      IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                     NO. 2016-CP-01757-COA

IN THE MATTER OF THE ESTATE OF ZONA                  APPELLANTS
MAE OLIVER, DECEASED: SANDRA JEAN
OLIVER AND JAMES HOWARD OLIVER

v.

JAMES C. OLIVER JR., TERRY MICHAEL                    APPELLEES
CARNEY JR., AND MELISSA M. CARNEY

DATE OF JUDGMENT:             11/14/2016
TRIAL JUDGE:                  HON. VICKI B. DANIELS
COURT FROM WHICH APPEALED:    MONTGOMERY COUNTY CHANCERY
                              COURT
ATTORNEY FOR APPELLANT:       SANDRA JEAN OLIVER (PRO SE)
ATTORNEYS FOR APPELLEES:      ROGER ADAM KIRK
                              J. LANE GREENLEE
NATURE OF THE CASE:           CIVIL - WILLS, TRUSTS, AND ESTATES
DISPOSITION:                  AFFIRMED - 04/16/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

                     CONSOLIDATED WITH

                     NO. 2016-CP-01759-COA

SANDRA JEAN OLIVER AND JAMES                        APPELLANTS
HOWARD OLIVER

v.

TERRY MICHAEL CARNEY JR., MELISSA M.                  APPELLEES
CARNEY, JANET CAROL MCLELLAND, AND
JAMES DONALD OLIVER

DATE OF JUDGMENT:              09/30/2016
TRIAL JUDGE:                   HON. VICKI B. DANIELS
COURT FROM WHICH APPEALED:     MONTGOMERY COUNTY CHANCERY
                               COURT
ATTORNEY FOR APPELLANT:                       SANDRA JEAN OLIVER (PRO SE)
ATTORNEYS FOR APPELLEES:                      ROGER ADAM KIRK
                                              J. LANE GREENLEE
NATURE OF THE CASE:                           CIVIL - WILLS, TRUSTS, AND ESTATES
DISPOSITION:                                  AFFIRMED IN PART, AND DISMISSED IN
                                              PART - 04/16/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       CARLTON, J., FOR THE COURT:

¶1.    This is a consolidated appeal concerning three cases originating in the Montgomery

County Chancery Court, all of which involve the division of real and personal property

belonging to Zona Mae Oliver, who died intestate on March 11, 2004. The three actions are

a partition action and a fraud action (consolidated in the chancery court after entry of a final

judgment in the partition action), and an estate action. The estate action was initiated when

Sandra Oliver petitioned the chancery court to appoint her as the administratrix of the Zona

Mae Oliver estate, to require an accounting of all real and personal property in that estate,

and for other relief. For the reasons detailed below, we affirm the chancery court’s final

judgment of partition; we dismiss the fraud action appeal as premature because no final

judgment has been entered in that action, without prejudice to Sandra Oliver’s right to pursue

further proceedings after entry of a final judgment in the fraud action; and we affirm the

chancery court’s dismissal of the estate action on res judicata grounds.

      STATEMENT OF RELEVANT FACTS AND PROCEDURAL HISTORY1



       1
        We address only those pleadings and proceedings relevant to our disposition in this
consolidated appeal.

                                               2
¶2.    As mentioned above, Zona Mae Oliver died intestate on March 11, 2004. Her two

sons, James Howard Oliver (Howard) and James Calvin Oliver (J.C.) jointly requested an

attorney to file a determination-of-heirship petition. In a judgment entered May 24, 2004,

Howard and J.C. were determined to be Zona Mae’s only living heirs. The assets remaining

in the estate were her residence and the surrounding 365 acres of land located in Montgomery

County, plus personal property inside the home that was valued at approximately $70,000.

¶3.    On June 20, 2007, J.C. filed a petition for Chapter 13 bankruptcy in the United States

Bankruptcy Court for the Southern District of Mississippi, Case No. 07-50836. On June 11,

2012, J.C. received a discharge after completion of his Chapter 13 plan, and the case was

closed on December 11, 2012.

¶4.    In the meantime, by quitclaim deed dated May 11, 2009, Howard conveyed his interest

in the Zona Mae Oliver property to his daughter and the appellant, Sandra Oliver. After J.C.

received his discharge in bankruptcy, by warranty deed dated October 11, 2012, J.C.’s

daughter and his attorney-in-fact, Janet Carol McLelland, conveyed J.C.’s interest in the

property to the appellees, J.C.’s granddaughter (and Janet’s daughter), Melissa McLelland

Carney, and her husband, Terry Michael Carney, Jr. (the Carneys). The three separate cases

that make up this appeal were subsequently filed in Montgomery County Chancery Court.

We begin by briefly summarizing each case.

       I.     The Partition Action (Cause No. 13-cv-00088)

¶5.    The Carneys filed a complaint for partition on May 10, 2013, against Sandra Oliver




                                             3
(the partition action).2 The Carneys requested that the property in the Zona Mae Oliver estate

be partitioned into two equal shares, with each party to pay their share of court costs, ad

valorem taxes for 2013, and all other fees and costs incurred to complete the action. This

case was assigned to Chancellor Mitchell M. Lundy Jr., who recused himself on August 4,

2014. The partition case was then re-assigned to Chancellor Vicki B. Cobb n/k/a Chancellor

Daniels.

       II.      The Estate Action (Cause No. 13-cv-00125)

¶6.    On July 16, 2013, at the same time Sandra filed a response in the partition action,

Sandra and her father, Howard, initiated a separate proceeding by filing their Petition to

Appoint Administratrix, Account for Lost Property, to Account for Misappropriation of

Estate Assets with Power-of-Attorney and for Issuance of Letters of Administration (the

estate action). Sandra and Howard named J.C. and the Carneys as defendants in this

proceeding. This case was assigned to Chancellor Daniels.

       III.     The Fraud Action (Cause No. 15-cv-00093)

¶7.    Approximately two years later, on June 10, 2015, Sandra and Howard sued the

Carneys, J.C., Janet, and Donald Oliver for fraud (the fraud action).3 This case was assigned

to Chancellor Percy Lynchard Jr. In her fraud lawsuit, Sandra alleged that J.C., beginning



       2
         The Carneys also named as defendants “all unknown persons or entities claiming
any interest in the property which is the subject of this case.” By judgment dated June 18,
2013, the chancery court entered a default judgment against these defendants, and ordered
that no additional process shall be required on them.
       3
           For ease of reference, we collectively refer to Plaintiffs Sandra and Howard as
Sandra.

                                              4
in 1997, converted funds and property belonging to Zona Mae Oliver to his personal use

during her life and after her death, up until J.C., by and through Janet as his attorney-in-fact,

filed for Chapter 13 bankruptcy in June 2007. According to Sandra’s complaint, J.C.

obtained personal loans secured by 120 acres belonging to Zona Mae Oliver which was

subsequently lost in a foreclosure sale. Further, Sandra alleged that J.C. received his final

discharge from the bankruptcy court on June 11, 2012, and that she and her father “were

barred from initiating any proceedings against [J.C.] because of the stay which was in effect

in the bankruptcy action.” After a final judgment of partition was entered in the partition

action, the partition and fraud cases were consolidated before Chancellor Daniels on

November 23, 2016, as detailed below.

       IV.    Proceedings in the Partition and Fraud Actions

¶8.    In response to the Carneys’ partition complaint, Sandra moved to stay the partition

action pending the outcome of the equitable issues raised in her petition to open the Zona

Mae Oliver estate filed on July 16, 2013. In her motion, Sandra repeated the same

allegations she made in her estate petition regarding J.C.’s alleged waste and depletion of the

estate. Her motion also included a claim that she had a right to an equitable offset in the

property interest that J.C. deeded to the Carneys. The Carneys contested Sandra’s motion.

During an October 22, 2013 hearing, Sandra testified at length regarding J.C.’s alleged

depletion of the estate, including the 120 acres belonging to the estate that J.C. allegedly lost

in foreclosure, and the money that J.C. allegedly wrongly appropriated for the sale of timber,

cattle, and other personal property belonging to the Zona Mae Oliver estate. The chancery



                                               5
court denied Sandra’s motion to stay the partition action in an order dated November 18,

2013.

¶9.     An agreed order allowing Sandra’s original counsel’s request to withdraw was entered

on December 3, 2013. Sandra employed new counsel. An order releasing Sandra’s second

lawyer from representing her was entered approximately five months later.

¶10.    Sandra’s third lawyer filed an entry of appearance on July 22, 2014, and on July 25

Sandra’s counsel filed on her behalf a motion controverting the partition action, and seeking

an apportionment relating to prior encumbrances and for an adjustment of the equities

between the parties (the motion to controvert). This motion again detailed Sandra’s

allegations of J.C.’s alleged wrongful sale of timber, cattle, and other personal property

belonging to the estate of Zona Mae Oliver, and J.C.’s alleged wrongful pledging of 120

acres of real property belonging to Zona Mae to secure loans. Sandra, in this motion,

requested that the court enter an order granting her “one half of the property sought to be

partitioned plus such additional portions of the property to which she is entitled to receive

in equity to prohibit an unjust enrichment of the plaintiffs [the Carneys] and provide for just

compensation to the defendant because of the damages suffered by defendant for the

fraudulent and wrongful actions of James C. Oliver, Jr.”4

        4
         The record also contains a motion Sandra filed pro se, indicating it was served on
May 21, 2014, but does not appear to have been filed until June 16, 2015. In her pro se
motion, Sandra sought to correct facts stated at the October 22, 2013 hearing on her motion
to stay the partition case, and requested the court to allow additional evidence relating to
J.C.’s alleged fraudulent acts, and to disallow any partition of the property at issue due to
J.C.’s alleged fraudulent acts (the motion to correct facts and for equitable partition). To
avoid repetition, we will discuss the details of this motion below. In their response to
Sandra’s motion to correct facts, the Carneys argued, among other things, that the motion

                                              6
¶11.   In September 2014, the Carneys moved, in limine, for an order preventing Sandra

from offering any testimony or evidence relating to any claim that she may have due to the

actions of James C. Oliver, Jr., as set forth in her motion to controvert. On December 12,

2014, the Carneys filed the affidavit of Tarik O. Johnson, a bankruptcy attorney who,

according to his affidavit, was retained by the Carneys to render his professional opinion on

the issue of whether Sandra’s claim against J.C. and his successors-in-title, the Carneys, was

barred by the discharge in bankruptcy granted to J.C. by the United States Bankruptcy Court

for the Southern District of Mississippi in Case No. 07-50836 on June 11, 2012. Johnson

opined that Sandra’s claims were barred by J.C.’s June 11, 2012 discharge in bankruptcy.

¶12.   Sandra’s motion to controvert, the Carneys’ motion in limine, and all issues relevant

to issues raised in the Carneys’ motion in limine that were addressed in Sandra’s pro se

motion to correct facts and for equitable partition served May 21, 2014, were noticed for

hearing. At the February 2, 2015 hearing, counsel for Sandra clarified that both Sandra’s

motion to controvert, and her pro se motion to correct facts and for equitable partition, to the

extent it related to the issues in the Carneys’ motion in limine, were before the court. The

chancellor stated on the record that she had “read the entire [court] file and not just the

motions that are noticed for hearing today . . . [and that she] under[stood] very thoroughly

what the issue are, the issues that [Sandra] is trying to raise . . . .” After argument, the court

granted the Carneys’ motion in limine, finding that any claim Sandra’s father, Howard

(Sandra’s predecessor-in-title), may have had against J.C., the Carneys’ predecessor-in-title,


was untimely, and that the relief requested was redundant of the relief sought in the motion
to controvert filed by Sandra’s counsel on her behalf in July 2014.

