E-Filed Document Jun 8 2017 11:12:57 2017-CA-00092 Pages: 20 IN THE SUPREME COURT OF MISSISSIPPI NO. 2017-CA-00092 CHERYL L. HIGH APPELLANT v. TODD KUHN and ANGELA T. KUHN APPELLEES Appeal from the Harrison County Special Court of Eminent Domain, First Judicial District, Case No. D2401-13-404 BRIEF OF APPELLANT Steven N. Newton Miss. Bar 104362 Richard D. Hobbs & Associates 101 Devant Street, Ste. 403 Fayetteville, Georgia 30214 Attorney for Appellant, Cheryl L. High
CERTIFICATE OF INTERESTED PERSONS Cheryl L. High v. Todd and Angela Kuhn, No. 2017 CA 00092 The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court may evaluate possible disqualification or recusal: The Honorable Judge Michael H. Ward, Presiding Judge Harrison County, First Judicial Circuit 1801 23rd Avenue Gulfport, Mississippi 39501 Cheryl L. High, Defendant/Appellant 15001 South Swan Road Gulfport, Mississippi 39503 Todd and Angela Kuhn, Plaintiffs/Appellees 15093 South Swan Road Gulfport, Mississippi 39503 Virgil Gillespie, Esq., Counsel for Appellees Gillespie Law Firm P.O. Box 850 Gulfport, Mississippi 39502-0850 vgg@gillespielawfirm.com Respectfully submitted, /s/steven N. Newton Steven N. Newton Attorney for Appellant, Cheryl L. High 2
TABLE OF CONTENTS Certificate of Interested Persons...2 Table of Contents...3 Table of Authorities...4 Statement of the Issues...5 Statement of the Case...5 Summary of the Argument...7 Argument...8 1. The trial court erred in overruling Ms. High s Motion for Attorneys Fees, Costs, Expenses, and Interest in compliance with Miss. Code Ann. 11-27-37...8 2. The trial court erred as a matter of law in its interpretation and reliance upon 65-7-201, 11-27-1, 11-27-37 of the Miss. Code Ann. to find and hold that Ms. High is not entitled to attorneys fees, costs, expenses, and interest...12 3. Whether the Mississippi Legislature authorized an award of attorneys fees under the facts of this case...16 Conclusion...19 3
TABLE OF AUTHORITIES CASES Bank of Miss. v. S. Mem l Park, Inc., 677 So.2d 186 (Miss. 1996)...8, 16 Barber v. Barber, 234 Miss. 89, 105 So.2d 630 (1958)...8 Bivens v. Mobley, 724 So.2d 458 (Miss. Ct. App. 1998)...7 Century 21 Deep South Prop. v. Corson, 612 So.2d 359, 375...8 City of Gulfport v. Anderson, 554 So.2d 873 (Miss. 1989)...8 City of Gulfport, Miss. v. Dedeaux Utility Company, Inc., 187 So.3d 139 (Miss. 2016)...8 City of Jackson v. Lee, 234 Miss. 502, 106 So.2d 892 (1958)...15 Coleman & Coleman Enterprises, Inc. v. Waller Funeral Home, 106 So.3d 309 (Miss. 2012)...9 Cox v. Warren County, Mississippi, 600 So. 2d 935 (Miss. 1992)... passim Derr Plantation, Inc. v. Swarek, 14 So.3d 711 (Miss. 2009)...11 Ferguson v. Bd. of Supervisors of Wilkinson Co., 149 Miss. 623, 115 So. 779 (1928)...16 Harrison Cty. Util. Auth. v. Helen Peterson Walker, 143 So.3d 608 (Miss. 2014)...15 High v. Kuhn, 191 So.3d 113 (Miss. 2016)...5, 7 Jackson Redevelopment Authority v. King, Inc., 364 So.2d 1104, 1112...8 Jones v. Harris, 460 So.2d 120 (Miss. 1984)...15 Key Constructors, Inc. v. H&M Gas Co., 537 So.2d 1318 (Miss. 1989)...9 Lawson v. Honeywell Intern., Inc., 75 So.3d 1024 (Miss. 2011)...17 Mauck v. Columbus Hotel Co., 741 So.2d 259 (Miss. 1999)...9 McDonald s Corporation v. Robinson Industries, Inc. and Miss. State Highway Comm n, 592 So.2d 927 (Miss. 1992)...9 McLain v. West Side Bone & Joint Ctr., 656 So.2d 119...8 Miss. Transp. Comm n v. Fires, 69 So.2d 917 (Miss. 1997)...12 Quinn v. Holly, 244 Miss. 808, 146 So.2d 357 (Miss. 1962)...16 Sanford v. Jackson Mall Shopping Ctr. Co., 516 So.2d 1346 (Miss. 1987)...9 State Highway Comm n v. Hayes, 541 So.2d 1023 (Miss. 1989)...8 State Highway Comm n v. Mason, 192 Miss. 576, 4 So.2d 345 (Miss. 1941)...8 State v. Murphy, 202 So.3d 1243 (Miss. 2016)...8, 16, 17 Wise v. Yazoo City, 96 Miss. 507, 51 So. 453 (1910)...16 STATUTES Article 4, Section 110 of the Mississippi Constitution of 1890...7 Section 9-1-41 of the Mississippi Code Annotated...10 Section 11-27-1 of the Mississippi Code Annotated (2013)... passim Section 11-27-3 of the Mississippi Code Annotated (2013)...13 Section 11-27-5 of the Mississippi Code Annotated (2013)...17 Section 11-27-15 of the Mississippi Code Annotated (2013)...14, 15 Section 11-27-29 of the Mississippi Code Annotated (2013)...5, 18 Section 11-27-37 of the Mississippi Code Annotated (2013)... passim Section 43-37-9 of the Mississippi Code Annotated (2013)...8, 17 Section 65-7-201 of the Mississippi Code Annotated (2013)... passim Section 75-17-7 of the Mississippi Code Annotated (2013)...11 4
