Willie Brown v. Blue Cane Cowart Tippo Water Association,Inc.

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2018-CA-00242-COA
WILLIE BROWN AND CAROLYN TALLEY BROWN APPELLANTS
v.
BLUE CANE COWART TIPPO WATER ASSOCIATION INC.,
AND ITS BOARD MEMBERS, JOSEPH WILSON, PRESIDENT,
PAMUELA HENDERSON, VICE PRESIDENT, LULA BRADLEY,
TREASURER, AND DON DAVIS APPELLEES
DATE OF JUDGMENT: 12/18/2017
TRIAL JUDGE: HON. CATHERINE FARRIS-CARTER
COURT FROM WHICH APPEALED: TALLAHATCHIE COUNTY CHANCERY
COURT, SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANTS: AZKI SHAH
ATTORNEY FOR APPELLEES: MELVIN DAVID MILLER II
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: AFFIRMED - 06/04/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE J. WILSON, P.J., GREENLEE AND McDONALD, JJ.
McDONALD J., FOR THE COURT:
¶1. This appeal arises from a dispute between Willie and Carolyn Brown (the “Browns”)
and Blue Cane Cowart Tippo Water Association and its board members (“Blue Cane”)
concerning termination of the Browns’ water services. The Browns filed an action for
injunctive relief and damages in the Chancery Court of Tallahatchie County and now appeal
the court’s final judgment. From our review of the record and relevant case law, we find no
error and affirm that final judgment.
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FACTS AND PROCEDURAL HISTORY
¶2. The Browns own a private well and water system known as the Sharkey-Twilight
Well. At the time of this action, there were seven other households on this system. The
Browns were also connected to a second system, the Blue Cane water system, which services
approximately 440 households. Apparently the Browns were the only persons who were
simultaneously connected to both well systems. The Browns had a backflow prevention
device attached to their well to prevent contamination from one system to the other.
¶3. On March 7, 2017, the Browns received results of bacteria screening done on the
Sharkey-Twilight Well by the Mississippi Well Owner Network. It stated that coliform was
present, although no E-coli was found. On March 11, 2017, the Browns notified those
connected to the well, including Blue Cane, of the possible contamination and that they
would be shutting down the well for further tests.1
¶4. After receiving the March 11, 2017 notice from the Browns, Blue Cane notified the
Board of Health of the potential contamination. On March 20, 2017, Blue Cane had a letter
delivered to the Browns through a deputy sheriff notifying them that it needed access their
property to check the backflow prevention device. It also notified them that they were being
disconnected from the public system because of its fiduciary duty owed to the members of
1
On March 16, 2017, the results of more tests done by the Mississippi Well Owner
Network were sent to the Browns. This time, no bacteria was found. But the Browns never
provided Blue Cane with these results and only provided them to the court during mediation
in August.
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Blue Cane to maintain a healthy water supply. That evening the board president, Joe Wilson,
and a board director, Pam Henderson, went to the Browns’ property with the chemical
operator and law enforcement in order to test the water from the Sharkey-Twilight Well and
the backflow device. They waited for several hours but were denied access.
¶5. On March 21, 2017, Blue Cane personnel again were denied access to the Browns’
property and were told to contact the Browns’ attorney. That same day the Browns wrote to
Blue Cane and told it that any attempts to come onto their property would be viewed as
trespass. They also provided a copy of their prior year’s (May 2016) backflow-passing test
result that is required yearly and which had been previously supplied to Blue Cane. But they
still failed to inform Blue Cane of the more recent test results showing no contamination.
¶6. On March 22, 2017, Herman Saulsberry, the chemical operator took samples from
several locations in the Blue Cane system—the closest location being three miles from the
Browns.
¶7. On March 23, 2017, the health department issued a no-drink order that was
communicated to Blue Cane and Sharkey-Twilight customers through television and radio
notices. The health department also required a summary of events and plan of action from
Blue Cane, which Blue Cane sent on March 24, 2017. In that plan, Blue Cane noted that
because the Browns had refused access to the property, their continued connection to the
public system posed a threat. Blue Cane planned to bypass the Browns’ lines, which were
located on their private property, to cut the water off at the road.
