IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI APPEAL FROM THE CHANCERY COURT OF HINDS COUNTY, MISSISSIPPI FIRST JUDICIAL DISTRICT

Transcription

1 E-Filed Document Sep :38: CA COA Pages: 12 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JAMES BRETT HOLMES APPELLANT V. NO CA COA BECKY TURNER APPELLEE APPEAL FROM THE CHANCERY COURT OF HINDS COUNTY, MISSISSIPPI FIRST JUDICIAL DISTRICT APPELLANT S MOTION FOR REHEARING BRUNINI, GRANTHAM, GROWER & HEWES, PLLC LEONARD D. VAN SLYKE, JR. MSB NO P.O. Drawer 119 Jackson, MS Telephone: (601) Facsimile: (601) lvanslyke@brunini.com TAYLOR B. MCNEEL, MSB NO P. O. Box 127 Biloxi, MS Telephone: (228) Facsimile: (228) tmcneel@brunini.com DOMINICK FELD HYDE, PC BRIAN T. WILLIAMS nd Street South Ridge Park, Suite 4000 Birmingham, AL Telephone: (205) Facsimile: (205) bwilliams@dfhlaw.com Admitted Pro Hac Vice in Hinds County Chancery Court ATTORNEYS FOR APPELLANT

2 I. INTRODUCTION APPELLANT S MOTION FOR REHEARING This Honorable Court reaffirmed the requirement for an individual to be reimbursed when the individual provides necessities to one who is incapacitated. In re Estate of Holmes, No CA COA at 1 (Miss. Ct. App. Sept. 1, 2015) (citing Talbert v. Ellzey, 35 So. 2d 628, 635 (Miss. 1948)). Jimmy Holmes paid for nearly $85,000 of his mother s nursing home care. Id. at 5. However, the Court dismissed Jimmy Holmes claim because the Court determined that the statute of limitations accrued on the date of the last payment made by Jimmy Holmes and not the death of his mother. Id. at 2, This Court recognized that the Mississippi Supreme Court previously held that the statute of limitations accrued upon death in a similar case. Id. (citing Talbert v. Ellzey, 35 So. 2d 628, 635 (Miss. 1948)). Yet, this Court declined to follow the statute of limitations holding in Talbert v. Ellzey, because the brother, in Talbert v. Ellzey, provided continuous care up to the point of her death. In re Estate of Holmes, at 25. And since Jimmy Holmes wrote his last check less than two years before the death - then this Court determined that the claim accrued when the last check was written. Id. Appellant humbly disagrees with the Court s opinion. The claim presented falls within a special field of furnishing services and necessaries to a decedent, as 1 Deferentially, and as an aside, the opinion contains a typographical error. The opinion referred to Frances Turner, her son Jimmy Turner, and Brett Holmes Turner. Id. at 1, 2. Instead, the correct names are Frances Holmes, Jimmy Holmes, and Brett Holmes. Becky Turner is the only individual with the last name of Turner. Appellant merely raises this point on rehearing so as to not confuse the Court with the Appellant s use of names, in the motion for rehearing, that run contrary to the names referenced in the Court s opinion. 1

3 to which we have always ascribed a specific rule concerning the commencement of the Statute of Limitations. Talbert, 35 So. 2d at 632. Respectfully, this Court s holding does not recognize the special field and specific rule applicable. The Court s holding runs contrary to Mississippi law and to the practicalities of the type of claim at issue. First, the Mississippi Supreme Court has only found similar claims accrue at death. See e.g., Talbert v. Ellzey, 35 So. 2d 628, 635 (Miss. 1948); McCully et. al. v. McCully, 168 So. 608 (Miss. 1936); Lee v. Lee s Estate, et. al., 191 So. 661 (Miss. 1939); Gaulden v. Ramsey, 85 So. 109, 110 (Miss. 1920). The Supreme Court has never held that such a claim accrues at the date of last payment. This Court s contrary holding will force children to sue their own mother. Reimbursement from an estate after death is the pragmatic solution. Not suing one s mother before death. Second, even if such a claim could accrue on the date of last payment, Mississippi law dictates that the due date of an obligation may be designated for a point into the future. According to Mississippi law, if the due date of an obligation is fixed upon a point in the future, then the statute of limitations does not commence until the happening of the event in the future. Anderson v. Lancaster, 60 So. 2d 595, 597 (1952); Douglas Parker Elec., Inc. v. Mississippi Design & Dev. Corp., 949 So. 2d 874, 878 (Miss. Ct. App. 2007). The undisputed facts from trial reveal that the due date of the obligation did not arise until death. As such, the statute of limitations did not commence until death, and the claim at issue was timely. 2

