Paul Berlin v. Livingston Property Owners Association , Inc.

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CA-01512-COA
PAUL BERLIN AND JANICE BERLIN APPELLANTS
v.
LIVINGSTON PROPERTY OWNERS APPELLEE
ASSOCIATION, INC., A MISSISSIPPI NON-
PROFIT CORPORATION
DATE OF JUDGMENT: 06/23/2015
TRIAL JUDGE: HON. CYNTHIA L. BREWER
COURT FROM WHICH APPEALED: MADISON COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS: DONALD W. BOYKIN
V. DOUGLAS GUNTER
ATTORNEYS FOR APPELLEE: JAMES L. MARTIN
DAVID GLYN PORTER
NATURE OF THE CASE: CIVIL - REAL PROPERTY
TRIAL COURT DISPOSITION: INJUNCTIVE RELIEF GRANTED
DISPOSITION: AFFIRMED - 04/25/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., ISHEE, WILSON AND GREENLEE, JJ.
WILSON, J., FOR THE COURT:
¶1. Paul and Janice Berlin are residents of Livingston, a covenant-restricted community
in Madison County. Their 3.56-acre lakefront lot is subject to a maintenance easement that
extends twenty feet onto their property from the lake’s highwater mark. Their lot is also
subject to a covenant requiring them to obtain approval from the Architectural Review
Committee (ARC) of the Livingston Property Owners Association (LPOA) prior to
beginning construction of fences and other improvements on their property. The Berlins
asked the ARC to approve a planned fence that would not be enclosed on the lakeside
boundary of their property but would instead extend across the maintenance easement and
three feet out into the lake along their east and west property lines. The ARC declined to
approve the proposed fence on the ground that it would interfere with the maintenance
easement. The Berlins built the fence anyway.
¶2. LPOA sued the Berlins in the Madison County Chancery Court. Following a two-day
trial, the chancellor entered a final judgment and opinion finding that the Berlins were in
violation of the restrictive covenants applicable to their property. She ordered them to
remove the portions of their fence that extend across the easement and into the lake. She also
awarded LPOA attorneys’ fees. The Berlins appealed. They argue that the chancellor’s
decision is erroneous for multiple reasons, that she erred in awarding attorneys’ fees without
holding a hearing on the reasonableness of the fees requested by LPOA, and that she abused
her discretion by excluding one document as irrelevant. For the reasons that follow, we find
no error and affirm.
FACTS AND PROCEDURAL HISTORY
¶3. Livingston is a residential community consisting of fifty-nine lots and four lakes on
sixteenth-section school trust land near the intersection of Highway 463 and Highway 22 in
Madison County. All lots in Livingston are subject to a declaration of covenants, conditions,
and restrictions that was duly filed with the Madison County Chancery Clerk in 2001. The
declaration established LPOA, which is responsible for enforcing the covenants and
maintaining all common areas and lakes.
¶4. In 2005, the Berlins entered into a long-term residential lease for Lot 21 at Livingston,
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a 3.56-acre lot on one of the subdivision’s lakes. The Berlins’ lease states that their lot is
subject to the covenants.
¶5. Section 11.02 of Livingston’s covenants reserves to LPOA a twenty-foot easement
from the lake’s edge at its highwater level for lake “maintenance and control purposes only.”
The declaration clearly states, in multiple places, that any interest in any of the lakefront
properties in the subdivision is subject to the easement.
¶6. The covenants also establish the ARC to exercise “architectural control” over the
subdivision. Section 10.02 of the covenants provides, as relevant in this case, that “no . . .
fences . . . shall be commenced, erected, constructed[,] . . . or permitted to remain on . . . any
Lot, until after compliance with the review process of this Article X and approval . . . by the
[ARC].” The review process requires the submission of detailed building and landscaping
plans to the ARC. Section 10.03 provides that the ARC must review and approve or
disapprove submissions within thirty business days of receipt of all plans. Section 10.03 also
states that the ARC shall provide “[w]ritten notice of [its] decision,” which “shall specify the
reasons for any disapproval.” Decisions of the ARC may be appealed to the subdivision’s
board of directors, and residents are entitled to a hearing before the board.
