IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-CA-01379-COA
GERALD BAILEY APPELLANT
v.
THE ESTATE OF JERRY ANN BARKSDALE, APPELLEE
DECEASED, AND HEIRS-AT-LAW
DATE OF JUDGMENT: 06/25/2014
TRIAL JUDGE: HON. DEBORAH J. GAMBRELL
COURT FROM WHICH APPEALED: FORREST COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: ELLIOT G. MESTAYER
ATTORNEYS FOR APPELLEE: SHAWN M. LOWREY
THOMAS MICHAEL REED
RICHARD ANTHONY FILCE
NATURE OF THE CASE: CIVIL - WILLS, TRUSTS, AND ESTATES
TRIAL COURT DISPOSITION: APPELLANT’S MISSISSIPPI RULE OF
CIVIL PROCEDURE 60 MOTION DENIED
DISPOSITION: APPEAL DISMISSED: 03/01/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
GRIFFIS, P.J., FOR THE COURT:
¶1. This appeal arises from a claim brought against Gerald E. Bailey by the estate of Jerry
Ann Barksdale, deceased. The Court has determined that it is without jurisdiction to decide
this appeal because there was neither a final judgment nor a Mississippi Rule of Civil
Procedure 54(b) determination. Accordingly, the case is dismissed.
FACTS
¶2. A full recitation of facts is necessary to understand this Court’s action.
¶3. Jerry Ann Barksdale died on March 13, 2012. As of the date of her death, Barksdale
was survived by her children: Gerald E. Bailey, Cecil E. Bailey, Larry R. Bailey, Deborah
Steele, Kenny Joe Pickering, Paulette Shaws, and Johnny Earl Pickering.1 Her husband had
died on February 24, 2012.
¶4. On April 24, 2012, Larry Bailey filed a petition for appointment of an administrator
and for issuance of letters of administration. The petition asked that Steve Headrick be
appointed the administrator. Larry’s petition stated that he was unaware of whether
Barksdale died with a will but understood that her will may have been in the possession of
Gerald. On May 8, 2012, the chancellor entered an order authorizing appointment of an
administrator and issuance of letters of administration and appointed Headrick as
administrator. On May 23, Headrick executed the oath of administrator and filed the
required bond. On May 24, letters of administration were issued to Headrick.
¶5. On July 10, 2012, Headrick filed a petition for a determination of the heirs-at-law.
In the petition, he asked the chancery court to determine Barksdale’s heirs to be her children:
Gerald E. Bailey, Cecil E. Bailey, Larry R. Bailey, Deborah Steele, Kenny Joe Pickering,
Paulette Shaws, and Johnny Earl Pickering. The chancery court’s docket indicates that
Headrick published notice of the petition by publication, but it does not indicate that any of
the known heirs were served with process or entered an appearance by waiver of process.
¶6. On August 13, 2012, a document titled “Last Will and Testament of Jerry Ann
Barksdale” was filed. There was no accompanying petition, motion, or any other document
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There is some discrepancy as to the names and number of Barksdale’s children in
the briefs and the record. For clarity, this Court adopts the listing of the heirs-at-law as
enumerated in the petition for the determination of the heirs-at-law.
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filed. There is no indication as to who filed this document.
¶7. On August 14, 2012, Headrick filed a petition for an order to return property to the
estate and other relief against Gerald. In this petition, Headrick alleged that Gerald should
be ordered to return certain assets to the estate. The petition stated that, at the end of her life,
Barksdale had given Gerald her power of attorney, and Gerald had improperly used and
converted some of her assets. The petition specifically asked the chancery court to: (1) order
Gerald render a full, completed, and documented accounting; (2) enter a declaratory
judgment finding Gerald had a confidential relationship with Barksdale and exerted undue
influence on her for his personal gain; (3) order the return of property Gerald obtained
through unjust enrichment; and (4) establish a constructive trust over Barksdale’s assets that
Gerald had wrongfully obtained, along with interest and attorney’s fees. The petition did not
include a demand for an award of a specific monetary amount.
¶8. According to the clerk’s docket, on August 14, 2012, the clerk issued both a
Mississippi Rule of Civil Procedure 81 summons and a “30 day summons” to Gerald.
¶9. On August 20, 2012, the chancellor entered a judgment for default of unknown heirs.
The order indicates that process was served on “all possible known heirs, interested parties[,]
and unknown heirs” by publication. It also provides that “any and all other interested parties
and unknown heirs have waived any rights by failing to appear.” The judgment determined
the heirs to be the children named above.
