        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2017-CA-00607-COA

CHASITY ANDERSON                                                          APPELLANT

v.

DARNICE WIGGINS                                                             APPELLEE

DATE OF JUDGMENT:                        11/29/2016
TRIAL JUDGE:                             HON. JOHN S. GRANT III
COURT FROM WHICH APPEALED:               RANKIN COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                  JAMES NELSON SCARFF II
ATTORNEYS FOR APPELLEE:                  THOMAS J. LOWE JR.
                                         JAMES BYRNES GRENFELL
NATURE OF THE CASE:                      CIVIL - WILLS, TRUSTS, AND ESTATES
DISPOSITION:                             AFFIRMED - 05/14/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      GREENLEE, J., FOR THE COURT:

¶1.   After the death of her son, Darnice Wiggins sued her son’s fiancée, Chasity Anderson,

for conversion. Wiggins then moved for summary judgment against Anderson. Anderson

moved for a continuance but never specifically responded to the summary judgment motion.

Three days before the hearing, Anderson’s attorney suffered a medical emergency and

suspended his legal practice. The Rankin County Chancery Court denied the continuance,

went forward with the hearing, and granted summary judgment. After the denial of her post-

trial motions, Anderson appealed. We find no error and affirm.

                      FACTS AND PROCEDURAL HISTORY

¶2.   Wiggins’s son, Jhonte Sanders, began dating Anderson in 2013. Sanders lived in
Chicago, Illinois, and Anderson lived in Florence, Mississippi. Sanders suffered from

leukemia and soon moved to Mississippi to begin chemotherapy treatments at the University

of Mississippi Medical Center. Several seizures severely compromised his mental and

physical abilities. He died in February 2015.

¶3.    Before his death, he received a personal-injury settlement in excess of $350,000.

While engaged to Anderson, he made several transfers to her from that settlement. The

following transfers are the crux of the complaint for conversion:

       1.     $100,072.73 transferred from Sanders’s Navy Federal Credit Union account
              to Trustmark Bank on January 15, 2015;

       2.     $105,000.00 in a transfer from Sanders’s Trustmark Bank account to
              Anderson, dated January 22, 2015; and

       3.     $100,000.00 transferred from Sanders’s Navy Federal Credit Union account
              to Anderson on January 23, 2015.

¶4.    After his death, the Rankin County Chancery Court appointed his mother, Wiggins,

administratrix of his estate. Wiggins sued Anderson for conversion in August 2015.

Anderson was served with a copy of the summons and an unfiled complaint for conversion

in September 2015. She was served with requests for admissions in October 2015. She failed

to respond after thirty days, and the chancery court entered a default judgment against her in

January 2016. The chancery court later granted her motion to set aside the default judgment

but deemed that the unanswered requests for admissions be admitted.

¶5.    Wiggins then moved for summary judgment. A hearing on the motion was scheduled

for November 29, 2016. One week before that hearing, Anderson moved for a continuance.

She claimed that she was unable to depose the plaintiff’s expert witness and that her attorney,

                                                2
James Scarff, had several hearings that day and could not attend. Wiggins opposed the

continuance because Scarff had already delayed the litigation several times with multiple

continuance requests.

¶6.       Two days before the hearing, Scarff became seriously ill and suspended his law

practice for thirty days. He notified the chancery court of his poor health, and the court

advised him to have another attorney appear at the hearing on his behalf and ask for a

continuance. Scarff did not file a separate motion for a continuance. On the day of the

hearing, two of his colleagues appeared before the court to explain that Scarff could not offer

Anderson representation. Neither colleague entered an appearance for Anderson before or

at the time of the hearing, but they later entered an appearance to file the post-trial motions.

Anderson did not appear at the hearing, and there is no evidence that anyone ever alerted her

to her attorney’s absence.

