By:!J.~ PILED. MOTIONt OCT 1 g 2016 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CP COA APPELLANT WALTERPOOLE,JR.

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1 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CP COA WALTERPOOLE,JR. v. WILLIAM WALTON PILED OCT 1 g 2016 OFFICE OF THE CLERK.SUPAEMECOUAT COURT OF APPEALS APPELLANT APPELLEE MOTION FOR REHEARING Respectfully submitted, By:!J.~ alter Poole, Jr. 1 MOTIONt 2016

2 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CP COA WALTER POOLE, JR. APPELLANT v. WILLIAM WALTON APPELLEE MOTION FOR REHEARING COMES NOW, the Appellant, Walter Poole, Jr., by and through himself, and moves this Honorable Court for Rehearing seeking reconsideration of the decision rendered by the court affirming the trial court's judgment. The decision by this court was rendered on October 11, The Appellant believes that this court erred in its decision to affirm this case where the court identify any portion of the record in which the Court concluded Poole actually waived his administrator status and authorized the appointment of Walton as the administrator of the estate. Additionally, Appellant would urge that the failure of Walton to file a brief and to simply ignore the case altogether constitutes an admission of error and consents to the claims made by Poole to be correct. The law is clear that the purpose of the Petition for Rehearing in this Court, according to M.R.A.P. Rule 40, is as follows: A motion for rehearing may be filed within 14 days after a decision is handed down on the merits of a case by the Supreme Court or the Court of Appeals. The motion shall state with particularity the points of law or fact which, in the opinion of the movant, the court has overlooked or misapprehended and shall contain such argument in support of the motion as movant desires to present. The motion for rehearing should be used to call attention to specific errors of law or Act which the opinion is thought to contain; the motion for rehearing is not intended to afford an opportunity for a mere repetition of the argument already considered by the 2

3 court. Oral argument in support of the motion will not be permitted. In the instant case Walton was provided with ample opportunity and time to file a brief to contest the issues raised in the appeal and he thereafter chosen to not do so. In this Court's choosing of the lesser effective option which this court devised in Jay Foster PLLC v. McNair, 175 So.3d 565, 571 (115) (Miss. App. 2015) (quoting Archie v, City of Canton, 92 So.3d 1279, 1282 (110) Miss. App. 2012), the Court effectively ignored the fact that the record in this case do not demonstrate that Appellant Poole waived his status as the administrator of the estate of his deceased sister, Vera Walton. Poole never testified that he no objection to being removed as the administrator of his sister's estate or that he would not object to Walton, who was not qualified by law to be administrator of the estate, replacing him as the administrator. Had Poole been open to this position then the simple answer would have been not to show up in Court, as has been done 'by Walton in this Court. The decision rendered in this appeal fail to set out any page number of the record or identify any language in the record which w<;>uld demonstrate or suggest that Poole voluntarily consented to Walton being placed as the administrator over Vera's estate when Walton was not qualified and had not been named as a qualifying person in the initial petition. Walton was not a heir. The fact that Walton failed to file a brief confesses this error. Thus, if the record fails to demonstrate that Walton was a heir, the trial court, nor this court had the authority to allow Walton to become administrator no matter what Poole may have not objected to. Appellant would assert to this court that the opinion rendered in this case seriously over looked and ignores facts 3

4 containr.d in the record. The portions of the factual and legal ~ent set out in the Appellant's brief contains sound arguments. No portion or part of the record has been pointed to stated by Appellee or by this Court to refute Appellant's assertions in his brief. This court mentions that Appellant testified at a hearing that he had no objections to the removal and appointment of Walton as administrator of the estate but this portion of the record where such evidence may be found was not identified. In light of the fact that Appellant asserts that he never made no such assertion or testimony, the relevant information should be pointed out to refute Appellant's assertions before this court reject the appeal after Appellee, the opposing party, never even had enough respect for the court as to file a brief. Moreover, this court never pointed to one single page or word to demonstrate that Appellant actually stated to any court of law that he had no objection to being removr.d as the administrator or that he had no objections to allowing Walton, a person not being a heir, being appointed as the administrator of Vera Walton's estate. This Court should grant the motion for rehearing on this issue and reassess the case while considering the fact that Appellant filed brief with this court in accordance with law and that Walton ignored the rules of the court and never tiled any brief, thereby confessing error. WHEREFORE for the foregoing reasons Appellant requests this Honorable Court to reconsider its opinion issued October 11, 2016, affirming the lower court's decision and thereafter reverse and remand the case to the trial court. Respectfully submitted this the day of October 14,

5 " Respectfully submitted, BY: Walter Poole, Jr. CERTIFICATE OF SERVICE This is to certify that I, Walter Poole, Jr., have this date served a true and correct copy of the above and foregoing Motion for Rehearing, by United States Postal Service, to Honorable Joyce I. Chiles, Attorney for Appellee, P. 0. Box 884, Itta Bena, Mississippi This, the_th day of October, BY:'~~ 5