Miss. Sand Solutions, LLC v. Otis

• Decision Date: 17 December 2020
• Docket Number: NO. 2019-CA-01103-SCT,2019-CA-01103-SCT
• Citation: 312 So.3d 349
• Parties: MISSISSIPPI SAND SOLUTIONS, LLC v. Bessie B. OTIS, Sherry Fisher, Connie Fisher Walker, Dennis Roy Holmes, Robbie Jean Holmes Ware, Maggie Fisher, Gregory Cooper, Janice Fisher Turner, Larry D. Fisher, Johnny L. Wright, Bridgett G. Winters, James Fisher, Jr., Ray W. Fisher, Sr., Michael C. Fisher, Sr., Jimmy L. Wright, Cornelius Fisher, Sr., Derrick Fisher, Dianne Fisher Williams, Sharon Fisher Hill, Shelia Fisher Keys and Ledoria Fisher Baldwin, C.J. Fisher, Jr., Horace Darryl Fisher, Frank Fisher, Joyce Fisher, Shirley Fisher Gray and Minnette Fisher Chambers
• Court: Mississippi Supreme Court

312 So.3d 349

MISSISSIPPI SAND SOLUTIONS, LLC

v.Bessie B. OTIS, Sherry Fisher, Connie Fisher Walker, Dennis Roy Holmes, Robbie Jean Holmes Ware, Maggie Fisher, Gregory Cooper, Janice Fisher Turner, Larry D. Fisher, Johnny L. Wright, Bridgett G. Winters, James Fisher, Jr., Ray W. Fisher, Sr., Michael C. Fisher, Sr., Jimmy L. Wright, Cornelius Fisher, Sr., Derrick Fisher, Dianne Fisher Williams, Sharon Fisher Hill, Shelia Fisher Keys and Ledoria Fisher Baldwin, C.J. Fisher, Jr., Horace Darryl Fisher, Frank Fisher, Joyce Fisher, Shirley Fisher Gray and Minnette Fisher Chambers

NO. 2019-CA-01103-SCT

Supreme Court of Mississippi.

December 17, 2020

ATTORNEY FOR APPELLANT: KENNETH B. RECTOR, Vicksburg

ATTORNEYS FOR APPELLEES: KEVIN EARL GAY, JOHN M. MOONEY, JR., Jackson

BEFORE RANDOLPH, C.J., COLEMAN AND CHAMBERLIN, JJ.

RANDOLPH, CHIEF JUSTICE, FOR THE COURT:

¶1. Mississippi Sand Solutions (Solutions) appeals a judgment by the Warren County Special Court of Eminent Domain denying its petition to establish a private right-of-way across lands owned by the defendants (the Fishers). Because we find that the special court did not err by applying collateral estoppel to claims relating to access to Solutions’ property, we affirm its judgment.

FACTS & PROCEDURAL HISTORY

¶2. This Court has previously documented the history of disputes over this property, first in Mississippi Sand Solutions, LLC v. Otis , 248 So. 3d 813, 815–19 (2018) ( Otis I ), and then again in Mississippi Sand Solutions, LLC v. Otis , 289 So. 3d 708, 709–12 (2019) ( Otis II ). The facts detailed in Otis I and Otis II are pertinent here. Solutions now seeks to utilize Mississippi Code Section 65-7-201 to condemn a private right-of-way.

¶3. Solutions’ suit to condemn a private right-of-way drew numerous dispositive motions from the Fishers asserting collateral estoppel. Initially, the motions were denied. Before trial, the trial judge recused. This Court appointed a special judge to hear the case. The Fishers again filed dispositive motions asserting collateral estoppel. Again, their motions were denied. The trial commenced, and the first phase occurred without a jury in accord with Mississippi Code Section 65-7-201.

¶4. During phase one, the special judge reconsidered applying the doctrine of collateral estoppel and ruled that Solutions was precluded from offering evidence that alternative access to its property was unavailable. Solutions was allowed to proffer the evidence out of the presence of the judge for the record. Following Solutions’ case-in-chief, the Fishers moved for a directed verdict.¹ The trial court granted their motion, finding that Solutions had failed in several respects to make a prima facie case under Mississippi Code Section 65-7-201. Solutions appeals.

STANDARD OF REVIEW

¶5. The decisions of a special court of eminent domain are subject to the same review we apply to decisions of other courts. Wiggins v. City of Clinton , 298 So. 3d 962, 964 (Miss. 2020) (citing Morley v. Jackson Redevelopment Auth. , 874 So. 2d 973, 975 (Miss. 2004) ). Our standard of review is abuse of discretion. Id. (citing Morley , 874 So. 2d at 975 ). If the decision of the court rests on factual findings not supported by evidence or incorrect statements of the law, it will not be affirmed, id. (citing Morley , 874 So. 2d at 975 ), and "[w]e review questions of law de novo ...." Morley , 874 So. 2d at 975 (citing In re Williamson , 838 So. 2d 226, 233 (Miss. 2002) ).

ANALYSIS

I. The Private Road Condemnation Statute

¶6. Solutions based this action on Mississippi Code Section 65-7-201, seeking to condemn a private road over the property of another. This statute provides for the private exercise of the power of eminent domain. Section 65-7-201, provides in relevant part,

When any person shall desire to have a private road laid out through the land of another, when necessary for ingress and egress , he shall apply by petition, stating the facts and reasons, to the special court of eminent domain created under Section 11-27-3 of the county where the land or part of it is located .... The court sitting without a jury shall determine the reasonableness of the application.

