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In Matter of Heirship of Albert Gardner

Case No. 2012-CA-00480-COA (MS Ct. App., Nov. 5, 2013)

Our supreme court has held that parties generally may only appeal from a final judgment. M.W.F. v. D.D.F., 926 So. 2d 897, 899 (¶4) (Miss. 2006). “A final, appealable[ ] judgment is one that ‘adjudicates the merits of the controversy which settles all issues as to all the parties’ and requires no further action by the [trial] court.” Walters v .Walters, 956 So. 2d 1050, 1053 (¶8) (Miss. Ct. App. 2007). Absent an express certification by the trial judge that there is “no just reason for delay” and an explicit direction “for the entry of the judgment,” there can be no appeal from a judgment resolving less than all issues or claims against all parties. M.R.C.P. 54(b).

This case is a complex proceeding to determine the heirs of Albert Gardner in Yazoo County. In a February 2012 order, the trial court found that the Appellants’ claims for establishment as children of their putative deceased father are barred by Mississippi Code section 91-1-15 (Supp. 2012). Because the chancellor’s order was not certified under Rule 54(b), it is not a final, appealable judgment. Therefore, we lack jurisdiction to consider the merits of this case and must dismiss.

FACTS



Albert Gardner, whose estate consisted mainly of a parcel of real estate in Yazoo County, Mississippi, died intestate in 1924. The following year, his estate was opened and his heirs were adjudicated to be his wife, Francis; their five living children; and ten grandchildren, the offspring of a deceased child. More than eighty-two years after his death, on December 16, 2009, two of his grandchildren filed a petition to reopen his estate for determination of heirship, stating that his heirs were owed oil, gas, and mineral royalties.

The Appellants in this action are the putative children of Albert Clayborne, a great-grandchild of Albert Gardner. Albert Clayborne, the divorced father of eight legitimate children, died in 1998. No action was initiated to adjudicate his heirs until 2009.

Kashonna Young and others joined in the pending Yazoo County proceedings, claiming to be children of Albert Clayborne. They opened estate proceedings in Humphreys County, Albert Clayborne’s residence when he died, seeking the same determination of the same issue: that Albert Clayborne is their father and they are entitled to a portion of his estate. The two actions were consolidated by the trial courts. From a finding that the claims of heirship by the thirteen putative children of Albert Clayborne were untimely and without standing, eight of those claimants have appealed and seek reversal of the chancellor’s decision.
































































































































 

 

Judge(s): Eugene Fair
Jurisdiction: Mississippi Court of Appeals
Related Categories: Civil Procedure
 
Trial Court Judge(s)
Janace Goree

 
Court of Appeals Judge(s)
Donna Barnes
Virginia Carlton
Eugene Fair
Kenneth Griffis
Tyree Irving
David Ishee
Ceola James
Joseph Lee
Jimmy Maxwell
Larry Roberts

 
Appellant Lawyer(s) Appellant Law Firm(s)
Eduardo Flechas
Ronald Stutzman Jr.

 
Appellee Lawyer(s) Appellee Law Firm(s)
Derek Arrington
Terris Harris
Precious Martin
Terri Murry-Whalen

 