¶7. On or about February 6, 2010, Paul Berlin delivered a handwritten plan for the
construction of a fence on his lot to Jerry Ward, the chair of the ARC. The plan proposed
the construction of iron fences commencing on both sides of the Berlins’ home, running to
and then continuing down the property lines on the east and west sides of the property, and
then finally crossing the twenty-foot maintenance easement and extending three feet out into
3
the lake. The plan also showed a three-foot-wide “walk gate” on one side of the maintenance
easement and an eight-foot-wide “access gate” on the opposite side of the easement.
¶8. The ARC met within a few days and voted unanimously to disapprove the proposed
fence. Ward then met with Paul and explained that the ARC had disapproved the fence
because it crossed the maintenance easement and extended into the lake. Ward suggested
that Paul could revise and resubmit his plan or meet with the ARC. The ARC would have
approved a fence with the same design and materials if it had been enclosed on the lakeside
of the property and stopped short of the maintenance easement. Ward told Paul that he could
also appeal and meet with LPOA’s board of directors. Paul responded that enclosing the
fence, rather than extending it into the lake, would cost an additional $5,400. Paul then told
Ward that he was not going to meet with the board or the ARC and that he intended to build
the fence as proposed, without revisions and without ARC approval.
¶9. Ward notified LPOA’s board of directors of Paul’s statement that he intended to build
the fence without ARC approval, and the board contacted LPOA’s attorney, Don McGraw.
On February 26, 2010, McGraw sent a letter to the Berlins confirming that the ARC had
disapproved their proposed fence. McGraw’s letter also stated that he understood that the
Berlins had stated that they intended to disregard the ARC’s decision and build the fence
anyway. McGraw warned that LPOA would seek injunctive relief and an award of attorneys’
fees and expenses if the Berlins proceeded in disregard of the ARC’s decision.
¶10. The Berlins began construction on their fence at some point in March 2010. Although
they never submitted modified plans to the ARC, they ultimately constructed the fence with
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three eight-foot-wide gates. Otherwise, the fence was constructed as originally planned. On
March 31, 2010, their attorney sent McGraw a letter informing him that the Berlins intended
to proceed with construction of the fence. The letter asserted that the Berlins were entitled
to proceed with construction because LPOA failed to give them a written statement of the
reasons that the fence was disapproved.
¶11. LPOA filed suit in the Madison County Chancery Court on May 20, 2010. LPOA’s
complaint asked the court to enforce the subdivision’s covenants, enjoin the Berlins from
maintaining their fence without ARC approval, and order the Berlins to remove the portion
of the fence that encroached on LPOA’s maintenance easement. LPOA also requested an
award of attorneys’ fees and other costs. The Berlins filed an answer and counterclaim
accusing LPOA of arbitrary and selective enforcement of the covenants. The counterclaim
demanded attorneys’ fees, costs, and punitive damages. The parties engaged in discovery,
and the case eventually proceeded to trial in January and September 2014.
¶12. Paul, Ward, and Steve Horn were the only witnesses at trial. Horn is a resident of
Livingston and the president of its developer, Livingston Development Corporation. Ward
and Horn testified that LPOA and its contractors regularly use the maintenance easements
that surround the lakes to spray for weed control and to monitor the lakes for beavers and
nutria, among other things. They testified that aquatic weeds, beavers, and nutria can cause
serious harm to the lakes, which are one of the neighborhood’s essential amenities. Horn
testified that a contractor regularly rides along the easements, often on a four-wheeler,
looking for any issues that need attention. Ward and Horn testified that weed control is
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conducted with a Kubota or Polaris utility vehicle equipped with a twenty-five gallon tank
and a sprayer. Ward and Horn insisted that it was not practical for LPOA and its contractors
to work through fences that cross the easement, even if the fences had gates. They noted that
the Berlins have three dogs (two bulldogs and a schnauzer), and LPOA did not want to be
responsible for keeping dogs inside a fence. In addition, the plans submitted by the Berlins
had only one eight-foot-wide “access gate,” which would prevent a utility vehicle or four-
wheeler from entering on one side of the property and continuing out the other.
¶13. Horn also testified that a neighbor three houses down from the Berlins requested
permission to build a fence that was similar but was enclosed and stopped short of the
maintenance easement. The ARC approved the plans, and a photograph of the fence was
admitted into evidence at trial.