¶7.       The chancery court proceeded with the scheduled hearing. It denied the motion for a

continuance and granted summary judgment. Anderson then moved for reconsideration and

moved for a new trial. The court denied both motions. It is from this judgment that Anderson

appeals. She asserts that: (1) the chancery court did not have subject-matter jurisdiction over

the conversion claim; (2) the chancery court abused its discretion when it denied the motion

for a continuance; (3) the chancery court erred when it granted summary judgment; and (4)

the chancery court erred when it denied Anderson’s post-trial motions. Finding no error, we

affirm.

                                        DISCUSSION



                                               3
       I.     Did the chancery court have subject-matter jurisdiction over the
              conversion claim?

¶8.    Anderson argues that chancery court was not the proper court in which to file a claim

for conversion. She asserts that the court lacked subject-matter jurisdiction over the claim.

“The question of subject matter jurisdiction is an issue of law to which this Court must apply

a de novo standard of review.” In re Adoption of J.D.S., 953 So. 2d 1133, 1136 (¶11) (Miss.

Ct. App. 2007).

¶9.    Our State’s Constitution limits chancery-court jurisdiction:

       The chancery court shall have full jurisdiction in the following matters and
       cases, viz.:

              (a) All matters in equity;
              (b) Divorce and alimony;
              (c) Matters testamentary and of administration;
              (d) Minor’s business;
              (e) Cases of idiocy, lunacy, and persons of unsound mind;
              (f) All cases of which the said court had jurisdiction under the laws in
              force when this Constitution is put in operation.

Miss. Const. art. 6, § 159.

¶10.   The matter before us is a conversion claim. “Although property of which conversion

is alleged is in the custody of a chancery court,” Georgia-Pac. Corp. v. Blakeney, 353 So.

2d 769, 772 (Miss. 1978) (quoting 18 Am. Jur. 2d Conversion § 135 (1955)), an action for

conversion alone is best heard in the circuit court. But if “there is one issue of exclusive

equity cognizance, that issue can bring the entire case within subject matter jurisdiction of

the chancery court and that court may proceed to adjudicate all legal issues as well.” Newton

v. Brown, 198 So. 3d 1284, 1288 (¶20) (Miss. Ct. App. 2016) (internal quotation marks



                                              4
omitted).

¶11.   Wiggins’s complaint only asserts a claim for conversion. She does not indicate any

other tort or any other claim for the chancery court to consider. She asserts that the protection

of the estate’s assets entitles her to jurisdiction within the chancery court. She contends that

Anderson cannot now claim a lack of subject-matter jurisdiction because the chancery court

already rendered its decision. But jurisdictional challenges may be raised at any point during

litigation, as well as on appeal. Pierce v. Pierce, 132 So. 3d 553, 560 (¶14) (Miss. 2014).

Mississippi Rule of Civil Procedure Rule 12(h)(3) provides that “[w]henever it appears by

suggestion that the parties or otherwise that the court lacks jurisdiction of the subject matter,

the court shall dismiss the action or transfer the action to the court of proper jurisdiction.”

Additionally, our state constitution determines the ability of appellate courts to reverse a

judgment of a chancery court when it lacks jurisdiction:

       No judgment or decree in any chancery or circuit court rendered in a civil
       cause shall be reversed or annulled on the ground of want of jurisdiction to
       render said judgment or decree, from any error or mistake as to whether the
       cause in which it was rendered was of equity or common-law jurisdiction; but
       if the Supreme Court shall find error in the proceedings other than as to
       jurisdiction, and it shall be necessary to remand the case, the Supreme Court
       may remand it to that court which, in its opinion, can best determine the
       controversy.

Miss. Const. art 6, § 147.

¶12.   At the summary-judgment hearing, the chancery court discussed the jurisdictional

concerns and found that it had jurisdiction over the claim. Specifically, it found that under

Wiggins v. Perry, 989 So. 2d 419, 430 (¶28) (Miss. Ct. App. 2008), Anderson could not

complain about subject-matter jurisdiction after the court ruled on the motion for summary

                                               5
judgment.

