Dempsey Sullivan v. Estate of Samuel Maddox

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CA-00418-COA
CONSOLIDATED WITH
NO. 2011-CT-00820-COA
DEMPSEY SULLIVAN, BILLIE JOYCE APPELLANTS/
SULLIVAN, AND TERRELL STUBBS, CROSS-APPELLEES
INDIVIDUALLY
v.
ESTATE OF SAMUEL MADDOX APPELLEE/
CROSS-APPELLANT
DATE OF JUDGMENT: 02/23/2017
TRIAL JUDGE: HON. GERALD MARION MARTIN
COURT FROM WHICH APPEALED: SIMPSON COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS: W. TERRELL STUBBS
JAMES LAWTON ROBERTSON
ATTORNEYS FOR APPELLEE: JAMES BURVON SYKES III
L. WESLEY BROADHEAD
NATURE OF THE CASE: CIVIL - REAL PROPERTY
DISPOSITION: ON DIRECT APPEAL: AFFIRMED IN
PART; REVERSED AND REMANDED IN
PART. ON CROSS-APPEAL: AFFIRMED -
07/30/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CARLTON, P.J., FOR THE COURT:
¶1. Dempsey Sullivan and Billie Joyce Sullivan (collectively, the Sullivans)1 filed a
1
The Sullivans’ attorney, Terrell Stubbs, is also a party to this appeal. For the
purposes of clarity and brevity, we will refer to the appellants/cross-appellees collectively
as “the Sullivans” unless individual usage of their names is appropriate.
complaint in 2010 seeking an injunction to prohibit their neighbors Steve Maddox and
Samuel Maddox2 (collectively, the Maddoxes) from entering their property in Simpson
County. The Maddoxes filed a counterclaim asserting that they possessed an easement across
the Sullivans’ property. During the course of litigation, the chancellor entered an order
dismissing the Sullivans’ complaint for an injunction with prejudice and issuing sanctions
against their attorney, Terrell Stubbs. The chancellor appointed a special master to determine
the issue of the easement. The special master submitted a report, finding that the Maddoxes
did not possess a valid easement over the Sullivans’ property and recommending that the
chancellor dismiss the Maddoxes’ counterclaim with prejudice.
¶2. The chancellor ultimately entered a final judgment that, among other things, ratified
and adopted the special master’s report, dismissed the Maddoxes’ counterclaim with
prejudice after finding that no easement existed, affirmed and ratified all prior orders and
judgments filed in the matter, and assessed the costs of the special master to the Maddoxes.
¶3. The Sullivans now appeal, asserting the following assignments of error: (1) they did
not receive proper notice when the chancellor dismissed their complaint with prejudice; (2)
the chancellor erred in dismissing their complaint on the merits; (3) the chancellor erred in
awarding sanctions; (4) the Estate of Samuel Maddox was improperly substituted as a party
for Samuel Maddox; and (5) the chancellor erred by ratifying and affirming all prior orders
of the chancery court. The Maddoxes filed a cross-appeal, arguing that the chancellor erred
2
Steve Maddox died during the chancery court proceedings and is not a party to this
appeal. Samuel Maddox also died during the chancery court proceedings. His estate was
substituted as a party and is the appellee in this appeal.
2
in holding that the Maddoxes did not have an easement of record or an easement by
implication across the Sullivans’ property.
¶4. After our review, we affirm the following: the chancellor’s dismissal of the Sullivans’
complaint with prejudice; the chancellor’s award of sanctions; the chancellor’s judgment
ratifying and affirming all prior orders of the chancery court; the chancellor’s order
substituting the Estate of Samuel Maddox as a party; and the chancellor’s judgment finding
that the Maddoxes did not have an easement of record or an easement by implication across
the Sullivans’ property. However, we reverse the chancellor’s award of attorney’s fees and
expenses to the Maddoxes, which the chancellor issued as sanctions against Stubbs, and we
remand this issue to the chancellor with instructions to: (1) dismiss the present action without
prejudice as to Steve Maddox pursuant to Mississippi Rule of Civil Procedure Rule 25(a)(1)
and (2) then reassess the distribution of the award of attorney’s fees to the remaining party.
FACTS3
¶5. On March 30, 2010, the Sullivans filed a complaint in Simpson County Chancery
Court requesting injunctive relief to prohibit the Maddoxes from entering the Sullivans’
property.4 In their complaint, the Sullivans claimed that the Maddoxes wrongfully entered
3
On August 26, 2005, Dempsey Sullivan filed a complaint against the Maddoxes in
Simpson County Chancery Court. See Sullivan v. Maddox, 122 So. 3d 75, 77 (¶2) (Miss.
Ct. App. 2013) (Case No. 2011-CA-820-COA) (Sullivan I). Sullivan and Stubbs appealed
the chancellor’s judgment, which this Court addressed in Sullivan I. The record in Sullivan
I was consolidated with the present appeal, Sullivan v. Estate of Maddox, 2017-CA-00418-
COA (Sullivan II). The real property at issue in Sullivan I is not the same as that at issue in
Sullivan II.
4
In their complaint, the Sullivans also requested the following relief: (1) a temporary
restraining order against the Maddoxes to enjoin them from crossing and entering on the
3
onto their property without the Sullivans’ consent under the pretense of an alleged easement.
The Sullivans attached the disputed easement to their complaint and asserted that the
easement was not valid or enforceable. The Sullivans also requested that the chancellor set
a hearing date with the time and place for a hearing to award a permanent restraining order
or permanent injunction to prohibit the Maddoxes from entering their property.
¶6. On April 6, 2010, the Maddoxes filed their answer denying the essential allegations
of the complaint. The Maddoxes also filed a counterclaim arguing that they possessed an
easement and asking the chancellor to enjoin the Sullivans from interfering with their use of
the easement. The Maddoxes also alleged several intentional torts and demanded damages
from the Sullivans.
¶7. On April 16, 2010, the chancellor entered an agreed order that stated, among other
things, that “[t]he parties have agreed that the [Maddoxes] will stay off [the Sullivans’]
property for a period of [forty-five] days and should this matter not be resolved within [forty-
five] days, this matter shall be brought back before this [c]ourt for further action.”
¶8. On February 22, 2011, the chancellor held a conference and set Sullivan I for trial on
May 3, 2011, and Sullivan II for trial on May 4, 2011.
Sullivans’ property; (2) a temporary restraining order enjoining the Maddoxes from any
contact whatsoever with the Sullivans, their family, or any guests; (3) a temporary
restraining order directing the Maddoxes to immediately remove all obstructions now
existing on the Sullivans’ property and any equipment, including but not limited to any
gates, fences, bridges, other structures and equipment; and (4) compensatory and punitive
damages plus post-judgment interest, pre-judgment interest, reforestation costs, expert
witness fees, attorney’s fees, all court costs, reasonable damages for mental anguish, worry,
stress, and other damages, along with all other equitable general and special relief as the
Sullivans may be entitled to in the premises.
4
¶9. On April 12, 2011, the Sullivans filed motions for recusal of the chancellor, Judge
David Shoemake, in both Sullivan I and Sullivan II. In both motions, the Sullivans claimed
“it has recently been brought to the undersigned’s attention[] that Wesley Broadhead,
attorney for the [Maddoxes], is currently representing Mike Stuckey, the husband of this
[c]ourt’s [a]dministrator, on a proceeding on appeal” in the Simpson County Circuit Court.
The Sullivans asserted that based on this claim, the chancellor should recuse himself from
Sullivan I and Sullivan II “in order to avoid even an appearance of impartiality or
impropriety.” The Maddoxes filed motions to consolidate the hearings on the motions to
recuse filed in Sullivan I and II.
¶10. On May 3, 2011, the chancellor entered an order consolidating the hearings in regard
to the Sullivans’ motions to recuse. That same day, the chancellor entered its order denying
Sullivan’s motions to recuse in Sullivan I and Sullivan II. The next morning, prior to the
commencement of the Sullivan II trial, the Sullivans renewed the motions to recuse, which
the chancellor denied.
¶11. At the Sullivan II trial held on May 4, 2011, the chancellor heard testimony from
Samuel Maddox; Steve Maddox; Dempsey Sullivan; Bobby Hall, who owned the property
between Sullivan and Maddox; Stanley Eubanks, whose family once owned certain portions
of the Sullivans’ property; and Samuel Maddox Jr. The matter was then continued to a later
date.
