(oae SUPREME COURT OF MISSISSIPPI NO.2012-CA-748 VERSUS

Transcription

1 SUPREME COURT OF MISSISSIPPI (oae RANDOLPH MAY, ET AL. VERSUS ADIRONDACK TIMBER I, LLC APPELLANTS NO.2012-CA-748 APPELLEE APPEAL FROM THE COUNTY COURT OF PIKE COUNTY, MISSISSIPPI SITTING IN THE SPECIAL COURT OF EMINENT DOMAIN BRIEF OF APPELLEE ADIRONDACK TIMBER I, LLC ***Oral Argument Not Requested*** Gee Ogletree (MSB M. Scott Jones (MSB ADAMS AND REESE LLP 1018 Highland Colony Parkway, Suite 800 Ridgeland, Mississippi Telephone: (601) Facsimile: (601)

2 SUPREME COUR-T OF MISSISSIPPI RANDOLPH MAY, ET AL. VERSUS ADIRONDACK TIMBER I, LLC APPELLANTS NO.2012-CA-748 APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following persons/entities have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Adirondack Timber I, LLC Appellee 2. Randolph May Appellant 3. Martha Gene May Appellant 4. Powell G. Ogletree, Jr. Counsel for Appellee 5. M. Scott Jones Counsel for Appellee 6. Alfred Lee Felder Counsel for Appellant 11

3 Tables of Contents Certificate of Interested Parties... _._....ii Table of Contents... iii Statement of Issues... v Summary of the Argument... '"... 1 Argument... 2 A. Standard of Review: Abuse of Discretion... 3 B. The Trial Court Did Not Abuse its Discretion by Concluding that Adirondack Satisfied its Burden of Proof for an Access Easement Under the Requirenients of Mississippi Code a. The Court Did Not Abuse its Discretion by Concluding that Access was Necessary... 5 b. The Court Did Not Abuse its Discretion by Concluding that Access was Reasonable... 7 C. The Trial Court Did Not Abuse its Discretion by Awarding Sanctions Conclusion Certificate of Service III

4 Table of Cases Mississippi Supreme Court Cases Alpaugh v. Moore, 568 So. 2d 291 (Miss. 1990) "... 1,4, 5, 8, 9 Broadhead v. Terpening, 611 So. 2d 949 (Miss. 1992) "... 3 Choctaw, Inc. v. Campbell-Cherry-Harrison-Davis and Dove, 965 So. 2d 1041 (Miss. 2007)... 3,10 City of Madison v. Bryan, 763 So. 2d 162 (Miss. 2000) In re Spencer, 985 So. 2d 330 (Miss. 2008) Leaf River Forest Prods. v. Deakle, 661 So. 2d 188 (Miss. 1995) Quinn v. Holly, 146 So. 2d 357 (Miss. 1962)... 4, 6 Rotenberry v. Renfro, 214 So. 2d 275, 278 (Miss. 1968)... 8 Mississippi Court of Appeals Cases Daley v. Hughes, 4 So. 3d 364 (Miss. App. 2008)... 3 Harkness v. Butterworth Hunting Club,Jnc., 58 So. 3d 703 (Miss. App. 2011)... 3 Ward v. Trimac Investments, LLC, 78 So. 3d 341 (Miss. App. 2011)... 9 Statutes and Rules Mississippi Code ,3,4,5,9 Miss. R. Civ. P. 11(b)... '" Miss. R. Civ. P ,10 IV

5 Statement of Issues A. Whether the trial court properly concluded that Adirondack Timber I, LLC satisfied its burden of proof at trial under Mississippi Code thereby establishing a right to an access easement across the land of the Mays? B. Whether the trial court properly sanctioned the Mays for filing a motion to alter or amend the trial court's order or, alternatively for a new trial, when the issues and arguments raised in the motion made the same arguments raised and trial and, therefore, had no hope of success? v

