Opinion
No. 2003-CA-02321-SCT.
October 28, 2004. Rehearing Filed November 12, 2004.
COURT FROM WHICH APPEALED: WARREN COUNTY CHANCERY COURT, TRIAL JUDGE: HON. WILLIAM G. WILLARD, JR., DATE OF JUDGMENT: 09/10/2003
DISPOSITION: REVERSED AND REMANDED
ATTORNEYS FOR APPELLANT: MARTIN A. KILPATRICK, LINTON COOK KILPATRICK
ATTORNEY FOR APPELLEES: WILLIAM M. BOST, JR
BEFORE SMITH, C.J., CARLSON AND DICKINSON, JJ.
¶ 1. This dispute concerns the partition sale of four parcels of commercial land by heirs of the Estate of Eloise W. Dabney. Three heirs ("Petitioners") filed a Complaint for Partition with the Chancery Court of Warren County. A consent judgment was reached with the fourth heir, and a special master was appointed to conduct a sale to the highest bidder for cash. There were two bidders at the sale: the fourth heir and an attorney representing a third-party buyer. This same attorney also represented the three heirs. The fourth heir was the highest bidder at $72,000; however, the special master rejected this bid finding that the letter of guarantee submitted by the fourth heir from Bancorp South was "not for cash." The property was then sold to the other bidder for $60,000. The three heirs moved for summary judgment requesting that the chancery court confirm the sale, which motion was granted without a hearing. The fourth heir has filed this appeal. For the reasons discussed below, this Court reverses the judgment of the chancery court and remands this matter for further proceedings consistent with this opinion.
The chancellors in the Ninth Chancery Court District, of which Warren County is a part, recused themselves and requested this Court to appoint a special judge to hear this case. By order dated April 17, 2003, the Chief Justice appointed the Honorable William G. Willard, Jr., a chancellor in the Seventh Chancery Court District, to preside over the proceedings in this case.
FACTS AND PROCEEDINGS
¶ 2. The parties in the present case are the same parties identified in the will contest case of In re Estate of Dabney, 740 So.2d 915 (Miss. 1999). In Dabney, this Court affirmed a judgment finding invalid the 1996 Last Will and Testament of Eloise W. Dabney based on misrepresentation, undue influence and fraud. The 1996 will excluded one of Mrs. Dabney's daughters, Freddie Dabney Hataway, the appellant in this case. Because the 1996 will was invalidated, Mrs. Dabney's 1987 will was admitted to probate. The 1987 will, among other things, left four parcels of land to Mrs. Dabney's four children: Hataway and the three appellees — Mary Dabney Nicholls, David Hunt Dabney, and Eloise Dabney Lautier. Those four parcels of land are at the subject of this litigation.
¶ 3. The Complaint For Partition against Hataway was filed by Mary, David, and Eloise on October 24, 2000. Although not contained in the record, Hataway filed a pro se Answer, and then through counsel filed an Amended Answer. Mary died during the course of the underlying proceedings, and Mary's daughter, as Administratrix of her Estate, was substituted as a party. Under the 1987 will, Hataway was to be appointed co-executor in the event that either David or Mary could not continue to serve as executor. However, there is no indication that Hataway was appointed as co-executor. David, as co-executor of Mrs. Dabney's Estate, joined the litigation as a plaintiff.
¶ 4. The Petitioners filed a Limited Appraisal/Summary Report of Land and Improvements, performed by Bottin Consulting Group. This appraisal opined that the two parcels must be sold together since one parcel had a building with no available parking and the other parcel was a vacant lot. The value of both parcels was placed at $65,000. A consent judgment was reached by the parties, and the trial court appointed a special master to conduct a partition sale of the properties. The order provided that the property was to be auctioned to the highest bidder for cash. The order also permitted Hataway to have an independent appraisal performed. James E. Craig reviewed Bottin's appraisal and disagreed as to the need to sell the parcels together and as to their fair market value. Craig valued both parcels at $90,000, or if immediate liquidation were required, $72,000.
¶ 5. After notice as provided by law, the sale of the first two parcels was conducted on November 7, 2002. At the sale, Hataway submitted a "letter of guarantee" from BancorpSouth addressed to the special master, which provided, in part:
Our customer, Ms. Freddie Hataway, has requested this letter of guarantee from BancorpSouth in order to support her bid for the above referenced auction.