¶14. Paul claimed that he had not witnessed anyone performing any type of maintenance
or monitoring within the easement in years. He did not believe that his gated fence would
cause any problems for anyone. He testified that he would be happy to put up his dogs if
given a little advance notice. Paul also complained that the ARC had authorized another
resident, Darryl Gibbs, to plant shrubs across the maintenance easement on Gibbs’s property.
Paul felt that the ARC had been inconsistent in its enforcement of the covenants.
¶15. On June 24, 2015, the chancellor entered an opinion and final judgment finding that
the Berlins had violated the covenants and that LPOA was entitled to injunctive relief. The
chancellor ordered the Berlins, within sixty days of the judgment, to remove the portions of
their fences that encroached on the twenty-foot maintenance easement. The chancellor also
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awarded LPOA $17,485.58 for attorneys’ fees and expenses, said amount to be paid in full
by the Berlins within one year. The chancellor denied all relief requested in the Berlins’
counterclaim. The Berlins filed a timely motion to reconsider or for a new trial, which was
denied, and a timely notice of appeal.
DISCUSSION
¶16. On appeal, the Berlins make five arguments: (1) that LPOA is not entitled to an
injunction because the ARC failed to provide written notice of the reasons for its disapproval
of the fence; (2) that the chancellor’s decision is contrary to the law and against the
overwhelming weight of the evidence; (3) that LPOA is not entitled to an injunction because
the ARC never promulgated rules regarding construction or improvements; (4) that the
chancellor should not have awarded attorneys’ fees without holding an additional hearing;
and (5) that the chancellor erred by excluding a letter written by LPOA’s attorney in regard
to a dispute with another resident. We address each of these contentions below, keeping in
mind that “[a]n appellate court employs a limited standard of review in chancery matters.”
Gaw v. Seldon, 85 So. 3d 312, 316 (¶12) (Miss. Ct. App. 2012). “The findings of the
chancery court will not be disturbed when supported by substantial evidence unless the court
abused its discretion, applied an erroneous legal standard, was manifestly wrong, or
committed clear error.” Singh v. Cypress Lake Prop. Owners Ass’n, 192 So. 3d 373, 376
(¶11) (Miss. Ct. App. 2016).
I. The ARC’s failure to provide a written statement of reasons for its
decision does not excuse the Berlins’ violation of the covenants.
¶17. The Berlins first argue that “LPOA cannot complain” that the Berlins built their
7
fences without ARC approval because the “ARC did not comply with the covenants.” The
Berlins rely on section 10.03 of the covenants, which provides, in relevant part, as follows:
Within 30 business days after receipt of all the Plans, the [ARC] shall review
the Plans and shall either approve or disapprove all or any portion of the Plans.
Written notice of such decision shall be given to the Developer, Owner or
other builder, as the case may be, and such notice shall specify the reasons for
any disapproval.
¶18. LPOA responds that the ARC complied with section 10.03 because it acted on the
Berlins’ request within thirty business days, and section 10.03 does not state that the ARC
must provide written notice of the reasons for its decision within that time frame—only that
the decision itself must be made. In addition, the Berlins received clear written notice from
LPOA’s attorney within about fifteen business days, although the letter did not specify
reasons for the ARC’s decision. Ward and Horn also testified that, in other cases, the ARC
or the board had been able to resolve issues through informal discussions with homeowners
without preparing a formal written statement of reasons. LPOA also argues that a written
notice of reasons would have been a hollow and pointless formality in this case because,
within fewer than fifteen business days, Ward had orally communicated the ARC’s reasons
to Paul, and in response Paul unequivocally stated that he would not resubmit his plans or
meet with the ARC or the board. The obvious purpose of the requirement of a statement
specifying reasons is to provide a basis for the submission of modified plans or further
discussions, and Paul made clear that he had no interest in those options.
¶19. We conclude that the Berlins’ argument is without merit. Nothing in the covenants
states that a homeowner may proceed with construction simply because he does not receive
8
a written statement of reasons, and the Berlins cite no other authority for their argument.
Their argument sounds like a claim that LPOA has “unclean hands,” but “the clean hands
doctrine prevents a complaining party from obtaining equitable relief in court” only if the
party “is guilty of willful misconduct in the transaction at issue.” Scruggs v. Wyatt, 60 So.