STATEMENT OF THE ISSUES 1. The Special Court of Eminent Domain, Harrison County, Mississippi, First Judicial District erred in overruling Ms. High s Motion for Attorneys Fees, Costs, Expenses, and Interest in compliance with the Miss. Code Ann. 11-27- 37. 2. The Special Court of Eminent Domain, Harrison County, Mississippi, First Judicial District erred as a matter of law in its interpretation and reliance upon 65-7-201, 11-27-1, and 11-27-37 of the Miss. Code Ann. to find and hold that Ms. High is not entitled to attorneys fees, costs, expenses, and interest. 3. Whether the Mississippi Legislature authorized an award of attorneys fees under the facts of this case, pursuant to Miss. Code Ann. 11-27-37. STATEMENT OF THE ASSIGNMENT Article six, section 146 of the Mississippi Constitution of 1890 holds that this Honorable Court shall have such jurisdiction as properly belongs to a court of appeals and shall exercise no jurisdiction on matters other than those specifically provided by the Constitution or by general law. Mississippi Code Annotated 11-27-29(1) authorizes an appeal from a judgment of a special court of eminent domain to the Mississippi Supreme Court upon giving notice within ten (10) days from the date of the judgment or final order entered by the court Miss. Code. Ann. 11-27-29(1). The instant matter is a major question of first impression, concerns fundamental issues of broad public importance, and involves the application and validity of statutes for the award of attorneys fees, costs, expenses, and interest in eminent domain actions by private persons, pursuant to 65-7-201, 11-27-1, and 11-27-37 of the Mississippi Code Annotated. STATEMENT OF THE CASE On March 17, 2016, in the first appeal of this matter, this Honorable Court reversed the trial court, rendered judgment in favor of Appellant, Cheryl L. High, ( Ms. High ), and taxed costs for the first appeal against Appellees, Todd Kuhn and Angela Kuhns, (collectively, the Kuhns ). High v. Kuhn, 191 So.3d 113 (Miss. 2016); [R. 16.] In the first appeal, the trial court awarded relief 5
on January 8, 2015, and an interlocutory appeal was filed on January 16, 2015. [R. 127.] This Honorable Court granted the interlocutory appeal and a motion to stay trial court proceedings on March 18, 2015. [Id.] On March 17, 2016, this Honorable Court reversed the trial court and rendered judgment in favor of Ms. High [R. 16.] This second appeal concerns Ms. High s entitlement to an award of attorneys fees, costs, expenses, and interest, pursuant to 11-27-37, for successfully defeating the 65-7-201 eminent domain action instituted by the Kuhns. On May 11, 2016, Ms. High filed her first Motion for Attorneys fees, costs, expenses, and interest. [R. 17-61.] On May 26, 2016, the Kuhns Motion for Rehearing was denied. [R. 68.] On June 2, 2016, this Honorable Court issued a Mandate directing the trial court to execute further proceedings consistent with the judgment rendered. [R. 120.] On June 6, 2016, Ms. High filed a Renewed Motion for Costs, Attorneys Fees, Expenses and Interests. [R. 69-114.] On June 14, 2016, Ms. High filed an Amended and Renewed Motion for Attorneys Fees, Costs, Expenses, and Interest. [R. 136-83.] On June 27, 2016, this Honorable Court reappointed the Honorable Judge Michael H. Ward to hear Ms. High s motion. [R. 184-85.] On September 14, 2016, a hearing on Ms. High s motion was held by the trial court. [RE 3; Hearing Transcript, pp. 1-51.] At the conclusion of the hearing, the trial court requested briefing on the admissibility of two attorney invoices, [R. 141-161], submitted at the hearing. [RE 3; Hearing Transcript, p. 11, ll. 22-25, p. 14, ll. 11-13, and pp. 47-48.] Ms. High briefed the issues and submitted same on October 13, 2016. [R. 186-226.] On January 10, 2017, the trial court overruled Ms. High s Amended and Renewed Motion for Attorneys Fees, Costs, Expenses, and Interest. [RE 2; R. 242-44.] Ms. High respectfully submits this brief in support of reversal of the trial court s order for the reasons and grounds set forth herein. 6