¶13.   In that case, Wiggins did not raise the issue of subject-matter jurisdiction until after

the chancery court granted summary judgment. Therefore, on appeal, our court was unable

to reverse the case on the issue of subject-matter jurisdiction alone. Id. at 430-31 (¶28). We

ultimately reversed the decision on other grounds and remanded the case with instructions

that it be transferred to the proper court. Id. at 433 (¶47).

¶14.   In the present case, the chancery court held:

       Now, [the Mississippi Constitution] says a lot. And our case law says even
       more. In one case . . . it is stated that: “Because a party did not raise the issue
       of subject matter jurisdiction until after summary judgment had been granted
       in favor of the adverse party, the reviewing court could only reverse for lack
       of subject matter jurisdiction where there was also some other trial court error
       warranting reversal.”

The chancery court found that subject-matter jurisdiction was never an issue before the

motion for summary judgment. In her answer to the conversion complaint, Anderson asserted

lack of subject-matter jurisdiction as an affirmative defense. But at no point thereafter did

she actively pursue that defense. In fact, she never filed any motion based on those grounds.

As in Wiggins, without some other error, precedent prevents us from reversing this case on

the issue of subject-matter jurisdiction alone in this situation.1

       1
         3 Jeffrey Jackson, Mary Miller, and Donald Campbell, Encyclopedia of Mississippi
Law § 19:188 (2d ed. 2018) (“Ordinarily, a court of appeals could reverse for lack of subject
matter jurisdiction in the trial court even where the parties may not have raised the issue.
Section 147 of the Mississippi Constitution provides that the supreme court is without power
to reverse where the only error found is ‘want of jurisdiction to render said judgment or
decree, from any error or mistake as to whether the cause . . . was of equity or common-law
jurisdiction.’”); James W. Shelton, Miss. Chancery Prac. § 2:7 (2018) (“[T]he Constitution
prohibits the Supreme Court from reversing a case where the only error is that the case was
brought in chancery court when it should have been brought in circuit court, or vice versa.”);

                                               6
       II.    Did the chancery court abuse its discretion when it denied the
              motion for continuance?

¶15.   Anderson claims that the chancery court unfairly prejudiced her when the chancellor

allowed Wiggins’s motion for summary judgment to be heard after Anderson’s counsel had

notified the court that he was ill and unable to practice law. “The grant or denial of a

continuance is within the discretion of the trial court.” Henderson v. Henderson, 952 So. 2d

273, 277 (¶7) (Miss. Ct. App. 2006). “Prejudice must result from the denial in order to have

that decision reversed.” Id.

¶16.   We find that the chancery court properly denied Anderson’s continuance motion.

Under our rules of civil procedure, “[a] written motion, other than one which may be heard

ex parte, and notice of the hearing thereof shall be served not later than five days before the

time fixed for the hearing, unless a different period is fixed by these rules or by order of the

court.” M.R.C.P. 6(d). Parties have requested special considerations when sudden issues

arise. In Peden v. City of Gautier, 870 So. 2d 1185, 1188 (¶10) (Miss. 2004), Peden moved

for continuance on the morning of the hearing, citing poor health and that he was no longer

represented by counsel. The court denied the motion. Id. at 1187 (¶5). On appeal, the

Mississippi Supreme Court affirmed that denial because “Peden was in the courtroom and



c.f. Waits v. Black Bayou Drainage Dist., 186 Miss. 270, 185 So. 577, 578 (1939) (“Section
147 of the Constitution has no application. It provides that no cause shall be reversed by the
Supreme Court on the ground alone of a mistake in the trial court as to whether it is of law
or equity jurisdiction. The trouble here is that neither the chancery court nor the circuit court
had jurisdiction of this cause, as we will undertake to demonstrate. In the case of Indianola
Compress & Storage Co. v. Southern R.R. Co., 110 Miss. 602, 70 So. 703, [704 (Miss.
1916),] [s]ection 147 of the Constitution applied for it was not a question of jurisdiction, but
a mistake in jurisdiction.”).

