Real Property | The Better Chancery Practice Blog

Prescriptive Easement Fail

April 21, 2020 § Leave a comment

Steve Thornton filed suit as trustee of a family trust to establish a prescriptive easement to property owned by the trust. The original chancellor stepped aside after a bench trial, and the parties agreed that the successor chancellor could decide the case on the record made before the first chancellor. Following a review of the record, the successor chancellor ruled that Thornton had failed to meet his burden of proof and ruled for the defendants. Thornton appealed.

The COA affirmed in Thornton v. Purvis, et al., handed down April 14, 2020. Here’s how Judge Jack Wilson’s opinion for the unanimous court addressed it:

¶21. “The standard and burden of proof to establish a prescriptive easement is the same as a claim of adverse possession of land.” Thornhill v. Caroline Hunt Tr. Estate, 594 So. 2d 1150, 1152 (Miss. 1992). To establish a prescriptive easement, the claimant must show use of the easement that “was: (1) under 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.” Id. at 1152-53 (quotation marks omitted).

¶22. A chancellor’s finding that the evidence was insufficient to establish a prescriptive easement is a finding of fact that we review under “the substantial evidence/manifest error test.” Mayton v. Oliver, 247 So. 3d 312, 322 (¶33) (Miss. Ct. App. 2017). Under that test, we will not reverse unless the chancellor’s findings of fact are manifestly wrong or clearly erroneous or the chancellor applied the wrong legal standard. Darnell v. Darnell, 234 So. 3d 421, 423 (¶4) (Miss. 2017). We will “accept a chancellor’s factual findings unless—given the evidence in the record—we conclude that the chancellor abused his or her discretion, and no reasonable chancellor could have come to the same factual conclusions.” Bluewater Logistics LLC v. Williford, 55 So. 3d 148, 155 (¶24) (Miss. 2011).

¶23. Each of the elements of a prescriptive easement “must be proven by clear and convincing evidence.” Thornhill, 594 So. 2d at 1153. “‘Clear and convincing evidence’ is such a high evidentiary standard that it surpasses even the standard of‘overwhelming weight’ of the evidence.” Miss. Comm’n on Judicial Performance v. Shoemake, 191 So. 3d 1211, 1218 (¶26) (Miss. 2016). “Where the appealing party has such a burden at trial, he necessarily has a higher hill to climb on appeal . . . .” Mullins v. Ratcliff, 515 So. 2d 1183, 1189 (Miss. 1987). “Put otherwise, the minimum evidentiary offering from the unburdened appellee necessary for affirmance is less than it would be if the preponderance of the evidence rule applied.” Id.; accord Matthews v. Whitney Bank, 282 So. 3d 786, 794-95 (¶29) (Miss. Ct. App. 2019).

¶24. Thornton argues that we should abandon our usual, deferential standard of review in this case. He contends that we should review Judge Martin’s findings de novo because Judge Martin did not preside over the trial or personally observe the witnesses. However, the cases that Thornton cites are inapposite. For example, in Amiker v. Drugs For Less Inc., 796 So. 2d 942 (Miss. 2000), the Supreme Court held that “a successor judge does not possess the power to vacate an initial judge’s order granting a new trial where . . . the successor judge sits in an inferior position to the first judge.” Id. at 948 (¶22) (emphasis added). Judge Martin did not vacate any prior findings by Judge Walker. Rather, Judge Martin simply made findings of fact based on the evidence presented at trial and his view of the property—just as the parties agreed that he should.

¶25. In addition, in Gulf Coast Research Laboratory v. Amaraneni, 877 So. 2d 1250 (Miss. 2004), the Supreme Court held that the record was “woefully inadequate” to support the findings of a successor judge because, among other issues, the court reporter had failed to transcribe most of the original trial. Id. at 1252-54 (¶¶10-15). Therefore, the Supreme Court vacated and remanded the case for a new trial. Id. at 1254 (¶15). The problem in Gulf Coast
Research Laboratory was the adequacy of the record, not the standard of review. In this case, Judge Martin was provided the full and complete trial transcript, and the parties agreed that the record was adequate for Judge Martin to render a final decision. Thornton simply disagrees with the decision that Judge Martin rendered.