¶10. On August 22, 2012, the clerk’s docket indicated: “30-day and Rule 81 [s]ummons
returned showing personal service on Gerald Bailey on the 14th day of August, 2012.” The
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returned summonses are not included in the record before this Court. Although not in the
record, it appears that the Rule 81 summons set the matter to be heard on September 13,
2012. Gerald denies that he was personally served with process. Gerald did not file a
response to the Rule 4 (the thirty-day) summons or the Rule 81 summons, and he did not
appear before the chancellor on September 13, 2012.
¶11. On September 14, 2012, nunc pro tunc September 13, 2012, the chancellor entered
an order to show cause. The order ruled that the chancery court had jurisdiction over the
parties, the venue was proper, Gerald was properly served with a Rule 81 summons
returnable to the court on September 13, 2012, and he failed to appear. The chancery court
also ordered that “a new court date shall be set by counsel for the Estate and that this Order
shall be served on Gerald E. Bailey to show cause why he has not appeared to answer the
allegations in the petition for order and to return property and other relief.” The chancery
court further ordered the estate was entitled to an inventory and accounting of all assets in
the bank accounts that Gerald had control of prior to his mother’s death. Gerald was given
thirty days to submit the inventory and accounting.
¶12. On September 18, 2012, the estate filed an application to the clerk for entry of default
and a motion for a default judgment. The clerk executed and filed the entry of default on the
same day.
¶13. On September 21, 2012, the clerk’s docket indicated a “notice of hearing” and a “Rule
81 summons issued to sheriff/process server for service on Gerald E. Bailey and returnable
on the 27th day of November, 2012.” The docket does not indicate what was set for a
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hearing. On September 26, 2012, there was a another docket entry identical to the entry
quoted above.
¶14. On September 21, 2012, the chancellor executed a default judgment. The default
judgment indicated that Gerald took advantage of a confidential relationship with Barksdale
and exerted undue influence over her, and that all of the transfers were against Barksdale’s
best interest. The chancery court ordered a “constructive trust is in effect and that all said
assets shall be returned to the estate, or if they have already been spent, shall operate as a set-
off against any portion of the Estate that Gerald may be entitled to.” The order also provided
Gerald “shall pay all of the attorney[’]s fees that were necessary to return said funds to the
estate.” The default judgment did not include any monetary amount. Also, the record does
not include any transcript of the hearing on the motion for a default judgment or the writ of
inquiry.
¶15. On September 26 and 28, the clerk’s docket again indicated a “notice of hearing
(11/27/2012)” without an indication of what was set for a hearing.
¶16. On October 1, 2012, the clerk’s docket indicated a “[f]iat authorizing process to issue
for [sic] on the 27th day of November, 2012, returnable to Lamar County, Mississippi.”
¶17. On October 11, 2012, the clerk’s docket indicated “Rule 81 Summons Returned” and
stated, “I hereby certify that I have executed the within writ by personally delivering to the
within named Gerald E. Bailey a true copy of this writ. This the 27th day of November, 2012.
By Brent Perreault.”
¶18. On September 21, 2012, the clerk’s docket indicated a “notice of hearing” and a “Rule
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81 summons issued to sheriff/process server for service on Gerald E. Bailey and returnable
on the 27th day of November, 2012.”
¶19. On November 5, 2012, through counsel, Gerald filed a petition to approve accounting.
The petition also included an affidavit of a subscribing witness, Nancy Lamar, who stated
that she witnessed Barksdale sign her Last Will and Testament.
¶20. On January 11, 2013, Gerald filed a “Rule 60 Motion.” In this motion, he asked the
chancery court to set aside the default judgment or, alternatively, a hearing to specify the
relief granted under the default judgment. No hearing was set for this matter.
¶21. On February 15, 2013, Gerald filed a petition to approve accounting.
¶22. On February 20, 2013, the chancellor executed an “Order of November 27th, 2012.”
The order indicated that it was “nunc pro tunc, 27th day of November, 2012.” It also
provided that Gerald was given additional time until January 15, 2013, to provide a full
inventory and accounting, he was to provide the keys to Barksdale’s home to Headrick, and
Headrick was authorized to clean the home and pay any bills associated with the home. The
order also required Headrick to provide an inventory of the assets in the home by January 15,
2013. Despite this order, neither the record nor the clerk’s docket indicates that a hearing
was held on November 27, 2012.
¶23. On February 26, 2013, Gerald filed an amended petition to approve the accounting.
Then on April 24, 2013, Gerald filed a petition to admit the will and issue letters
testamentary.
¶24. On August 19, 2013, Headrick filed a response to Gerald’s petition to admit the will
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and issue letters testamentary. Then, on November 14, 2013, Headrick filed a supplemental
inventory and a preliminary inventory, which was dated January 9, 2013.
