Varnell v. Rogers

• Decision Date: 19 April 2016
• Docket Number: No. 2015–CA–00115–COA.,2015–CA–00115–COA.
• Citation: 198 So.3d 1278
• Parties: June Rose Thompson VARNELL and Dexter Varnell, Appellants. v. Michael Frederick ROGERS, Judy Chisum Rogers, Laura Ratliff a/k/a Laura Ratliff Rogers, and Joseph Sadler, Appellees.
• Court: Mississippi Court of Appeals

198 So.3d 1278

June Rose Thompson VARNELL and Dexter Varnell, Appellants.

v.Michael Frederick ROGERS, Judy Chisum Rogers, Laura Ratliff a/k/a Laura Ratliff Rogers, and Joseph Sadler, Appellees.

No. 2015–CA–00115–COA.

Court of Appeals of Mississippi.

April 19, 2016.

Jerry Wesley Hisaw, Southaven, H.R. Garner, attorney for appellants.

Neal Howard Labovitz, Southaven, attorney for appellees.

Before IRVING, P.J., BARNES and ISHEE, JJ.

IRVING

, P.J., for the Court:

¶ 1. June Rose Thompson Varnell and Dexter Varnell (the Varnells, unless the context dictates otherwise) appeal from a judgment of the Chancery Court of DeSoto County, dismissing with prejudice their complaint for injunctive or other relief against Michael Frederick Rogers and Judy Chisum Rogers (the Rogerses, unless the context dictates otherwise), Laura Ratliff a.k.a. Laura Ratliff Rogers (Ratliff), and Joseph Sadler.¹ The chancery court also granted the Rogerses' counterclaim for nuisance against the Varnells and ordered the Varnells to reimburse the Rogerses $1,000 for a fence that the Rogerses had erected on their property to place a barrier between the Rogerses' and the Varnells' properties. The chancery court also ordered the Varnells to pay the Rogerses $5,000 in attorney's fees. The Varnells filed a motion for reconsideration and/or a new trial, which the chancery court denied. The Varnells appeal, arguing that the chancery court erred in (1) not issuing an injunction against the Rogerses, (2) ordering them to reimburse the Rogerses for the fence, and (3) awarding attorney's fees to the Rogerses.

¶ 2. Finding that the chancery court did not err in dismissing the Varnells' complaint against the Rogerses and refusing to issue an injunction against the Rogerses, we affirm that portion of the judgment. However, we find that the chancery court erred in ordering the Varnells to pay attorney's fees and to reimburse the Rogerses for the cost of the fence. Therefore, we reverse and render both awards.

FACTS

¶ 3. On January 23, 2002, June Varnell purchased the Varnells' home in Southaven, Mississippi. While the house was being constructed, June testified that she experienced, among other things, vandalism, theft of building materials, the workmen's port-a-potty being overturned multiple times, and garbage being left on her property, all of which the Varnells allege was caused by their neighbors, the Rogerses. The Varnells moved into their home on October 23, 2004. Beginning in 2009 and continuing until 2014, a series of incidents occurred between the Varnells and the Rogerses, all of which the Varnells also allege was caused by the Rogerses, Ratliff, and Sadler. Some of the incidents required the assistance of both law enforcement and the chancery court. Those incidents included, but were not limited to: (1) fireworks landing on the Varnells' property, (2) feces allegedly being placed on the Varnells' porch, (3) alleged “catcalls” by the Rogerses, Ratliff, and Sadler towards the Varnells, (4) leaves that had been raked off the Varnells' property by Dexter appearing back on the Varnells' property the next day, (5) friends of Ratliff allegedly coming and knocking on the Varnells' door, and (6) the Varnells' plants being destroyed.

¶ 4. In July 2009, Dexter began constructing a fence on the property line between the Varnells' and the Rogerses' properties. However, he halted construction of the fence because he became ill and had to have surgery. Michael then hired a friend to construct a fence on his property, beginning at the point where the Rogerses' partially constructed fence terminated and continuing to the end of the property line between the Varnells and the Rogerses.

¶ 5. In January 2012, Dexter and Ratliff signed a mutual agreement in the Municipal Court of the City of Southaven whereby “[Ratliff] agreed not to harass or come on the property of [Dexter], nor molest or interfere with [Dexter], or litter the yard of [Dexter].” On January 3, 2014, the Varnells filed a complaint for injunctive relief against the Rogerses, Ratliff, and Sadler. The Varnells sought injunctive relief to preclude the Rogerses, Ratliff, and Sadler from (1) causing a nuisance through the shooting of fireworks, (2) preventing the Varnells from enjoying their property, and (3) continuing to harass the Varnells. Sadler filed a pro se answer, wherein he denied all the allegations in the complaint. Subsequently, the Rogerses filed an answer, by and through counsel, wherein they also denied the allegations within the complaint and, in addition, filed a counterclaim against the Varnells for nuisance. On October 28, 2014, the case was tried before the chancery court, and a plethora of testimony was presented by both the Varnells and the Rogerses.

