IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2017-CA-00607-COA CHASITY ANDERSON APPELLANT

v. DARNICE WIGGINS APPELLEE DATE OF JUDGMENT: 11/29/2016 TRIAL JUDGE: HON. JOHN S. GRANT III COURT FROM W HICH APPEALED: RANKIN COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: JAMES NELSON SCARFF II ATTORNEYS FOR APPELLEE: THOMAS J. LOW E JR. JAMES BYRNES GRENFELL NATURE OF THE CASE: CIVIL - W ILLS, TRUSTS, AND ESTATES DISPOSITION: AFFIRMED - 05/14/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. GREENLEE, J., FOR THE COURT: ¶1. Af ter the death of h e r son, Darnice W iggins s u ed her son’s f iancée, Chasity

Anderson,
f or conversion. W iggins then m o ved f or sum m ary judgm ent against Anderso n . A nderson

m oved f or a continuance but never specif ically responded to the sum m ary judgm ent m otion. Three day s bef

ore the hearing, Anderson’s attorney suf f ered a m e d ical e m ergency and suspended h i s legal practice. T he Rankin County Chancery Court denied the continuance,

went f orward with the hearing, and granted sum m ary judgm ent. Af ter the d enial of her posttrial m otions, Anderson appealed. W e f ind no error and af

f i rm . FACTS AND PROCEDURAL HISTORY ¶2. W i ggins’s son, Jhonte Sanders, began dating Anderson in 2013. S a n d e r s l i v e d inChicago, Illinois, a nd Ander s on lived in F lorence, Mississippi. Sanders suf f ered f rom leukem ia a nd soon m oved to Mississippi to begin c hem otherapy t reatm e n ts at the University of Mississippi Medical Center. Several seizures severely com p rom ised h is me n t a l and phy sical abilities. He died in February 2015. ¶3. Bef

ore his death, he received a personal-injury settlem ent i n e x c e s s o f $ 3 50,000.
W h ile engaged to A nderson, he m ad e s e v e ral transf ers to her f

rom that settlem ent. The
f ollowing transf

ers are the crux of

the com plaint f or conversion:
1. $ 1 0 0 , 072.73 transf erred f rom Sanders’s Navy Federal Credit Union accoun t to Trustm ark Bank on January 15, 2015;
2. $105,000.00 i n a transf er f rom Sanders’s Trustma r k Bank account to Anderson, dated January

22, 2015; and
3. $100,000.00 transf erred f rom Sanders’s Navy Fed e r a l C redit Union account to Anderson on January

23, 2015. ¶4. Af ter his death, the Rankin County Chancery Court appointed his m other, W iggins,

a d ministratrix of his estate. W i ggins sued Anderson f or conversion in Augus t 2 0 1 5

. Anderson was served with a copy of the sum m ons a nd an unf i led c o m plaint f or conversion in Septem ber 2015. She was served with requests f or a dm issions in October 2015. She f ailed

to respond af

ter thirty day s, and t he chancery court entered a def a ult judgm ent against her in January 2016. The chancery court later granted h er m otion to set aside the def ault j udgm ent but deem ed that the unanswered requests f or adm issions be adm itted. ¶5. W i ggins then m o ved f or sum m ary judgm ent. A hearing on the m otion was scheduled
f or Novem ber 29, 2016. One w eek bef ore that h earing, Anderson m oved f or a continuance. She claim ed that she was u n able to depose the plaintif f ’s expert witness and that h er attorney ,
2Jam es Scarf f , had several he a r i n g s t h a t day and could not attend. W iggins opposed the continuance because Scarf f had a lready delay ed the litigation several tim es with m ultiple continuance requests. ¶6. Two day s bef

ore t he hearing, Scarf

f becam e s e r i o u s l y i l l a n d s uspended his law practice f or thirty day s . He notif

ied the chancery court of his poor health, a n d the court adv i s e d h i m t o h ave another attorney appear at the hearing on his behalf and ask f or a continuance. Scarf

f did not f

ile a separate m otion f

or a c o n t i nuance. O n the day of the hearing, two of his colleagues appeared bef ore the court to explain that Scarf f could not of

f er Anderson representation. Neither colleague en t e r ed an a ppearance f

or Anderson bef

ore or
at the tim e of the h earing, b ut they later entered an appearance to f ile the post-trial m otions. Anderson did not appear at the hearing, and t here is no evidence that any o ne ever alerted her to her attorney ’s absence. ¶7. The chancery c ourt proceeded with the s c heduled hearing. I t denied the m o tion f or a continuance and granted sum m ary judgm ent. A nderson then m oved f or reconsideration and

m oved f or a new trial. The court denied both m o tions. I t is f rom this judgm ent that A nderson appeals. She asserts that: (1) the chancery court did n ot have subject-m atter jurisdiction over the c onversion claim ; (2) the chancery court abused its discretion when it denied the m otion
f or a continuance; ( 3) the chancery court erred when it granted sum m ary judgm ent; and (4) the c hancery court e rred w hen it denied Anderson’s post-trial m otions. Finding no error, we af f irm

