REPLY BRIEF OF APPELLANT

E-Filed Document Jul 15 2016 15:58:17 2015-CA-01280-COA Pages: 10 IN THE SUPREME COURT OF MISSISSIPPI KAPPI SAGET JEFFERS VS. KORRI SAGET APPELLANT CAUSE NO. 2015-CA-1280 APPELLEE REPLY BRIEF OF APPELLANT FROM THE CHANCERY COURT OF WARREN COUNTY David M. Sessums, MSB #6714 ATTORNEYS FOR KAPPI SAGET JEFFERS, APPELLANT VARNER, PARKER & SESSUMS, P.A. 1110 Jackson St. Vicksburg, MS 39183 Ph: (601) 638-8741

IN THE SUPREME COURT OF MISSISSIPPI KAPPI SAGET JEFFERS VS. KORRI SAGET APPELLANT CAUSE NO. 2015-CA-1280 APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following have an interest in this action. These representations are made so that the Justices of this Court may evaluate possible disqualification or recusal: 1. Honorable Marie Wilson Chancellor P.O. Box 1762 Greenville, MS 38702-1762 2. David M. Sessums, Esquire Attorney for Appellant 1110 Jackson Street Vicksburg, MS 39180 3. Wren C. Way, Esquire Attorney for Appellee 1001 Locust Street Vicksburg, MS 39183 5. Ms. Kappi Saget Jeffers, Appellant 1633 East Avenue Vicksburg, MS 39180 6. Ms. Korri Saget, Appellee Montegu Hotel - 1820 Bar 1820 Franklin Street Houston, Texas 77002 i

Respectfully submitted, By: /S/David M. Sessums DAVID M. SESSUMS MSB #6714 OF COUNSEL: VARNER, PARKER & SESSUMS, P.A. 1110 Jackson Street Vicksburg, Mississippi 39183 Telephone: 601-638-8741 Facsimile: 601-638-8666 ii

TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES................................. TABLE OF CONTENTS................................................. TABLE OF AUTHORITIES.............................................. I iii iv ARGUMENT........................................................... 1 No Cross-Assignment/Cross-Statement of Issues.......................... 1 Suspicious (ie: secrete ) Circumstances................................. 2 Undue Influence.................................................... 3 SUMMARY............................................................. CERTIFICATE OF SERVICE............................................... iii

TABLE OF AUTHORITIES 1. Dukes v. Sanders, 125 So. 2d 294 (Miss. 1960) 2. Merchants Fertilizer and Phosphate Co. v. Standard Cotton Gen., 23 So. 2d 906 (Miss. 1945) 3. Wilson v. Wilson, 79 So. 3d 551 (Miss. App. 2012) 4. Giles v. Stokes, 988 So. 2d 926 (Miss. App. 2008) 5. Archie v. Archie, 126 So. 3d 937 (Miss. App. 2013) 6. Trammell v. State of Mississippi and the Mississippi Commission on Natural Resources, 622 So. 2d 1257 (Miss. 1993) iv

ARGUMENT No Cross-Assignment/Cross-Statement of Issues Appellee cites to no evidence in the record supporting the allegation contained at Page 21 of Appellee s Brief that Mr. Jeffers had an adverse impact on either Rae Saget or Rae s grandchildren. Appellee goes on to argue that there is no clear and convincing evidence of the confidential relationship specifically found by the lower court to exist between Rae Saget and Korri Saget. At page 8 of its opinion (Vol. 1, Pg. 131) the lower court specifically found by clear and convincing evidence that it was undisputed that a confidential relationship did in fact exist between Rae Saget and Korri Saget. Notwithstanding this clear finding of an undisputed confidential relationship by the lower court Korri Saget has filed no cross assignment of errors nor any statement of the issues challenging or contesting such finding. It has long been the rule before this Court that where an appellee does not file a cross assignment of errors a reviewing court can not consider any such alleged error on the part of the lower court. Dukes v. Sanders, 125 So. 2d 294 (Miss. 1960) See also Merchants Fertilizer and Phosphate Co. v. Standard Cotton Gen., 23 So. 2d 906 (Miss. 1945). Even after the phraseology was changed from assignment of errors to statement of issues the rule has remained the same. The failure to present an issue in a separately 1