¶26. Although Judge Martin did not personally observe the witnesses, “[t]he rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility.” Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985). “The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise.” Id. There is no reason to believe that appellate second-guessing of such findings would do anything to improve their accuracy. Id. at 574-75. “In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade [ten] more judges at the appellate level is requiring too much.” Id. at 575. The trial “should be the main event rather than a tryout on the road.” Id. (quotation marks and ellipsis omitted).

¶27. Thornton agreed that the record created at trial was adequate for Judge Martin to make findings and issue a final decision. That being the case, we apply our ordinary substantial evidence/manifest error test to those findings.

II. The chancellor did not manifestly err by denying Thornton’s claim.

¶28. The six elements of a prescriptive easement are set out above. Supra ¶21. To establish an easement by prescription, each of those six elements must be proved by clear and-convincing evidence. Therefore, the claim fails if the claimant fails to prove even one of the six elements. See, e.g., Miss. Sand Solutions LLC v. Otis, 248 So. 3d 813, 818-20 (¶¶19-29) (Miss. 2018); Paw Paw Island Land Co. v. Issaquena & Warren Counties Land Co., 51 So. 3d 916, 923-26 (¶¶27-41) (Miss. 2010); Biddix v. McConnell, 911 So. 2d 468, 475 (¶18) (Miss. 2005); Sharp v. White, 749 So. 2d 41, 43 (¶9) (Miss. 1999); Watts v.
Jackson, 281 So. 3d 203, 206 (¶18) (Miss. Ct. App. 2019).

¶29. As noted above, the chancellor found that Thornton failed to prove four of the six elements of a prescriptive easement. As to the “open, notorious, and visible” element, the chancellor found in part:

The problem with proving this element is the intermittent use proven by the Plaintiff. . . . Most, if not all of the use which was specifically referenced by the Plaintiff or his family members related to hauling hay or harvesting corn. This use is limited to a few days each year. No evidence was shown of daily, weekly or even monthly use or ongoing maintenance by the Plaintiff that might have put property owners on notice that someone was using the roadway. Considering the rural nature of the surrounding area and the lack of residences along the roadway, the Court cannot say that use a few days a year constitutes clear and convincing evidence of open, notorious and visible use.

¶30. A party claiming an easement by prescription is not required to prove “that the way has been in constant use, day and night.” Threlkeld v. Sisk, 992 So. 2d 1232, 1238 (¶17) (Miss. Ct. App. 2008) (quoting Rawls v. Blakeney, 831 So. 2d 1205, 1210 (¶16) (Miss. Ct. App. 2002)). However, the claimant is required to establish that the servient landowner knew of and acquiesced in the adverse use or that the adverse use was “so open, notorious, visible,
and uninterrupted that knowledge and acquiescence will be presumed.” Myers v. Blair, 611 So. 2d 969, 971 (Miss. 1992) (quoting McIntyre v. Harvey, 158 Miss. 16, 21, 128 So. 572, 573 (1930), overruled on other grounds by Rutland v. Stewart, 630 So. 2d 996, 999 (Miss. 1994)). We cannot say that the chancellor in the present case manifestly erred in finding that Thornton failed to establish this element of his claim by clear and convincing evidence.