                                               7
actively participated in the hearing before the trial court, including questioning his own

witness.” Id. at 1188 (¶11).

¶17.   Unlike in Peden, Anderson did not participate in the hearing and had no one to

participate on her behalf. Two attorneys appeared on the scheduled hearing date, but they

only appeared as her counsel’s “concerned friends.” There is no evidence that anyone told

Anderson of her attorney’s status until after the hearing. Essentially, she was without counsel

to represent her interests, and she was not there to represent herself.

¶18.   While we recognize that Anderson may have been denied a rightful hearing in front

of the chancery court on her continuance motion, we also note that the motion was not for

the same reasons that she argues on appeal. Anderson’s motion cited an inability to depose

an expert witness for the plaintiff. An additional continuance motion—specifically for

Scarff’s illness—was never filed. Although no one represented her interests regarding the

expert witness deposition, we find no error in the denial of the motion for a continuance on

those grounds. Therefore, we affirm.

       III.   Did the chancery court err when it granted summary judgment?

¶19.   Anderson avers that if she had been represented, then she could have adequately

opposed the summary-judgment motion and shown a genuine dispute of material fact. “This

Court applies a de novo standard of review to a grant of summary judgment by the lower

court.” Hudson v. Courtesy Motors Inc., 794 So. 2d 999, 1002 (¶7) (Miss. 2001).

¶20.   Rule 56 of the Mississippi Rules of Civil Procedure governs summary-judgment

motions. Summary judgment will be granted where—when viewing the evidence in the light



                                              8
most favorable to the nonmoving party—the pleadings, depositions, answers to

interrogatories, and affidavits show that there is “no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c); Lee v.

Keller Williams Realty, 247 So. 3d 293, 296 (¶6) (Miss. Ct. App. 2017). “A mere allegation

by the nonmoving party that a dispute over whether a material fact exists will not defeat a

movant’s otherwise properly supported motion for summary judgment.” Scott Penn Inc. v.

Mississippi Workers’ Comp. Grp. Self-Insurer Guar. Ass’n, 235 So. 3d 85, 91 (¶19) (Miss.

2017). “Additionally, a dispute about a material fact is genuine only if the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.” Id. Finally, under Rule

56(e), if the nonmoving party does not respond, summary judgment will be entered if

appropriate.

¶21.   In support of her conversion claim, Wiggins argues that her son was a vulnerable adult

who was unable to make decisions for himself. Mississippi Code Annotated section 11-7-165

(Rev. 2004) defines the actions set forth in Wiggins’s complaint:

       In a civil action where it is proven that a person took property having a value
       of Two Hundred Fifty Dollars ($250.00) or more belonging to a vulnerable
       adult by conversion, embezzlement, extortion, theft or fraud without the
       owner’s consent, or obtained the owner’s consent by intimidation, deception,
       undue influence or by misusing a position of trust or a confidential relationship
       with the owner, then whether the action is to recover the property or damages
       in lieu thereof, or both, damages shall be recoverable up to three (3) times the
       amount of the monetary damages or value of the property embezzled,
       converted or otherwise stolen, in addition to any other damages.

Thus, at issue is whether Sanders qualifies as a vulnerable adult. Our Code defines a

“vulnerable person” as:



                                               9
       [A] person, whether a minor or adult, whose ability to perform the normal
       activities of daily living or to provide for his or her own care or protection
       from abuse, neglect, exploitation or improper sexual contact is impaired due
       to a mental, emotional, physical or developmental disability or dysfunction, or
       brain damage or the infirmities of aging.

Miss. Code Ann. § 43-47-5(q) (Rev. 2004).

