Joseph K. Volmer v. Eleanor J. Volmer Patterson
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CP-00948-COA
IN THE MATTER OF THE ESTATE OF SHIRLEY M.
VOLMER, DECEASED: JOSEPH K. VOLMER,
EXECUTOR
APPELLANT
v.
ELEANOR J. VOLMER PATTERSON AND
JOHN A. VOLMER
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
HON. PERCY L. LYNCHARD, JR.
DESOTO COUNTY CHANCERY COURT
JOSEPH K. VOLMER (PRO SE)
GEORGE MCFALL
CIVIL - WILLS, TRUSTS, AND ESTATES
ENTERED TEMPORARY ORDER ALLOWING
DECEDENT’S DAUGHTER AND
GRANDDAUGHTER TO LIVE IN DECEDENT’S
HOME UNTIL A JURY TRIAL IS HELD
DISMISSED WITHOUT PREJUDICE - 11/22/2005
BEFORE KING, C.J., CHANDLER AND ISHEE, JJ.
CHANDLER, J., FOR THE COURT:
¶1.
Shirley Volmer executed a will on February 19, 1999. This will contained a life estate provision
allowing her daughter, Eleanor Patterson, exclusive personal use of Shirley’s house. Shirley’s son, Joseph
Volmer, claims that Eleanor has violated the provisions of the life estate by allowing her daughter, Meghan,
to live in the home with her. Joseph has also demanded that Meghan pay rent to the estate. The DeSoto
County Chancery Court granted Joseph’s request for a jury trial as to these issues. At the time the notice
of appeal was filed, the trial had not been conducted. Joseph appeals, raising the following issues:
I. WHETHER THE CHANCELLOR ERRED IN REFUSING TO FOLLOW THE PROVISIONS OF
THE WILL
II. WHETHER THE CHANCELLOR ERRED IN DENYING JOSEPH’S MOTION TO REMOVE
ELEANOR PATTERSON FROM THE HOME OF SHIRLEY VOLMER
III. WHETHER THE TRIAL COURT ERRED IN REFUSING TO AWARD JOSEPH RENTAL
INCOME
IV. WHETHER THE CHANCELLOR ERRED IN FAILING TO MAKE WRITTEN FINDINGS OF
FACT AND CONCLUSIONS OF LAW FOLLOWING THE DENIAL OF VARIOUS MOTIONS
FILED BY JOSEPH
¶2.
Finding that the appeal was filed prematurely, we dismiss without prejudice.
FACTS
¶3.
On February 19, 1999, Shirley Volmer executed a will. Prior to the execution of the will, Shirley’s
daughter, Eleonor Patterson, and Eleanor’s daughter, Meghan, moved into Shirley’s home for the purpose
of assisting Shirley with her daily activities. Meghan has been diagnosed with bipolar disorder and was a
beneficiary in Shirley’s will. Eleanor and Meghan continue to live in Shirley’s home.
¶4.
Shirley directed her son, Joseph, to serve as the executor of her will. She also granted a life estate
of her house to her daughter, Eleanor Patterson. The life estate provision was to remain valid so long as
Eleanor used the property as her exclusive personal dwelling and did not rent the property or any part of
the property to anyone. In the event that the provision was violated, the home would be liquidated and the
proceeds would be split equally among Shirley’s children. According to Kevin O’Brien, the attorney who
drafted the will, Shirley included the provisions of the life estate because she did not want Meghan living
in her home.
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¶5.
After Shirley executed the will, she was subsequently diagnosed with pancreatic cancer. On June
18, 1999, while she was a patient at Baptist DeSoto Hospital, Shirley executed a second will. The sole
change was to eliminate the provision leaving a life estate in her home to her daughter. She rescinded the
life estate in favor of selling the home and disbursing the proceeds to all three of her children. Shirley
passed away on July 20, 1999.
¶6.
