Hosemann v. Harris

• Decision Date: 02 April 2015
• Docket Number: No. 2013–CA–00318–SCT.,2013–CA–00318–SCT.
• Citation: 163 So.3d 263
• Parties: C. Delbert HOSEMANN, Jr., in his Capacity as Secretary of State and as Trustee of the Public Tidelands Trust, The State of Mississippi, Jackson County, Mississippi and City of Ocean Springs, Mississippi v. David Neil HARRIS, Sr., Vecie Michelle Harris and Clyde H. Gunn, III.
• Court: Mississippi Supreme Court

163 So.3d 263

C. Delbert HOSEMANN, Jr., in his Capacity as Secretary of State and as Trustee of the Public Tidelands Trust, The State of Mississippi, Jackson County, Mississippi and City of Ocean Springs, Mississippi

v.David Neil HARRIS, Sr., Vecie Michelle Harris and Clyde H. Gunn, III.

No. 2013–CA–00318–SCT.

Supreme Court of Mississippi.

April 2, 2015.

Rehearing Denied May 28, 2015.

Hugh D. Keating, Je'Nell Blocher Blum, Gulfport, Paula N. Stennett–Yancey, Jessica Marie Dupont, Ryan Anthony Frederic, Amy Lassitter St. Pe', Robert W. Wilkinson, Pascagoula, attorneys for appellants.

John G. Corlew, Virginia T. Munford, David Neil Harris, Jr., Biloxi, attorneys for appellees.

Before WALLER, C.J., LAMAR and KING, JJ.

Opinion

KING, Justice, for the Court:

¶ 1. Abutting landowners, Clyde H. Gunn, D. Neil Harris, and Vecie Michelle Harris, filed suit to confirm title to a sand beach located to the south of a road and seawall in Ocean Springs, Mississippi. The State of Mississippi (“the State”), the County of Jackson (“the County”), and the City of Ocean Springs (“the City”) claim title to the same land. The lower court granted partial summary judgment in favor of Gunn and Neil and Vecie Harris (Harris) and found that the sand beach was not public trust tidelands. The chancellor then vested title to the sand beach in fee simple in Gunn and Harris, subject to prescriptive easements to the City and County for maintenance.

¶ 2. The State, County, and City appeal and raise these issues:

I. Whether the trial court erred in granting partial summary judgment on the tidelands issue.

II. Whether the chancellor erred in denying the State's Motion to Dismiss for expiration of the statute of limitations under the Tidelands Act.

III. Whether the chancellor erred in confirming fee simple title to the sand beach in Gunn and Harris.

IV. Whether the chancellor properly excluded the expert testimony of Cole, Schwartz, and Compton.

V. Whether the chancellor erred in denying the County's Motion in Limine to exclude evidence based on Corlew's statements in a companion case.

VI. Whether the chancellor erred in allowing testimony on individual statements of a County supervisor.

VII. Whether the chancellor erred in holding the County and City failed to establish title to the disputed property by statute, adverse possession, or public prescriptive easement.

FACTS AND PROCEDURAL HISTORY

¶ 3. This is a title suit affecting significant public and private interests. Gunn and Harris each own beachfront property in an area known as “East Beach” in Ocean Springs, Mississippi. Starting from the Mississippi Sound going north, there is marsh grass, a sand beach, a seawall, a road, and the yards of the Gunn and Harris properties.

¶ 4. Gunn and Harris previously filed for an injunction to prevent the City of Ocean Springs from constructing a sidewalk on the sand beach. The chancellor granted a permanent injunction that prevented the City from constructing the sidewalk but refrained from drawing property lines or declaring ownership. This Court vacated the chancellor's grant of a permanent injunction and remanded the case with instruction to continue the original preliminary injunction pending determination of ownership of the disputed property.

¶ 5. Gunn and Harris then each filed suit in the Chancery Court of Jackson County to quiet and confirm title to the sand beach. Because Neil Harris was a sitting chancellor in Jackson County, all Jackson County chancellors recused themselves. Special Chancellor Robert Lancaster was appointed.¹ The actions were consolidated first for discovery and later for all purposes. Gunn and Harris filed a Motion for Partial Summary Judgment as to whether the sand beach was considered tidelands under the Public Trust Tidelands Act. The State responded with a Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6), claiming that Gunn and Harris were outside the statute of limitations under the Tidelands Act. At the hearing for the partial summary judgment motion, Gunn and Harris moved to strike and exclude the affidavit of George M. Cole, a licensed surveyor, who was to testify that the Gunn and Harris deeds indicated the 1916 shoreline was inland of the current seawall. Special Chancellor Lancaster granted the motion to strike Cole's affidavit, concluding that the affidavit did not comply with Mississippi Rule of Civil Procedure 56 and did not include admissible evidence.