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¶8. That same day, Blue Cane implemented its plan and dug outside the Browns’ fence
to be able to access the water line and disconnect it. Apparently, the Browns’ attorney
arrived and hand-delivered to the workers a letter saying that the Browns were giving them
free access to their property to do whatever inspections were needed.2 The workers
continued to dig where they had been told to access the line and ultimately turn off Blue
Cane’s water to the property. The Browns, who still had access to water from their own
Sharkey-Twilight Well, apparently shut it down altogether at the recommendation of their
attorney. When and why this was done was not clear. In any event, any damages to them
from lack of access to water were not caused solely by Blue Cane.
¶9. On the same day as the cut off, the Browns had their backflow device inspected. Mrs.
Brown brought the test results (dated March 24, 2017) to Blue Cane. But the alleged new
valve referenced in those results had the same serial number as the old one, causing Mr.
Wilson, the president of Blue Cane, to be suspicious. Blue Cane continued to press to
inspect the system itself.3
¶10. On March 24, 2017, the results of the tests of the Blue Cane system also came back
uncontaminated. Based on these test results, the health department lifted its no-use order.
2
If it existed, this letter was not placed into evidence. Counsel for the Browns
provided this information to the court.
3
In the meantime, as a result of the disruption in the water supply, a petition circulated
among members of Blue Cane that was signed by persons who agreed with the removal of
the Browns from membership. A board member and three other members took the petition
to the Blue Cane office. Approximately 114 people signed the petition.
4
¶11. Because it could not test the Browns’ system and because it could not verify the recent
report concerning the maintenance on the backflow device, at a regular meeting of the board
of directors on April 4, 2017, Blue Cane voted to terminate the Browns’ membership. No
written notice was given to the Browns about this meeting. Their service had already been
disconnected due to the emergency situation; so the meeting did not deal with their service,
just their membership. The Browns were notified that their membership was terminated and
presented with a cost bill for the work Blue Cane had done in the amount of $4,316.25.
¶12. On April 5, 2017, the Browns filed a complaint in the Tallahatchie County Chancery
Court for wrongful termination of their water services. They also moved for a temporary
restraining order (TRO) and a permanent injunction. In their complaint, the Browns sought
a reconnection with the Blue Cane system and recovery for costs.
¶13. On April 6, 2017, the court held a TRO hearing with no notice to Blue Cane. At that
hearing, the Browns represented to the court that they had given Blue Cane permission to
come onto their property to read the meter, that they were current in their payments, and that
Blue Cane’s board terminated their water service with no notice to them at a meeting on
April 4, 2017. No mention was made of the water contamination issues and interaction
between the parties prior to the board meeting. Based on the Browns’ testimony, the
chancery court issued a TRO, ordering Blue Cane to immediately restore the water
connection to the Browns.
¶14. On April 10, 2017, the chancery court convened a hearing to determine whether a
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permanent injunction should issue. This time Blue Cane was present. Through testimony
of Blue Cane’s president, Joe Wilson, and the office manager, Brenetta Hoskins, the
contamination problem was revealed as well as the actions Blue Cane had to take to insure
safe water to its 440 customers. Blue Cane admitted that the Browns did not have notice that
their membership would be discussed at the April 4 meeting. But their service had been
disconnected before the April 4 meeting because of the contamination notification the
Browns had given Blue Cane and because Blue Cane could not go onto the Browns’ property
to verify proper functioning of the backflow preventer. During the hearing, Blue Cane
informed the court that it was willing to reconnect the Browns to the public system under the
condition it could get onto the property to do the inspections needed. The Court ordered that
Blue Cane immediately inspect the Browns’ backflow device (by 5 p.m. that day) and if it
passed inspection, then the Browns would be reconnected to the system by 5 p.m. the next
day, April 11, 2017. The Browns were ordered to allow safe access to their property or be
fined $500 per day. The parties were given 20 days to submit arguments to the court on a
division of the costs.
¶15. On April 26, 2017, the Browns filed a motion for contempt against Blue Cane
claiming that Blue Cane had not tested the water at their home as the court required. The
court held a hearing on this motion on May 31, 2017, at which Blue Cane presented two sets
of test results, showing that the water going to the Browns’ home had been tested. The court
noted that it had not ordered testing at the Brown house itself and that it felt testing the water
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going to and from the house satisfied the court’s mandate. The court was also informed that
the backflow device was tested the same day that the meter was moved, and it passed the test.
The court denied the Browns’ motion, and the parties agreed to attend mediation for any
unresolved issues.
