Rolison v. Fryar

• Decision Date: 01 December 2016
• Docket Number: NO. 2015–CA–00519–SCT,2015–CA–00519–SCT
• Parties: Gary Rolison, Martha Rolison, GM Lands, LLC and Rolison Tie and Timber Company, Inc. v. Edith Carolyn Fryar, Caleb Fryar, Pine Grove Trucking, Inc., Robert A. Fryar and Operators Investment Group, P.A.
• Court: Mississippi Supreme Court

204 So.3d 725

Gary Rolison, Martha Rolison, GM Lands, LLC and Rolison Tie and Timber Company, Inc.

v.Edith Carolyn Fryar, Caleb Fryar, Pine Grove Trucking, Inc., Robert A. Fryar and Operators Investment Group, P.A.

NO. 2015–CA–00519–SCT

Supreme Court of Mississippi.

December 1, 2016

ATTORNEYS FOR APPELLANTS: BRADLEY TRUETT GOLMON, STACEY WOODRUFF GOLMON

ATTORNEYS FOR APPELLEES: MARVIN REID STANFORD, ALAN D. LANCASTER

BEFORE DICKINSON, P.J., KITCHENS AND KING, JJ.

KITCHENS, JUSTICE, FOR THE COURT:

¶ 1. Following court-ordered mediation, spouses Gary Rolison and Martha Rolison and Caleb Fryar and his father, Robert Allen Fryar, entered into a mediation settlement agreement that resolved four lawsuits pending between the Rolisons and the Fryars.¹ After a bench trial, the Circuit Court of Tippah County found that the Rolisons had breached the settlement agreement, and the court entered a final judgment pursuant to Mississippi Rule of Civil Procedure 54(b) and postponed hearing the issue of damages. The Rolisons appealed from the final judgment but later dismissed the appeal voluntarily. After the trial on damages, the trial court awarded the Fryars $399,733.02 in damages, including lost profits and attorney fees.

¶ 2. The Rolisons appeal, arguing that their jury trial waiver was ineffective, the trial court's Rule 54(b) certification was erroneous, and the trial court erroneously denied a motion to intervene filed by two interested parties. Because the Rolisons dismissed their appeal from the Rule 54(b) final judgment, these issues are not before the Court. We do hold that the trial court committed no error by finding that the Rolisons had waived their right to a jury trial on damages and attorney fees. Further, we reject the Rolisons' challenges to the trial court's awards of damages and attorney fees because those awards were supported by substantial, credible evidence. Therefore, we affirm the judgment of the trial court.

FACTS

¶ 3. In 2006, the Rolisons purchased ninety-seven acres of land, known as the sawmill property, from the Fryars. After the purchase, disputes arose between the Rolisons and the Fryars concerning ownership of certain equipment and materials located on the property. Litigation ensued in the Circuit Court of Tippah County, which consolidated four of the cases for trial. On February 15, 2011, after all parties orally waived the right to a jury trial, the trial court ordered them to participate in mediation in an effort to resolve the four cases. The trial court further ordered that "all of the disputed property remain where is, as is" until the cases were resolved. The mediation occurred on March 2, 2011, and resulted in a settlement agreement signed by Gary Rolison, Martha Rolison, Robert Allen Fryar, and Caleb Fryar.

¶ 4. The mediation settlement agreement provided that if the Fryars tendered $400,000 to the Rolisons, the Rolisons would convey the sawmill property to Caleb Fryar and execute a bill of sale for "all equipment and materials located on said property as is where is as of the date of this agreement on March 2, 2011."² Approximately one week later, the Rolisons notified the Fryars of their belief that the parties had not reached a valid agreement because there had been no meeting of the minds. On May 24, 2011, Caleb Fryar tendered a cashier's check in the amount of $400,000 to the Rolisons along with proposed settlement documents. The Rolisons returned the check and documents to the Fryars' attorney. Then, the Fryars filed a motion to enforce the settlement agreement, claiming reasonable damages incurred due to the delay, plus attorney fees.

¶ 5. A bench trial on the Fryars' motion to enforce the settlement agreement occurred on October 21, 2011. The trial court heard testimony from Gary Rolison, Martha Rolison, Gary Wayne Rolison, Jr., Caleb Fryar, and the mediator, Larry Latham. The Rolisons argued that there had been either a mistake or no meeting of the minds on the specific equipment and materials that they were to transfer to Caleb Fryar for $400,000. The Fryars countered that there had been a meeting of the minds because the mediation settlement agreement stated that the Rolisons agreed to transfer "all" equipment and materials located on the sawmill property. The Rolisons also argued that some of the equipment and materials on the sawmill property was owned by their son, Gary Wayne Rolison, Jr., and by their logging operation, Rolison Logging/Timber Company Trust. Gary Wayne Rolison, Jr., and Rolison Logging/Timber Company Trust moved to intervene to protect their interests, arguing that, because they owned the property, it could not have been transferred to Caleb Fryar by the mediation settlement agreement. They requested a declaratory judgment that certain property rightfully belonged to Gary Wayne Rolison, Jr., or Rolison Logging/Timber Company Trust.