¶25. On January 24, 2014, Headrick filed a motion to sell (Barksdale’s) home and car. On
March 21, 2014, “nunc pro tunc, 25th day of February, 2014,” the chancellor executed an
“Agreed Order of February 25, 2014” that allowed the estate to list the home and sell the
automobile. The order also read: “[T]his matter is set for trial at 9:00 a.m. on Thursday June
5, 2014.”
¶26. On April 3, 2014, Headrick filed a motion for reimbursement and to pay routine bills.
On the same day, an order was entered approving the motion.
¶27. A hearing was held on June 5, 2014, by an agreed order. Gerald testified and was
questioned by the chancery court about his failure to appear previously. He testified that he
had not received personal service but heard about the hearing from his brother. The
chancellor indicated that Gerald did know about the hearing and refused to set aside the
default judgment. Gerald also testified about his actions regarding Barksdale’s finances
before and after she died.
¶28. On June 25, 2014, the chancellor signed a judgment. The judgment was not filed until
August 26, 2014. According to the judgment, the chancellor ruled:
1. That the motion to set aside default judgment of September 21, 2012[,]
is overruled.
2. The court finds that the estate is entitled to a judgment against Gerald
E. Bailey in the amount of . . . $158,846.00. This amount reflects all
amounts taken by Gerald E. Bailey, minus those that the court has
found were legitimate expenses for the use and interest of the decent
[sic] Jerry Ann Barksdale.
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3. Gerald E. Bailey has testified that he has somewhere in excess of Forty
Thousand Dollars remaining of the money taken. The court recognizes
a constructive trust over these assets and immediately orders that all of
these assets will be turned over to Steve Headrick, the Executor of the
estate. Any money that is returned shall act as a set off against the
judgment ordered in paragraph 2.
4. Attorney[’]s fees shall also be issued against Gerald E. Bailey, and the
total of which shall be decided by the court at the close of the estate and
act as a further judgment against him at that time.
5. The court approves payment of . . . $7,500.00 to [counsel for the
estate]. Remaining Expenses shall be submitted at the close of the
estate upon final adjudication.
6. That the will on file will continue to be probated with Gerald receiving
25% with the court holding the added black ink marking on the will of
“50%” for nought.
¶29. On September 3, 2014, Headrick, as “executor,” filed a petition for approval of the
first annual accounting and partial distribution.
¶30. On September 23, 2014, Gerald filed his notice of appeal “from the judgment entered
in this case on August 26, 201[sic] and the denial of the relief contained in all of the
appellant’s pleadings.”
¶31. On October 24, 2014, Gerald filed his answer to the petition for approval of the first
annual accounting and partial distribution.
¶32. On November 24, 2014, Headrick filed a petition to sell real estate. At this point, the
record before this Court ends.
ANALYSIS
¶33. Gerald’s appeal raises several issues. The primary issue is whether the chancellor was
correct to enter a default judgment in an estate matter, among other issues.
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¶34. However, we cannot get past our jurisdictional review of the chancellor’s judgment
that Gerald has appealed from. The chancellor’s judgment, signed on June 25, 2014, and
filed on August 26, 2014, simply does not grant full relief. It is not a final, appealable
judgment. In paragraph 4, the chancellor ruled:
Attorney[’]s fees shall also be issued against Gerald E. Bailey, and the total of
which shall be decided by the court at the close of the estate and act as a
further judgment against him at that time.
¶35. Although the parties have not raised the issue of appellate jurisdiction, we must
address whether the chancellor’s order was a final, appealable judgment under Mississippi
Rule of Civil Procedure 54(b). Clausell v. Bourque, 122 So. 3d 825, 827 (¶6) (Miss. Ct.
App. 2013) (citing Williams v. Delta Reg'l Med. Ctr., 740 So. 2d 284, 285 (¶5) (Miss. 1999)).
¶36. Under Rule 54(b), the chancellor may “direct the entry of a final judgment as to one
or more but fewer than all of the claims or parties.” However, for the judgment to be final,
the order must make an “expressed determination that there is no just reason for delay” and
an “expressed direction for the entry of the judgment.” Id. Without such express
determinations, the order is interlocutory.
¶37. Here, the estate’s petition made a claim for attorney’s fees against Gerald. After a
trial, the chancellor expressly refrained from ruling on the attorney’s fee claim until “the
close of the estate.” Thus, the estate’s claim for attorney’s fees is still pending before the
chancellor. The judgment is not a final, appealable judgment. In In re Estate of Lewis, 135
So. 3d 202, 206 (¶¶15-16) (Miss. Ct. App. 2014), this Court dismissed an appeal under Rule
54(b) because the chancellor did not resolve “the issue of the attorneys’ fees incurred.” We
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held it was not final and appealable and dismissed the appeal for lack of jurisdiction. Id.