On August 16, 1999, Joseph probated the second will. On September 9, 1999, Shirley’s two
other children, Eleanor Patterson and John Volmer, filed a petition contesting the will on the grounds of
undue influence and lack of testamentary capacity. Included in the petition was a request to allow Eleanor
and Meghan to remain in the house until the matter was resolved on the merits. On September 27, 1999,
the chancellor entered an order allowing Eleanor and Meghan Patterson to continue living in Shirley’s home
until further order of the court. The issue of whether the occupants owed any rent would be reserved until
a final hearing was held.
¶7.
On February 27, 2001, the DeSoto County Chancery Court held a trial regarding the will contest.
The chancellor ruled that Shirley had no independent action in the preparation of the June 18, 1999 will and
found the will to be “the derivative product of an overbearing son determined for events to be as he desired
them.” The chancellor further found that “the presence of undue influence by Mr. Volmer toward[s] his
mother taints the validity of the will and requires the Court to invalidate same and accordingly set it aside.”
Joseph probated the will from February 19, 1999.
¶8.
On February 2, 2003, Joseph filed a motion to collect rent from Meghan and to remove Meghan
and Eleanor from Shirley’s home. Joseph claimed that Eleanor violated the provisions of the life estate by
allowing Meghan to live with her. Joseph also demanded that Eleanor and Meghan pay rent to the estate.
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Joseph requested a jury trial, which the chancellor granted. Joseph filed his notice of appeal prior to the
trial.
ANALYSIS
I. WHETHER THE CHANCELLOR ERRED IN REFUSING TO FOLLOW THE PROVISIONS OF
THE WILL
II. WHETHER THE CHANCELLOR ERRED IN DENYING JOSEPH’S MOTION TO REMOVE
ELEANOR PATTERSON FROM THE HOME OF SHIRLEY VOLMER
III. WHETHER THE TRIAL COURT ERRED IN REFUSING TO AWARD JOSEPH RENTAL
INCOME
¶9.
An appeal is not a matter of right but is subject to statutory provisions. Bradley v. Holmes, 242
Miss. 247, 252, 134 So. 2d 494, 495 (1961). Only final judgments are subject to appeal. M.R.C.P.
54(a). The Mississippi Supreme Court has defined a final judgment as “a judgment adjudicating the merits
of the controversy which settles all issues as to all the parties.” Banks v. City Finance Co., 825 So. 2d
642, 645 (¶9) (Miss. 2002) (citing Sanford v. Board of Supervisors, 421 So.2d 488, 490-91
(Miss.1982); Cotton v. Veterans Cab Co., Inc., 344 So.2d 730, 731(Miss.1977); Hindman v. Bridges,
185 So.2d 922, 923 (Miss.1966)). The chancellor’s temporary order from September 27, 1999, was not
a final judgment. Therefore, this Court does not have jurisdiction to hear Joseph’s appeal with respect to
his petition to evict Eleanor and Meghan and his petition to collect rent.
IV. WHETHER THE CHANCELLOR ERRED IN FAILING TO MAKE WRITTEN FINDINGS OF
FACT AND CONCLUSIONS OF LAW FOLLOWING THE DENIAL OF VARIOUS MOTIONS
FILED BY JOSEPH
¶10.
Joseph has filed numerous motions and petitions relating to the probate of his mother’s estate. The
chancellor adjudicated these motions in an order dated March 8, 2004. After Joseph filed his notice of
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appeal, he made a request for written findings of fact and conclusions of law. The chancellor did not
respond to this request.
¶11.
Joseph made a request for findings of fact with regards to his petition to order the chancellor to
follow the provisions of the will, to remove Eleanor and Meghan from Shirley’s home, and to collect rent.
These issues are to be decided in the jury trial. Questions of fact in a jury trial are decided by the jury, not
the judge. Wertz v. Ingalls Shipbuilding, Inc., 790 So. 2d 841, 847 (¶17) (Miss. Ct. App. 2001). This
issue is without merit.
¶12. THE APPEAL FROM THE DESOTO COUNTY CHANCERY COURT IS DISMISSED
WITHOUT PREJUDICE. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., BRIDGES, IRVING, GRIFFIS, BARNES
AND ISHEE, JJ., CONCUR.
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