¶31. To begin with, there is substantial evidence to support the chancellor’s finding that the Thorntons’ alleged use of the road was limited to a few days per year, which would not have provided sufficient notice to other landowners in this rural, sparsely populated area. Moreover, Timothy Patterson and Royce Welch described the path as just a “little pig trail” or “little trail” until the mid-1970s, when an oil company improved and widened it. Patterson
denied that the Thorntons used the path to plant or harvest crops or hay while he lived there, and Welch similarly denied that the Thorntons had ever grown hay, corn, or other row crops in the area. Accepting their testimony as true, nothing about the use or appearance of the road should have alerted neighboring landowners to any significant adverse use of their properties. The testimony of Patterson and Welch conflicted with testimony of Thornton and his other witnesses, who described driving down a gravel road via truck, tractor, and wagon even before the improvements in the 1970s. However, the mere presence of conflicting evidence does not render the chancellor’s findings manifestly erroneous. Rather, such conflicts must be decided by the trial judge, as the fact-finder. E.g., Powell v. Campbell, 912 So. 2d 978, 981 (¶9) (Miss. 2005). Therefore, we cannot say that the chancellor manifestly
erred by finding that Thornton failed to prove, by clear and convincing evidence, that his family’s use of the property was open, notorious, and visible.

CONCLUSION

¶32. All six elements of a prescriptive easement must be proved by clear and convincing evidence. If the claimant fails to meet his burden on any one element, the claim fails. We hold that the chancellor did not manifestly err by finding that Thornton failed to establish by clear and convincing evidence that his family’s use of Alvie Rankin Road was open, notorious, and visible. Therefore, we need not address the chancellor’s findings regarding
the remaining elements of Thornton’s claim. The judgment of the chancery court denying a prescriptive easement is AFFIRMED.

Lots of nice, helpful law there, and a fine exposition on the law of prescriptive easements and adverse possession.

Jointly-titled Separate Property

April 13, 2020 § 3 Comments

Carrie Anderson’s grandmother decided to give her a 59-acre parcel of land in 2013. When she went to the family lawyer’s office to pick up the deed, she found that he had added the name of her husband, T.J., to it as joint tenant. She later said that she was afraid to insist that it be titled in her sole name because of T.J.’s temper.

In 2015 the parties consented to an ID divorce and the chancellor found the property to be part of Carrie’s separate estate. T.J. appealed.

In Anderson v. Anderson, the COA affirmed. Judge Tindell wrote for the unanimous court:

¶18. The chancery court found that the fifty-nine acres from Carrie’s grandmother jointly titled in Carrie’s and T.J.’s names was Carrie’s separate, non-marital property, as follows:

While some coercion may have been placed on Carrie to have T.J.’s name place on the deed [to the fifty-nine acres], even if there had been no coercion, the Court would still find the 59 acres to be Carrie’s separate, non-marital property. The property came from Carrie’s grandmother debt free. The parties never improved the property or put any money into the property.

The chancery court recognized that “[i]nter vivos gifts and inheritances are considered non-marital property unless they have been commingled.” McDonald v. McDonald, 115 So. 3d 881, 885-86 (¶12) (Miss. Ct. App. 2013). The chancery court found that “[t]he fact that the 59 acres was jointly titled [in this case] did not make it a marital asset.” Id. at 886 (¶¶12-14) (finding property purchased with funds inherited by a husband was the husband’s
separate property despite the property being jointly titled in both the husband and the wife); see also Marter v. Marter, 95 So. 3d 733,737-38 (¶¶11-16) (Miss. Ct. App. 2012) (finding that property inherited by a wife prior to marriage and later jointly titled remained the wife’s separate property); Delk v. Delk, 41 So. 3d 738, 741-42 (¶17) (Miss. Ct. App. 2010) (recognizing that condominium property separately owned by a wife prior to marriage but
later jointly titled did not become marital property until the couple began using the property as their marital home, and thus the husband was not entitled to a full half of the proceeds from the condominium). The chancery court expressly noted that “[t]he parties never lived on or improved the property. There was absolutely no commingling with marital property nor was the property utilized for domestic purposes.” Continuing, the chancery court found that the fifty-nine acres did “not los[e] its status as nonmarital property,” and ordered that T.J. deed his interest in the tract of land to Carrie.