¶12. On March 13, 2013,5 the Sullivans filed a second motion for the recusal of the
5
The Sullivans filed their appeal in Sullivan I in July 2011.
5
chancellor in the present matter and in all other cases involving the Sullivans or their
attorney, Stubbs. The Sullivans alleged that Judge Shoemake and his court administrator had
a clear bias against the Sullivans that created a conflict in this case and in all cases involving
the Sullivans. The Sullivans attached the following documents to the motion for recusal:
Campaign Finance Reports for the 2010 Election Campaign filed by Judge Shoemake, who
was a candidate; a copy of a bar complaint filed by Judge Shoemake’s court’s administrator
against the former judge, Larry Buffington; a copy of the response to the bar complaint filed
by Larry Buffington; and seven affidavits.
¶13. On April 4, 2013, the Maddoxes filed a joint response to the Sullivans’ March 13,
2013 motion for recusal. In the response, the Maddoxes argued that the Sullivans should be
sanctioned or disciplined pursuant to Mississippi Rule of Civil Procedure 11 for knowingly
continuing to make false statements of material fact to the court.
¶14. Nearly a week later, on April 10, 2013, the chancellor entered an order denying the
motion for recusal, dismissing the Sullivans’ complaint, imposing sanctions, and continuing
the cause for a hearing on monetary sanctions. In his order, the chancellor stated that the
Sullivans’ March 13, 2013 motion to recuse was filed “801 days after this [c]ourt took the
bench on January 1, 2011, and 673 days after May 3, 2011,” the date the chancellor entered
his first order denying the Sullivans’ motion to recuse. The chancellor stated that Uniform
Chancery Court Rule 1.11 does not allow parties to file unlimited motions to recuse, and the
rule requires recusal motions to be filed within a reasonable period of time.
¶15. The chancellor discussed the Sullivans’ motion to recuse, as well as the affidavits and
6
bar complaint attached to the motion. The chancellor found that the attached documents
failed to “evidence any bias or partiality of this [c]ourt” and produced “no evidence of this
[c]ourt having any involvement in or knowledge of” improper campaign donations or other
improper conduct.
¶16. Regarding the Sullivans’ trespass claims, the chancellor found the Sullivans failed to
prosecute the claims. The chancellor explained as follows:
The 2010 [c]omplaint filed by the [Sullivans] asked the [c]ourt to cancel an
easement given on August 24, 1981, across property that is now owned by the
[Sullivans], the easement now benefitting the [Maddoxes]. The [c]omplaint
also seeks damages for trespass, negligence, and damages to the value of the
real property, and numerous other claims for damages. The prior [c]hancellor,
without a trial, entered an [o]rder on April 7, 2010, ordering the [Maddoxes]
not to cross the [Sullivans’] property and stated further “should this matter not
be resolved within 45 days, this matter shall be brought back before this
[c]ourt for further action.” Since the [Sullivans] have such an order, they have
chosen not to bring their action back before the [c]ourt.
The [c]omplaint was filed March 30, 2010. The [Sullivans] have not sought
to prosecute their [c]omplaint since the one day of trial on May 4, 2011. In
fact, they have resisted all efforts by the [Maddoxes] to have the case
concluded. Counsel for the [Sullivans] is well aware of Uniform Chancery
Court Rule 1.11 which requires the filing of affidavits and requires a ruling by
the [t]rial [c]ourt within thirty (30) days. To the [c]ourt, this is evidence of
delay, dilatory conduct and a clear abuse of the judicial process, and in clear
violation of [Mississippi Rule of Civil Procedure] 41(b).
The chancellor cited to Walker v. Parnell, 566 So. 2d 1213, 1216 (Miss. 1990), and
ultimately ruled that “the actions of [the Sullivans] and [Stubbs] show a complete failure to
prosecute and a clear pattern of dilatory delay, and contumacious conduct . . . .” The
chancellor then dismissed Sullivan’s complaint pursuant to Rule 41(b).
¶17. The chancellor further found that “all of the above referenced actions evidence the
7
filing of untimely and frivolous pleadings for the purpose of harassment and delay without
substantial justification, and disrespect for the integrity of the [c]ourt and constitute the
willful violation of Rule 11 . . . and the Litigation Accountability Act[,]” as well as
Mississippi Rule of Processional Conduct Rule 8.2(a).
¶18. In determining sanctions, the chancellor stated that he considered lesser sanctions
along with the fact that Sullivan and Stubbs also previously attacked the integrity of the
chancellor with allegations of improper campaign donations and the allegations of
impartiality in Sullivan I. The chancellor recalled that Sullivan’s attack in Sullivan I resulted
in sanctions in the amount of $42,922.91, which the Court of Appeals affirmed on appeal.
The chancellor then stated that despite the sanctions issued in Sullivan I, Sullivan and Stubbs
“continue[d] their dilatory conduct, delay, contumacious conduct and the preparing and
procurement of affidavits all in an effort to embarrass and attack the integrity of the [c]ourt.”
The chancellor determined that a monetary sanction in the present matter would therefore be
insufficient. The chancellor explained that he initially intended to impose a monetary
sanction after the hearing on the amount of attorney’s fees, but he felt “compelled to order
and assess other sanctions.” The chancellor thus held that the appropriate sanction in the
present matter was to dismiss the Sullivans’ 2010 complaint with prejudice.
¶19. The chancellor ordered the Sullivans to reimburse the Maddoxes for all expenses and
attorney’s fees incurred in the defense of the complaint and in prosecution of their demands
for affirmative relief. The chancellor set a hearing for April 30, 2013, on the matter of the
amount of sanctions to be assessed against the Sullivans. The chancellor also continued the
8
present matter for a hearing on the amount of monetary attorney’s fees sanctions. The
chancellor ruled that “this [c]ourt retains jurisdiction of the issue of this matter until such
time as final judgment is entered assessing the amount of attorneys’ fees and any other fines,
penalties, damages and/or other sanctions.”
¶20. On April 24, 2013, the Sullivans filed a petition in the Mississippi Supreme Court
pursuant to Mississippi Rule of Appellate Procedure 48(b),6 seeking review of the
chancellor’s judgment denying the Sullivan’s 2013 motion for recusal. On April 26, 2013,
the Sullivans also filed an emergency motion to stay the sanctions hearing. The supreme
court granted the Sullivans’ motion to stay the sanctions hearing pending the supreme court’s
decision of the Sullivan’s petition to review the chancellor’s judgment. On June 12, 2013,
the supreme court entered an order denying the Sullivans’ petition for review of the
chancellor’s judgment denying the motion to recuse.
¶21. On May 8, 2013, the Sullivans filed their notice of appeal of the chancellor’s order
dismissing their complaint. The Maddoxes filed a motion to dismiss the appeal, asserting
that the chancellor’s April 10, 2013 judgment did not dispose of all of the claims against all
of the parties. On April 1, 2014, the supreme court entered an order granting the Maddoxes’
motion and dismissing the appeal.
¶22. On September 16, 2013, the Sullivans filed a motion to dismiss or alternatively for a
continuance of the sanctions hearing. The next day, the chancellor held a hearing on the
issue of attorney’s fees and sanctions and on the Sullivans’ motion to dismiss. The
6
This rule addresses the appellate proceedings on a motion for disqualification of a
trial judge.
9
chancellor explained that as part of the sanctions against the Sullivans, he dismissed the
complaint based on the Sullivans’ failure to prosecute:
[T]here were no efforts to prosecute the case. This [c]ourt tried part of the
[case] on May . . . 4, 2011. Never since May [4, 2011] ha[ve] [the Sullivans]
asked to proceed with the case. When the [Maddoxes] asked that it be put on
the docket and tried, the [Sullivans] objected. Instead of moving the case,
doing anything with the case, it turned into well, let’s get rid of the judge.
¶23. The chancellor also determined that the affidavits attached to the Sullivans’ motion
for recusal were false and not credible. The chancellor found that the motion itself was made
“in bad faith and was for an improper purpose and it was frivolous and it’s based on
complete falsehoods.” The chancellor stated that several of the affidavits referred to
incidents that allegedly occurred before he took the bench in January 2011, and this
information, as well as his campaign finance reports, was available in April 2011, when the
Sullivans filed their first motions to recuse.
¶24. Regarding sanctions, the chancellor “order[ed] and impose[d]” upon Stubbs the
payment of the Maddoxes’ attorney’s fees and expenses as a sanction to be paid by Stubbs.
