James Buckalew v. Diane Buccluch
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CA-01976-COA
IN THE MATTER OF THE GUARDIANSHIP OF
RUBY BUCKALEW: JAMES BUCKALEW
APPELLANT/
CROSS-APPELLEE
v.
DIANE BUCCLUCH
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE/
CROSS-APPELLANT
12/07/2009
HON. JERRY G. MASON
LAUDERDALE COUNTY CHANCERY
COURT
JOE CLAY HAMILTON
ELIZABETH RHAE RANDALL DARSEY
ROBERT D. JONES
CIVIL - OTHER
DISMISSED COUNTERCLAIM AS
FRIVOLOUS AND SANCTIONED THE
DEFENDANT/APPELLEE
AFFIRMED - 02/22/2011
BEFORE LEE, P.J., ROBERTS AND CARLTON, JJ.
CARLTON, J., FOR THE COURT:
¶1.
James Buckalew appeals the judgment of the Chancery Court of Lauderdale County,
arguing that the chancellor erred in determining the amount of sanctions to award upon the
finding that Diane Buccluch’s counterclaim against James was a frivolous pleading. James
seeks an increased amount of sanctions against Diane to compensate him for defending
against her frivolous counterclaim. James also argues that the answers and defenses pleaded
by Diane were without any supporting evidence and, thus, also frivolous and sanctionable.
¶2.
Following James’s appeal, Diane filed a cross-appeal, arguing that the chancellor
abused his discretion in finding that Diane had no hope of succeeding on her counterclaim
and also in finding that the counterclaim constituted a frivolous pleading. Diane specifically
asserts that the chancellor erred in imposing sanctions as a result of finding that her
counterclaim was a frivolous pleading. Diane further submits that the chancellor did not
abuse his discretion in determining that Diane indeed possessed some hope of succeeding in
her defense of James’s complaint to order her to vacate the property owned by their mother,
Ruby Buckalew.
¶3.
Finding no error, we affirm the chancellor’s judgment.
FACTS
¶4.
In 2004, Ruby suffered a stroke and was diagnosed with Alzheimer’s. She
subsequently moved to Colorado to live with her daughter, Diane, who cared for Ruby during
this time. Diane and Ruby later returned to Mississippi from Denver, and they moved into
Ruby’s home in Lauderdale County, Mississippi. James and Diane agreed that Diane would
live in Ruby’s home to provide full-time care for Ruby. Pursuant to a warranty deed, Ruby
conveyed her house to Diane and reserved a life estate unto herself.
¶5.
On March 9, 2006, in the Chancery Court of Lauderdale County, the chancellor
rendered a judgment appointing James, Ruby’s son, as guardian for the person and the estate
of Ruby. On June 26, 2008, while Diane was in Las Vegas, James and his wife, Vickie,
removed Ruby from her home and brought her to live in their house. James stated that he
noticed Ruby growing despondent and losing weight while under Diane’s care. He decided
2
to place Ruby under his care. Ruby remained in James and Vickie’s home for six weeks,
until they moved her to a trailer located behind their home, where Ruby lived with a sitter.
On August 29, 2008, James filed a complaint to order Diane to vacate Ruby’s property,
alleging that Diane occupied the home as part of the arrangement to care for Ruby, and since
Ruby had been removed from the home, Diane must vacate the property.
¶6.
On September 18, 2008, Diane filed her answer and counterclaim to James’s
complaint, alleging that since the eviction notice did not constitute a guardianship matter,
James improperly brought the eviction action in chancery court. She further claimed that
James, as guardian, failed to petition the chancellor for authority to file the complaint as
required by Mississippi Code Annotated section 93-13-27 (Rev. 2004); thus, the complaint
should be dismissed. In her counterclaim, Diane submitted that pursuant to Mississippi Code
Annotated section 93-13-23 (Rev. 2004), sufficient cause existed for the chancellor to
remove James as guardian, alleging that James created a conflict of interest between himself
and his ward, and he “has failed or refused to act in a matter to protect [Ruby’s] person and
estate.”
¶7.
On April 13, 2009, Diane filed a motion to dismiss her counterclaim to remove James
as Ruby’s guardian. On that same day, the chancellor held a hearing on the matter and
subsequently entered an order dismissing the counterclaim without prejudice. On April 14,
2009, the chancellor rendered a memorandum opinion and corresponding order to overrule
Diane’s September 18, 2008 motion to dismiss based on her answer to James’s complaint.