¶22.   The record indicates that Wiggins produced a fully supported summary-judgment

motion. And she included Dr. Clea C. Evans’s affidavit in that motion. Dr. Evans stated that

Sanders was “in the impaired range, with immediate memory, language, skill, and attention

span problems.” Dr. Evans thought that Sanders “did not have the cognitive ability,

reasoning, or mental capacity to realize he was transferring this large sum of money or any

sum of money to Chasity Anderson or the consequences of his actions . . . .”

¶23.   Anderson could not show that there was a genuine dispute of material fact. Wiggins

filed the motion on September 22, 2016. Anderson had at least 68 days to respond to the

motion before the hearing date. But she did not. The unanswered requests for admissions

were deemed admitted by the chancery court, and the chancery court may—and did—rely

upon them.2 And “[a] matter that is deemed admitted does not require further proof.”

       2
         According to the clerk’s papers (pages 73-75) in the record on appeal, the seventeen
requested admissions propounded to Anderson included: Sanders purchased a Toyota Camry
for Anderson; Anderson traded the Toyota Camry for a Nissan Juke; “prior to January 15,
2015, [Anderson] had a zero net worth”; Sanders transferred $100,072.73 to Anderson on
January 15, 2015; Sanders transferred $105,000.00 to Anderson on January 22, 2015;
Sanders transferred $100,000.00 to Anderson on January 23, 2015; Sanders had been “under
the care and supervision of a physician and was taking various medications” at various
times; Anderson’s mother picked Sanders up from the hospital on January 22, 2015, and
drove him to Anderson’s workplace where he signed papers to transfer money; Anderson
used money from Sanders’s account “to purchase Xbox games, clothes and other items” for
$2,000.00 on January 22, 2015; Anderson used money from Sanders’s account to purchase
“a flat screen television for $1,000.00” in November 2014; Sanders received a personal-

                                             10
DeBlanc v. Stancil, 814 So. 2d 796, 801 (¶25) (Miss. 2002). On appeal, she argues that if the

chancery court granted her continuance, then she would have been able to show that genuine

dispute. But she had ample time to do so before the hearing. Indeed, she was not left at the

last minute without representation and no ability to respond to the motion. Instead, she had

the opportunity to set forth a genuine issue of material fact, but she failed to timely do so.

¶24.   We therefore find that the chancery court properly granted summary judgment.

       IV.    Did the chancery court err when it denied Anderson’s post-trial
              motions?

¶25.   After the entry of summary judgment, Anderson moved for reconsideration under

Mississippi Rule of Civil Procedure 60(b)(6) and for a new trial under Mississippi Rule of

Civil Procedure 60(b)(3). The court denied both motions. Anderson last argues that the

chancery court erroneously denied those motions. “This Court will reverse the grant or denial

of a M.R.C.P. 60(b) motion only upon a showing of abuse of discretion.” Tel. Man Inc. v.

Hinds County, 791 So. 2d 208, 210 (¶9) (Miss. 2001).

¶26.   Rule 60(b)(6) “is a ‘catch-all’ type provision that allows a judgment to be set aside for

‘any other reason justifying relief from the judgment.’” Id. But “[r]elief under Rule 60(b)(6)

is reserved for extraordinary and compelling circumstances . . . .” Id. (quoting Briney v.

United States Fid. & Guar. Co., 714 So. 2d 962, 966 (¶12) (Miss. 1998)).

¶27.   In her reconsideration motion, Anderson asserted the same issues that she now



injury settlement in excess of $350,000.00 in December 2014; and Anderson “never met or
had a conversation with Dr. Clea Evans, the neuropsychiatrist who treated and cared for
Jhonte Sanders, . . . .” All requested admissions were unanswered, and the chancery court
deemed them admitted.

                                              11
presents on appeal. As previously discussed, Anderson never pursued the jurisdiction issue

and never responded to the summary-judgment motion, despite having ample time to do so.

Accordingly, the chancery court did not abuse its discretion when it denied the motion for

reconsideration.