6 Summary of the Argument A. The Court Did Not Abuse its Discretion in Concluding that Adirondack Satisfied it Burden of Pl'oof for Obtaining a Right-of-Way Across the May Property Adirondack Timber I, LLC ("Adirondack") has attempted since 2007 to gain access to its landlocked property, consisting of approximately 240 acres in Lincoln County Mississippi. Appellants, Randolph and Martha May ("May") own approximately 75 acres in Lincoln and Pike County. The southern edge of the May property is bound by Caruth Drive, a public road, through which Adirondack seeks access. In total Adirondack seeks a narrow strip of land that is approximately 380 feet long and 50 feet wide. The total acreage is less than half an acre. Adirondack's property is particularly unique because of its location and topography. To the north it is bound by numerous creeks and streams. To the east it is bound by the Bogue Chitto River. To the west it is bound by the Canadian National Railway ("CNR"). To the south, the property is bound by the May property. Adirondack was able to negotiate with CNR to obtain land up to the May property, but CNR would not grant Adirondack a permanent crossing of the railway. As a result, the only reasonable option for Adirondack to obtain access was to the south across the May property. At trial, Adirondack offered testimony through three designated experts: a title attorney, a surveyor and the timber management/property manager. Each of these witnesses testified that the property was landlocked. The property manager (Mr. Butler) testified extensively about his consideration of and attempts to gain access to the property through other means. Based on this testimony, the court concluded that the only reasonable access for the Adirondack property was south across the May property because of the significant barriers to the north, west and east of the Adirondack property. Thus, the trial court granted Adirondack an easement under Mississippi Code l in accordance with the Supreme Court's decision in Alpaugh v. Moore, 568 So. 2d 291 (Miss. 1990). 1

7 Based on the substantial evidence presented at trial, there can be no plausible argument that the trial court abused its discretion in granting Adirondack's petition for an easement across the May land. Thus, the trial court should be affirmed. B. The Court Did Not Abuse its Discretion in Awarding Sanctions Against May After the trial, May filed a Rule 59 motion that did nothing other than assert the same argument presented by May at trial. May presented no new law or facts for consideration by the court. Thus, the trial court determined that the motion was frivolous and had no hope of success. Although Adirondack sought sanctions for all of its attorney fees in responding to the motion, the trial court awarded $ There was no abuse of discretion in this ruling. Thus, the trial court should be affirmed. Argument Appellee Adirondack Timber I, LLC ("Adirondack") filed a petition with the special court of eminent domain in Pike County, Mississippi for purposes of obtaining access to 240 acres oflandlocked property. The only issue at trial was whether Adirondack was entitled to an easement of360 feet long and 50 feet wide across the land Appellants Randolph and Martha May ("May"). The trial court concluded that Adirondack satisfied its burden of proof and granted the easement sought by Adirondack. May now appeals for two reasons. First, May argues that the trial court erred by concluding that Adirondack met its burden of proof for an easement across the May property. Second, May argues that the trial court erred in awarding sanctions against May for filing a motion to alter or amend the trial court's order or, alternatively for a new trial, when the issues and arguments raised in the motion made the same arguments raised and trial and, therefore, had no hope of success. 2