. DISCUSSION

3I. Did the chancery court ha v e s u bject-m a tter jurisdiction over t he conversion claim ? ¶8. Anderson argues t hat chancery court was not the proper court in which to f ile a claim
f or conversion. She asserts that the court lacked subject-m atter jurisdiction over the claim

. “The question of subject m atter jurisdiction i s an issue o f law to which t his Court m ust apply

a de novo standard of review.” In r e Adoption of J.D.S. , 953 So. 2 d 1133, 1136 (¶11) (Miss. Ct. App. 2007). ¶9. Our State’s Constitution lim its chancery -court jurisdiction: The chancery court shall h ave f ull jurisdiction in the f

ol l o w i n g ma tters and cases, viz.: (a) All m atters in equity ; (b) Divorce and alim ony ; (c) Matters testam entary

and of adm inistration; (d) Minor’s business; (e) Cases of

idiocy , lunacy , and persons of unsound m ind; (f ) All cases of which the s aid court had jurisdiction under the l aws in f orce when this Constitution is put in operation. Miss. Const. art. 6, § 159. ¶10. The m atter bef

ore us i s a conversion claim

. “Although property of which conversion is alleged i s i n t h e custody o f a chancery court,” Georgia-Pac. Corp. v. B lakeney , 353 So. 2d 769, 772 (Miss. 1978) (quoting 18 Am

. Jur. 2d Conversion § 135 (1955)), an action f or conversion alone is best heard in the cir c u i t c ourt. But if “ there is o ne issue of exclusive equity cognizance, that issue can bring the entire case within subject m atter jurisdiction of the chancery c ourt and that court m ay p roceed to adjudicate all l egal issues as well.” Newton

v. Brown , 198 So. 3d 1284, 1288 (¶20) (Miss. C t

. App. 2016) ( internal q uotation m arks

4om itted).

¶11. Wi g g i n s’s com

plaint only asserts a claim f or conversion. She does not indicate any other tort or any other claim f or the chancery court t o consider. She asserts that the protection of t he estate’s assets entitles her to jurisdiction within the c hancery court. She contends that Anderson cannot now c laim a lack of subject-m atter jurisdiction b ecause the chancery court already rendered its decision. But jurisdictional challenges m ay b e raised a t a ny point during litigation, as wel l a s o n a p peal. Pierce v. Pierce , 132 So. 3d 553, 560 (¶14) (Miss. 2014). Mississippi Rule of

Civil Procedure Rule 12(h)(3) provides that “[ w]henever it a ppears by suggestion that the p arties o r otherwise that the court lacks jurisdiction of the subject m atter,
t h e c ourt shall dism iss the action or t ransf er the action to t he court of proper j urisdictio n . ”
A d ditionally , our state constitution determ ines the ability of appellate courts to reverse a judgm ent of

a chancery

court when it lacks jurisdiction:
No judgm ent or decree in any chancery or circuit court rende r e d i n a civil cause s hall be r e v e r s e d or annulled on the ground of w ant of jurisdiction to render said judgm ent or decree, f rom any e r

ror or m istak e a s to whether the cause in which it was rendered was of equity or com m on-law jurisdiction; but if t h e Suprem e C ourt shall f ind error in the proceedings o ther than as to jurisdiction, and it s hall be necessary to rem and the case, the Suprem e Court m ay rem and i t to that court which, i n its opinion, can best determ ine the controversy

. Miss. Const. art 6, § 147. ¶12. At the s um m ary -judgm ent h e a r i n g , t h e chancery c ourt discussed the jurisdictional concerns and f

ound that it had jurisdiction over the claim

. Specif ically , it f ound that under
W iggi n s v
. P erry , 9 89 So. 2d 419, 430 (¶28) (Miss. Ct. App. 2008), Anderson could not

com plain about subject-m atter jurisdiction af ter the court r

uled o n the m o tion f

or sum m ary

5judgm ent.

¶13. In that case, W iggins did not raise the issue of subject-m atter jurisdiction until af ter the chancery c ourt granted sum m ary judgm ent. Theref ore, on appeal, our court w as unable

to reverse the case on the issue of subject-m atter jurisdiction alone. Id. at 430-31 (¶28). W e ultim ately reversed the decision on other grounds and rem anded the case with instructions that it be transf

e rred to the proper court. I d. at 433 (¶47). ¶14. In the present case, the chancery court held: Now, [ the Mi s s i s sippi Constitution] s ay s a lot. And our case law s ay s even m ore. In one case . . . it i s stated that: “Because a party did not raise t he issue of subject m atter jurisdiction until af ter sum m ary judgm ent had been granted in f avor of the adverse party , the reviewing court could only r everse f or lack of s ubject m atter jurisdiction where there was also som e other trial court error warranting reversal.” The chancery court f