3d 758, 772 (¶34) (Miss. 2011) (emphasis added; emphasis omitted) (quoting Bailey v.
Bailey, 724 So. 2d 335, 337 (¶6) (Miss. 1998)). LPOA is not guilty of any “willful
misconduct.” Rather, it substantially complied with section 10.03 by promptly informing the
Berlins of the reasons for the ARC’s decision. The chancellor did not err by rejecting the
Berlins’ argument, even if we assume arguendo that LPOA technically failed to comply with
the letter of section 10.03.
II. The chancellor’s ruling was neither contrary to law nor against the
overwhelming weight of the evidence.
¶20. The Berlins argue that the chancellor erred by ordering them to remove the parts of
their fences that extend through the maintenance easement. We address this argument
against the backdrop of a “body of law” that has developed concerning neighborhood
homeowners associations’ authority to enforce restrictive covenants. Perry v. Bridgetown
Cmty. Ass’n Inc., 486 So. 2d 1230, 1233 (Miss. 1986). More than thirty years ago, our
Supreme Court “note[d] that one of the unique characteristics of a homeowners association
is mandatory membership. Upon taking title to a lot the property owner automatically
becomes a member of the association and is subject to the obligations of membership and
enforcement of the covenants.” Id. “A second unique characteristic of a homeowners
association is the power of the association to control the use and enjoyment of property. The
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extent of the power is defined in the declaration, but usually encompasses use and size of
buildings upon individual lots and regulation of the property commonly enjoyed by all lot
owners.” Id. As in this case, an association may, by covenant, require preapproval of all
planned construction and alterations, and it may delegate its power to approve or disapprove
such plans to a neighborhood architectural review committee. See Goode v. Vill. of
Woodgreen Homeowners Ass’n, 662 So. 2d 1064, 1074-75 (Miss. 1995). Such covenants are
clearly valid and enforceable under Mississippi law. See id. at 1075.
¶21. Our Supreme Court has held that
the association is not beyond review in administration of these powers. The
declaration [of covenants] gives rise to review in law or in equity by any lot
owner. Review by the court must be guided by the intent stated in the
declaration of purpose and judged by a test of reasonableness. Applying a
reasonableness standard to a regulation, this Court will consider not only the
rights of the individual owner, but also the rights of the other association
members who expect maintenance in keeping with the general plan of
development for the subdivision.
Perry, 486 So. 2d at 1234 (citation omitted).
¶22. The issue in this appeal arises in the context of restrictive covenants that not only
grant LPOA a maintenance easement across the Berlins’ property but also require the Berlins
to obtain LPOA’s approval prior to the construction of any new fence on their property. The
issue also arises in the context of the Berlins’ decision to build their fences without ARC
approval and in willful disregard of the ARC’s disapproval, which was a clear violation of
the covenants. In this context, it is not this Court’s role to decide de novo whether the
Berlins’ fences are an unreasonable interference with LPOA’s easement. Rather, our only
role is to determine whether “powers granted [to LPOA and the ARC] through the restrictive
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covenants . . . were reasonably applied.” Goode, 662 So. 2d at 1075. That is, the only issue
for judicial determination is whether LPOA and the ARC acted unreasonably when they
decided that the fences would interfere with use of the easement. In applying this standard,
we must “consider not only the rights of the individual owner, but also the rights of the other
association members who expect maintenance in keeping with the general plan of
development for the subdivision.” Id. (quoting Perry, 486 So. 2d at 1234).
¶23. The covenants expressly state that the ARC may disapprove plans for a proposed
fence or other improvement to any lot for, inter alia, “any . . . reason or reasons which are not
arbitrary or capricious, including, but not limited to, aesthetic considerations.” Again, such
a restriction is valid and enforceable under Mississippi law. Goode, 662 So. 2d at 1075.
Moreover, we cannot say that LPOA has enforced the covenant or exercised its authority in
an unreasonable manner. Horn and Ward testified that contractors and others regularly
require access to maintenance easements in order to monitor the lake for pests and aquatic
weeds that can cause serious harm to Livingston’s lakes, which are one of the subdivision’s
essential features. The chancellor found their testimony credible, and the chancellor’s
findings are supported by substantial evidence and are not clearly erroneous.
¶24. The Berlins counter that any person who needs to access the easement can easily open
and shut their gates and drive four-wheelers or other utility vehicles in and out. Paul also
testified that he would put up his dogs while any maintenance personnel are present.
