Zebe, LLC v. John L. Robinson ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2019-CA-00196-COA
ZEBE, LLC APPELLANT
v.
JOHN L. ROBINSON APPELLEE
DATE OF JUDGMENT: 12/28/2018
TRIAL JUDGE: HON. JENNIFER T. SCHLOEGEL
COURT FROM WHICH APPEALED: HARRISON COUNTY CHANCERY COURT,
SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: T. JACKSON LYONS
ATTORNEY FOR APPELLEE: NATHAN LAMAR PRESCOTT
NATURE OF THE CASE: CIVIL - REAL PROPERTY
DISPOSITION: AFFIRMED - 05/19/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE BARNES, C.J., TINDELL AND LAWRENCE, JJ.
BARNES, C.J., FOR THE COURT:
¶1. This case involves a property boundary disagreement between neighboring
landowners, owing to a disputed 2016 property survey filed with the Harrison County
Chancery Clerk by one of the landowners, John Robinson. After a period of hostile behavior
ensued between the two landowners (e.g., posting “no trespassing” signs, using profane
language and gestures, and filing criminal charges), Zebe, LLC (Zebe),1 the other landowner,
filed a complaint against Robinson for slander of title, trespass, removal of cloud of title,
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Zebe, a limited liability company used to hold title to various real property, is owned
and managed by Jerry Gammons and his wife.
boundary establishment, and to confirm title and requested damages and attorney’s fees.2
After discovery and the filing of pretrial motions, a trial was held, and the Harrison County
Chancery Court entered its final judgment on December 28, 2018. As to Zebe’s claims of
slander of title and trespass, the court granted Robinson’s motion for dismissal, finding that
while the survey filed by Robinson was incorrect, Robinson’s “actions stemmed from his
erroneous confidence in rightful ownership to the property” and, thus, “fail[ed] to rise to the
level of malice.” The court also denied Zebe’s request for damages and attorney’s fees. The
chancery court granted Zebe’s request to remove the cloud to title, to establish the boundary
line, and to confirm title.
¶2. Zebe appeals, arguing that the chancery court erred in finding that Robinson’s actions
were not malicious and in denying his claim for damages. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶3. Robinson and his wife, Mary, owned the following described property at 141 Azalea
Drive in Biloxi, Mississippi: “Lots Ten (10) and Eleven (11) and the South One-Half (S ½)
of Lot Nine (9), in Block A of Azalea Gardens Subdivision, according to the map or plat of
said subdivision on file and of record in the Office of the Chancery Clerk of Harrison
County, Mississippi.” The Robinsons acquired title to this property on February 14, 2012,
from Hancock Bank. Zebe owned a vacant lot north of the Robinsons’ property, as well as
a rental home located north of the vacant lot. The property Zebe owned is described as
2
Robinson’s wife, Mary, was also a named defendant. However, Mary passed away
in March 2018, and Zebe elected not to pursue his claims against her estate. Therefore, she
is not a party to this appeal.
2
follows: “Lots 7, 8 and the North one-half of Lot 9 in Block A of Azalea Gardens
Subdivision, Biloxi, Second Judicial District, Harrison County, Mississippi.” A dispute arose
between the parties over the property boundary line in Lot 9, presumably over the
replacement of a city drain line on Robinson’s portion of Lot 9; so Robinson retained the
services of Donald Ried of Ried and Associates LLC, who surveyed the property on
September 1, 2016.3 This survey showed Robinson’s property line to be approximately
eleven feet north of the fence on Robinson’s property. On September 2, Robinson filed and
recorded a corrected warranty deed with the chancery clerk, attaching Ried’s survey of the
property. In the months that followed, Robinson began weed-eating that portion of the
property and posted “no trespassing” signs, creating hostility between the Robinsons and
Zebe’s owner and manager, Jerry Gammons. Robinson had Gammons arrested for allegedly
pulling up the survey markers and had Gammons’s son arrested for trespass when he came
to mow the lot.4 Gammons accused Robinson of repeatedly harassing his family by making
lewd gestures and cursing at them whenever they did maintenance on their property.
¶4. Zebe subsequently had a survey performed by Patrick Martino, which survey showed
the Robinsons’ property line to be less than two feet north of the fence. On January 17, 2017,
Zebe filed a complaint against Robinson, seeking to confirm title and requesting damages for
slander of title and trespass. Robinson denied the allegations, and he asserted a counterclaim
of adverse possession and sought to confirm title. However, Robinson later abandoned his
3
Although there was some question as to whether the survey was actually performed
on September 1 or September 2, for the purposes of this appeal, this fact is irrelevant.
4
According to Gammons, neither he nor his son was found guilty of any offense.
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counterclaims and agreed to abide by Zebe’s survey. On April 9, 2018, Robinson filed a
motion for partial summary judgment as to the remaining claims, which the court denied.