¶19. T.J. asserts that the chancery court committed manifest error in this determination because the property at issue in this case was never Carrie’s separate property in the first place, and thus the cases the chancery court relied upon in making its determination, McDonald, Marter, and Delk, are distinguishable. T.J. argues that in contrast to the circumstances in these cases, Carrie did not inherit the property, it was not purchased with inherited money, and was it not property Carrie owned prior to the marriage and later jointly titled. Rather, the property was acquired during the marriage and titled directly from Mrs. Hansberger to both T.J. and Carrie as an inter vivos gift; therefore, according to T.J., it is marital property, and he is entitled to an equitable division of that property.

¶20. Carrie, on the other hand, asserts that the evidence supports the chancery court’s determination that the fifty-nine acres from her grandmother is her separate property and that under the cases relied upon by the chancery court, the mere fact that the property is jointly titled in both her and T.J.’s names does not, standing alone, convert the property to marital property subject to equitable distribution.

¶21. In addressing this issue, we acknowledge that “[a]ssets acquired or accumulated during the course of a marriage are subject to equitable division unless it can be shown by proof that such assets are attributable to one of the parties’ separate estates prior to the marriage or outside the marriage.” Hemsley v. Hemsley, 639 So. 2d 909, 914 (Miss. 1994); see generally Deborah H. Bell, Bell on Mississippi Family Law § 6.03[1][a], at 139 (2d ed. 2011) (“Because of the presumption in favor of marital property, a spouse seeking separate classification bears the burden of proof.”). Although, as T.J. asserts, the record does contain the 2013 warranty deed from Mrs. Hansberger to both T.J. and Carrie obtained by them during their marriage, we find that the record also contains substantial, credible evidence supporting the chancery court’s determination that this property is attributable to Carrie’s separate estate.

¶22. In particular, although neither Mrs. Hansberger nor the attorney who prepared the deed testified at trial, Carrie testified that it was her grandmother’s intent that she (Carrie) have the property. [Fn omitted] Moreover, there was ample evidence presented at trial that Carrie legitimately feared for her safety and welfare if she did not have the land jointly titled, and thus she was essentially coerced into doing so. [Fn 9] Cf. Estate of Langston v. Williams, 57 So. 3d 618, 620-21 (¶10) (Miss. 2011) (describing the analogous concept of undue influence in the will context as using “undue methods for the purpose of overcoming the free and unrestrained will of the testator so as to control his acts and to prevent him from being a free agent”); Bailey v. Estate of Kemp, 955 So. 2d 777, 783 (¶23) (Miss. 2007) (discussing the analogous concept of duress as requiring “(1) that the dominant party threatened to do something which he had no legal right to do; and (2) that the wrongful threat overrode the volition of the victim and caused him to enter an agreement against his free will”).

[Fn 9] As detailed in the statement of facts, Carrie testified that she was too afraid of T.J. to have title placed in her name alone. Regarding this fear, the record reflects that T.J. had attacked Carrie, punched numerous holes in the walls and doors in both their Tupelo and Senatobia homes, killed several of their dogs, and frequently threatened and verbally abused Carrie. As noted, the chancery court granted Carrie a divorce on the statutory ground of habitual cruel and inhuman treatment.

¶23. In short, there is substantial, credible evidence that the property was intended to be Carrie’s property and that her fear of T.J. prevented her from having it titled in her name. The chancery court therefore was correct in relying on McDonald, 115 So. 3d at 885-86 (¶¶12-14), in determining that “[t]he fact that the 59 acres was jointly titled [in this case] did not make it a marital asset.” See also Marter, 95 So. 3d at 737-38 (¶¶11-16); Delk, 41 So. 3d at 741-42 (¶17). The record reflects that the property was debt-free, the parties made no financial contribution toward the property or its maintenance during the marriage, and the parties did not use it. We find no manifest error in the chancery court’s determination on this issue, and we therefore find that T.J.’s first assignment of error is without merit.