However, if all lakefront property owners constructed similar fences, persons performing
maintenance on the lake would have to contact each homeowner in advance to request that
11
any animals be put up and would have to open and shut gates throughout the neighborhood,
rather than riding along the lakeshore uninterrupted. We cannot say that LPOA and the ARC
acted unreasonably in concluding that these and other potential issues would interfere with
necessary access to the maintenance easement.
¶25. In arguing that the chancellor’s ruling is contrary to law and against the overwhelming
weight of the evidence, the Berlins primarily rely on this Court’s opinion in Gaw v. Seldon,
85 So. 3d 312 (Miss. Ct. App. 2012). In that case, Gaw owned a forty-foot easement across
Seldon’s property. Id. at 314 (¶1). Seldon built brick columns at the entry to his property
that encroached on Gaw’s easement by nine and a half feet. Id. at 314, 316 (¶¶1, 9). Gaw
filed a complaint seeking removal of the columns, but the chancellor found that the columns
did not interfere with Gaw’s reasonable use of the easement for ingress and egress, which
was “the express purpose of the easement.” Id. at 316-17 (¶¶9, 15). Gaw claimed that he
planned to build a barn and house on his property in the future, and he asserted that “the
columns might prevent large pieces of construction equipment from traveling along his
easement[.]” Id. at 317 (¶15). But he admitted that he had not begun any construction. Id.
The chancellor reasoned that the columns could remain until Gaw showed actual interference
with his reasonable use of the easement. Id. On appeal, this Court affirmed the chancellor’s
decision in relevant part. Id.1
1
In general, the owner of the servient estate may build a fence on an easement if (1)
the fence is expressly permitted by or consistent with the intent of the easement grant or (2)
“intent is undeterminable, but . . . the fence . . . does not unreasonably interfere with” use
of the easement by the owner of the dominant estate. Calvert v. Griggs, 992 So. 2d 627, 632
(¶14) (Miss. 2008) (citing Rowell v. Turnage, 618 So. 2d 81, 87 (Miss. 1993)).
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¶26. Gaw is distinguishable in several material respects. First, Gaw did not involve a
homeowners association or restrictive covenants. Second, the easement owner in Gaw had
not reserved unto himself broad authority to approve or disapprove any new construction on
the easement. In this case, as discussed above, LPOA did exactly that. Third, the columns
at issue in Gaw extended less than ten feet onto a forty-foot easement, whereas the Berlins’
fences extend across the entire twenty-foot easement at issue here. The Berlins rely on Gaw
primarily for its conclusion that the columns could remain until such time as the easement
owner could show actual interference with his use of the easement, as opposed to mere
potential interference. However, the chancellor in this case reached a different factual
conclusion based on the evidence presented. As the chancellor discussed, LPOA’s witnesses
testified that the Berlins’ fences interfere with their current use of the easement, even if the
fences do not prevent access. The chancellor’s findings and credibility determinations on
this issue are not clearly erroneous. Thus, Gaw is distinguishable for several reasons, the
most significant being that it did not involve judicial review of a homeowners association’s
exercise of its lawful authority to approve or disapprove new construction.
¶27. In concluding our discussion of this issue, we emphasize that, in exercising its lawful
authority to review and approve construction plans, LPOA never attempted to prevent the
Berlins from having a fence on their property. LPOA simply required that the fence on the
3.56-acre lakefront property stop just short of LPOA’s maintenance easement rather than
extending across the easement and out into the subdivision’s common lake. A neighbor three
doors down from the Berlins built just such a fence with the ARC’s approval and without
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incident. In reviewing the reasonableness of LPOA’s decision, “this Court will consider not
only the rights of the individual owner, but also the rights of the other association members
who expect maintenance in keeping with the general plan of development for the
subdivision.” Perry, 486 So. 2d at 1234. We cannot say that the requirement placed on the
Berlins’ fences was an unreasonable one. By moving into a covenant-restricted community,
the Berlins agreed to abide by the neighborhood covenants and the reasonable regulation of
the homeowners association. That is the nature of the deal. The chancery court’s judgment
enforcing the covenant at issue here was neither contrary to law nor against the
overwhelming weight of the evidence.