The chancellor specifically ordered Stubbs “to pay $19,617.32 to Steve Maddox—or to the
chancery clerk of Simpson County for payment to Steve Maddox and Samuel Maddox[—]as
reimbursement for attorneys’ fees and expenses.” The chancellor acknowledged that the
April 10, 2013 judgment stated that the court “would impose sanctions against Mr. Dempsey
Sullivan and Billie Joyce Sullivan,” but the chancellor determined that “these fees were made
necessary.” The chancellor explained that the pleadings Stubbs prepared “were of such a
frivolous and incredible nature . . . . [that] the [c]ourt does not feel that it would be equitable
10
to assess monetary sanctions against [Dempsey] and Ms. Billie Joyce Sullivan[,] especially
due to the fact that they’ve had their case dismissed because of the actions of counsel.”
¶25. On October 8, 2013, the chancellor entered a judgment memorializing his rulings from
the bench and denying the Sullivans’ motion to dismiss or alternatively to continue the
hearing to assess monetary sanctions “for the reasons stated in [the chancellor’s September
17, 2013 bench ruling].” The chancellor awarded Maddox $19,617.32 in attorney’s fees.
¶26. On October 29, 2013, the Sullivans filed a notice of appeal from the October 8, 2013
judgment. The Maddoxes filed a motion to dismiss the appeal, asserting that the October 8,
2013 judgment was not a final, appealable judgment. On April 1, 2014, the supreme court
entered an order dismissing the Sullivans’ appeal.
¶27. The Sullivans also filed a petition for an extraordinary writ pursuant to Mississippi
Rule of Appellate Procedure 21 and alternatively requested permission to file an interlocutory
appeal pursuant to Mississippi Rule of Appellate Procedure 5(a) on October 29, 2013. On
April 1, 2014, the supreme court entered an order denying the petition.
¶28. The chancellor held additional trial proceedings on the merits of Sullivan II on
November 6, 2014. However, at the trial, the parties raised numerous issues concerning the
admissibility of documents and status of the pleadings. As a result, the chancellor, on his
own motion, recessed the hearing until all of the pretrial matters, including a scheduling
order, were properly completed.
¶29. On November 21, 2014, the chancellor entered an order appointing a special master
to the case pursuant to Mississippi Rule of Civil Procedure 53. The chancellor explained that
11
he had a full calendar for the remainder of 2014 and for the first three months of 2015. The
chancellor stated that he would also be charged with the administrative responsibilities of
organizing matters relating to a newly elected chancellor. The chancellor discussed the
procedural history of Sullivan II, including the Sullivans’ complaint and the Maddoxes’
counterclaim, and found that “the above matters constitute exceptional conditions which
require this [c]ourt to consider the use of a Special Master.”7
¶30. On February 17, 2015, Judge Shoemake entered an order recusing himself from
presiding over any case in which Stubbs served as the lead attorney. After this point, special
master Judge William Barnett and Chancellor Gerald Martin presided over the proceedings.
¶31. On May 19, 2015, the Sullivans filed a motion to set the case for trial. A notice of
hearing was entered, setting the trial for August 26, 2015, before special master Judge
William Barnett.
¶32. At the trial held on August 26, 2015, the special master heard testimony from Sullivan
and Bobby Hall, who owned property between the Sullivans’ property and the Maddoxes’
property. The special master entered his report on January 27, 2016. The special master
stated that “the only issue to be determined is whether or not the [Maddoxes] have an
easement over the lands of the [Sullivans] for ingress to their property.” The special master
found that the Maddoxes had no existing easement across the Sullivans’ land. The special
master stated that in making his ruling, he heard testimony and arguments from the parties,
read transcripts from prior hearings, examined the exhibits, reviewed the authorities
7
Only the first two pages of this order appear in the record.
12
submitted by the parties, and conducted his own research.
¶33. In his report, the special master set forth that in 1981 Annie Collier was granted an
easement from the public road to certain described land Collier owned. Collier’s land did
not front a public road. The easement constituted an easement appurtenant and set out in its
body that it constituted “a covenant running with the land owned by the Grantee” and for the
purpose of “ingress, egress and regress.” The easement was to be unobstructed and the
holder of the easement could maintain the easement as the holder elected. On April 27, 1987,
the Sullivans purchased land from Collier which contained in full the land over which the
easement was granted. Now the Sullivans owned all of Collier’s land for which the 1981
easement was granted. Collier maintained ownership of a pie-shaped portion of land. The
special master determined that Collier did not reserve an easement over the land she sold to
the Sullivans for access to the pie-shaped portion of land she still owned. The special master
found that “[w]ith the 1987 purchase, the Sullivans then became the owners of the easement
since by the easement’s very terms, the easement belonged to the land, not to . . . Collier
personally.”
¶34. By other conveyances over time, the Sullivans acquired the land through which the
1981 easement was given. The special master concluded that when the Sullivans “owned
both the land on which the easement was given and the adjacent land for which the easement
was given, the easement merged into the land on which the easement was given and,
therefore, the 1981 easement no longer existed.”
¶35. The special master found that in 1994, Collier transferred to the Maddoxes “certain
13
lands[,] including the remaining portion of Mrs. Collier’s lands for which the 1981 easement
was given and [she] purported to transfer the 1981 easement itself.” However, the special
master held that “Collier had no authority to transfer the easement to the Maddoxes as, by
fact and law, she no longer owned the easement.” The special master further stated that
although the pie-shaped portion of land Collier transferred to the Maddoxes “is adjacent to
other lands they own and lands the [Sullivans] own, it is not adjacent to the lands on which
the 1981 easement was located. In fact, it is about 900 feet away.” The special master also
found that the Maddoxes purchased the pie-shaped portion from Collier after Collier sold the
land between the pie-shaped portion and the land over which the easement ran. The special
master found that “[w]hen the Maddoxes purchased the pie-shaped lot from Mrs. Collier,
they knew, or should have known, that they would only have access to the lot through the
adjoining land they owned and not the Sullivans.”
¶36. The special master therefore recommended that the chancellor hold that the Maddoxes
possessed no easement to the public road across the Sullivans’ property; as a result, the
Maddoxes’ counterclaim should be dismissed. The special master advised that although “the
Maddoxes have no existing easement [across] the Sullivans’ [property], they may file an
action in the appropriate [c]ourt against the Sullivans and their other neighbors to attempt to
establish an easement for necessity if they think that such need exists.”
¶37. On January 5, 2016, Stubbs filed a suggestion of death stating that Steve Maddox died
on December 31, 2015. The Estate of Steve Maddox was not substituted as a party.
¶38. On February 2, 2016, the Maddoxes filed a motion objecting to the report of the
14
special master. The Maddoxes maintained that the Sullivans did not acquire all of the land
benefitted by the easement and explained that Collier still retained ownership of part of the
land. The Maddoxes therefore argued that the easement was not terminated by merger. The
Maddoxes also asserted that this action was not abated as a result of Steve Maddox’s death
and that the action should proceed in favor of Samuel Maddox.
¶39. On May 12, 2016, Sullivan and Stubbs filed a suggestion of death stating that Samuel
Maddox died on May 11, 2016.
¶40. On August 8, 2016, Samuel Maddox’s son, Samuel Jr., filed an entry of appearance
and a motion for extension of time for substitution. In his motion, Samuel Jr. asserted that
the Sullivans failed to properly serve the suggestion of death. Samuel Jr. requested that the
chancellor allow for an additional ninety days “for the person qualifying to serve as executor
by court appointment to be substituted in that capacity for Samuel Maddox in this action.”
¶41. On August 17, 2016, the Sullivans filed a motion to strike or dismiss Samuel Jr.’s
entry of appearance and motion for extension of time for substitution. The Sullivans also
filed a motion to dismiss the Maddoxes’ counterclaim on September 16, 2016, asserting that
no parties had been substituted for Samuel Maddox or Steve Maddox, the deceased parties.
A hearing on this motion was originally set for October 31, 2016, but later continued and
reset for December 7, 2016.
¶42. On October 19, 2016, Judge Gerald Martin entered an order allowing the substitution
of Samuel Maddox’s estate as a party. The order recognized that Samuel Jr. had been
appointed as executor of Samuel Maddox’s estate. The Sullivans filed a motion seeking to
15
set aside the order allowing substitution on November 18, 2016. The Sullivans argued that,
pursuant to Mississippi Rule of Civil Procedure 25, an “action shall be dismissed without
prejudice as to the deceased party if the motion for substitution is not made within ninety
days” after service of a suggestion of death. The Sullivans asserted that this ninety-day
period for the substitution of a party lapsed on April 6, 2016, for Steve Maddox and on
August 10, 2016, for Samuel Maddox.