In the order, the chancellor held that the chancery court had proper jurisdiction over the
eviction matter and found James’s failure to comply with section 93-13-27 to be harmless
3
error.
¶8.
On June 19, 2009, the chancellor issued a pretrial order, noting that James filed a Rule
11 motion pursuant to Mississippi Rule of Civil Procedure 11 requesting that sanctions in the
form of expenses and attorney’s fees incurred in the defense of the action be granted on the
grounds that the entire action by Diane was frivolous and unwarranted and done for the
purpose of harassing James.
¶9.
At a trial held on September 23, 2009, Joe Clay Hamilton, James’s attorney, testified
as to the amount of time and services he had rendered in the action on behalf of James.
Henry Palmer, Diane’s attorney, testified regarding the services he had rendered in
representing Ruby in the action. James; Vickie; and Donna Riley, James’s and Diane’s sister,
all testified that Diane did not provide the necessary and appropriate care for Ruby and that
Ruby’s condition had steadily declined while under Diane’s care. James, Vickie, and Donna
further testified that Ruby’s condition improved after her removal from Diane’s care. Diane
did not appear at the trial, and her attorney stated that he was unaware of her location.1
¶10.
The chancellor issued an order on October 26, 2009, in which he found that Diane did
have some hope of success upon the motion to dismiss filed in her September 18, 2008
answer, noting that James had failed to request the authority of the chancellor to commence
the civil action as required by section 93-13-27. The chancellor further found that Diane also
had some hope of success in her defense of James’s complaint ordering her to vacate Ruby’s
property, noting that Diane’s allegation that she properly cared for Ruby was supported by
1
In her brief, we note that Diane asserts that after dismissing her counterclaim, she
moved to Las Vegas, Nevada, where friends had offered her a temporary home.
4
her answer to interrogatory number eight propounded in discovery. The chancellor found
that Diane’s counterclaim against James, however, was a frivolous pleading, and he issued
sanctions by granting James a judgment against Diane as well as reasonable attorney’s fees
in the sum of $800.2
¶11.
On November 2, 2009, James filed a motion for reconsideration and to alter and
amend the judgment, asking the chancellor to order Diane to pay all of James’s attorney’s
fees as testified to at trial, as well as the expenses incurred by having Ruby occupy the trailer
next to his house, which prevented James from renting the trailer for income. Diane filed a
motion to reconsider and/or amend or alter the opinion on November 5, 2009, arguing that
her attorney provided sufficient evidence at trial to show that her counterclaim was
reasonable under the circumstances; thus, imposing sanctions was unreasonable and harsh.
¶12.
On December 7, 2009, the chancellor issued an order overruling the motions of both
parties and denying their requested relief. This appeal followed.
STANDARD OF REVIEW
¶13.
This Court's standard of review regarding a chancellor's determination is well
established. The chancellor's findings of fact shall not be disturbed on appeal unless the
findings are “manifestly wrong, clearly erroneous, or not supported by substantial credible
evidence.” City of Picayune v. S. Reg'l Corp., 916 So. 2d 510, 518 (¶22) (Miss. 2005) (citing
Brown v. Miss. Dep't of Human Servs., 806 So. 2d 1004, 1005 (¶4) (Miss. 2000)). “Where
there is substantial evidence to support the chancellor's findings, [the appellate court] is
without the authority to disturb the chancellor's conclusions . . .” Id. at 518-19 (¶22) (citing
2
Plus interest at the rate of seven percent per annum.
5
In re Guardianship of Savell v. Renfroe, 876 So. 2d 308, 312 (¶4) (Miss. 2004)). While
deference is given to the chancellor's determinations of fact, this Court retains a de novo
review of all questions of law. Id. at 519 (¶23).
DISCUSSION
¶14.
James argues that Diane’s answer, defenses, and counterclaim constituted frivolous
pleadings. Diane states that she filed these pleadings in response to James’s complaint to
remove her from Ruby’s house. James argues that Diane filed these pleadings with the intent
to delay her eviction from the house. He asserts that despite the numerous allegations made
by Diane, neither she nor her attorney offered any evidence to support these claims. James
contends that the chancellor’s sanction and award of attorney’s fees in the amount of $800
bore no relationship to the actual time and expense incurred in the defense of the frivolous
pleadings. James submits that in addition to the $800, he should also be awarded attorney’s
fees in the amount of $6,970.