¶ 6. On August 16, 2012, the chancellor granted the Motion for Partial Summary Judgment, holding that the boundary of the tidelands was the mean high water line closest to July 1, 1973, and ruling that the State had failed in its burden to produce admissible evidence showing the boundary was not this line.² The chancellor also denied the State's Motions to Dismiss, ruling that motions to dismiss were not proper avenues to determine statute of limitations issues. The chancellor filed an Addendum to Opinion on the partial summary judgment ruling on August 20, 2012, addressing the difference between the present case and Gilich.³ The chancellor recognized that there was a dilemma between the Tidelands Act and the Harrison County beaches, but reaffirmed his original opinion and found that, unlike in Gilich, the State in this case did not produce admissible evidence that the sand beach was created by the filling of tidelands. The State then filed an Interlocutory Appeal petition on the partial summary judgment ruling, which the County and City joined. On October 29, 2012, this Court denied the Petition for Interlocutory Appeal.

¶ 7. A trial commenced on October 29–31, 2012, to determine the County's and City's adverse possession and public prescriptive easement claims. The chancellor confirmed and quieted title to the sand beach in Gunn and Harris, subject to prescriptive easements for the County and City. The court held the State, County, and City failed to prove adverse possession or public prescriptive easement by clear and convincing evidence.⁴ The court found that the County had a prescriptive easement in maintaining the sand beach for seawall protection and the City had a prescriptive easement for road maintenance.

¶ 8. The court denied the City's Motion to Amend or Alter Judgment or in the Alternative for New Trial. The State, County, and City each appeal.

DISCUSSION

¶ 9. “The standard of review for a trial court's grant or denial of a motion for summary judgment is de novo.” Young v. Smith, 67 So.3d 732, 741 (Miss.2011) (citations omitted). “The evidence is viewed in the light most favorable to the party opposing the motion.” Davis v. Hoss, 869 So.2d 397, 401 (Miss.2004). The moving party has the burden of demonstrating no genuine issue of material fact exists. Id. Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Brent Towing Co., Inc. v. Scott Petroleum Corp., 735 So.2d 355, 358 (Miss.1999).

A. Motion to Strike Cole Affidavit

¶ 10. A trial court's grant of a motion to strike an affidavit is subject to an abuse-of-discretion standard of review. Trustmark Nat'l Bank v. Meador, 81 So.3d 1112, 1116 (Miss.2012) (citing Schmidt v. Catholic Diocese of Biloxi, 18 So.3d 814, 832 (Miss.2009) ).

¶ 11. The State filed Dr. George Cole's affidavit in response to the Motion for Partial Summary Judgment on July 24, 2012, the day before the hearing. Dr. Cole's affidavit stated that he had examined evidence relating to the shoreline on East Beach. In Dr. Cole's opinion, before the seawall was constructed, the shoreline was inland of the seawall's location, and following the construction of the seawall and public renourishment of the beach, the shoreline has been seaward of the seawall. Dr. Cole came to this conclusion using several surveys to locate the shorelines in 1822 and in 2012, and comparing the shorelines to the location of the existing seawall. Attached to the affidavit, Dr. Cole included an aerial photograph printed from the program “Google Earth” with marked lines that represented the opinions Dr. Cole stated in the affidavit.

¶ 12. Gunn and Harris objected to the affidavit, arguing that the affidavit was untimely under Rule 56(c) and that the affidavit included opinions outside of the opinions identified in the State's Designation of Expert Witnesses, in violation of Mississippi Rule of Civil Procedure 26. The trial court directed the parties to file briefs on whether or not Dr. Cole's affidavit should be excluded. The chancellor stated, “[t]he objection, as I understand it from Mr. Corlew is violation of the discovery aspect in your disclosure designation of experts you had to set out the opinions that you were going to use him for.”

¶ 13. Under Mississippi Rule of Civil Procedure 26, a party may use interrogatories to require another party to identify expert witnesses expected to testify at trial, the subject matter the expert will testify on, the substance of the facts and opinions, and a summary of the grounds for each opinion. M.R.C.P. 26(b)(4). The December scheduling order did not require the designation of experts to be made pursuant to Rule 26. The order merely stated that the defendants must designate experts on or before February 2, 2012, and that discovery ended March 15, 2012. A discovery request must first be made before a violation of a discovery request can occur. City of Jackson v. Perry, 764 So.2d 373, 384 (Miss.2000). Rule 26(b)(4) clearly states that expert facts and opinions can be required through interrogatories. It is undisputed that Gunn and Harris did not propound interrogatories. Because no interrogatories were propounded imposing a duty to supplement expert opinions, the motion to strike Dr. Cole's affidavit for a discovery violation had no basis.

¶ 14. The trial court instead excluded Dr. Cole's affidavit because the...