Attorney’s Fees in Lieu of Punitive Damages

April 6, 2020 § Leave a comment

Allen Cronier got into a property dispute with two businesses owned by the Rainwater brothers. The dispute spilled into chancery court, and, following a trial, in which the chancellor ruled against him and awarded attorney’s fees, Cronier appealed. The COA affirmed in part, but reversed in Cronier v. ALR Partners L.P., 248 So. 3d 861, 864 (¶1) (Miss. Ct. App. 2017), cert. denied, 247 So. 3d 1264 (Miss. 2018). The court remanded for a determination by the chancellor whether the award of attorney’s fees against Cronier was in lieu of punitive damages.

Here is a recap of the case from Cronier v. ALR Partners, et al., decided by the COA on March 10, 2020:

¶2. Cronier purchased a parcel of land in Jackson County in July 2012. Id. at 865 (¶¶2-3). [Fn omitted] At the time, Cronier believed that the parcel comprised eighty acres, though he did not have the property surveyed before he purchased the property to verify that understanding. Id. Cronier had the property surveyed later. Id. at (¶3). The survey revealed that the parcel he had purchased was only about seventy acres and that there was a boundary issue with the adjoining property owned by the Rainwaterses. Id. at (¶¶3-5). The survey also indicated that the property corners and boundaries were marked with posts, the remains of old fences, and yellow paint blazes on trees. Id. At a post-survey meeting between Cronier and the Rainwaterses, before Cronier abruptly left, Cronier announced that “he had paid for eighty acres and said, ‘by God I’m going to get eighty acres . . . . I know what I’ve got to do.’” Id. at 866 (¶6). Following this meeting, the Rainwaterses went to inspect the property and found that certain old boundary markers were missing. Id. at (¶7). In March 2013, Cronier informed the Rainwaterses that he had conveyed the disputed property to his minor granddaughter. Id. at (¶8). The Rainwaterses visited the property again and discovered that more boundary markers had been removed or defaced. Id. at (¶9). Cronier later built a fence and gate around the perimeter of the property, including the disputed ten-acre parcel. Id. at (¶11).

¶3. This litigation ensued. Id. at (¶¶10-11). The Rainwaterses asserted claims against Cronier for trespassing, compensatory and punitive damages, and attorney’s fees. Id. In March 2016, the chancellor ruled in favor of the Rainwaterses on their claim of adverse possession of the 9.57 acres at issue, and the court entered a final judgment to this effect in April 2016. Id. at 868 (¶19). On December 12, 2017, we affirmed the court’s judgment regarding adverse possession, but we reversed and remanded in part “for clarification of whether punitive damages were awarded in the form of attorney fees.” Id. at 871-72 (¶39) (citing Pursue Energy Corp. v. Abernathy, 77 So. 3d 1094, 1102 (¶26) (Miss. 2011); AquaCulture Tech. Ltd. v. Holly, 677 So. 2d 171, 184 (Miss. 1996)).

¶4. On January 29, 2018, before the mandate issued from this Court, [Fn omitted] the chancery court entered a final judgment on remand, finding that “Cronier acted with actual malice” and ordering Cronier to “pay the Rainwaters[es’] attorney’s fees in the amount of $10,790.00 in lieu of punitive damages.” Cronier filed a motion to set the judgment aside based on the chancery court’s lack of jurisdiction pending the final disposition of his appeal. On February 14, 2018, the chancery court entered an agreed order setting aside its January 29, 2018 final judgment.

¶5. On October 1, 2018, after the appeal was final, the chancery court entered its final judgment. In it, the chancellor adopted and incorporated the findings contained in the January 29, 2018 final judgment. Specifically, the chancellor found that Cronier had “acted with actual malice, and [Cronier] shall pay the Rainwaters[es’] attorney’s fees in the amount of $10,790.00 in lieu of punitive damages.” Relying on Pursue Energy and Holly, the chancellor clarified that attorney’s fees were awarded in lieu of punitive damages “due to [Cronier’s] actions, which included erecting a fence around the property in clear disregard of the Rainwaters[es’] rights and conveying property to his minor granddaughter when he knew there was a serious claim for the subject property.” Cronier now appeals from this judgment.