¶28.   Rule 60(b)(3) allows for relief in instances where newly discovered evidence exists

that was not found in time to move for a new trial under Rule 59(b). In her motion for a new

trial, Anderson claimed that Dr. Stephanie Elkins’s testimony was newly discovered

evidence. We disagree.

¶29.   Dr. Elkins treated Sanders from 2011 until 2015. In April 2017, she submitted a letter

stating that she had “never witnessed [Sanders] in a setting where [she] felt he could not

make his own decisions and attend to his own affairs.” Anderson’s motion notes that her

counsel spoke to Dr. Elkins several times before that letter. Anderson’s counsel knew or

should have known of Dr. Elkins’s opinion regarding Sanders’s condition and his ability to

make decisions for himself.

¶30.   Anderson says that she did not produce the letter in time because of Dr. Elkins’s travel

schedule. But the record shows that defense counsel knew of Dr. Elkins’s testimony and

simply failed to procure it in a timely fashion. Therefore, we find that the chancery court did

not abuse its discretion when it denied the motion for a new trial.

                                      CONCLUSION

¶31.   We hold that: (1) the chancery court had subject-matter jurisdiction over the

conversion claim; (2) the chancery court did not abuse its discretion when it denied the



                                              12
motion for continuance; (3) the chancery court did not err when it granted summary

judgment; and (4) the chancery court did not err when it denied Anderson’s post-trial

motions. We therefore affirm.

¶32.   AFFIRMED.

     BARNES, C.J., CARLTON, P.J., WESTBROOKS AND LAWRENCE, JJ.,
CONCUR. TINDELL, J., DISSENTS WITH SEPARATE WRITTEN OPINION,
JOINED BY J. WILSON, P.J., McDONALD, McCARTY AND C. WILSON, JJ.

       TINDELL, J., DISSENTING:

¶33.   The majority states that “at issue is whether Sanders qualifies as a vulnerable adult.”

Maj. Op. at (¶21). With all due respect to the majority, that is not the issue. At issue is the

alleged wrongful conversion of Sanders’s assets by his fiancée, Anderson. While the

affidavits, requests for admissions, and pleadings may very well have established that

Sanders was a vulnerable adult, a question of fact still exists as to whether Anderson was in

wrongful possession of Sanders’s assets. Therefore, I must dissent.

¶34.   As the Mississippi Supreme Court has explained:

                In a summary[-]judgment hearing, the burden of producing evidence in
       support of, or in opposition to, the motion is a function of Mississippi rules
       regarding the burden of proof at trial on the issues in question. The movant
       bears the burden of persuading the trial judge that: (1) no genuine issue of
       material fact exists, and (2) on the basis of the facts established, he is entitled
       to [a] judgment as a matter of law. The movant bears the burden of production
       if, at trial, he would bear the burden of proof on the issue raised.

Palmer v. Biloxi Reg’l Med. Ctr. Inc., 564 So. 2d 1346, 1355 (Miss. 1990) (citations and

internal quotation marks omitted). “[B]ecause [d]efendants do not carry any burden of

production at trial, they also do not carry any burden of production at the summary-judgment



                                               13
stage.” Karpinsky v. Am. Nat’l Ins. Co., 109 So. 3d 84, 89 (¶13) (Miss. 2013).3 So even

though here Anderson’s counsel failed to respond to the summary-judgment motion and to

attend the hearing on the summary-judgment motion, it is still Wiggins, as the plaintiff and

administrator of Sanders’s estate, who bears the initial burden of producing evidence to

establish that there is no genuine issue of material fact regarding conversion.

¶35.   “To establish a conversion, there must be proof of a wrongful possession, or the

exercise of a dominion in exclusion or defiance of the owner’s right, or of an unauthorized

and injurious use, or of a wrongful detention after demand.” Evans v. Miss. Dep’t of Human

Servs., 36 So. 3d 463, 477 (¶59) (Miss. Ct. App. 2010) (internal quotation mark omitted).