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Click the maroon box above for a formatted PDF of the decision.
¶7. in her fifty-page memorandum and order dated february 28, 2012, the chancellor, in terri denise murry-whalen ¶10. without a certification under rule 54(b), “any order in a multiple party or multiple whether albert clayborne’s mother and his grandfather survived their spouses is minnette karen white blair, and melvin henderson, albert henderson 5 this nonfinal judgment. an appellate court, on its own initiative, may dismiss an appeal for determination of heirship, stating that his heirs were owed oil, gas, and mineral royalties. ¶5. kashonna young and others joined in the pending yazoo county proceedings, lanett marie white stevenson, 5 of the mississippi rules of appellate procedure to proceed with an interlocutory appeal of same issue: that albert clayborne is their father and they are entitled to a portion of his ¶11. this appeal is dismissed. all costs of this appeal are determination of heirs are subject to any spouse who survived said heirs who grandchild of albert gardner. albert clayborne, the divorced father of eight legitimate children, died in 1998. no action was initiated to adjudicate his heirs until 2009. was not made a party to this litigation. date of judgment: 02/28/2012 m.r.c.p. 54(b) cmt. here, the chancellor did not indicate that the order was a final judgment also m.r.c.p. 54(b) cmt. in the court of appeals of the state of mississippi ¶1. our supreme court has held that parties generally may only appeal from a final lifetime of a deceased, or (3) there has been an adjudication of paternity after death of an 6 ¶2. this case is a complex proceeding to determine the heirs of albert gardner in yazoo disposition: appeal dismissed: 11/05/2013 his heirs were adjudicated to be his wife, francis; their five living children; and ten 103 (¶5) (miss. ct. app. 2002). therefore, we dismiss for lack of jurisdiction. appellants nature of the case: civil - wills, trusts, and estates albert gardner: kashonna young, a short paragraph on the next-to-last page, held that “the following are not the lawful heirs decision. to all the parties’ and requires no further action by the [trial] court.” walters v .walters, 956 albert gardner’s descendants and their spouses, as recognized by the chancellor: fair, j., for the court: of heirship by the thirteen putative children of albert clayborne were untimely and without ronald earl stutzman jr. 3 it is, further, ordered and adjudged that the aforementioned arillia pollion, the estate of albert county, albert clayborne’s residence when he died, seeking the same determination of the gardner, stokes anderson, lucille lee, c.j., irving and griffis, p.jj., barnes, ishee, roberts, upon an expressed direction for the entry of the judgment.” id. and absent a rule 54(b) facts mandate issued: no. 2012-ca-00480-coa motion for rehearing filed: white mcgee, gerry lee white, discussion judgment. m.w.f. v. d.d.f., 926 so. 2d 897, 899 (¶4) (miss. 2006). “a final, appealable[ in the matter of the heirship of claim action, even if it appears to adjudicate a separable portion of the controversy, is estate. the two actions were consolidated by the trial courts. from a finding that the claims of albert gardner because they fail to comply with 91-1-15 of the miss. code ann.” and assessed to the appellants. fewer than all of the claims or the rights and liabilities of fewer than all the parties.” id.; see 4 ¶6. we must first note that while neither side raised the issue of jurisdiction, we must or more claims or terminates the action as to one or more parties. “rather, it gives the court macklin, janett nadine white reese, ¶4. the appellants in this action are the putative children of albert clayborne, a great-1 linda white, michael bowman, intestate as therein provided. miss. code ann. § 91-1-15(3)(a)-(c). the statute further judgment,” there can be no appeal from a judgment resolving less than all issues or claims 2 may do so “only upon an expressed determination that there is no just reason for delay and county, mississippi, died intestate in 1924. the following year, his estate was opened and merits of this case and must dismiss. [n]o such claim of inheritance shall be recognized unless the action seeking of an illegitimate may be adjudicated if: (1) there is a marriage of the parents of an kerry lee white trial court disposition: judgment determining heirs annette sharon white richardson, amended since the appellants filed their appeal with this court. we therefore conclude that interlocutory.” m.r.c.p. 54(b) cmt; see also owens v. nasco int'l., inc., 744 so. 2d 772, 774 miss. code ann. § 91-1-15(3)(c). undetermined in the order. further, the record shows that the order appealed from has been further changes and amendments. trial judge: hon. janace h. goree run notwithstanding the minority of a child. certification, any judgment – regardless of how designated – is not final if it “adjudicates ] judgment is one that ‘adjudicates the merits of the controversy which settles all issues as address this threshold issue. see anderson v. britton & koontz bank, n.a., 55 so. 3d 1130, standing, eight of those claimants have appealed and seek reversal of the chancellor’s ¶8. under rule 54(b), a trial judge “may direct the entry of a final judgment as to one or establishment as children of their putative deceased father are barred by mississippi code illegitimate, though later dissolved, or (2) there has been adjudication of paternity during the grandchildren, the offspring of a deceased child. more than eighty-two years after his death, entered claiming to be children of albert clayborne. they opened estate proceedings in humphreys carlton, maxwell and james, jj., concur. derek royce arrington these heirship proceedings are not final, even as to the appellants, as they are still subject to appellees or provide any rule 54(b) certification. the fifty-page order contains many gaps regarding listed the thirteen putative children of albert clayborne. that statute provides that paternity so. 2d 1050, 1053 (¶8) (miss. ct. app. 2007). absent an express certification by the trial discretion to enter a final judgment in these circumstances and it provides much needed county. in a february 2012 order, the trial court found that the appellants’ claims for on december 16, 2009, two of his grandchildren filed a petition to reopen his estate for the absence of a rule 54(b) certification. miller v. r.b. wall oil, co., inc., 850 so. 2d 101, albert clayborne also spelled his name, as did some of his children, “claiborne.”1 (¶8) (miss. 1999). further, the appellants neither sought nor received permission under rule an adjudication of paternity is filed within one (1) year after the death of the v. terris caton harris robert lee white, jr., colnett wendy certainty in determining when a final and appealable judgment has been entered. if the court 1131 (¶5) (miss. ct. app. 2011). intestate or within ninety (90) days after the first publication of notice to more but fewer than all of the claims or parties” in an action. m.r.c.p. 54(b). but the judge section 91-1-15 (supp. 2012). because the chancellor’s order was not certified under rule provides, as to the third requirement: before lee, c.j., maxwell and fair, jj. chooses to enter such a final order, it must do so in a definite, unmistakable manner.” darnett voline, norbert lee white, attorneys for appellants: eduardo alberto flechas attorneys for appellees: precious tyrone martin gwindle aryeetay, alvo daniels, and michael moore court from which appealed: yazoo county chancery court against all parties. m.r.c.p. 54(b). 54(b), it is not a final, appealable judgment. therefore, we lack jurisdiction to consider the creditors to present their claims, whichever is less; and such time period shall ¶9. rule 54(b) does not require that a judgment be entered when the court disposes of one ¶3. albert gardner, whose estate consisted mainly of a parcel of real estate in yazoo judge that there is “no just reason for delay” and an explicit direction “for the entry of the


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