ound t hat subject-m atter jurisdiction was never an issue b e f o r e the

m otion f or sum m ary j udgm ent. I n h er answer to the conversion com p l a i nt, Anderson asserted lack of subject-m atter jurisdiction as a n a f f i rm ative def

ense. But at no point thereaf ter did she actively pursue that def ense. I n f act, she never f

i led any m otion based on those grounds.
As in W i ggins , without som e other error, precedent prevents u s f rom reversing this case on the issue of

subject-m atter jurisdiction alone in this situation. 1

1 3 Jef f rey Jack so n , M ary M iller, an d D o n ald C am p b ell, E n c yclo p ed ia o f M ississip p i L a w § 1 9 :1 8 8 (2 d ed

. 2 0 1 8 ) (“O r d in arily , a co u rt o f ap p eals co u ld rev erse f o r lack o f su b

j ect m atter j u risd ictio n in th e trial co u rt e v en w h e re th e p arties m ay n o t h av e raised t h e issu e. S ectio n 1 4 7 o f th e M ississi pp i C o n stitu tio n p ro v id es t h at th e s u p rem e co u rt i s w ith o u t p o w er t o r e v e r se w h ere th e o n ly erro r f o u n d is ‘w an t o f j u risd ictio n to r en d er s aid j u d g me n t o r d ecree, f ro m an y e rro r o r m istak e as to w h e th er th e cau se . . . w as o f eq u i ty o r co m m o n -law j u risd ictio n .’”); Jam es W. S h elto n , M iss. C h an cery P rac. § 2 :7 (2 0 1 8 ) (“[ T ] h e C o n stitu tio n p ro h ib its th e S u p rem e C o u rt f ro m rev ersin g a case w h ere t h e o n ly erro r is t h at th e case w as b ro u g h t in ch an cery co u rt w h en it sh o u ld h av e b e en b ro u g h t i n circu it co u rt, o r v ice v ersa.”); 6II. Did t h e c h a ncery court a buse its discretion w hen it denied t he m otion for continuance? ¶15. Anderson claim s that the chancery court unf a irly prejudiced her when the chancellor allowed W iggins’s m otion f or sum m ary judgm e nt to be heard af ter Anderson’s counsel had

n o tif ied the court that he was ill and unable to p ractice law. “The grant or denial o f a continuance is within the discretion of the trial court.” Henderson v. Henderson , 952 So. 2d 273, 277 (¶7) (Miss. Ct. A pp. 2006). “Prejudice m ust r esult f

r om the denial i n order to have that decision reversed.” I d. ¶16. W e f

ind that the chanc e r y c o u r t properly denied Anderson’s continuance m otion. Under our rules of civil p rocedure, “[ a] written m otion, other than o ne which m ay be heard

ex parte, and notice of t he hearing thereof shall be s e rved not later than f ive day s bef

ore the tim e f ixed f or the hearing, unless a dif f erent period is f

ixed by t hese rules or by order of the
court.” M .R.C.P. 6(d). Parties h ave requested special considerations w h en sudden issues arise. In Peden v. C ity of Gautier , 870 So. 2d 1185, 1188 (¶10) ( Miss. 2004), Peden m oved
f or continuance on the m orning of the hearing, citing p oor health and that he was no longer

r e p r e s e nted by counsel. The court denied the m otion. I d. a t 1187 (¶5). On appeal, t h e Mississippi Suprem e Co u rt af f irm ed that denial because “Peden was in the courtroom and

c.f. Wa i ts v. B la ck B a

yo u D ra i n a g e D ist. , 1 8 6 M iss. 2 7 0 , 1 8 5 S o . 5 7 7 , 5 7 8 (1 9 3 9 ) ( “S ectio n 1 4 7 o f th e C o n stitu tio n h as n o ap p licatio n . It p ro v i d e s th at n o cau se sh all b e rev ersed b y th e S u p rem e C o u rt o n t h e g r o u n d a lo n e o f a m istak e in th e trial co u rt as to w h eth er it is o f law o r eq u ity j u r isd ictio n . T h e tro u b le h ere is th at n eith er th e ch an cery c o u rt n o r t h e c i rcu it co u rt h ad j u risd ictio n o f th i s cau se, as w e w ill u n d ertak e to d e m o n strate. I n th e case o f In d ia n o la C o m p r e ss & S to ra g e C o
. v. S o u t h ern R .R

. C o
. , 1 1 0 M iss. 6 0 2 , 7 0 S o . 7 0 3 , [ 7 0 4 (M iss. 1 9 1 6 ),] [ s] ectio n 1 4 7 o f th e C o n stitu tio n ap p lied f o r it w a s n o t a q u estio n o f j u risd ictio n , b u t a m istak e in j u risd ictio n .”). 7actively participated in t he hearing bef ore t h e t r i a l c o urt, including questioning his own witness.” Id. at 1188 (¶11). ¶17. Unlike in P eden , Ande r s o n d i d n o t p a r t i c i p a t e in the h earing and had no one to participate on her behal f

