal contract also expressly incorporated a informal seven-page "memorandum of understanding" (MOU) that had been signed by the same parties on June 28, 1979. The MOU was much more detailed in setting forth the problems the Baileys would face in selling the properties and how the payments between the parties would occur.

¶ 6. The contract required that Brian Bailey and his wife execute a promissory note to his mother in the amount of $225,000, plus eight percent interest. This note would be offered as full compensation and restitution for her investment in the various properties and was to be accepted in lieu of profits from the sale. In other words, as the contract declared, the note was for any equity interest she had in the properties. After that note was satisfied, the remaining monies would be split equally three ways among the Baileys, Kemp, and Moses.

¶ 7. Nearly all the properties were sold over the following months, and the money was disbursed in accordance with the contract: Janet Bailey Lapp received the $225,000 plus interest due her, and Bailey, Moses, and Kemp each received roughly $109,000. There was also $19,623.89 left over from the various transactions, which was stored in the First State Bank in Holly Springs.

¶ 8. Still, one property remained—the Florida property, which was purchased in 1978 for $91,000, had yet to be sold. Over the course of the next decades it increased in value to nearly eight hundred thousand dollars. Who owns that land is the subject of today's appeal.[3]

¶ 9. Kemp passed away in 1998, and his estate filed a declaratory judgment action in Marshall County Chancery Court against Brian Bailey, Bailey's ex-wife, his mother, and Andrew Moses.[4] The action sought to formally establish that Kemp possessed a one-third interest in the Florida property, as well as a one-third interest *781 in the $19,623.89. Notably, the Estate of Kemp also asked that any property in which it was deemed to have an interest be sold.

¶ 10. Bailey and his mother then filed a complaint in Marshall County Chancery Court against the Estate of Kemp and Moses, among others, asking in pertinent part that any purported interest in the Florida property asserted by Kemp and Moses be set aside; that Kemp and Moses provide the Bailey family a full accounting for all funds handled over the years on their behalf; and alluding to professional negligence by Kemp and Moses. The case was consolidated with the ongoing declaratory judgment action.

¶ 11. The chancery court ultimately rendered a 32-page opinion and a 33-page judgment detailing its findings. Of the 95 findings of fact and judgment by the court, most were resolved in favor of the Estate of Kemp and for Moses. The contract and the MOU were read together, deemed valid, and the court found that "the inescapable conclusion is that the Agreement should be enforced as it is written and in the manner the parties intended in 1979." The court found that the claims by the Baileys against Kemp and Moses and their efforts to exclude them from the contract were barred by laches and the general statute of limitations for tort actions.

¶ 12. The $19,623.89 left in the bank was ordered divided in one-thirds among Brian Bailey, the Estate of Kemp, and Moses. The Florida property was ordered to be sold and the proceeds split in the same fashion. In the alternative, Bailey was given the option of having the land appraised and then paying two-thirds of the value to the Estate of Kemp and Moses to "buy out" their ownership.

¶ 13. Aggrieved, the Baileys sought relief from this Court, arguing six errors: first, that the Moses and the Estate of Kemp waited too long to seek an enforcement of their rights; second, that Indiana law should apply in this case; third, that Moses and Kemp cannot benefit from the contract without a Indiana real estate license; fourth, that Moses and Kemp took advantage of the Baileys' trust; fifth, that compound interest was warranted; and finally, that the transfer of Janet Bailey Lapp's home to Kemp was invalid.

¶ 14. As the Baileys asserted in their brief, "[t]his is not a complicated case." We agree. At its heart, this is simply a contract dispute. The multiple assignments of error—which span 93 pages, far in excess of the extremely permissive 75 pages allowed by MRAP 28(g)—really state only two claims: first, is the contract entered into by the parties in 1979 still enforceable, and if so, to what extent? Second, was the transfer of Janet Bailey Lapp's house to her attorney William Kemp valid? We will consider Moses' request for attorneys' fees separately.

Standard of Review

¶ 15. On review, we generally defer to a chancery court's findings of fact unless they are manifestly wrong or clearly erroneous. Saliba v. Saliba, 753 So.2d 1095, 1098 (Miss.2000). We use a de novo standard of review when examining questions of law decided by a chancery court. Id.

¶ 16.

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Bluebook (online)
955 So. 2d 777, 2007 WL 852045, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-v-estate-of-kemp-miss-2007.