In his second appeal, Cronier argued that the chancellor erred in awarding attorney’s fees in lieu of punitive damages, and that the evidence was insufficient to support the judge’s findings. Judge Greenlee wrote for the 9-1 court:

¶7. On appeal, Cronier contends that the chancellor erred in awarding attorney’s fees in lieu of punitive damages. Specifically, he contends that the evidence is insufficient to support the chancellor’s finding that he acted with “actual malice,” such that the award of attorney’s fees in lieu of punitive damages was improper.

¶8. “Mississippi follows the general rule that, in the absence of a contractual agreement or statutory authority, attorney’s fees may not be awarded except in cases in which punitive damages are proper.” Tunica County v. Town of Tunica, 227 So. 3d 1007, 1027 (¶49) (Miss. 2017) (citing Grisham v. Hinton, 490 So. 2d 1201, 1205-06 (Miss. 1986)). Generally, punitive damages may only be awarded when a plaintiff proves “by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud.” Miss. Code Ann. § 11-1-65(1)(a) (Rev 2014); see also Wise v. Valley Bank, 861 So. 2d 1029, 1034 (¶15) (Miss. 2003) (“[T]he plaintiff must demonstrate a willful or malicious wrong, or the gross, reckless disregard for the rights of others.”). “[A]n actual award of punitive damages is not a prerequisite for an award of attorney’s fees; rather, attorney’s fees are warranted where ‘the awarding of punitive damages would have been justified,’ even if punitive damages are not awarded.” Tunica County, 227 So. 3d at 1029 (¶54) (quoting Holly, 677 So. 2d at 185). Thus, “attorney fees may be awarded instead of punitive damages.” Cronier, 248 So. 3d at 871 (¶39).

¶9. On remand, the chancellor found that Cronier acted with actual malice based on Cronier’s actions, “which included erecting a fence around the property in clear disregard of the Rainwaters[es’] rights and conveying property to his minor granddaughter when he knew there was a serious claim for the subject property.” Cronier responds that attorney’s fees are not proper and that the “conduct or conditions” required to award punitive damages are not present in this case. After reviewing the record, we find no manifest error in the chancellor’s finding of actual malice.

¶10. The record thus supports the chancellor’s finding that Cronier’s conduct justified an award of punitive damages. After Cronier’s surveyor revealed that the property Cronier purchased was only seventy acres, the parties met to discuss the issue. Cronier declared that he had paid for eighty acres and said, “[B]y God I’m going to get eighty acres . . . . I know what I’ve got to do.” Thereafter, the Rainwaterses discovered that boundary markers had been removed or defaced, and Cronier informed the Rainwaterses that he had conveyed the parcel, including the disputed land, to his minor granddaughter. Cronier also proceeded to erect a fence and gates around the property despite the dispute over title. The chancellor’s findings that Cronier acted with “actual malice” and in “clear disregard of the Rainwaters[es’]rights” are thus supported by substantial evidence, and the chancellor did not err in awarding attorney’s fees in lieu of punitive damages.

Two thoughts:

I see requests for attorney’s fees in all kinds of suits that aren’t divorce-related or contempts. Seldom does the proof rise to the level spelled out by Judge Greenlee in ¶8. If you are serious about pursuing that claim for fees, you’ve got to put adequate proof in the record. Paragraph 8 tells you what you need to prove.
And the moral of this story is: Although it’s true that self-help is always an option, it can cost you.

To Set Aside a Default Judgment

August 6, 2019 § Leave a comment

American Pride LLC filed suit to quiet and confirm title to property it acquired at a tax sale. It obtained a default judgment against John Vanaman, who owned the property.