¶43. On December 7, 2016, the chancellor held a hearing to rule on the following orders
and motions: the special master’s report; the Maddoxes’ objection to the report; the
Sullivans’ response to the Maddoxes’ objection; the Sullivans’ motion to dismiss the
Maddoxes’ counterclaim; the Maddoxes’ response to the Sullivans’ motion to dismiss; the
Sullivans’ motion to set aside and vacate the order for substitution of party; and the
Maddoxes’ response to the Sullivans’ motion to set aside the order. From the bench, the
chancellor ruled that he ratified, affirmed, and adopted “all prior orders, decrees, rulings, and
judgments” that were entered before the matter was transferred to him.
¶44. On February 23, 2017, the chancellor memorialized his bench rulings in an order. The
order provided that the chancellor was “adopt[ing] and ratif[ying]” the report of the special
master and making it the final judgment of the chancellor. The chancellor held that the
Maddoxes “shall have no easement,” and dismissed the Maddoxes’ counterclaim with
prejudice. The chancellor assessed the costs for the special master, which amounted to
$3,547.50, against the estates of both Steve and Samuel Maddox jointly and severally. The
chancellor denied the Sullivans’ request for attorney’s fees, as well as the Sullivans’ motion
16
to set aside and vacate the order allowing Samuel Maddox’s estate to be substituted as a
party. The chancellor further stated that “All prior [o]rders, [d]ecrees, [r]ulings[,] and
[j]udgments filed in this cause are hereby ratified and affirmed by this [c]ourt.”
¶45. On March 22, 2017, the Sullivans filed their notice of appeal of the chancellor’s
February 23, 2017 final judgment as well as the October 8, 2013 judgment denying the
Sullivans’ motion to dismiss or alternatively for a continuance of the hearing and assessment
of monetary sanctions. On March 29, 2017, the Maddoxes filed their notice of cross-appeal,
asserting as error several sections of the February 23, 2017 final judgment: (1) paragraph
two, where the chancellor adopted and ratified the report of the special master; (2) the
chancellor’s finding that the Maddoxes shall have no easement across the Sullivans’
property; (3) the denial of the Maddoxes’ counterclaim; (4) the chancellor’s assessment of
the special master’s costs to the Maddoxes; and (5) the finding that “the report of the special
master is hereby adopted and ratified by this [c]ourt and made the final judgment of the
[c]ourt.”
DISCUSSION
I. April 10, 2013 Judgment Dismissing Complaint and Awarding
Sanctions
¶46. We review a chancellor’s Rule 41(b) dismissal for failure to prosecute for an abuse
of discretion. Cox v. Cox, 976 So. 2d 869, 874 (¶11) (Miss. 2008).
A. Notice
¶47. The Sullivans argue that they failed to receive notice that they were at risk of having
their complaint dismissed pursuant to Rule 41(b). The Sullivans maintain that the
17
chancellor’s April 10, 2013 judgment dismissing their complaint was entered “in utter
disregard” to the Sullivans’ right to reasonable advance notice and their opportunity to be
heard. The Sullivans argue that the lack of notice and opportunity to be heard prior to
dismissing the complaint violated their federal and state procedural due process rights. The
Sullivans also argue that the Maddoxes never filed a Rule 41(b) motion to dismiss the
complaint and that as a result, the chancellor erred in dismissing the complaint sua sponte.
¶48. In support of their argument, the Sullivans cite to Holly v. Harrah’s Tunica Corp., 962
So. 2d 136, 140 (¶21) (Miss. Ct. App. 2007), where this Court reversed a dismissal under
Rule 4l(b) after finding that the plaintiffs were denied sufficient notice of the defendants’
motion and an opportunity to respond prior to the circuit court’s ruling. However, Holly is
distinguishable from the present action. In Holly, the defendants filed the motion to dismiss
the plaintiff’s complaint; in the case before us, the chancellor dismissed the complaint sua
sponte. Id.
¶49. “The power to dismiss for failure to prosecute can be exercised sua sponte where a
motion by a party is lacking.” Miss. Dep’t of Human Servs. v. Guidry, 830 So. 2d 628, 631
(¶10) (Miss. 2002). In Guidry, the supreme court addressed the issue of whether notice is
required before a trial court’s entry of an involuntary dismissal:
The [United States] Supreme Court . . . discussed the fundamental due process
requirements of being heard and of notice being given of such a dismissal.
Link [v. Wabash R.R. Co.], 370 U.S. [626,] 632 [(1962)]. The Court stated that
every order entered without notice given did not violate due process. Id. “The
adequacy of notice and hearing respecting proceedings that may affect a
party’s rights turns, to a considerable extent, on the knowledge which the
circumstances show such party may be taken to have of the consequences of
his own conduct.” Id. The Court also found “when circumstances make such
18
action appropriate, a District Court may dismiss a complaint for failure to
prosecute even without affording notice of its intention to do so or providing
an adversary hearing before acting.”
Guidry, 830 So. 2d at 632 (¶11).
¶50. We therefore find that the chancellor’s judgment dismissing the Sullivans’ complaint
without notice to the Sullivans “did not violate due process.” Id.
B. Dismissal
¶51. The Sullivans next assert that the chancellor was not authorized to dismiss their
complaint and grant sanctions pursuant to Rule 41(b). The Sullivans argue that although the
chancellor dismissed their complaint based on the failure to prosecute prong of Rule 41(b),
the record reflects that they prosecuted their case to trial on May 4, 2011, to the point where
they had completed presenting their evidence and rested. The case was then continued. The
Sullivans quote Wallace v. Jones, 572 So. 2d 371, 376 (Miss. 1990), in support of their
argument that “the case had come to trial and there was no want of prosecution. Therefore,
the chancellor could not have dismissed this case under Rule 41(b) for [the Sullivans’] failure
to prosecute the case.” The Sullivans also maintain that the Maddoxes never filed a Rule
41(b) motion seeking dismissal of the complaint.
¶52. The Maddoxes, however, maintain that in their answer and counterclaim they
requested that the chancellor dismiss the complaint with prejudice. The Maddoxes also
assert that they requested sanctions in their joint response to the Sullivans’ 2013 motion for
recusal.
¶53. We recognize that “the law favors a trial of the issues on the merits,” and therefore
19
“a dismissal for lack of prosecution is employed reluctantly.” Holder v. Orange Grove Med.
Specialties, P.A., 54 So. 3d 192, 196 (¶16) (Miss. 2010) (quoting Miss. Dep’t of Human
Servs. v. Guidry, 830 So. 2d 628, 632 (¶13) (Miss. 2002)). Rule 41(b) allows defendants to
move for dismissal of any action based on the plaintiff’s failure to prosecute. Id. at 196-97
(¶17); M.R.C.P. 41(b). The supreme court has further held that “Rule 41(b) embodies the
tenet that ‘any court of law or equity may exercise the power to dismiss for want of
prosecution. This power, inherent to the courts, is necessary as a means to the orderly
expedition of justice and the court’s control of its own docket.’” Id. at 197 (¶17) (quoting
Hillman v. Weatherly, 14 So. 3d 721, 726 (¶17) (Miss. 2009)). “Unless otherwise specified
in its order, a dismissal under Rule 41(b) is an adjudication on the merits of the case and is
with prejudice.” Hensarling v. Holly, 972 So. 2d 716, 719 (¶7) (Miss. Ct. App. 2007).
¶54. Upon review of a Rule 41(b) dismissal, we consider “[w]hat constitutes failure to
prosecute . . . on a case-by-case basis.” Cox, 976 So. 2d at 874 (¶14). The supreme court has
provided considerations to be weighed in determining whether to affirm a Rule 41(b)
dismissal with prejudice: “(1) whether there was a clear record of delay or contumacious
conduct by the plaintiff; (2) whether lesser sanctions may have better served the interests of
justice; and (3) the existence of other aggravating factors.” Id. (internal quotation marks
omitted) (quoting AT&T v. Days Inn of Winona, 720 So. 2d 178, 181 (Miss.1998)).
¶55. We acknowledge that “[t]here is no set time limit on the prosecution of an action once
it has been filed . . . .” Holder, 54 So. 3d at 197 (¶17) (quoting Guidry, 830 So. 2d at 632).