. T wo a ttorney s appeared on the scheduled hearing date, but they only a ppeared as h e r counsel’s “concerned f riends.” T here is no evidence that any one told Anderson of her attorney ’ s status until af ter the hearing. Essentially , she was without counsel to represent her interests, and she was not there to represent herself

. ¶18. W h ile we recognize that Anderson m a y have been denied a rightf u l hearing in f

ront of the chancery court on her continuance m otion, we also n o te that the m otion was not f or the sam e reasons that she argues o n appeal. Anderson’s m otion c i ted an inability to depose

an expert witness f

o r the plaintif

f

. An additional continuance m otion—specif ica l l y f or Scarf f ’s i llness—was neve r f

i led. Although no one r epresented her interests regarding the expert witness deposition, we f i nd no error in the denial of the m otion f or a continuance on those grounds. Theref

ore, we af f irm

. III. Did the chancery court err w h en it granted sum m a ry judgm ent? ¶19. Anders o n a v e r s t h a t i f s h e had been represented, then she c ould have adequately opposed the sum m ary -judgm ent m otion and shown a genuine dispute of m aterial f act. “This
Court applies a de n ovo standard of r eview to a grant o f sum m ar y j udgm ent by the lower
court.” Hudson v. Courtesy Motors Inc. , 794 So. 2d 999, 1002 (¶7) (Miss. 2001). ¶20. Rule 56 o f t h e M i s s i s s i ppi Rules of Civil Procedure governs sum m ary -judgm ent

m otions. Sum m ary judgm ent will be granted where—when viewing the evidence in the light

8m ost f

a vora b l e to the nonm oving party —the pleadings, depositions, answers to interrogatories, a nd af

f idavits show that there is “no genuine issue a s to any m aterial f act and

t h a t t h e moving party i s entitled to a j udgm ent as a m atter of l aw.” M.R.C.P. 56(c); L e e v
. Keller W illiams Realty , 247 So. 3d 293, 296 (¶6) (Miss. Ct. App. 2017). “A m ere allegation by the nonm oving party that a dispute over whether a ma t e r i a l f a c t exists will not def

eat a

m ovant’s otherwise properly supported m o tion f

o r sum m a ry

judgm ent.” S

cott Penn Inc. v. Mississippi W

o rkers’ Comp. Grp. Self-Insurer Guar. Ass’n , 235 S o. 3d 8 5, 91 (¶19) (Miss. 2017). “Additionally , a dispute about a m aterial f act is genuine o nly if the evidence is such that a reasonable jury c ould return a verdict f or the nonm oving party

. ” Id. Finally , under Rule 56(e), if the nonm oving p arty does not respond, sum m ary judgm ent will be entered if appropriate. ¶21. In s upport of her conversion claim , W iggins argues that her son was a vulnerable adult who was unable t o m ake decisions f or him self

. Mississippi Code A nnotated section 11-7-165 (Rev. 2004) def

ines the actions set f

orth in W iggins’s com

plaint:
In a civil action where i t is proven t hat a p erson took property having a value of Two Hundred Fif

ty Dollars ($250.00) or m o re belonging to a vulnerable adult by conversion, em bezzlem e nt, extortion, thef t or f raud without the owner’s consent, o r obtained the owner’s consent by intim idation, deception, undue inf luence or by m isusing a position of trust or a c onf idential relationship with the owner, then w hether the action is to r ecover t he property or dam ages in l ieu thereof

, or b o th, dam ages shall be recoverable up to three ( 3) tim es the am ount of t h e monetary dam ages or v alue o f the p roperty em bezzled, converted or otherwise stolen, in addition to any other dam ages. Thus, at issue is whether S anders qualif ies as a v ulnerable adult. Our Code def ines a “vulnerable person” as:

9[ A] person, whether a m inor or adult, whose ability to perf orm t h e n o r m al activities of d a i l y l i v i n g or to provide f o r his o r her own care o r protection f rom abuse, neglect, exploitation or im proper sexual contact is im paired due to a m ental, em otional, phy sical or developm ental d isability or dy sf unction, or brain dam a ge or the inf

irm ities of

aging. Miss. Code Ann. § 43-47-5(q) (Rev. 2004). ¶22. The record indica t e s t h a t Wi ggins produced a f u lly supported sum m ary -judgm ent

m otion. And she i ncluded Dr. Clea C. Evans’s af f i davit in that m otion. Dr. Evans stated that Sanders w as “in the im

p aired range, w ith im m e d iate m em ory , language, s kill, and attention
span problem s.” Dr. E van s thought that Sanders “did not h ave the cognitive ability , reasoning, or m ental c apacity to realize he was transf erring this large sum of m oney or any

sum of m o ney

to Chasity

Anderson or the consequences of his actions . . . .” ¶23. Anderson c ould not show that there was a genuine dispute of m aterial f act. W iggins
f iled the m otion o n Septem ber 2 2 , 2 0 1 6. Anderson had at least 68 day s to r espond to the

m otion bef

ore the h earing d a t e. But s he did not. The u nanswered requests f or adm issions

were deem ed a dm itted by the chancery court, and the chancery court may —and d id—rely
upon them

. 2 And “[ a] m atter that is deem e d adm itted does n ot require f urther proof

.”