SUMMARY OF THE ARGUMENT On March 28, 2013, under 65-7-201 and 11-27-1 et seq., Todd and Angela Kuhn petitioned for a special court of eminent domain and initiated eminent domain proceedings to condemn Ms. High s private property located within the limits of Gulfport, Mississippi. [R. 2, 125.] The trial court was presented with two opportunities to dismiss the case based upon article 4, section 110 of the Mississippi. [R. 125-26, 9-11.] On March 17, 2016, in the first appeal of this matter, this Honorable Court reversed the trial court and rendered judgment in favor of Ms. High and taxed costs for the first appeal against the Kuhns. High v. Kuhn, 191 So.3d 113 (Miss. 2016); [R. 16.] Following the remand and reversal, on June 14, 2016, Ms. High filed an Amended and Renewed Motion for Attorneys Fees, Costs, Expenses, and Interest. [R. 136-83.] On June 27, 2016, this Honorable Court reappointed the Honorable Judge Michael H. Ward to hear Ms. High s motion. [R. 184-85.] On January 10, 2017, the trial court overruled Ms. High s Amended and Renewed Motion for Attorneys Fees, Costs, Expenses, and Interest. [RE 2; R. 242-44.] The trial court abused its discretion in overruling Ms. High s motion on January 10, 2017. [RE 2; R. 242-44.] The trial court committed reversible error to find and hold that the Kuhns were not pursuing eminent domain, and subsequently that Ms. High was not entitled to recover attorneys fees, costs, expenses, and interest for succeeding on the merits. [Id.] The trial court never provided an explanation as to why an award of attorneys fees, costs, and expenses under 11-27-37 is not allowed in a private condemnation action under 65-7-201. In fact, in the lone case cited by the trial court in its order, Bivens v. Mobley, the defendant was awarded attorneys fees in a property dispute. 724 So.2d 458, 465 (Miss. Ct. App. 1998). After review of the statute and binding case law, it is clear that the trial court s interpretation is a misstatement of law. The Mississippi Legislature clearly provided a remedy for defendants that successfully challenge and defeat a private condemnation action, pursuant to Miss. Code Ann. 7
11-27-37. In light of these errors, this Honorable Court should reverse the trial court s January 10, 2017 order, tax all costs of this appeal to the Kuhns, and award $25,990.58 in costs, attorneys fees, and expenses plus $5,414.70 in interest 1 to Ms. High for the costs of defense which totals an award of $31,405.28, pursuant to Miss. Code Ann. 11-27-37. ARGUMENT Mississippi follows the American rule regarding attorneys fees. Century 21 Deep South Prop. v. Corson, 612 So.2d 359, 375 (Miss. 1992). [U]nless a statute or contract provides for imposition of attorneys fees, they are not recoverable. Id. A trial court s decision on attorneys fees is subject to the abuse of discretion standard of review. Bank of Miss. v. S. Mem l Park, Inc., 677 So.2d 186, 191 (Miss. 1996) (citing Barber v. Barber, 234 Miss. 89, 105 So.2d 630 (1958)). However, a party is not entitled to attorney s fees unless a statute or other authority so authorizes. McLain v. West Side Bone & Joint Ctr., 656 So.2d 119, 123 (Miss. 1995). Costs and fees are not recoverable in eminent domain cases as a matter of constitutional right, but are a matter of Legislative grace. City of Gulfport v. Anderson, 554 So.2d 873, 878 (Miss. 1989) (citing State Highway Comm n v. Hayes, 541 So.2d 1023, 1026 (Miss. 1989)). Here, Mississippi law and mandatory authority support Ms. High s right to recover attorneys fees, costs, expenses, and interest for prevailing against the Kuhns in this private condemnation matter. 1. The trial court erred in overruling Ms. High s Motion for Attorneys Fees, Costs, Expenses, and Interest in compliance with Miss. Code Ann. 11-27-37. In the Order reversing and rendering the judgment in favor of the Ms. High, this Honorable Court cited and quoted Cox v. Warren County 2 and explained a defendant s right to recover against 1 In City of Gulfport, Miss. v. Dedeaux Utility Company, Inc., 187 So.3d 139, 148 (Miss. 2016), this Honorable Court awarded interest to the prevailing party. See also State v. Murphy, 202 So.3d 1243, 1263 (Miss. 2016) (awarding attorneys fees, costs, and interest under 43-37-9) 2 This case was provided to the trial court in Ms. High s brief on October 13, 2016. [R. 221-225.] 8