8 A. Standard of Review: Abuse of Discretion The standard of review for both issues raised.by May is abuse of discretion. The Supreme Court does not disturb a trial court's decision with regard to the granting of an easement unless the decision is either manifestly wrong or clearly erroneous. Harkness v. Butterworth Hunting Club,]nc., 58 So. 3d 703, 705 (Miss. App. 2011); Daley v. Hughes, 4 So. 3d 364, 367 (~ 6) (Miss. App. 2008). The award of sanctions is review under an abuse of discretion standard. Choctaw, Inc. v. Campbell-Cherry-Harrison-Davis and Dove, 965 So. 2d 1041,1045 (Miss. 2007). Where substantial evidence supports the decision, the Supreme Court must affirm the trial court's decision. Harkness, 58 So. 3d at 705. B. The Trial Court Did Not Abuse its Discretion by Concluding that Adirondack Satisfied its Burden of Proof for an Access Easement Under the Requirements of Mississippi Code Adirondack initiated this lawsuit under Mississippi Code 65-7 _201.1 The lower court properly applied this statute to the facts of this case. May's appeal seeks to expand the language of the statute by misinterpreting existing precedent in Mississippi. Specifically, May seeks to rewrite the statute to require Adirondack to prove the cost of obtaining access through other surrounding properties and to prove that all other surrounding property owners had expressly refused to provide the access. (Appellant's brief, p. 9). May's argument misconstrues the law and contradicts the language of the controlling statute. Regardless, even if this Court agrees with May's misplaced argument, the evidence in the record sufficiently establishes the trial court's I Obtaining an easement under Miss. Code differs from an easement by necessity, which is created by common law. "[Aln easement by necessity arises by implied grant when a part of a commonly-owned tract of land is severed in such a way that either portion of the property has been rendered inaccessible except by passing over the other portion or by trespassing on the lands of another." Harkness, 58 So. 3d at 706 (Miss. App. 2011) (quoting Broadhead v. Terpening, 611 So. 2d 949,953 (Miss. 1992)). Adirondack's relief is sought solely under the statutorily created mechanism of Miss. Code

9 ruling. As a result, there is no plausible argument supporting May's assertion of error by the lower court. This case is controlled by Mississippi Code , which provides: When any person shall desire to have a private road laid out through the lana of another, when necessary for ingress and egress, he shall apply by petition, stating the facts and reasons, to the special court of eminent domain created under Section of the county where the land or part of it is located, and the case shall proceed as nearly as possible as provided in Title 11, Chapter 27 for the condenmation of private property for public use. The court sitting without a jury shall determine the reasonableness of the application. The owner of the property shall be a necessary party to the proceedings. If the court finds in favor of the petitioner, all damages that the jury determines the landowner should be compensated for shall be assessed against and shall be paid by the person applying for the private road, and he shall pay all the costs and expenses incurred in the proceedings. Miss. Code. Ann This statute was enacted pursuant to the provisions of Sec. 110 of the Mississippi Constitution of 1890 which provides as follows: "The legislature may provide, by general law, for condemning rights of way for private roads, where necessary for ingress and egress by the party applying, on due compensation being first made to the owner of the property; but such rights of way shall not be provided for incorporated cities and towns." Alpaugh v. Moore, 568 So. 2d 291, 295 (Miss. 1990) (citing Quinn v. Holly, 146 So. 2d 357 (Miss. 1962)). Essentially, Mississippi Code contains six elements: (1) a desire by a property owner for a private road laid out through the land of another; (2) the road must be necessary for ingress and egress to the petitioner's property; (3) a petition must be filed in the special court of eminent domain of the county where the land is located; (4) the judge must make a determination as to the reasonableness of the application; (5) the owner of the property being taken must be a party to the proceedings; and (6) a jury shall determine the amount of compensation to be paid to the landowner whose property is being taken. 4

10 The trial court's order stated as follows: Based on the facts established at trial, the Court concludes that Adirondack's application should be granted. Adirondack has established: (a) a desire to have a private road through the land of the Mays; (b) that it applied for the private road by petition to this Court stating the facts and reasons for its request; (c) that Adirondack lacks access (ingress and egress) to the property; (d) that access to the property is necessary; ( e) and that the application is reasonable. (R. at Ill, ~17). On appeal, there is no dispute that (I) Adirondack desired a private road laid out through the land of May; (2) Adirondack filed a petition in the special court of eminent domain for Pike County; (3) May was a party to the proceeding; and (4) the value or amount of compensation for the property taken was $4,000, as stipulated by the parties. The sole dispute here is focused on two requirements in Mississippi Code First, whether a road was necessary for Adirondack to access (ingress and egress) its property. Second, whether the trial court made a determination as to the reasonableness of the application. As discussed below, the facts established at trial make clear that Adirondack carried this burden. Thus, the lower Court must be affirmed. 1. The Court Did Not Abuse its Discretion by Concluding that Access was Necessary. May argues that "Adirondack failed to prove at trial that their land was landlocked, or that they had no access to their land." (Appellant's Brief, p. 6). This assertion is belied by the evidence presented at trial. Further, the Mississippi Supreme Court has ruled on the exact issue in this matter. In Alpaugh v. Moore, 568 So. 2d 291, the Court held: it is enough to show that the private way is "reasonably necessary" -not "absolutely necessary" -for ingress and egress to the property in question. This burden of proof is met by the Moores based upon the fact that their property is bound on three (3) sides by water and on the fourth side by the Alpaugh property. The AJpaughs erroneously contend that the Moores cannot show "necessity" because they have failed to explore the option of building a bridge to their land. This burden, however, will not be required due to the uureasonableness inherent 5