“However, if the record shows that a plaintiff has been guilty of dilatory or contumacious
20
conduct, or has repeatedly disregarded the procedural directives of the court, such a dismissal
is likely to be upheld.” Hensarling, 972 So. 2d at 720 (¶8). “We also are mindful of the fact
that dismissal with prejudice is an extreme and harsh sanction that deprives a litigant of the
opportunity to pursue his claim, and any dismissals with prejudice are reserved for the most
egregious cases.” Holder, 54 So. 3d at 197 (¶17) (internal quotation marks omitted) (quoting
Hoffman v. Paracelsus Health Care Corp., 752 So. 2d 1030, 1034 (¶11) (Miss. 1999)).
¶56. In examining the first factor of whether a clear record of delay or contumacious
conduct by the plaintiff exists, the record reflects that in April 2010 the chancellor entered
an agreed order prohibiting the Maddoxes from entering the Sullivans’ property. The agreed
order stated: “[S]hould this matter not be resolved within [forty-five] days, this matter shall
be brought back before this [c]ourt for further action.” In his April 10, 2013 judgment, the
chancellor observed that the Sullivans filed their complaint on March 30, 2010 and they
“have not sought to prosecute their [c]omplaint since the one day of trial on May 4, 2011.”
Our review of the docket reflects the following filings made over a nearly two-year period
after the chancellor continued the May 4, 2011 trial:
May 19, 2011 The Maddoxes’ Motion for Designation of Expert Witness Out
of Time
May 19, 2011 Notice of Hearing on Motion to Allow Designation of Expert
Witness Out of Time
May 24, 2011 The Sullivans’ Response and Defenses to the Maddoxes’
Motion to Allow Designation of Expert Witnesses Out of Time
21
October 29, 2012 Letter from Stubbs to the Maddoxes’ attorney in response to the
email stating that the Maddoxes planned to ask the chancellor
on October 28, 2012, to set the matter for trial. Stubbs stated he
was not available on that date and that “this case does not need
to be set to complete trial” until after the Court of Appeals
renders its decision in Sullivan I.
November 2, 2012 Letter from Stubbs (recipient and subject matter not listed)
March 13, 2013 The Sullivans’ Motion for Recusal of Judge in This Case and in
All Other Cases
April 4, 2013 The Maddoxes’ Joint Response to the Sullivans’ Motion for
Recusal
¶57. These filings show no effort by the Sullivans to set the case for trial after May 4, 2011,
when it was continued. In October 2012, Stubbs wrote an email to the Maddoxes’ attorney
(in response to their email informing him that they intended to set the matter for trial),
informing counsel that he was unavailable and that “this case does not need to be set to
complete trial” until after the Court of Appeals renders its decision in Sullivan I. However,
the record contains no order from the chancellor or motion to stay the proceedings until the
Court of Appeals entered a decision in Sullivan I.
¶58. Turning to the second factor of whether the chancellor considered lesser sanctions,
we recognize that “[l]esser sanctions include fines, costs, or damages against plaintiff or his
counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice,
and explicit warnings.” Cox, 976 So. 2d at 876 (¶24) (internal quotation marks omitted).
Where the record shows no indication that the chancellor considered any alternative
sanctions, “[t]his Court is less likely to uphold a Rule 41(b) dismissal.” Id.
¶59. The chancellor’s April 10, 2013 judgment clearly reflects that he did in fact consider
22
lesser sanctions. The chancellor stated that he also considered the Sullivans’ and Stubb’s
prior attack on the chancellor’s integrity by making allegations of improper campaign
donations and the allegations of impartiality in Sullivan I. The chancellor recalled that
Sullivan’s attack in Sullivan I resulted in sanctions in the amount of $42,922.91, which this
Court affirmed on appeal. The chancellor found that despite these sanctions, the Sullivans
and Stubbs “continue[d] their dilatory conduct, delay, contumacious conduct and the
preparing and procurement of affidavits all in an effort to embarrass and attack the integrity
of the [c]ourt.” The chancellor determined that a monetary sanction in the present matter
would therefore be insufficient. Our review of the record shows that lesser sanctions were
considered and rejected. Cox, 976 So. 2d at 876 (¶25).
¶60. In reviewing whether aggravating factors existed, we acknowledge that aggravating
factors include “the extent to which the plaintiff, as distinguished from his counsel, was
personally responsible for the delay, the degree of actual prejudice to the defendant, and
whether the delay was the result of intentional conduct.” Id. at (¶27) (quoting AT&T, 720 So.
2d at 181 (¶13)). While not required, a finding of aggravated factors “strengthens the case
for dismissal under Rule 41(b).” Id. In the present case, the chancellor found that the
Sullivans intentionally tried to delay the case from moving forward. In his April 10, 2013
judgment, the chancellor stated that when the Maddoxes informed Stubbs that they intended
to put the case on the docket in October 2012, “the [Sullivans] objected. Instead of moving
the case, doing anything with the case, it turned into well, let’s get rid of the judge,” referring
to the Sullivans’ 2013 motion to recuse.
23
¶61. After reviewing the record, we find that the chancellor did not abuse his discretion by
dismissing the complaint and imposing monetary sanctions.
C. Impermissible Sanction Enhancers
¶62. The Sullivans assert that the chancellor used impermissible sanction enhancers in
determining to dismiss their complaint. In their appellate brief, the Sullivans make several
arguments in support of this claim. In so doing, the Sullivans delve into various explanations
and arguments as to why they initiated and prosecuted the action in Sullivan I. On appeal of
Sullivan I, this Court affirmed the chancellor’s grant of summary judgment dismissing the
claims of all parties with prejudice. Sullivan I, 122 So. 3d at 82 (¶22). This Court also
affirmed the chancellor’s denial of Dempsey Sullivan’s motion to recuse and the chancellor’s
findings that the motion to recuse was made for the purposes of harassment and delay. Id.
at 84, 85 (¶¶28, 33). Any further arguments as to the merits of Sullivan I should have been
made in a motion for rehearing. Accordingly, we decline to entertain these arguments in the
present appeal.
¶63. We will, however, briefly address the Sullivans’ argument regarding their motion for
recusal. The Sullivans maintain that their March 2013 motion for recusal was made in good
faith and rested on new grounds and evidence not available at the time of their 2011 motion
and that, as a result, the chancellor erred in enhancing the Sullivans’ sanctions based on the
chancellor’s finding that the 2013 motion was impermissibly repetitious. The Sullivans
further maintain that on appeal in Sullivan I, this Court ruled that the 2011 motion was
procedurally deficient. The Sullivans state that the 2013 motion contains the requisite
24
affidavits.
¶64. As stated, on April 12, 2011, the Sullivans filed motions for recusal of the chancellor
in both Sullivan I and Sullivan II. Both motions made identical allegations of a lack of
impartiality. In Sullivan I, this Court affirmed the chancellor’s finding that Dempsey
Sullivan’s complaint and April 2011 motion for recusal constituted frivolous filings made
for the purposes of harassment and delay. Sullivan I, 122 So. 3d at 85 (¶33).
¶65. In the present matter, in the chancellor’s April 10, 2013 judgment, he discussed the
Sullivans’ 2013 motion to recuse, as well as the affidavits and bar complaint attached to the
motion. After his review, the chancellor found that the attached documents failed to
“evidence any bias or partiality of this [c]ourt” and produced “no evidence of this [c]ourt
having any involvement in or knowledge of” improper campaign donations or other improper
conduct. Like the 2011 motion, the chancellor determined that the 2013 motion was also a
frivolous pleading made for the purpose of harassment and delay without substantial
justification and showed disrespect for the integrity of the court. As stated, the chancellor
also found that despite the sanctions issued in Sullivan I, the Sullivans and Stubbs
“continue[d] their dilatory conduct, delay, contumacious conduct and the preparing and
procurement of affidavits all in an effort to embarrass and attack the integrity of the [c]ourt.”
The chancellor determined that a monetary sanction in the present matter would therefore be
insufficient.
¶66. We find that the chancellor was within his discretion to consider the 2011 motion for
recusal and previously existing information when assessing sanctions.
25
II. February 23, 2017 Final Judgment
¶67. The Sullivans argue that the chancellor should have adopted the special master’s
report in full and not included additional language outside of the report—specifically,
language affirming and ratifying prior orders of the court. The Sullivans maintain that in an
order entered November 21, 2014, the chancellor transferred the entire action to the special
master, not just part of the action. The Sullivans also assert that the special master’s report
addressed the entire action.
