The Equitable Power of the Circuit Court

June 5, 2019 § 1 Comment

When Trustmark Bank foreclosed on Odell and Renodda Dorman’s property, it was discovered that the property description of the Dorman’s 6-acre residence was not included. With that discovery, the Dormans moved back home. The bank filed suit in circuit court for a deficiency judgment, and the Dormans counterclaimed for wrongful foreclosure on their residence. In turn, the bank moved to amend to plead mutual mistake, which the court granted. The bank moved for summary judgment, in the course of which the bank somehow requested reformation of the deed for mutual mistake. The court ordered reformation of the deed and granted summary judgment. The Dormans appealed.

Before we go to the next step, the point needs to be made that reformation of an instrument is a quintessentially equitable process. If you were going to file an original action for reformation, you would file it in chancery court. So was the circuit judge in error by granting equitable relief in this case? The argument that the Dormans made before the COA was that the circuit court lacked subject matter jurisdiction, and so the judgment was void.

In Dorman v. Trustmark, decided May 7, 2019, the COA affirmed on the issue of subject matter jurisdiction. Chief Judge Barnes wrote for the unanimous court:

¶9. Before addressing the substantive issues raised on appeal, we first consider the Dormans’ claim that the circuit court lacked subject-matter jurisdiction. Trustmark’s complaint requested recovery of a deficiency judgment on a loan, which the Dormans acknowledge was properly before the circuit court as a matter of law. However, the circuit court allowed Trustmark to amend its answer to the Dormans’ counterclaim to assert reformation and mutual mistake as a defense. At the motions hearing, the circuit judge questioned whether he had the power to reform the deed, noting: “It’s just I think that the place for that correction is in front of a chancellor.” After briefing by the parties on the issue, the court determined in its final judgment that it had subject-matter jurisdiction over the claims. The Dormans now argue that Trustmark tried to “back door” the issue of reformation by filing the complaint for the deficiency judgment and that the bank “should have sought reformation in chancery court.”

¶10. “To determine whether a court has subject[-]matter jurisdiction, we look to the face of the complaint, examining the nature of the controversy and the relief sought.” RAS Family Partners LP v. Onnam Biloxi LLC, 968 So. 2d 926, 928 (¶11) (Miss. 2007) (emphasis added). “If the complaint seeks legal relief, even in combination with equitable relief, the circuit court can have proper subject[-]matter jurisdiction.” Id. “[E]quitable claims are more appropriately brought before a circuit court when they are connected to a contractual relationship or other claims tied to questions of law.” Era Franchise Sys. Inc. v. Mathis, 931 So. 2d 1278, 1283 (¶14) (Miss. 2006).

¶11. As the court noted, Trustmark’s complaint asserted a legal claim for a deficiency judgment; the issue of mutual mistake later arose as an affirmative defense to the counterclaim. The Mississippi Supreme Court has held that once a circuit court acquires subject-matter jurisdiction of an action at law, “it may hear and adjudicate in that action all claims, including those with an equitable smell, arising out of the same transaction and occurrence as the principal claim.” Hall v. Corbin, 478 So. 2d 253, 255 (Miss. 1985). This includes “other claims (whether asserted by the one or more of the original parties or by new or intervening parties), ancillary or pendent to the original claim,” even if those claims “standing alone may have been beyond the court’s jurisdiction.” Id. Because Trustmark’s equitable claim was raised as a defense to the Dormans’ counterclaim, we find no error in the circuit court’s determination that it had subject-matter jurisdiction of Trustmark’s claim for reformation of the DOT.

The COA reversed the grant of summary judgment because there was a fact issue of mutual mistake and remanded for further proceedings.

Some years ago an attorney told me that he wanted to file a 2-count complaint: Count I for alienation of affection against the defendant and his paramour; and Count II for divorce against the defendant for divorce and related relief. I told him that, if he did I would transfer the case to circuit court; our law is that once a case is transferred it can not be transferred back to the transferring court. We had a good laugh over that. The idea of a circuit judge (and possibly a jury) having to grope their way through a divorce was rife with comedic possibilities. When I mentioned it to a circuit judge, though, he simply smiled and said, “No problem; I would just appoint you as special master to hear the divorce.” That put an end to that.

Prescription for a Prescriptive Easement

April 15, 2019 § Leave a comment

A prescriptive easement is one acquired essentially by adverse possession. The COA’s decision in Watts v. Jackson, decided March 19, 2019, has such an excellent, concise statement of the law of prescriptive easements that I thought you might find it useful to have it on hand. Judge Westbrooks wrote the opinion (edited by me):

¶6. “The standard and burden of proof to establish a prescriptive easement is the same as a claim of adverse possession of land.” Mayton v. Oliver, 247 So. 3d 312, 322 (¶32) (Miss. Ct. App. 2017). “To acquire property by adverse possession or by prescriptive easement the claimant must show that the possession was: (1) open, notorious, and visible; (2) hostile; (3) under claim of ownership; (4) exclusive; (5) peaceful; and (6) continuous and uninterrupted for ten years.” Biddix v. McConnell, 911 So. 2d 468, 475 (¶18) (Miss. 2005). “These elements must be proven by clear and convincing evidence.” Mayton, 247 So. 3d at 322 (¶32). “Clear and convincing evidence is such a high standard of proof that even the overwhelming weight of the evidence does not rise to the same level.” Id.