2 A cco rd in g to th e clerk ’s p ap ers (p ag es 7 3 -7 5 ) i n t h e reco rd o n ap p eal, th e sev en teen req u ested ad m issio n s p ro p o u n d ed to Ande r s o n i nc l ude d: Sa nde r s pur c ha s e d a T o y o ta C am ry f o r A n d erso n ; A n d e rso n trad ed th e T o y o ta C am ry f o r a N i ssan Ju k e; “p rio r to Jan u ary 1 5 , 2 0 1 5 , [ A n d erso n ] h ad a zero n et w o rth ”; S an d ers tran sf erred $ 1 0 0 ,0 7 2 .7 3 to A n d erso n o n Jan u ary 1 5 , 2 0 1 5 ; S an d ers tran sf erred $ 1 0 5 ,0 0 0 .0 0 to A n d e rso n o n Jan u ary 2 2 , 2 0 1 5 ; S an d ers tran sf

erred $ 1 0 0 ,0 0 0 .0 0 to A n d erso n o n Jan u ary 2 3 , 2 0 1 5 ; S an d er s ha d b een “u n d er th e care an d su p erv isio n o f a p h y sician an d w as tak in g v ario u s m ed icatio n s ” a t v a r i o u s tim es; A n d erso n ’ s m o th e r p ick ed S an d ers u p f ro m th e h o sp ital o n J an u ary 2 2 , 2 0 1 5 , an d d ro v e h i m to A n d erso n ’s w o rk p lace w h ere h e sig n e d p ap ers to tran sf er m o n ey ; A n d erso n u sed m o n e y f

r o m S an d ers’s acco u n t “to p u rch ase X b o x g am es, clo t h es an d o th er item s” f o r $ 2 ,0 0 0 .0 0 o n Jan u ary 2 2 , 2 0 1 5 ; A n d erso n u sed m o n ey f ro m S an d e r s’s acco u n t t o p u rch ase “a f lat screen telev isio n f

o r $ 1 , 0 0 0 .0 0 ” in N o v e m

b er 2 0 1 4 ; S an d ers receiv ed a p erso n al1 0DeBlanc v. Stancil , 814 So. 2d 796, 801 (¶25) (Miss. 2002). O n appeal, she argues that if the

chancery c ourt granted her continuance, then she would have been able to s how that genuine dispute. But she had am

ple tim e to do so bef

o re the hearing. Indeed, she was n ot l ef t at the last m inute without representation and no ability to respond to the m otion. Instead, she had the opportunity

to set f orth a genuine issue of

m aterial f

a c t, but she f

ailed to tim ely

do so. ¶24. W e theref

ore f ind that the chancery

court properly

granted sum m ary

judgm ent.
IV. Did th e c h a ncery court err w hen it denied A nderson’s post-trial m otions? ¶25. Af ter the entry of s um m ary judgm ent, Anderson m oved f or reconsi d e r a t i o n u n d er Mississippi Rule of

Civil Procedure 60(b)(6) a nd f or a new trial under Mississippi Rule of Civil Procedure 6 0(b)(3). The c our t denied both m otions. Anderson last argues that the chancery court erroneously denied those m otions. “This Court will reverse the grant or denial of a M

. R.C.P. 60(b) m o t i o n o n l y u p on a showing of abuse of discretion.” T el. Man Inc. v. Hinds County , 791 So. 2d 208, 210 (¶9) (Miss. 2001). ¶26. Rule 60(b)(6) “is a ‘catch-all’ ty pe provision that allows a j udgm ent to be set aside f or ‘any other reason justif

y ing r elief f

rom the judgm ent.’” Id. But “[ r]elief under Rule 60(b)(6) is r eserved f

or extraordinary and com pelling cir c u m s t a n c e s . . . .” Id. (quoting Briney v. United States Fid. & Guar. Co. , 714 So. 2d 962, 966 (¶12) (Miss. 1998)). ¶27. In he r r e c o n s i d e r a t i o n mo t i o n , Anderson asserted the s am e issues that she now