4 II. ARGUMENT A. Mississippi law establishes that a claim for services rendered to an incompetent accrues upon death not the date of last payment. The Mississippi Supreme Court has never found that the date of last payment is when a claim accrues for services rendered to an incompetent. Instead, death has been the point of accrual. See e.g., Talbert v. Ellzey, 35 So. 2d 628, 635 (Miss. 1948); McCully et. al. v. McCully, 168 So. 608 (Miss. 1936); Lee v. Lee s Estate, et. al., 191 So. 661 (Miss. 1939); Gaulden v. Ramsey, 85 So. 109, 110 (Miss. 1920). Granted, the prior Supreme Court cases appear to contain a fact pattern where services were rendered up until the date of death. Even still, the Supreme Court could have stated that the date of last payment or date of last service was the date of accrual. But, the Supreme Court did not. The Supreme Court consistently labeled the date of death as the accrual point. Please see the following examples: a contract for board, lodging, and services, whether express or implied, with no time fixed for payment or for the termination of the contract, is a continuous one, and the Statute of Limitations is inoperative until the contract is terminated by death. Talbert, 35 So. 2d at 631. (citing Gaulden v. Ramsey, 85 So. 109, 110 (Miss. 1920)) (emphasis added). But this statute did not begin to run against this claim until the death of the deceased. Id. (quoting Gaulden v. Ramsey, 85 So. at 110)) (emphasis added). since the Statute of Limitations did not commence to run until the death of the deceased. Id. (citing Lee v. Lee s Estate, et. al., 191 So. 661 (Miss. 1939)) (emphasis added). This obligation was to continue indefinitely, and did continue until her death, and there was no fixed time for payment thereof. Therefore, the rule announced by us in the McCully case as to the Statute of Limitations, applies with equal force to the case at bar. That is, the 3

5 statute did not start to run against Mrs. Shirley s liability to her brother until the date of her death. Id. (citing McCully et. al. v. McCully, 168 So. 608 (Miss. 1936)) (emphasis added). The limitations here, according to the cases cited herein, and dealing with similar claims, began when the death occurred... Talbert, 35 So. 2d at 633 (emphasis added). Death could be the only fact here starting the Statute of Limitations to run against the probated claim... Id. (emphasis added). In addition to the numerous above quotes that set forth a rule of accrual as the date of death, it is true that Talbert v. Ellzey also references a quote that states the statute of limitations does not begin to run against such a contract until it has terminated, which in the case at bar was by the death of the deceased. Id. at 631. Yet, according to the Supreme Court: death is the termination. The case at hand is no different. The undisputed evidence demonstrated that Jimmy Holmes was willing to pay money out of his own pocket to take care of his mother. In fact, Jimmy did this very thing for years to the tune of $84, This Court has recognized that Jimmy s actions resulted in an implied contract. In re Estate of Holmes, No CA COA at 2, 25 (Miss. Ct. App. Sept. 1, 2015). Despite finding an implied contract existed, this Court then focused on the lack of eternal continuity in Jimmy s care for his mother as the basis for determining that death was not the date of accrual. Id. Yet, no one testified that Jimmy s obligation to care for his mother ended when the last payment was sent. The implied contract did not end just because a payment halted. The implied contract was formed by Jimmy s actions to care for his mother. The implication is that Jimmy would always be there to care for his mother. The obligation is implied 4