                                                7
were barred by J.C.’s discharge in bankruptcy. She further found that any claim Sandra

derives through Howard was also barred. The chancery court entered its corrected order

granting the Carneys’ motion in limine on March 20, 2015.5

¶13.   Less than two weeks later, on June 23, the Carneys moved to transfer the fraud action

and consolidate the fraud and partition cases before Chancellor Daniels in Cause No. 13cv88

(the original partition action). On June 29, Sandra’s counsel, James Powell, submitted to

Chancellor Lynchard a proposed agreed order to transfer and consolidate the fraud and

partition cases before Chancellor Daniels. The agreed order was signed by Mr. Powell and

counsel for the Carneys, indicating their agreement that the order be entered. In his cover

letter to Chancellor Lynchard, Sandra’s counsel explained that the Carney’s counsel had filed

the motion to transfer and consolidate and that “[he (Sandra’s counsel) was] in agreement

with [the Carney’s counsel] on that issue.” Nevertheless, the record reflects that this agreed

order appears to have been lost, and was not entered at that time.6

¶14.   An agreed order to stay the partition proceedings, however, was entered in the

partition case on July 2, 2015. This order provided for a ninety-day stay within which Sandra

could seek to reopen the J.C. bankruptcy proceedings to assert the claims she asserted against

him in the fraud lawsuit. No action was taken by Sandra during the ninety-day time period.



       5
         The first order entered by the court inadvertently provided that the Carneys’ expert
witness had testified at the hearing. In the corrected order, the chancellor clarified that the
Carneys’ expert witness’s affidavit had been admitted at the hearing and that he did not
testify.
       6
        As detailed below, the agreed order to transfer and consolidate the partition and
fraud actions was signed by Chancellor Lynchard and entered on November 23, 2016.

                                              8
¶15.   The first hearing on the partition lawsuit was set for February 1, 2016. On that date,

however, Sandra moved, pro se, to reinstate the stay pending resolution of her motion to

reopen J.C.’s bankruptcy estate, and other related motions, which Sandra did not file in the

bankruptcy matter until January 29, 2016, over three months past the ninety-day stay entered

on July 2, 2015. In her motion to reopen the bankruptcy estate,7 Sandra reiterated the same

claims against J.C. described above, namely: (1) J.C.’s use of the 120 acre parcel as

collateral on a mortgage; (2) J.C.’s alleged conversion of cattle, funds, and various pieces of

Zona Mae’s personal property; and (3) the cutting and sale of timber.

¶16.   At the February 1, 2016 first partition hearing, which also included a hearing on

Sandra’s motion to reinstate the stay,8 the chancellor stated on the record that she had read

Sandra’s pro se motion for stay, and the bankruptcy pleadings furnished by Sandra’s counsel

and made exhibits at the hearing. The chancellor further noted that Sandra took no action

in the bankruptcy proceeding during the initial ninety-day stay granted by the court. The

chancellor denied Sandra’s motion to reinstate the stay.

¶17.   Counsel for both parties represented to the chancery court that the parties had reached

an agreement as to how the partition would be conducted, as set forth in the proposed first

judgment of partition. The chancellor signed this judgment. The first judgment of partition

appointed two commissioners to prepare a valuation and partition report, and it also provided



       7
        The motions filed by Sandra in the bankruptcy proceeding were made a part of the
record at the February 1, 2016 hearing on Sandra’s motion to reinstate the stay.
       8
        Though Sandra filed her motion to reinstate the stay pro se, she was represented by
counsel during this time.

                                              9
that a final hearing would be conducted confirming the report, and addressing all other issues

raised by the pleadings, including any taxes paid by Sandra.

¶18.   Sandra’s counsel also stated on the record that although Sandra had filed a motion to

reconsider the court’s ruling granting the Carneys’ motion in limine to exclude evidence or

argument about any claims Howard or Sandra had against J.C., they had decided not to

pursue that motion because those issues “had to be determined by the [b]ankruptcy [c]ourt.”

¶19.   The commissioners’ report was filed on May 16, 2016, and on September 27, 2016,

at the final partition hearing, the chancery court approved the commissioners’ report, and

heard testimony regarding payment of taxes on the property. The final judgment of partition

was entered on September 30, 2016, partitioning the western half of the property to Sandra

and the eastern half of the property to the Carneys; addressing payment of the

commissioners’ fees, attorney fees, other costs; setting forth the stipulated amount of

$5,350.15 to be credited to the Carneys for payment on ad valorem taxes; and denying

Sandra’s request for reimbursement for certain property taxes paid in 2006-08.

¶20.   In this same time-frame, on September 28, 2016, the bankruptcy court denied Sandra’s

motion to reopen J.C.’s Chapter 13 bankruptcy proceeding to assert her claims regarding

J.C.’s use of the 120-acre parcel as collateral on a mortgage, and his alleged wrongful

conversion of cattle, funds, timber and various pieces of Zona Mae’s personal property.9 The

       9
         We take judicial notice of the order denying Sandra’s motion to reopen J.C.’s
Chapter 13 bankruptcy proceeding entered in the United States Bankruptcy Court for the
Southern District of Mississippi. In re Oliver, Ch. 13 Case No. 07-50836 (S.D. Miss. Sept.
28, 2016); see also In re Oliver, Ch. 13 Case No. 07-50836, 2017 WL 1323467 (S.D. Miss.
Apr. 10, 2017). See Teal v. Jones, 222 So. 3d 1052, 1057-58 (¶21) (Miss. Ct. App. 2017)
(taking judicial notice of a record that was “readily available via [the electronic filing

                                             10
bankruptcy court found that Howard had adequate notice of J.C.’s bankruptcy to file a

nondischargeability action, and failed to do so or to request an extension of the deadline. For

this reason, the court found that Sandra, on behalf of Howard, was now time-barred from

filing a nondischargeability action. The bankruptcy court also held that “most, if not all, of

the alleged debts asserted by Sandra could not have been excepted from discharge anyway.

Sandra essentially asserts claims for conversion of Zona Mae’s personal property, including

the cattle, antique furniture, a car, and the funds in a checking account, as well as a claim for

trespass to timber.” Under the circumstances in Sandra’s case, the court held, these claims

are not excepted from discharge in a Chapter 13 case.

¶21.   On October 10, 2016, Sandra filed, pro se, a motion for new trial, or, alternatively, to

alter or amend the final judgment for partition, accompanied by a supporting brief filed

November 1, 2016, which included over 110 pages of attachments. The Carneys moved to

strike Sandra’s pro se brief due to “scandalous content.” Sandra filed her pro se opposition

to that motion on November 9, 2016. At the November 14, 2016 hearing on these motions,

the chancery court denied Sandra’s motion for a new trial or to alter or amend the final

judgment, and also observed at that hearing that the bankruptcy court’s September 28, 2016

ruling barred Sandra’s claims. The chancery court also granted the Carneys’ motion to strike

Sandra’s pro se brief supporting her motion for a new trial, and entered its orders on both of

these rulings on November 14.

¶22.   On October 17, 2016, the Carneys moved to dismiss Sandra’s fraud lawsuit and


system] and [that could not] reasonably be disputed.”).


                                               11
sought sanctions against Sandra pursuant to Rule 11 of the Mississippi Rules of Civil

Procedure for filing a frivolous complaint. Sandra filed her pro se opposition, and the

Carneys moved to strike Sandra’s brief supporting her opposition due to “scandalous

content.” The chancery court has not issued any ruling or judgment on the Carneys’ motion

to dismiss the fraud lawsuit.

¶23.   The record reflects that on November 11, 2016, counsel for the Carneys filed a motion

in the fraud case (before Chancellor Lynchard) seeking entry of the agreed order to

consolidate the fraud and partition cases into Cause No. 13-cv-00088 (the partition case) that

had been submitted to the court on June 29, 2015 by Sandra’s counsel at the time, James

Powell. The agreed order signed by the Carneys’ counsel and Mr. Powell, together with Mr.

Powell’s June 29, 2015 cover letter to Chancellor Lynchard submitting the agreed order,

were attached as exhibits to the Carney’s motion. Sandra opposed the Carneys’ motion for

entry of the agreed order. In her opposition, Sandra admitted that as early as July 2015, she

knew that the Carneys had filed their original motion to transfer and consolidate the partition

and fraud cases. She also asserted, however, that she had not given Mr. Powell permission

to agree to the transfer and consolidation.

¶24.   On November 23, 2016, Chancellor Lynchard, who was assigned to the fraud case,

signed and entered the agreed order transferring the fraud case to Chancellor Daniels and

consolidating the partition and fraud cases for further proceedings before Chancellor Daniels.

¶25.   On November 29, 2016, Sandra filed a pro se motion in the fraud action entitled

“Motion to Appoint Temporary Administrator for Estate of Zona Mae Oliver and Issue



                                              12
Letters of Administration; Motion to Join the Estate of Zona Mae Oliver as Plaintiff; Motion

for Temporary Injunction in Partition Claim.” In this motion Oliver asked the chancellor

to appoint her as the temporary administrator of the Zona Mae’s estate and join the estate as

a party. Sandra also requested that the chancellor enter an injunction in the partition lawsuit,

pending appeal of the final judgment of partition, to preserve the real property that is at issue

in all three lawsuits. The record reflects that the chancery court did not rule on this motion

before Sandra filed notices of appeal in the partition and fraud cases.

¶26.   Sandra filed separate notices of appeal in the partition and fraud cases on December

13, 2016. The notice of appeal Sandra filed in the partition action appealed the final

judgment of partition entered on September 30, 2016 (also listing a number of other orders

and rulings entered in that action prior to the final judgment of partition) and the order

denying Sandra’s motion for a new trial or, alternatively, to alter or amend the judgment

entered on November 14, 2016.

¶27.   The notice of appeal Sandra filed in the fraud action appealed only the order granting

the Carneys’ motion to enter an agreed order to transfer and consolidate the fraud case with

the partition case entered November 23, 2016.10

       10
          After entry of the agreed order allowing transfer and consolidation, Sandra moved
to set aside the order on November 29, 2016. The Carneys responded, and the chancery
court entered its order denying Sandra’s motion to set aside its agreed transfer and
consolidation order on December 8, 2016. There was no mention of the order denying the
motion to set aside the agreed order in Sandra’s fraud action notice of appeal, nor does
Sandra raise any issues specific to her motion to set aside the agreed order in her appellate
briefing. In any event, “where [a] Rule 60 motion is filed and disposed of within the time
allowed for appeal from the underlying judgment, [it is only when] . . . the notice of appeal
speaks to the judgment and the order disposing of the motion, [that] one notice of appeal is
sufficient to bring to this court both the judgment and the Rule 60 order.” Thornton v.