. . .

¶8. The Mississippi Supreme Court has held that all six elements must be proven for a prescriptive easement to be valid. See Sharp v. White, 749 So. 2d 41, 43 (¶9) (Miss. 1999). In its order, the chancery court does not break down the elements required, and this Court has held that when “the chancellor did not state any specific findings of fact concerning these six elements . . . we will proceed on the assumption that he resolved all such fact issues in favor of the appellee.” Rawls v. Blakeney, 831 So. 2d 1205, 1207 (¶8) (Miss. Ct. App. 2002).  . . .

A. Open, Notorious, and Visible

¶9. The supreme court has held that “it is not necessary, in order to establish an easement by prescription, that the way has been in constant use, day and night, but it may be established by such use as business or pleasure may require.” Threlkeld v. Sisk, 992 So. 2d 1232, 1238 (¶17) (Miss. Ct. App. 2008) (quoting Browder v. Graham, 204 Miss. 773, 780 (1948)).  . . .

B. Hostile

¶10. “Hostile use is use that is inconsistent with the title of the servient-estate owner.” Threlkeld, 992 So. 2d at 1239 (¶18). “Use of property that is permissive prevents a
prescriptive easement from forming.” Id. “Use by express or implied permission or license, no matter how long continued, cannot ripen into an easement by prescription, since adverse use, as distinguished from permissive use, is lacking.” Id. (internal quotation marks omitted).  . . .

C. Under the Claim of Ownership

¶11. “One claiming a prescriptive easement need not claim to own the land itself, but he or she must claim to own an easement.” Id. at 1239 (¶21) (quoting Delancey v. Mallette, 912 So. 2d 483, 488 (¶16) (Miss. Ct. App. 2005)).  . . .

D. Exclusive

¶12. “For a prescriptive easement, ‘exclusive’ does not mean that no one else used the road, but that ‘the use was consistent with an exclusive claim to the right to use.’” Threlkeld, 992 So. 2d at 1239-40 (¶22) (quoting Moran v. Sims, 873 So. 2d 1067, 1069 (¶10) (Miss. Ct. App. 2004)). Moreover, “[w]e conclude that the distinction to be made when using the term exclusive as it relates to a prescriptive easement does not mean to keep all others out, but to show a right to use the land above other members of the general public.” Keener Properties L.L.C. v. Wilson, 912 So. 2d 954, 957 (¶8) (Miss. 2005) (internal quotation marks omitted).  . . .

E. Peaceful

¶13. “‘Peaceful’ is defined as ‘marked by, conducive to, or enjoying peace, quiet, or calm.’” Biddix v. McConnell, 911 So. 2d 468, 477 (¶25) (Miss. 2005) (quoting Webster’s
Third International Dictionary 1160 (1986)).  . . .

F. Continuous and Uninterrupted for Ten Years

¶14. “A prescriptive easement vests when the adverse use has been continuous and uninterrupted for a period of ten years.” Threlkeld, 992 So. 2d at 1240 (¶24) (quoting
Delancey, 912 So. 2d at 489 (¶18)).  . . .

The court reversed the chancellor’s grant of a prescriptive easement. The COA held that Jackson had failed to prove that his use of the easement was hostile or exclusive.

 

Tried by Consent

December 18, 2018 § Leave a comment

C.V. and Livia Sue Glennis sued their neighbors, Donald and Nerissa Booker for destruction of the Glennis’s shrubs. The chancellor awarded $1,320 in damages, and the Bookers appealed charging that the destruction of the shrubs had not been properly pled, and so was not an issue for trial.

In Booker v. Glennis, handed down October 30, 2018, the COA affirmed the award of damages. Here is how Judge Tindall, writing for a more or less unanimous court, addressed the issue:

¶12. The Bookers argue that the destruction of the shrubs was not an issue properly before the court and therefore was improperly determined.  The Bookers assert that they never consented to trying the claim for damages for the death of the shrubs. The record, however, reveals otherwise. At trial, upon request by the Bookers’ counsel, the chancellor allowed testimony beyond that of the Glennises’ contempt pleadings and treated all pleadings as amended to conform to the evidence tried and “to include the granting of any affirmative relief regarding the two parties . . . so as to minimize the future conflicts between them.” Later in trial, Bookers’ counsel again asked to go further into issues with his examination of Mr. Booker, and the chancellor allowed the expansion because “those issues are before the Court in the complaint and counter-complaint, requesting for affirmative relief filed pro se by the Bookers . . . .”