in j u ry settlem en t i n ex cess o f $ 3 5 0 ,0 0 0 .0 0 i n D ecem b er 2 0 1 4 ; an d A n d erso n “n ev er m e t o r h ad a c o n v ersatio n w ith D r. C l ea E v an s, t h e n e u ro p s y ch iatrist w h o t reated an d cared f o r Jh o n te S an d ers, . . . .” A ll req u ested ad m issio n s w ere u n an sw ered , an d th e ch an cery co u rt d eem ed th em

ad m itted

. 1 1presents o n appeal. As previously discussed, Anderson n ever pursued the jurisdiction issue

and never responded to the sum m a ry - j udgm ent m otion, despite having am ple tim e to do so. Accordingly , th e c h a n cery court did not a buse i ts discretion when it d enied the m otion f or reconsideration. ¶28. Rule 60(b)(3) allows f o r relief in instances where newly discovered evidence exists that was not f

ound in tim e to m ove f

or a new trial under Rule 5 9(b). In her m o tion f or a new trial, Anderson c laim ed t hat Dr. Stephanie Elkins’s t e s t im ony was n ewly discovered evidence. W e disagree. ¶29. Dr. Elkins treated Sanders f rom 2011 until 2015. In April 2017, she subm itted a letter stating that she had “ never w itnessed [ Sanders] in a setting where [ she] f e lt he c ould not

m ake his own decisions and attend t o h i s own af f airs.” Anderson’s m otion notes that her counsel spoke to D r. Elkins several tim e s b ef ore t hat letter. Anderson’ s c o u n s e l knew or should have known of D r. Elkins’s opinion regarding S anders’s condition a nd his ability to

m ake decisions f

or him self

. ¶30. Anderson say s that she did not produce the letter in tim e because of Dr. Elkins’s travel schedule. But the record shows that def ense counsel knew o f Dr. Elkin s ’ s t e s t i mony and sim ply f ailed to procure i t i n a tim ely f ashion. T heref

ore, we f ind that the chancery court did not abuse its discretion when it denied the m otion f or a new trial.
CONCLUSION ¶31. W e ho l d t h a t : ( 1 ) t h e c h a n c e r y c o u r t h ad s ubject-m atter j urisdiction over the

c o n v e r sion claim ; (2) the chancery court did not abuse its discretion when i t denied t h e

1 2m otion f

or continuance; (3) the chancery court did not err when it grante d sum m ary judgm ent; and (4) the c hancer y court did not err when it denied A nderson’s post-trial

m otions. W e theref

ore af f irm

. ¶32. AFFIRMED. BARNES, C.J. , C A R LTON, P.J., WESTBROOKS AND L AWRENCE, JJ., CONCUR. TINDELL, J. , D I S S ENTS WITH SEPARATE WRITTEN OPINION, JOINED BY J. WILSON, P.J., McDONALD, McCARTY AND C. WILSON, JJ. TINDELL, J., DISSENTING: ¶33. The m ajority states that “at issue is whether S anders qualif ies as a vulnerable adult.” Maj. Op. at (¶21). W ith a ll due respect to the m ajority , that is n ot the issue. At i ssue is the alleged wrongf

ul conversion of Sanders’s assets by his f iancée, Anderson. W hi le the af f idavits, requests f

or a dm issions, a nd p leadings m ay v ery well have establis h e d t h a t Sanders w as a vulnerable adult, a question of f act still exists as to whether Anderson was in wrongf ul possession of

Sanders’s assets. Theref ore, I m ust dissent. ¶34. As the Mississippi Suprem e Court has explained:

In a sum m ary [ -]judgm ent hearing, t he burden of producing e vidence in support of

, o r in opposition to, the m o tion is a f unction of Mississippi rules regarding the burden of p r oof at trial on t he issues i n question. T he m ovant bears the burden of persua d i n g the trial judge that: ( 1) no genuine issue of m aterial f act exists, and (2) on the basis of the f acts established, h e i s entitled to [ a] judgm ent as a m atter of law. The m ovant bears the b urden of production if , at trial, he would bear the burden of proof on the issue raised. Palmer v. Biloxi Reg’l Med. C tr. Inc. , 564 So. 2d 1346, 1355 (Miss. 1990) (citations and internal quotation m arks om itted). “[ B]ecause [ d]ef endants d o n o t carry a ny burden of production at t rial, they also do not carry any burden of production at the sum m ary -judgm ent