¶68. “We will not disturb a chancellor’s factual findings when supported by substantial
evidence unless the chancellor abused his discretion, was manifestly wrong, clearly
erroneous, or applied an erroneous legal standard.” Deans v. McColumn, 184 So. 3d 972,
975 (¶13) (Miss. Ct. App. 2015) (quoting Venture Sales LLC v. Perkins, 86 So. 3d 910, 913
(¶11) (Miss. 2012)).
¶69. Mississippi Rule Civil Procedure 53 allows the court to appoint a special master to
hear matters. Subsection (d) of this rule provides, in pertinent part, as follows:
The order of reference to the master may specify or limit his powers and may
direct him to report only upon particular issues or to do or perform particular
acts or to receive and report evidence only and may fix the time and place for
beginning and closing the hearing and for the filing of the master report.
Subject to the specifications and limitations stated in the order, the master has
and shall exercise the power to regulate all proceedings in every hearing before
him and to do all acts and take all measures necessary or proper for the
efficient performance of his duties under the order.
M.R.C.P. 53(d). Rule 53(g)(2) states that “[t]he court shall accept the master’s findings of
fact unless manifestly wrong.” We further recognize that “a master’s report has no effect
until it is either accepted or rejected by the chancellor.” In re J.W., 220 So. 3d 202, 203 (¶5)
26
(Miss. Ct. App. 2017).
¶70. As stated previously, in the present case, the chancellor’s full November 21, 2014
order appointing the special master does not appear before us—the record contains only the
first two pages of the order. In the order, the chancellor discussed the procedural history of
Sullivan II, including the Sullivans’ complaint and the Maddoxes’ counterclaim, and found
that “the above matters constitute exceptional conditions which require this [c]ourt to
consider the use of a Special Master so that this . . .”; the sentence is incomplete because the
remainder of the order does not appear in the record before us. The partial order seems to
transfer the entire matter to the special master; however, the special master’s report clearly
states that his only role was to determine whether the Maddoxes possessed an easement.
Additionally, a review of the special master’s report reflects that all of the claims in the
present action were not resolved by the special master’s report. At the December 7, 2016
hearing, the chancellor held a hearing to rule on the special master’s report, as well as the
following orders and motions not addressed in the report: the Maddoxes’ objection to the
special master’s report;8 the Sullivans’ response to the Maddoxes’ objection; the Sullivans’
8
Rule 53(g)(2) provides that a party objecting to the special master’s report must
serve their written objections within ten days of the filing of the report. The Maddoxes filed
a timely objection to the findings in the special master’s report, but the Sullivans did not file
a written objection. In Cuevas v. Kellum, 12 So. 3d 1154, 1159 (¶21) (Miss. Ct. App. 2009),
this Court held that a party “waived her objections to the findings when she failed to timely
object within ten days as required under Mississippi Rules of Civil Procedure 53(g)(2).”
However, in Davison v. Mississippi Dep’t of Human Servs., 938 So. 2d 912 (Miss. Ct. App.
2006), this Court held that although a party “failed to serve a written objection to the master
report within ten days . . . [,] a master report has no effect until it is either accepted or
rejected by the chancellor.” Id. at 914-15 (¶5) (citing Evans v. Davis, 401 So. 2d 1096, 1099
(Miss. 1981). The Davison court explained that “[e]ven if [the objecting party] never filed
a written objection or notice of appeal, the chancellor was still required to determine whether
27
motion to dismiss the Maddoxes’ counterclaim; the Maddoxes’ response to the Sullivans’
motion to dismiss; the Sullivans’ motion to set aside and vacate the order for substitution of
party; and the Maddoxes’ response to the Sullivans’ motion to set aside the order. The
chancellor’s February 23, 2017 final judgment memorializes the rulings on these additional
motions and orders.
¶71. We find that the Sullivans were incorrect in their belief that the special master’s report
addressed all of the claims between all of the parties. The chancellor also possessed the
authority to accept or reject the special master’s report. The chancellor was therefore within
his discretion to ratify and affirm the prior orders and judgments of the court.
III. Estate of Samuel Maddox
¶72. The Sullivans next argue that the suggestions of death for both Steve and Samuel
Maddox terminated their claims in the matter, including their award of sanctions against the
Sullivans. The Sullivans assert that sanctions cannot be assigned to heirs. The Sullivans also
maintain that the Estate of Samuel Maddox was improperly substituted as a party because
Mississippi Rule of Civil Procedure 25 does not allow for an extension of time to substitute
a party.
¶73. Rule 25 provides that upon the death of one party, a “motion for substitution” must
be made “within ninety days after the death is suggested” or “the action shall be dismissed
without prejudice.” Burch v. Illinois Cent. R.R. Co., 136 So. 3d 1063, 1066 (¶8) (Miss. 2014)
(quoting Miss. R. Civ. P. 25(a)(1)). The comment to Rule 25(a)(1) states that “[t]he general
to accept or reject the master report.” Id.28
provisions of [Mississippi Rule of Civil Procedure] 6(b) apply to motions to substitute;
accordingly, the court may extend the period for substitution if timely requested.” M.R.C.P.
25(a)(1) advisory committee notes; see Burch, 136 So. 3d at 1067 (¶8). The ninety-day
period commences upon “a statement of the fact of the death that is served on parties in the
suit under Rule 5 and on non-parties under Rule 4.” Keller v. Bennett, 103 So. 3d 747, 750
(¶10) (Miss. Ct. App. 2012) (internal quotation marks omitted).
¶74. On May 12, 2016, Sullivan and Stubbs filed a suggestion of death stating that Samuel
Maddox died on May 11, 2016. Eighty-eight days later, on August 8, 2016, Samuel Jr. filed
an entry of appearance and a motion for extension of time for substitution. In his motion,
Samuel Jr. asserted that the Sullivans failed to properly serve the suggestion of death.
Samuel Jr. requested that the chancellor allow for an additional ninety days “for the person
qualifying to serve as executor by court appointment to be substituted in that capacity for
Samuel Maddox in this action.” On October 19, 2016, Judge Gerald Martin entered an order
allowing the substitution of Samuel Maddox’s estate as a party. The order recognized that
Samuel Jr. had been appointed as executor of Samuel Maddox’s estate.
¶75. Our review shows that Samuel Jr. timely petitioned the court for an extension to file
a substitution of parties. The chancellor allowed the extension, and the chancellor later
entered an order substituting Samuel’s estate as a party.
¶76. Regarding the Sullivans’ claims that the Maddoxes’ deaths terminated their claims in
the matter and that sanctions cannot be assigned to heirs, Mississippi Code Annotated section
91-7-233 states that “[e]xecutors . . . may commence and prosecute any personal action
29
whatever, at law or in equity, which the testator or intestate might have commenced and
prosecuted.” “The term ‘personal action’ as used in [this section] means an action for
recovery of personal property, for breach of contract, or for injury to person or property.”
In re Estate of Beckley, 961 So. 2d 707, 710 (¶5) (Miss. 2007).
¶77. In Beckley, 961 So. 2d at 711 (¶5), the supreme court stated that “actions to recover
personal property, to enforce a contract, or to recover damages for breach of contract or for
injury to person or property survive the death of the decedent.” In that case, the supreme
court held that “[u]pon the executor’s substitution as party-plaintiff, the executor effectively
stepped into the shoes of [the plaintiff] in prosecuting the action pursuant to [section]
91-7-237.” Id. The supreme court determined that the estate “could then recover the funds
that [the decedent] might have recovered had he lived to final judgment.” Id.
¶78. We find no abuse of discretion by the chancellor in allowing substitution of the Estate
of Samuel Maddox as a party.
¶79. As stated, in the chancellor’s September 17, 2013 hearing on sanctions, he ordered
Stubbs to pay $19,617.32 to Steve Maddox and Samuel Maddox as reimbursement for
attorney’s fees and expenses. No party was ever substituted upon Steve Maddox’s death.
Rule 25(a)(1), which governs the substitution of parties, states: “The action shall be
dismissed without prejudice as to the deceased party if the motion for substitution is not
made within ninety days after the death is suggested upon the record by service of a
statement of the fact of the death as herein provided for the service of the motion.” It does
not appear that the chancellor ever dismissed the action as to Steve Maddox. We therefore
30
reverse the chancellor’s award of attorney’s fees and expenses and remand to the chancellor
with instructions to: (1) dismiss the action without prejudice as to Steve Maddox pursuant
to Rule 25(a)(1) and then (2) reassess the distribution of the award of attorneys’ fees and
expenses to the remaining party.