Vanaman filed a motion in the trial court to set aside the default judgment, which the chancellor denied. Vandaman appealed, arguing that he was not properly served with process and that the chancellor’s decision did not properly follow the law.

In Vanaman v. American Pride Properties, LLC, decided December 18, 2018, the COA reversed and remanded, finding that the chancellor’s decision not to set aside the default judgment was in error, but finding that Vanaman was properly served with process. On the setting aside of the default judgment, the court pointed out that the trial court is required to apply a three-prong balancing test:

(1) the nature and legitimacy of the defendant’s reason for default (i.e., whether the defendant has good cause for default); (2) whether the defendant has a colorable defense to the merits of the claim; and (3) the nature and extent of the prejudice which may be suffered by the plaintiff if the default judgment is set aside. American States Insurance Co. v. Rogillio, 10 So. 3d 463, 468 (Miss. 2009).

Rogillio adds that the second factor is the most important. In Vanaman, the court upheld the chancellor on the first factor and reversed on the second. Judge Irving wrote the court’s opinion:

¶17. With respect to the second prong, Vanaman argues that he has a colorable defense because the chancery clerk did not follow the requirements of Mississippi Code Annotated section 27-43-3 (Rev. 2017) in issuing the notice of forfeiture stemming from the tax sale of the Wortham Road property. Vanaman maintains that he was not properly served with the notice of forfeiture either personally or by certified mail to his usual place of abode, and that publication was not proper. In response, American Pride asserts that Vanaman did not contest the validity of the notice of forfeiture provided by certified mail or by publication. Rather, he only took issue with the personal service provided by the sheriff. With respect to personal service, American Pride maintains that the 20440 Armes Road address was the proper location to serve Vanaman given that it was the address listed on the 2001 quitclaim deed, and that the chancery clerk had no reason to believe that Vanaman’s address was anything other than that.

¶18. Of the three prongs of the Rogillio balancing test, this one is the most important. Rogillio, 10 So. 3d at 470 (¶16). Our supreme court explained the meaning of a “colorable defense” in Tucker v. Williams, 198 So. 3d 299, 312 (¶35) (Miss. 2016):

“Colorable” is defined as appearing to be true, valid, or right. A colorable defense is one that reasonably may be asserted, given the facts of the case and the current law. A defense need not be compelling, be proven to trial standards, or be supported by sworn evidence in order to qualify as a “colorable defense.” Rather, the defense must be a reasonable one. Indeed, this Court has held that even a defense of questionable strength may be colorable.

(Citations and internal quotation marks omitted).

¶19. Mississippi Code Annotated section 27-43-1 (Rev. 2017) requires that a chancery court clerk, “within one hundred eighty (180) days and not less than sixty (60) days prior to the expiration of the time of redemption with respect to land sold, either to individuals or to the state . . . issue notice to the record owner of the land sold as of 180 days prior to the expiration of the time of redemption.” Section 27-43-3 requires that redemption notice be given by personal service, mail, and publication in an appropriate newspaper:

The clerk shall issue the notice to the sheriff of the county of the reputed owner’s residence, if he is a resident of the State of Mississippi, and the sheriff shall be required to serve notice as follows:

(a) Upon the reputed owner personally, if he can be found in the county after diligent search and inquiry, by handing him a true copy of the notice;

(b) If the reputed owner cannot be found in the county after diligent search and inquiry, then by leaving a true copy of the notice at his usual place of abode with the spouse of the reputed owner or some other person who lives at his usual place of abode above the age of sixteen (16) years, and willing to receive the copy of the notice; or

(c) If the reputed owner cannot be found after diligent search and inquiry, and if no person above the age of sixteen (16) years who lives at his usual place of abode can be found at his usual place of abode who is willing to receive the copy of the notice, then by posting a true copy of the notice on a door of the reputed owner’s usual place of abode.

