IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CA-01003-COA ARMA J. MORTON AND JESSIE B. MORTON APPELLANTS

v. WALTER QUINN AND RESSIE QUINN APPELLEES DATE OF JUDGMENT: 03/02/2015 TRIAL JUDGE: HON. KENNETH M. BURNS COURT FROM W HICH APPEALED: CLAY COUNTY CHANCERY COURT ATTORNEY FOR APPELLANTS: JOSEPH N. STUDDARD ATTORNEY FOR APPELLEES: W I LBUR GORDON HAMLIN JR. NATURE OF THE CASE: CIVIL - REAL PROPERTY TRIAL COURT DISPOSITION: CONFIRMED JUDICIAL SALE DISPOSITION: REVERSED AND REMANDED - 12/13/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., JAMES AND GREENLEE, JJ. JAMES, J., FOR THE COURT: ¶1. This appeal arises out of a s uit and resulting judgm ent of a judicial partition sale, f iled in the Clay County Chancery Court by W alter and Ressie Quinn. T he ini t i a l suit nam ed Arm a Morton as the sole and individual def endant in this m atter, though b oth Arm a and Jessie Morton h eld a shared i nterest i n the subject property

. Jessie was nam ed a s a party def endant a y ear af

ter the initial petition. J essie and A r ma a p p e a l t wo i ssues: (1) the

om ission of Jessie as a respondent to the a c tion and (2) w hether trial-court orders prepared by counsel opposite are entitled to judicial def erence. Finding error in the om ission of Jessie as a respondent to the m a tter, we reverse and rem and.

FACTS AND PROCEDURAL HISTORY¶2. W a lter and Ressie (“the Q u i n n s ” ) j o i n t l y i n h e rited an equal share of the subject

property f rom W alter’s m other. Though the m ajority of W alter’s siblings quitclaim ed their interest of the subject land t o W a lter, one sibling quitclaim e d h er interest to h er daughter and son-in-law, Jessie and Arm a (the “Mortons”). T he Mortons resided in a d i lapidated hom e located o n th e subject property

. On Decem ber 4, 2 013, t he Quinns f iled their petition to partition the subject property in t he Clay County Chancery Court against Arm a individually

. The com plaint sought to partite in kind the subject real property located in Clay

County

. ¶3. On July 17, 2014, Arm a f iled her answer and c o unterclaim , a lleging that she obtained title to a portion of the subject real p r operty through adverse possession; however, she did
not rai s e t he def

ense of f ailure to join an indispensable party under Rule 12(h)(2) of the Mississippi Rules of Civil P rocedure. On that s am e day , Arm a f iled her Mississippi Rule of Civil Procedure 68 of

f er of judgm ent, asking the court to award the Quinns the right, title, and interest to the subject real property . Nevertheless, the of f er was not accepted. ¶4. On August 25, 2 0 14, the trial court entered an or d e r a p p o i n t i n g t h e C lay County Chancery Clerk as the m aste r of the judicial sale of the subject p roperty

. T he m aster was required to advertise the beginning bid at $21,500, t he value determ ined by an independent property survey o r. The m aster published a notice of the j udicial sale in the local n ewspaper f or f our consecutive w eeks. The judicial sale took place on Septem ber 29, 2 014, at the Clay County C hancery Courthouse. The Quinns s ubm itted t he highest bid, and t he property was subsequently s old to them

. The m aster’s judicial-partition-sale report r ef lected the sam e. On Novem ber 20, 2014, a hearing was set to conf irm the sale of the subject property ; however,

2the proceedings were discussed in-cham bers. ¶5. During the in-cham bers conf erence, Arm a r a i s e d t he def ense of f ailure to join an indispensable party under R ule12(h)(2). Arm a asserted that the Quinns’ f ailure to join Jessie in the action was an error that invalidated the conf irm ation o f t he sale. Arm a contended that both she and her h usband jointly owned the one-f if teenth interest in the subj e c t property , thereby ef f ectively m a king Jessie a n indispensable party

. The m atters were not r esolved that day , and the Quinns s ubsequently f iled a second am ended petition nam ing Jessie as a party def endant to the action. The am ended pleading did not raise additional issues; it m erely added Jessie as a party

to the action a y ear af

ter the initiation of

the action. ¶6. The Mortons w aived process and f iled their counterclaim on February 20, 2015. On March 2 , 2 015, a f

inal hearing was held, and the Quinns and the Mortons were both present. The Quinns asserted t hat J essie had to establish that he had b een prejudiced by the Quinns’ f ailure to add him as a party def endant. H o w e v e r, when asked i f Jessie would testif y regarding his prejudice, he declined. Nevertheless, the Mortons’ counsel asserted t hat Jessie was prejudiced since he did not want the property sold, but pref

erred a division in kind. ¶7. Upon com

pletion of t he f

inal p roceedings , t h e Quinns subm itted an order and f inal judgm ent to the trial c ourt, conf irm ing the m aster’s sale of the subject property , and f inding that Jessie f

ailed t o e stablish prejudice in the m atter. The order f urther stated that Jessie had
not endured prejudice by being o m itted f r om the m atter, s ince A rm a f ailed to raise the

om ission as an af

f irm ative def

ense. The trial court entered the order f our day s later. ¶8. The Mortons now appeal. O n a ppeal, they assert that t he f i nal order and judgm ent

3prepared by the Quinns s hould not be entitled t o judicial def erence, since it was prepared by the Quinns’ counsel and n ot by the trial-court j udge. The second issue on a ppeal is whether the trial court com m itted reversible error w hen it f ound that the o m i ssion o f Jessie f rom the initial com

plaint did not result in prejudice to the Mortons.