¶ 6. Following the close of all the evidence, the chancellor issued a bench ruling in favor of the Rogerses. While issuing her ruling, the chancellor noted the Varnells' lack of actual evidence linking the Rogerses, Ratliff, and Sadler to the numerous acts that they had accused them of committing. The chancery court entered an order, on December 1, 2014, nunc pro tunc for October 28, 2014, that granted to the Rogerses the relief discussed earlier in this opinion. This appeal ensued.

DISCUSSION

¶ 7. A chancellor's factual findings will not be disturbed “when supported by substantial evidence unless [we] can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous[,] or applied an erroneous legal standard.” Biglane v. Under the Hill Corp., 949 So.2d 9, 13–14 (¶ 17) (Miss.2007)

(internal citation and quotation marks omitted). “Additionally, where the chancellor has made no specific findings, we will proceed on the assumption that the chancellor resolved all such fact issues in favor of the appellee.” City of Picayune v. S. Reg'l Corp., 916 So.2d 510, 519 (¶ 22) (Miss.2005) (citing Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990) ). We review questions of law de novo. Biglane, 949 So.2d at 14 (¶ 17) (internal citation omitted).

I. Injunction

¶ 8. Here, the Varnells argue that the chancellor erred in failing to issue an injunction against the Rogerses, Ratliff, and Sadler. We review a chancellor's denial of an injunction for abuse of discretion. Ruff v. Estate of Ruff, 989 So.2d 366, 369 (¶ 11) (Miss.2008)

(internal citation omitted). The Mississippi Supreme Court has explained:

Rather than implying bad faith or an intentional wrong on the part of the trial judge, an abuse of discretion is viewed as a strict legal term that is clearly against logic and effect of such facts as are presented in support of the application or against the reasonable and probable deductions to be drawn from the facts disclosed upon the hearing.

White v. State, 742 So.2d 1126, 1136 (¶ 42) (Miss.1999)

(internal citation and quotation marks omitted).

¶ 9. In support of their argument, the Varnells contend that the injunction against them is “vague and overly broad.” They also contend that the injunction is so broad that they could violate the injunction by just looking at the Rogerses or asking the Rogerses to stop shooting fireworks.² The Varnells further contend that the testimony produced at trial by the Rogerses was not enough to support an injunction against them. In support of their argument that an injunction should have been issued in their favor, the Varnells point to the incidents previously discussed in the facts section of this opinion and point out that Sadler, who proceeded pro se, testified that he did not have any objection to an injunction being issued against him.

¶ 10. We briefly review the evidence produced at trial. June testified about the various incidents that occurred from 2004 to 2014, including, but not limited to, fireworks being shot by the Rogerses and landing in the Varnells' yard, feces being left in a bag on the Varnells' porch, and finding a used personal-hygiene item and cigarette butts in their yard. During her testimony, June was asked if she had any proof that the Rogerses were actually the parties committing the acts that she was accusing them of committing. After being asked the question multiple times, she failed to offer any proof, other than her belief, that it was the Rogerses who had committed the acts. The Varnells also put on testimony from Richard Tamboli, the Varnells' landscape designer. Tamboli's testimony echoed June's allegation that the Rogerses and Sadler had driven by the Varnells' home in September 2012 and “ma[de] faces, gestures, [and] funny sounds.” Tamboli testified that, while he was conducting a consultation with June, he observed a car full of people who had left the Rogerses' home make obscene gestures while passing by the Varnells' yard. However, when asked on direct examination if he could “see the young man that was in the car in the courtroom,” Tamboli responded, “It was such a short meeting I couldn't tell you if I recognized him.” On cross-examination, when asked if he was testifying that he “did not see the party or recognize the party[,]” Tamboli stated, “I remember seeing people, but you're talking about one meeting. For me to remember exactly that person's face, that's all [sic].”

¶ 11. The Varnells also put on testimony from Eileen Murley, a neighbor of both the Varnells and the Rogerses and a friend of June. Murley testified to hearing “screaming, yelling, [and][n]onsensical noises” coming from the Rogerses, both while she was in her home and at the Varnells' home. She also testified to seeing the Rogerses shooting fireworks on July 4, 2013, and hearing fireworks in the vicinity on other occasions. On cross-examination, when asked if she had actually observed anyone screaming and yelling, Murley testified that she had only observed someone yelling at the Rogerses' home on one occasion when she was standing in the Varnells' driveway. She identified Sadler as the person doing the screaming on that date. However, she acknowledged that he was not directing...