                                               13
       V.     Proceedings in the Estate Action

¶28.   As noted above, Sandra and Howard filed the estate action on July 16, 2013. They

petitioned the court to (1) appoint Sandra as administratrix of the Zona Mae Oliver estate;

(2) order an accounting of certain property, including timber, cattle, and other personal

property, allegedly sold by J.C. during Zona Mae’s lifetime, and certain real property owned

by Zona Mae that J.C. allegedly mortgaged and lost through foreclosure; and (3) ascertain

an equitable amount to offset any partition of the property to adjust for “the waste committed

by [J.C.].” No action was taken in the estate case until October 17, 2016, when the Carneys

moved to dismiss Sandra’s petition for failure to state a claim or lack of jurisdiction under

Rule 12(b) of the Mississippi Rules of Civil Procedure. The Carneys argued that the claims

Sandra made in her estate case were barred by the chancery court’s prior adjudication on

these issues and entry of the Final Judgment of Partition in the partition action on September

30, 2016, and the bankruptcy court’s prior adjudication on these issues in the September 28,

2016 order entered in J.C.’s Chapter 13 bankruptcy proceeding.

¶29.   Sandra filed a pro se response, among other things, that the attorney for the Carneys

had filed “false statements and motions . . . since May 2013;” that the issues in the estate case

had not been addressed by Chancellor Lundy in the partition case; and that Chancellor Lundy

was not aware of the estate case.

¶30.   The Carneys moved to strike Sandra’s response, alleging that it contained “false,

scandalous, and libelous allegations,” and seeking sanctions against Sandra under Rule 11.


Thornton, No. 2016-CA-01773-COA, 2018 WL 3853479, at *4 (Miss. Ct. App. Aug. 14,
2018) (emphasis added). That is not the case here.

                                               14
In support of their motion and request for sanctions, and to show that Chancellor Lundy was,

in fact, aware of the estate case and the issues raised in that case, the Carneys attached the

July 2013 motion to stay the partition action (then pending before Chancellor Lundy), which

had the petition filed in the estate case attached as exhibit “A”. Also attached to the Carneys’

motion to strike was the transcript from the October 22, 2013 hearing on the motion to stay

before Chancellor Lundy in the partition action. Sandra testified at that hearing.

¶31.   Sandra responded that she was not aware of the motion to stay in the partition action

having been filed in July 2013 because she had not located it in the court file in her searches

in the past three years. According to Sandra, the motion to stay “myster[iously]” appeared

when she called the Montgomery county chancery clerk on November 8, 2016.

¶32.   After conducting a hearing held on November 14, 2016, Chancellor Daniels explained

to Sandra that she was going to grant the Carneys’ motion to dismiss because the issues

Sandra raised in the estate case had been litigated and addressed in J.C.’s bankruptcy

proceeding and in the partition proceeding. Chancellor Daniels also heard argument from

both parties regarding the Carneys’ motion to strike and request for sanctions against Sandra.

The chancellor observed that there had been a hearing before Chancellor Lundy on the

motion to stay the partition action pending resolution of the issues raised in the estate action

and that the transcript from that hearing showed that Sandra testified at that hearing. The

chancellor cautioned Sandra to be “careful about making scandalous, libelous statements

about people,” and that she “was not going to allow it here without sanctioning [her].” The

chancellor further explained to Sandra that she is “responsible for what she put in [her



                                              15
filings].” A judgment of dismissal was entered on November 14, 2016, and an order granting

the Carneys’ motion to strike, and imposing a $1,650 monetary sanction against Sandra, was

entered that same day. Sandra filed her notice of appeal in the estate action on December 13,

2016, appealing both of these orders.11

       VI.    Proceedings in the Mississippi Supreme Court and Court of Appeals

¶33.   Sandra’s notices of appeal filed in the consolidated fraud and partition actions were

docketed in the Supreme Court as Case No. 2016-1759. Her notice of appeal in the estate

action was docketed as Case No. 2016-1757. The Mississippi Supreme Court granted

Sandra’s motion to consolidate these appeals,12 and also entered an order denying Sandra’s

Motion to Stay Final Judgment and Execution of any Actions in Partitioning Property

Pending Outcome of Appeals Without Obligation of Posting Additional Supersedeas Bond



       11
          Prior to filing her notice of appeal, Sandra filed a pro se Rule 60(b) motion to set
aside the judgment for dismissal and order granting the Carneys’ motion to strike and
imposing sanctions against her on November 22, 2016. After Sandra filed her notice of
appeal, the chancery court denied Sandra’s Rule 60(b) motion on December 28, 2016. This
occurred after the time for appealing the November 14, 2016 orders had elapsed. Sandra
does not raise any issues relating to her Rule 60(b) motion in this appeal, nor could she do
so. Although the chancery court retained jurisdiction to rule on Sandra’s Rule 60(b) motion
even after she filed her notice of appeal on the underlying orders, the motion was not
“disposed of within the time allowed for appeal from the underlying judgment[s],” and thus
a separate notice of appeal is required. Thornton, No. 2016-CA-01773-COA, 2018 WL
3853479, at *4 (¶21).
       12
           The appellants in the consolidated appeals are Sandra and Howard. For ease of
reference, we collectively refer to the appellants as Sandra. We observe that although
Sandra attempted to join the Estate of Zona Mae Oliver as an appellant by adding it as a
plaintiff in the notice of appeal filed in the fraud action, there is no such entity—Sandra’s
petition to open the Estate of Zona Mae Oliver was dismissed. Further, there is no order
from the chancery court, or either appellate court, allowing addition of the Estate, even if it
existed.

                                              16
and/or in Alternative, Order an Injunction Pending Outcome of Appeals Without Posting

Additional Supersedeas Bond. The consolidated appeals were subsequently assigned to the

Court of Appeals.

                                       DISCUSSION

       I.     The Partition Action

¶34.   As detailed above, Chancellor Daniels entered a final judgment of partition in the

partition action on September 30, 2016, followed by an order denying Sandra’s motion for

a new trial or to alter or amend the final judgment, entered on November 14, 2016. We find

that the final judgment of partition constitutes a “final, appealable judgment” with respect

to the partition action, despite the subsequent consolidation of the partition and fraud actions

pursuant to the agreed order entered on November 23, 2016. As the Mississippi Supreme

Court held in United States Fidelity and Guaranty Company v. Estate of Francis ex rel.

Francis, 825 So. 2d 38 (Miss. 2002), “[c]onsolidation in no way dispenses with the need for

separate pleadings or, most importantly, separate final judgments.” Id. at 46 (¶22) (emphasis

added) (quoting Smith v. H.C. Bailey Cos., 477 So. 2d 224, 231 (Miss. 1985)).

¶35.   Sandra seeks reversal of the final judgment of partition on various procedural, legal,

and evidentiary grounds that we have combined and reorganized for discussion purposes

below. For the reasons discussed below, we affirm the chancery court’s final judgment of

partition.

              A.      Exclusion of Evidence Relating to J.C.’s Alleged Misappropriations

                      1.     Waiver



                                              17
¶36.   Sandra asserts that the chancery court erred in granting the Carneys’ motion in limine

seeking to prevent her from offering testimony or evidence at the partition hearings relating

to any claim that she may have due to J.C.’s actions. “We will not reverse a court’s grant of

a motion in limine unless we find the court abused its discretion.” Harris v. Michael, 211

So. 3d 732, 735 (¶11) (Miss. Ct. App. 2016). We find no abuse of discretion in the chancery

court excluding this evidence for the reasons explained below.

¶37.   To briefly review the procedural proceedings relevant to Sandra’s assertion, on July

25, 2014, Sandra’s counsel filed a motion to controvert the partition action, seeking an

apportionment relating to prior encumbrances and seeking an adjustment of the equities

between the parties. This motion detailed Sandra’s allegations of J.C.’s alleged wrongful

sale of timber, cattle, and other personal property belonging to the Zona Mae Oliver estate

and J.C.’s alleged wrongful pledging of 120 acres of real property belonging to Zona Mae

to secure loans. For ease of reference, we will refer to these assertions as the J.C.

misappropriation claims.

¶38.   In September 2014, the Carneys moved, in limine, for an order preventing Sandra

from offering any testimony or evidence relating to any claim that she may have due to the

actions of James C. Oliver, Jr., as set forth in her motion to controvert. The chancery court

addressed these motions, and, in relevant part, Sandra’s May 21, 2014 pro se motion to

correct facts and for equitable partition,13 at a hearing held on February 2, 2015. The

       13
         Much like her motion to controvert, in her pro se motion to correct facts and for
equitable partition, Sandra requested the court to allow evidence relating to J.C.’s alleged
fraudulent acts, and to disallow any partition of the property at issue due to those acts.
Relevant to the same issues raised in her motion to controvert, Sandra, in her motion to

                                             18
chancery court granted the Carneys’ motion in limine, finding that any claims Sandra’s

father, Howard (Sandra’s predecessor-in-title), may have had against J.C. (the Carneys’

predecessor-in-title), were barred by J.C.’s 2012 discharge in bankruptcy. The chancellor

further found that any claim Sandra derives through Howard was also barred.14

¶39.   On March 26, 2015, Sandra filed a motion to reconsider the court’s order on the

Carneys’ motion in limine. At the February 1, 2016 first partition hearing, however, Sandra’s

counsel informed the chancery court that Sandra would no longer be pursuing any objections

to the chancery court’s order excluding evidence and testimony on the J.C. misappropriation

issues. He explained that after “doing further research in the bankruptcy code,” he advised

Sandra that only the bankruptcy court could address these issues and that she needed to “start

back in bankruptcy court” to seek resolution. He concluded by explaining that they did not

pursue a motion to reconsider the chancery court’s decision granting the Carneys’ motion in



correct facts, again set forth her allegations about J.C.’s alleged fraudulent conveyance of
120 acres of the property sought to be partitioned, and J.C.’s alleged wrongful appropriation
of money received for the sale of cattle, cypress lumber, and other personal property from
the Zona Mae Oliver estate.
       14
          As noted above, on December 12, 2014, the Carneys filed an affidavit of Tarik O.
Johnson, a bankruptcy attorney who opined that Sandra's claims against J.C. and his
successors-in-title were barred by J.C.’s discharge in bankruptcy. On appeal, Sandra asserts
that the chancery court impermissibly relied on this affidavit because it was not filed sixty
days before the February 2, 2015 hearing. Sandra relies upon Rule 1.10(A) of the Uniform
Chancery Court Rules for this proposition, which provides that “[a]bsent special
circumstances the court will not allow testimony at trial of an expert witness who was not
designated as an expert witness to all attorneys of record at least sixty days before trial.”
Even assuming Rule 1.10(A) would apply in this situation, the hearing transcript indicates
that no objection was made to the Johnson affidavit, thus this issue was not preserved for
appeal. In any event, we find no merit in this assertion because the transcript indicates that
the court relied upon its own legal analysis in making its determination.

                                             19
limine because, “quite honestly, . . . we came to the conclusion there wasn’t any basis for it.”

¶40.   In short, Sandra’s counsel informed the chancery court that Sandra would not pursue

any objections, as there was no basis to them, and these issues were to be resolved by the

bankruptcy court. Accordingly, Sandra cannot secure appellate reversal based upon

objections that she effectively withdrew prior to the partition hearing. See Coleman v. Ford

Motor Co., 70 So. 3d 223, 235 (¶42) (Miss. Ct. App. 2011) (withdrawal of objection to jury

instruction after modification failed to preserve objection for appeal).

                       2.     J.C.’s 2012 Discharge in Bankruptcy and Res Judicata

¶41.   Even if Sandra had preserved this issue, we find no error in the chancery court’s ruling

excluding evidence or testimony on the J.C. misappropriation issues at the partition trial. We

find that these issues were barred by J.C.’s 2012 discharge in bankruptcy and under the

doctrine of res judicata, as we address below.