¶16. On August 31, 2017, the court conducted the mediation and made a record of various
documents that had been provided. Among them were the March 11, 2017 Sharkey-Twilight
Well’s test results showing contamination and the subsequent March 16, 2017 test results
showing no contamination. The Browns had not previously provided these to Blue Cane or
to the Court. The Court commented on points in the history of the parties’ dispute where it
had been possible to resolve the issue had either party taken certain actions. The court asked
the parties to provide an affidavit from the deputy sheriff who had served the March 20 letter
to the Browns concerning what he told them and whether the Browns responded that Blue
Cane could or could not come onto their property. The court also wanted to know from
Entergy when the Browns’ meter to the Sharkey-Twilight Well was disconnected.
¶17. In October 2017, an affidavit from John Paige, a part-time deputy sheriff, was
obtained; he stated that he merely delivered the letter to Mrs. Brown and had no discussion
with her about her dealings with Blue Cane. Both parties also submitted documentation to
the court about the costs they incurred in this matter.
¶18. On or about December 15, 2017, the chancery court issued its final judgment in the
matter. In essence, the court found that the Browns had a test done on the Sharkey Twilight
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Well system improperly, which showed contaminants; a later test correctly showed no
contaminants. The Browns notified persons on the system about a contamination problem
but not about the later test results. The court further found that when Blue Cane sought to
test the system, the Browns denied them access to the property. Accordingly, the court held
that the Browns owed Blue Cane its expenses, less their own expenses, which resulted in a
judgment in favor of Blue Cane in the amount of $3,585.63, which the court ordered to be
paid at a rate of $75 per month. The court specifically disallowed Blue Cane’s reconnection
costs, saying that it was reasonable that the line be moved outside of the Browns’ fences to
ensure that peace would be maintained between the parties.
¶19. The Browns’ motion for new trial under Rule 59 of the Mississippi Rules of Civil
Procedure was filed with the clerk on January 3, 2018, although the certificate of service
indicates that it was mailed to Blue Cane’s attorney on December 27, 2017. In their motion,
the Browns argued several of the facts listed above and contended that the court’s decision
was contrary to the evidence presented. In response, Blue Cane raised other facts and
contended that the Browns had failed to raise any valid reason to alter the findings of the
court. On January 23, 2018, the chancery court denied the motion for a new trial because the
Browns had failed to present any facts, law, or legal theories to support their request for
relief. On February 2, 2018, the Browns filed their notice of appeal.
STANDARD OF REVIEW
¶20. We review a chancery court ruling for abuse of discretion and will not disturb a
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chancellor’s findings unless the chancellor was manifestly wrong, clearly erroneous, or
applied an erroneous legal standard. Gulf Coast Research Lab. v. Amaraneni, 722 So. 2d 530,
532 (¶8) (Miss. 1998). If supported by substantial credible evidence, we leave a chancellor’s
factual findings undisturbed. In re Estate of Flowers, 264 So. 3d 775, 778 (¶14) (Miss.
2019). Jurisdiction is a question of law, which this court reviews de novo. Way v. Clark,
208 So. 3d 9, 11 (¶11) (Miss. Ct. App. 2017).
DISCUSSION
I. Whether appellate jurisdiction exists.
¶21. Although the parties do not raise the issue, this Court must first determine that it has
jurisdiction to consider this appeal. Hamilton v. Southwire Co., 191 So. 3d 1275, 1279 (¶15)
(Miss. Ct. App. 2016); Gallagher v. City of Waveland, 182 So. 3d 471, 474 (¶13) (Miss. Ct.
App. 2015). After reviewing when the final judgment, the motion for a new trial, and the
notice of appeal were filed and recent precedent, we determine that we do have jurisdiction
to consider the merits of the issues on appeal. In the past, we had strictly enforced the time
limits for filing appeals in cases where post-trial motions are not timely filed. But these rules
have been relaxed.
¶22. Mississippi Rule of Appellate Procedure 4(a) states that “the notice of appeal required
by Rule 3 shall be filed with the clerk of the trial court within thirty days after the date of
entry of the judgment or order appealed from.” M.R.A.P 4(a). Certain post-trial motions will
toll this thirty-day deadline, including a motion for a new trial filed under Mississippi Rule
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of Civil Procedure 59. (The law had once provided that the extension of time to appeal
operates only if the post-trial motion itself is timely filed. Brand v. Barr, 980 So. 2d 965,
962 (¶¶10-11) (Miss. Ct. App. 2008).) Under Rule 59(e), motions for a new trial must be
filed within ten (10) days of the judgment. Moreover, a paper is not “filed” until the clerk
actually receives it. Bolton v. Illinois Cent. R.R. Co., 218 So. 3d 311, 313 (¶8) (Miss. Ct.