¶13. Both the Glennises’ counsel and the Bookers’ counsel elicited, on a number of occasions, witness testimony regarding the destruction of the shrubs. Further, during the cross-examination of Mr. Glennis, the chancellor indicated her understanding that “from listening to the testimony and looking at the photograph the shrubs that have been testified [about], [which] were not raised in the pleadings but have been testified [about,] [are being] tried by the consent of the parties . . . .” No party objected to this issue being tried. In fact, at the end of the trial, the Glennises’ counsel moved for their pleadings to be conformed to the proof submitted, and the Bookers’ counsel asserted, “[w]e would make the same motion, Your Honor.” Thereafter, in the subject order of July 5, 2016, the chancellor ordered “all of said pleadings . . . [be treated as] amended to conform to the evidence presented at the conclusion of trial due to multiple issues tried that were not pleaded.”

¶14. Mississippi Rule of Civil Procedure 15(b) permits issues to be tried by express consent of the parties.

When issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure to so amend does not affect the result of the trial of these issues.

M.R.C.P. 15(b); Weiss v. Weiss, 579 So. 2d 539, 542 (Miss. 1991). As reflected in the record, counsel for both parties put on evidence regarding the shrub destruction, and counsel for both requested and consented to this amendment of the pleadings. Therefore this issue is without merit.

The record was abundantly clear that the lawyers intended, and the judge ruled, that the pleadings were amended to conform to the proof. That’s good lawyering and judging when the record leaves no doubt.

SOL in a Suit to Set Aside a Deed

December 17, 2018 § 1 Comment

Bryant was administrator of Cooley’s estate. She filed suit to remove cloud from title and to set aside a deed signed by Cooley, alleging undue influence, lack of capacity, and fraud. She also claimed the deed was void due to the fact that Cooley’s wife had failed to execute it.

A chancellor dismissed Bryant’s suit, finding it barred by the the three-year general SOL (statute of limitations). The judge found that Bryant had not maintained a possessory interest in the property, and so the three-year statute applied. Bryant appealed.

The COA, in Bryant v. Dent, et al., decided September 18, 2018, reversed and remanded, holding that the ten-year statute applied. Judge Lee wrote for a unanimous court:

¶11. Actions to recover land are subject to the ten-year statute of limitations found in Mississippi Code sections 15-1-7 and 15-1-9. In relevant part, section 15-1-7 provides:

A person may not make an entry or commence an action to recover land except within ten years next after the time at which the right to make the entry or to bring the action shall have first accrued to some person through whom he claims, or, if the right shall not have accrued to any person through whom he claims, then except within ten years next after the time at which the right to make the entry or bring the action shall have first accrued to the person making or bringing the same.

Miss. Code Ann. § 15-1-7 (Rev. 2012). Similarly, section 15-1-9 provides:

A person claiming land in equity may not bring suit to recover the same except within the period during which, by virtue of Section 15-1-7, he might have made an entry or brought an action to recover the same, if he had been entitled at law to such an estate, interest, or right in or to the same as he shall claim therein in equity.

Miss. Code Ann. § 15-1-9 (Rev. 2012). “A suit to remove a cloud on title is considered an action to recover land.” Lott v. Saulters, 133 So. 3d 794, 799 (¶8) (Miss. 2014).

¶12. We find the chancellor’s reliance upon O’Neal Steel Inc v. Millette, 797 So. 2d 869 (Miss. 2001), is misplaced. There, O’Neal sought to enforce a judgment lien, not title or possession of the property at issue. Id. at 874 (¶15). The supreme court stated that a “judgment lien does not create in O’Neal a possessory interest in the real property,” and “absent any possessory interest in the subject property, O’Neal cannot claim that this
litigation is an action to recover land.” Id. at 873 (¶¶12,13).

¶13. Here, Bryant, as administrator for Cooley’s estate and individually as a possible heir of Cooley, seeks possession of the real property deeded away by Cooley, allegedly due to undue influence. In a similar situation, the supreme court held that the ten-year statute of limitations applied. See In re Estate of Reid, 825 So. 2d 1, 6 (¶¶16-19) (Miss. 2002). There, the decedent’s potential heir alleged undue influence in an attempt to set aside the decedent’s transfers of real property to her adopted son. Id.

¶14. Because the ten-year statute of limitations applies, Bryant’s suit is not barred. Thus, we reverse and remand for further proceedings.

The court affirmed the chancellor’s dismissal of Bryant’s fraud claim, agreeing with the chancellor that that the pleading did not meet the requirements of MRCP 9(b).

The court also noted that, due to the remand, Bryant could pursue the claim of failure to join Cooley’s wife on in the transaction on remand if she chose to do so.

Easement: Express or by Prescription, but not Both

December 12, 2018 § Leave a comment

In a property dispute between the Ryans and the Rays, the chancellor interpreted ambiguous language in a deed to create an express, perpetual easement in favor of the Rays. She went on and found alternatively that the Rays had proven the elements of a prescriptive easement. The Ryans appealed, contending that the chancellor erred in both findings.

In Ryan v. Ray, decided August 21, 2018, the COA affirmed the judge’s ruling that the language of the deed created an express grant of an easement. The court reversed and rendered on the issue of the prescriptive easement.

