Kelly v. Barry

115 So. 3d 131, 2013 WL 2166108, 2013 Miss. App. LEXIS 283
CourtCourt of Appeals of Mississippi
DecidedMay 21, 2013
DocketNo. 2011-CA-01157-COA
StatusPublished
Cited by4 cases

This text of 115 So. 3d 131 (Kelly v. Barry) 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
Kelly v. Barry, 115 So. 3d 131, 2013 WL 2166108, 2013 Miss. App. LEXIS 283 (Mich. Ct. App. 2013).

Opinion

ROBERTS, J.,

for the Court:

¶ 1. This appeal centers on a property transaction that mistakenly transferred title to two houses rather than one. Shelly Kelly bought a house from Harrison Barry for $5,000. More than two years later, Barry realized that the description of the property in Kelly’s warranty deed included the house that Kelly bought as well as the house next door. Kelly would not sign a quitclaim deed to correct the mistake, so Barry sued Kelly to reform Kelly’s deed. The Washington County Chancery Court found that there had been a mutual mistake in Kelly’s deed. Consequently, the chancellor reformed the deed to reflect the fact that Kelly had only purchased one house from Barry, rather than two houses. Kelly appeals. Kelly claims the chancellor erred when she found there was a mutual mistake in the deed. Kelly also claims the chancellor erred when she prohibited Kelly from presenting evidence to support a counterclaim that Kelly did not raise in her pleadings. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Barry owned two lots in the Shelton Subdivision in Greenville, Mississippi. The two lots have street addresses listed as 330 Lake Street and 332 Lake Street. Kelly approached Barry in November 2006 for the purpose of renting a house. However, Kelly and Barry agreed that Kelly would buy a house that Barry owned at 330 Lake Street for $5,000. Barry approached his attorney, Edward A. Lueck-enbach, and asked him to prepare a deed. By the terms of their agreement, Kelly paid Barry $1,000 down, and Barry financed the remaining $4,000 per the terms of a promissory note and a deed of trust.

¶ 3. While preparing the necessary documents, Lueckenbach went to the Washington County courthouse to obtain a legal description of the property at 330 Lake Street. Lueckenbach was not asked to conduct a title search. Lueckenbach pulled the tax statement for the property, which referred him to a book and page of the deed by which Barry had obtained the property. That deed contained descriptive language for “Lots 51 & 52.” Luecken-bach did not realize that Lots 51 and 52 included both 330 Lake Street and 332 Lake Street, since the deed did not reference actual street addresses.

¶ 4. After their transaction, Barry converted 332 Lake Street from a single-family dwelling to a boarding house. He paid for air conditioning and plumbing repairs. He also paid Samuel Goods to install a new water heater, furnace, closet, door locks, and doors. Barry also paid for all of the necessary materials. Additionally, Barry paid Goods to paint and repair the bathroom. Barry paid all of the utilities, taxes, and insurance premiums for 332 Lake [133]*133Street. When Kelly complained that the tenants at 382 Lake Street were too loud, Barry allowed her to screen the tenants. Kelly collected the rent from the tenants at 382 Lake Street, and she turned it over to Barry.

¶ 5. In early 2009, Kelly contacted Barry and asked him why the tax statement for 332 Lake Street was mailed to her house. Barry then contacted Lueckenbach, who then discovered that Kelly’s deed mistakenly transferred title to 330 Lake Street and 332 Lake Street. Lueckenbach’s office contacted Kelly and asked her to sign a quitclaim deed to correct the error. Kelly read the quitclaim deed that Luecken-bach had prepared, but she refused to sign it. Kelly then began paying the taxes and utilities for 332 Lake Street. Barry asked Kelly why she would not sign the deed correcting the mistake in the original deed. Kelly responded that it was not her mistake.

¶ 6. In August 2009, Barry filed a complaint against Kelly. Barry claimed that Kelly had obtained the property at 332 Lake Street due to a scrivener’s error. According to Barry, he had not intended to convey title to 332 Lake Street, and Kelly had not intended to acquire title to 332 Lake Street. In other words, Barry claimed that Kelly had obtained title to 332 Lake Street as a result of their mutual mistake. Barry requested that the chancery court reform the deed to 332 Lake Street so that he was listed as the owner of that property.

¶ 7. Kelly responded and denied that there had been a mutual mistake. Kelly also filed a counterclaim against Barry and argued that she was entitled to the rent that Barry had collected from 332 Lake Street since their transaction. Specifically, Kelly claimed that Barry owed her more than $7,000 in rent.

¶ 8. The parties went to trial. Additional events that occurred prior to the commencement of Barry’s case-in-chief will be discussed in the analysis portion of this opinion. Barry testified that he believed that he had only sold the house at 330 Lake Street. He did not intend to sell the house at 332 Lake Street. He further testified regarding the expenses that he paid to repair the property at 332 Lake Street and convert it into a boarding house. Goods corroborated Barry’s testimony. Additionally, Lueckenbach testified regarding his involvement in the initial transaction, and his subsequent attempt to have Kelly sign a quitclaim deed to correct the mistake in her warranty deed.

¶ 9. However, Kelly testified that she intended to buy both 330 Lake Street and 332 Lake Street for $5,000. Notwithstanding Kelly’s testimony, the chancellor found that Kelly’s warranty deed contained a scrivener’s error “based upon mutual mistake of the parties.” The chancellor also found that Kelly and Barry “had a meeting of the minds that the only property to be conveyed was 330 Lake Street.” According to the chancellor, “an error in the description was made when the deed and [the] deed of trust were drafted.” The chancellor found that “Kelly sought to take advantage of that error to the detriment of Barry.” Consequently, the chancellor reformed Kelly’s warranty deed so that it only conveyed the property at 330 Lake Street. The chancellor found no merit to Kelly’s counterclaim. Kelly appeals.

STANDARD OF REVIEW

¶ 10. “We will not disturb the chancellor’s opinion when it is supported by substantial evidence unless the chancellor abused [her] discretion, [or] was manifestly wrong [or] clearly erroneous[.]” Olive v. McNeal, 47 So.3d 735, 739 (¶ 10) (Miss.Ct.App.2010) (citation omitted). Ad[134]*134ditionally, we will reverse the chancellor’s decision if she applied an erroneous legal standard. Id. We review questions of law de novo. Id.

ANALYSIS

I. SUFFICIENT EVIDENCE OF MUTUAL MISTAKE

¶ 11. Kelly argues that the chancellor erred when she held that Barry proved that it was a mutual mistake to include 332 Lake Street in their transaction involving 330 Lake Street. According to Kelly, the chancellor should not have believed Barry’s testimony that he did not know the warranty deed included 332 Lake Street. Kelly notes that the warranty deed stated that it included two lots. Kelly also argues that Barry was “well aware that the property description included two separate residential structures, i.e., 330 Lake Street and 332 Lake Street.” Kelly further notes that Barry testified that he was a college graduate. Additionally, Kelly argues that Barry was experienced in property transactions in that he had been in the real-estate business for fifteen years and owned approximately thirty properties.

¶ 12. “A deed may be reformed where it is shown to [have] resulted] from the mutual mistake of the parties in contracting for it.” Olive, 47 So.3d at 739 (¶ 12) (citing Brown v. Chapman, 809 So.2d 772, 774 (¶ 9) (Miss.Ct.App.2002)). As stated in Brown:

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Bluebook (online)
115 So. 3d 131, 2013 WL 2166108, 2013 Miss. App. LEXIS 283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-barry-missctapp-2013.