Locklear v. Sellers
| Decision Date | 26 November 2013 |
| Docket Number | No. 2012–CA–00676–COA.,2012–CA–00676–COA. |
| Parties | Donald LOCKLEAR, Appellant v. Timothy G. SELLERS and Johnny M. Sellers, Appellees. |
| Court | Mississippi Court of Appeals |
OPINION TEXT STARTS HERE
Carey R. Varnado, Hattiesburg, Brian Randolph Bledsoe, attorneys for appellant.
Alben Norris Hopkins Jr., Mariano Javier Barvie, Gulfport, attorneys for appellees.
Before LEE, C.J., MAXWELL and FAIR, JJ.
FAIR, J., for the Court:
¶ 1. Brothers Tim and Johnny Sellers, joint owners of a parcel of land in rural Forrest County, brought suit against Donald Locklear, a neighboring landowner. The Sellerses alleged Locklear had constructed a road across their property, against their express direction. The Sellerses' request for admissions was deemed admitted by the chancery court after Locklear, who was not represented by counsel at the time, failed to respond. The admissions resolved liability, and a trial on damages resulted in awards of approximately $64,000 in compensatory damages, $126,000 in punitive damages, and $25,000 in attorney's fees. Locklear appeals, and we affirm.
FACTS
¶ 2. The Sellerses inherited their property, 120 acres straddling Forrest and Perry Counties, which had once been part of a larger block of family land. 1 Locklear purchased a parcel to the south that apparently was once also Sellers family land. The Sellerses' aunt, Mary Sellers, who owned property to the east of the Sellerses, sold Locklear an easement to build a road to access his property. Locklear's gravel road traveled south down the western edge of the Sellers's property until approximately 1,000 feet from Locklear's property line, if it had continued due south. There, an existing trail “cut the corner” of the Sellerses' property at approximately a thirty-degree angle. Locklear built his road over the trail, and some land adjoining it was cleared for the installation of utilities.2 The road spanned about 1,200 feet on the Sellerses' property, and approximately 84,000 square feet was disturbed. Ultimately, Locklear subdivided his parcel and cashed out. Several homes were constructed on the former Locklear property, and the Locklear road was used to access them.
¶ 3. Locklear's most relevant admissions were:
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At the damages hearing, Tim Sellers testified that he had repeatedly refused Locklear's overtures for a right of way over the Sellers property. He had once given Locklear oral permission to use the trail for personal travel to and from his lot, but Tim had repeatedly denied Locklear's request to construct a road. While the road was under construction, Tim personally went to the site and instructed Locklear not to build the road on his property. Locklear said he would not, but did it anyway.
¶ 4. Locklear testified Tim Sellers had orally agreed to allow the road to be built on his property in exchange for the right to use it.
¶ 5. Bubba Catt testified as an expert in excavation and road building. He viewed the Sellers property and concluded that restoration would require busting up the roadbed, removing the fill and gravel, and replacing the topsoil and vegetation. Catt estimated the cost at nearly $64,000.
STANDARD OF REVIEW
¶ 6. Questions of law are reviewed de novo. Irving v. Irving, 67 So.3d 776, 778 (¶ 11) (Miss.2011). A chancellor's factual findings, on the other hand, will not be disturbed unless he was manifestly wrong or clearly erroneous, or applied an erroneous legal standard. Carambat v. Carambat, 72 So.3d 505, 510–11 (¶ 24) (Miss.2011). As long as substantial evidence supports the chancellor's findings, an appellate court is without authority to disturb them, even if it would have found otherwise as an original matter. Joel v. Joel, 43 So.3d 424, 429 (¶ 14) (Miss.2010). Additionally, if the chancellor has made no specific findings and none are required under a “factor test” mandated by case law, we generally proceed on the assumption that he resolved fact issues in favor of the prevailing parties. Ferrara v. Walters, 919 So.2d 876, 881 (¶ 8) (Miss.2005).
¶ 7. With regard to Mississippi Rule of Civil Procedure 36 admissions: Young v. Smith, 67 So.3d 732, 742–43 (¶ 22) (Miss.2011) (citation omitted). “Rule 36 admissions, whether express or by default, are conclusive as to the matters admitted....” Id. at 743 (¶ 22) (citation omitted).
DISCUSSION
¶ 8. Locklear lists five issues, but he has briefed just three. We address only those issues supported by argument and citation to authority. M.R.A.P. 28(a)(6); In re Adoption of Minor Child, 931 So.2d 566, 578 (¶ 34) (Miss.2006).
¶ 9. Locklear contends the chancellor erred in using restoration cost as the measure of compensatory damages because, according to him, the road actually improved the value of the Sellers property. He points out that the general rule is that restoration costs will only be awarded where the cost of restoration is less than the diminution in value of the property. See, e.g., Harrison v. McMillan, 828 So.2d 756, 769 (¶ 43) (Miss.2002). Proof of the cost of restoration “is usually confined to the introduction of evidence to show a reduction, and not an increase, of damages above the diminution in value of the land resulting from the injury.” Id. (quoting Bynum v. Mandrel Indus., Inc., 241 So.2d 629, 634 (Miss.1970)).
¶ 10. The flaw in Locklear's argument is that it was deemed admitted that the Sellerses were entitled to restoration damages. Admissions under Rule 36 are conclusive and final. Young, 67 So.3d at 742–43 (¶ 22).
¶ 11. Moreover, Locklear's contention that the property value was increased is contradicted by his admission that it was damaged. In Bell v. First Columbus National Bank, 493 So.2d 964, 969–70 (Miss.1986), the Mississippi Supreme Court discussedat length the various ways to measure damage to real property. The court concluded:
Plaintiff can choose to prove either reasonable cost of replacement or repairs or diminution in value, and if he proves either of these measures with reasonable certainty, damages are allowable, so long as the plaintiff will not be unjustly enriched and the defendant does not demonstrate that there is a more appropriate measure of damages.
Id. at 970. Locklear begs the question of whether the diminution in value exceeds the restoration cost; he presented no evidence of the before and after values of the property. Even if this issue were not disposed of by Locklear's admissions, it is without merit because he has failed to show a better measure of damages.
¶ 12. Locklear next argues that punitive damages should not have been awarded. He admits that punitive damages may be assessed against a defendant for a wilful, grossly negligent, or wanton trespass. R & S Dev., Inc. v. Wilson, 534 So.2d 1008, 1013 (Miss.1988). But Locklear again attempts to contradict...
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