                             a.     Overview of Relevant Facts Regarding J.C.’s 2012
                                    Discharge in Bankruptcy and its Effect

¶42.   The record reflects that J.C. filed for Chapter 13 bankruptcy in June 2007, received

a discharge in bankruptcy in June 2012, and the case was closed in December 2012. In her

motion to correct facts filed in the chancery court, Sandra admitted that both she and her

father and predecessor-in-interest, Howard, knew about J.C.’s bankruptcy proceeding and

were aware of many of his alleged misappropriations. In particular, the motion to correct

facts provided that:

       Howard received “papers” in June 2007 informing him that he was listed as a
       creditor in J.C.’s bankruptcy proceeding;



                                              20
       Howard knew about the loan on the 120-acre piece of property since February
       2007;

       Howard visited the Zona Mae Oliver home and property in 2007 and “found
       out J.C. had sold all of the cows and some cypress timber out of the barn and
       he was not sure of what else he may have gotten out of the house and sold;”

       Howard was represented by counsel in connection with J.C.’s bankruptcy, and
       that Howard “did, in fact, have a claim filed in the Bankruptcy Case #07-
       50836 for James Calvin Oliver, Jr.” for $26,000 relating to the sale of cattle;
       and

       As of 2007, Sandra had access to eighty pages of Zona Mae’s checking
       account records.

¶43.   On January 29, 2016 Sandra filed a motion to reopen the J.C. bankruptcy estate,

reiterating the same claims she attempted to assert in the partition action, i.e, the J.C.

misappropriation claims.15 The chancery court’s ruling is supported by the bankruptcy

court’s September 28, 2016 decision denying Sandra’s motion to reopen J.C.’s Chapter 13

bankruptcy proceeding to assert her claims regarding J.C.’s use of the 120-acre parcel as

collateral on a mortgage, and his alleged wrongful conversion of cattle, funds, timber and

various pieces of Zona Mae Oliver’s personal property. In re Oliver, Case No. 07-50836,

at 9-11 (S.D. Miss. September 28, 2016). In that decision, the bankruptcy court found that

“Howard (Sandra’s predecessor-in-interest) had adequate notice of J.C.’s bankruptcy to file

a nondischargeability action, and failed to do so or to request an extension of the deadline.

Therefore, Sandra, on behalf of Howard, is now time-barred from filing a

       15
         There had been an agreed ninety-day stay entered in the partition case on July 2,
2015 within which Sandra was to seek to reopen the J.C. bankruptcy proceedings to assert
the J.C. misappropriation claims described above. The chancery court found that Sandra
took no action during this ninety-day time period and denied her request to continue that stay
once the 90 days had run.

                                             21
nondischargeability action.” Id. at 9; see id. at 11 (“The Court . . . finds that Howard’s actual

notice of [J.C.’s bankruptcy] approximately seventeen days, at the latest, before the bar date

was sufficient notice to permit Howard to take steps to protect his rights. Sandra, on behalf

of Howard, is now barred from bringing any nondischargeability claims.”). See also In re

Oliver, No. 07-50836, 2017 WL 1323467, at *5-6 (S.D. Miss. Apr. 10, 2017). The doctrine

of res judicata likewise supports the chancery court’s decision, as addressed below.

                               b.    Standard of Review for Res Judicata and the
                                     Applicable Law

¶44.   Whether res judicata applies “is a question of law and will therefore be reviewed de

novo.” Griffin v. ABN AMRO Mortg. Grp. Inc., 232 So. 3d 189, 191 (¶7) (Miss. Ct. App.

2017). “The doctrine of res judicata bars parties from litigating claims ‘within the scope of

the judgment’ in a prior action.” Hill v. Carroll Cty., 17 So. 3d 1081, 1084 (¶8) (Miss. 2009)

(quoting Anderson v. LaVere, 895 So. 2d 828, 832 (Miss. 2004)). “This includes claims that

were made or should have been made in the prior suit.” Id.; see Fason v. Trussell Enters.

Inc., 120 So. 3d 454, 459-61 (¶¶14-22) (Miss. Ct. App. 2013) (judgment debtor’s claims

against judgment creditor for malicious prosecution, false imprisonment, and abuse of

process for filing a criminal action to collect a civil debt were barred by prior judgment

creditor’s collection suit under doctrine of res judicata). The doctrine is one “of public policy

designed to avoid the expense and vexation attending multiple lawsuits, conserve judicial

resources, and foster reliance on judicial action by minimizing the possibilities of

inconsistent decisions.” Id.

¶45.   “In applying the doctrine of res judicata, there are four identities which must be


                                               22
present: (1) identity of the subject matter of the action; (2) identity of the cause of action; (3)

identity of the parties to the cause of action; and (4) identity of the quality or character of a

person against whom the claim is made.” EMC Mortg. Corp. v. Carmichael, 17 So. 3d 1087,

1090 (¶10) (Miss. 2009) (internal quotation mark omitted). “In addition to the four identities,

a fifth requirement is that the prior judgment must be a final judgment that was adjudicated

on the merits.” Id. We find that these factors are met in this case.

                                      i.     Identity of the Subject Matter of the Action

¶46.    The supreme court has described subject matter identity “as identity in the thing sued

for,” Hill, 17 So. 3d at 1085 (¶12), or “the ‘substance’ of the lawsuit.” Id. (quoting Harrison

v. Chandler-Sampson Ins. Inc., 891 So. 2d 224, 233 (¶26) (Miss. 2005)). J.C.’s bankruptcy

action concerned any claims that Howard may have had against J.C., including those with

respect to the property that is the subject of the partition action. Any interest Sandra has in

this property was derived through the May 11, 2009 quitclaim deed from Howard which

transferred whatever interest he had in the property to her. Likewise, the only interest the

Carneys have in the subject property was derived through the October 11, 2012 warranty

deed from J.C. to them. This identity element is therefore met because the relevant subject

matter at issue in both actions is J.C.’s alleged misappropriations that were claims Howard

had against J.C.—claims that might have affected Howard and Sandra’s alleged entitlement

to credit by an adjustment to their ownership in the property.

                                      ii.    Identity of the Cause of Action

¶47.   “Under this factor, the cause of action in each suit must be the same.” Fason v.



                                                23
Trussell Enterprises Inc., 120 So. 3d 454, 459 (¶16) (Miss. Ct. App. 2013). “Cause of

action” has been defined by the supreme court “as the underlying facts and circumstances

upon which a claim has been brought.” Hill, 17 So. 3d at 1085 (¶13). We find that this

element is met. The facts and circumstances surrounding both J.C.’s bankruptcy and

Howard’s potential claims and the issues the Carneys sought to exclude in the partition action

are the same—J.C.’s alleged misappropriations for which Howard would have a claim in

bankruptcy.

                                    iii.   Identity of the Parties to the Cause of Action

¶48.   The “identity of parties” element is met where both actions “involve[] the same parties

or persons standing in privity to the parties.” Johnson v. Howell, 592 So. 2d 998, 1002

(Miss. 1991); see also Fason, 120 So. 3d at 460 (¶18) (“‘Privity’ is a broad concept that

requires us to look at the surrounding circumstances in order to determine whether a claim

preclusion is justified.”). As noted above, J.C.’s bankruptcy action concerned any claims that

Howard may have had against J.C., including those with respect to the subject property. As

the bankrupt, J.C. was a party to the bankruptcy action. As someone who possessed a claim

against J.C., Howard was also a party to the bankruptcy action. The parties to the partition

action are Sandra and the Carneys. As Howard’s successor-in-interest, the only interest

Sandra has in the subject property was derived through the May 2009 quitclaim deed from

Howard to her. Likewise, as J.C.’s successors-in-interest, the only interest the Carneys have

in the subject property was derived through the October 11, 2012 warranty deed from J.C.

to them. Both actions, therefore, involve the same parties or their privies. This element is



                                             24
met.

                                    iv.    Identity of the Quality or Character of a
                                           Person Against Whom the Claim is Made

¶49.   The supreme court has acknowledged that it “has not explicitly defined the identity

of the quality or character of a person against whom the claim is made” element of res

judicata. Hill, 17 So. 3d at 1086 (¶18). As explained in one respected Mississippi treatise:

       [A]ctual decisions demonstrate that two of the required identities, identity of
       the subject matter and identity of the quality or character of the person against
       whom the claim is brought, are redundant with the other two criteria . . . .
       [A]ny case that satisfies the same party requirement will inevitably meet the
       requirement of the identity of the quality and character of the person against
       whom a claim is brought.

2 Donald Campbell & Justin Matheny, MISSISSIPPI CIVIL PROCEDURE—MISSISSIPPI PRACTICE

SERIES, § 24:2 at 153 (2018 ed.). Because the “same party” element is met, we find that this

“character” identity element is likewise met.

                                    v.     The Final Judgment Requirement

¶50.   The fifth requirement for res judicata to apply is that “the prior judgment must be a

final judgment that was adjudicated on the merits.” EMC Mortg. Corp., 17 So. 3d at 1090

(¶10). J.C.’s discharge in bankruptcy meets the “final judgment” requirement. Howard and

Sandra had notice of J.C.’s bankruptcy proceeding and knew about numerous circumstances

relating to Howard’s alleged misappropriations. They plainly had ample notice so as to allow

Howard to take steps to protect his rights in that proceeding, but he did not do so.

¶51.   The doctrine of res judicata bars Howard and Sandra, his successor-in-interest, from

raising these same claims in the chancery court. See Price v. Pereira, 172 So. 3d 1168, 1173-



                                              25
74 (¶¶23-24) (Miss. Ct. App. 2014) (bankruptcy court’s judgment operates as res judicata on

all issues, claims, and defenses that could have been brought in that proceeding, and thus res

judicata bars defendant’s attempt to relitigate these issues in the state court proceeding.); see

also Phillips v. Kelley, 72 So. 3d 1079, 1083 (¶16) (Miss. 2011) (“As [the plaintiffs] failed

to avail themselves of procedures available in and through bankruptcy court, this Court is

barred by the doctrine of res judicata from entertaining a collateral attack on the bankruptcy

court’s order or its jurisdiction.”). Accordingly, we find this assignment of error without

merit.

                B.     The February 1, 2016 and September 27, 2016 Partition Hearings
                       and Entry of the Final Judgment of Partition

¶52.     Sandra asserts a number of assignments of error relating to how the chancery court

conducted the partition proceedings, which we have combined to facilitate discussion.

Sandra contends that the chancery court erred by (1) entering the final judgment in the

partition action when the estate and fraud actions were still “open and active;” (2) not

allowing Sandra to be heard on her objections to the commissions’ report prepared for the

final partition hearing; (3) allowing the Carneys’ credit for back ad valorem taxes paid for

2009-2012, but not allowing Sandra credit for ad valorem taxes she paid in 2007 and 2008

and one-half equity credit in the 120 acres of “lost” estate property.

¶53.     “For property-partition cases, the standard of review is whether the appellate court

finds manifest error in the chancellor’s decision. If so, the court will reverse the chancellor’s

findings.” Sims v. Mathis, 192 So. 3d 1109, 1111 (¶7) (Miss. Ct. App. 2016). “Questions

of law are reviewed de novo.” Id. We find no merit in these assignments of error for the


                                               26
reasons addressed below.