App. 2017). In Byrd v. Biloxi Regional Medical Center, 722 So. 2d 166, 168-69 (¶12) (Miss.
Ct. App. 1998), we held that “an untimely filed Motion for Reconsideration will not excuse
an untimely Notice of Appeal, and clearly will not create or confer jurisdiction in this court.”
¶23. The Mississippi Supreme Court relaxed this strict enforcement in Wilburn v. Wilburn,
991 So. 2d 1185 (Miss. 2008). In that case, the chancery court issued its modification order
on June 1, 2007. Wilburn, 991 So. 2d at 1191 (¶12). Counting weekends, the response was
due on June 11, 2007. Id. The ex-wife filed a “Motion for Reconsideration” one day later
on June 12, 2007. Id. The motion was denied and timely appealed. Id. at 1190 (¶8). The
Mississippi Supreme Court applied established precedent and found that the motion for
reconsideration was untimely. But the Court further found that because the husband did not
object to the timeliness of the motion when it was before the chancery court, he was
procedurally barred from raising the issue for the first time on appeal. Id. at 1191 (¶13). The
Court proceeded to consider the appeal on its merits. Id. at 1192 (¶14).
¶24. We recently applied Wilburn in Massey v. Oasis Health & Rehab of Yazoo City LLC,
No. 2017-CA-00086-COA, 2018 WL 4204207 (Miss. Ct. App. Sept. 4, 2018). In Massey
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the circuit court granted a motion to compel arbitration on November 9, 2016. Id. at *4
(¶11). Massey filed a motion to alter or amend the judgment under Rule 59 on November
22, 2016—one day late. Id. at *5 (¶16). Massey’s motion was denied and appealed within
thirty days of the denial. Id. at (¶17). We reviewed prior cases that dealt with the timeliness
of an appeal when a motion for new trial or reconsideration was not timely filed in the court
below. Id. We noted the Mississippi Supreme Court’s ruling in Wilburn v. Wilburn, supra,
which created an exception to the bar of hearing an appeal if the timeliness of a post-trial
Rule 59 motion is not challenged before the trial court. Id. at *6 (¶18). Following these
precedents in Massey, we held:
Here, just as in Wilburn, Massey filed his Rule 59 motion one day too late, and
Oasis responded to the motion on the merits—without objecting to the motion
as untimely. After the circuit court denied Massey’s Rule 59 motion, Massey
filed a notice of appeal. Just as in Wilburn, Massey filed his notice of appeal
within thirty days of the order denying his Rule 59 motion, but more than sixty
days after entry of the underlying order. As to the issue of appellate
jurisdiction, there is no material difference between this case and Wilburn.
Under Wilburn, we have jurisdiction to address the appeal and the merits of the
underlying order compelling arbitration.
Massey, 2018 WL 4204207, at *6 (¶20). The special concurrence in Massey noted a similar
holding found in Carter v. Carter, 204 So. 3d 747 (Miss. 2016), that the lack of an objection
to an untimely Rule 59 motion procedurally bars an appellee from raising the issue of
timeliness on appeal. Massey, 2018 WL 4204208, at *15 (¶59) (Greenlee, J., specially
concurring). The concurrence pointed out that the Carter decision cited federal case law,
saying:
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Our supreme court seems to recognize, as the United States Supreme Court did
in Bowles,[4] that “procedural rules adopted by the Court for the orderly
transaction of its business are not jurisdictional and can be relaxed by the
Court in the exercise of its discretion . . . .” Bowles, 551 U.S. at 212, (quoting
Schacht v. United States, 398 U.S. 58, 64 (1970)). New Mississippi ground is
being broken. . . .
Massey, 2018 WL 4204207, at *15 (¶61) (Greenlee, J., specially concurring).
¶25. In this case, the final judgment was signed on December 15, 2017, and filed with the
clerk on December 18, 2017. The Browns had ten days to file their motion for a new trial
(i.e., December 28, 2017). Browns’ counsel indicated in his certificate of service that he
served the motion on Blue Cane’s counsel by mail on December 27, 2017 (a Thursday). But
the clerk did not file the motion until January 3, 2018, which was seven days later and sixteen
days after the judgment was filed.