a petitioner, pursuant to Miss. Code Ann. 11-27-37 3. [R. 133-34.] If the judgment entered is that the petitioner had no right to condemn the property, then the defendant has a separate and distinct cause of action arising from 11-27-37 to bring an action to recover all expenses, including attorneys fees, incurred in defending the eminent domain suit. [Id.] This Honorable Court further noted that a defendant property owner may file a post-trial motion in the eminent domain court to assess the damages in event of either of the three contingencies, but there is no requirement to do so. Id. at 938 (citing McDonald s Corporation v. Robinson Industries, Inc. and Mississippi State Highway Commission, 592 So.2d 927 (Miss. 1992)). Without question, since Ms. High was successful in defeating the Kuhns private condemnation action, pursuant to Miss. Code Ann. 11-27-37, Ms. High is entitled to all attorneys fees, costs, and expenses incurred in defense of same. This Honorable Court has repeatedly held that the fixing of reasonable attorneys fees is a matter within the sound discretion of the trial court. Coleman & Coleman Enterprises, Inc. v. Waller Funeral Home, 106 So.3d 309 (Miss. 2012) (citing Mauck v. Columbus Hotel Co., 741 So.2d 259, 269 (Miss. 1999)). However, [t]he [trial] court may not judicially note what is a reasonable fee and it certainly may not merely pull a figure out of thin air. Rather, the party entitled to recover a reasonable fee must furnish an evidentiary predicate therefor. Key Constructors, Inc., v. H&M Gas Co., 537 So.2d 1318, 1325 (Miss. 1989) (citing Sanford v. Jackson Mall Shopping Ctr. Co., 516 So.2d 1346, 1354 (Miss. 1987)). In support of a post-trial motion for attorney s fees, a party need only submit a detailed, itemized statement of fees incurred and affidavits from the party s attorneys. Coleman & Coleman Enterprises, Inc., 106 So. 3d at 319. This Honorable Court 3 Although not challenged here, this Honorable Court has upheld the constitutionality of 11-27- 37. See Jackson Redevelopment Authority v. King, Inc., 364 So.2d 1104, 1112 (Miss. 1978). 9
has held same is sufficient and found that an opposing party s evidentiary objection regarding sufficiency of evidence to be without merit. Id. At the September 14, 2016 hearing, Ms. High testified to the amounts of attorneys fees incurred and paid in defense of this matter. [RE 3; Hearing Transcript, pp. 4-21.] She identified the nineteen pages of invoices submitted by Mr. Robert Schwartz, Esq. from May 29, 2013 until August 25, 2014 and that she paid the invoices in defense of the instant matter. [Id. at p. 6, l. 21.] She identified the invoice and costs submitted by undersigned counsel and that she paid same in defense of this action. [Id. at p. 10, ll. 6-13.] Further, she identified the costs of appellate record and testified that she paid same to appeal the trial court s order to overturn the ruling and obtain judgment in her favor. [Id at p. 16-20.] The trial court was presented with sufficient documentary evidence to award the requested amount as attorneys fees and costs in defense of this matter. As admitted by Kuhns counsel, Rule 3.7 of the Mississippi Rules of Professional Conduct allows a lawyer to provide testimony relating to the nature and value of legal services rendered in the case. [RE 3; Hearing Transcript, pp. 22-24.] Undersigned counsel testified that he received the invoices submitted by Mr. Robert Schwartz, Esq. in defense of this matter. [Id. at p. 26] Undersigned counsel further testified regarding his time spent, reasonableness of the fee charged, education, legal experience, and associated costs. [Id. at pp. 24-26.] To be sure, undersigned counsel s testimony regarding the fees incurred throughout this entire matter is sufficient evidence to award the requested amounts of attorneys fees, costs, and expenses incurred by Ms. High in defense of this matter. [Id. at pp. 24-27.] The Kuhns counsel thereafter objected on reasonableness grounds. [RE 3; Hearing Transcript, pp. 22, 25, 27.] Such objections are contrary to law, meritless, and made for the sole purpose of harassment, delay, and to unnecessarily extend the proceedings which the Kuhns have 10
summarily lost. See, e.g., Miss. Code Ann. 9-1-41 4. Ms. High s motion was made in good faith, grounded in applicable Mississippi law, and based on competent testimony and admissible documentary evidence. Nonetheless, to overcome the alleged objections, Ms. High submitted her brief in support and attached affidavits from Mr. Robert Schwartz, Esq. and undersigned counsel. [R. 194-214, R. 215-220.] Mr. Schwartz identified the invoices produced by his office in furtherance of his representation of Ms. High. [R. 194 at 7.] He states that all charges were reasonably incurred in the defense of the case. [Id. at 8.] The attorneys fees would not have been incurred but for the actions of the Plaintiffs in pursuit of the instant claims. [R. 195 at 9.] Similarly, since the original motion to dismiss was not granted and the trial court wished to take evidence, Ms. High was forced to incur additional fees and expenses. [Id. at 10.] Pursuant to 11-27-37, Ms. High may recover of