Johnson v. Weston Lumber & Bldg. Supply Co.
| Decision Date | 01 August 1990 |
| Docket Number | No. 07-CA-59030,07-CA-59030 |
| Citation | 566 So.2d 466 |
| Parties | Harold JOHNSON v. WESTON LUMBER & BUILDING SUPPLY COMPANY. |
| Court | Mississippi Supreme Court |
J. Gary Massey, Taylor Covington & Smith, Jackson, for appellee.
Before DAN M. LEE, P.J., and SULLIVAN and PITTMAN, JJ.
STATEMENT OF THE CASE
This case presents the issue of whether a judgment on a complaint to set aside an easement should be reversed. Harold Johnson's attorney withdrew as counsel on the same day the matter was tried, and a judgment was entered for the Defendant Weston with judgment for zero dollars returned on a counter-claim filed by the Defendant, Joseph Weston.
Harold Johnson filed a motion to set aside the judgment and to add Charles Sylvester as a party. The chancellor below denied the motion to set aside the judgment and disallowed the joinder of Charles Sylvester. From the denial of the motion to set aside the prior judgment, the denial of the joinder of Sylvester, and the finding that Johnson was in contempt of court, Johnson appeals, assigning as error the following:
2. CHARLES SYLVESTER, SUCCESSOR IN INTEREST TO THE PROPERTY AT ISSUE, SHOULD HAVE BEEN MADE A PARTY TO THE PROCEEDING, AS NO LIS PENDENS HAD BEEN FILED.
The facts surrounding this case are fairly straightforward. Harold Johnson commenced this civil action on April 24, 1987, by filing a complaint against Weston Lumber & Building Supply Co. Johnson, as of that date record title owner, sought a judgment declaring an official end to an easement over his property by the dominant estate alleged to be owned by Weston Lumber. Johnson claimed the easement had Weston Lumber's response was to disavow any interest in the property, claiming to have conveyed it to Joseph Weston. As a result, Weston Lumber was dismissed as a defendant and Johnson's complaint amended to reflect the defendant as Joseph Weston. Weston subsequently answered by denying the grounds to which Johnson alleged the easement to no longer exist and counterclaimed. Weston, via his counterclaims, asked that the existence of the easement be judicially acknowledged and Johnson ordered to clear the easement of all obstructions and further sought compensatory and punitive monetary damages. This answer was filed on July 17, 1987.
either never existed due to ambiguity in the initial grant, or no longer existed due to failure to include the easement in subsequent conveyances or abandonment.
The property is located on Bailey Avenue in Jackson and it appears the purpose of the easement was to allow a railroad spur to be used in shipping and receiving lumber. In recent times the spur (and easement) had been used sparingly. However, Weston apparently wished to resume using the spur for shipping purposes and so notified Johnson in order that the spur might be cleared for resumption of use.
On August 18, 1987, Weston filed a motion for summary judgment and a hearing on the matter was set for September 2, 1987. While there is no evidence on the record of a ruling on this motion, it seems of no consequence in light of the October 26, 1987, trial of the matter.
The real gravamen of this appeal occurred in late October of 1987. Johnson and his counsel became embroiled in a dispute regarding attorney fees which resulted in Johnson's counsel filing a motion to withdraw on October 15, 1987, with a hearing noticed for October 22, 1987. While no record exists of any response by Johnson to the motion of his counsel to withdraw or of a October 22nd hearing on the motion, an order authorizing Johnson's counsel to withdraw was entered on October 26, 1987. On that same day, without Johnson or a representative of his interests present, the matter was tried. Judgment against Johnson confirming the easement but awarding no monetary damages to Weston was rendered the following day, October 27, 1987. Significantly, no notice setting the matter for trial appears in the record.
Subsequently, on November 16, 1987, Johnson, joined by Charles Sylvester, filed their Rule 60(b)(6) motion to set aside the judgment of October 27, 1987, and Rule 19(a)(2) motion asking that Sylvester be joined as a party. The basis of the motion was (1) neither Johnson nor his counsel were present at the trial, Johnson's counsel having withdrawn his representation of Johnson prior to the trial; (2) on September 24, 1987, Johnson had conveyed the property along with the serviant estate of the easement to Charles Sylvester to satisfy the deed of trust on the property held by Sylvester. As a result of the conveyance, Sylvester held fee simple title to the property subject to the easement and Johnson no longer held any interest. The motion also asserted that because no lis pendens notice was filed in the Chancery Clerk's office and the conveyance was filed of record prior to the entry of the judgment, the judgment was unenforceable against Sylvester. In the end, the motion asked that the judgment be set aside and Sylvester joined in the action.
The Chancery Court denied the motion to set aside the judgment and join Sylvester as a party at the conclusion of a hearing on the matter on December 15, 1987. At the hearing, Johnson's former counsel testified he never informed Johnson of the pending trial date. Sylvester testified ambiguously concerning his knowledge of the litigation concerning the easement, stating that he knew there was a "dispute", but did not know about the litigation. The notice of appeal by Johnson indicates it was joined by Charles Sylvester.
BEING GIVEN TO THE AGGRIEVED PARTY OF THE TRIAL AND THE PARTY WAS NOT REPRESENTED BY COUNSEL.
This is the overriding assignment of error in this cause. Because of the decision we reach concerning this assignment of error, the other issues need not be articulated and discussed in any great detail.
MRCP 60(b)(6) states:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(6) any other reason justifying relief from the judgment. MRCP 60(b)(6).
The motion to allow counsel to withdraw was originally noticed for October 22, 1987. There is no indication from the pleadings or orders in the record that the motion was heard on the day in question. The motion to withdraw appears to have been presented and signed on the same day that the cause was tried, October 26, 1987. Although the initial appearance of Johnson in the lawsuit was by and through counsel, as of the date of the order allowing Wade to withdraw, Johnson was without counsel. No orders, letters, or other notices appear in the record setting the trial or motion or other hearing date in this cause. There was no determination by the trial court that the plaintiff knew to be present for trial. There is no record indication that the trial court safeguarded the rights of Johnson concerning notice as to the trial date.
In determining whether the Chancellor below abused his discretion in refusing to set aside the judgment pursuant to MRCP 60(b)(6),...
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