1 3stage.” Karpinsky v. A m. Nat’l Ins. Co. , 109 S o. 3d 84, 8 9 ( ¶ 1 3 ) (Miss. 2013). 3 So even

though h ere Anderson’s counsel f ailed to respond to t he sum m ary -judgm ent m otion and to attend the hearing on the sum m ary -judgm ent m otion, it is still W i ggins, as the plaintif f and adm inistrator of Sanders’s estate, who b ears th e initial burden of producing evidence to establish that there is no genuine issue of m aterial f

a c t regarding conversion. ¶35. “To establish a convers i o n , t h e r e must be proof of a wrongf u l possession, or the exercise of a d om inion in exclusion or def iance of the owner’s right, or o f an unauthorized and injurious use, or of a wrongf ul detention a f

ter dem and.” E

vans v. Miss. Dep’t of

Human Servs. , 36 So. 3d 4 6 3, 477 (¶59) (Miss. Ct. App. 2010) (in ternal quotation m ark om itted).
“Com m on law conversion requires a wrongf ul possession with intent to exercise dom inion

or control over goods which i s inconsistent w ith the true owner’s right.” Midwest Feeders Inc. v. Bank of Franklin , 114 F. Supp. 3d 419, 426 (S.D. Miss. 2015). ¶36. W i ggins a rgued bef ore the chancellor that A nderson’s adm i ssions, coupled with the established f

acts and Dr. E vans’s af

f idavit, clearly showed that t he com plaint f or conversion should b e granted. In s upport o f her sum m ary -jud g me n t m otion, W iggins of f ered the
f ollowing exhibits: Exhibit A: A c o p y o f t h e c o mp l a i n t , w h i c h i n c l u d ed copies o f t h e

f ollowing: ( 1) a July 25, 2014 check f or $12,295 to J&J Auto Brokers signed b y Sanders f r o m h is a c count; (2) a J anuary 12, 2015 bank check f

or $100,072.73 to Anderson; (3) a J a nuary 23, 2015 b ank check f

or $100,000 to Anderson; a nd ( 4) a Trustm ark

3 T h e b u rd en o f p r o o f ma y v e r y w e l l sh if t to A n d erso n a t trial if a co n f id en tial relatio n s h ip is estab lish ed o r th e n atu re o f th e tran sactio n s is d eterm in ed , b u t f o r p u rp o ses o f s eek in g su m m a ry j u d g m en t o n a claim f o r co n v ersio n , t h e b u rd e n o f p ro o f rests sq u arely w i th th e p lain tif

f

. 1 4National Bank gif t letter signed by S anders acknowledging t hat Sanders was gif

ting $105,000 to Anderson f or t he p u r c h a s e of property located at 112 Saint Charles A v e nue, Florence, Mississippi 39073. Exhibit B: A January 6, 2015 check f o r $500 to Rem ax Alliance signed by Anderson f

rom her account. Exhibit C: A MLS listing f or a house f

or sale located at 112 Saint Charles Avenue, and the accom

pany ing p urchase contract e x e c u ted on Ja n u a r y 6 , 2015, f

or the sam e house f

or a purchase price of $261,000. Exhibit D: A warranty deed t o A n d e r s o n d a ted February 5, 2 015, f or the property at 112 Saint Charles Avenue. Exhibit E: A judgm ent deem ing requests f o r adm issions adm i tted. Exhibit F: W iggins ’ s f i r s t s e t o f r equests f

or adm i ssions propounded to Anderson. Exhibit G: Dr. Evans’s opinion and af f idavit. Exhibit H: Anderson’s answer to the com plaint and af

f i rm ative def

e nses. ¶37. E x h i b i t s A t hrough D attached to W iggins’s sum m ary -judgm e nt m ot i o n o f f e r e d evidence o f f

i nancial transactions m ade between or by S a n d e rs and Anderson. Because Sanders him self authorized these transactions, W iggins h as the b urden to establish that either Sanders lacked the com

petency to authorize t he transactions to Anderson or that Anderson exercised undue inf

luence o ver S anders, a vuln e r a b l e adult, to m ake the transf ers. The prim ary evidence to support these theories was A nderson’s a dm issions and the opinion and af f idavit of Dr. Evans. ¶38. In reviewing Anderson’s a dm i ssions, I f i nd that t he only f

acts establi s h e d a r e t hat Sanders m ade various t ransf ers to Anderson and that Sanders w as under a phy sician’s care

1 5and s upervision and was t aking various m edications. There are no adm issions that the f unds

were unlawf

ully converted, that a conf idential relationship existed, that Anderson unduly inf luenced Sanders, or that Sanders l acked the capacity necessary to m ake the ref erenced

transac t i o n s . Anderson’s adm issions, as a m atter of law, do not establish an unlawf ul conversion of

