Deramus v. Pierce

904 So. 2d 1104, 2004 Miss. App. LEXIS 980, 2004 WL 2283556
CourtCourt of Appeals of Mississippi
DecidedOctober 12, 2004
DocketNo. 2003-CA-00641-COA
StatusPublished

This text of 904 So. 2d 1104 (Deramus v. Pierce) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Deramus v. Pierce, 904 So. 2d 1104, 2004 Miss. App. LEXIS 980, 2004 WL 2283556 (Mich. Ct. App. 2004).

Opinion

KING, C.J.,

for the Court.

¶ 1. Jody H. Deramus filed a complaint against J.L. Pierce and Mary Frances Pierce to cancel deed, remove cloud, and confirm title in the Chancery Court of Winston County. The Pierces filed a motion for summary judgment which was [1105]*1105granted by the chancery court. On appeal, Deramus has raised the following issue:

Whether the chancery court erred in granting summary judgment in favor of the Pierces.

FACTS

¶ 2. At some point prior to 1988, Dera-mus and her late husband (Frank Dera-mus who died in June 1991) obtained a loan from Midland Savings and Loan (Midland) which was secured by a mortgage on their residential property described as:

Lot 9 and the East 2/3 of Lot 10, Wood-lawn Addition to the City of Louisville, Mississippi, according to the official plat on file in the Office of the Chancery Clerk of Winston County, Mississippi.

After merging with Midland, Unifirst Bank for Savings and Loan Association (Uni-first) held the Deramus’ mortgage. In 1988, Deramus failed to make payments on the loan.

¶ 3. About June 15, 1990, Unifirst was placed in receivership by the Federal Deposit Insurance Corporation (FDIC). Resolution Trust Corporation (RTC) was the receiver for Unifirst. The FDIC foreclosed on the property pursuant to a deed of trust executed on October 19, 1990.

¶ 4. On September 15, 1991, the FDIC held an auction to sell the property where the Pierces were the highest bidders. They offered $86,000 for the property.

¶ 5. On November 7, 1991 and December 4, 1991, Deramus, through her attorney, wrote the Pierces and indicated that their purchase of this property was a possible violation of the restrictive covenants.

¶ 6. Deramus states that there was an oral agreement with the FDIC, allowing her to redeem this property for $96,500. According to Deramus, in reliance upon this oral agreement, she drove to the FDIC office in Baton Rouge, Louisiana, where she tendered a check, dated November 27, 1991, for $96,500 to redeem the property. The FDIC refused to accept Deramus’ check for redemption of the property.

¶ 7. On December 20, 1991, the Pierces tendered the agreed sale price and closed on their purchase.

¶ 8. According to the Pierces, on December 17, 1992, Deramus filed a complaint in the United States District Court for the Northern District of Mississippi against the FDIC and the Pierces which (1) alleged breach of an oral agreement, (2) requested money damages, and (3) requested that the sale to the Pierces be set aside and the property be sold to her.

¶ 9. About September 7, 1993, the Pierces filed a motion for summary judgment in the district court. On July 26, 1994, the district court granted the summary judgment motion. The district court held that the Pierces were bona fide purchasers. The court also noted that pursuant to Mississippi Code Annotated Section 15-3-1 (1972) agreements to purchase land must be in writing.

¶ 10. On August 25, 1997, the FDIC asked the United States District Court for the Northern District of Mississippi to dismiss Deramus’ claims, because the failure to exhaust her administrative remedies precluded jurisdiction. On September 8, 1997, the district court granted the FDIC’s motion and dismissed Deramus’ claims without prejudice.

¶ 11. Deramus later filed a notice of appeal with the United States Court of Appeals for the Fifth Circuit. On April 12, 1999, the United States Court of Appeals for the Fifth' Circuit entered an opinion affirming the district court’s decision and stated that Deramus “failed to present any evidence that there was a genuine dispute [1106]*1106as to any material fact or that the Pierces were not entitled to judgment as a matter of law.”