¶26. Blue Cane responded to the motion for a new trial but did not challenge its untimely
filing. On January 23, 2018, the chancery court denied the motion for a new trial in an order
filed with the clerk on January 26, 2018. A notice of appeal was filed on February 2, 2018.
Both Wilburn and Massey are directly on point. Although the Browns’ Rule 59 motion was
not timely, Blue Cane did not object. Pursuant to Massey and Wilburn, we find that we do
have jurisdiction to proceed to a ruling on the merits.
II. Whether the chancery court abused its discretion in denying the
Browns’ motion for new trial.
¶27. A motion for new trial filed more than ten days after the entry of the judgment falls
4
Bowles v. Russell, 551 U.S. 205 (2007)
12
under Rule 60(b). Woods v. Victory Marketing, 111 So. 3d 1234, 1236 (¶8) (Miss. Ct. App.
2013). Under Mississippi Rule of Civil Procedure 60(b), the court may relieve a party of the
mandates of a final judgment under six enumerated grounds, including a catchall phrase:
“any other reason justifying relief.” But the motion should be denied where it is merely an
attempt to relitigate the issues. Id. at 1237 (¶13). Our supreme court has emphasized that
Rule 60(b) is for extraordinary circumstances, for matters collateral to the merits. Davis v.
Vance, 138 So. 3d 961, 964 (¶14) (Miss. Ct. App. 2014).
¶28. Here, the Browns’ motion for a new trial was filed more than ten days after the final
judgment. In their motion, the Browns offered no new evidence and did not present any
evidence that extraordinary circumstances existed. They were merely rearguing the case.
The chancery court acted within its discretion in denying the motion, and we find no abuse
of that discretion.
III. Whether the Browns waived their argument of constitutional due
process violations.
¶29. On appeal, the Browns argue that their Fourteenth Amendment right to due process
was violated when Blue Cane terminated their water service. But from our review of the
record, the Browns failed to present this constitutional argument to the chancery court. They
argued that they had no notice of the board meeting that terminated their membership;
however, Blue Cane made it clear that water services did not depend on membership status.
The Browns’ water service was disconnected while they were still members. The Browns
also argued disingenuously to the chancery court that they had no notice of the disconnect
13
and could get no understanding of why it was done. Under Mississippi common law, there
is precedent that addresses utility terminations without notice5 and the Browns’ complaint
appears to be brought under those because it simply alleges that the Browns were
“wrongfully” disconnected from service. There is no mention of a denial of the
constitutional right to due process.
¶30. Issues not raised in the ruling court are waived on appeal. In re B.A.H., 225 So. 3d
1220, 1239 (¶19) (Miss. Ct. App. 2016). The Mississippi Supreme Court has said repeatedly
that a ruling court will not be found in error on a matter not presented to it for a decision.
Maness v. K & A Enter. of Miss. LLC, 250 So. 3d 402, 410 (¶21) (Miss. 2018), reh’g denied
(Aug. 9, 2018). In this instance, because it was not raised in the ruling court, the Browns’
constitutional due process argument is waived.
IV. Whether the chancery court abused its discretion in its assessment
of costs.
¶31. Because the Browns’ disconnection was not “wrongful,” they had no entitlement to
damages, and we find the chancery court did not err in equitably proportioning the costs of
the litigation.
¶32. Tucker v. Hinds County, 558 So. 2d 869 (Miss. 1990), controls and resolves this case.
In Tucker, a portion of Tucker’s rental property had burned and Tucker had undertaken some
repairs. Id. at 870. He had obtained a permit from the county which, after several
5
A public service company cannot arbitrarily discontinue service when there is a bona
fide dispute over the amount owed. Burke v. City of Water Valley, 87 Miss. 732, 40 So. 820,
821 (1906).
14
inspections over three years, determined Tucker’s permit had expired and that he needed
another. Id. at 871. There was also an issue with an open electric panel on the outside of the
building. Tucker claimed that when he refused to get another permit, the county instructed
MP&L to disconnect his electric service. Id. But MP&L itself inspected the property and
found that a meter base was improperly and hazardously connected and the wiring was done
incorrectly. Id. Because of the hazardous and dangerous situation, MP&L disconnected the
power. Id. Tucker sued Hinds County and MP&L in circuit court which granted summary
judgment for MP&L and found that Hinds County enjoyed sovereign immunity. Id. at 874.
