James Britton v. American Legion Post 058
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CA-01293-COA
JAMES BRITTON
APPELLANT
v.
AMERICAN LEGION POST 058, POST 058 FIRE
PROTECTION DISTRICT OF HANCOCK
COUNTY, MISSISSIPPI, JOHN DOES 1, 2, & 3,
AND X, Y, Z CORPORATIONS
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
06/25/2007
HON. JAMES B. PERSONS
HANCOCK COUNTY CHANCERY COURT
ALFRED ZACHARIAH BUTTERWORTH
GARY MCKAY YARBOROUGH
MICHAEL D. HAAS
ALBERT JOHN GARDNER
CIVIL - CONTRACT
MOTION FOR SUMMARY JUDGMENT IN
FAVOR OF APPELLANT DENIED AND
JUDGMENT ENTERED IN FAVOR OF
APPELLEES
APPEAL DISMISSED-11/18/2008
BEFORE KING, C.J., GRIFFIS AND CARLTON, JJ.
CARLTON, J., FOR THE COURT:
¶1.
This case is before the Court on appeal from the Hancock County Chancery Court’s
denial of James Britton’s (Britton) motion for summary judgment. Because Britton did not
seek an interlocutory appeal of the denial of his motion for summary judgment, we dismiss
his appeal as moot.
FACTS
¶2.
On October 1, 1990, Britton, his wife Jonnie Britton (Jonnie), and Billy Anderson
signed a lease agreement in favor of American Legion Post 58 (Post 58), Hancock County,
for the purpose of establishing an auxiliary volunteer fire station. The Brittons owned the
property subject to the lease. Anderson believed at the time of the lease that he owned a
portion of the driveway; however, Britton’s complaint alleges that Anderson owned none
of the subject property.1 The lease agreement contained the following language:
For and in consideration of the sum of ONE DOLLAR ($1.00), cash in hand
paid, the receipt of which is hereby acknowledged, we, JONNIE BRITTON,
JIM BRITTON, and BILLY O. ANDERSON, do hereby lease and let unto
AMERICAN LEGION POST 58, Hancock County, the following described
property located in Hancock County, Mississippi, to-wit:
[description of subject property]
I.
This lease shall be for a period of fifty (50) years or so long as the American
Legion Post 58 maintains an auxiliary fire station on the above described
property.
II.
It is agreed and understood between the parties hereto that should the property
cease to be maintained as a fire station for a period of more than ninety (90)
days, then this lease shall be null and void and the above described property
will revert to the Lessors herein, their heirs or assigns.
The lease was signed only by Britton, Jonnie, and Anderson. Britton and Anderson were
both members of Post 58. No other member of Post 58 signed the lease on behalf of Post
58.
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Anderson and Jonnie are deceased. The record indicates that all of the property
leased to Post 58 was actually Britton’s property.
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¶3.
Post 58 erected a building to house the trucks needed to operate as a fire department.
Post 58 subsequently leased the property to Post 58 Volunteer Fire Department (Fire
Department) on March 7, 1997, for a period of ten years, with an option to renew, for the
cost of maintaining insurance on the buildings annually. The Fire Department agreed to
maintain the buildings in a safe and operable condition at all times. The Fire Department
also assumed all liability in relation to the building.
¶4.
Britton filed a complaint to cancel the original lease agreement in December 2005.
In his complaint, Britton alleged that Post 58 had failed to maintain an auxiliary fire station
on the property for several years, and the lease agreement should be declared null and void
and the property revert back to him. He argued, alternatively, that Post 58 was without legal
capacity to lease real property because it was not a legal entity.
¶5.
Trial was scheduled to begin in the chancery court on February 26, 2007. Before trial
began, Britton filed a motion for summary judgment claiming that because Post 58 was not
a legal entity, and because no representative for Post 58 actually signed the lease, the lease
should be declared null and void. The trial commenced on February 26, 2007, with no ruling
from the chancellor regarding the summary judgment motion. Before the trial concluded,
the chancellor ruled that Britton add the fire protection district as a necessary party. The trial
was continued to a later date.
¶6.
Britton amended his complaint and his motion for summary judgment to add the fire
protection district as a defendant. The hearing on Britton’s motion for summary judgment
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was held March 11, 2007. The trial resumed on March 14, 2007, still with no ruling from
the chancellor on Britton’s motion for summary judgment. After a trial on the merits, the
chancellor found no material breach of the lease contract and ruled in favor of the
defendants. Britton filed a motion for clarification of the chancellor’s ruling, specifically
requesting that the chancellor rule on Britton’s motion for summary judgment. The
chancellor then issued his findings of fact, conclusions of law, and final judgment, finding
that Britton had not met his burden of showing a material breach of the terms of the lease and
specifically denying his earlier motion for summary judgment.
DISCUSSION
¶7.
On appeal, Britton raises only the issue of whether the chancellor erred in denying his
motion for summary judgment. Because Britton did not seek an interlocutory appeal under
Rule 5 of the Mississippi Rules of Appellate Procedure, and because the chancellor ruled
against him after trial, the issue of Britton’s motion for summary judgment is moot. This
Court has held that appeals from the denial of a motion for summary judgment are
interlocutory in nature and are rendered moot by a trial on the merits. Gibson v. Wright, 870
So. 2d 1250, 1254 (¶8) (Miss. Ct. App. 2004) (citing Black v. J.I. Case Co., 22 F.3d 568,
569-70 (5th Cir. 1994)). “[O]nce trial begins, summary judgment motions effectively
become moot.” Id. (quoting Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 397 (5th Cir.
1995)). Accordingly, this Court declines to review this issue. See id.
¶8.
Britton has raised no other issues for our review in this matter. Therefore, we dismiss
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Britton’s appeal as moot.
¶9.
THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS,
BARNES, ISHEE AND ROBERTS, JJ., CONCUR.
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