IV. Cross-Appeal
¶80. On cross-appeal, the Maddoxes argue that the special master erred in determining that
they did not have a valid easement across the Sullivans’ property. The Maddoxes assert that
they in fact possessed two easements: an easement of record and an easement by
implication.9
¶81. As stated, “[w]e will not disturb a chancellor factual findings when supported by
substantial evidence unless the chancellor abused his discretion, was manifestly wrong,
clearly erroneous, or applied an erroneous legal standard.” Deans, 184 So. 3d at 975 (¶13)
(quoting Venture Sales LLC, 86 So. 3d at 913 (¶11)). “We review questions of law de novo.”
Hardy v. Hardy, 241 So. 3d 636, 638 (¶5) (Miss. Ct. App. 2018).
¶82. As stated above, the special master issued a report, finding that Collier was granted
an easement from a public road to certain land she owned, which did not front a public road.
The special master stated that this easement constituted an easement appurtenant that ran
with the land owned by Collier and was for the purpose of ingress, egress, and regress. In
1987, the Sullivans purchased land from Collier that adjoined the land on which the easement
9
In the proceedings below and on appeal, the Maddoxes use the terms “easement by
implication” and “easement by implied grant” interchangeably. For the purposes of
continuity, we will use the term “easement by implication.”
31
was given. Collier maintained ownership of a pie-shaped portion of land. The special master
determined that Collier did not reserve an easement over the land she sold to the Sullivans
for access to the pie-shaped portion of land she still owned. The special master found that
“[w]ith the 1987 purchase, the Sullivans then became the owners of the easement since by
the easement’s very terms, the easement belonged to the land, not to . . . Collier personally.”
¶83. By other conveyances over time, the Sullivans acquired the land through which the
1981 easement was given. The special master concluded that when the Sullivans “owned
both the land on which the easement was given and the adjacent land for which the easement
was given, the easement merged into the land on which the easement was given and,
therefore, the 1981 easement no longer existed.”
¶84. In 1994, Collier sold the Maddoxes the remaining portion of the land for which the
easement was given and purported to transfer the easement itself. The special master found
that “[w]hile the Maddoxes’ pie-shaped piece of land is adjacent to other lands they own and
lands the [Sullivans] own, it is not adjacent to lands on which the 1981 easement was located.
In fact, it is about 900 feet away.”
¶85. Our review of the record confirms that the Sullivans and Maddoxes purchased their
land from a common source. The special master stated that when the Maddoxes purchased
their property from Collier, “they knew, or should have known, that they would only have
access to the lot through the adjoining land they owned and not the Sullivans[’] land.” The
special master determined that if the Maddoxes had purchased the property before the
Sullivans purchased the land between the pie-shaped portion and the land over which the
32
easement was granted, they could have possibly obtained an easement by implication, but
because they purchased the land after the Sullivans, the Maddoxes did not obtain an easement
by implication.
¶86. On cross-appeal, the Maddoxes claim they have an easement to access their property
across the Sullivans’ property by way of the 1981 easement and an additional easement. The
Maddoxes specifically claim that the 1981 easement is valid, that it did not terminate, and
that they have an easement by implied grant.
A. Easement of Record
¶87. The 1981 easement created an easement to Collier’s property described in the
easement, but to no other property. The easement, by its terms, ran with the land, and when
the Sullivans obtained both the land on which the easement was granted and all the land
adjoining the easement which the easement served, the easement merged and no longer
existed. The special master advised that the Maddoxes “may file an action in the appropriate
Court against the Sullivans and their other neighbors to attempt to establish an easement for
necessity if they think that such need exists.”
¶88. The Maddoxes claim the 1981 easement is valid in that it comports with the rules for
instruments conveying an interest in land, complies with the Statute of Frauds, was properly
acknowledged and recorded, was granted upon the receipt of valuable consideration, and the
description of the easement is sufficient. Second, the Maddoxes claim that the finding that
the easement “no longer existed because of merger is in error because it fails to recognize
that there was not a complete merger of the dominant and servient estates.” They cite Taylor
33
v. Hays, 551 So. 2d 906 (Miss. 1989). In that case, the supreme court addressed whether the
trial court properly removed an access easement. Id. at 907-08. The easement at issue was
not written or recorded. Id. at 908. The supreme court stated that “[t]he type of easement
in existence has been named an easement by implication in some cases and in other cases an
easement by necessity. We think that, here, we are confronted with an easement by necessity,
arising by implication.” Id. The Taylor court “set forth the general rule that an easement
by necessity arises by implied grant when a part of a commonly-owned tract of land is
severed in such a way that either portion of the property has been rendered inaccessible
except by passing over the other portion or by trespassing on the lands of another.” Id. The
Taylor court further stated that “easements or rights-of-way by necessity exist only so long
as the necessity exists and the easement by necessity terminates when other access to the
land-locked property becomes available.” Id. This rule might be distinguishable from
easements that are written and recorded. However, the supreme court quoted a case from the
Connecticut Supreme Court:
It is a fallacy to suppose that a right of way of necessity is a permanent right,
and the way a permanent way, attached to the land itself, whatever may be its
relative condition, and which may be conveyed by deed, irrespective of the
continuing necessity of the grantee. . . . It is a principle true from the very
nature of the case, and as such is recognized by all the authorities, that a way
of necessity, whether it originates in the necessity of the party claiming it, or
from the operation of deeds furnishing evidence of the intent of the parties,
where a necessity exists, is limited by the necessity which creates it, and is
suspended or destroyed, whenever such necessity ceases.
Id. at 909 (citing Pierce v. Selleck, 18 Conn. 321, 329 (1847)).
¶89. The Maddoxes also rely on Will v. Gates, 680 N.E.2d 1197, 1200 (N.Y. 1997), for the
34
proposition that “[a]n easement is not extinguished under the doctrine of merger by the
acquisition by the owner of the dominant or servient estate to title to only a fractional part
of the other estate.” Id. at 1200. Will v. Gates involved a right-of-way that abutted properties
of all the parties. Id. at 1198. The Maddoxes claim that they have a dominant estate with
access to the easement despite the fact that, as determined by the special master, their
property is about 900 feet away from the easement. It is not clear from Will that a dominant
estate could be divided and subdivided with each retaining rights to the easement even if
such divided estates are separated from the easement.
¶90. In the present case, the record shows that Collier sold the land on which the 1981
easement existed to the Sullivans. Several years later, the Maddoxes purchased the pie-
shaped portion. The land was no longer commonly owned. The special master also found
that Collier’s land did not originally abut or front the public road. The 1981 easement did
not connect to the pie-shaped portion. The special master stated that when the Maddoxes
purchased their property from Collier, “they knew, or should have known, that they would
only have access to the lot through the adjoining land they owned and not the Sullivans[’]
land.” We accordingly find that the Maddoxes did not possess an easement of record.
B. Easement by Implication
¶91. The Maddoxes also claim that when Collier conveyed part of the dominant estate to
Sullivan, she retained an easement by implication to the property she retained and that
“[w]ith the Okatoma River to the West and otherwise being landlocked, this easement by
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[implication] was necessary at the time of the initial severance and remains necessary.”10
¶92. This Court has held that “[a]n ‘easement by necessity’ and an ‘implied easement’ are
the same.” Hardy v. Hardy, 241 So. 3d 636, 638 (¶7) (Miss. Ct. App. 2018) (quoting King
v. Gale, 166 So. 3d 589, 594 (¶25) (Miss. Ct. App. 2015)); see also Taylor v. Hays, 551 So.
2d 906, 908 (Miss. 1989) (recognizing that “an easement by necessity arises by implied grant
when a part of a commonly-owned tract of land is severed in such a way that either portion
of the property has been rendered inaccessible except by passing over the other portion or by
trespassing on the lands of another”)). “A claimant seeking an easement by necessity has the
burden of proof and must establish that he is entitled to a right of way across another’s land.”
Id. (quoting Davidson v. Collins, 195 So. 3d 825, 827 (¶11) (Miss. Ct. App. 2015)). To
establish an easement by necessity, a claimant is required to prove that “(1) the easement is
necessary; (2) the dominant and servient estates were once part of a commonly owned parcel;
(3) the implicit right-of-way arose at the time of severance from the common owner.” Id.“To satisfy this burden, the claimants must show strict necessity; that they possess no other
means of access to their property.” Id. (quoting Haik v. Gammill, 122 So. 3d 771, 778 (¶26)
(Miss. Ct. App. 2013)).