                      1.      Entry of the Final Judgment of Partition When the Estate
                              and Fraud Actions Were Pending

¶54.   Regarding Sandra’s first assignment of error, our review of the record reveals no error

in the chancery court entering the final judgment of partition while the estate and fraud

actions were pending, and we certainly do not find the “manifest error” that is necessary to

warrant reversal. The partition and fraud actions were not consolidated when the final

judgment of partition was entered on September 30, 2016, so there was no reason for

Chancellor Daniels to delay entry of the final judgment of partition. The order transferring

the fraud case to Chancellor Daniels and consolidating the partition and fraud cases was not

approved by Chancellor Lynchard and entered until November 23, 2016, nearly a month after

Chancellor Daniels entered the final judgment of partition.

¶55.   As to the estate action, the partition action had already been pending for two months

before the estate action was filed. There was no legal or practical reason for the chancellor

to delay resolution of the partition action because the estate action was pending. On the

contrary, the court in which the second parallel action was filed (i.e., the estate action)

“ordinarily should hold it in abeyance pending the first action . . . [as] [f]inal judgment in the

first certainly precludes further prosecution of the second.” DeFoe v. Great S. Nat. Bank

N.A., 547 So. 2d 786, 788 (Miss. 1989).

                      2.      Objections to the Commissioners’ Valuation and Partition
                              Report

¶56.   Sandra’s second assertion, that the chancery court erred when it would not hear her



                                               27
objections to the commissioners’ valuation and partition report, is without merit because she

never served written objections to the report within ten days of it having been filed on May

16, 2016, or at any time before the September 27, 2016 final partition hearing. Mississippi

Rule of Civil Procedure 53(g)(2) governs how Sandra was required to object to the

commissioners’ report. It provides:

       The court shall accept the master’s[16] findings of fact unless manifestly wrong.
       Within ten days after being served with notice of the filing of the report any
       party may serve written objections thereto upon the other parties. Application
       to the court for action upon the report and upon objections thereto shall be by
       motion and upon notice as provided by Rule 6(d). The court after hearing may
       adopt the report or modify it or may reject it in whole or in any part or may
       receive further evidence or may recommit it with instructions.

M.R.C.P. 53(g)(2) (emphasis added).

¶57.   In Sims, 192 So. 3d at 1111 (¶8), this Court rejected the same argument Sandra makes

in this case. In that property-partition action, the Mosses claimed that they had objections

to the special master’s reports dividing the property at issue, and that the chancery court

violated their due process rights by accepting the report without hearing their objections.

Among other reasons, we found this argument without merit because “[t]he Mosses never

filed an objection to either of the special master’s reports; therefore, they were not entitled

to [be heard on their objections].” Id. For the same reason, we reject Sandra’s assignment

of error on this point.

                      3.     Credits Relating to Ad Valorem Taxes and the “Lost” 120
                             Acres



       16
         The term “master” includes “a referee, an auditor, an examiner, a commissioner,
and a special commissioner.” M.R.C.P. 53(a) (emphasis added).

                                              28
¶58.   Sandra asserts that the chancery court erred when it gave the Carneys $5,350.15 credit

for back ad valorem taxes paid on the property in 2009-2012 when they did not own the

property, but did not allow Sandra credit for the 2007-08 ad valorem taxes that she paid when

she and Howard were owners when the taxes were paid in 2009 and 2010. Sandra further

asserts that the chancery court erred when it did not give her one-half equity credit in the 120

acres of “lost” estate property. We find no error in the chancery court’s determinations on

these issues.

¶59.   A brief overview of the February 1 and September 27, 2016 partition hearings is

necessary to address these issues. At the February 1 partition hearing, counsel for the parties

presented five agreed-to exhibits to the chancellor, including a summary of the $10,700.31

in tax payments that the Carneys had made from 2009 through 2015. Sandra’s counsel and

the Carneys’ counsel then presented the chancellor with an agreed order as to certain

stipulated facts and delineating how the partition would be conducted (the First Judgment of

Partition).

¶60.   The chancellor signed the agreed-to First Judgment for Partition.            That order

appointed two commissioners to prepare a valuation and partition report, and specified that

the plaintiffs (the Carneys) “have presented evidence that they have paid the ad valorem taxes

for the years of 2009 through 2015 in an aggregate sum of $10,700.31 and they are entitled

to a credit against the value due to the defendant, Sandra Jean Oliver, for one-half that sum,

that is, $5,350.15.” The order further provided that a final hearing would be held confirming

the commissioners’ report and addressing all other issues raised by the pleadings, including



                                              29
any taxes paid by Sandra.

¶61.   The commissioners’ report was filed on May 16, 2016, and on September 27, 2016,

a hearing was held in which the chancery court approved the commissioners’ report and

heard testimony regarding Sandra’s payment of taxes on the property. The final judgment

of partition was entered on September 30, 2016, which, in relevant part, reiterated the

stipulated provision from the first partition order regarding the ad valorem taxes paid by the

Carneys and the $5,350.15 credit; and denied Sandra’s request for reimbursement for certain

property taxes she paid in 2006-08.

¶62.   Based on these facts, there is no merit in Sandra’s assertion that the chancery court

erred when it allowed the Carneys the $5,350.15 credit for back ad valorem taxes paid in

2009-2012. The record reflects that the parties stipulated to the $5,350.15 credit in the

agreed-to first judgment of partition and, accordingly, Sandra’s counsel did not object to the

summary of the tax payments made by the Carneys for that time period entered as an exhibit

at the first partition hearing. Sandra is bound by that stipulation and any purported error in

the chancery court’s finding on this issue has been waived. See Wilbourn v. Hobson, 608 So.

2d 1187, 1189 (Miss. 1992) (“A stipulated fact is one which both parties agree is true. . . .

[T]he factual issues addressed in the [stipulation] are forever settled and excluded from

controversy. Neither party can later change positions.”).

¶63.   We also find no merit in Sandra’s assertion that the chancery court erred because it

did not allow her credit for ad valorem taxes she paid in 2007 and 2008 or one-half equity

credit in the 120 acres of “lost” estate property. The chancery court found that these claims



                                             30
should have been raised and litigated in J.C.’s bankruptcy proceeding, and because they were

not, they are barred. We agree with the chancery court’s determination. As addressed in

detail above, any such claims relate to J.C.’s alleged misappropriations and are barred by

J.C.’s discharge in bankruptcy and under the doctrine of res judicata. Price, 172 So. 3d at

1173-74 (¶¶23-24); Phillips, 72 So. 3d at 1083 (¶16).

               C.      The Rule 59 Motion for a New Trial or to Alter or Amend the Final
                       Judgment of Partition

¶64.   Sandra asserts that the chancery court erred in denying her motion for a new trial or

to alter or amend the final judgment of partition, brought pursuant to Mississippi Rule of

Civil Procedure 59. Sandra also asserts that the chancery court erred by striking the

memorandum of law that Sandra filed in support of her Rule 59 motion. We find no merit

in either assertion.

¶65.   “Under Rule 59, the trial judge has discretion to grant a new trial or to amend the

judgment if convinced that a mistake of law or fact has been made, or that injustice would

attend allowing the judgment to stand.” McNeese v. McNeese, 119 So. 3d 264, 272 (¶20)

(Miss. 2013) (internal quotation mark omitted). “Review of a trial judge’s denial of a . . .

Rule 59 motion for a new trial is limited to abuse of discretion.” Id. Our review of Sandra’s

“1st Amended” Rule 59 motion, her supporting brief, the exhibits to that brief totaling 117

pages, and the transcript of the hearing on that motion, reveals that the chancery court did not

abuse its discretion in denying Sandra’s motion.

¶66.   As stated in Sandra’s brief, her “primary issue” on appeal with respect to this

assignment of error is that a new trial was warranted based upon the chancery court’s ruling

                                              31
excluding testimony or evidence of J.C.’s alleged misappropriations, and the court’s failure

to allow Sandra credit in the partition lawsuit with respect to these acts. Indeed, at the

hearing on her motion, Sandra acknowledged that the voluminous exhibits attached to the

brief supporting her motion constituted “[t]he proof of all the evidence that was never

allowed to be presented.” As we held above, we find no error in the chancery court’s rulings

excluding evidence or testimony on these issues, and we find no abuse of discretion in the

chancery court denying Sandra’s Rule 59 motion in which she largely attempts to relitigate

these issues. See McNeese, 119 So. 3d at 273 (¶23) (finding no abuse of discretion in the

chancellor’s denial of the appellant’s motion for a new trial or to alter or amend the

judgment, as it was “merely an attempt to relitigate the case”); see also Ford v. Mississippi

Dep’t of Human Servs., 158 So. 3d 1241, 1246 (¶17) (Miss. Ct. App. 2015).

¶67.   In her Rule 59 motion and supporting brief, Sandra also asserted that the chancery

court erred in “allowing . . . [pleadings] to be purposefully filed within the wrong cause;” and

“in not acknowledging ineffective assistance of counsel . . . [that] forever prejudiced the

outcome of [her] case.” The first point is simply not grounds for a new trial on its face. It

is not the chancellor’s responsibility to monitor filings with the chancery clerk.

¶68.   As to the second point, “there is no right to counsel [at all] in a civil proceeding.”

Chasez v. Chasez, 957 So. 2d 1031, 1038 (¶21) (Miss. Ct. App. 2007). Sandra, however,

appears to argue that she is entitled to a new trial based upon the purported ineffectiveness

of her various lawyers throughout the litigation. Sandra cites no legal authority for this

proposition in the civil context. On the contrary, “the constitutional right to effective



                                              32
assistance of counsel does not apply to a civil proceeding.” DeMyers v. DeMyers, 742 So.

2d 1157, 1162 (¶20) (Miss. 1999); see also Chasez, 957 So. 2d at 1038 (¶21). We therefore

find that this second this point does not warrant reversal of the chancery court’s denial of

Sandra’s Rule 59 motion.

¶69.   Finally, Sandra asserts that the chancery court erred in striking the memorandum of

law that she filed in support of her Rule 59 motion. We find it is unnecessary for us to decide

this issue in light of our review of the record, including Sandra’s brief and accompanying

exhibits, in determining that there was not an abuse of discretion on the chancellor’s part in

denying Sandra’s Rule 59 motion. As such, there is no need to consider whether the

chancery court erred in striking Sandra’s brief and accompanying exhibits. See Leatherwood

v. State, 548 So. 2d 389, 399 (Miss. 1989) (finding it unnecessary to decide certain points on

appeal in view of the conclusion reached by the court).

       II.    The Fraud Action

¶70.   We find that Sandra’s fraud action appeal is premature, and, therefore, we dismiss it

without prejudice to Sandra’s right to pursue further proceedings after entry of a final

judgment in the fraud action. To elaborate, nearly a month after Chancellor Daniels entered

the final judgment in the partition action, Chancellor Lynchard granted the Carneys’ motion

to enter an agreed order transferring the fraud action to Chancellor Daniels, and consolidating

the partition and fraud cases for further proceedings before Chancellor Daniels. He entered

his order to this effect on November 23, 2016. Sandra filed a notice of appeal in the fraud

case, seeking only to appeal entry of this agreed order. “An appeal is not a matter of right



                                              33
but is subject to the statutory provisions, and the basic requirement is that appeals are proper

only if from a final judgment.” Wigington v. McCalop, 191 So. 3d 124, 126 (¶3) (Miss.

2016); see also Miss. Code Ann. § 11-51-3 (Rev. 2014) (“An appeal may be taken to the

Supreme Court from any final judgment of a circuit or chancery court.” (Emphasis added)).