¶5. A trial was held on May 14, 2018. Gammons testified that since the filing of the
survey, Robinson had engaged in antagonistic behavior toward him and his family, which
affected his property’s value. However, Gammons admitted he currently had a rental tenant
on the property, and he could not affirmatively say that he had been unable to sell the
property. Martino, Zebe’s surveyor, testified as to the errors he found on Ried’s survey.
Because Robinson had already agreed to abide by Martino’s survey, his testimony was not
challenged at trial.5
¶6. Robinson moved for an involuntary dismissal pursuant to Rule 41(b) of the
Mississippi Rules of Civil Procedure, arguing that Zebe had failed to prove malice and
damages. The court denied the motion, and Robinson proceeded with his case. Robinson
claimed that the animosity started when Gammons wanted to build a home on the vacant lot,
and he got turned down after Robinson and other neighbors complained. He said, from that
point, Gammons told Robinson not to set a foot past the fence; so Robinson hired Ried to
survey the property. Robinson averred that he had no reason to think that Ried’s survey was
incorrect; he merely agreed to abide by the Martino survey because he wanted “to live in
peace” and “never did want any trouble with [the Gammonses].” Robinson admitted that he
had made obscene gestures on occasion but only after Gammons had done so toward him.
Robinson also contended that the Gammonses were the ones who had harassed him and his
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Ried, Robinson’s surveyor, did not testify.
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late wife, constantly taking photos and filming them anytime they went outside.
¶7. Mrs. Gammons testified that one of Zebe’s renters had wanted to buy the house but
not the vacant lot because of Robinson’s behavior; so she had to reject the offer because she
did not want to divide the property. She admitted they had filmed the Robinsons but claimed
that it was only to see if they were trespassing on Zebe’s property.
¶8. One of Zebe’s former tenants, who lived in the rental home located next to the vacant
lot during this period, testified that he saw Ried conduct the survey but did not see Robinson
with him. He also corroborated Robinson’s testimony that the Gammonses installed cameras
on their property and took pictures of the Robinsons several times a week. Another neighbor
testified that she had never witnessed Robinson vandalizing the property and that Robinson
and his wife were “friendly” neighbors. After the parties rested, the chancellor requested
supplemental briefing on the issue of special damages.
¶9. The chancery court entered a final judgment on December 28, 2018, granting
Robinson’s motion for involuntary dismissal as to the claims for slander of title, trespass, and
damages. The court partially granted Zebe’s complaint as to the request to remove cloud of
title, establish the boundary line, and confirm title, but the court dismissed with prejudice
Zebe’s counterclaim, ordering the parties “to bear their own costs.”6 Zebe challenges the
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The chancery court informed the parties of its judgment on November 8, 2018, and
Zebe filed a motion for reconsideration on November 9. The chancery court never ruled on
the motion. On May 8, 2019, Zebe’s counsel, who subsequently filed a request to withdraw
his representation, sent an email to Robinson’s counsel, stating that the motion for
reconsideration would not be pursued and would be removed from the chancery court’s
docket. However, on May 21, Zebe’s newly retained counsel filed a motion to stay the
appellate proceedings for lack of jurisdiction and, on May 29, filed a motion to remand for
a ruling on the motion to reconsider. On July 26, 2019, the Mississippi Supreme Court
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court’s ruling, contending that the chancery court applied “incorrect legal standards”
regarding Zebe’s claim for slander of title. Zebe also argues that it was entitled to special
damages.
STANDARD OF REVIEW
¶10. A chancery court’s findings will not be disturbed on appeal “unless they are
manifestly wrong, clearly erroneous, or apply the wrong legal standard.” Campbell Props.
Inc. v. Cook, 258 So. 3d 273, 275 (¶9) (Miss. 2018) (citing McNeil v. Hester, 753 So. 2d
1057, 1063 (¶21) (Miss. 2000)). Questions of law are reviewed de novo. Id.DISCUSSION
¶11. Zebe appeals the chancery court’s finding that because Robinson’s actions did not
constitute malice, Zebe’s claim for slander of title fails, as does his claim for damages. Much
of Zebe’s argument concerns Robinson’s hostile behavior toward the Gammonses in the
months following the recording of the corrected deed and Ried’s survey on September 2,
2016. Zebe claims that the chancery court failed to take those actions into account in
determining whether Robinson acted with malice when recording the deed, and Zebe
contends that the court failed to address whether Robinson acted in good faith.
¶12. The Mississippi Supreme Court has held that “‘[s]lander of title’ . . . describe[s]
words or conduct which bring or tend to bring in question the right or title of another to
particular property[.]” Walley v. Hunt, 212 Miss. 294, 304, 54 So. 2d 393, 396 (1951). “The
slander may consist of a statement in writing, printing, or by word of mouth, and may relate
denied Zebe’s motions. Therefore, we find this case is properly before us on appeal.