the [Kuhns] in an action brought therefor all reasonable expenses, including attorneys fees, incurred by [her] in defending the suit. Section 11-27-37. The judgment entered by the trial court was reversed and this Honorable Court found that the Kuhns have no right to condemn Ms. High s property. [R. 120, 122-135] Ms. High was entitled to an award from the Kuhns for the following costs, attorneys fees, expenses, and interest, pursuant to Cox v. Warren County, 600 So.2d 935, 937 (Miss. 1992), Miss. Code Ann. 11-27- 37, and 75-17-7: a. Costs, attorneys fees, and expenses paid and incurred from Schwartz, Orgler, & Jordan, PLLC in the amount of $18,052.18. b. Costs, attorneys fees, and expenses paid to Steven N. Newton, Esq., in the amount of $4,638.00 5. 4 Mississippi Code Annotated 9-1-41 states that the court shall not require the party seeking such [attorney] fees to put on proof as to the reasonableness of the amount sought. A copy of the statutory text was provided to the trial court. [R. 226.] It appears that the trial court and Kuhns counsel have abandoned these reasonableness contentions once faced with applicable law. 5 For the second appeal, Ms. High has incurred $2,500 in attorneys fees, $738.40 costs of the appellate record, and $200 for the notice of appeal filing fee. If successful on appeal, Ms. High 11
c. Costs and expenses paid to this Honorable Court and the Mississippi Supreme Court in the amount of $1,501.00 6. d. Five percent (5%) interest per annum on the total sum incurred and expended by Ms. High from March 27, 2013 to present, $5,414.70. [R. 138, 187.] To date, including the instant appeal, Ms. High has incurred $25,990.58 in costs, attorneys fees, and expenses plus $5,414.70 in interest. The Kuhns have no defense, evidentiary or otherwise, to Ms. High s motion and should have exercised caution in the institution of the private eminent domain action under 65-7-201. Contrary to the plain language of 11-27-37, the trial court erred in overruling Ms. High s Motion. As a result, Ms. High respectfully requests that this Honorable Court reverse the trial court s January 10, 2017 order, tax all costs of this appeal to the Kuhns, and enter judgment for Ms. High for the costs of defense in the amounts of $25,990.58 in costs, attorneys fees, and expenses plus $5,414.70 in interest for a total award of $31,405.28, pursuant to Miss. Code Ann. 11-27-37. 2. The trial court erred as a matter of law in its interpretation and reliance upon 65-7-201, 11-27-1, and 11-27-37 to find and hold that Ms. High is not entitled to attorneys fees, costs, expenses, and interest. The trial court s interpretation of 65-7-201, 11-27-1, and 11-27-37 7 is erroneous as a matter of law. [RE 2; R. 242-244.] This Honorable Court reviews questions of law de novo and will reverse a trial court if the law has been applied or interpreted erroneously. Miss. Transp. respectfully moves this Honorable Court to afford her an opportunity to recover these costs, $3,438.40, plus interest. 6 Interestingly enough, on February 19, 2017, undersigned counsel sent a reminder that the costs of the first appeal remained outstanding and mandated by this Honorable Court. In response, the Kuhns voluntarily tendered a check for $1,639.00 to undersigned counsel, which represented the costs of the appeal, $1,501.00, plus $138.00 for the interlocutory appeal. Ms. High has not included these costs on this appeal for the amount requested. 7 [If] the judgment be that the plaintiff is not entitled to a judgment condemning property, the defendant may recover of the plaintiff in an action brought therefor all reasonable expenses, including attorneys' fees, incurred by [her] in defending the suit. Section 11-27-37; see also Cox v. Warren County, Mississippi, 600 So. 2d 935, 938 (Miss. 1992). 12
Comm n v. Fires, 69 So.2d 917, 920 (Miss. 1997). The trial court held that 11-27-1 and 11-27- 37 were inapplicable to private condemnation actions under 65-7-201 and overruled Ms. High s motion for attorneys fees, costs, expenses, and interest. [Id. at 2-3.] In citing this Honorable Court s March 16, 2016 Order, [R. 122-135.], the trial court overlooked the plain language of 65-7-201 and 11-27-37 and, at the suggestion of Kuhns counsel, cherry-picked language to find that the Kuhns were not pursuing eminent domain. [RE 2; R. 244, 1.] The trial court s holding is legally and factually erroneous. A proper review of the statutory language and this Honorable Court s ruling is illustrative and demonstrates the trial court s mistaken