¶ 12. On December 14, 2001, Deramus filed a complaint against the Pierces to cancel deed, remove cloud, and confirm title in the Winston County Chancery Court.

¶ 13. On January 17, 2002, the Pierces filed their answer and defenses. On November 4, 2002, the Pierces filed a motion for summary judgment. On January 24, 2003, the chancery court granted the Pierces’ motion.

¶ 14. On February 17, 2003, Deramus filed a notice of appeal.

ISSUE AND ANALYSIS

¶ 15. Deramus contends that the chancellor erred in granting the Pierces’ summary judgment motion. This Court applies the following standard of review when determining whether the grant or denial of a motion for summary judgment was appropriate:

We review de novo the record on appeal from a grant of a motion for summary judgment. In Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1983), we interpreted Rule 56 and the standards that the trial courts should use in considering a motion for summary judgment. We explained that the trial court must review carefully all of the eviden-tiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If in this view the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise the motion should be denied. Gulf Guaranty Life Insurance Co. v. Duett, 671 So.2d 1305, 1307 (Miss.1996) (quoting Northern Elec. Co. v. Phillips, 660 So.2d 1278, 1281 (Miss.1995))[;] Delta Pride Catfish, Inc. v. Home Ins. Co., 697 So.2d 400, 402-3 (Miss.1997).

Madison v. DeSoto County, 822 So.2d 306(¶ 15) (Miss.Ct.App.2002).

¶ 16. Deramus claims that there are genuine issues of material fact in dispute between the parties. However, most of the issues raised by Deramus are matters which relate to her dealings with the FDIC and the RTC, dealings to which the Pierces were not a party.

¶ 17. As to the Pierces, Deramus raises a question as to whether or not the sale of this property to the Pierces violated restrictive covenants and zoning regulations. Deramus specifically argues that the issues which she broaches in this action have not been previously litigated and are therefore not res judicata. As to the only issue raised by Deramus concerning actions of the Pierces, that being the alleged violations of the restrictive covenants and zoning regulations, the United States District Court for the Northern District of Mississippi held that Deramus as a private individual was not authorized to pursue an action for violations of restrictive covenants and zoning regulations, “except where the use constitutes a nuisance per se or the individual has suffered or is threatened with special damage.” Robinson v. Indianola Mun. Separate School Dist., 467 So.2d 911, 918 (Miss.1985). The court held that Deramus failed to provide evidence relating to either exception. That ruling accurately reflects the law of this state. Clearly that issue has been litigated to conclusion in the federal court system and is now res judicata. Under the doctrine of res judicata, “[a] final judgment on the merits bars further claims by parties or their privies based on the same cause of action.” Williams v. [1107]*1107Vintage Petroleum, Inc., 825 So.2d 685(¶ 10) (Miss.Ct.App.2002).

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Related

Brown v. Credit Center, Inc.
444 So. 2d 358 (Mississippi Supreme Court, 1983)
Gulf Guar. Life Ins. Co. v. Duett
671 So. 2d 1305 (Mississippi Supreme Court, 1996)
Robinson v. Indianola Mun. Separate Sch. Dist.
467 So. 2d 911 (Mississippi Supreme Court, 1985)
Board of Educ. of Lamar County v. Hudson
585 So. 2d 683 (Mississippi Supreme Court, 1991)
Williams v. Vintage Petroleum, Inc.
825 So. 2d 685 (Court of Appeals of Mississippi, 2002)
Northern Elec. Co. v. Phillips
660 So. 2d 1278 (Mississippi Supreme Court, 1995)
Madison v. Desoto County
822 So. 2d 306 (Court of Appeals of Mississippi, 2002)
Delta Pride Catfish, Inc. v. Home Ins. Co.
697 So. 2d 400 (Mississippi Supreme Court, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
904 So. 2d 1104, 2004 Miss. App. LEXIS 980, 2004 WL 2283556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deramus-v-pierce-missctapp-2004.