Roussel v. Hutton

• Decision Date: 23 June 1994
• Docket Number: No. 89-CA-1095,89-CA-1095
• Citation: 638 So.2d 1305
• Court: Mississippi Supreme Court
• Parties: Hunter L. ROUSSEL, Jr. v. Melvin B. HUTTON, Morris Gray and Mississippi Power & Light Company.

Page 1305

638 So.2d 1305

Hunter L. ROUSSEL, Jr. v. Melvin B. HUTTON, Morris Gray and Mississippi Power & Light Company.

No. 89-CA-1095.

Supreme Court of Mississippi.

June 23, 1994.

Jimmie D. Marshall, Jackson, for appellant.

Michael P. Younger, Chapman & Younger, Brandon, Richard D. Gamblin, Wise Carter Child & Caraway, Jackson, for appellee.

Before HAWKINS, C.J., and PITTMAN and JAMES L. ROBERTS, Jr., JJ.

JAMES L. ROBERTS, Jr., Justice, for the Court:

I.

INTRODUCTION

In 1975, Hunter Roussel, Jr. bought 12 3/4 acres of land in Rankin County from Morris Gray, and there built a home. In 1978, Gray sold Melvin Hutton a two acre plot near Roussel's land, and sold about 7 2/3 acres of land to MP & L. Over the next ten years, Roussel opposed efforts of Gray, MP & L, and the City of Brandon to rezone various parcels of land in the area surrounding his home. ¹ In 1988, Roussel filed suit against twelve defendants, including Gray, Hutton, and MP & L, alleging a conspiracy amongst the parties "to effectuate changes in the zoning ordinances which would financially benefit all the defendants." All claims against Hutton, Gray, and MP & L were dismissed on motions for summary judgment in April and October of 1989. Roussel appeals, assigning the following errors:

I. THE LOWER COURT ERRED BY DISMISSING MELVIN B. HUTTON FROM THE LAWSUIT BY WAY OF SUMMARY JUDGMENT, AND FURTHER ERRED BY AWARDING ATTORNEY'S FEES IN THE FORM OF RULE 11 SANCTIONS.

II. THE LOWER COURT ERRED BY DISMISSING MORRIS GRAY FROM THE LAWSUIT BY WAY OF SUMMARY JUDGMENT, AND FURTHER ERRED BY AWARDING ATTORNEY'S FEES IN THE FORM OF RULE 11 SANCTIONS.

III. THE LOWER COURT ERRED BY DISMISSING MP & L FROM THE LAWSUIT BY WAY OF SUMMARY JUDGMENT, AND FURTHER ERRED BY AWARDING ATTORNEY'S FEES IN THE FORM OF RULE 11 SANCTIONS.

IV. JUDGE BRIDGES RECUSED HIMSELF ON OCTOBER 9, 1989, VOIDING JUDGMENTS OF OCTOBER 10, 1989 AND OCTOBER 20, 1989.

Finding insufficient evidence that the trial judge recused himself from the case, we hold that his judgments were valid. We affirm the grants of summary judgment in favor of Hutton, Gray, and MP & L.

II.

FACTS AND PROCEDURAL HISTORY

On April 18, 1975, Roussel purchased 12.73 acres of land in the northwest quarter of section 7, Township 5 North, Range 3 East in Rankin County from Morris Gray. On March 24, 1978, the City of Brandon annexed a portion of land in Rankin County, which included the land owned by Roussel, and other land owned by Gray. The annexed property was zoned R-1, or single-family residential.

On April 19, 1978, Melvin Hutton and a partner bought two acres across the road from Roussel from Morris Gray. The deed contained the following clause:

A. Grantor warrants that grantees are free to construct a commercial establishment on the subject property and that such construction will not conflict with the zoning ordinance of the City of Brandon. This warranty is for a period of six months from the date hereof and unless construction of a commercial establishment is begun within said six months the warranty will terminate and be of no effect.

Hutton built a grocery on the property, although the land was actually zoned R-1. In 1988, the property was rezoned to commercial.

On November 13, 1980, MP & L purchased from Gray 7.68 acres of land, described in the deed as "commercial property." However, the land was actually zoned R-1. The property was subsequently rezoned commercial, over Roussel's objection. Roussel appealed to the Rankin County Circuit Court, which reversed the rezoning. On October 29, 1982, MP & L purchased a plot of land in Pearl, where it constructed its new office, rather than on the land it had bought from On June 21, 1988, Roussel filed a complaint in the Rankin County Chancery Court against Hutton, MP & L, Gray, the City of Brandon, city attorney Lem Adams, and seven other parties. The complaint alleged a conspiracy among the parties "to effectuate changes in the zoning ordinances which would financially benefit all the defendants." ² The complaint read in part:

Gray. MP & L sold the building which had housed its former office to the City of Brandon on October 28, 1985, for its appraised value.