III. LPOA’s other alleged noncompliance with the covenants does not
excuse the Berlins’ violations.
¶28. The Berlins next make a cursory argument that LPOA is estopped from enforcing the
covenants because LPOA did not “provide evidence” at trial that it had adopted construction
rules and regulations, as it is permitted to do by the declaration of covenants. Section 4.02(d)
of the covenants provides that LPOA’s board has the power, authority, and duty “[t]o adopt,
promulgate and enforce such rules, regulations, restrictions and requirements as may be
recommended by the [ARC] . . . , or as the [b]oard may consider to be appropriate” (emphasis
added). Section 10.06 likewise provides that the board “may adopt and promulgate such
rules and regulations” or publish policies or standards “as may be considered necessary”
(emphasis added). Nothing in the declaration requires the board to do adopt such rules.
Moreover, nothing in the declaration makes the covenants unenforceable if the board does
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not issue such rules or regulations. The Berlins’ argument is without merit.2
IV. The chancellor was not required to hold a hearing on the
reasonableness of LPOA’s attorneys’ fees.
¶29. The Berlins argue that the chancellor erred in awarding attorneys’ fees to LPOA
without conducting a hearing on the reasonableness of the amount awarded. This issue
requires discussion of some additional procedural background.
¶30. At the conclusion of LPOA’s case-in-chief in September 2014, LPOA’s attorney in
the litigation, James L. Martin, requested permission to wait until after the conclusion of the
trial to submit an affidavit regarding LPOA’s attorneys’ fees and costs. The chancellor
granted his request, and Martin then asked whether LPOA would “be permitted to have a
hearing as to the reasonableness of those fees.” The chancellor responded, “Yes, of course.
Always.” The next day, at the conclusion of the trial, the chancellor gave the parties oral
instructions regarding post-trial briefing and submissions, which included the following:
“[T]he parties each ask that their attorneys be allowed to present testimony of fees . . . at a
later date. This Court hereby requires the same to be done in writing. The affidavit . . . as
to the reasonableness and necessity of said services can be attached thereto.” In her final
instructions to the parties, the chancellor did not mention a hearing on attorneys’ fees; rather,
she indicated that she would issue her opinion after receiving the parties’ submissions.
¶31. On November 14, 2014, Martin filed an affidavit in support of LPOA’s request for
2
The argument is also procedurally barred because the Berlins failed to raise the issue
in the chancery court. See, e.g., City of Hattiesburg v. Precision Constr. LLC, 192 So. 3d
1089, 1093 (¶18) (Miss. Ct. App. 2016) (applying the “long-established rule” that issues not
raised in the trial court will not be considered on appeal).
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attorneys’ fees and costs of $17,485.58. Martin stated that he had over thirty years of
experience as a practicing attorney, including significant experience in real property matters,
and that his usual hourly rate was $300. Martin’s affidavit also addressed the other factors
set out in Rule 1.5 of the Mississippi Rules of Professional Conduct.3 Martin attached an
itemization and hourly breakdown of his work on the case, which showed a total of 59.75
hours billed from 2010 to 2014. On November 17, 2014, one of the Berlins’ attorneys filed
a similar affidavit in support of their request for $31,637.50 in attorneys’ fees and costs,
along with itemized billing records. The Berlins’ request for attorneys’ fees was based on
approximately 125 hours of attorney time at a rate of $250 per hour.
¶32. On June 24, 2015, the chancellor issued her opinion and final judgment and found that
LPOA was entitled to recover $17,485.58 in attorneys’ fees and costs pursuant to section
14.01 of the covenants. In their motion for reconsideration or a new trial, the Berlins
objected that they had not been “afforded an opportunity to contest . . . whether [LPOA’s
attorneys’ fees] were reasonable and necessary.” LPOA responded that the chancellor’s post-
trial instructions put the Berlins on notice that the court intended to rule on the issue without
a further hearing. LPOA also argued that its attorney’s affidavit was sufficient and that no
hearing was necessary. On September 3, 2015, the chancellor denied the Berlins’ motion
without specifically addressing the issue of attorneys’ fees.