¶15.
Diane, however, argues that the chancellor erred in finding that she had no hope of
success on her counterclaim. She also argues that the chancellor erred in finding that her
counterclaim constituted a frivolous pleading; therefore, he consequently erred by awarding
sanctions against her under Rule 11.
¶16.
Pursuant to Rule 11(b), a trial judge may order a party to pay expenses or attorney's
fees “[i]f any party files a motion or pleading which, in the opinion of the court, is frivolous
or is filed for the purpose of harassment or delay.” M.R.C.P. 11(b). See also Miss. Code
Ann. § 11-55-5(1) (Rev. 2002) (The Litigation Accountability Act); Randolph v. Lambert,
926 So. 2d 941, 944 (¶8) (Miss. Ct. App. 2006). A pleading is frivolous pursuant to Rule 11
6
if “objectively speaking, the pleader . . . has no hope of success.” Ill. Cent. R. Co. v.
Broussard, 19 So. 3d 821, 824 (¶13) (Miss. Ct. App. 2009). The decision to award monetary
sanctions under Rule 11 is left to the discretion of the trial court. M. R. C. P. 11(b). This
Court reviews the judgment of the sanctioning trial court for abuse of discretion. Wyssbrod
v. Wittjen, 798 So. 2d 352, 357 (¶17) (Miss. 2001). “In the absence of a definite and firm
conviction that the court below committed a clear error of judgment in the conclusion it
reached upon weighing of relevant factors, the judgment of the court's imposition of
sanctions will be affirmed.” Id. (citations and quotations omitted); See Eatman v. City of
Moss Point, 809 So. 2d 591, 593 (¶8) (Miss. 2000) (The Mississippi Supreme Court provided
that it would assume that factual determinations made by the trial judge were sufficient to
support an order imposing reasonable attorney expenses where no specific finding has been
made.).
¶17.
In Walton v. Walton, 44 So. 3d 1035, 1039-40 (¶¶19-20) (Miss. Ct. App. 2010), this
Court found no abuse of discretion in the chancellor’s decision that the complaint at issue in
that case constituted a frivolous pleading, but remanded for proof of attorney’s fees upon
finding the award exceeded the proof in the record. In Walton, this Court explained that the
record contained no documentation regarding the time that the attorney in question spent
responding to the frivolous complaint. Id.
¶18.
The present case differs from Walton with respect to the documentation contained in
the record as to attorney’s fees and the chancellor’s calculation of the fee award. In the
October 26, 2009 opinion in the record before us, we find that the chancellor set forth his
calculations regarding attorney’s fees. The record also shows that the chancellor reviewed
7
the time sheets submitted by James’s attorney. The chancellor explained in the opinion that
he evaluated the length of the attorney’s practice since 1959, as well as his skill and
expertise, in determining an hourly rate of $200. The chancellor found that the attorney spent
a total of 30.85 hours on the case as a whole, but the chancellor found $800 to be an
appropriate fee for an award of attorney’s fees for the defense of the frivolous counterclaim.
¶19.
We find that the record contained sufficient evidence to support the chancellor’s
award of attorney’s fees in the amount of $800. We note that the record shows that the
October 26, 2009 opinion reflects the chancellor’s determination and calculation of
attorneys’s fees for the defense of the counterclaim only. We acknowledge that as the fact
finder, the chancellor possesses the best position to evaluate frivolity and determine the facts.
Eatman, 809 So. 2d at 594 (¶12). Thus, we find no abuse of discretion by the chancellor in
finding Rule 11 sanctions appropriate based upon his finding that Diane had filed a frivolous
counterclaim. The record contains substantial evidence to support the chancellor’s decision.
City of Picayune, 916 So. 2d at 518 (¶22).
¶20. THE JUDGMENT OF THE CHANCERY COURT OF LAUDERDALE
COUNTY IS AFFIRMED ON DIRECT AND CROSS-APPEAL. ALL COSTS OF
THIS APPEAL ARE ASSESSED IN EQUAL PARTS TO THE APPELLANT AND
THE APPELLEE.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE,
ROBERTS AND MAXWELL, JJ., CONCUR.
8
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