The plaintiff charges the defendants with a civil conspiracy. The defendants combined, colluded, and by concerted action effectively changed zoning of property within the city limits without resorting to proper legislative and statutory procedure. This conspiracy illegally deprived plaintiff of a valuable vested right, (i.e. the peacefuly (sic) enjoyment of its property).

Additionally, Roussel alleged that Gray had represented to him that the property across the street, as well as the balance of his property, would remain residential.

In addition to the count of civil conspiracy, the complaint alleged interference with peaceful possession of property, due to the illegal zoning practices; negligence of the City and Board, in allowing the rezoning; violation of a fiduciary relationship, between the defendants and Roussel as a citizen of Brandon; and a violation of the equal protection clause of the fourteenth amendment to the U.S. Constitution. Roussel sought injunctive relief, to revert property from C-2 to R-1 zoning and bulldoze any commercial structures existing on the property. He also sought damages in the amount of $1 million, and punitive damages in the amount of $5 million.

In his answer, Hutton denied participating in any conspiracy against Roussel; raised the statute of limitations and the Statute of Frauds as defenses; noted that the two-acre property had been rezoned commercial, and that commercial structures had been in plain view for ten years without any objection from Roussel, ³ and finally that he (Hutton) had several years ago divested himself of any interest in the property. Hutton charged that the suit was frivolous, requested dismissal, sanctions and attorney's fees.

Gray stated in his answer that, contrary to Roussel's allegations, he had informed Roussel at the time of his purchase that the property across the road from that which Roussel was purchasing would be developed commercially. Gray further stated that contrary to Roussel's allegations, he had never represented to Roussel that the balance of his property would remain residential.

MP & L's answer raised the defenses of laches, waiver, statute of limitations, Statute of Frauds, and estoppel. MP & L denied all allegations of conspiracy, and requested dismissal, sanctions, and attorney's fees.

On December 8, 1988, Hutton filed a motion for summary judgment. The motion was granted on April 14, 1989, by Chancellor Billy Bridges, dismissing him with prejudice from the suit. Finding the complaint "frivolous" as against Hutton, he ordered Roussel to pay "attorney's fees and/or sanctions in the amount of $4,100." ⁴

On July 24, 1989, Gray filed a motion for summary judgment. He requested a total of MP & L filed for summary judgment on August 7, 1989, and requested legal fees of $14,638.75, and litigation expenses of $1,400.57.

$12,041 in legal fees and expenses incurred defending against Roussel's complaint.

Relevant portions of depositions taken from the parties are summarized below.

Hunter Roussel, Jr.

Roussel stated that he had moved into his home in 1977. He could not remember exactly when construction had started on the Hutton property across the road from his property, but that he thought it was some time after April of 1978. He stated that a convenience store had been opened "back off the road maybe 300 to 400 feet." He stated that he did not at the time know who owned the property, and that he purchased a newspaper and cigarettes there almost every afternoon. Roussel said that he "didn't particularly like" the store being there, but that he had had no objection to it at the time because he didn't know that it was "operating illegally." He did not discover that the store was operating illegally until the hearing on MP & L's application to rezone its property from R-1 to C-3, held in February of 1981. At this time, Roussel stated, he brought it to the attention of the City that commercial establishments were operating illegally on land owned by Gray and MP & L.

Asked if he had any facts to support his theory of conspiracy, Roussel stated that he had a deposition "in which one of the conspirators admits that all parties knew but that's the end of all parties knew, but none of the parties involved at that point laid any significance to it, and they continued on with this conspiracy." The following exchange was typical:

Q. What did they (MP & L, Gray, and Lem Adams) conspire to do?

A. They conspired to find a location where MP & L could build a facility that would allow them to vacate this present City Hall that we're in today so that the City of Brandon could acquire this property to use as a City Hall.

Q. Okay. Tell me what's illegal about that. If they conspired--if the City conspired with MP & L to find a location for MP & L to relocate to, that's it. Tell me what's illegal about that?

A. There's nothing illegal about that.

Q. Okay. So there's no conspiracy there, then, is there?

A. Oh, yeah. The conspiracy is that they conspired to rezone that property for MP & L in order to effect the transaction that they were not conspiring about.

Q. Was there something illegal about the rezoning hearing that took place over the MP & L property?

A. I wouldn't say that it was illegal ...

As to MP & L's participation, Roussel suggested that the company had requested the language in the deed permitting commercial establishments, which stated that such construction would not conflict with Brandon zoning laws. He also believed that Hutton had made a similar request.

Questioned further about MP & L's involvement, Roussel explained:

I don't remember using the word fault. I don't have my--that copy of the deposition here, but I think it was words to the effect that MP & L was a party, more or less, to this thing because...