London & Stetelman Inc. v. Tackett
| Decision Date | 24 November 2020 |
| Docket Number | NO. 2019-CA-00025-COA,2019-CA-00025-COA |
| Court | Mississippi Court of Appeals |
| Parties | LONDON & STETELMAN INC., L & D, LLC, and Andrew D. Stetelman, Appellants v. Nelson TACKETT and Judy Tackett, Both Individually and as co-trustees of the Nelson and Judy Tackett Joint Revocable Trust, and Subway Sandwich Shops of Hattiesburg, Inc., Appellees |
ATTORNEY FOR APPELLANTS: ORVIS A. SHIYOU JR., Hattiesburg
ATTORNEYS FOR APPELLEES: R. LANE DOSSETT, L. CLARK HICKS JR., Hattiesburg
BEFORE WILSON, P.J., WESTBROOKS AND McCARTY, JJ.
WILSON, P.J., FOR THE COURT:
¶1. This is a dispute between lessees of adjacent lots of 16th section land on Broadway Drive in Hattiesburg. A Subway sandwich store is on one lot, while the other lot is vacant. The chancellor found that The Nelson and Judy Tackett Joint Revocable Trust, which leases the Subway lot, had acquired a prescriptive easement over a portion of the vacant lot leased by L & D, LLC. On appeal, L & D argues that the chancellor erred by awarding a prescriptive easement. We find no reversible error and affirm. The prescriptive easement will terminate upon the expiration of the lease on the vacant (servient) lot.
FACTS AND PROCEDURAL HISTORY
¶2. This case involves adjacent 16th section lots on Broadway Drive in Hattiesburg.1 Both lots are leased under ninety-nine year leases that appear to be valid according to an amicus curiae brief filed by the Secretary of State.
¶3. Nelson Tackett obtained the unexpired portion of the ninety-nine-year lease on one lot in 1987 and opened a Subway sandwich shop there. He re-conveyed the unexpired portion of the lease to The Nelson and Judy Tackett Joint Revocable Trust in 2012. Tackett has operated the Subway on the lot continuously since 1987. The ninety-nine-year lease commenced on June 17, 1947, and expires in 2046.
¶4. In 2014, Atlas Realty Ltd. gifted the unexpired portion of the ninety-nine-year lease on the adjacent lot to Temple B'Nai Israel, a local synagogue. A few days later, the synagogue conveyed the unexpired portion of the lease to L & D. Atlas had apparently owned the lease for at least twenty years prior to 2014. Atlas had subleased the lot to restaurants, the last of which was PR's Bar and Grill.
¶5. In 2002, there was a dispute between Tackett and the owners of PR's Bar and Grill. The owners of PR's apparently threatened to prevent Subway customers from parking on their property. Tackett's lawyer responded with a letter in which he claimed that Tackett/Subway had "acquired [an] easement[ ] by way of prescription" to use the disputed parking spaces "as a common parking area." PR's closed soon after, and no business has operated on the lot since. Sometime after PR's closed, the building was demolished. The lot is now vacant except for a concrete slab that was PR's foundation.
¶6. Before PR's closed, customers of both Subway and PR's (and its predecessors) parked in spaces on both lots. Since PR's closed, only Subway has used the asphalt portion of the vacant lot for customer and employee parking. Trucks making deliveries to Subway and picking up trash from Subway also use the vacant lot. Subway has also kept a dumpster on the vacant lot, which it uses several times per day. Subway has also maintained the disputed portion of the vacant lot. Subway's employees inspect the vacant lot for trash and hazards, and Subway has paid for and maintained light poles in the parking lot, paid for resurfacing of at least part of the vacant lot, and patched potholes in the vacant lot's asphalt. Tackett's son has also re-striped parking spaces on the vacant lot. Tackett claimed the parking area of the vacant lot as part of the leasehold he acquired in 1987—although no one ever told him that he owned the disputed area, and he admits that he never knew the exact location of the property line.
¶7. Tackett has never posted signs designating the vacant lot for Subway customer parking. Nor has Tackett ever attempted to exclude others from using the lot for parking. The parties dispute who maintained the grass portions of the vacant lot. Tackett and Subway managers testified that Subway maintained the grass, while Andrew Stetelman (one of the members of L & D) testified that L & D maintained the grass. Tackett also claims that he paid some taxes on the vacant lot, while Stetelman produced tax records indicating that Atlas and then L & D have paid all taxes on the vacant lot.