11 in such an undertaking. The Moores' burden of proof concerning necessity is met by a showing that they have no other dry access to their land. Alpaugh v.moore, 568 So. 2d 291,295 (Miss ) (internal citations omitted); Quinn v. Holly, 146 So. 2d 357, 359 (Miss. 1962) (to be "necessary for ingress and egress only means that the [private road] should be reasonably necessary and practical and not absolutely necessary; and that to construe the statute otherwise would defeat the wholesome purpose for which the same was enacted."). court held: With regard to the necessity for ingress and egress to Adirondack's property, the trial The evidence at trial established that Adirondack does not currently have any legal right of way or access (ingress and egress) to its property. The Court heard expert testimony from three witnesses on this matter: (a) Gary Honea, a title attorney; (b) Gus Paulk, an engineer and surveyor; and (c) Stephen Butler, a forestry management and practice expert. Each of these witnesses confirmed that Adirondack's property was landlocked and had no legal right of way or access (ingress and egress) to the Adirondack property. (R. at 108, ~7). This finding offact was based on the testimony of three experts at trial: (1) Mr. Gary Honea, an expert in the area of title inspection and real estate matters; (2) Mr. Gus Paulk, an expert in the area of surveying; and (3) Mr. Stephen Butler, an expert in the area of timber management and practice. Mr. Butler is also the property manager of the Adirondack property. At trial, Mr. Gary Honea, an attorney in Pike County, Mississippi, was designated as an expert in the field of title inspection and real estate practice. (Tr.5:18-6:2). Mr. Honea testified that he inspected title to both the property owned by Adirondack and May. (Tr. 6-9). He testified also that Adirondack owns several hundred acres in Lincoln County, Mississippi, directly to the north of the May property, which traversed both Lincoln and Pike Counties. (Tr. 7-8). Mr. Honea clearly testified that his research and inspection determined that the Adirondack property "is totally landlocked and has no deeded easement or right of way." (Tr.l0:6-15). 6

12 Mr. Gus Paulk, a-licensed surveyor designated as an expert by Adirondack at trial, testified also that the Adirondack land was landlocked. (Ir. 28:25-29:3; 32:4-7). Finally, Mr. Stephen Butler, the property manager of the Adirondack property and an expert designated in the areas of timber management and practices, testified that Adirondack has no current legal access to its property. (Ir. at 59:15-19; 48:13-18; 49:6-12). Based on the evidence at trial, there can be no dispute that the Adirondack property was landlocked and had no access. At trial, May presented no expert testimony and offered no evidence contradicting Adirondack's evidence that its property was landlocked. Furthermore, May presented no proof that Adirondack could have obtained permanent access to the west across the CNR railway. The crux of May's argument, however, is not really about the necessity of access; May's argument is that Adirondack had other reasonable means for obtaining access. (Appellants' Brief, pp. 5-9). 2. The Court Did Not Abuse its Discretion by Concluding that Access was Reasonable. May's reasonableness argument is surmned up in one sentence: "Adirondack did not prove that it was not reasonable for them to cross the railroad and go out to the easement that the property owner to the west was willing to sell Adirondack." (Appellant's Brief, p. 7). In other words, May argues that Adirondack should have obtained access to the west despite the clear and unequivocal testimony at trial that CNR would not agree to a permanent crossing of the railroad. (Ir. at 55:11-25). Again, May's argument has no basis in fact or law. Mississippi Code provides for a permanent right-of-way to a public road-not a temporary solution. 2 Mr. Butler clearly testified at trial that Adirondack required more than temporary access because they leased the land for hunting and needed a legal route to the property to properly manage it. (Tr. at 2 Adirondack would also have a legal impedent to obtaining condemnation of the CNR railway, which is a public utility and governed by federal law. There would also be a significant safety risk to crossing the railway, which was recognized by the court in its ruling. (Tr..t77:13-19). 7