interpretation and incorrect holding. The Kuhns filed the instant lawsuit to obtain a private road per Mississippi Code Section 65-7-201. [R. 122.] Pursuant to this constitutional authority, the Legislature enacted 65-7-201, as follows: When any person shall desire to have a private road laid out through the land 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 11-27-3 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 condemnation 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. Section 65-7-201 (emphasis added). Section 65-7-201 and Section 11-27-1 both mandate that any person having the right to condemn private property shall exercise that right as provided in and subject to Title 11, Chapter 27. Moreover, the entire record of this matter indicates that the Kuhns pursued private condemnation under an eminent domain statute. [R. 2.] A review of the civil cover sheet indicated 13
that counsel for the Kuhns selected eminent domain upon the filing of the Petition. [Id.] The trial court docket indicates that the nature of the suit is eminent domain. [RE 1, p.1-2.] Only now, after summarily losing and subjected to liability for Ms. High s attorneys fees, the Kuhns have unilaterally decided, and the trial court agreed, that they were not pursuing eminent domain. These arguments are factually false, frivolous, and contrary to the law of the case and legal filings of counsel for the Kuhns 8. Such disingenuous contentions are deserved of extreme reprimand and sanctions. As explained in section one of this brief, Cox v. Warren County, 600 So.2d 935 (Miss. 1992), and Miss. Code Ann. 11-27-37 control a defendant s right to recover against a petitioner in the event of a defeated 65-7-201 petition. [R. 133-34.] If the judgment entered is that the petitioner had no right to condemn the property, then the defendant has a separate and distinct cause of action arising from 11-27-37 to bring an action to recover all expenses, including attorneys fees, incurred in defending the eminent domain suit. 600 So.2d at 937. Without question, Miss. Code Ann. 11-27-37 gives the defendant landowner a separate cause of action against the petition condemnor, which may be brought via a post-trial motion in the eminent domain court, or in a separate action in any court of competent jurisdiction. Id. at 938. The trial court s holding and confusing explanation to the contrary must be reversed. As to the trial court s reference to the March 16, 2016 Order, this Honorable Court reviewed the plain language of 11-27-15 to overrule the trial court s erroneous finding that Ms. High had waived her right to move to dismiss the Kuhns Petition. [R. 130-132.] In particular, paragraph 21 states: The three ground for dismissal that must be asserted under Section 11-27-17 are: (1) that the plaintiff seeking to exercise the right of eminent domain is not, in 8 The Kuhns Complaint filed on March 28, 2013 is titled Petition to Establish Special Court of Eminent Domain against Cheryl L. High. [RE 1, p.2.] 14
character, such a corporation, association, district or other legal entity as is entitled to the right; (2) that there is no public necessity for the taking of the particular property or a part thereof which it is proposed to condemn; or (3) that the contemplated use alleged to be a public use is not in law a public use for which private property may be taken or damages. Miss. Code Ann. 11-27-15. Here, the Kuhns were not pursuing eminent domain i.e., a public taking under Section 11-27-1. Rather, they requested a private road under Section 65-7-201. And Section 65-7-201 does not require showing public necessity or public use. So none of the enumerated grounds for dismissal listed in Section 11-27-15 apply here. Thus, the special court erred as a matter of law when it applied Section 11-27-15 to find waiver. [R. 131, 21.] (internal citations and footnote omitted) (italics in original). In footnote six, this Honorable Court aptly explained, Amended Section 65-7-201 directs private condemnations to proceed as nearly as possible as provided in Title 11, Chapter 27[,] Miss. Code Ann. 65-7-201. And Section 11-27-15 is an example of a procedure created for public condemnations that does not translate to private condemnations. [R. 131, fn. 6.] (emphasis added) (italics in original) Contrary to the trial court s order, [RE 2], this Honorable Court did not hold that 11-27- 1 and 11-27-37 were inapplicable to private condemnation actions under 65-7-201 9. Instead, this Honorable Court reviewed the language