STANDARD OF REVIEW ¶9. On appeal f

rom chancery court, this C ourt em ploy s a l i m i t e d s t a ndard of review. Venture S a les LLC v. Perkins, 86 So. 3d 910, 913 (¶10) (Miss. 2012) (quoting Corp. Mgmt.

v. G reene Cty. , 23 S o. 3 d 454, 459 (¶11) ( Miss. 2009)). W e will not disturb a chancellor’s f actual f indings “when supported by substantial evidence u n l ess the c h ancellor abused his d i s cretion, was m anif

e stly wrong [ or] clearly erroneous[ ,] or applied an erroneous le g a l standard.” I

d

. (quoting Greene Cty. , 23 So. 3d at 459 (¶11)). W e review a c h ancellor’s decision on joinder f

o r a b u s e o f discretion. Estate of Davis v. ONeill , 42 S o. 3d 520, 524 (¶15) (Miss. 2010). DISCUSSION ¶10. Since t h e f

irst i ssue is d i spositive, w e decline to address the oth e r i s s ue o n appeal. “[ T]he d e cision of a trial judge will stand ‘ unless we conclude that the d iscretion was arbitrary a nd clearly erroneous, am ounting to an abuse o f discretion.’” Ashmore v. Miss. Auth. on E

duc. Tele v i sion , 148 So. 3d 977, 983 (¶17) (Miss. 2014) (quoting Miss. Transp. Comm’n v. McLemore , 863 So. 2d 31, 34 ( ¶4) (Miss. 2003)). Af t er the am ended petition was f iled, adding J essie as a respondent, the s a l e w a s n o t vacated, and Jessie was not given a chance to m eaningf

ully participate in the disposition of h is property

. Jessie f avored a

4partition in k ind rather than a sale, y et he was not af f orded the opportunity t o respond to the Quinns’ request f

o r a judicial sale. ¶11. Mississippi Code Annotated section 11-21-11 (Rev. 2004) perm i ts a judicial partition by sale only where: “[ A] sale of the lands, or any part thereof , will better p rom ote the interest of a ll p arties than a partition in kind, or if the court be s atisf ied that an equal d ivision cannot be m ade.” At the hearing to conf irm the judicial sale, the Quinns a s serted that Jessie had to illustrate t hat the om ission of his nam e as a r espondent resulted in prejudice. T he trial court af f orded him with an opportunity to testif y as to any prejudice t hat he m ay have incurred. Jes s i e d e c l i ned to testif

y but asserted that he was prejudiced by t he s ale since he pref erred

a partition in kind. M o r eover, the record shows t hat Jessie lived on the property , and that the sale would d irectly af

f ect the location of

his patio and other f

ixtures. S ince t he disposition of the land directly im

pacted Jessie’s rights t o the subject p roperty , the judicial sale should have been vacated. ¶12. In Shaw v. Shaw , 603 So. 2d 287, 294 (Miss. 1992), the Mississippi Suprem e Court held, “W hile the question of joinder of

an absent person generally m u st be tim e ly raised in the trial court, an appellate court m ay conside r t h e issue even though it was not initially raised below, and m ay do so sua sponte.” In the p resent case, the nonjoinder was r aised, but it was not properly

raised by the f iling of a m otion. However, Jessie did raise the m atter at the hearing to conf

i rm the sale, which suf

f iciently preserved t h e m atter o n appeal. “Rule 12(h)(2) of the Mississippi R u l e s of Civil P rocedure requires [ parties] to raise t he issue of f ailure t o join a necessary and indispensable p arty in the pleadings under [ Mississippi ] Rule

5[ of Civil Procedure] 7(a) or b y m o t i o n f o r judgm e nt on the pleadings or at the t rial on the

m erits.” Marathon Asset Mgmt. LLC v. Otto , 977 So. 2d 1 241, 1246 ( ¶14) (Miss. Ct. App. 2008). ¶13. The s uprem e c ourt h as noted that “parties whose rights are t o be af f ected are entitled
to be heard

. . . . F urtherm o r e, they m u s t b e n otif ied in a m anner and a t a tim e that is

m ea n i n g f u l.” Aldridge v. Aldridge , 527 So. 2d 96, 98 ( Miss. 1988) (internal citations

om itted). Jessie w as not properly noticed or a d d e d a s a respondent until a y ear af ter the

m atter was initiated. Once the Quinns f iled their s econd am e n ded petition f or a judicial sale,

nam ing Jessie as a respondent, the sale of the subject property should have been vacated and

r e n o t i c e d f

or a proper sale, involving all parties if Jessie’s in-kind partition did n o t

m aterialize. Nevertheless, the court presum e d that since J essie and A rm a were h usband and wif e, Jessie had knowledge of the actions regardless of his om ission a s a respondent in the

m atter. W e f

ind that presum

p tion was in error. CONCLUSION ¶14. Since Jessie w a s n o t n o t i f ied of the judicial sale and he did not participate in the
agreem ent f

o r sale, we r everse and rem and the judgm e nt granting t he partition sale to allow Jessie to proceed to f

acilitate an in-kind partition of h is interest in the property

. ¶15. T H E J U D G M E NT O F THE C L A Y C O U N T Y C H A N C E R Y C O U R T I S REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT W I T H THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES. LEE, C .J . , BARNES, ISHEE, CARLTON, F A IR AND G REENLEE, JJ., C O N C U R . IRVING, P .J., AND WILSON, J., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., D I S SENTS

6WITHOUT SEPARATE WRITTEN OPINION.

7