The bid is not to exceed $72,000 and we guarantee that the good funds will be made available upon receiving clear title to the above referenced parcels.
The letter was signed by Mark T. Buys, Executive Vice President of BancorpSouth. The second bidder, William L. Shappley, demanded to see the letter. Shappley was the attorney representing the Estate and the petitioners, and was also bidding as an agent for the ultimate purchaser, Jamal Khouri. The special master found that the letter was not the equivalent of cash and refused to allow Hataway to bid. Shappley, as agent for an undisclosed buyer, purchased the property for $60,000. Payment was made by an uncertified trust account check from Shappley's law firm. Hataway objected to the sale, but did not post the bond pursuant to Miss. Code Ann. § 11-5-109.
¶ 6. The trial court then granted Petitioners' summary judgment and confirmed the partition sale. Hataway filed her response to the summary judgment four days after the order was filed. The cover letter from the attorney explained that there was "some misunderstanding as to the briefing schedule we agreed upon" and requested that the trial court alternatively consider the response as a motion under M.R.C.P. 59 to amend the judgment. This response included an affidavit from Hataway, a copy of a contract for the sale of the two parcels for $65,000 between David and Jamal Khouri dated May 10, 2002, and addenda dated May 15 and 20, 2002, reducing the price to $60,000. Hataway's Rule 59 motion was denied, and this appeal followed.
¶ 7. Hataway raises three issues: (1) Whether Dabney, as co-executor of the Estate, had lawful authority to act for the Estate to the exclusion and over the objection of Hataway; (2) whether Hataway's bid was for cash; and (3) whether the trial court erred in granting summary judgment confirming the partition sale. As it was not raised before the chancery court, the first issue is not properly before this Court. Additionally, in her argument discussing the appropriateness of summary judgment, Hataway discusses the propriety of Shappley appearing at the auction in a dual capacity, that is as the attorney for the sellers and as agent for the buyer. Because it was not raised before the chancery court, it will not be addressed.
But see Miss. Rules of Prof'l Conduct R. 1.7.
¶ 8. After the filing of the appeal, the Petitioners requested that the trial court release their portion of the funds from the sale, which request was granted since Hataway did not move for a stay. Petitioners also moved the court to apportion one-fourth of the ten percent sales commission under the May 10, 2002, sales contract against Hataway, as well as attorney's fees incurred subsequent to the filing of the motion to confirm sale. The record does not contain any ruling on this motion, and this motion is not before this Court on appeal.
ANALYSIS
¶ 9. This Court employs the de novo standard in reviewing a trial court's grant of summary judgment. Stewart v. Hoover, 815 So.2d 1157, 1159 ¶ 6 (Miss. 2002) (citing O'Neal Steel, Inc. v. Millette, 797 So.2d 869, 872 (Miss. 2001)). In conducting the de novo review, we look at all evidentiary matters before us, including admissions in pleadings, answers to interrogatories, depositions, and affidavits. Id. (citing Lee v. Golden Triangle Planning Dev. Dist., Inc., 797 So.2d 845, 847 (Miss. 2001) and Aetna Cas. Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss. 1996)). This evidence must be viewed in the light most favorable to the party against whom the motion for summary judgment has been made. Id. (citing Leslie v. City of Biloxi, 758 So.2d 430, 431 (Miss. 2000)).
¶ 10. The Petitioners argue that Hataway failed to preserve her objection to the confirmation of the sale by failing to post the statutorily required bond under Miss. Code Ann. § 11-5-109 (Rev. 2002) which states:
The party who objects to a sale under a decree because of the inadequacy of the bid, or any person interested therein, may prevent the confirmation thereof by entering into a bond in a penalty equal to double the amount of the bid, with sufficient sureties, to be approved by the court or clerk, payable to the opposite party, conditioned to pay all costs of a resale, and that the property shall bring thereat an advance of not less than twenty per centum upon the bid, exclusive of the cost of resale.
Hataway counters that this statute applies only to an objection regarding "the inadequacy of the bid" and not the unlawful handling of the bid process. Hataway argues that she is challenging the process of the sale and the fact that her "bid" was rejected. The trial court did not require Hataway to post bond in support of her objection or even address this issue. The adequacy of the bids is not at issue. Instead, the issue is whether the letter constitutes an acceptable bid.
