Kuhn v. High
| Decision Date | 03 September 2020 |
| Docket Number | NO. 2018-CA-01760-SCT,2018-CA-01760-SCT |
| Citation | 302 So.3d 630 |
| Parties | Todd KUHN, Angela Kuhn and Virgil G. Gillespie v. Cheryl L. HIGH |
| Court | Mississippi Supreme Court |
ATTORNEY FOR APPELLANTS: VIRGIL G. GILLESPIE, Gulfport
ATTORNEY FOR APPELLEE: STEVEN N. NEWTON
BEFORE KITCHENS, P.J., BEAM AND ISHEE, JJ.
¶1. This is the third time this dispute has been before this Court. In High v. Kuhn , 191 So. 3d 113, 117 (Miss. 2016) ( High I ), we held that article 4, section 110, of the Mississippi Constitution forbade the condemnation of a private road across the property of Cheryl High for the benefit of Todd and Angela Kuhn. After this Court's mandate, High moved the Harrison County Special Court of Eminent Domain for attorney fees pursuant to Mississippi Code Section 11-27-37 (Rev. 2019). The special court found that Section 11-27-37 did not apply. High appealed, and this Court reversed and remanded for the special court to consider the merits of the motion for attorney fees and the reasonableness of the amount of fees requested. High v. Kuhn , 240 So. 3d 1198, 1201 (Miss. 2017) ( High II ).
¶2. On remand, High filed an amended motion requesting attorney fees for a frivolous filing under the Mississippi Litigation Accountability Act (LAA). After a hearing, the special court awarded attorney fees to High as a sanction for the Kuhns’ frivolous filing. The special court found that the $29,049.60 requested by High was reasonable and assessed that amount jointly and severally against the Kuhns and their attorney, Virgil Gillespie. The special court denied the Kuhns’ motion to reconsider and amended the judgment to add $1,000 in attorney fees that High had incurred in defending the motion for reconsideration.
¶3. The Kuhns and Gillespie appeal, arguing that the special court erred by (1) adopting High's findings of fact and conclusions of law, (2) awarding a judgment to one of High's attorneys who was not a party to the lawsuit, (3) imposing a sanction for a frivolous filing, (4) awarding interest, and (5) allowing attorney fees beyond those permitted by Section 11-27-37. Because the special court of eminent domain did not abuse its discretion by imposing the sanctions nor did it err in its application of the law, we affirm in part. We reverse and render in part to correct a scrivener's error in the amended judgment.
Miss. Code Ann. § 65-7-201. With their petition, the Kuhns sought access to their property, which was landlocked save for a fifteen-foot easement in an inconvenient location. High I , 191 So. 3d at 115. At the close of the Kuhns’ evidence, High moved to dismiss on the ground that article 4, section 110, of the Mississippi Constitution prohibits the condemnation of a private road within an incorporated city or town. Id. at 116. Under article 4, section 110, "[t]he 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 in incorporated cities and towns." Miss. Const. art. 4, § 110.
¶5. The Kuhns acknowledged that article 4, section 110, prohibits the condemnation of a private road in the City of Gulfport but argued that article 4, section 110, violates the Equal Protection Clause of the United States Constitution. The Kuhns argued also that High had waived the constitutional argument by failing to raise it until the trial. High I , 191 So. 3d at 116. The special court of eminent domain agreed with these arguments, condemned a private road across High's property, and ordered a jury trial on damages. Id. at 116-17.
¶6. This Court granted High's petition for an interlocutory appeal. Id. at 117. We held that article 4, section 110, "clearly prohibits the Legislature from creating the statutory right to condemn for a private road property within an incorporated city or town." Id. (citing Miss. Const. art. 4, § 110 ). We observed that the original version of Section 65-7-201 had provided that a landowner seeking condemnation of a private road must pursue relief by petitioning the board of supervisors of the county where the land is located. Id. at 118. In that manner, "the Legislature restricted applications to private roadways in land in the county (versus municipality) and thus avoided any constitutional conflict." Id. at 117-18. When the statute was amended in 2003 to provide for the filing of the petition with the special court of eminent domain, "this change in procedure did not alter the underlying substantive right, which is clearly limited by Section 110." Id. at 118. Therefore, the Kuhns "had no right in 2013 to petition the special court of eminent domain for a private road across High's property in Gulfport." Id.
¶7. Pertinent to this appeal, we held that High had not waived her constitutional argument. Id. at 118-19. Addressing the Kuhns’ argument that High had raised article 4, section 110, too late, we held that "the Kuhns bore the burden to present facts showing they were entitled to the relief they sought." Id. at 119. Therefore, once the Kuhns had rested, High was free to move to dismiss on the ground that the Kuhns had shown no right to relief. Id. (citing M.R.C.P. 41(b) ). We found no equal protection violation because a rational basis existed for Mississippi's Constitution to permit the Legislature to provide a statutory procedure for condemnation of private roads in rural areas but not in incorporated towns and cities. Id. We noted that the Kuhns had "not pursued any common-law remedies to gain access." Id.
¶8. After this Court's decision in High I , High moved the special court for attorney fees and expenses under Section 11-27-37, which provides:
In case the plaintiff shall fail to pay the damages and costs awarded to the defendant within ninety (90) days from the date of the rendering of the final judgment, if such judgment is not appealed from, or in case the suit shall be dismissed by the plaintiff except pursuant to settlement, or 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 him in defending the suit.
Miss. Code. Ann. § 11-27-37. The special court denied High's motion on the ground that, because article 4, section 110, barred the Kuhns’ attempt to seek a private road from the special court, Section 11-27-37 did not apply. High II , 240 So. 3d at 1200.
¶9. This Court again reversed the special court. Id. at 1202. We held that, because the Kuhns had "petitioned a statutorily created court ... for a statutorily created right," "the statutes governing eminent domain actions—including Section 11-27-37—apply." Id. (quoting High I , 191 So. 3d at 117 ). Although the statutory remedy sought by the Kuhns was unconstitutional, they chose to pursue that remedy, subjecting them to the possibility of attorney fees under Section 11-27-37 for filing an unsuccessful petition. Id. at 1201. We recognized that "the fact the Kuhns’ petition was dead on arrival actually supports awarding High attorney's fees." Id. at 1200-01.
¶10. This Court addressed in detail the impact of the Kuhns’ argument on High's potential entitlement to attorney fees. Id. at 1201 n.4. We observed that the Kuhns’ argument that the special court of eminent domain lacked subject matter jurisdiction was inconsistent with their "position in High I , in which they argued the special court of eminent domain was the only court that could afford them the relief they sought." Id. We noted that, "by insisting they filed an action in a court that lacked subject matter jurisdiction, the Kuhns are essentially conceding their action was ‘frivolous’—opening up another statutory door for High to potentially recover attorney's fees" under the LAA. Id. (citing Miss. Code Ann. § 11-55-5(1) (Rev. 2012)). This Court reversed and remanded for the special court to determine in its discretion "whether to award statutory attorney's fees and expenses under Section 11-27-37 and, if so, in what amount ...." Id. at 1201.
Proceedings on remand
¶11. On remand, High filed a motion for attorney fees and costs for a frivolous filing under the LAA and a renewed motion for attorney fees, costs, and expenses under Section 11-27-37 and interest on the judgment under Mississippi Code Section 75-17-7 (Rev. 2016). On February 26, 2018, this Court appointed Special Judge Dina Richelle Lumpkin to preside over the proceedings, replacing Senior Status Judge Michael H. Ward. At a hearing, High explained that her motions requested attorney fees alternatively under Section 11-27-37 and under the LAA....
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