Grant v. Donelson

79 So. 3d 569, 2012 Miss. App. LEXIS 67, 2012 WL 373136
CourtCourt of Appeals of Mississippi
DecidedFebruary 7, 2012
DocketNo. 2010-CA-01776-COA
StatusPublished

This text of 79 So. 3d 569 (Grant v. Donelson) 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
Grant v. Donelson, 79 So. 3d 569, 2012 Miss. App. LEXIS 67, 2012 WL 373136 (Mich. Ct. App. 2012).

Opinion

RUSSELL, J., for the Court:

¶ 1. Cathy Grant appeals the Hinds County Chancery Court’s denial of her request to amend an order that vested Willie Donelson with fee-simple title to a house in Jackson, Mississippi. On appeal, Grant asserts that the chancery court erred by (1) finding an oral contract between her and Donelson and (2) applying the constructive-trust doctrine to order Grant to convey the house to Donelson. We find no error and affirm the chancery court’s judgment.

FACTS

¶ 2. The undisputed facts are as follows. Grant purchased the house and property she had been renting for approximately six years. Grant used $35,543.43 in cash to purchase the cashier’s check that would pay off the mortgage on the house. At closing, Grant placed the warranty deed to the house in her name. The parties dispute the source of the funds that Grant used to purchase the cashier’s check; their respective versions follow below.

¶ 3. Donelson testified that Grant’s pending eviction from the house initiated their agreement. He explained that Grant had been renting the house for $600 per month, but she had been delinquent in her [571]*571rent payments for three months. According to Donelson, Grant had been preparing to move in with her mother before she asked to borrow money from him. Donel-son contends he gave Grant $40,600 in cash to purchase the house.1 In exchange, Grant agreed to place the warranty deed in Donelson’s name at closing and to rent the house from him for $425 per month. Donelson testified that he had gone with Grant to her real-estate attorney’s office for the closing transaction. But Donelson had became ill, so Grant took Donelson to his house. Thus, Donelson was not present when the closing was completed.

¶ 4. Donelson had been dealing in real estate for years and earned part of his income from his property-management business. Thus, Donelson explained that he had $40,600 in cash available, which he had intended to use to purchase additional rental properties.

¶ 5. Donelson stated that he asked Grant on three occasions after the closing to convey the house to him or to return his money. When she would not do either, he filed a complaint with the chancery court, which requested ownership of the house and an award of unpaid rent.

¶ 6. Grant, however, denied she and Do-nelson had any agreement that would have given Donelson an ownership interest in her house. Instead, Grant testified that Donelson had loaned her $5,000 in cash, which she had agreed to repay in $400 monthly payments. Grant stated that she used Donelson’s $5,000 loan to her and $30,000 in personal funds to purchase the house and property.

¶ 7. Grant admitted that Donelson had gone with her to the bank to purchase the cashier’s check that she used for the closing transaction. She also stated that Do-nelson had gone with her to the closing transaction, but she took Donelson to his home when Donelson stated he had a handgun.

¶ 8. A few months after the closing, Grant attempted to tender a payment of $400 to Donelson. In response, he requested that she convey the house to him, but she declined.

¶ 9. After a hearing, the chancery court issued an order and opinion granting Do-nelson’s request for ownership of the house. The chancery court found that Do-nelson and Grant had an oral contract with two parts. The chancery court found that under the first part of the contract, Donel-son had agreed to provide $40,600 for Grant to purchase the house in exchange for Grant placing the warranty deed to the house in his name. The chancery court held that a constructive trust was created as to the $40,600. Because Grant had “by an abuse of confidence” gained title to property that she was not entitled to hold, the chancery court ordered Grant to execute a warranty deed to convey the property to Donelson.

¶ 10. The chancery court found that under the second part of the contract, Grant had agreed to rent the house from Donelson. The chancery court held that because Grant’s agreement to rent from Donelson created a lease for presumptively longer than one year, the oral agreement was barred by the statute of frauds. See Miss.Code Ann. § 15 — 3—1(c) (Rev. 2003).

¶ 11. Grant filed a post-trial motion under Mississippi Rule of Civil Procedure 60. Before the chancery court decided the motion, Grant filed a notice of appeal. After a hearing on Grant’s post-trial motion, the [572]*572chancery court issued an amended order and opinion that ordered a $40,600 lien be placed against Grant’s house in favor of Donelson.

¶ 12. Donelson later filed a post-trial motion under Rule 60, requesting the chancery court to reinstate its previous order which awarded him ownership of the house. In his post-trial motion, Donelson argued that the lien was unenforceable by virtue of Mississippi Code section 85-3-21 (Rev. 2011), since Grant had claimed the house as her homestead. (Exempting up to $75,000 value of property that debtor owns and occupies as a primary residence from seizure or sale by judgment creditors). The chancery court issued a second amended order and opinion that ordered Grant to convey the property to Donelson by warranty deed.

DISCUSSION

I. Jurisdiction

¶ 13. We must consider whether this Court has jurisdiction. Under Mississippi Rule of Civil Procedure 59, “[a] motion to alter or amend the judgment shall be filed not later than ten days after entry of the judgment.” The final judgment was filed on September 28, 2010. On October 11, 2010, Grant filed her motion to reconsider and amend and alter judgment. Therefore, Grant’s motion was untimely filed. As such, jurisdiction is proper in this Court, as the notice of appeal was filed on October 28, 2010.

¶ 14. Additionally, since Grant filed her notice of appeal before the disposition of her post-trial motion, we pause to verify that this case is properly before this Court. Mississippi Rule of Appellate Procedure 4(d) explains:

If any party files a timely motion of a type specified immediately below the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding. This provision applies to a timely motion under ... Mississippi Rules of Civil Procedure ... Rule 59 to alter or amend the judgment; (4) under Rule 59 for a new trial; or (5) for relief under Rule 60 if the motion is filed no later than 10 days after the entry of judgment. A notice of appeal filed after announcement or entry of the judgment but before disposition of any of the above motions is ineffective to appeal from the judgment or order, or part thereof, specified in the notice of appeal, until the entry of the order disposing of the last such motion outstanding.

The comments to Rule 4 further explain that:

Rules 4(d) and 4(e) now provide that a notice of appeal filed before the disposition of a specified post-trial motion will become effective upon disposition of the motion. A notice filed before the filing of one of the specified motions or after the filing of a motion but before its disposition is, in effect, suspended until the motion’s disposition, whereupon the previously filed notice effectively places jurisdiction in the Supreme Court.

The chancery court decided Grant’s post-trial motion on January 5, 2011.

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Cite This Page — Counsel Stack

Bluebook (online)
79 So. 3d 569, 2012 Miss. App. LEXIS 67, 2012 WL 373136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grant-v-donelson-missctapp-2012.