13 48). The only reasonable method of access for Adirondack was to the south across the May -preperty. The trial court agreed: the unly reasonable access for Adirondack's property is over the property owned by the Mays (to the south). This conclusion is based on the fact that the property is bound to the east by the Bogue Chitto River, to the west by the CN Railway, and to the north by several large streams and creeks. (R. at 110, ~16). The trial court recognized the unreasonableness of this option in its denial of a directed verdict by stating: we're talking about the main north-south railroad between Chicago, Illinois and New Orleans, Louisiana, which there's heavy traffic, including fast passenger traffic, and you're talking about a low-lying area which would make it almost impossible to build a reasonable crossing across the railroad, and if, in fact, it was done, it would have to be removed within a reasonably short time. So the Court finds that the railroad constitutes a barrier which would make it impractical, almost impossible, to use the westward route. (Tr. at 77:13-19). In fact, on a rehearing, the trial court stated that the facts establishing the reasonableness of Adirondack's application ''were far beyond a preponderance of the evidence. In fact, the Court will state at this point, having reviewed them, that the evidence in the case was clear and convincing." (Tr. at 111:16-19). The trial court's ruling is consistent with the Supreme Court's ruling in Alpaugh v. Moore, 568 So. 2d 291, 295 (Miss. 1990). As set forth above, the Alpaugh Court concluded that plaintiff satisfies its burden of proof on necessity of taking "based on the fact that their property is bound on three (3) sides by water and on the fourth side by the [Defendant's] property." ld.; See also Rotenberry v. Renfro, 214 So. 2d 275,278 (Miss. 1968) (concluding it would be unreasonable to expect the petitioner to build a private bridge across river and/or channel). Alpaugh is wholly analogous here. By establishing the geographical characteristics of the property alone, Adirondack satisfied its burden of proof. Alpaugh, 568 So. 2d at 295. Mr. Butler testified at trial that the Adirondack property was bound to the north and the east by significant bodies of water (creeks or rivers) that would require a bridge to cross and the CNR railway. (Tr. 8

14 at 52:22-55:5). To the east, Mr. Butler explained that the property was bound by the largest river in Pike County, the Bogue Chitto River, which would require a very substantial bridge to cross. (Tr. at 49-50,55:26-56:24). He also testified that the Adirondack property was bound to the west by the Canadian National Railway ("CNR'') and that CNR would not agree to a pennanent railroad crossing. (Tr. at 55: 11-25, 61 :6-62:10). The only reasonable access, however, was to the south across the May's property. (Tr. at 56:25-57:10,60:10-27). But Adirondack did not stop there. At trial, Mr. Butler testified at great length about his consideration and effort to obtain access to the Adirondack property from all surrounding property owners and was unable to obtain any reasonable access. (Tr. at 52:22-58: 11). Accordingly, the trial court's order stated: Mr. Butler testified at trial that he was hired to manage the Adirondack property. As part of his management responsibility, Mr. Butler testified that Adirondack considered obtaining a private road andlor easement from all surrounding property owners. According to Adirondack, the only reasonable option was to obtain access to its property over the property owned by the Mays (to the south). (R. at 109, ~11). The evidence presented at trial was sufficient to support the court's decision. Moreover, the trial court's decision was in accord with the Supreme Court's decision in Alpaugh. Alpaugh v. Moore, 568 So. 2d at 295. May relies heavily on a recent Mississippi Court of Appeals case: Ward v. Trimac Investments, LLC, 78 So. 3d 341 (Miss. App. 2011), reh'g denied (Oct. 18,2011), cert. denied, 78 So. 3d 906 (Miss. 2012). In Trimac, the Court of Appeals recognized that "it is undisputed that [Trimac] made no effort to obtain [access] from the other surrounding landowners." Id. at 344. This fact alone makes Trimac distinguishable. Further, the Trimac court recognized that a party seeking access under Mississippi Code need only show that potential alternatives for access to the property are unreasonable. Trimac, 78 So. 3d at 345. Again, this fact clearly distinguishes Trimac from the facts of this case. Here, there can be no dispute 9

