Gallegos v. Mid-South Mortg. & Inv., Inc.

956 So. 2d 1055, 2007 WL 1334485
CourtCourt of Appeals of Mississippi
DecidedMay 8, 2007
Docket2005-CA-01521-COA
StatusPublished
Cited by7 cases

This text of 956 So. 2d 1055 (Gallegos v. Mid-South Mortg. & Inv., Inc.) 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
Gallegos v. Mid-South Mortg. & Inv., Inc., 956 So. 2d 1055, 2007 WL 1334485 (Mich. Ct. App. 2007).

Opinion

956 So.2d 1055 (2007)

Jesse Carmichael GALLEGOS and Greg V. Gallegos, Appellants
v.
MID-SOUTH MORTGAGE & INVESTMENT, INC., David C. Hand, Randall K. Fisher and R.G. Thomas, Appellees.

No. 2005-CA-01521-COA.

Court of Appeals of Mississippi.

May 8, 2007.

*1056 Daniel M. Czamanske David A. Burns, attorneys for appellants.

Gary B. Jones, Meridian, attorneys for appellees.

David C. Hand, pro se.

Randall K. Fisher, pro se.

Before KING, C.J., CHANDLER and ISHEE, JJ.

KING, C.J., for the Court.

¶ 1. Jesse Carmichael Gallegos and Greg V. Gallegos appeal the chancellor's decision to grant the appellees' Mississippi Rule of Civil Procedure 41(b) motion to dismiss following the presentation of the Gallegos' case-in-chief at trial. The Gallegos' sole issue on appeal is whether the chancellor erred in granting the motion to dismiss. Finding no error, this Court affirms.

FACTS

¶ 2. Jesse Gallegos is a bookkeeper with a local bank. At the time of the trial, she had twenty years' experience at that bank, in which she did general bookkeeping and where she had previously worked as a key punch operator. Her husband, Greg Gallegos, was retired from the military and worked for a local aviation company. Jesse owned four adjoining parcels of land in Lauderdale County, which totaled more than forty-nine acres. Three of the parcels were inherited from her mother, and she had purchased the last one herself.

¶ 3. On June 29, 2000, the Gallegoses were facing foreclosure on a property that is not the subject of this action. The foreclosure was scheduled for the following *1057 day—June 30, 2000. Jesse had a chance encounter with Appellee R.G. (Gail) Thomas on June 29 and mentioned that she needed some money to stop the foreclosure. Thomas suggested a timber option on the four parcels of land that Jesse owned and which were not subject to the foreclosure scheduled for June 30, 2000. Thomas then approached Appellees David Hand and Randall Fisher, who were partners in a company called Mid-South Mortgage & Investment, Inc., to see if they were interested in the option. Thomas had served as an agent for Hand and Fisher prior to this date and ordinarily received a finder's fee for her services. Hand and Fisher agreed to supply the money to purchase the timber option.

¶ 4. That afternoon, Jesse and Thomas signed a fifteen-day timber option contract on two of the four parcels. Jesse received $3,000 for the option, which was used to stop the foreclosure on the unrelated property. According to the contract, Jesse would receive an additional $22,000 if Thomas "or her assigns" decided to exercise the option. On June 30, 2000, Jesse and Thomas signed another option contract. The new contract provided for a timber option on all four parcels of property, as opposed to the two parcels named in the first contract, and extended the expiration date of the option from fifteen days to two years.

¶ 5. Shortly thereafter, Hand and Fisher viewed the property with Greg Gallegos. After seeing the property but without having a professional estimate—known as a "timber cruise"—done, Hand and Fisher decided to exercise the option. They arranged for payment of the additional $22,000 to Jesse. After Hand and Fisher, through their company Mid-South Mortgage & Investments, Inc., paid the back taxes and other outstanding liens on the property, Jesse received a check for $7,575. Jesse executed the timber warranty deed to "R.G. Thomas and/or his [sic] assigns" on July 13, 2000.

¶6. Hand and Fisher immediately began plans to remove the timber from Jesse's land. They quickly discovered, however, that the value of the timber was far less than the $25,000 that they had paid for it. They expressed their displeasure to Thomas, who in turn contacted Jesse and informed her that Hand and Fisher were unhappy with the deal and wished to speak with her. Jesse testified that Thomas came to her house "and she had a piece of paper and she had 35,000 some dollars and she said you have got to pay this back. This is what you owe and this—and you have got to find a way to pay this back."

¶7. Jesse met with Hand and Fisher at Mid-South's office on July 27, 2000. Jesse testified that Hand and Fisher "told me that I had to put my land up for the amount of money that I got. That they had to have their money back and I had to put my land up." Jesse testified further that she "did feel that the money should be paid back. I didn't feel that I had misrepresented the land lines or the timber, but I did get the $25,000." At that meeting, Hand and Fisher, acting as Mid-South, provided her with the option to sign a promissory note for $35,733. Jesse declined to sign the note, stating that she needed to discuss the matter with her husband. Two days later, she signed the promissory note and executed a deed of trust to Mid-South and Fisher naming three of the four parcels cited in the timber deed as security for the promissory note.

¶ 8. Both Hand and Fisher testified that when Jesse signed the promissory note, she received $10,000 in cash. The chancellor heard testimony regarding the discrepancy between the first payment to Jesse, which was made by check, and this second, *1058 larger payment, which Hand and Fisher stated was made in cash, with only the promissory note as a receipt for the payment. Hand testified that he made the payment in cash because that was how Jesse wanted it done. He denied that to make such a large payment in cash was a bad business practice, stating, "I can say this, that is not the first time I have done cash deals before." Fisher also testified that he did not believe that making such a payment in cash would necessarily present a problem and cited the promissory note as the receipt. Jesse denied receiving this money, but she could not explain why she signed a promissory note for $10,733 more than the value she had received from the timber option contract, other than to state that Hand and Fisher promised her a "breakdown" of the amounts borrowed but never provided her with that information.

¶ 9. Following the signing of the promissory note on July 29, 2000, Jesse never made a payment on the note. On November 1, 2000, a corrected deed of trust, signed by Jesse, naming Mid-South and Fisher as recipients of the deed, and naming all four of the parcels at issue, was recorded. Jesse contends that her signature on this deed of trust is forged. On November 3, 2000, Mid-South and Fisher began foreclosure proceedings on Jesse's property.

¶ 10. Soon after Mid-South and Fisher initiated the foreclosure proceedings, William J. Ross[1] approached Jesse and offered to loan her the money to stop the foreclosure proceedings in exchange for a deed of trust on the four parcels. On November 27, 2000, Thomas conveyed her interest in the timber deed to Ross. That same day, Jesse executed a warranty deed to Ross, and Ross executed an option to purchase the four parcels for $42,500. Once Ross had received the warranty deed, he then executed a quitclaim deed to Thomas, which gave her a one-third interest in the four parcels.

¶ 11. On November 29, 2000, Jesse signed a promissory note for $10,000 to Ross, with the understanding that Ross would use the money to save her property from foreclosure. Jesse testified that she never received the money, but she executed a deed of trust to Ross as security for the note. Ross then gave Jesse an option to purchase the property for $70,000. Under the terms of that option contract, if Jesse opted to re-purchase her property, Ross would convey the property to her free and clear of the timber warranty deed.

¶ 12.

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Cite This Page — Counsel Stack

Bluebook (online)
956 So. 2d 1055, 2007 WL 1334485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallegos-v-mid-south-mortg-inv-inc-missctapp-2007.