In order “to be a final decree appealable under section 11-51-3, the decree must be final as

to all parties and all issues,” and this Court is without jurisdiction to consider a direct appeal

of a non-final judgment. Turner v. Everett, 13 So. 3d 311, 313 (¶12) (Miss. Ct. App. 2008);

see also M.R.C.P. 54(a) and 54(b); M.R.C.P. 58; M.R.A.P. 3; M.R.A.P. 4.

¶71.     The agreed order for transfer and consolidation is not a “final” judgment because it

does not dispose of all the issues before the chancery court in the fraud case. On October 17,

2016, the Carneys moved to dismiss Sandra’s fraud lawsuit and sought sanctions against

Sandra for filing a frivolous complaint. No order or judgment has been entered on this

motion. Additionally, Sandra filed a pro se motion in the fraud lawsuit seeking the

appointment of a temporary administrator for Zona Mae Oliver’s estate to the extent

necessary to join the estate as a party in the fraud lawsuit. Sandra also requested an

“injunction against the partition action” pending appeal of the final judgment of partition.

This motion likewise remains outstanding.

¶72.     Accordingly, we dismiss Sandra’s fraud action appeal due to the lack of a final,

appealable judgment in that action without prejudice her right to pursue further proceedings

after entry of a final judgment in that action. See U.S. Fid. & Guar. Co., 825 So. 2d at 46

(¶22).



                                               34
       III.   The Estate Action

¶73.   Sandra raises four assignments of error in her estate appeal. She asserts that (1) the

chancery court abused its discretion and applied the wrong legal standard in dismissing the

estate case; (2) the chancery court erred in striking her response to the Carneys’ motion to

dismiss; (3) the chancery court erred in imposing sanctions in the amount of $1,650.00

against her; and (4) she and her father were deprived of their due process rights when the

chancellor did not recuse herself due to her alleged bias and hostility towards Sandra. This

fourth assignment of error includes assertions regarding Chancellor Daniels’s conduct in the

partition and estate action. We address each of these assignments of error in turn.

              A.     Dismissal of Sandra’s Estate Action Based Upon the
                     Doctrine of Res Judicata17

¶74.   The chancery court dismissed Sandra’s estate petition based upon the res judicata

effect of the final judgment of partition and the order entered by the bankruptcy court on

September 28, 2016, denying Sandra’s motion to reopen J.C.’s Chapter 13 bankruptcy

proceedings. We affirm the chancery court’s dismissal of Sandra estate action on res judicata

grounds. Having addressed the standard of review and general res judicata principles above,

we simply reiterate that “[t]he doctrine of res judicata bars parties from litigating claims

       17
          We recognize that J.C. filed a petition for Chapter 13 bankruptcy in the United
States Bankruptcy Court for the Southern District of Mississippi, Case No. 07-50836, and
that he received a discharge in bankruptcy after completion of his Chapter 13 plan on June
11, 2012. We base our decision on res judicata principles, however, because the chancery
court’s judgment of dismissal provides that Oliver’s petition “is dismissed for the reasons
set out in the [Carneys’] motion,” which was based upon the res judicata effect of the final
judgment of partition and the order entered by the bankruptcy court on September 28, 2016,
denying Sandra’s motion to reopen J.C.’s Chapter 13 bankruptcy proceedings. That same
argument was addressed by the parties on appeal.

                                             35
within the scope of the judgment in a prior action . . . includ[ing] claims that were made or

should have been made in the prior suit.” Hill, 17 So. 3d at 1084 (¶8) (internal quotation

marks omitted).

¶75.   The four identities that must be present in applying the doctrine of res judicata are the

identity of “the subject matter of the action; . . . the cause of action; . . . the parties to the

cause of action; . . . and the quality or character of a person against whom the claim is made.”

EMC Mortg. Corp., 17 So. 3d at 1090 (¶10). Additionally, “the prior judgment must be a

final judgment that was adjudicated on the merits.” Id.

¶76.   The first identity element is met in this case because the subject matter presented in

both the partition and estate actions is the same—the allocation of the Zona Mae Oliver’s

estate. See Hill, 17 So. 3d at 1085 (¶12).

¶77.   Under the second identity element, “cause of action” is defined “as the underlying

facts and circumstances upon which a claim has been brought.” Id. at 1085 (¶13). We find

that this element is met. The facts and circumstances surrounding both the partition and the

estate actions are the same—the parties’ respective interests in the property in the Zona Mae

Oliver estate. Indeed, in her motion to consolidate the partition, fraud, and estate appeals,

Sandra acknowledges that all three cases “are intertwined and involve the same or similar set

of facts and issues.”

¶78.   The third “identity of parties” element is met where both actions “involve[] the same

parties or persons standing in privity to the parties.” Johnson, 592 So. 2d at 1002. The

Carneys filed the partition action against Sandra, who gained her interest in the subject



                                               36
property through her father, Howard. Sandra and Howard initiated the estate action. The

Carneys and J.C., the Carneys’ predecessor-in-title, were named as additional “interested

parties.” The same parties, or those in privity, are involved in both actions. This element is

met.

¶79.   The fourth identity element, relating to the “identity of the quality or character of a

person against whom the claim is made,” has not been explicitly defined under Mississippi

jurisprudence. Hill, 17 So. 3d at 1086 (¶18). However, as explained by one commentator,

“any case that satisfies the same party requirement will inevitably meet the requirement of

the identity of the quality and character of the person against whom a claim is brought.” 2

Donald Campbell & Justin Matheny, MISSISSIPPI CIVIL PROCEDURE—MISSISSIPPI PRACTICE

SERIES, § 24:2 at 153 (2018 ed.). In this case the ultimate goal of both the partition and the

estate actions is to determine the proper division of the Zona Mae Oliver estate between the

two current interestholders, the Carneys and Sandra. Because Sandra and the Carneys are

parties to both actions, and their character and identity are the same in both actions (i.e.,

current interestholders), we find that this fourth identity factor is met.

¶80.   Lastly, we find that the “final judgment” requirement is also met here. As detailed

above, the claims Sandra makes in the estate petition regarding J.C.’s alleged

misappropriations—that J.C. allegedly misappropriated certain real and personal property,

including timber, cattle, and other personal property belonging to Zona Mae or her estate and

120 acres owned by Zona Mae—are the precise claims Sandra made at least three times in

the partition action. They are also the same claims that she alleges entitle her to an equitable



                                              37
offset in the partition action.18 The chancery court addressed Sandra’s claims for an equitable

offset based on these allegations in several hearings in the partition action, finally

culminating in the September 30, 2016 final judgment for partition.

¶81.   Further, Sandra moved to stay the partition action on February 1, 2016, pending

resolution of her pro se motion to reopen J.C.’s bankruptcy estate. In that motion,19 Sandra

reiterated the same claims regarding J.C.’s alleged wrongful conduct with respect to the real

and personal property in the Zona Mae Oliver estate. On September 28, 2016, the court

denied Sandra’s motion. In denying Sandra’s motion for a new trial or to alter or amend the



       18
          For ease of reference, we briefly summarize Sandra’s pleadings in the partition
action. First, on July 16, 2013, Sandra filed a motion to stay the partition action, in which
she claimed she had a right to an equitable offset in the interest J.C. deeded the Carneys.
Sandra testified at length regarding J.C.’s alleged depletion of the estate, including the 120
acres belonging to the estate that J.C. allegedly lost in foreclosure, and the money that J.C.
allegedly misappropriated for the sale of timber, cattle, and other personal property
belonging to the Zona Mae Oliver estate. Second, on July 25, 2014, Sandra’s counsel filed
a motion to controvert the partition action, seeking an apportionment relating to prior
encumbrances and for an adjustment of the equities between the parties. This motion again
detailed Sandra’s allegations of J.C.’s alleged wrongful sale of timber, cattle, and other
personal property belonging to the Zona Mae Oliver estate, and J.C.’s alleged wrongful
pledging of 120 acres of real property belonging to Zona Mae to secure loans. Third, Sandra
filed a pro se motion to correct facts and for equitable partition that does not appear to have
been filed until June16, 2015. In that motion, Sandra repeated her allegations relating to
J.C.’s alleged fraudulent conveyance of 120 acres of the property sought to be partitioned,
and repeated her allegations in more detail regarding, among other issues, J.C.’s alleged
wrongful appropriation of money received for the sale of cattle, cypress lumber, and other
personal property from the Zona Mae Oliver estate. Sandra also set forth her legal
arguments rebutting the Carneys’ judicial estoppel defense, laches defense, and their
“unclean hands” defense. The chancery court considered, heard, and ruled upon, each of
these motions.
       19
        The motions filed by Sandra in the bankruptcy proceeding were made a part of the
chancery court record in the partition action at the February 1, 2016 hearing on Sandra’s
motion to reinstate the stay.

                                              38
final judgment for partition, the chancery court observed that the bankruptcy court’s

September 28, 2016 decision also barred Sandra’s claims.

¶82.   Sandra asserts that because she has appealed the final judgment for partition, it does

not meet the “final” judgment requirement for res judicata to apply. This argument is

incorrect. “[A] decision by a trial court, even if the subject of an ongoing appeal, is entitled

to preclusive effect.”     2 Donald Campbell & Justin Matheny, MISSISSIPPI CIVIL

PROCEDURE—MISSISSIPPI PRACTICE SERIES, § 24:6 at 164 (2018 ed.), citing Smith v. Malouf,

597 So. 2d 1299, 1301-02 (Miss. 1992) (holding that “the appeal [of a trial court judgment]

to the Supreme Court of Mississippi does not prevent it from being res adjudicata”). Because

the final judgment for partition was a final judgment on the merits, and the four identities

addressed above were met, the chancery court appropriately dismissed the estate action as

barred by the doctrine of res judicata.

              B.      Procedural Issues Relating to the Carneys’ Motion to
                      Dismiss

¶83.   Sandra asserts that res judicata should not bar the estate action for a number of

procedural reasons. We find no merit in her arguments as detailed below.

                      1.     Informal Stay of the Estate Action

¶84.   Sandra first contends that the chancery court “had no right to stay the [estate case]”

and allow the partition action to proceed. We disagree and we reject this argument for the

same reason we rejected Sandra’s argument above that the chancery court erred in entering

a final judgment in the partition action when the estate and fraud actions were pending. The

partition action was pending when the estate case was filed two months later. Under similar


                                              39
circumstances in which two parallel cases were filed, the Mississippi Supreme Court

recognized that the court “before which the second action is filed . . . ordinarily should hold

[that action] in abeyance pending the first action. [citations omitted]. Final judgment in the

first certainly precludes further prosecution of the second.” DeFoe, 547 So. 2d at 788. Just

as the supreme court recommended in DeFoe, the estate action was informally stayed

pending a final judgment in the partition action.

                     2.      Judicial Notice

¶85.   Sandra next asserts that the chancery court, in ruling that the estate action was barred

by res judicata, was not authorized to take judicial notice of the partition and bankruptcy

judgments and the pleadings or transcripts that were not made part of the estate proceeding.20

We recognize that generally “a trial court is not authorized to take judicial notice of cases

pending or previously disposed of in the same court but outside the record in the case before

it.” Wholey v. Cal-Maine Foods Inc., 530 So. 2d 136, 138 (Miss. 1988) (quoting Glass v.