¶33. The Berlins do not dispute that a prevailing party in an action to enforce the covenants
3
See Tupelo Redev. Agency v. Gray Corp., 972 So. 2d 495, 521 (¶79) (Miss. 2007)
(“Rule 1.5 . . . sets out several factors which the trial court should consider in determining
the reasonableness of the amount of attorneys’ fees.”). The Rule 1.5 factors are similar to
the factors discussed in McKee v. McKee, 418 So. 3d 764, 767 (Miss. 1982).
16
is entitled to an award of attorneys’ fees, and section 14.01 makes clear that a prevailing
party is entitled to such an award. See Journeay v. Berry, 953 So. 2d 1145, 1162-63 (¶¶63-
66) (Miss. Ct. App. 2007) (holding that valid restrictive covenants are contractual in nature
and therefore may support an award of attorneys’ fees). However, “[a] contractual provision
to pay attorney’s fees is not a blank check; it is limited by the reasonableness of the fee which
includes an analysis of whether work performed was actually necessary.” Pikco Fin. Inc. v.
Staten (In re Staten), 559 B.R. 666, 674 (Bankr. S.D. Miss. 2016). “[W]e review the issue
of the reasonableness of the trial court’s award of attorneys fees applying an abuse of
discretion standard. This Court will not disturb the finding of the trial court on such an issue
unless it is manifestly wrong or exhibits a manifest abuse of discretion.” Microtek Med. Inc.
v. 3M Co., 942 So. 2d 122, 130 (¶24) (Miss. 2006), abrogated on other grounds by Upchurch
Plumbing Inc. v. Greenwood Utils. Comm’n, 964 So. 2d 1100, 1116-17 (¶¶41-43) (Miss.
2007). “In this context, the word ‘manifest’ has been defined to mean ‘unmistakable, clear,
plain, or indisputable.’” Id. (quoting Mosley v. Mosley, 784 So. 2d 901, 904 (¶7) (Miss.
1997)).
¶34. No rule requires a chancellor to hold a hearing prior to making a determination as to
the reasonableness of requested attorneys’ fees. In addition, Mississippi Code Annotated
section 9-1-41 (Rev. 2014) provides:
In any action in which a court is authorized to award reasonable attorneys’
fees, the court shall not require the party seeking such fees to put on proof as
to the reasonableness of the amount sought, but shall make the award based on
the information already before it and the court’s own opinion based on
experience and observation; provided however, a party may, in its discretion,
place before the court other evidence as to the reasonableness of the amount
17
of the award, and the court may consider such evidence in making the
award.[4]
Finally, although a chancellor generally should provide some on-the-record analysis of the
factors set out in Rule 1.5 of the Rules of Professional Conduct, the failure to do so is not per
se reversible error, and the chancellor’s award may be upheld so long as the amount is “not
unreasonable.” West v. West, 88 So. 3d 735, 747 (¶58) (Miss. 2012); see Jordan v. Jordan,
105 So. 3d 1130, 1135-36 (¶¶24-28) (Miss. Ct. App. 2012) (Fair, J., specially concurring).
¶35. Given the history of this litigation, the amount of fees awarded by the chancellor was
“not unreasonable,” and we cannot say that she abused her discretion. The case was pending
for five years and involved multiple depositions, a two-day trial, a motion to reopen the case,
and other post-trial briefing and motions. Nonetheless, LPOA requested and was awarded
attorneys’ fees for less than 60 hours of attorney time. We also note that the Berlins claimed
that they were entitled to a considerably larger award of attorneys’ fees and costs ($31,637.50
as compared to $17,485.58) and claimed that their lawyers reasonably spent more that twice
as many hours working on the case (about 125 hours as compared to about 60 hours). If the
Berlins’ fee request was even in the ballpark of “reasonable,” then the chancellor’s award to
LPOA cannot be unreasonable. Finally, we note that although LPOA’s attorney filed his
detailed time records with his affidavit in November 2014, the Berlins have never identified
any duplicative or unnecessary time entries or articulated any way in which LPOA’s
requested fees are unreasonable. Given the particular facts and history of this case, the
4
Section 9-1-41 applies “[i]n any action” in which an award of reasonable attorneys’
fees is authorized and thus applies regardless of whether the award is based on a statute, a
contractual provision, or common law. See Staten, 559 B.R. at 670 n.4.
