Eugene C. Frazier v. Simon Frazier
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-00555-COA
EUGENE C. FRAZIER, ET AL.
APPELLANTS
v.
SIMON FRAZIER, ET AL.
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANTS:
ATTORNEY FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
3/3/2008
HON. DENISE OWENS
HINDS COUNTY CHANCERY COURT
JULIE ANN EPPS
E. MICHAEL MARKS
SIMON FRAZIER (PRO SE)
CIVIL - REAL PROPERTY
DENIED ADVERSE POSSESSION CLAIM
BUT AWARDED A JUDGMENT IN THE
AMOUNT OF $1,620 PLUS LEGAL
INTEREST
AFFIRMED - 5/12/2009
BEFORE LEE, P.J., IRVING AND BARNES, JJ.
LEE, P.J., FOR THE COURT:
FACTS AND PROCEDURAL HISTORY
¶1.
Henry and Mozella Frazier and Arthur and Bernice Frazier received 120 acres of real
property located in Hinds County by warranty deed on November 8, 1955. At some time in
1988, the couples agreed to an equal division of the property. The deed to Henry and
Mozella’s portion was produced at trial, but the deed to Arthur and Bernice’s portion could
not be located.
¶2.
Eugene Frazier (Eugene) and the heirs of Henry and Mozella Frazier brought suit in
the Hinds County Chancery Court against Simon Frazier (Simon) and the heirs of Arthur and
Bernice Frazier seeking title to the real property by virtue of adverse possession. In the
alternative, Eugene sought partition and repayment of taxes and other sums expended in
managing the property. Although Simon and the heirs of Arthur and Bernice were served
with process, none of them appeared for trial.
¶3.
The chancellor found that Eugene failed to show by clear and convincing evidence
that all of the elements of adverse possession were met. The chancellor did, however, award
Eugene a money judgment of $1,620 plus legal interest for the taxes and other expenses paid
by Eugene. Eugene now appeals, asserting that the chancellor erred in failing to award
Eugene title to the property by virtue of adverse possession.
STANDARD OF REVIEW
¶4.
“This Court has a limited standard of review in examining and considering the
decisions of a chancellor.” Ellison v. Meek, 820 So. 2d 730, 734 (¶11) (Miss. Ct. App. 2002).
“When reviewing a chancellor’s decision, we will accept a chancellor’s findings of fact as
long as the evidence in the record reasonably supports those findings. In other words, we
will not disturb the findings of a chancellor unless those findings are clearly erroneous or an
erroneous legal standard was applied.” Peagler v. Measells, 743 So. 2d 389, 390 (¶6) (Miss.
Ct. App. 1999). “The chancellor, as the trier of fact, evaluates the sufficiency of the proof
based on the credibility of witnesses and the weight of their testimony.” Ellison, 820 So. 2d
at 734 (¶11). We review questions of law de novo. Id.
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DISCUSSION
¶5.
We first note that Simon and the heirs of Arthur and Bernice Frazier have failed to file
an appellee’s brief on the matter. As Simon did not file a brief in this matter, we have two
options before us. The first is to take Simon’s failure to file a brief as a confession of error
and reverse, which should be done when the record is complicated or of large volume and
“the case has been thoroughly briefed by [the] appellant with a clear statement of the facts,
and with apt and applicable citation of authorities, so that the brief makes out an apparent
case of error.” May v. May, 297 So. 2d 912, 913 (Miss. 1974). The second is to disregard
Simon’s lack of a brief and affirm, which should be done when the record can be
conveniently examined and such examination reveals a “sound and unmistakable basis or
ground upon which the judgment may be safely affirmed.” Id. The record before this Court
consists of approximately fifteen pages of trial testimony, a few property tax receipts, and
a warranty deed from 1955. As the former option is not applicable due to the size of the
record and the failure of Eugene to show error, we can safely affirm the chancellor for the
reasons we discuss below.
¶6.
Adverse possession is statutory in Mississippi. Mississippi Code Annotated section
15-1-13(1) (Rev. 2003) provides, in pertinent part, as follows:
Ten (10) years’ actual adverse possession by any person claiming to be the
owner for that time of any land, uninterruptedly continued for ten (10) years
by occupancy, descent, conveyance, or otherwise, in whatever way such
occupancy may have commenced or continued, shall vest in every actual
occupant or possessor of such land a full and complete title . . . .
To establish a claim of adverse possession, Eugene must show by clear and convincing
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evidence that his possession was: “(1) under claim of ownership; (2) actual or hostile; (3)
open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5)
exclusive; and (6) peaceful.” West v. Brewer, 579 So. 2d 1261, 1262 (Miss. 1991) (quoting
Stallings v. Bailey, 558 So. 2d 858, 860 (Miss. 1990)).
¶7.
If the party is claiming land possessed by a cotenant, the party claiming the land by
adverse possession must also prove ouster. Williams v. Estate of Williams, 952 So. 2d 950,
953 (¶8) (Miss. Ct. App. 2006). “The cotenant alleging ouster has the burden of establishing
that the other cotenants were unequivocally ousted by actual notice or conduct equivalent
thereto.” Jordon v. Warren, 602 So. 2d 809, 815 (Miss. 1992). Evidence of acts by a
cotenant not inconsistent with cotenancy, such as using the land and paying taxes on it, do
not constitute an ouster of the other cotenants. Campbell v. Dedeaux, 386 So. 2d 713, 715
(Miss. 1980).
¶8.
Eugene testified that Henry and Mozella’s heirs had paid the taxes on the land for a
number of years. Eugene stated that, since at least 1988, they had cattle grazing on the
property. Eugene also stated that they inspected the property from time to time. Eugene
testified that he thought Henry had cut timber from the land in 1995. Eugene said that
Arthur, who was still living at that time, did not share in the revenue from the timber
“because the land had been split, and there was no argument as to who” owned it. Eugene,
however, was unsure as to who had paid for the fence around the property in 1955, but he
stated that they have maintained the fence. Eugene stated that some of his family had lived
on the property at some point, but that none of Arthur and Bernice’s heirs lived on the
property.
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¶9.
J.D. Frazier also testified on behalf of Henry and Mozella’s heirs. J.D. testified that
the entire property was fenced by Henry in the mid-1950s, but he could not recall if Arthur
had helped. J.D. also testified that he thought Simon had paid taxes on the land at some
point. J.D. contradicted Eugene’s earlier testimony by stating that they stopped using the
land for cattle in 1988.
¶10.
This Court has found that payment of taxes is “strong evidence of a claim of title.”
Wicker v. Harvey, 937 So. 2d 983, 995 (¶38) (Miss. Ct. App. 2006). However, the copies
of the prior tax bills submitted in the record do not show a continuous payment of the
property taxes by Eugene. These receipts merely show that someone paid taxes on a portion
of the property in the early 1990s and again for the 2004, 2006, and 2007 tax years.
¶11.
We find that the evidence supports the chancellor’s decision that Eugene did not
establish his adverse possession claim by clear and convincing evidence. The meager
testimony presented at best created some confusion as to whether Eugene was discussing the
full 120 acres or his father’s half of the acreage as of 1988. We also find that Eugene failed
to prove ouster for the same reason. It is unclear as to his testimony whether he was
discussing his efforts to possess the full 120 acres prior to 1988 at which point the property
was divided. This issue is without merit.
¶12. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.
KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, CARLTON
AND MAXWELL, JJ., CONCUR. ROBERTS, J., NOT PARTICIPATING.
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