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to personal as well as real property.” Id.Liability for slander of title may also be predicated on the filing and recording
of a false instrument purporting to affect the title to property, or on the
execution, wilful acceptance, and malicious recordation of a deed which
falsely declares the title of the property involved to be in a person other than
the true owner. The malicious filing for record of an instrument which is
known to be inoperative, and which disparages the title to land, is a false and
malicious statement, for which the damages suffered may be recovered.
Id. at 305, 54 So. at 396 (emphasis added) (citation omitted). Thus, “in order for [the
published statement] to form the basis for a right of action it must have been made, not only
falsely, but maliciously.” Id. As the supreme court held in Mize v. Westbrook Construction
Co. of Oxford LLC, 146 So. 3d 344, 348 (¶8) (Miss. 2014), “[m]alice . . . may be inferred
from one’s actions.” (Citing Phelps v. Clinkscales, 247 So. 2d 819, 821 (Miss. 1971)).
“Malice requires a showing of evil intent or ill will toward another, either through conduct
or statements, without just cause or excuse.” Id. at 350 (¶15) (citing Black’s Law Dictionary
1109 (4th ed. 1970)).
¶13. However, “a party who commits an act under reasonable belief of title will not be said
to have acted maliciously when committing the act.” Id. at 351 (¶18) (Miss. 2014) (citing
Butler v. City of Eupora, 725 So. 2d 158, 161 (Miss. 1998)). We find no error in the
chancery court’s finding that Robinson’s actions subsequent to the recording of the Ried
survey (weed-eating and posting “no trespassing” signs on the lot) were taken with the
erroneous belief that he owned the subject property in question. Furthermore, the court did
consider the testimony regarding Robinson’s antagonistic behavior toward the Gammonses,
stating:
While the Court examined all of the actions of the Defendant, to include his
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negative interactions with the Gammonses and his filing of an incorrect survey
in the land records, it nonetheless finds that his actions stemmed from his
erroneous confidence in rightful ownership to the property. While the
recorded survey was indeed false, Mr. Robinson nevertheless believed in its
accuracy. His recording of the survey therefore fails to rise to the level of
malice.
(Emphasis added).
¶14. Zebe also claims that Robinson’s “uncorroborated and self-serving testimony” was,
by itself, insufficient to show that Robinson did not act with malice. Zebe cites Estate of
Johnson v. Johnson, 237 So. 3d 698, 711-13 (¶¶36-41) (Miss. 2017), a case in which the
supreme court analyzed whether a daughter’s actions in transferring ownership of her
deceased mother’s certificates of deposit was a product of undue influence. Finding the
daughter “failed to rebut the presumption” that she acted in good faith, the Johnson court
noted that “[n]othing more than [the daughter’s] testimony was provided to support” her
claims. Id. at 712 (¶¶39-41).
¶15. We find no merit to Zebe’s argument that Johnson stands for the proposition that a
party’s uncorroborated testimony is insufficient to prove that the party acted without malice.
In this case, the chancellor, as the trier of fact, was within her discretion to determine the
credibility of Robinson’s testimony in finding that his actions, while misguided, were not
malicious. See Stuckey v. Waid, 195 So. 3d 872, 876 (¶17) (Miss. Ct. App. 2016) (“The trier
of fact is not this court but the chancellor, who heard the testimony of the witnesses,
determined their credibility, weighed that and other evidence, and made a decision within her
discretion.”). Therefore, we do not find that the chancery court erred in dismissing Zebe’s
claims for slander of title and trespass.
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¶16. We further conclude that Zebe’s claim for special damages must also fail. “[T]he
general rule of liability for slander of title is stated as follows: ‘One who falsely and
maliciously publishes matter which brings in question or disparages the title to property,
thereby causing special damage to the owner, may be held liable in a civil action for
damages.’” Walley, 212 Miss. at 304, 54 So. 2d at 396 (citation omitted). However, “[a]
claimant who has a bona fide belief of ownership in disputed property will not be found
liable for special damages in an action for slander of title.” Mize, 146 So. 3d at 351 (¶21)
(citing Perrien v. Mapp, 374 So. 2d 794, 798 (Miss. 1979)). “Even if the party seeking
damages can show that he or she endured special damages from the opposing party’s claim
of title, such damages are inappropriate if the claimant asserts ownership in good faith.” Id.While not condoning Robinson’s behavior toward the Gammonses, the chancellor
determined “that his actions were taken in his legitimate, albeit flawed, belief in the veracity
of his survey.” Therefore, the court denied Zebe’s claim for damages because of Robinson’s
“bona fide belief of ownership in the disputed property.” We find the chancery court’s
decision not to award Zebe special damages is supported by the evidence and testimony at
trial.
¶17. Accordingly, we affirm the chancery court’s judgment.
¶18. AFFIRMED.
CARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, TINDELL,
McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.
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