The sheriff shall make his return to the chancery clerk issuing the notice. The clerk shall also mail a copy of the notice to the reputed owner at his usual street address, if it can be ascertained after diligent search and inquiry, or to his post-office address if only that can be ascertained, and he shall note such action on the tax sales record. The clerk shall also be required to publish the name and address of the reputed owner of the property and the legal description of the property in a public newspaper of the county in which the land is located, or if no newspaper is published as such, then in a newspaper having a general circulation in the county. The publication shall be made at
least forty-five (45) days prior to the expiration of the redemption period.

. . . .

Notice by mail shall be by registered or certified mail. In the event the notice by mail is returned undelivered and the notice as required in this section to be served by the sheriff is returned not found, then the clerk shall make further search and inquiry to ascertain the reputed owner’s street and post-office address. If the reputed owner’s street or post-office address is ascertained after the additional search and inquiry, the clerk shall again issue notice as set out in this section. If notice is again issued and it is again returned not found and
if notice by mail is again returned undelivered, then the clerk shall file an affidavit to that effect and shall specify in the affidavit the acts of search and inquiry made by him in an effort to ascertain the reputed owner’s street and post-office address and the affidavit shall be retained as a permanent record in the office of the clerk and that action shall be noted on the tax sales record. If the clerk is still unable to ascertain the reputed owner’s street or post-office address after making search and inquiry for the second time, then it shall not be necessary to issue any additional notice but the clerk shall file an affidavit specifying the acts of search and inquiry made by him in an effort to ascertain the reputed owner’s street and post-office address and the affidavit shall be retained as a permanent record in the office of the clerk and that action shall be noted on the tax sale record.

. . . .

Should the clerk inadvertently fail to send notice as prescribed in this section, then the sale shall be void and the clerk shall not be liable to the purchaser or owner upon refund of all purchase money paid.

“All three requirements must be met for the redemption notice to be complete and in accordance with the statute.” Cleveland v. Deutche Bank Nat. Tr. Co., 207 So. 3d 710, 715 (¶20) (Miss. Ct. App. 2016). Statutes governing notice of a tax sale are “to be strictly construed in favor of the landowners, and any deviation from the statutorily mandated procedure renders the sale void.” Id.

¶20. We disagree with American Pride that Vanaman failed to raise the issue of notice via certified mail or publication. Vanaman argues that his motion to set aside the court’s default judgment was erroneously denied; inherent in the analysis of whether a court should have set aside a default judgment is the question of whether the landowner has a colorable defense. As such, this issue is properly before us on appeal.

¶21. As Vanaman points out, several documents were filed with the chancery clerk’s office listing his address as 22311 L. Lizana Road following the execution of the quitclaim deed in 2001, including a certificate of redemption in 2010 and a release from delinquent tax sale in 2012. Despite the filing of these documents with the chancery clerk, the notice of forfeiture executed on April 1, 2015, still listed Vanaman’s address as 20440 Armes Road. We further take note of the fact that whoever signed the return receipt on April 8, 2015, after delivery of the notice of forfeiture, actually wrote out a different address—22311 L. Lizana Road—from the address the notice was actually delivered to—20440 Armes Road. It is clear from the record that Vanaman had a colorable defense with respect to whether service was properly effectuated regarding the notice of forfeiture. As stated, this factor is the most significant of the Rogillio balancing test; we find that it weighs in favor of Vanaman, and that it merits the default judgment being set aside.

The court, brushing aside American Pride’s argument that it would be prejudiced if the default judgment were set aside because it had invested two years of litigation expenses in the case, held that prejudice “must be something more than the routine cost of litigation” (¶23).

The two obvious takeaways here are: (1) that if you expect to set aside a default judgment, you had better have a colorable claim; and (2) any failure of the clerk or sheriff to comply with every detail of the statute can get your tax sale set aside.

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).

Where Am I?