¶93. In the case before us, as in Hardy, “[i]t is undisputed that the parties to this appeal
hold land derived from a once commonly owned . . . parcel.” Id. at (¶8). As to the factor of
whether the implicit right-of-way arose at the time of severance from the common owner, the
Maddoxes maintain that they acquired Collier’s easement by implication for ingress and
10
In their answer and counterclaim, the Maddoxes claim that they have an easement
by necessity and an easement by implication.
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egress from the pie-shaped portion of the estate she later sold to the Maddoxes to the parcel
of land that is the subject of the 1981 easement and which provides access to the public road.
The special master determined that the parcel of land on which the Maddoxes maintain they
have an easement by implication measures approximately 900 feet. However, the special
master determined that Collier did not reserve an easement on this 900 feet for access to from
the pie-shaped portion of land she still owned to the subject of the 1981 easement.
¶94. As to whether the easement is necessary, the special master stated that the Maddoxes
“only have access to the [pie-shaped portion they purchased from Collier] through the
adjoining land they owned and not the Sullivans.” The Maddoxes assert that the Okatoma
River lies to the west of their property, and therefore the easement by implication is
necessary to afford Collier, and now the Maddoxes, with access to the 1981 easement, which
then provides access to and from the public road. The Sullivans argue that “[f]urther proof
shows that the Maddoxes have not one but two other routes to enter their property”; however,
they provide no record citation for this claim, and we find nothing in the record to support
the claim.
¶95. Although the special master concluded that the Maddoxes did not have an easement
of record or an easement by implication, he advised that the Maddoxes “may file an action
in the appropriate [c]ourt against the Sullivans and their other neighbors to attempt to
establish an easement for necessity if they think that such need exists.”
¶96. After our review, we find no easement of necessity exists. In Hardy, the land was still
all commonly owned, and no land separated the tracts owned by the brothers. Here, the land
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with the easement was no longer commonly owned when the Maddoxes bought their pie-
shaped portion. The record and the special master’s report reflect that the Maddoxes can
access the pie-shaped portion from the other land they own. As stated, the chancellor
adopted and ratified the special master’s report in his final judgment. We find the chancellor
did not abuse his discretion in finding that the Maddoxes did not possess an easement of
record or an easement by implication across the Sullivans’ property and in dismissing the
Maddoxes’ counterclaim with prejudice.
CONCLUSION
¶97. We affirm the following the chancellor’s dismissal of the Sullivans’ complaint with
prejudice; the chancellor’s award of sanctions; the chancellor’s judgment ratifying and
affirming all prior orders of the chancery court; the chancellor’s order substituting the Estate
of Samuel Maddox as a party; and the chancellor’s judgment finding that the Maddoxes did
not have an easement of record or an easement by implication across the Sullivans’ property.
However, we reverse the chancellor’s award of attorney’s fees to Steve Maddox and Samuel
Maddox, which the chancellor issued as sanctions against Stubbs, and we remand this issue
to the chancellor with instructions to: (1) dismiss the present action without prejudice as to
Steve Maddox pursuant to Rule 25(a)(1) and (2) and then reassess the distribution of the
award of attorney’s fees and expenses to the remaining party.
¶98. ON DIRECT APPEAL: AFFIRMED IN PART; REVERSED AND
REMANDED IN PART. ON CROSS-APPEAL: AFFIRMED.
BARNES, C.J., WESTBROOKS, TINDELL AND LAWRENCE, JJ., CONCUR.
GREENLEE, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION,
JOINED BY TINDELL AND LAWRENCE, JJ.; McCARTY, J., JOINS IN PART.
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J. WILSON, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT
SEPARATE WRITTEN OPINION. McDONALD, J., CONCURS IN PART AND
DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. McCARTY, J.,
CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN
OPINION, JOINED BY McDONALD, J. C. WILSON, J., NOT PARTICIPATING.
GREENLEE, J., SPECIALLY CONCURRING:
¶99. Because of our limited standard of review, I am compelled to concur with the
majority. Although part of the attorney’s fees in this case was awarded to the Maddoxes for
the cost of defending the complaint, it appears some attorney’s fees were also awarded for
the cost of the counter-complaint even though the counter-complaint was unsuccessful. The
chancellor ultimately denied the Maddoxes’ request for an easement—the object of their
unsuccessful counter-claim. The amount and reasonableness of attorney’s fees, however,
was not challenged on appeal. Nor was Exhibit 1 (which detailed the attorney’s fees)
included in the record on appeal. Only the appropriateness of the chancellor’s award of
attorney’s fees as a sanction is before this Court, not the propriety of fixing the amount so
ordered. I therefore specially concur.
TINDELL AND LAWRENCE, JJ., JOIN THIS OPINION. McCARTY, J.,
JOINS THIS OPINION IN PART.
McCARTY, J., CONCURRING IN PART AND DISSENTING IN PART:
¶100. Everyone deserves zealous counsel, and no one deserves the burden of vexatious
litigation. The boundary between these lands is not always distinct. Combined with the prior
iteration of this long-running fistfight in Sullivan I, the majority allows a sanction against the
lawyer totaling $62,540.23. Because I see the lawyer’s action as one of zealous service to
his client, I cannot agree to the imposition of this amount, or the use of prior conduct
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resulting in sanctions as a basis for further sanction.
¶101. The Preamble to our Rules of Professional Conduct tells how “[a]s advocate, a lawyer
zealously asserts the client’s position under the rules of the adversary system.” Our
Mississippi Rules of Civil Procedure were established “to secure the just, speedy, and
inexpensive determination of every action.” M.R.C.P. 1. Mississippi Rule of Civil
Procedure 11 puts teeth to these lofty ideals, so that when a litigant has interfered with our
ordered system of justice they may be sanctioned—not must be sanctioned, but “the court
may order” sanctions. M.R.C.P. 11(b). The Advisory Committee Notes to Rule 11 explain
“[t]he final sentence of Rule 11(b) is intended to ensure that the trial court has sufficient
power to deal forcefully and effectively with parties or attorneys who may misuse the liberal,
notice pleadings system effectuated by these rules.” So we have rules, but they may at times
be in tension with a lawyer’s duty to be zealous on behalf of a client.
¶102. In Sullivan I, the lawyer in this case was hammered for not attaching an affidavit
supporting a request for recusal. Sullivan v. Maddox, 122 So. 3d 75, 83 (¶26) (Miss. Ct. App.
2013). We were blunt: “Sullivan has provided no explanation on appeal for this defect in the
record.” Id. This omission was a significant portion of our decision, resting on a finding
“that Sullivan failed to present evidence in support of his motion for recusal raising a
question as to the chancellor’s impartiality,” properly construed as a total failure of proof.
Id. at 84 (¶27).
¶103. The trial court had determined sanctions were appropriate in part because of the
motion to recuse, one of four bases claimed for sanction. Id. On appeal, the Court affirmed,
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finding “no abuse of discretion in the chancellor’s finding that Sullivan’s complaint and
motion for recusal constituted frivolous filings made for the purposes of harassment and
delay.” Id. at 85 (¶33).
¶104. After that decision—and after paying over $42,000 levied as a sanction—the lawyer
then filed a new motion to recuse. This one did have affidavits and supporting proof. In fact,
the motion to recuse had seven affidavits from seven different people, a copy of a campaign
contribution, and an expenditure list from the trial court’s recent campaign. Having learned
from this Court’s pronouncement in Sullivan I, the lawyer appears to have followed the rule
with gusto.
¶105. It is clear the trial court did not like what was in the affidavits and did not like that the
request to recuse was resumed. This is where that wandering line between zealousness and
vexation must be pinned to a map. The trial court ruled that this was a continuing example
of delay and harassment, which was in line with the lawyer’s prior sanctioned actions.
¶106. It seems to me to be quite different. We should remember that to be zealous means
to embrace the wildness of advocacy and belief. I do not quibble with the trial court’s denial
of the request to recuse but rather the refusal to recognize that the lawyer was striking a blow
out of passion. The decision was also made based on the rule requiring affidavits in support
of a motion to recuse.
¶107. The lawyer paid the sanction fee the first time. The point was made, and we do not
need to make it again. I would affirm but reverse the sanction, setting the mark on this map
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within the land of zeal.
McDONALD, J., JOINS THIS OPINION.
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