¶8. The parties also dispute the events leading up to this litigation. According to Tackett, Stetelman demanded rent for the disputed parking spaces on the vacant lot soon after L & D acquired its leasehold interest in 2014. Tackett refused, claiming that he was already entitled to use the disputed area. In contrast, Stetelman testified that he and Tackett initially discussed a joint venture to build a Taco Bell on the vacant lot but that Tackett stopped responding to phone calls and messages. Stetelman also claimed that he negotiated with an alleged agent of Tackett regarding the terms of a sub-lease of the disputed parking area but that Tackett ultimately refused to sign the sub-lease. In June 2014, L & D marked the alleged boundary line between the two lots with spray paint and put up ropes to block access to the vacant lot. Subway employees later removed the ropes.
¶9. In June 2014, Tackett filed a complaint against L & D in the Forrest County Chancery Court to confirm title to the disputed area by adverse possession.2 The chancellor granted a temporary restraining order and then, by agreed order, a preliminary injunction preventing L & D from blocking access to the vacant lot. The case eventually proceeded to trial in 2018.
¶10. After trial, the chancellor entered findings of fact, conclusions of law, and a final judgment. The chancellor found that Tackett did not prove that he "possessed" the disputed property so as to support a claim of adverse possession. However, the chancellor found that Tackett proved all elements necessary to establish a prescriptive easement. Therefore, the chancellor granted Tackett a prescriptive easement over the disputed property.
¶11. L & D then filed a "Motion to Correct, Reconsider and for Clarification" that asked the chancellor to, among other things, order Tackett to maintain liability insurance and pay a portion of the property taxes and maintenance costs related to the area burdened by the prescriptive easement. In August 2018, the chancellor held a hearing on L & D's motion. The parties agreed that the judgment should be amended to reflect that L & D owned the lease on the vacant lot, and the chancellor apparently directed the parties to develop the record or confer regarding the remaining issues raised in L & D's motion.3
¶12. There was no further action in the case until December 2018, when L & D sent the chancellor a detailed proposed order that, among other things, amended the judgment to require Tackett to maintain liability insurance covering the prescriptive easement (, a $1,000,000 policy naming L & D as an additional insured) and required Tackett to pay fifty-one percent of the property taxes and maintenance costs related to the area burdened by the easement. Tackett objected to L & D's proposed order and submitted an alternative proposed order that corrected the judgment to reflect that L & D owned the lease on the vacant lot but otherwise denied all relief requested by L & D's pending motion. On December 5, 2018, the chancellor signed and entered L & D's proposed order amending the judgment. However, later that same day, the chancellor signed Tackett's proposed order and entered it as the "Final Judgment" in the case.4 L & D then filed a notice of appeal.
¶13. On appeal, L & D argues that the chancellor erred by (1) granting Tackett a prescriptive easement; (2) granting a preliminary injunction without requiring Tackett to post a bond; and (3) entering Tackett's proposed order as the final judgment. By this Court's invitation, the Secretary of State and the Hattiesburg Public School District filed amicus curiae briefs on certain issues related to the properties’ status as 16th section lands.
ANALYSIS
¶14. This Court will not disturb a chancellor's findings of fact unless they are manifestly or clearly erroneous or the chancellor applied the wrong legal standard. Keener Props. L.L.C. v. Wilson , 912 So. 2d 954, 956 (¶3) (Miss. 2005). If the chancellor's findings of fact are supported by substantial evidence, we may not disturb those findings, even if we "might have found otherwise as an original matter." Id. We review issues of law de novo. Id.
¶15. L & D argues that the chancellor erred by granting a prescriptive easement (1) because Tackett failed to prove that he "possessed" the disputed area and (2) because Tackett's claim is barred by the doctrine of equitable estoppel. We address these arguments in turn.
¶16. First, L & D argues that the chancellor's finding that Tackett failed to establish "possession" of the property—and, thus, failed to prove adverse possession—should have defeated Tackett's claim for a prescriptive easement as well. In other words, L & D seems to argue that a claimant who fails to prove "possession" and adverse possession cannot, as a matter of law, establish a prescriptive easement either. This argument misses the mark. Adverse possession and prescriptive easements are similar concepts, but there are important distinctions between the two.
¶17. Although the general standard for establishing a prescriptive easement and adverse possession is the same, see, e.g. , Thornhill v. Caroline Hunt Tr. Est. , 594 So. 2d 1150, 1152 (Miss. 1992), there are differences in how the standard is applied. Most important for purposes of this case is the difference between "possession" and "use." "To acquire property by adverse possession, a claimant must show that its possession of the property was: (1) open, notorious,...
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