“Common law conversion requires a wrongful possession with intent to exercise dominion

or control over goods which is inconsistent with the true owner’s right.” Midwest Feeders

Inc. v. Bank of Franklin, 114 F. Supp. 3d 419, 426 (S.D. Miss. 2015).

¶36.   Wiggins argued before the chancellor that Anderson’s admissions, coupled with the

established facts and Dr. Evans’s affidavit, clearly showed that the complaint for conversion

should be granted. In support of her summary-judgment motion, Wiggins offered the

following exhibits:

       Exhibit A:     A copy of the complaint, which included copies of the
                      following: (1) a July 25, 2014 check for $12,295 to J&J Auto
                      Brokers signed by Sanders from his account; (2) a January 12,
                      2015 bank check for $100,072.73 to Anderson; (3) a January 23,
                      2015 bank check for $100,000 to Anderson; and (4) a Trustmark

       3
         The burden of proof may very well shift to Anderson at trial if a confidential
relationship is established or the nature of the transactions is determined, but for purposes
of seeking summary judgment on a claim for conversion, the burden of proof rests squarely
with the plaintiff.

                                             14
                     National Bank gift letter signed by Sanders acknowledging that
                     Sanders was gifting $105,000 to Anderson for the purchase of
                     property located at 112 Saint Charles Avenue, Florence,
                     Mississippi 39073.

       Exhibit B:    A January 6, 2015 check for $500 to Remax Alliance signed by
                     Anderson from her account.

       Exhibit C:    A MLS listing for a house for sale located at 112 Saint Charles
                     Avenue, and the accompanying purchase contract executed on
                     January 6, 2015, for the same house for a purchase price of
                     $261,000.

       Exhibit D:    A warranty deed to Anderson dated February 5, 2015, for the
                     property at 112 Saint Charles Avenue.

       Exhibit E:    A judgment deeming requests for admissions admitted.

       Exhibit F:    Wiggins’s first set of requests for admissions propounded to
                     Anderson.

       Exhibit G:    Dr. Evans’s opinion and affidavit.

       Exhibit H:    Anderson’s answer to the complaint and affirmative defenses.

¶37.   Exhibits A through D attached to Wiggins’s summary-judgment motion offered

evidence of financial transactions made between or by Sanders and Anderson. Because

Sanders himself authorized these transactions, Wiggins has the burden to establish that either

Sanders lacked the competency to authorize the transactions to Anderson or that Anderson

exercised undue influence over Sanders, a vulnerable adult, to make the transfers. The

primary evidence to support these theories was Anderson’s admissions and the opinion and

affidavit of Dr. Evans.

¶38.   In reviewing Anderson’s admissions, I find that the only facts established are that

Sanders made various transfers to Anderson and that Sanders was under a physician’s care

                                             15
and supervision and was taking various medications. There are no admissions that the funds

were unlawfully converted, that a confidential relationship existed, that Anderson unduly

influenced Sanders, or that Sanders lacked the capacity necessary to make the referenced

transactions. Anderson’s admissions, as a matter of law, do not establish an unlawful

conversion of Sanders’s assets to Anderson.

¶39.   The only other evidence Wiggins relied upon in her summary-judgment motion was

Dr. Evans’s affidavit. Dr. Evans is the director of and the staff neuropsychologist at

Methodist Rehabilitation Center (Methodist) in Jackson, Mississippi. Sanders was a patient

at Methodist from November 14, 2014, until his discharge on November 28, 2014. In her

affidavit, Evans states that, prior to his discharge, Sanders had an onset of confusion and a

seizure disorder, and that, along with other neurological conditions, this caused “fluctuations

in his thinking and memory skills.” After his discharge from Methodist, Sanders continued

to receive outpatient-rehabilitation services. According to Dr. Evans, Sanders “scored in the

impaired range, with immediate memory, language[-]skills[,] and attention[-]span problems.”

