Jenkins v. Terry Investments, LLC

947 So. 2d 972, 2006 Miss. App. LEXIS 370, 2006 WL 1229499
CourtCourt of Appeals of Mississippi
DecidedMay 9, 2006
Docket2004-CP-01939-COA
StatusPublished
Cited by2 cases

This text of 947 So. 2d 972 (Jenkins v. Terry Investments, LLC) 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
Jenkins v. Terry Investments, LLC, 947 So. 2d 972, 2006 Miss. App. LEXIS 370, 2006 WL 1229499 (Mich. Ct. App. 2006).

Opinion

947 So.2d 972 (2006)

Edmond Allen JENKINS, Appellant
v.
TERRY INVESTMENTS, LLC, Appellee.

No. 2004-CP-01939-COA.

Court of Appeals of Mississippi.

May 9, 2006.
Rehearing Denied September 26, 2006.

*974 Edmond Allen Jenkins, Sr., Appellant, pro se.

John T. Armstrong, Jr., Hazlehurst, attorney for appellee.

Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.

GRIFFIS, J., for the Court.

¶ 1. Edmond Allen Jenkins and Terry Investments, LLC, own neighboring tracts of land, fronting New Zion Road in Copiah County. Terry Investments sued Jenkins and alleged that he tore down and stole the boundary fence and trespassed onto its land. Jenkins admitted he tore down the fence but claimed he owned some of the property held by Terry Investments. Chancellor George Ward ruled in favor of Terry Investments, permanently enjoined Jenkins from trespassing, and ordered him to pay for the fence and Terry Investments's attorney fees. Jenkins appealed and assigned the following errors: (1) whether the trial court erred in ruling the enumerated claims for relief under M.R.C.P. 60(b) are mutually exclusive, (2) whether Jenkins's admissions negate equitable considerations, (3) whether the court erred in ruling that his application for relief from judgment was untimely, (4) whether the trial court erred in not admitting evidence that Jenkins was defrauded, (5) whether the trial court erred in determining the boundaries of Jenkins's property, and (6) whether the trial court erred in questioning Jenkins on the stand. We find that res judicata applies to this case, and therefore, we affirm.

FACTS

¶ 2. This case is the fourth appeal to this Court where the issue concerns Jenkins and the property in question. See Jenkins v. Jenkins, 829 So.2d 710 (Miss.Ct.App. 2002) ("Jenkins III"); Jenkins v. Jenkins, 757 So.2d 339 (Miss.Ct.App.2000) ("Jenkins II"); and Jenkins v. Jenkins, 691 So.2d 1034 (Miss.Ct.App.1996) ("Jenkins I"). We incorporate by reference the facts as set out in our three prior opinions. Nevertheless, we provide a brief synopsis of the facts.

*975 ¶ 3. The separate tracts of property held by Jenkins and Terry Investments were once a single parcel of land held by Jenkins's grandfather, Jesse Allen Jenkins ("Jesse"). During Jesse's life, he sold five acres in the southwest corner of the property to his son Cecil, Jenkins's father. Jenkins became the owner of Cecil's five acres in 1979. The remainder of Jesse's land passed intestate to his heirs, which included Jenkins, Eldon Jenkins, Earl Jenkins, Lavelle McRee, Alice Thompson, Edmund Burke Jenkins, Jr., Robert Jenkins, Francis Simmons, Shirley Sessions, Sara Ann White, Henrietta Buckley, and Dilly Jenkins.

¶ 4. In 1992, Jenkins and his wife Donna were sued by Jesse's other heirs. The other heirs asked the court to partition Jenkins's share of the property. On May 6, 1993, all parties signed an agreed order that the property to be partitioned was 219 acres and that commissioners would divide the property. The order provided that the only property not subject to partition was the five acres claimed separately by Jenkins. By order dated May 9, 1994, Jenkins was given one-sixth (1/6) of the partited land (or 36.5 acres). Jenkins's portion of the property was located at the southwest corner so that it would be contiguous with the five acres he already owned. Jesse's other heirs were awarded the remainder.

¶ 5. Jenkins was ordered to remove his deer camp from the northeast section of the property within thirty days. However, Jenkins wanted the northeast section of the property rather than what was given him. Jenkins appealed the order and claimed that the commissioners failed to properly inspect the property and take into account his improvements to the land. This Court affirmed the chancellor's order in an unpublished opinion, dated August 6, 1996, and held that Jenkins's arguments were waived by virtue of the agreed order. Thereafter, the supreme court denied certiorari.

¶ 6. Jenkins failed to move his deer camp. Hence, Jesse's other heirs sued him and Donna and asked that they be held in contempt of court. A few months later, Jenkins commissioned his own survey and filed a complaint for relief under M.R.C.P. Rule 60(b). Jenkins claimed to have found new evidence that his original plot was not five acres, but seventeen acres, and therefore twelve acres of his property were unlawfully partited in the 1994 judgment. To support his argument, Jenkins pointed to the call in the deed which stated "5 acres more or less." Jenkins claimed that the word "more" meant "twelve more." Although Jenkins began to reside on the five acre tract in 1979, this was the first time that Jenkins claimed that he owned more than that five acres. Jenkins's complaint was denied. We affirmed the chancellor's decision in Jenkins II, where we held that Jenkins's Rule 60 motion was untimely and frivolous. This Court awarded the statutory penalty in our mandate.

¶ 7. Thereafter, Jesse's other heirs filed a lawsuit to recover the statutory penalty and were so awarded. Jenkins appealed for a third time and argued that the chancery court had no authority to assess the statutory penalty. We affirmed the chancellor in Jenkins III.

¶ 8. Jesse's other heirs sold a portion of their property to Terry Investments. The property conveyed adjoined Jenkins's property. Jenkins painted a white line some three hundred feet onto Terry Investments's property, which caused Terry Investments to erect the fence in the wrong spot. After the property was surveyed, in accordance with the 1994 partition judgment, Terry Investments erected boundary markers that were destroyed by *976 Jenkins. Terry Investments then erected a boundary fence, because hunters from Jenkins's property continued to trespass. Jenkins was present when the fence was erected and threatened to tear it down if Terry Investments put it up. Jenkins carried through on his threat, not only tearing down the fence, but secreting all remnants of it. Jenkins allegedly scared off a potential buyer and told Charles Renfrow, Terry Investments's president, that he would keep the boundary dispute tied up so that Terry Investments could never sell its property.

¶ 9. When a lawsuit was filed, Jenkins again asked the court for relief from the 1994 judgment. Despite this Court's previous rulings, Chancellor Ward allowed Jenkins to be heard. Jenkins offered evidence that he originally owned seventeen acres. The chancellor then denied Jenkins's motion on its merits. The chancellor declined to assess punitive damages against Jenkins, but he did assess actual damages and attorney fees against Jenkins. Jenkins now, once again, appeals to this Court. He asks for relief under Rule 60 and makes a number of irrelevant and unsubstantiated allegations.

ANALYSIS

I. Did the trial court err in ruling the enumerated claims for relief under Rule 60(b) are mutually exclusive?
II. Did Jenkins's admissions negate equitable considerations?
III. Was Jenkins's application for relief from judgment untimely?
IV. Should the trial court have admitted evidence that Jenkins was defrauded into signing the Agreed Order?

¶ 10. Since all of these arguments go to the question of whether Jenkins should have been granted relief from the 1994 judgment under Rule 60(b), we will consider them together.

¶ 11.

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Bluebook (online)
947 So. 2d 972, 2006 Miss. App. LEXIS 370, 2006 WL 1229499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jenkins-v-terry-investments-llc-missctapp-2006.