Remember that a prescriptive easement is in essence an easement by adverse possession. In Threlkeld v. Sisk, 992. So. 2d 1232, 1237 (Miss. App. 2008), the court said that, “One claiming an easement by prescription must show that the use of the property was (1) open, notorious, and visible, (2) hostile, (3) under claim of ownership, (4) exclusive, (5) peaceful, and (6) continuous and uninterrupted for a period of ten years. Biddix v. McConnell, 911 So.2d 468, 475(¶ 18) (Miss.2005) (citing Sharp v. White, 749 So.2d 41, 42(¶ 7) (Miss.1999)).” And, as in adverse possession, the claimant must prove each element by clear and convincing evidence. West v. Brewer, 579 So.2d 1261, 1262 (Miss.1991)).

Judge Lee, writing for the court in Ryan v. Ray, explained how the Rays fell short:

¶17. Although the chancellor found that there was an express, perpetual easement over the Ryan property for ingress and egress to the Ray property, the chancellor made an alternative finding that in the absence of a perpetual easement, there was clear and convincing evidence to support an easement by prescription using the doctrine of tacking. The Ryans argue on appeal that the Rays failed to satisfy the elements necessary for a prescriptive easement. We agree.

¶18. In this case, there was an express easement granted, which the chancellor found was one for perpetual ingress and egress to the property at issue. We affirm that decision as it was supported by substantial credible evidence. Therefore, an alternative theory for establishing an easement is unnecessary. But moreover, the alternative ground is legally contradictory. An express easement and a prescriptive easement cannot co-exist. “The rule is well settled that use by express or implied permission or license, no matter how long continued, cannot ripen into an easement by prescription.” King v. Gale, 166 So. 3d 589, 594 (¶22) (Miss. Ct. App. 2015). Thus, the chancellor’s finding of a prescriptive easement was legally erroneous, and we do not affirm on these grounds. The error does not require reversal however, as the chancellor’s disposition is affirmed on other proper grounds as set forth in this opinion.

Just Enrichment

December 11, 2018 § 1 Comment

Lamar Bond built a workshop and apartment on the property of Lee and Jennifer Bond, who were his son and daughter-in-law. Lamar moved into the apartment during a divorce and lived there for a couple of years. When Lee, a police officer, discovered that Lamar was smoking marijuana on the property, he ordered Lamar off of the land.

Lamar filed suit claiming that had spent a lot of money building the structure and that Lee and Jennifer had violated a promise that he could live there for the rest of his life.

Lee and Jennifer responded that Lamar’s use of the place was only intended to be temporary, until his divorce was finalized. They argued that he had spent the money to dissipate assets on the divorce, and that the workshop/apartment was a gift intended to be an advance on Lee’s inheritance. They contended that the structure was meant to be used for visits by other family members and a workshop where Lee and Lamar could work on projects together after years of strained relationship. Lee’s brother’s confirmed that Lamar had never mentioned that it was planned to be a permanent residence.

The chancellor ruled that Lee and Jennifer’s testimony was more credible. He rejected Lamar’s position that he was entitled to an equitable lien or a constructive trust. Lamar appealed.

In Bond v. Bond, decided October 30, 2018, the COA affirmed. Judge Fair penned the court’s opinion:

¶5. At trial, Lamar claimed he was entitled to a constructive trust regarding the property, but the chancery court found that issue foreclosed upon by Lamar’s failure to show that a confidential relationship existed among him, Lee, and Jennifer. On appeal, Lamar abandoned that claim; he instead argues he is entitled to an equitable lien. The chancery court can grant an equitable lien to prevent unjust enrichment “where it would be contrary to equity and good conscience for an individual to retain a property interest acquired at the expense of another.” Neyland v. Neyland, 482 So. 2d 228, 230 (1986).

¶6. Lee and Jennifer contend that this issue is procedurally barred on appeal because Lamar did not expressly seek an equitable lien in his complaint in the chancery court. The record reveals that the issue was suggested in the original pleadings, and it was clearly articulated in briefing and arguments prior to the judgment. Lee and Jennifer made no objection. “Where a party offers no timely objection, we treat the issue as having been tried by implied consent.” Queen v. Queen, 551 So. 2d 197, 200 (Miss. 1989). Thus, the question of an equitable lien is squarely before us on appeal.

¶7. The chancery court denied relief on this particular claim based on the statute of frauds. [Fn 1] The court noted that the Mississippi Supreme Court held in Barriffe v. Estate of Nelson, 153 So. 3d 613, 620-21 (¶36) (Miss. 2014), that “an equitable lien is not appropriate to enforce a contract that otherwise fails to meet the requirements of the statute of frauds.” “Under Mississippi’s statute of frauds, contracts involving the transfer of real property must be in writing.” Id. Our supreme court quoted, with approval, the New Mexico Supreme Court’s holding in Van Sickle v. Keck, 81 P.2d 707, 710 (N.M. 1938): “A court of equity will not relieve an individual from the operation of the statute of frauds, which requires that interest in lands be created by an instrument of writing, and impose an equitable lien upon the land in favor of one who makes improvements thereon knowing that the title is in another.” Bariffe, 153 So. 3d at 621 n.22.