15 regarding the substantial barriers to access posed by the railroad, creeks and rivers to the north, west and east ofthe Adirondack property. When read together, Alpaugh and Trimac make clear that Adirondack satisfied its burden at trial. More importantly, there is no plausible argument that the trial court abused its discretion. As a result, the trial court's decision must be affirmed. C. The Trial Court Did Not Abuse its Discretion by Awarding Sanctions. The trial court properly awarded sanctions in the amount of $ against May for filing a motion under Rule 59 of the Mississippi Rules of Civil Procedure seeking to amend the judgment or, alternatively, for a new trial. (R. at ). The award of sanction is review under an abuse of discretion standard. Choctaw, Inc. v. Campbell-Cherry-Harrison-Davis and Dove, 965 So. 2d 1041, 1045 (Miss. 2007). ''Rule 11 permits a court to award a responding party reasonable attorneys' fees and expenses when 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." In re Spencer, 985 So. 2d 330, 339 (Miss. 2008) (citing Miss. R. Civ. P. 11 (b». A "pleading is frivolous only when, objectively speaking, the pleader or movant has no hope of success." Id. (citing City of Madison v. Bryan, 763 So. 2d 162, 168 (Miss. 2000)(internal quotes omitted). "A motion or pleading is filed for the purpose of harassment or delay when the party does not have a viable claim. Id. (citing Leaf River Forest Prods. v. Deakle, 661 So. 2d 188, 195 (Miss. 1995». As support for its decision to award sanction in favor of Adirondack, the trial court stated in its order denying May's Rule 59 motion that: The Mays' motion for new trial restates the exact same argument made at trial. The Court has already heard and considered these arguments. Having presented no new facts or law, the Mays' motion had no hope of success and failed to present any viable claim for relief. Thus, the Court concludes that the motion for new trial filed by the Mays is frivolous and/or filed for the purpose of harassment or delay. 10

16 (R. at 131, ~10). By simply re-urging the same arguments presented at trial, May's motion had no hope of~su:ccess and failed to present any new or controlling law on the issue. As a result, the trial court properly awarded $ in sanctions against May. The trial court certainly did not abuse its discretion. CONCLUSION For these reasons, Adirondack respectfully requests that the Court affirm the trial court's decision on all issues and assess all costs against the appellant. Respectfully submitted, this the 19th day of December, ADIRONDACK TIMBER I, LLC By: REFi<;E LLP Highl"ltnd..dolony Parkway, Suite 800 Ridgeland, Mississippi Telephone: (601) Facsimile: (601)

17 CERTIFICATE OF SERVICE I certify that that I have this day caused to be hand-delivered the original and four copies of the Brief of Appellee and a condensed disk of the brief for filing to: Ms. Kathy Gillis, Clerk Mississippi Supreme Court 450 High Street Jackson, Mississippi I hereby certify that I have this day caused to be served via and United States Mail, postage prepaid, a true and correct copy of the Brief of Appellee to: Alfred Lee Felder Felder Law Firm P. O. Box 1261 McComb, MS This the 19th day of December,

18