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Amicus Analytica: September 26th, 2023

A weekly column dedicated to decoding Mississippi Supreme Court wisdom and providing a brief summary of the law.

Where There’s a Will, There’s a Way

This week’s article dives into Justice James Maxwell’s most recent opinion and covers a procedural issue of when a judgment becomes appealable.

In re the Estate of Herbert Bernard Ivison, Jr.: Malouf & Malouf v. The Estate of Herbert Bernard Ivison, Jr. No. 2022-CA-00837-SCT

Justice Maxwell presided over this appeal presented to the Court concerning what happens to assets when a man dies, leaving many successful businesses but barely any liquid assets and a large amount of debt to his family, and how finally probating his will became controversial. Before diving into the law of In re the Estate of Herbert Bernand Ivison, Jr. (Miss. 2023), we must present some background facts to better understand all the parties involved and what issues were being presented to the Scott County Chancery Court. At the time of Herbert’s death, he and his wife, Rebecca, were involved in divorce proceedings. (Majority Opinion ¶ 2, 2). Throughout the divorce, Herbert was represented by the law firm Malouf & Malouf (“Malouf”). He had received more than $86,000 in unpaid legal services, leaving Malouf with a claim to Herbert’s probated estate. Id.

However, when it came to probating the estate, issues arose when it became clear to the original executor (oh yes, original…) that the estate was likely to be insolvent*. The way to remedy this would be to sell Herbert’s assets. Id. Rebecca, the widow, and Herbert’s sons from a previous marriage all agreed to submit a purchase order of the assets to the chancery court to gain access to the assets. Id. The chancery court ultimately accepted Rebecca’s offer, as she intended to pay off all the debts in exchange for the assets free and clear. Id. But Rebecca did not follow the chancellor’s order as she did not pay back Malouf, and the estate issue continued. Id. The matter has survived a chancellor, a special judge, and two executors. Id.

Once the substitute executor was involved, they moved to declare claims against the estate as extinguished and time-barred. Id. The substitute executor argued that Malouf’s claim be extinguished as it had over four years to file an action against the Estate for payment, and it failed to do so. Id. at 3. However, Malouf contends the original chancellor’s order was sufficient for payment to have been performed and for no other claim to be filed against the Estate. Id. The special judge agreed with the substitute executor and declared Malouf time-barred. Id. Though Malouf filed a motion to reconsider the Order, the special judge once again denied its attempts. Id. Malouf ultimately filed a Rule 54(b) judgment to ensure that the judgment was final. Id. In the order, the court “expressly determined that there is no just reason for delay and expressly directed that a final, appealable Rule 54(b) judgment shall be and is hereby entered.” Id.

Malouf now appeals from the Rule 54(b) judgment. Id. Following its appeal, the Estate countered with a motion to dismiss for lack of appellate jurisdiction, specifically contending that the order declaring Malouf’s claim-time barred to be final and appealable, with Malouf failing to file a timely notice of appeal. Thus, it is out of time to pursue it now. Id. at 8. On review, the Court disagreed with the Estate’s view of this order being “final and appealable,” as the order which required the probated claims from the Estate’s assets would also be considered “final and appealable.” Id. The Court determined that the chancellor’s decision was interlocutory and Malouf’s filing the notice of appeal within thirty days of the Rule 54(b) order was timely. Therefore, jurisdiction was proper for this appeal to proceed. Id. at 12.

Lastly, the Court determined that the chancellor erred when deciding that Malouf’s claim was time-barred. Id. The Court contends that the statute of limitations is four years and ninety days following the date of letters testamentary when applying the language of the statutes 15-1-25 and 91-7-239. Carlisle, 269 So. 3d at 227. The Estate argues that Malouf had four years and ninety days to take action for the payment or forfeit its right. Id. However, Malouf asserts that the chancellor’s 2017 Order directing the payment of probated claims upon the sale of the assets required no further action from Malouf and was a condition of the sale of assets. Id. at 13. The Court determines that the language of the purchase order stating “All Probated Claims Will be Paid,” ensures payment to be made to Malouf. Id. at 14. The Court goes so far as to claim that forcing Malouf to file a separate suit to recover this payment would be “nonsensical and against judicial economy.” Id. at 15. Therefore, the Court held that Malouf was not barred by 15-1-25 in pursuing its claim, and the matter was remanded to direct the Estate payment to Malouf. Id.

In summary, following the appeal involving the distribution of assets, the law firm Malouf & Malouf was not time-barred from claiming payment of unpaid legal services from the Estate, which was originally ordered by the chancellor in 2017. Malouf & Malouf need not take any further against the Estate as the purchase order for the assets clearly obligated the Estate to make payment to Malouf, and filing a separate suit would be impractical.

* Insufficient to pay all debts.
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