[Fn 1] There might have been a potential issue with waiver of this defense because the statute of frauds is an affirmative defense that must be timely asserted by the defendant; and arguably it was not in this case. See Brown v. Gravlee Lumber Co., 341 So. 2d 907, 912 (Miss. 1977). But Lamar has not argued waiver, and, thus, he has waived the issue. See Thornton v. Freeman, 242 So. 3d 188, 190 (¶3) (Miss. Ct. App. 2018) (explaining that “waiver . . . can itself be waived”).

¶8. Lamar conceded that he knew the title to the property was held by Lee and Jennifer. So, like the chancery court, we are bound by the supreme court’s holding in Barriffe that the statute of frauds bars an equitable lien. This issue is without merit.

Lamar also asked for restitution to prevent unjust enrichment by Lee and Jennifer. The COA found no merit in that claim, either.

¶9. Finally, we address Lamar’s claim for money damages. He appears to argue he is entitled to restitution for unjust enrichment. Our analysis of this issue is complicated by the paucity of argument in the chancery court (and, indeed, on appeal). In Lamar’s complaint “for a constructive trust,” he also contended he was entitled to a money judgment for the money he gave Lee and Jennifer (or the money he allowed them to take). Lamar contended that Lee and Jennifer used their authority as joint owners of Lamar’s retirement account to transfer about $158,000 to their own bank account and then spent or converted it. Lee and Jennifer said Lamar transferred the funds and then used Lee’s debit card to spend most of the
money; the rest was given to them for living expenses while Lamar stayed with them and while Lee could not work while building the disputed workshop/apartment. Voluminous bank records were introduced at trial, but neither side made much effort to trace where the money went; both sides said the other would know how the money was spent. Lamar claims he is entitled to restitution for the value of the improvement and for the money that was taken above and beyond the realistic cost of constructing it, which comes out to about $120,000.

¶10. But despite alleging that he was entitled to a money judgment in his complaint, Lamar never expressly articulated a cause of action that entitled him to recover it; unjust enrichment is only addressed, in cursory fashion, in his contentions concerning constructive trusts and equitable liens (of which unjust enrichment is an element). Restitution is never mentioned at all. The chancery court, in its judgment, noted that Lamar sought money damages, but it did not address them directly except perhaps when it stated in closing that “all other relief is denied.” The chancellor did say he found Lee’s and Jennifer’s testimonies credible, and Lamar’s not; but he did not explicitly resolve the many of the factual disputes surrounding Lamar’s unjust enrichment theory, nor did he make any express finding that is dispositive of the claim.

¶11. This case is appropriate for the application of the oft-repeated maxim that “where a chancellor does not make explicit findings, [appellate courts] will assume that all disputed issues were resolved in favor of the appellees.” Ross v. Brasell, 511 So. 2d 492, 495 (Miss. 1987). Lee and Jennifer testified that Lamar gave them the money as a gift, without conditions. Lamar testified otherwise. The factual issue raised and the finding by the chancellor that the children were more credible than Lamar is sufficient to defeat Lamar’s unjust enrichment claim; there is nothing unjust in Lee and Jennifer being enriched by a gift, nor in Lamar not being able to take it back. See Cates v. Swain, 215 So. 3d 492, 496 (¶¶18-19) (Miss. 2013).

The Trap of the Oral “Easement”

November 5, 2018 § Leave a comment

The Stewarts and the Smiths owned adjoining lots on a lake where they and others enjoyed water skiing. They and some other neighbors deepened a drainage ditch for lake access, and built a boat ramp and retaining walls. The retaining walls were on both properties, but the boat ramp was almost entirely on the Smiths’ lot. In exchange for sharing the cost of the project, the Smiths gave permission for all participants to use the ramp freely, which they did. The offer and agreement were oral and never reduced to writing or recorded.

In 1995, Girani acquired the Stewarts’ lots, and he made further improvements and repairs to the boat ramp. He continued to use the ramp at will, and did not make any effort to acquire a written, recorded easement.

In 2006, Lovorn acquired the Smiths’ lots and blocked the boat ramp, insisting that the others get permission before using it.

At that point, Girani filed suit in chancery court. In the absence of a written, recorded easement, he urged the chancellor to find that the parties’ actions had created an “easement by estoppel.” Or, he suggested, the chancellor could find that he has an “irrevocable license” to use the ramp, based on the consideration of his contribution to the boat ramp and channel. The chancellor denied any relief, and Girani appealed.

In Girani v. Lovorn, decided October 9, 2018, the COA affirmed, with Judge Tindell writing the unanimous opinion:

¶9. Although Girani acknowledges Mississippi caselaw generally fails to recognize either easements by estoppel or irrevocable licenses, he asserts equity allows courts to employ such remedies to prevent injustice. Contending the facts of this case support judicial recognition that he has either an easement by estoppel or an irrevocable license to access Lovorn’s boat ramp, Girani asks this Court to modify or extend existing Mississippi caselaw to provide for such remedies.