of 11-27-37 and found that [Section] 11-27-37 gives the defendant landowner a separate case of action against the petition condemnor, which may be brought via a post-trial motion in the eminent domain court, or in a separate action in any court of competent jurisdiction. [R. 134, 27.] (citing Cox v. Warren Cty., 600 So.2d 935, 938 (Miss. 9 The trial court s reasoning overlooks binding case law to the contrary. If left to stand, the Legislature s statutory mandate to award attorneys fees for a successful defense would be ignored, and Cox v. Warren County along with other eminent domain precedent would be overruled. See, e.g., State Highway v. Mason, 192 576, 4 So.2d 345, 6 So.2d 468 (1941) (holding state highway commission liable for costs, interest, and damages just as private corporation would be in such a proceeding); City of Jackson v. Lee, 234 Miss. 502, 512, 106 So.2d 892, 896 (1958) (holding city liable for payment of expenses, including attorneys fees, after dismissal of eminent domain proceeding); Harrison Cty. Util. Auth. v. Helen Peterson Walker, 143 So.3d 608, 614 (Miss. 2014) (finding Section 11-27-37 permits award of attorneys fees in eminent domain cases when the judgment be that plaintiff is not entitled to condemn property). 15
1992)). Since Ms. High had not brought a separate cause of action or a post-trial motion for expenses, this Honorable Court found the issue not properly before it on interlocutory appeal and denied the request without prejudice. [R. 134, 27.] All in all, the trial court s interpretation is contrary the plain language of 65-7-201, 11-27-1, and 11-27-37. [RE 2.] To allow the trial court s interpretation to stand, this Honorable Court would be holding that private litigants whom defeat a private condemnation petition were not entitled to attorneys fees, costs, expenses, and interests allowed under 11-27-37. Accordingly, Ms. High respectfully submits that this Honorable Court overturn the trial court s January 10, 2017 order, tax all costs of this appeal to the Kuhns, and enter judgment for Ms. High for the costs of defense in the amounts of $25,990.58 in costs, attorneys fees, and expenses plus $5,414.70 in interest for a total award of $31,405.28, pursuant to Miss. Code Ann. 11-27-37. 3. Whether the Mississippi Legislature authorized an award of attorneys fees under the facts of this case, pursuant to Miss. Code Ann. 11-27-37. [W]hether the Legislature has authorized an award of attorneys fees under the facts of this case is a question of law to be reviewed de novo. State v. Murphy, 202 So.3d 1243, 1263 (Miss. 2016) (citing Bank of Miss., 677 So.2d at 191). In the past, this Honorable Court explained that the Legislature s authority to grant a private road is an exercise of eminent domain. Quinn v. Holly, 244 Miss. 808, 811, 146 So. 2d 357, 358 (quoting 72 C.J.S. Private Roads 4, p. 921) ( [t]he power to grant a private road is an exercise of the right of eminent domain and the power to exercise the right of eminent domain is in the legislature as representing the sovereignty of the state. ) This Honorable Court stated that the power to authorize the laying out of a road exists only where it has clearly been conferred by legislative enactment, conforming to the limitations imposed by the constitution on the lawmaking power and then only under the circumstances and conditions prescribed by the enactment. Id. 16
Eminent domain statutes are strictly interpreted and construed because [t]he power of eminent domain is in derogation of common right. Ferguson v. Bd. of Supervisors of Wilkinson Co., 149 Miss. 623, 630-31, 115 So. 779, 780 (1928) (citing Wise v. Yazoo City, 96 Miss. 507, 519, 51 So. 453 (1910)). Eminent domain statutes cannot be extended beyond their plain provisions[,] and [t]he right to exercise this power is strictly limited to the purposes expressed in the statutes conferring the power. Id. In State v. Murphy, this Honorable Court was tasked with resolving a similar question of statutory interpretation and award of attorneys fees, costs, expenses, and interest. 