6 for a reason. The Court s rule is forcing the implied nature of the contract to become express in practice. Express contracts terminate upon express terms or express events. Death made the implied obligation impossible. At that point, the implied contract terminated. Accrual at death presents a bright line rule. Accrual on date of last payment has murky applicability. For example, what happens when a person pays for a loved one s medications for years, and the payments end three years before death, but then one month before death, the person pays for a sitter to be with the loved one for twenty-four hour care? Is the claim for medications barred? Is a new implied contract created when one type of service ends, but another begins at a later date? Or what if an adult child pays for all of a parent s necessities, but then as the parent becomes eligible for different types of Medicare or Medicaid reimbursements, then the child ends payments for certain categories of necessities as the years go by? When a person ends the payments for a certain category, does the statute of limitations commence for that category? Or can the prior categories - that were paid before Medicare or Medicaid reimbursements - still piggy back on any categories of necessities being paid at death? Is this true, even if the necessities that are being paid at death are merely nominal amounts for toiletries or other goods? The questions are endless. The Court may view Jimmy Holmes as a party that slept on his rights. Yet, the Court s rule will create a ripple effect that will forever alter the landscape of family members caring for loved ones. 5

7 To be sure, the Court s rule will compel our courts of equity to bar valid claims. For instance, take the following example: a son cares for his Alzheimer s stricken mother for two years. Then, the daughter cares for mother for two years. Then, when the Alzheimer s disease becomes too advanced, mother is placed into a nursing facility. Three years later mother dies. Under the Court s rule, neither son nor daughter can be reimbursed by the estate. Instead, a ne er do well other son is allowed to take a larger portion of the estate, even though the ne er do well other son never provided any assistance to mother. Children will be forced to sue their own mother to prevent the statute of limitations from expiring. This is an abhorrent result. See Talbert v. Ellzey, 35 So. 2d 628, 633 (Miss. 1948). 2 Perhaps the Court is concerned that a fifteen year old claim could be presented by a family member after a loved one passes away. But even under the Court s rule, there can still be claims that date back to fifteen years or more as long as there is continuity in care. The Court s focus on continuity is misplaced. 2 The Supreme Court recognized the following: [The Statute of Limitations] could only start to operate at the date of the death of the decedent. Otherwise, the law would present the strange anomaly of appellant being compelled every three years to sue his insane sister, the services and necessaries still continuing to be furnished her in his home. Such a course would be abhorrent, and would probably end all such assistance from one relative to another in like condition, as the sister here. The policy of the law, well-established in this State, that on these continuous contracts, express or implied, limitations do not start until the death of the debtor is both expedient and enlightened. Talbert v. Ellzey, 624, 35 So. 2d 628, 633 (1948). 6

8 The claim at issue is not ancient: Jimmy Holmes paid for his mother s nursing home care less than two years before her death. Regardless, to ease any concern of tremendously old claims, it is important to note that there must be sufficient proof before a claim is proper. At a minimum, there must be sufficient proof that the deceased lacked the mental capacity to contract, and that any services rendered or payments made were a necessity. The unique circumstance presented by the claim at issue in this case is that everyone agrees that Frances Holmes was incapacitated, and that nearly $85,000 was paid for her benefit. Quite frankly, the undisputed nature of the claim will not likely be present in other cases. Instead, the chancery court will be tasked with determining whether a valid claim is presented. The proper solution is for the claim to be handled in the estate as opposed to suing a loved one prior to death. Appellant respectfully submits that the Court should reverse its prior opinion as the opinion is contrary to Mississippi law, and since the rule produces imprudent results. The bright line rule of accrual at death is not only supported by Mississippi law, but also provides predictability for family members to care for loved ones and be reimbursed by the estate. B. Even if a claim accrues at the time of last payment, Mississippi law provides that the due date of the obligation can be fixed upon a point in the future. The undisputed facts establish that the due date of the obligation was upon death not the date of last payment. The due date of an obligation may be fixed upon a point in the future, and if the due date of an obligation is designated for a point in the future, then the statute of limitations runs from when the due date of the obligation begins. Anderson v. 7

