IN THE COURT OF APPEALS STATE OF MISSISSIPPI APPEAL FROM THE SPECIAL COURT OF EMINENT DOMAIN OF WAYNE COUNTY, MISSISSIPPI

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1 E-Filed Document May :19: CA COA Pages: 11 IN THE COURT OF APPEALS STATE OF MISSISSIPPI No.2016-CA COA CURTIS RAY MCCARTY, JR. vs. VS. ARTHUR E. WOOD, III, AND PAULA WOOD APPELLANT APPELLEES APPEAL FROM THE SPECIAL COURT OF EMINENT DOMAIN OF WAYNE COUNTY, MISSISSIPPI REPLY BRIEF OF APPELLANT CURTIS RAY MCCARTY, JR. ORAL ARGUMENT REQUESTED J. Richard Barry (MSB #2077) James C. Griffin (MSB #104566) BARRY, THAGGARD, MAY & BAILEY, LLP 505 Constitution Ave. Post Office Box 2009 Meridian, Mississippi, Telephone: (601) Facsimile: (601) Attorneys for Appellant, Ray McCarty, Jr.

2 TABLE OF CONTENTS TABLE OF CONTENTS... 1 TABLE OF AUTHORITIES... 2 REPL Y ARGUMENT... 3 I) REQUEST FOR ORAL ARGUMENT... 3 II) PUBLIC POLICY CONCERNS... 4 III) RESPONSE TO CROSS-APPEAL A. The Trial Court Did Not Abuse Its Discretion In Denying Appellee's Request For Attorneys' Fees Under Rule 11 And The Litigation Accountability Act B. Because This Court Should Not Overturn The Trial Court's Denial Of Attorneys' Fees Based On An Abuse Of Discretion, This Court Should Not Determine This Appeal To Be Frivolous Pursuant To Rule 38 And Should Not Award Appellees Damages Or Double Costs... 8 IV) CONCLUSION... 9 CERTIFICATE OF SERVICE

3 TABLE OF AUTHORITIES Cases: Statutes: Rules: Aetna Casualty & Surety Co. v. Steele, 373 So.2d 797,801 (Miss.l979)... 6 Broadhead v. Terpening, 611 So.2d 949 (Miss. 1992)... 3 Davis v. Biloxi Public School District, 43 So.3d 1135 (Miss. 2009)... 7 Foster v. Ross, 804 So.2d 1018, 1024 (Miss. 2002)... 6 In re Spencer, 985 So.2d 330, 338 (Miss. 2008)... 6 McBride v. Meridian Public Improvement COlporation, 730 So.2d 548 (Miss. 1998)... 7 Tricon Metals & Services, Inc. v. Topp, 537 So.2d 1331, 1335 (Miss. 1989)... 6 Triplett v. Brunt-Ward Chevrolet, Oldsmobile, Pontiac, Buick, Cadillac, GMAC Trucks, Inc., 812 So.2d 1061 (Miss. Ct. Apop. 2001)... 6, 7 Miss. Code Ann Miss. Code Ann Miss. Code Ann passim Miss. R. Civ. P ,8, 9 Miss. R. App. P ,9 2

4 REPLY ARGUMENT I) REQUEST FOR ORAL ARGUMENT Appellant in this case requests Oral Argument before this Court. Specifically, There are fundamental and urgent issues of broad public importance requiring prompt and ultimate determination by the Court of Appeals. There are also substantial constitutional questions as to the validity and function of Miss. Code Ann There are issues of fundamental fairness at play in this case, including whether a landowner should have access to his land. This case will require the Court to examine the plurality opinion of Broadhead v. Terpening, 611 So.2d 949 (Miss. 1992). This appeal will also require the Court of Appeals to examine the denial of attorneys' fees below, and whether the trial court's denial of attorneys' fees below was an abuse of discretion. The Court of Appeals should grant oral argument in this appeal and set this matter for hearing. 3

5 II) PUBLIC POLICY CONCERNS Within their Brief, Appellees state that there "are no issues" of fundamental fairness or public at play in this case, but that is not entirely accurate. As the Appellant has set forth in his Brief on appeal, as well as at the trial court below, Appellees made issues of fundamental fairness and public policy part of this litigation by raising them in their initial Motion for Summary Judgment. (R at ) Appellant unmistakably made and raised these arguments in defense of summary judgment before the trial court. Appellant again argues that there is a great public policy concern at play in this appeal. Specifically, that public concern is denying Appellant, a taxpaying Mississippian, his right to access his land, when he is attempting to use the legal channels explicitly afforded to him under the Mississippi Code. If the Court upholds the trial court's decision, Appellant will own a landlocked parcel of land and have absolutely no manner or ability in which to access it. This defies logic and is truly unjust considering the availability of Miss. Code Ann Appellee summarily dismissed this issue in their Brief. Therefore, Appellant feels it important to reiterate here that the trial court should have found that "public policy" should be to follow the Mississippi Code as it was enacted by the Legislators, in their role as representatives of the greater public at large. Fundamental fairness and public policy should have dictated that Appellant not be barred from proceeding under the statute to access his land. A private road for ingress and egress is necessary in order for Appellant to enjoy and use this land. Therefore, the trial court should have condemned the property as provided in the Code, and Appellant should have been forced to pay what was determined to be "reasonable compensation" for the same under the Eminent Domain 4