¶38. Here, regrettably, we must do the same. This appeal is dismissed for lack of
jurisdiction.
¶39. THIS APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, FAIR AND WILSON,
JJ., CONCUR. JAMES, J., DISSENTS WITH SEPARATE WRITTEN OPINION.
GREENLEE, J., NOT PARTICIPATING.
JAMES, J., DISSENTING:
¶40. I would find that the case should be dismissed for lack of subject-matter jurisdiction;2
thus, I respectfully dissent.
¶41. Gerald argues that the trial court erred in denying his Mississippi Rule of Civil
Procedure 60 motion, because it was fundamentally unfair to enter a default judgment since
no answer is required under Rule 81, and he did not appear on September 13. Moreover,
there was no hearing or introduction of evidence on the estate’s petition.
¶42. Under Rule 81, even when the defendant is properly served and fails to appear, an
entry of default is improper since no answer is required to be filed by the defendant unless
ordered by the court. Saddler v. Saddler, 556 So. 2d 344, 345 (Miss. 1990). The trial court
must hold an evidentiary hearing on the issues set out in the pleadings before granting a
judgment, and failure to do so is reversible error. Curry v. Frazier, 119 So. 3d 362, 366
(¶12) (Miss. Ct. App. 2013).
2
“Jurisdiction over the nature of the case and the type of relief sought; the extent to
which a court can rule on the conduct of persons or the status of things.” Black's Law
Dictionary 93 (10th ed. 2014)
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¶43. The estate argues that the claims for which the default judgment was granted are not
within Rule 81(d)(2) jurisdiction. The chancellor’s default judgment and order to show cause
indicate that she, likewise, had determined that while some of the claims in that petition were
within the jurisdiction of Rule 81(d)(2), the claims of unjust enrichment, constructive trust,
and breach of fiduciary duty were not. And on that basis, since Gerald was served with a
Rule 4 summons and failed to respond within thirty days, the chancery court granted a default
judgment on those three claims.
¶44. As to the estate’s argument that the claims of unjust enrichment, constructive trust,
and breach of fiduciary duty generally are not exclusively within Rule 81(d)(2) jurisdiction,
I agree. Nevertheless, the specific claims at issue were brought within a petition dealing with
estate matters. The Mississippi Rules of Civil Procedure are clear that, when dealing with
estate matters, Rule 81 governs. M.R.C.P. 81(d)(2). No interpretation of that rule in any way
suggests that the court may choose to apply a Rule 4 summons to underlying causes of action
enumerated in a petition dealing with estate matters. Furthermore, there is no caselaw to
support the estate’s argument that this procedure is proper.
¶45. Rule 81(d)(3) states that “[c]omplaints and petitions filed in the actions and matters
enumerated in subparagraphs (1) and (2) above shall not be taken as confessed.” Although
the record does not say what transpired on September 13 when the case was set for a hearing,
the record does show that Gerald was not present in court. The chancellor granted the default
judgment because Gerald failed to file a response within thirty days and failed to appear on
September 13. Thus, the default judgment was granted under Rule 4.
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¶46. The majority opinion relies on the fact that the parties did not obtain permission from
the trial court and our supreme court under Mississippi Rule of Appellate Procedure 5.
Under Rule 5, an interlocutory order is not appealable unless the Mississippi Supreme Court
grants permission. Under Rule 54(b), a trial judge “may direct the entry of a final judgment
as to one or more but fewer than all of the claims of the parties.” Here, the chancellor did
not make this determination because it was not requested. I agree with the majority opinion
that a Rule 54(b) certification is required in order to appeal an intermediate ruling.
¶47. However, the Rule 4 summons did not give the chancellor jurisdiction over those
claims before the chancery court. Since jurisdiction was not proper, the trial court did not
have the authority to grant a default judgment, nor does the appellate court have jurisdiction
to hear the appeal. The estate issued a Rule 4 and Rule 81 summons as a “catch all” tactic,
but our rules do not provide for this procedure.
¶48. The lack of proper service of process is both jurisdictional and dispositive in this case.
Even though there is no Rule 54(b) certification, we should not reach that issue since process
was not proper.
¶49. The record before the Court indicates that the default judgment was granted because
Gerald had been properly served with a Rule 4 summons. The record before this Court also
indicates that no hearing was held on September 13 as Rule 81 requires. Because Rule 4 did
not give the chancellor the authority to grant the default on an estate matter, I would dismiss
the case for lack of subject-matter jurisdiction.
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