Armstrong, 330 So. 2d 57, 58 (Fla. Dist. Ct. App.1976)); Viator v. Stone, 201 Miss. 487, 496,

29 So. 2d 274, 276, suggestion of error overruled, 201 Miss. 487, 29 So. 2d 658 (1947).21



       20
          The relevant bankruptcy pleadings were filed in the partition proceeding as exhibits
in hearings on Sandra’s various motions in that action. The Carneys identified, but did not
attach, the final judgment of partition and the bankruptcy order. The estate action also does
not contain the pleadings or hearing transcripts from the partition action, with the exception
of the first motion to stay the partition action filed by Sandra’s counsel, and the transcript
of the hearing on that motion.
       21
         In Viator, 201 Miss. at 496, 29 So. 2d at 276, the supreme court recognized that,
“generally, an issue whether prior cases between parties involved [the] same issues as [the]
present case should be determined on pleadings and proof, and [the trial] court could not
have recourse to judicial notice in such situation.”

                                               40
¶86.   The reason for this general rule, however, is that without having the pleadings from

the other action in the record, the appellate court would not be able to review, de novo,

whether the trial court appropriately applied the doctrine of res judicata. See Viator, 201

Miss. at 496, 29 So. 2d at 276; see also Glass, 330 So. 2d at 58. We find that an exception

to the general rule exists here because we have before us a consolidated appeal containing

the record from the partition, fraud, and estate actions. Indeed, in her motion to consolidate

these appeals, Sandra acknowledged that all three cases “are intertwined and involve the

same or similar set of facts and issues on appeal . . . [and] [t]hat the interests of justice,

judicial economy, and convenience to the parties would be well-served consolidating these

matters.”

¶87.   We find that under these circumstances, and in the interest of judicial economy, the

chancery court appropriately took judicial notice of the partition and bankruptcy judgments

and pleadings in the partition action in determining that the estate action was barred by res

judicata. See Griffin, 232 So. 3d at 191 (¶¶5-10) (finding that the trial court appropriately

granted defendants’ motion to dismiss on res judicata grounds based upon pleadings and

judgment of dismissal previously entered in federal court);22 see also Cinel v. Connick, 15

F.3d 1338, 1343 (5th Cir. 1994) (finding that a district court appropriately took judicial

       22
         We recognize that in Eubanks v. Wade, 220 So. 3d 247, 251 (¶20) (Miss. Ct. App.
2017), this Court held that a “prior judgment that [the defendant] previously obtained
against [the plaintiff] is a matter outside the complaint that should not be considered in a
motion to dismiss.” Although we recognized in Eubanks that the defendant had raised “an
important and possibly valid affirmative [res judicata] defense,” we remanded that case to
the circuit court for further proceedings consistent with our opinion. Id. For the reasons
identified above, Eubanks is distinguishable from the case now before us and is not binding
precedent here.

                                             41
notice of a consent judgment in a prior action in deciding a motion to dismiss based upon res

judicata grounds); Yan Won Liao v. Holder, 691 F. Supp. 2d 344, 352 (E.D.N.Y. 2010) (a

district court took judicial notice of proceedings in a related action in ruling on defendants’

motion to dismiss based on the res judicata effect of the judgment in the related action).23

                      3.     Conversion to Summary Judgment Motion

¶88.   Sandra also asserts that the chancery court converted the Carneys’ motion to dismiss

to a summary judgment motion by considering pleadings and proceedings from the partition

action, which are outside the petition to open the estate. Citing Sullivan v. Tullos, 19 So. 3d

1271, 1274-76 (¶¶14-19) (Miss. 2009), Sandra contends that by doing so, the chancery court

erred because it did not provide the ten days’ notice of conversion, as required by Rules 12(c)

and 56(c) of the Mississippi Rules of Civil Procedure.24

¶89.   As we held above, the chancery court appropriately took judicial notice of the

judgments and pleadings in the partition action, and thus technically the chancery court did

not consider “extrinsic evidence” so as to convert the Carneys’ motion to one for summary

judgment. But even if these materials could be considered “extrinsic evidence,” we find that


       23
         At the appellate level, both the Mississippi Supreme Court and this Court have
recognized that it is appropriate to take judicial notice of their files. See In re Dunn, 166 So.
3d 488, 492 n.6 (Miss. 2013) (“This Court takes judicial notice of its files.”); Bailey v. State,
No. 2017-CP-00757-COA, 2018 WL 3737930, at *1 n.1 (Miss. Ct. App. Aug. 7, 2018)
(“We take judicial notice of our own docket.”).
       24
         Under Rule 12(c), “[i]f, on a motion for judgment on the pleadings, matters outside
the pleadings are presented to and not excluded by the court, the motion shall be treated as
one for summary judgment and disposed of as provided in Rule 56, and all parties shall be
given reasonable opportunity to present all material made pertinent to such a motion by Rule
56.” Rule 56(c) provides that a summary judgment motion “shall be served at least ten days
before the time fixed for the hearing.”

                                               42
the Sullivan case is distinguishable, and we find no error under the circumstances in this case.

¶90.   In Sullivan, 19 So. 3d at 1273 (¶5), the trial court converted a Rule12(b)(6) motion to

dismiss to a motion for summary judgment when evidence outside the pleadings was

presented at the hearing on the motion. The supreme court held that the trial court erred

when it converted the motion to one for summary judgment without ordering a continuance

to allow the heirs in that case “a reasonable time to present evidence necessary for the proper

adjudication of their claims.” Id. at 1273, 1276 (¶¶5,19).

¶91.   In Robison v. Enterprise Leasing Co.-South Central Inc., 57 So. 3d 1, 4 (¶10) (Miss.

Ct. App. 2010), this Court distinguished Sullivan and held that if a party has notice that a

motion to dismiss may be treated as a motion for summary judgment, and that party has an

opportunity to respond, then the trial court does not err in failing to provide the formal ten-

day notice of conversion. Id. (“[T]he heart of the ten-day notice [of conversion] requirement

[is to provide] notice of the nature of the motion and an opportunity to respond.”). In

Robison, Enterprise’s original motion contained exhibits outside the pleadings, thus the

Robisons were on notice from the filing of the motion that these matters would be

considered. Id. at 3-4 (¶¶8-9). The Robisons also had an opportunity to respond to these

issues, as the hearing on the motion was held more than three months from the time the

original motion was filed. Id. at 3 (¶8).

¶92.   Similarly, the Carneys’ motion identified the partition and bankruptcy judgments and

proceedings that they relied upon in arguing that Sandra’s estate action was barred by res

judicata. Thus, Sandra was on notice of their arguments from the time she received their



                                              43
motion. Moreover, Sandra had an opportunity to respond to these arguments, as the hearing

took place nearly a month after the Carneys filed their original motion. Indeed, in her

response, Sandra explicitly set forth her arguments that these judgments did not bar her estate

action based upon res judicata. These same arguments were addressed by the chancery court

at the hearing—no new evidence or new arguments were presented. In short, just as this

Court held in Robison, Sandra “had notice of the nature of the motion and an opportunity to

respond. Rule 12(b)’s requirement of an opportunity to respond and Rule 56(c)’s requirement

that a summary judgment motion be served ten days before the hearing have been more than

satisfied in this case.” Robison, 57 So. 3d at 4 (¶10).25

              C.      The Motion to Strike Sandra’s Response to the Carneys’
                      Motion to Dismiss and the Request for Sanctions against
                      Sandra

                      1.     Granting of the Motion to Strike

¶93.   Sandra asserts that the chancery court erred in striking her response to the Carneys’

motion to dismiss. We find that it is unnecessary to decide this issue in light of our

conclusion that the chancery court appropriately applied the doctrine of res judicata in

dismissing Sandra’s estate action. In reaching this decision, we undertook a de novo review

of the record, including Sandra’s response to the Carneys’ motion to dismiss. Accordingly,



       25
          Sandra also contends on appeal that a res judicata contention cannot be brought in
a motion to dismiss, and, instead, it must be pleaded as an affirmative defense. However,
in her response filed in the chancery court, Sandra did not challenge the Carneys’ motion on
this basis. Her argument on that point is therefore waived on appeal. Purvis v. Barnes, 791
So. 2d 199, 202 (¶7) (Miss. 2001) (“The law is well settled in Mississippi that appellate
courts will not put trial courts in error for issues not first presented to the trial court for
resolution, and that issues not presented in the trial court cannot be first argued on appeal.”).

                                               44
there is no need to consider whether the chancery court erred in striking this pleading.

Leatherwood, 548 So. 2d at 399; Pollard v. State, 205 So. 2d 286, 287 (Miss. 1967)

(“Numerous assignments of error are urged, but the disposition of this case does not require

our detailed consideration [of them].”).

                     2.      Sanctions

¶94.   Sandra also asserts that the chancery court abused its discretion in imposing $1,650

in Rule 11 sanctions against her. We disagree. Rule 11 provides for sanctions where

“scandalous or indecent matter is inserted in pleadings” and further provides:

       If 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, the court may order
       such a party. . . to pay to the opposing party . . . the reasonable expenses
       incurred by such other parties and by their attorneys, including reasonable
       attorneys’ fees.

M.R.C.P. 11. “‘The decision to award monetary sanctions is left to the discretion of the trial

court,’ and is reviewed for abuse of discretion.” Boatwright v. Boatwright, 184 So. 3d 952,

961 (¶22) (Miss. Ct. App. 2015) (quoting Hampton v. Blackmon, 145 So.3d 632, 634 (¶7)

(Miss. 2014)).

¶95.   Sandra contends that she had no notice that the Carneys were seeking sanctions.

Sandra, however, supports her “lack of notice” argument by citing to Federal Rule of Civil

Procedure 11, which requires that sanctions be sought by a separate motion, and allows a

party twenty-one days to withdraw a challenged pleading. Sandra argues that this was not

done in her case. No such requirements, however, are found in Mississippi Rule of Civil

Procedure 11, and the Carneys’ motion gave Sandra sufficient notice that they were seeking



                                              45
sanctions against her. In the opening paragraph of their motion to strike, the Carneys cited

Rule 11(b) as authority for their request for sanctions, and they quoted from Rule 11(b) in

the first numbered paragraph of their motion to strike. Then, in the final paragraph of their

motion to strike, the Carneys explicitly requested Rule 11 sanctions due to the alleged

“scandalous and untrue” statements in Sandra’s response to their motion to dismiss. These

statements provided ample notice that the Carneys were seeking sanctions against Sandra.

¶96.   Sandra also asserts that the chancery court abused its discretion in imposing sanctions

because it had no basis to do so. For the reasons addressed below, we find that based upon

our review of the record, including Sandra’s response to the motion to dismiss, the Carneys’

motion to strike and for sanctions, Sandra’s response to that motion, and the hearing

transcript on the matter, the chancery court did not abuse its discretion in imposing Rule 11

sanctions against Sandra.

¶97.   In addressing the imposition of Rule 11 sanctions against a pro se party, the supreme

court has recognized that “[p]ro se parties should be held to the same rules of procedure and

substantive law as represented parties.” Dethlefs v. Beau Maison Dev. Corp., 511 So. 2d

112, 118 (Miss. 1987). “A motion or pleading is filed for the purpose of harassment or delay

when the party does not have a viable claim.” In re Estate of Necaise, 126 So. 3d 49, 57

(¶27) (Miss. Ct. App. 2013). Sandra’s response contains a number of accusations against

opposing counsel and statements about the proceedings in the partition action that are simply

not based in fact. For example, Sandra claimed that res judicata could not apply because

Chancellor Lundy, who was originally assigned the partition action, was not aware of the



                                             46
estate action, and that he “never addressed any of [the] issues contained in [the estate] claim.”