18
amount of fees awarded was not unreasonable, and we cannot say that the chancellor abused
her discretion by awarding fees without a hearing or additional findings of fact. See West,
88 So. 3d at 747 (¶58). Accordingly, the award of attorneys’ fees is affirmed.
V. The chancellor did not abuse her discretion by refusing to admit a
letter that LPOA’s attorney wrote regarding another case.
¶36. Horn testified on cross-examination that in 2007 another Livingston resident, Greg
Giurintano, built a fence across the maintenance easement on his property. Horn objected
to the fence and asked Giurintano to move it, but Giurintano refused. Horn testified that in
the early years of the development before many lots were sold, he essentially acted as the
ARC, and he was unsure whether the ARC was functioning when the Giurintano dispute
began. Horn also testified that he and Giurintano were once friends but had a falling out over
the fence dispute. The Berlins’ attorney then asked, “[I]sn’t it true that y’all settled that issue
back in 2007?” Horn denied that the dispute had been settled and testified that it was still
the subject of a separate lawsuit, also pending in the Madison County Chancery Court.5
¶37. The Berlins then attempted to introduce a letter dated November 13, 2007, from Don
McGraw to the Giurintanos’ attorney that stated in part as follows:
[LPOA] inquired as to the status of the fencing issue and I told them
that you and I had spoken in the last two or three weeks but had not finalized
anything. To reiterate:
5
In the chancery court, the Berlins filed a motion to consolidate their case with a case
captioned LPOA v. Anna Marie Giurintano. The Giurintano case arose from a complaint
for injunctive relief filed by LPOA, which alleged that the Giurintanos violated the
covenants by constructing a fence without submitting plans to the ARC for approval. The
Giurintanos were represented by the same attorneys as the Berlins and joined in the motion
to consolidate. However, the chancery court denied the motion, and the record in this appeal
does not include additional information about the Giurintano case.
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1. The fencing as it travels to the water’s edge will be allowed as long the
entry gate into the Giurintano’s [sic] yard is at least 10 feet wide.
....
3. The fencing on the west side of the lot needs to be moved to the lot line
so that it will not interfere with the lake access easement as provide for
on the plat.
....
Livingston would like to have resolutions to these matters within ten
(10) days.
I look forward to hearing from you.
Horn then testified that McGraw was not authorized to permit the Giurintanos’ fence to
extend across the maintenance easement.
¶38. LPOA objected to the letter being introduced into evidence and to further questions
about it, arguing that the dispute with the Giurintanos was irrelevant to the issues in the
Berlins’ case. The chancellor sustained LPOA’s objections. On appeal, the Berlins argue
that the chancellor abused her discretion by excluding the letter because it was evidence that
LPOA had acted arbitrarily and capriciously in disapproving their fence plans.
¶39. “Whether evidence is relevant and/or admissible is left to the discretion of the
chancellor, and reversal occurs only where that discretion has been abused.” Prestridge v.
City of Petal, 841 So. 2d 1048, 1059 (¶53) (Miss. 2003). “Evidence is relevant if (a) it has
any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the case.” M.R.E. 401. “Irrelevant evidence
is not admissible.” M.R.E. 402.
20
¶40. We cannot say that the chancellor abused her discretion by excluding the letter. In the
letter itself, McGraw stated that he had told LPOA that he “had not finalized anything” “as
to the status of the fencing issue”; Horn denied that McGraw had authority to allow the
Giurintanos’ fence to cross the maintenance easement; and it appears that nothing was ever
settled or finalized, since the issue with the Giurintanos’ fence remained in litigation years
later. Under the circumstances, the chancellor did not abuse her discretion in finding that the
letter was irrelevant. Furthermore, there is nothing to indicate that exclusion of the letter had
any impact on the chancellor’s ultimate findings and conclusions.
CONCLUSION
¶41. The chancellor’s judgment and findings are supported by substantial evidence and are
neither contrary to law nor clearly erroneous. We reject the Berlins’ arguments that LPOA’s
alleged noncompliance with the covenants excuses the Berlins’ own clear violations of the
covenants. Finally, the chancellor’s award of attorneys’ fees was reasonable, and she did not
abuse her discretion by awarding such fees without a hearing or by excluding a letter related
to LPOA’s dispute with another resident.
¶42. THE JUDGMENT OF THE CHANCERY COURT OF MADISON COUNTY
IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR,
GREENLEE AND WESTBROOKS, JJ., CONCUR.
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