¶ 11. In deciding whether the summary judgment confirming the partition sale was proper, we must first look to see whether Hataway's letter from BancorpSouth was a bid for cash. The parties had entered into a consent judgment as to the sale of parcels 1 and 2 "to the highest bidder for cash." Hataway contends that her "letter of credit" was sufficient under Miss. Code Ann. §§ 75-5-101 to -118 (Rev. 2002) and that it was "no less `cash' than the $60,000 uncertified trust account check submitted by Shappley."
¶ 12. A letter of credit is defined as "a definite undertaking that satisfies the requirements of Section 75-5-104 by an issuer to a beneficiary at the request or for the account of an applicant or, in the case of a financial institution, to itself or for its own account, to honor a documentary presentation by payment or delivery of an item of value." Miss. Code Ann. § 75-5-102(10). The "standard practice of financial institutions" that issue letters of credit shall be observed. Miss. Code Ann. § 75-5-108(e). Hataway argues that the letter of BancorpSouth clearly meets the requirements of the Uniform Commercial Code and that upon receipt of the deed, the bank would have been required to pay up to $72,000. Hataway also argues that this raises an issue of material fact sufficient to defeat summary judgment, relying on Lyle v. Mladinich, 584 So.2d 397, 398 (Miss. 1991) (holding that a "trial judge's decision is reversed if a triable issue of fact exists.").
Miss. Code Ann. § 75-5-108(e) states in full:
An issuer shall observe standard practice of financial institutions that regularly issue letters of credit. Determination of the issuer's observance of the standard practice is a matter of interpretation for the court. The court shall offer the parties a reasonable opportunity to present evidence of the standard practice.
¶ 13. The Petitioners rely on Hendry Construction Co. v. Bank of Hattiesburg, 562 So.2d 100 (Miss. 1990), to argue that the letter presented by Hataway was not the same as cash. In Hendry, a construction company brought an action against the Bank of Hattiesburg for alleged wrongful refusal to recognize an alleged letter of credit from Deposit Guaranty National Bank. The president of Hendry Construction received a letter addressed solely to him from Deposit Guaranty National Bank, and he assumed it was a letter of credit. The letter provided that Farmers Home Association had approved a loan to the party contracted to do the construction work for Hendry and that "subject to certain conditions that [the construction company] must meet in order for the loan to be funded" and a "loan closing", then when "all conditions have been met . . . a check in the amount of $275,000 will be made payable to Hendry Construction Company." Hendry delivered the letter to the Bank of Hattiesburg to borrow money to complete the construction. The Bank loaned $138,543 but then refused to advance additional funds. Hendry sued the Bank of Hattiesburg for refusal to recognize the letter of credit and loan additional funds. This Court found that the letter was not a "letter of credit" and further that it was not even addressed to the Bank. Hendry, 562 So.2d at 101-02. Thus, the Petitioners argue that the letter in the instant case is analogous to the Hendry letter.
¶ 14. We find that Hendry is distinguishable from today's case. First, the Hendry letter was not a direct promise to pay the addressee. Second, the addressee of that letter was Hendry himself, not the bank. Here, the letter specifically stated that BancorpSouth "guarantee[d] that the good funds will be made available upon receiving clear title to the above referenced parcels." Additionally, the letter was specifically addressed to the special master. Had the special master accepted the letter and delivered the clear title, BancorpSouth would have been required to make payment in an amount up to $72,000. Miss. Code Ann. § 75-5-103(a). The payment of any commitment fee is of no consequence as "consideration is not required to issue, amend, transfer or cancel a letter of credit, advice or confirmation." Miss. Code Ann. § 75-5-105.
CONCLUSION
¶ 15. Hataway's bid was the highest bid which satisfied the requirements set forth in the consent judgment; and therefore, the chancellor erred in affirming the special master's sale of the property for $60,000. Because this issue is determinative, there is no need to address the remaining issues. Upon remand, the chancellor should enter an order setting aside the deed to Shappley and order that a duly-appointed special master republish the notice for the sale of the subject property and conduct the same according to law.
¶ 16. Accordingly, we reverse the chancellor's judgment and remand this case for further proceedings consistent with this opinion.
¶ 17. REVERSED AND REMANDED. SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.