¶98.   That argument was factually inaccurate. In rebutting this accusation, counsel for the

Carneys attached the motion for stay filed in the partition action on Sandra’s behalf, which

contained the same allegations that Sandra made in her estate petition regarding J.C.’s

alleged waste and depletion of the estate, and in which she also claimed that she had a right

to an equitable offset in the interest J.C. deeded to the Carneys. The Carneys’ counsel also

attached the transcript from the October 2013 hearing before Chancellor Lundy on the

motion for a stay of the partition action. The transcript shows that Sandra testified at length

at that hearing.

¶99.   Sandra claims that she was not aware of this motion because her attorney at that time

did not keep her informed about the filings he made in the partition and estate proceedings.

We find no merit in this excuse. Sandra was a witness at the October 2013 hearing on the

motion for stay in the partition action, and she testified at length regarding J.C.’s alleged

depletion of the Zona Mae Oliver estate. Moreover, just a few months later, Sandra moved,

pro se, in the partition action, seeking to correct facts stated at the October 2013 hearing. In

that motion she also asked the court to allow additional evidence relating to J.C.’s alleged

fraudulent acts, and to disallow any partition of the property at issue due to J.C.’s alleged

fraudulent acts (the motion to correct facts and for equitable partition).

¶100. In her response to the Carneys’ motion to dismiss, Sandra also asserted that “false

statements and motions” filed by the Carneys’ counsel “caused [the estate claim] to never

[be] heard or litigated.” The record contains no factual basis for this accusation. Further, a



                                               47
stay of the estate action was legally justified. As we recognized above, where two parallel

cases are filed the court “before which the second action is filed . . . ordinarily should hold

[that action] in abeyance pending the first action.” DeFoe, 547 So. 2d at 78.

¶101. As this Court has recognized, “[i]n 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.” Boatwright, 184 So. 3d at 961 (¶22) (quotation mark omitted). We find no “clear

error of judgment” on the chancery court’s part in imposing sanctions against Sandra relating

to her response to the Carneys’ motion to dismiss.

¶102. Finally, Sandra asserts that the attorney-fee calculation submitted by the Carneys’

counsel does not support the $1,650 sanction amount. There is no merit to this contention.

The record contains a detailed attorney billing record supporting the time spent in addressing

the assertions contained in Sandra’s response to the Carneys’ motion to dismiss. We find that

this is sufficient support for the chancery court’s imposition of “reasonable” attorney fees of

$1,650 in this matter.

              D.     The Chancellor’s Alleged Bias

¶103. Sandra asserts that her and her father’s due process rights were violated at hearings

before Chancellor Daniels that took place in both the partition and estate matters due to the

chancellor’s alleged bias against her. We find Sandra’s contentions without merit.

¶104. The supreme court has recognized that “[t]his Court presumes that a judge, sworn to

administer impartial justice, is qualified and unbiased. For a party to overcome the



                                              48
presumption, the party must produce evidence of a reasonable doubt about the validity of the

presumption.” Kinney v. S. Miss. Planning & Dev. Dist. Inc., 202 So. 3d 187, 194 (¶20)

(Miss. 2016) (internal quotation marks and citations omitted). Continuing, the supreme court

explained that “[r]easonable doubt may be found when there is a question of whether a

reasonable person, knowing all of the circumstances, would harbor doubts about the judge’s

impartiality. Said another way, the presumption is overcome only by showing beyond a

reasonable doubt that the judge was biased or unqualified.” Id.; see Washington Mut. Fin.

Grp. LLC v. Blackmon, 925 So. 2d 780, 785 (¶12) (Miss. 2004) (recognizing the “heavy

burden” a movant bears in proving that a judge’s purported hostility requires recusal).

¶105. Sandra contends that the chancellor displayed “biased actions” in the partition action

at the February 2, 2015 hearing on Sandra’s motion to controvert, the Carneys’ motion in

limine to exclude testimony or evidence relating to any claim that Sandra may have due to

the actions of J.C., and issues relevant to that motion raised in Sandra’s pro se motion to

correct facts. Sandra was represented by counsel at that hearing. In her brief, Sandra refers

to this hearing as a “non-hearing,” and contends that the chancellor showed bias because she

did not allow presentation of evidence or testimony. We disagree.

¶106. At the beginning of the hearing, the chancellor observed that Sandra had “explain[ed]

her whole case” in her pro se motion to correct facts. The chancellor then stated on the

record that she had “read the entire [court] file and not just the motions that are noticed for

hearing today . . . [and that she] under[stood] very thoroughly what the issues [were and] the

issues that [Sandra tried] to raise . . . .” The chancellor then heard argument of counsel at



                                              49
length, and discussed numerous points of law with counsel. In our review of the hearing

transcript, we find no indication that the chancellor displayed bias in any way at the February

2, 2015 hearing.

¶107. Regarding subsequent hearings before Chancellor Daniels, Sandra states in her brief

that after the February 2, 2015 “non-hearing,” she “filed a formal complaint with the judicial

committee against Judge Daniels based on all of the biased actions, reactions, denial of a

hearing and presenting of any testimony as well as remarks made at the February 2nd, 2015

hearing.” Sandra’s judicial performance complaint against Chancellor Daniels was filed in

June 2016, at least three months before the September 27, 2016 final partition hearing before

Chancellor Daniels, and five months before the November 14, 2016 hearing in the estate

action, also before Chancellor Daniels. On appeal, Sandra claims that her filing of the

judicial performance complaint against Chancellor Daniels in June 2016 is a basis for

requiring Chancellor Daniels’s recusal at these subsequent hearings.

¶108. As to this argument, we observe that Sandra did not object or file a motion in either

the partition or estate action asking Chancellor Daniels to recuse. Sandra’s argument about

Chancellor Daniels’s alleged bias was not raised until her appeal, which procedurally bars

her from arguing the issue in this case. Tubwell v. Grant, 760 So. 2d 687, 689 (¶8) (Miss.

2000). As the supreme court recognized in Tubwell:

       Over the years, this Court has been quick to point out that it will not allow a
       party to take his chances with a judge about whom he knows of [alleged]
       grounds for recusal and then, after he loses, file his motion. Where the party
       knew of the grounds for the motion or with the exercise of reasonable
       diligence may have discovered those grounds, and where that party does not
       move timely prior to trial, the point will be deemed waived.

                                              50
Id. As a result of her untimely objection, Sandra has waived this issue. See also Latham v.

Latham, 261 So. 3d 1110, 1113 (¶¶9-11) (Miss. 2019) (holding that appellant waived recusal

argument on appeal where he knew the ground for asserting that recusal was warranted prior

to his hearing before the chancery court, but did not object or seek recusal of the chancellor

at the trial court level); Adams v. Rice, 249 So. 3d 463, 467-68 (¶¶15-21) (Miss. Ct. App.

2018) (holding that appellant was barred from raising a recusal argument on appeal where

she did not file a motion for recusal in the chancery court based upon a pending bar

complaint and federal action against the chancellor).

¶109. Nevertheless, Sandra asserts that the chancellor’s alleged bias violated her and her

father’s due process rights, thus we address this issue on the merits. Because Sandra did not

object or file a motion for recusal in the chancery court, however, she must rely on plain error

to challenge the chancellor’s failure to recuse herself on appeal. “The plain-error doctrine

nearly always is applied in the criminal context, but there is no bar to applying it in a civil

case.” Maness v. K & A Enters. Miss. LLC, 250 So. 3d 402, 410 (¶21) (Miss. 2018). This

doctrine “is implicated when an error occurs at trial which affects substantial rights and

results in a manifest miscarriage of justice.” Beasley v. State, 136 So. 3d 393, 399-400 (¶20)

(Miss. 2014) (internal quotation mark omitted). We find that Sandra has failed to show that

it was plain error for the chancellor to preside over the September 27, 2016 or November 14,

2016 hearings.

¶110. As noted, Sandra asserts that Chancellor Daniels should have recused herself from

these hearing in the light of the judicial performance complaint Sandra filed against her in



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June 2016. In Adams, 249 So. 3d at 467-68 (¶¶15-21), Elle Adams made the same argument,

asserting that the chancellor in that case should have recused herself because Elle had filed

a state bar complaint and federal action against the chancellor. We rejected Elle’s argument,

finding that the chancellor’s awareness of the federal action against her, and the pending state

bar complaint, did not require recusal where there was “no evidence that the chancellor’s

impartiality might be reasonably questioned.” Id. at 468 (¶21). We find that the same

analysis applies in this case.

¶111. Sandra quotes from the September 27, 2016 final partition hearing as an example of

the chancellor’s “grudge” against her. But in this excerpt the chancellor, at most, is

expressing frustration with the parties’ inability to reach an agreement on any detail,

including what half of the property they wanted (“I was hoping y’all could at least agree on

one thing, but obviously y’all cannot agree on whether the sun is shining outside or not.”).

Our review of the transcript from the September 27, 2016 hearing shows no bias warranting

recusal.

¶112. Similarly, Sandra quotes snippets of exchanges from the November 14, 2016 hearing

in the estate case that she claims demonstrates the chancellor’s alleged animosity towards

her. These include exchanges such as the chancellor telling Sandra that “[i]f you have a

problem with my ruling, appeal it[;]” and the chancellor’s admonishment to Sandra to “be

careful[,]” stated in the context of Sandra representing herself. These statements, particularly

when read in context, are nowhere near the “combative, antagonistic, discourteous, and

adversarial” conduct that would lead a reasonable person to conclude that Sandra did not



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receive a fair hearing. Cf. Schmidt v. Bermudez, 5 So. 3d 1064, 1074 (¶¶19-21) (Miss. 2009)

(finding that a chancellor’s “abusive and inappropriate conduct,” including, but not limited

to, repeatedly questioning a party’s honesty, badgering that party during cross-examination

regarding evidence to be presented in her own case, and accusing the party of “diarrhea of

the mouth” violated party’s substantive right to a fair trial). Sandra also quotes an exchange

in which the chancellor refused to let Sandra testify about ad valorem tax issues—but, as the

chancellor explained in the next line of the transcript (not included in Sandra’s snippet), this

was because Sandra was trying to raise issues already ruled upon at the final partition

hearing. Nothing in that exchange suggests a lack of impartiality in any way.

¶113. In short, our review of the September 27, 2016 and November 14, 2016 hearing

transcripts does not reveal any exchange between Sandra and the chancellor that suggests any

hostility, lack of impartiality, or ill will on the chancellor’s part so as to result in a “manifest

miscarriage of justice” in this case. We reject this assignment of error.

¶114. Based upon the foregoing, we affirm the chancery court’s final judgment of partition

on res judicata grounds; we dismiss the fraud action appeal without prejudice to Sandra

Oliver’s right to pursue further proceedings after entry of a final judgment in that action; and

we affirm the chancery court’s dismissal of the estate action on res judicata grounds.

¶115. APPEAL NO. 2016-CP-01757: AFFIRMED. APPEAL NO. 2016-CP-01759:
AFFIRMED IN PART, AND DISMISSED IN PART.

     BARNES, C.J., J. WILSON, P.J., GREENLEE, WESTBROOKS, TINDELL,
McDONALD, LAWRENCE AND C. WILSON, JJ., CONCUR. McCARTY, J.,
CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN
OPINION.



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