Miss. Code Ann. § 65-7-201 (Rev. 2012) (emphasis added). For a party to successfully invoke this statute, it must do two things: (1) establish that this course of action is necessary for it to access its land and (2) convince the special court of eminent domain that the proposed plan is reasonable. Id .

¶7. First we note that any exercise of eminent domain by the state for public benefit is to be rigorously considered to ensure it strictly accords with the statute that establishes such power. Gale v. City of Jackson , 238 Miss. 826, 120 So. 2d 550, 551–52 (1960) (citing Wise v. Yazoo City , 96 Miss. 507, 51 So. 453 (1910) ; Ferguson v. Bd. of Supervisors , 149 Miss. 623, 115 So. 779 (1928) ; Nicholson v. Bd. of Miss. Levee Comm'rs , 203 Miss. 71, 33 So. 2d 604 (1948) ; Whitworth v. Miss. State Highway Comm'n , 203 Miss. 94, 33 So. 2d 612 (1948) ; Berry v. S. Pine Elec. Power Ass'n , 222 Miss. 260, 76 So. 2d 212 (1954) ). The statutorily created right of a private citizen to invoke the powers of eminent domain to redistribute private property for personal gain is even more scrutinized. Whitefort v. Homochitto Lumber Co. , 130 Miss. 14, 93 So. 437, 439 (1922). "[T]he right to control and use of one's property is a sacred right not to be lightly invaded or disturbed." Hooks v. George Cnty. , 748 So. 2d 678, 681 (Miss. 1999) (citing Whitefort , 93 So. at 439 ). Courts shall therefore find a private right to invoke eminent domain only in narrow and limited circumstances. Whitefort , 93 So. at 439.

¶8. Step one requires a petitioner seeking to condemn property to establish that it does not have access to its property. Miss. Code Ann. § 65-7-201. See generally Quinn v. Holly , 244 Miss. 808, 146 So. 2d 357, 359 (1962) (in which it was shown that a bayou divided petitioner's property in half and that to reach the opposite half, a road had to be constructed across privately owned property); Roberts v. Prassenos , 219 Miss. 486, 69 So. 2d 215, 217–18 (1954) (denying a petition for a private road when the record established that the plaintiffs already had access to their property); Whitefort , 93 So. at 439 (in which a logging company demonstrated that to access its property it needed to build a logging road across either of two privately owned properties). Significantly, this requirement does not mean that the proposed road and route are the only possible route, see Quinn , 146 So. 2d at 359, but the petitioner must demonstrate that a right-of-way is a real, actual necessity, not a "mere convenience." Rotenberry v. Renfro , 214 So. 2d 275, 278 (Miss. 1968) (citing Whitefort , 93 So. at 437 ; Roberts , 69 So. 2d 215 ); see also Miss. Code Ann. § 65-7-201.

¶9. Once the lack of access has been established, the petitioner must show that it has attempted to obtain access through its own private efforts before petitioning the special court to redistribute private property. Hooks , 748 So. 2d at 681 (citing Rotenberry , 214 So. 2d at 278 ); Whitefort , 93 So. at 439. Petitioners must make good-faith efforts to purchase rights-of-way from their neighbors before coming to the court system. Rotenberry , 214 So. 2d at 278.

¶10. Only after establishing a lack of access and that their neighbors will not negotiate can a petitioner stand before a court and claim necessity. Then, if necessity has been established, the petitioner must still satisfy the special court that the proposed right-of-way is reasonable. Miss. Code Ann. § 65-7-201.

II. The special court of eminent domain properly applied the doctrine of collateral estoppel to the issue of access.

¶11. The trial court held that the factual findings of Otis I collaterally estopped Solutions from relitigating the issue of alternative access to its property. The trial court held that the issue of alternative access to Solutions’ property had already been legally determined. Solutions argues the issue of access was not actually litigated or essential to the final judgment in Otis I .

¶12. Collateral estoppel exists to prevent "parties from relitigating issues authoritatively decided on their merits in prior litigation to which they were parties or in privity." Marcum v. Miss. Valley Gas Co. , 672 So. 2d 730, 733 (Miss. 1996) (internal quotation mark omitted) (quoting State ex rel. Moore v. Molpus , 578 So. 2d 624, 640 (Miss. 1991) ). The doctrine requires one to prove that the specific disputed issue was "actually litigated, determined by, and essential to the judgment in the former action, even though a different cause of action is the subject of the subsequent action." Dunaway v. W. H. Hopper & Assocs., Inc. , 422 So. 2d 749, 751 (Miss. 1982) (citing Lee v. Wiley Buntin Adjuster, Inc. , 204 So. 2d 479 (Miss. 1967) ; Lyle Cashion Co. v. McKendrick , 227 Miss. 894, 87 So. 2d 289 (1956) ).

¶13. Thus, we look to see if the specific issue was addressed and ruled upon in the prior case. Baker & McKenzie, LLP v. Evans , 123 So. 3d 387, 403 (Miss. 2013). Courts will determine if the specific issue was actually raised in the previous case and if the prior court actually made a finding on the issue. Channel v. Loyacono , 954 So. 2d 415, 425 (Miss. 2007).

¶14. Before the chancery court in Otis I , the Fishers brought a complaint for declaratory judgment against Solutions. They sought to establish (1) that an easement recorded against their property was invalid and (2) that there was no entitlement to an easement by necessity because alternative access was available. Solutions filed a counterclaim asserting a claim for an easement by prescription and by expressed grant.² The Fishers’ complaint asserted, "[p]laintiffs would further show that the Defendants are not entitled to an easement by necessity as there is other access to the Defendants property." In its order rendering judgment for the...