¶10. “[A]n easement is an interest in land subject to the statute of frauds, and any agreement to convey or transfer an easement must comply with the statute of frauds, and be conveyed by written deed.” 37 C.J.S. Statute of Frauds § 66 (2017). Where recognized, however, an easement by estoppel provides an exception to the statutes imposing the requirement of a writing. Id. at § 67. The Mississippi Supreme Court has defined easement by estoppel to mean:

[A]n easement which is created when a landlord voluntarily imposes an apparent servitude on his property and another person, acting reasonably, believes that the servitude is permanent and in reliance upon that belief does something that he would not have otherwise or refrains from doing something that he would have done otherwise.

Gulf Park Water Co. v. First Ocean Springs Dev. Co., 530 So. 2d 1325, 1332 (Miss. 1988) (quoting United States v. Thompson, 272 F. Supp. 774, 784 (E.D. Ark. 1967)). In contrast to an easement, a license “confers no interest in the land but merely gives one the authority to do a particular act on another’s land . . . and . . . may be created orally.” 37 C.J.S. Statute of Frauds § 66. “However, it . . . has been said that an irrevocable license is . . . an easement rather than a license.” 53 C.J.S. Licenses § 147 (2017).

¶11. In the present case, Girani admits no written instrument ever existed to grant him permission to use the boat ramp on Lovorn’s land. He therefore relies solely on the remedies of easement by estoppel and irrevocable license for his requested relief. Recognizing that our supreme court has previously looked unfavorably on both irrevocable licenses and easements by estoppel, Girani asks this Court to extend or modify existing Mississippi caselaw on this issue. See Gulf Park Water Co., 530 So. 2d at 1335 (providing that Mississippi “does not recognize ‘irrevocable licenses’”); Belzoni Oil Co. v. Yazoo & Miss. Valley R.R. Co., 94 Miss. 58, 58, 47 So. 468, 472-73 (1908) (refusing to change licenses into an irrevocable right on the basis of equitable estoppel); Beck v. New Orleans & Tex. Ry. Co., 65 Miss. 172, 176, 3 So. 252, 252 (1887) (declining to recognize irrevocable licenses). Upon review, we decline to do so. See Cahn v. Copac Inc., 198 So. 3d 347, 358 (¶35) (Miss. Ct. App. 2015) (“[T]his Court does not have the authority to overrule or ignore supreme court precedent.”). We therefore find this assignment of error lacks merit.

It’s not probable that the MSSC will grant cert and change the law of easement by estoppel or irrevocable license in Mississippi, but stranger things have happened, and I give credit to Girani’s lawyers for pursuing what appears to be the only possible avenue to get their client the relief he is seeking.

Any lawyer who has been in practice a while will recognize this kind of scenario. The client and his neighbors fall into a particular way of doing things until property changes hands and the new owner balks at continuing the longstanding custom. This could have been fixed years ago with a written and recorded easement, but everyone was comfortable with their cozy arrangement so why inject a bunch of lawyers into the picture? Only thing is that the lawyers get involved eventually anyway. “Pay me now or pay me later.”

The Not-So-Mobile Home

August 15, 2018 § 1 Comment

In days of yore, mobile homes really were truly mobile. The wheels stayed on them, right there underneath in the cool dirt where Fido sleeps and lost yard toys go to be seen never more. Even then, though, mobility became more of a concept than reality as years scrolled by, tires dry-rotted, and the “trailer” settled into rust and decay.

In more modern times, mobile homes came to be settled on more permanent foundations, sans wheels, and even became affixed to the land. The legislature even passed laws allowing one to elect whether to treat the so-called mobile home as personal property, like an auto, or as a fixture on the land. Only problem, as you will know if you ever got tangled up in that kind of litigation, the law was not clear about how and when one made that election.

To the rescue came the Mississippi Legislature, which adopted HB 827, signed by the governor on March 19, 2018, and to take effect January 1, 2019. It offers an alternative process that may simplify the process.

Here is a summary of the new law from material presented by Senator Gray Tollison to Summer School for Lawyers:

This bill deals with the manner in which ownership of a manufactured or mobile home (manufactured home) is to be legally recorded as real property and as personal property. The bill authorizes the present system to remain in place for those homeowners, lenders, title insurers and retailers who prefer to use the current procedures in place today. It creates a new process that will be preferred and followed by other homeowners, lenders, title insurers and retailers.

Manufactured homes are generally personal property and are titled similar to motor vehicles by certificate of title; however, under certain circumstances a manufactured home may be so permanently affixed to the land that the law treats it like a site-built house as an improvement to real estate. Whether a manufactured home is personal property or real estate is very important to the homeowner, lender and title insurer. This bill contains specific provisions as to when a manufactured home is considered real estate for both ad valorem tax and bankruptcy law purposes. These provisions respond to questions raised by some lenders and title insurers as to whether a manufactured home should be considered real estate or personal property. This will assist lenders in perfecting security interests. It will also allow title insurers to rely upon a more specific procedure for addressing issues concerning the ways in which manufactured homes may be real property or personal property.