6 title. This is explicitly is what the State of Mississippi's "public policy" is with regards to Appellants' situation, and the circumstances as presented to the Special Court of Eminent Domain in this case. Appellant again argues that the trial court erred in ruling against such principles. As such, the Appellant argues that the Special Court of Eminent Domain's decision to grant summary judgment in favor of Appellees should be reversed. III) RESPONSE TO CROSS-APPEAL A. The Trial Court Did Not Abuse Its Discretion In Denying Appellee's Request For Attorneys' Fees Under Rule 11 And The Litigation Accountability Act. Respectfully, the judgment below as to the Appellees' request for attorneys' fees should be affirmed. Specifically, Appellant believes in good faith he has a statutorily created and protected right to file suit under the Mississippi Code for the establishment for a private road across the land of Appellees. Appellant continues to see his claim under Miss. Code Ann as a viable claim under the statute, and as a separate and adequate remedy at law which should not be precluded by res judicata or collateral estoppel. Appellant argued this position in response to the request for attorneys' fees below. The trial court denied Appellees' request for attorneys' fees under the standards of Rule 11 and the Litigation Accountability Act. This Court should not overturn the trial court's denial on this issue as an abuse of discretion. Rule 11 (b) states as follows: If any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay, the court may order such party or his attorney, or both, to pay to the opposing party or parties the 5

7 reasonable expenses incurred by such other parties and by their attorneys, including reasonable attorney's fees. Miss. R. Civ. P. II(b). The Litigation Accountability Act states as follows: Except as otherwise provided in this chapter, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorney's fees and costs otherwise assessed, reasonable attorney's fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification... Miss. Code Ann (1). The phrase "without substantial justification" is defined by the statute as being a filing which is "frivolous, groundless in fact or in law, or vexatious, as determined by the court." Miss. Code Ann (a) (emphasis added). The term "frivolous" as used in this section takes the same definition as it does under Rule 11: a claim or defense made "without hope of success." In re Spencer, 985 So.2d 330, 338 (Miss. 2008). And "[a] plaintiffs belief alone will not garner a hope of success where a claim has no basis in fact." Foster v. Ross, 804 So.2d 1018, 1024 (Miss. 2002). Whether a party has any "hope of success" is an objective standard to be analyzed from the vantage point of a reasonable plaintiff at the time the complaint was filed. Tricon Metals & Services, Inc. v. Topp, 537 So.2d 1331, 1335 (Miss. 1989). The denial of attorneys' fees is reviewed by this Court on an abuse of discretion standard. Aetna Casualty & Surety Co. v. Steele, 373 So.2d 797,801 (Miss.1979). The Appellees cite three Mississippi cases to support their position that the Court of Appeals should overturn and reverse the trial court's discretionary denial with regard to their request for attorneys' fees. First, Appellee cites to Triplett. In that case, the Court of Appeals 6

8 ultimately affirmed the trial court's discretionary imposition of sanctions. Triplett v. Brunt Ward Chevrolet, Oldsmobile, Pontiac, Buick, Cadillac, GMAC Trucks, Inc. 812 So.2d 1061 (Miss. Ct. Apop. 2001). Second, Appellee cites McBride. In that case, the Supreme Court ultimately affirmed the trial court's discretionary imposition of sanctions. McBride v. Meridian Public Improvement Corporation, 730 So.2d 548 (Miss. 1998). Third, Appellee cites Davis. In that case, the Supreme Court ultimately affirmed the trial court's discretionary imposition of sanctions. Davis v. Biloxi Public School District, 43 So.3d 1135 (Miss. 2009). What do all of these cases have in common? In each case the appellate court ultimately affirmed the trial court's discretionary grant of attorneys fees. In this case, the Court of Appeals would have to find that the trial court made clear error and abused its discretion in denying attorneys' fees and then reverse the trial court's decision in order to impose attorney fee sanctions. The circumstances of this case do not warrant such action in this appeal. And there are countless other cases where the appellate courts have affirmed a trial court's discretionary denial of attorneys' fees. As fully explained ad nauseam, Appellant affirmatively believes that his cause of action, which was filed under the statute, was separate and distinct from the other two lawsuits. However, not only does the Appellant's good faith belief of the same justify the filing of this lawsuit but the specific process utilized by Appellant, as listed and set out explicitly in the Mississippi Code, also justifies the filing ofthis lawsuit. Filing a lawsuit explicitly pursuallt to tlte procedure set forth the Mississippi Code, which seeks an explicit remedy under the Mississippi Code, should never be seen as frivolous or without "any hope ofsuccess". In fact, all of the parties even mediated this matter below; and in fact, Appellant settled with former 7

