McClendon v. Hudson

962 So. 2d 90, 2007 Miss. App. LEXIS 489, 2007 WL 2177909
CourtCourt of Appeals of Mississippi
DecidedJuly 31, 2007
DocketNo. 2006-CA-01046-COA
StatusPublished
Cited by4 cases

This text of 962 So. 2d 90 (McClendon v. Hudson) 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
McClendon v. Hudson, 962 So. 2d 90, 2007 Miss. App. LEXIS 489, 2007 WL 2177909 (Mich. Ct. App. 2007).

Opinion

CARLTON, J.,

for the Court.

¶ 1. The Harrison County Chancery Court set aside an order to reopen an estate and for an accounting of estate assets. The court also granted a motion to dismiss the petition to reopen which was previously granted. The petitioners, seeking to reopen the estate and an accounting, appeal, arguing that an interested party was before the court and that fraud was sufficiently alleged to toll the statute of limitations. Finding no error, we affirm the dismissal of the action as barred by the statute of limitations.

FACTS

¶ 2. Corrine L. Hudson was born on December 10, 1915. She was widowed when her husband, Lawrence Joseph Hudson, Sr. died on September 15, 1991. On December 13, 1996, two of Corrine’s four children, Lawrence Hudson, Jr. and Audrey McClendon, were appointed co-conservators of their mother. On December 9,1999, Corrine passed away.

¶ 3. After a final accounting of the con-servatorship was approved, Corrine’s estate was opened on February 6, 2001. Lawrence Hudson, Jr. was appointed as the administrator of the estate. At the time of her death, Corrine’s heirs included her three living children, Shirley McGee, Lawrence Hudson, Jr., and Audrey McClendon, and the three surviving heirs of Corrine’s already deceased child, James Hudson. On December 4, 2001, the Harrison County Chancery Court entered an order approving the waiver of a final accounting for the estate and discharged Hudson as the administrator. It is at this point that Hudson’s duties as administrator were discharged and all of the estate’s assets were distributed. All of the heirs at law, including Audrey, joined in the petition to close the estate and to approve the waiver of final accounting. Through the petition, all of the heirs swore that everything in the petition was true and correct.

¶ 4. On November 12, 2004, Audrey’s son, James McClendon, filed a petition to reopen his grandmother’s estate and for an accounting of the estate’s distributed assets. The petition did not request an accounting of the conservatorship. On December 2, 2004, the chancery court granted the petition, reopened the estate, and ordered the administrator to account for and explain the distribution of all of the funds of both the estate and conservator-ship.

¶ 5. On February 28, 2005, Hudson filed a response to McClendon’s motion and a motion to dismiss McClendon’s petition. The motion to dismiss set out the defenses that McClendon lacked standing, that the statute of limitations had run, that McClendon’s petition failed to state a claim on which relief could be granted, failed to join necessary and indispensable parties, that McClendon failed to support his allegations with any factual basis, and that McClendon was using these proceedings to force Hudson to sell to McClendon a strip of land which Hudson owned.

¶ 6. On May 26, 2004, Hudson filed a motion to set aside the order granting McClendon’s petition. Hudson argued that McClendon was granted relief to which he was not entitled. McClendon then filed a motion to remove Hudson as the administrator of the estate, to revoke the previously issued letters of administration, and to appoint a new administrator and new letters of administration.

¶ 7. On May 24, 2005, Audrey filed a document purporting to join McClendon’s petitions, stating in part that Audrey had received and reviewed a copy of the petitions and “does hereby enter her appearance and consent to the relief prayed for in the Petitions.” On January 11, 2006, Au[92]*92drey filed a response to Hudson’s motion to set aside the court’s order. Other motions were filed by the parties. The chancery court held a hearing on February 8, 2006, concerning the numerous motions filed by the parties.

¶8. On May 24, 2006, the chancellor determined that McClendon’s petition to reopen the estate failed to state fraud with particularity as required by Mississippi Rule of Civil Procedure 9(b). The chancellor also determined that the statute of limitations involved was not tolled because none of the interested parties was disabled as defined by statute. Miss.Code Ann. § 15-1-59 (Rev.2003). Therefore, the chancellor granted Hudson’s motion to set aside the order granting the reopening of the estate and for an accounting. Having granted Hudson’s motion to set aside, the chancellor then determined Hudson’s motion to dismiss.

¶ 9. The chancellor determined that McClendon lacked standing to petition the court to reopen the estate and for an accounting. The chancellor reasoned that since McClendon was not an heir at law, that he was not an interested party. Hoskins v. Holmes County Cmty. Hosp., 135 Miss. 89, 92, 99 So. 570, 573 (1924). In addition, the chancellor concluded that McClendon was barred by the applicable two-year statute of limitations. Miss.Code Ann. § 91-7-309 (Rev.2004); Byrd v. Page, 384 So.2d 1038, 1041 (Miss.1980). Aggrieved by the decisions of the chancellor, McClendon appeals. His appeal has been assigned to this Court.

DISCUSSION

¶ 10. The chancellor’s findings of fact are entitled to deference on review unless they are clearly erroneous or manifestly wrong. Graves v. Dudley Maples, L.P., 950 So.2d 1017(¶ 14) (Miss.2007). Questions of law are reviewed de novo. Id.

¶ 11. McClendon filed the petition to reopen the estate and for an accounting nearly three years after the estate had been closed. He argues that the two-year statute of limitation is tolled because fraud was specifically alleged in the petition. He also argues that Audrey was under a disability which allowed for the tolling of the statute of limitation.

¶ 12. The applicable statute of limitation to open the account of the administrator of the estate is two years from the date the estate was closed. Miss.Code Ann. § 91-7-309 (Rev.2004). The estate was closed on December 4, 2001. McClen-don’s petition was filed on November 12, 2004, nearly three years after the estate was closed. We do not discuss the argument that Audrey was under a disability causing the tolling of the statute of limitation. The chancellor found, and the record demonstrates, that other than a mere allegation, no evidence was advanced that Audrey was ever suffering from a disability. Therefore, the issue of whether the statute of limitations was tolled due to a disability is not applicable to this appeal. Fraud may constitute a bar to this statute of limitation. See Byrd, 384 So.2d at 1041.

¶ 13. In Byrd, the supreme court affirmed the decision of a chancellor to dismiss a suit where a petitioner filed to reopen an estate but failed to plead fraud with particularity. Id. Similar to the present situation, in Byrd, a decedent’s widow, also the petitioner to reopen the estate, had previously joined in the petition to close the estate. Her petition to reopen the estate was filed after two years had past since the estate was closed. There was evidence that in addition to jointly requesting that the estate be closed, the petitioner was present at the hearing where the chancellor approved the sale of [93]*93estate property.

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Bluebook (online)
962 So. 2d 90, 2007 Miss. App. LEXIS 489, 2007 WL 2177909, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclendon-v-hudson-missctapp-2007.