Sanders’s assets to Anderson. ¶39. The only other evidence W iggins relied upon in her sum m ary -judgm ent m otion was
Dr. Evans’s af

f idavit. D r. Evans is the director o f a n d t h e staf f n europsy c hologist at Methodist Rehabilitation Center (Methodist) in Jackson, Mississippi. Sanders was a patient

a t M e t h o d i s t f

rom N ovem

ber 14, 2014, until his discharge on Novem ber 2 8, 2014. In h e r af f idavit, Evans states that, prior to his discharge, S anders had an onset of conf usion and a seizure disorder, and that, along w ith other n eurological conditions, this c aused “f luctuations in h is thinking and m e m o ry s kills.” Af ter his discharge f

rom Methodist, Sanders continued

to receive outpatient-rehabilitation services. According to Dr. Evans, S anders “ scored in the i m p a i r e d r a n g e , w i t h i m m e d i a t e m e m o r y , l a n g u a g e[ -]skills[ , ] and attention[ -]span p r o b l e m s . ” ¶40. Based upon her review of Sanders’s m edical record and her o wn personal treatm ent of Sanders, Dr. Evans of

f ered her opinions as t o his m ental state. In particular, D r . E v a n s opined that f

rom Novem

ber 1 4, 2014, through January 22, 2015, Sanders did not possess the

m ental ability to m anage his own f inancial af

f airs or to m ake l egal o r m edical decisions f or him self

. As it pertained to the January 12, 2015 t ransaction, D r . Evans relied upon a January 13, 2015 therapist note, which stated that Sanders was “having trouble rem em b ering to take his m edication,” to conclude to a reasonable degree of m e d ical probability that Sanders did

1 6not have the cognitive ability or m ental capacity t o realize he was transf erring such a large

sum of m oney . As it pertained to the subsequent check and gif t letter signed o n January 22, 2015, Dr. Evans relied o n a J anuary 18, 2015 therapist note to reach t he sam e conclusion as to those transactions. ¶41. W i ggins argues the chancellor proper l y g r a n ted sum m ary judgm e nt f o r the “sim

ple
f act that [ Sanders] was a v ulne r able person, lacking the apperceptive m ass to understand what he was doing a nd the conseque n c e s t h e r e o f

. . . .” T o be clear, just b ecause an individual is classif

ied as a “ vulnerable adult” does not m e an that the individual is incom petent t o transf

er his o r h er assets to another. Indeed, our suprem e court has acknowledged on m

ultiple occasions that “the m e r e f act t hat som e one i s too ill to handle his af f airs does not in and of itself re n d e r him m entally incom petent o r void of testam entary capacity .” In re E

state of L aughter , 23 So. 3d 1055, 1061 (¶22) (Miss. 2009) (citing Lee v. Lee , 337 So. 2d 7 1 3, 7 1 5 (Miss. 1976)). “[ I]t is s uf f icient f or the testator t o understand and appreciate the nature of

his act, [ to appreciate] the natural objects or persons o f his bounty and their relations to him , and [ to be] capable of reasoning and thinking of how he desired

to devise and bequeath his property .” Lambert v. Powell , 199 Miss. 397, 404, 24 So. 2d 773,
775 ( 1 9 4 6 )

. I n a d d ition, even if a person is f ound to lack com

petency over a specif

ied period, that person m ay hav e l u c i d m o me nts or intervals when he or she possesses the
necessary capacity to convey property

. W hitworth v. Kines , 604 So. 2d 225, 229 (Miss. 1992). The pertinent tim e during which capacity is required is on the date t he property was
t r a n s f e r r e d. See I

n r e Estate of M

ask , 703 So. 2d 852, 858-59 (¶29) (Miss. 1997); I n r e

1 7Estate o

f Crutcher , 911 So. 2d 961, 968 (¶21) (Miss. Ct. App. 2004). Here, Dr. Evans based her opinion on notes f

rom Sanders’s therapist, which w ere taken on d if f erent day s f

rom the dates of the t ransf

ers at issue. Further, nowhere does Dr. Evans state t hat Sanders was incom petent o r insane. Equally im portant, there was no predicate f or Dr. Evans’s af

f idavit concerning Sanders’s capacity

. ¶42. Sum m ary judgm e nt should be granted with great caution af ter viewing the evidence

m ost f avorably toward the n o nm ovant. Brown v
. Credit Ctr. , 444 So. 2d 358, 362-63 (Miss. 1983). In his t w o-page order granting s um m a r y judgm ent, the chancellor sim ply s tated “that there [ was] no g enuine i ssue as to any m aterial f act” and t h at W iggins was “ entitled to a judgm en t as a m atter of law.” B ut the chancellor never s tated exactly how the established

m aterial f acts in this case applied to W iggins’s claim of conversion. Even in her appellate brief , W iggins acknowledges that “[ i]t is im possible t o k

now what passed between Sanders and Anderson that resulted in his transf erring m ost of his settlem ent f unds to h er . . . .” But along with the nature of

Sanders’s m ental state on the dates of the ref erenced transactions, that is the precise question t hat m ust be answered. Until such tim e, m aterial questions of f act still exist that p r eclude sum m a ry judgm ent on W i ggins’s claim of conve r s i o n . I theref ore would reverse t he chancellor’s judgm e nt and r e ma n d this case f or f urther proceedings. Accordingly , I respectf

ully dissent f rom the m ajority ’s opinion.
J. WILSON, P.J., M cDONALD, McCARTY AND C. WILSON, JJ., JOIN THIS OPINION.

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