This bill authorizes the homeowner to elect to:

 Declare at the time of registration that the manufactured home is to be classified
as real estate for ad valorem tax purposes only as authorized under current law, or
 To permanently retire the title to the manufactured home by filing an affidavit of
affixation.

If the homeowner elects to permanently retire the title to the manufactured home, the manufactured home becomes a part of the real estate for all purposes until an affidavit of severance or affidavit of destruction is filed of record. If the homeowner files an affidavit of severance, the manufactured home is retitled and treated as personal property.

Attorneys or title companies closing these transactions will examine the liens reflected on the certificate of title (for personal property) and in the land records (for real property) to insure priority of liens.

Attorney’s Fees as Punitive Damages

January 30, 2018 § Leave a comment

May a chancellor award attorney’s fees in lieu of punitive damages?

That question was before the COA in the case of Cronier, et al. v. ALR Partners, et al., handed down December 12, 2017.

In that case, the Rainwaters (ALR Partners) sued for adverse possession of 9.75, naming the Croniers as defendants. Allen Cronier claimed ownership of the property in dispute. As the matter degenerated from discussion to litigation, Cronier erected fences and gates cutting off the Rainwaterses’ access to the contested property. Cronier even conveyed the disputed property to his twelve-year-old granddaughter, retaining a life estate. Following a trial the chancellor found in favor of the Rainwater claim of adverse possession, ordered Cronier to remove all of the fencing and gates from the property, and ordered Cronier to pay the Rainwaterses’ attorney’s fees and court costs. Cronier appealed, raising several issues, among which was that the court erred in awarding attorney’s fees.

The COA reversed and remanded only for the court to state specifically whether the award of attorney’s fees in lieu of punitive damages. Judge Barnes wrote the 9-1 decision, Judge Tindell concurring and dissenting in part:

¶35. The chancellor ordered the Croniers to pay the Rainwaterses’ attorney fees and court costs because the “actions of Allen in erecting a fence around the property were in clear disregard of the Rainwaterses’ rights.” Additionally, the chancellor stated that Allen “knew at the time he built the fence and conveyed the property to his minor granddaughter that there was a serious claim” to the disputed parcel.

¶36. At trial, the Rainwaterses submitted a statement for attorney fees of $9,790.05, not including ten hours spent at trial. The chancellor added ten hours of fees to this figure, but deducted five hours, because she did not find in favor of the Rainwaterses’ adverse possession claim for the southern portion of the property. Therefore, a total of $10,790.05 in attorney fees was awarded to the Rainwaterses.

¶37. Allen argues that attorney fees are not allowed in the absence of contractual provisions, statutory authority, or an award of punitive damages.

¶38. Mississippi follows the American rule for awards of attorney fees. “[A]bsent some statutory authority or contractual provision, attorneys’ fees cannot be awarded unless punitive damages are also proper.” Fulton v. Miss. Farm Bureau Cas. Ins., 105 So. 3d 284, 287-88 (¶16) (Miss. 2012). Punitive damages are only proper when the plaintiff shows by clear and convincing evidence the defendant acted with actual malice. Miss. Code Ann. § 11-1-65 (Rev. 2014). “[T]he plaintiff must demonstrate a willful or malicious wrong, or the gross, reckless disregard for the rights of others.” Wise v. Valley Bank, 861 So. 2d 1029, 1034 (¶15) (Miss. 2003).

¶39. Here, while there is no contractual provision, statutory authority, or specific award of punitive damages, the chancellor awarded attorney fees for the same reason the Rainwaterses requested punitive damages in their amended complaint (for the “Defendants’ reckless disregard of the Plaintiffs’ rights in this case”). The Mississippi Supreme Court has held that attorney fees may be awarded instead of punitive damages. Pursue Energy Corp. v. Abernathy, 77 So. 3d 1094, 1102 (¶26) (Miss. 2011) (citing Aqua-Culture Tech. Ltd. v. Holly, 677 So. 2d 171, 184 (Miss. 1996)). Here, the chancellor did not specify in her order that she was awarding attorney fees in lieu of punitive damages. However, as the trier of fact she
could have found Allen acted with actual malice in removing boundary markers, and constructing gates and a fence. Accordingly, we reverse and remand for clarification of whether punitive damages were awarded in the form of attorney fees.

So, the award of attorney’s fees will stand if on remand the chancellor finds that Cronier’s conduct was with actual malice, justifying punitive damages, and she specifies that the fee award is in lieu of punitive damages.

The language quoted above is a nice summary of the law of attorney-fee awards in Mississippi. You can recite pretty readily, I am sure, some other avenues for fee awards in chancery, among them contempt, divorce, and as a sanction for discovery misconduct.

Adverse Possession: How You Got There Makes All the Difference

January 9, 2018 § Leave a comment

The Joneses filed suit against the Pruitts claiming that they had acquired title to two parcels of the Pruitt’s land. They claimed adverse possession as to one part, and a prescriptive easement as to another.