9 Defendant Plum Creek and was successful in obtaining resolution of at least part of the private road he needs to reach his land. All of this was due to the lawsuit which had been filed. The fact that Appellant had no chance of success is simply not true, and in fact one could argue that in a way to date Appellant has been fifty percent successful in his hopes to have the private road laid, he merely lacks access through the Appellees' land. The trial court recognized that this is a novel issue. The trial court also acknowledged the harshness of the result. The trial court did not abuse its discretion in denying attorneys' fees below. Denial of attorney fees in this case was completely within the trial court's discretion. Attorney fees were properly and justifiably denied below, and this Court should not disturb the trial court's decision on this issue. B. Because This Court Should Not Overturn The Trial Court's Denial Of Attorneys' Fees Based On An Abuse Of Discretion, This Court Should Not Determine This Appeal To Be Frivolous Pursuant To Rule 38 And Should Not Award Appellees Damages Or Double Costs. Denying Appellees' request for attorneys' fees was well within the discretion of the trial court. While Rule 38 of the Mississippi Rules of Appellate Procedure provides for attorneys' fees to the prevailing party for defending a frivolous lawsuit. Pursuant to that Rule, "[i]n a civil case to which Miss. Code Ann does not apply, if the Supreme Court or Court of Appeals will determine that an appeal is frivolous, it will award just damages and single or double costs to the appellee." Miss. R. App. P. 38. This Court evaluates the Rule 38 frivolity by reference to its definition under Rule 11 as discussed supra. Because this Court should not overturn the trial court's denial of attorneys' fees under the 8

10 Rule 11 standard, this Court should not determine this appeal to be frivolous pursuant to Rule 38 pursuant to that same Rule 11 standard. The Appellant believed in good faith he had a statutorily created and protected right to file suit under the Code for the establishment for a private road. Appellant saw and continues to see this as a viable claim under the statute, and as a separate and adequate remedy at law which should not be precluded by res judicata or collateral estoppel. The trial court acknowledged the novel issue at play in this case as well as the closest of the issues. Respectfully, Appellant's case was not frivolous under Rule 11, and for that reason, the Court should not determine this appeal to be frivolous under Rule 38, should not award damages or costs. IV) CONCLUSION Again, the doctrine of res judicata should not have barred Appellant's suit under Miss. Code Ann Appellant sought his separate remedy at law by seeking the establishment of a private road over the land of another to have access to his land. Appellant did so by following the exact procedure that is set out in the Mississippi Code. Additionally, this Court should not affirm a decision which prevents a property-taxpaying Mississippian from accessing his land, when a valid vehicle for him to access his land is available under the law. Additionally, the Trial Court did not abuse its discretion in denying Appellee's request for Attorneys' Fees. As such, this Court should not overturn the Trial Court with regard to Appellee's Cross-Appeal, and Attorneys' Fees, damages and double costs should be denied. Respectfully submitted, this the 10 th day of May,

11 Isl James C. Griffin James C. Griffin (MSB #104566) J. Richard Barry (MSB #2077) BARRY, THAGGARD, MAY & BAILEY, LLP 505 Constitution Ave. Post Office Box 2009 Meridian, Mississippi, Telephone: (601) Facsimile: (601) Attorneys for Appellant, Curtis Ray McCarty, Jr. CERTIFICATE OF SERVICE I certify that I have this day electronically filed Appellant's Brief with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Honorable Terry L. Caves Honorable Risher Caves Caves & Caves, PLLC 525 North Fourth Avenue Laurel, MS Attorney for Appellees Arthur E. Wood, III and Paula Wood This, the 10 th day of May, I further certify that I have this day mailed via U.S. mail a true and correct copy of the foregoing Appellant's Brief to the following: Honorable Lester F. Williamson Judge, Special Court of Eminent Domain, Wayne County, MS 500 Constitution Ave. Meridian, MS This, the 11th day of May, lsi James C. Griffin James C. Griffin 10