9 Lancaster, 60 So. 2d 595, 597 (1952); Douglas Parker Elec., Inc. v. Mississippi Design & Dev. Corp., 949 So. 2d 874, 878 (Miss. Ct. App. 2007). In Anderson v. Lancaster, the Supreme Court reversed a dismissal based on the statute of limitations because the due date of the obligation resulted in a different accrual of the statute of limitations than was applied by the trial court. Anderson, 60 So. 2d at 597. More specifically, a patient had an open account with a doctor. Id. at 596. The doctor took the position that the patient did not have to pay the doctor for the charges until the patient first paid the hospital. Id. As a result, the due date of the obligation did not commence until the hospital was first paid. Id. The Mississippi Supreme Court agreed and reversed the dismissal on the basis of statute of limitations, because the due date of the obligation did not commence until a point into the future. Id. at 597; see also Douglas Parker Elec., Inc., 949 So. 2d at 874 (reversing dismissal based on statute of limitations, recognizing that the due date of the oral obligation did not commence until the debtor could sell a barge to pay the debt, and holding that the due date of the obligation did not commence until the barge was sold). Jimmy Holmes had the power of attorney and was attorney in fact for his mother. (R. 34; see also Tr. Trans , 54, 71; R.E. 4, 54-55, 65, 82). Pursuant to Mississippi law, [a]ll acts done by an attorney in fact pursuant to a durable power of attorney during any period of disability or incapacity of the principal have the same effect and inure to the benefit of and bind the principal and [her] successors in interest as if the principal were competent and not disabled. MISS. CODE ANN

10 The undisputed evidence was that the nearly $85,000 was to be repaid upon Frances Holmes death. (Tr. Trans , 65-66; R.E , 76-77). This evidence was not disputed or controverted by Becky Turner. Based upon the undisputed evidence from the trial, the due date for repayment was the death of Frances Holmes. That is when the debt became due. And since the debt did not become due until death, then the statute of limitations did not commence until death. Anderson v. Lancaster, 60 So. 2d 595, 597 (1952); Douglas Parker Elec., Inc. v. Mississippi Design & Dev. Corp., 949 So. 2d 874, 878 (Miss. Ct. App. 2007). III. CONCLUSION There is hardly a more honorable cause than to care for those who cannot care for themselves. This Court should encourage and not discourage these deeds. When attorneys advise adult children that they may be forced to sue their parents to seek reimbursement for expenses incurred for care that is rendered, then adult children will be discouraged from caring for their parents. The answer is to allow all claims related to services rendered for an incapacitated person to be handled in the estate. The claims should accrue at death. Appellant respectfully requests that the Court grant the motion for rehearing and reverse its opinion on the statute of limitations. Respectfully submitted, this the 15 th day of September, JAMES BRETT HOLMES By: /s/ Taylor B. McNeel One of His Attorneys 9

11 OF COUNSEL: BRUNINI, GRANTHAM, GROWER & HEWES, PLLC LEONARD D. VAN SLYKE, JR. MS BAR NO P.O. Drawer 119 Jackson, MS Telephone: (601) Facsimile: (601) TAYLOR B. MCNEEL, MS BAR NO P. O. Box 127 Biloxi, MS Telephone: (228) Facsimile: (228) DOMINICK FELD HYDE, PC BRIAN T. WILLIAMS nd Street South Ridge Park, Suite 4000 Birmingham, AL Telephone: (205) Facsimile: (205) Admitted Pro Hac Vice in Hinds County Chancery Court 10

12 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing document with the Clerk of the Court using the MEC system, which served a copy upon the following counsel: John D. Fike, Esq. johnfike@bellsouth.net I further certify that I caused to be delivered, via U.S. Mail, a true and correct copy of the above and foregoing document to the following non-mec participants: Judge J. Dewayne Thomas Hinds County Chancery Court P.O. Box 686 Jackson, MS DATED: September 15, /s/ Taylor B. McNeel Attorney for Appellant 11