Gerald Bailey v. Estate of Jerry Ann Barksdale

187 So. 3d 204, 2016 Miss. App. LEXIS 109, 2016 WL 791717
CourtCourt of Appeals of Mississippi
DecidedMarch 1, 2016
Docket2014-CA-01379-COA
StatusPublished

This text of 187 So. 3d 204 (Gerald Bailey v. Estate of Jerry Ann Barksdale) 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
Gerald Bailey v. Estate of Jerry Ann Barksdale, 187 So. 3d 204, 2016 Miss. App. LEXIS 109, 2016 WL 791717 (Mich. Ct. App. 2016).

Opinions

GRIFFIS, P.J.,

for the Court:

¶ 1. This appeal arises from a claim brought against Gerald E. Bailey by the estate of Jerry Ann Barksdale, deceased. The Court has determined that it is without jurisdiction to decide this appeal because there was neither a final judgment nor a Mississippi Rule of Civil Procedure 54(b) determination. Accordingly, the case is dismissed.

FACTS

if 2. A full recitation of facts is necessary to understand this Court’s action.

¶ 3. Jerry Ann Barksdale died on March 13, 2012. As of the date of her death, Barksdale was survived by her children: Gerald E.. Bailey, Cecil E, Bailey, Larry R. Bailey, Deborah Steele, Kenny Joe Pickering, Paulette Shaws, and Johnny Earl Pickering.1 Her husband had died on February 24, 2012.

¶ 4. On April 24, 2012, Larry Bailey filed a petition for appointment of an administrator and for issuance of letters of administration. The petition asked that Steve Headrick be appointed the administrator. Larry’s petition stated that he was unaware of whether Barksdale died with a will but understood that her will may have been in the possession of Gerald. On May 8, 2012, the chancellor entered an order authorizing appointment of an administrator and issuance of letters of administration and appointed Headrick as administrator. On May 23, Headrick executed the oath of' administrator and filed the required bond. On May 24, letters of administration were issuéd to Headrick.

¶ 5. On July 10, 2012, Headrick filed a petition for a determination of the heirs-at-law. In the petition, he asked the chancery'court to determine Barksdale’s heirs to be her children: Gerald E. Bailey, Cecil E. Bailey, Larry R, Bailey, Deborah Steele, Kenny Joe Pickering, Paulette Shaws, and Johnny Earl Pickering. The chancery court’s docket indicates that Headrick published" notice of the petition by publication, but it does not indicate that any of the known heirs were served with process or entered an appearance by waiver of process.

¶ 6. On August 13, 2012, a document titled “Last Will and Testament of Jerry Ann Barksdale” was filed. There was no accompanying petition, motion, or any other document filed. There is no indication as to who filed this document.

¶ 7. On August 14, 2012, Headrick filed a petition for an order to return property to the estate and other relief against Gerald. In this petition, Headrick alleged that Gerald should be ordered to return certain assets to the estate. The petition stated that, at the end of her life, Barksdale had [206]*206given Gerald her power of attorney, and Gerald had improperly used and converted some of her assets. The petition specifically asked the chancery court to: (1) order Gerald render a full, completed, and documented accounting; (2) enter a declaratory judgment finding Gerald had a confidential relationship with Barksdale and exerted undue influence on her for his personal ■ gain; (3) order the return of property Gerald obtained through unjust enrichment; and (4) establish a constructive trust over Barksdale’s assets that Gerald had wrongfully obtained, along with interest and attorney’s fees. The petition did not include a demand for an award of a specific monetary amount.

¶ 8. According to the clerk’s docket, on August 14, 2012, the clerk issued both a Mississippi Rule of Civil Procedure 81 summons and a “30 day summons” to Gerald.

¶ 9. On August 20, 2012, the chancellor entered a judgment, for default of unknown heirs. The order indicates that process was served on “all possible known heirs, interested parties!,] and unknown heirs” by publication. It also provides that “any and all other interested parties and .unknown heirs have waived any rights by failing to appear.” The judgment determined the' heirs to be the children named above.

¶ 10. On August 22, 2012, the clerk’s docket indicated: “30-day and Rule 81 [sjummons returned showing personal service on Gerald Bailéy on the 14th day of August, 2012.” The returned summonses are not included' in the record before this Court. Although not in the record, it appears that the Rule 81 summons set the matter to be heard on September 13, 2012. Gerald denies that he was personally served with process.. Gerald did not file a response to the Rule 4 (the thirty-day) summons or the Rule 81 summons, and he did not appear before the chancellor on September 13,2012.

¶ 11. On September 14, 2012, nunc pro' tune September 13, 2012, the chancellor entered an order to show cause. The order ruled that the chancery court had jurisdiction over the parties, the venue was proper, Gerald was properly served with a Rule 81 summons returnable to the court on September 13, 2012, and he failed to appear. The chancery court also ordered that “a new court date shall be set by counsel for the Estate and that this Order shall be served on Gerald E. Bailey to show cause why he has not appeared to answer the allegations in the petition for order and to return property and other relief.” The chancery court further ordered the estate was entitled to an inventory and accounting of all assets in the bank accounts that Gerald had control of prior to his mother’s death. Gerald was given thirty days to submit the inventory and accounting.

¶ 12. On September 18, 2012, the estate filed an application to the clerk for entry of default and a motion for a default judgment. The clerk executed and filed the entry of default on the same day.

¶ 13. On September 21, 2012, the clerk’s docket indicated a “notice of hearing” and a “Rule 81 summons issued to sheriffiprocess server for service on Gerald E. Bailey and returnable on the 27th day of November, 2012.” The docket does not indicate what was set for a hearing. On September 26, 2012, there was a another docket entry identical to the entry quoted above.

¶ 14. On September 21, 2012, the chancellor executed a default judgment. The default judgment indicated that Gerald took advantage of a confidential relationship with Barksdale and exerted undue influence over her, and that all of the [207]*207transfers were against Barksdale’s best interest. The chancery court ordered a “constructive trust is in effect and that all said assets shall be returned to the estate, or if they have already been spent, shall operate as a set-off against any, portion of the Estate that Gerald may be entitled to.” The order also provided Gerald .“shall pay all of the attorney[’]s fees that were necessary to return said funds to the estate.” The default judgment did not include any monetary amount. Also, the record does not include any transcript of the hearing on the motion for á default judgment or the writ of inquiry.

¶ 15. On September 26 and 28, the clerk’s docket again indicated a “notice of hearing (11/27/2012)” without an indication of what was set for a hearing.

¶ 16. On October 1, 2012, the clerk’s docket indicated a “[fjiat authorizing process to issue for [sic] oh the 27th day of Nov'émber, 2012, returnable to Lamar County, Mississippi.”

¶ 17. On October 11, 2012, the clerk’s docket indicated “Rule 81 Summons Returned” and stated, “I hereby certify that I have executed the within writ by personally delivering to the within named Gerald E. Bailey a true copy of this writ. This the 27th day of November, 2012. By Brent Perreault.”

¶ 18. On September 21, 2012, the clerk’s docket indicated a “notice of hearing” and a “Rule 81 summons issued to sheriff/process server for service on Gerald E.

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Cite This Page — Counsel Stack

Bluebook (online)
187 So. 3d 204, 2016 Miss. App. LEXIS 109, 2016 WL 791717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gerald-bailey-v-estate-of-jerry-ann-barksdale-missctapp-2016.