¶40.   Based upon her review of Sanders’s medical record and her own personal treatment

of Sanders, Dr. Evans offered her opinions as to his mental state. In particular, Dr. Evans

opined that from November 14, 2014, through January 22, 2015, Sanders did not possess the

mental ability to manage his own financial affairs or to make legal or medical decisions for

himself. As it pertained to the January 12, 2015 transaction, Dr. Evans relied upon a January

13, 2015 therapist note, which stated that Sanders was “having trouble remembering to take

his medication,” to conclude to a reasonable degree of medical probability that Sanders did



                                              16
not have the cognitive ability or mental capacity to realize he was transferring such a large

sum of money. As it pertained to the subsequent check and gift letter signed on January 22,

2015, Dr. Evans relied on a January 18, 2015 therapist note to reach the same conclusion as

to those transactions.

¶41.   Wiggins argues the chancellor properly granted summary judgment for the “simple

fact that [Sanders] was a vulnerable person, lacking the apperceptive mass to understand

what he was doing and the consequences thereof . . . .” To be clear, just because an

individual is classified as a “vulnerable adult” does not mean that the individual is

incompetent to transfer his or her assets to another. Indeed, our supreme court has

acknowledged on multiple occasions that “the mere fact that someone is too ill to handle his

affairs does not in and of itself render him mentally incompetent or void of testamentary

capacity.” In re Estate of Laughter, 23 So. 3d 1055, 1061 (¶22) (Miss. 2009) (citing Lee v.

Lee, 337 So. 2d 713, 715 (Miss. 1976)). “[I]t is sufficient for the testator to understand and

appreciate the nature of his act, [to appreciate] the natural objects or persons of his bounty

and their relations to him, and [to be] capable of reasoning and thinking of how he desired

to devise and bequeath his property.” Lambert v. Powell, 199 Miss. 397, 404, 24 So. 2d 773,

775 (1946). In addition, even if a person is found to lack competency over a specified

period, that person may have lucid moments or intervals when he or she possesses the

necessary capacity to convey property. Whitworth v. Kines, 604 So. 2d 225, 229 (Miss.

1992). The pertinent time during which capacity is required is on the date the property was

transferred. See In re Estate of Mask, 703 So. 2d 852, 858-59 (¶29) (Miss. 1997); In re



                                             17
Estate of Crutcher, 911 So. 2d 961, 968 (¶21) (Miss. Ct. App. 2004). Here, Dr. Evans based

her opinion on notes from Sanders’s therapist, which were taken on different days from the

dates of the transfers at issue. Further, nowhere does Dr. Evans state that Sanders was

incompetent or insane. Equally important, there was no predicate for Dr. Evans’s affidavit

concerning Sanders’s capacity.

¶42.   Summary judgment should be granted with great caution after viewing the evidence

most favorably toward the nonmovant. Brown v. Credit Ctr., 444 So. 2d 358, 362-63 (Miss.

1983). In his two-page order granting summary judgment, the chancellor simply stated “that

there [was] no genuine issue as to any material fact” and that Wiggins was “entitled to a

judgment as a matter of law.” But the chancellor never stated exactly how the established

material facts in this case applied to Wiggins’s claim of conversion. Even in her appellate

brief, Wiggins acknowledges that “[i]t is impossible to know what passed between Sanders

and Anderson that resulted in his transferring most of his settlement funds to her . . . .” But

along with the nature of Sanders’s mental state on the dates of the referenced transactions,

that is the precise question that must be answered. Until such time, material questions of fact

still exist that preclude summary judgment on Wiggins’s claim of conversion. I therefore

would reverse the chancellor’s judgment and remand this case for further proceedings.

Accordingly, I respectfully dissent from the majority’s opinion.

     J. WILSON, P.J., McDONALD, McCARTY AND C. WILSON, JJ., JOIN THIS
OPINION.




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