202 So.3d 1243 (Miss. 2016). The plaintiff brought an inverse condemnation action claiming that the State had taken and damaged their property without compensation. Id. at 1247. Following a jury verdict in their favor, the plaintiff filed a motion requesting $214,666.66 in attorneys fees, $48,676.32 in expenses, and interest 10 at the rate of eight percent from the date of the filing of the complaint, pursuant to Miss. Code. Ann. 43-37-9. Id. at 1263. The State responded that the plaintiff was not entitled to attorneys fees or expenses under 43-37-9 and was not entitled to interest in the amount requested. Id. 1263. The trial court granted the motion for attorneys fees, costs, expenses, and interest, and the State appealed to this Honorable Court. Id. This Honorable Court acknowledged the applicable standard of review and reviewed the plain language of 43-37-9. Id. at 1263-64. This Honorable Court explained that the State s arguments conflicted with the plain language of 43-37-9. Id. at 1264. If the words of a statute are clear and unambiguous, the Court applies the plain meaning of the statute and refrains from using principles of statutory construction. Id. (quoting Lawson v. Honeywell Intern., Inc., 75 So.3d 1024, 1027 10 As noted in Murphy, the trial court awarded, and this Honorable Court upheld, the award of interest on the defendant s expenses from the date of the filing of the complaint. Ms. High respectfully requests same at five percent. 17
(Miss. 2011)). Accordingly, this Honorable Court held that the unambiguous language of Section 43-37-9 authorizes the award of attorneys fees and expenses in the instant case and affirmed the trial court s award. Murphy, 202 So.3d at 1264. Here, the result is the same. The words of 11-27-37 are clear and unambiguous. In Cox, this Honorable Court explained that it will not construe the provisions of Title 11, Chapter 27 incongruously 11. 600 So.2d 935, 938 (Miss. 1992) (contrasting the time limitations of Miss. Code Ann. 11-27-37 with 11-27-29). Titled Defendant s expenses recoverable, Section 11-27-37 sets forth three contingencies in which a defendant may bring an action to recover all reasonable expenses, including attorneys fees, incurred in defense of an eminent domain suit. The Mississippi Legislature purposely placed a remedy for prevailing parties, such as Ms. High, to recover against the plaintiff for a failed attempt to condemn private property. Since Ms. High prevailed, she is entitled to recover against the Kuhns. The trial court s reasoning directly conflicts with the Legislature s statutory mandate and protection for private citizens from failed eminent domain lawsuits. As a result, Ms. High respectfully requests that this Honorable Court reverse the trial court s January 10, 2017 order, tax all costs of this appeal to the Kuhns, and enter judgment for Ms. High for the costs of defense in the amounts of $25,990.58 in costs, attorneys fees, and expenses plus $5,414.70 in interest for a total award of $31,405.28, pursuant to Miss. Code Ann. 11-27-37. 11 The Kuhns and trial court seek to construe the provisions of Title 11, Chapter 27 inconsistently. On one hand, the Kuhns filed a petition per 11-27-5 and created a special court of eminent domain under 11-27-3 for eminent domain purposes to condemn Ms. High s property. The trial docket indicates that the nature of suit is Eminent Domain. [RE 1, p.1.] On the other hand, the Kuhns and trial court seek to invalidate the application of 11-27-37 to the judgment entered by this Honorable Court. This appeal is made pursuant to 11-27-29(1). To be congruous, this Honorable Court must find for Ms. High and award the requested relief. 18
CONCLUSION Based upon the foregoing, Ms. High respectfully prays that this Honorable Court will enter an Order overturning the Special Court of Eminent Domain s January 10, 2017 Order, tax all costs of this appeal to the Kuhns, and award $25,990.58 in costs, attorneys fees, and expenses plus $5,414.70 in interest to Ms. High for a total award of $31,405.28, pursuant to Miss. Code Ann. 11-27-37. Respectfully submitted, this the 8th day of June 2017. By: By: Defendant, Cheryl High /s/steven N. Newton Steven N. Newton (Miss. Bar No. 104362) RICHARD D. HOBBS & ASSOCIATES 101 Devant Street, Suite 403 Fayetteville, Georgia 30214 Telephone: (770) 716-0200 Email: snnewtonlaw@gmail.com 19
CERTIFICATE OF SERVICE I, Steven N. Newton, hereby certify that a true and correct copy of the foregoing document has been served on the following persons by U.S. Mail, properly addressed and postage prepaid, and/or by electronic transmission where indicated: The Honorable Judge Michael H. Ward Harrison County, First Judicial Circuit 1801 23rd Avenue Gulfport, Mississippi 39501 slandry@co.harrison.ms.us Virgil Gillespie, Esq. Gillespie Smith Law Firm P.O. Box 850 Gulfport, Mississippi 39502-0850 vgg@gillespiesmithlawfirm.com Respectfully submitted, this the 8th day of June 2017. /s/steven N. Newton STEVEN N. NEWTON 20