numbered statement of the issues bars that issue from appellate review, Wilson v. Wilson, 79 So. 3d 551 (Miss. App. 2012) See also Giles v. Stokes, 988 So. 2d 926 (Miss. App. 2008). In order for an appellee to complain on appeal, the appellee is required to file a cross appeal. Archie v. Archie, 126 So. 3d 937 (Miss. App. 2013). Appellee is procedurally barred from claiming that the lower court was error in finding a confidential relationship existing between Rae Saget and Kappi Saget and even had such issue been preserved for appeal the evidence before the lower court conclusively established that three (3) out of the seven (7) factors for consideration in determining the existence of a confidential relationship undoubtably existed in the present matter. By Korri not filing any statement of issues or assignment of error the confidential relationship is confirmed. The Suspicious (ie: the secret ) Circumstances At Page 27 of her Brief Korri Saget claims that there were no suspicious circumstances surrounding the TOD documents at Morgan Stanley without once ever addressing the admitted secrecy in which these transactions took place. Korri herself testified Rae asked her to keep it secret. Korri Saget at no point in her brief addresses this admitted secrecy surrounding the TOD transactions. Kappi Jeffers has scoured and re-scoured Appellee s Brief to find anywhere where Appellee has even addressed, much less denied, her admitted trial testimony where she conceded, according to her own testimony, that her mother had asked her to keep the TOD 2

transactions secret and secret, specifically, from Kappi. At no point in Appellee s brief is the effect of this secrecy, when coupled with the admitted confidential relationship, addressed. Korri s secrecy stands uncontradicted in the record. In Trammell v. State of Mississippi and the Mississippi Commission on Natural Resources, 622 So. 2d 1257 (Miss. 1993), a patron who was injured at recreational facilities brought suit against the State and Park Bureau over its facilities. On appeal by Trammell the State and Park Bureau did not address the res judicata issue raised by Trammell in his appellate brief, the Court ruling: The State and Park Bureau abandoned hope of affirmance on the basis of res judicata as they did not address this issue in their brief. Failure of State/Park Bureau to reply to the issue is tantamount to a confession that Trammell s position is correct. 622 So. 2d at Page 1261 Because Korri Saget has failed to even mention the effect of her admitted secrecy combined with the admitted confidential relationship, this is tantamount to a confession that [Kappi s] position is correct and a presumption of undue influence arose which Korri failed to rebut by clear and convincing evidence. Undue Influence As she did, or rather did not do, regarding her secrecy, Korri at no point in her brief addresses the presumption of undue influence which arose as a result of the combination of her secrecy and her confidential relationship with Rae. Korri nowhere attempts to rebut the presumption of undue influence which arose from the combination of Korri s secrecy and the confidential relationship between Rae and 3

Korri. Korri at no point directs this Court to any independent advice and counsel allegedly received by Rae regarding the TOD transactions. The closest Korri comes to addressing the presumption of undue influence is on Page 27 in her brief where she contends that Rae received independent advise and counsel, from Rae s long-time financial advisor who was well aware of not only Rae s intent in creating the transfer on death documents but also that Rae was keenly aware of all of her financial assets, their nature, their value, her periodic income therefrom, and a reliance thereon. See Appellee s Brief Page 27. Where, exactly, is the citation of any testimony of Kerry Ricks where he testified he was well aware of Rae s intent, or that Kerry Ricks said that Rae was keenly aware of all her financial assets, their nature and their value and the periodic income therefrom or her reliance thereon? Ricks never said this. It is nowhere in the record. There is a total absence of such evidence and such absence is obvious from the fact that Korri can not cite to the volume or page or pages where Ricks allegedly said any of this. Such evidence simply does not exist. SUMMARY The confidential relationship found by the lower court stands unchallenged before this Court. Because Korri has not addressed the effects of her admitted secrecy combined with the unchallenged relationship which created a presumption of undue influence which Korri 4

has in no way rebutted and this Court has no choice but to reverse and render. th RESPECTFULLY SUBMITTED this, the 15 day of July, 2016. KAPPI SAGET JEFFERS BY: /S/David M. Sessums DAVID M. SESSUMS OF COUNSEL: VARNER, PARKER & SESSUMS, P.A. Attorneys at Law 1110 Jackson Street Vicksburg, MS 39181-1237 Telephone: 601-638-8741 Facsimile: 601-638-8666 CERTIFICATE OF SERVICE I, DAVID M. SESSUMS, attorney for Appellant, do hereby certify that I have this date filed this Certificate of Compliance by United States Mail, postage prepaid, on the following persons at these addressed: Wren C. Way, Esquire 1001 Locust Street Vicksburg, MS 39183 Hon. Marie Wilson P.O. Box 1762 Greenville, MS 38702-1762 th THIS the 15 day of July, 2016. /S/David M. Sessums DAVID M. SESSUMS 5