The chancellor ruled in favor of the Pruitts, and the Joneses appealed.

in Estate of Jones, et al. v. Pruitt, decided September 26, 2017, the COA affirmed. For purposes of this post, we will focus on the permissive nature of the use. Judge Irving wrote for a more-or-less unanimous court (two judges “concur in part and in result without separate written opinion”):

¶13. The Joneses argue that the chancery court erred in denying their claims for adverse possession or a prescriptive easement with respect to the 455-foot roadway, and for adverse possession with respect to the deer-camp structure. Mississippi Code Annotated section 15-1-13(1) (Rev. 2012) provides:

Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title . . . .

“The standard and burden of proof to establish a prescriptive easement is the same as a claim for adverse possession of land.” Morris v. W.R. Fairchild Constr. Co., 792 So. 2d 282, 284 (¶7) (Miss. Ct. App. 2001) (citation omitted). In either claim, the following elements must be proven: that use of the property is “(1) under a claim of ownership; (2) actual or hostile; (3) open, notorious and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Webb v. Drewrey, 4 So. 3d 1078, 1082 (¶12) (Miss. Ct. App. 2009). “The person claiming the possession has the burden of proving each of these elements by clear and convincing evidence.” Biddix v. McConnell, 911 So. 2d 468, 475 (¶18) (Miss. 2005) (citation omitted).

a. Roadway

¶14. First, the Joneses maintain that the chancery court erred in finding that their use of the 455-foot roadway was permissive—and therefore insufficient to satisfy the hostility requirement of adverse possession or a prescriptive easement—on the basis that the Pruitts had given them verbal permission to use the roadway. In support of their argument, the Joneses cite this Court’s decision in Delancey v. Mallette, 912 So. 2d 483, 489 (¶17) (Miss. Ct. App. 2005), in which we held that “[w]hen a use of the lands of another for roadway purposes has been open, visible, continuous and unmolested since some point in time anterior to the aged inhabitants of the community, such use will be presumed to have originated adversely.” (Quotations omitted). Further, the Joneses argue that “[r]equiring a litigant who is attempting to establish adverse possession or a prescriptive easement to prove that there was no permission for use would be unreasonable. The law typically frowns upon requiring a party to prove a negative averment.” Morris, 792 So. 2d at 284 (¶9).

¶15. In response, the Pruitts contend that one of the most basic principles in establishing adverse possession or a prescriptive easement is that the use must be hostile, and that “permissive use by the possessor of the property in question defeats the claim of adverse possession.” Ellison v. Meek, 820 So. 2d 730, 735 (¶15) (Miss. Ct. App. 2002) (citation omitted). In support of their argument, the Pruitts cite the testimony at trial that the Pruitts and Joneses had a friendly relationship up until this dispute. The Pruitts further argue that the fact that Sidney kept the gate locked is consistent with Bocee’s testimony at trial that she allowed him to cross into her land as long as he watched out for her property. Additionally, the Pruitts argue that the fact that Sidney never gave Bocee a key is irrelevant, as Sidney, himself, admitted that the Pruitts did not need a key to access the Joneses’ property.

¶16. This Court held in Cleveland v. Killen, 966 So. 2d 848, 851 (¶11) (Miss. Ct. App. 2007):

As a general rule, permissive possession of lands, even if long continued, does not confer title in the person in permissive possession until a positive assertion of a right hostile to the owner has been made known to him. If there was never a request or a grant of permission to use the land, however, the use would not be permissive, but would be adverse. It is a fact question for a chancellor to determine whether a use is prescriptive or permissive.

(Internal citations and quotations omitted). Furthermore, we reiterated:

Use of property by permission does not evolve into a hostile or adverse use until the permission ends. The time period for obtaining adverse possession or a prescriptive easement, when express or implied permission is previously given, does not begin to run until some form of objection to the use is made by the landowner.

Id. at 852 (¶15).

¶17. Chancellor Harvey-Goree, in her order, found that “all the testimony revealed that the use [of the roadway] was peaceable and permissive.” Chancellor Clark made similar findings in his order on the Joneses’ motion for reconsideration or for a new trial, and affirmed Chancellor Harvey-Goree’s holding with respect to the roadway. We affirm. The record is void of any evidence suggesting that the Joneses’ use of the roadway was anything but peaceful. Furthermore, Irozenell even testified at trial that she never sought to bar the Joneses from using the roadway; rather, she merely sought to have them remove their lock from the gate on the roadway. As such, the Joneses have failed to establish that their use of the roadway was hostile, and their claim for adverse possession or a prescriptive easement thereto is unsuccessful.

That language in the statute, ” … in whatever way such occupancy may have commenced or continued … ,” simply does not embrace occupancy that was commenced or continued by permission because it is not hostile or adverse.

Here the Pruitts gave the Joneses permission to be on the property. The same result would obtain if the occupancy were commenced pursuant to a lease. Both Judge Mason and I have had adverse possession cases involving leases.

Another important point to leave with is that the elements of adverse possession must all be proven by clear and convincing evidence in order to establish a prescriptive easement.

 

Where Am I?

You are currently browsing the Real Property category at The Better Chancery Practice Blog.