¶ 6. The trial court denied the motion to intervene, finding that the motion was untimely because the litigation had been ongoing for three years with no attempt to intervene. Further, the trial court found that "the relationship between the Rolison[ ]s and the trust is so hopelessly intertwined that it does not function as a separate entity" and that the Rolisons had either express or implied authority to speak for the trust at all relevant times. The trial court also found that, based on the testimony of the witnesses and especially the mediator, the mediation settlement agreement had been the product of a meeting of the minds, and its terms were clear and unambiguous. The trial court also rejected the Rolisons' claim of a unilateral or mutual mistake. The issues of damages and attorney fees were postponed. Upon a finding of no just reason for delay, the trial court directed the entry of a final judgment on its grant of the Fryars' motion to enforce the settlement agreement. See M.R.C.P. 54(b). At the conclusion of the bench trial, the trial court ordered a continuing injunction against the removal of anything from the property by anyone.

¶ 7. After the Rolisons' motion for a new trial was denied on May 3, 2012, they filed a timely notice of appeal. On August 15, 2012, the parties entered into a second settlement agreement providing for the transfer of the sawmill property, but preserving the Fryars' claim for damages. Pursuant to this agreement, the Rolisons agreed to dismiss their pending appeal. On September 14, 2012, this Court granted the Rolisons' motion to dismiss their appeal, and the mandate issued on October 8, 2012.

¶ 8. The issues of damages and attorney fees were tried on January 12, 2015. The Fryars presented evidence that damage had occurred to the sawmill property after the Rolisons had breached the mediation settlement agreement. They showed that an office located on the property had sustained water damage, a retaining wall had collapsed due to a water leak, the Rolisons had removed lumber and scrap metal from the property in violation of the court's order, motors had been removed and wires cut on the sawmill, and the scales had been damaged. The Fryars also showed that, because of a regulatory change during the breaching period, they had to modify the scales in a manner that would not have been required due to "grandfathering" if they had obtained the property when promised. The trial court found that the relevant dates for the breaching period were July 1, 2011, which was the undisputed date the Fryars would have begun sawmill operations, until September 14, 2012, the date the Fryars would have been able to begin operations after they finally took possession, if the sawmill property had not been in a state of disrepair. The trial court awarded $231,960.32 for the costs to repair or replace missing or damaged items and $75,000 in lost profits. The trial court found that, because the Rolisons intentionally had disregarded the unambiguous terms of the mediation settlement agreement and had removed items from the sawmill property in violation of court orders, their conduct was so outrageous that it supported the Fryars' claim for attorney fees in the amount of $92,772.70.

STANDARD OF REVIEW

¶ 9. "A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings will not be reversed on appeal where they are supported by substantial, credible, and reasonable evidence." Brewer Constr. Co., Inc. v. David Brewer, Inc. , 940 So.2d 921, 925 (Miss. 2006). This Court reviews questions of law de novo . Upchurch Plumbing, Inc. v. Greenwood Utils. Comm'n , 964 So.2d 1100, 1107 (Miss. 2007).

DISCUSSION³

I. WHETHER THE TRIAL COURT DENIED THE ROLISONS' CONSTITUTIONAL RIGHT TO A JURY TRIAL UNDER ARTICLE 3, SECTION 31, OF THE MISSISSIPPI CONSTITUTION.

¶ 10. The Rolisons argue that they failed to effect a waiver of their state constitutional right to a jury trial. After the trial court consolidated the four cases, all parties orally waived their rights to a jury trial and consented to a bench trial. Then the trial court ordered mediation, which resulted in a settlement. After the Rolisons failed to perform their duties under the mediation settlement agreement, the trial court held a bench trial on the Fryars' motion to enforce the settlement agreement. No party requested a jury trial and all participated in the bench trial. At the conclusion, the trial court ruled from the bench that the Rolisons had breached the mediation settlement agreement and denied the motion to intervene by Rolison Logging/Timber Company Trust and Gary Wayne Rolison, Jr.

¶ 11. Approximately one month later, on November 18, 2011, the parties appeared in court to try the issues of damages and attorney fees. The Rolisons, now with new counsel, argued that they had not waived their right to a jury trial. The Rolisons contended that their oral jury trial waiver was ineffective because they had not filed a written waiver under Mississippi Rule of Civil Procedure 38(b). Alternatively, they...