¶33. The Court reviewed the Mississippi Public Service Commission regulations and held
that under these regulations, MP&L had the discretion to act as it did, saying:
If Tucker was treated unfairly, or was denied due process, it was at the hand
of Hinds County. MP&L had the right, as a matter of law (indeed it may have
had the duty), to shut off Tucker’s utility service.
Id. at 876.6
¶34. Our Courts have held that a termination of utility service may be wrongful in limited
instances if done without notice. When there is a bona fide dispute as to what is owed, the
power company may not cut off service. Mississippi Power Co. v. Cochran, 178 Miss. 204,
173 So. 287, 289 (Miss. 1937). Water also cannot be withheld from a tenant on the grounds
6
In the Tucker case, constitutional due process was raised and the supreme court
applied it to the conduct of Hinds County. Tucker, 558 So. 2d at 874. But it did not extend
any due process requirement to MP&L. This follows clear precedents that denial of due
process by a private party, without some form of state action, involves no constitutional
violation. Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982); McComb Equip. Co. v.
Cooper, 370 So. 2d 1367, 1368 (Miss. 1979).
15
that there were unpaid charges against the premises due from a former tenant. Burke v. City
of Water Valley, 87 Miss. 732, 40 So. 820, 821 (1906). But when a customer failed or
refused to pay an undisputed bill, we have held that the power company may discontinue
service. Womack v. Peoples Water Serv. Co., 216 Miss. 169, 61 So. 2d 785 (Miss. 1953);
Cent. La. Power Co. v. Thomas, 145 Miss. 352, 111 So. 142, 143 (Miss. 1927); Carmichael
v. City of Greenville, 112 Miss. 426, 73 So. 278, 279 (Miss. 1916). Obviously, in Tucker v.
Hinds County, supra, 558 So. 2d at 876, the supreme court held that it was also not wrongful
for a utility provider to disconnect service when faced with unsafe or dangerous conditions.
¶35. In the case at hand, Blue Cane acted as did MP&L in Tucker. Blue Cane had been
notified by the Browns of potential contamination of the water system. It immediately acted
to protect the other 440 users by notifying the Health Department which issued a no-use
notice. Blue Cane was required by the Board of Health to develop and implement a plan for
containing and eliminating the contamination which Blue Cane did on March 24, 2017. As
of that date Blue Cane had no further information on the possible contaminate. Because the
Browns were not allowing access to their property, Blue Cane determined that their
continued connection to the system posed a threat to all. Blue Cane, like MP&L in Tucker,
had no choice but to terminate service to the Browns. Later in the litigation, it was learned
that the Browns already knew from retesting done on March 17 that there was no
contamination but failed to inform Blue Cane of this which would have totally changed the
course of subsequent events and eliminated costs to either side.
16
¶36. The Browns want the Court to ignore their failure to tell Blue Cane of the passing
contamination results but blame Blue Cane for refusing to accept the tests of their backflow
prevention system that they had serviced. However, Blue Cane, which has the duty under
law to exercise reasonable care when providing service to customers, Hopkins v. Miss. Valley
Gas Co., 866 So. 2d 514, 517 (¶¶13-14) (Miss. Ct. App. 2004), cannot be faulted for not
simply accepting the inspection report presented by the Browns, especially when the report
appeared suspicious. Blue Cane acted reasonably in insisting to inspect the unit itself prior
to reconnecting service. As the supreme court held in Womack v. People’s Water Serv. Co.,
61 So. 2d 785, 789 (Miss. 1953), an appellant did not show a right to recover damages from
the mere fact that the dispute, so far as he was concerned, was bona fide. A party in error is
not saved the cost and consequence of his error by a show of good faith. Id. A plaintiff must
show a reasonable grounds for his actions and when the record does not show that, then he
is not entitled to damages. Id.
¶37. Technically, the chancery court allowed both sides their expenses in this case. In the
end, those of Blue Cane were greater than the Browns’. As the supreme court stated in In
re Estate of Flowers, 264 So. 3d 775 (Miss. 2019):
Chancellors have long been vested with discretionary authority to decide
matters of equity. Article 6, section 159, of the Mississippi Constitution
confers on chancery courts jurisdiction of “All matters in equity . . . ,” as well
as other enumerated matters. “A court of equity is a court of conscience. The
function of the chancellor is, upon equitable considerations, to winnow the
wheat from the straw, and his decree will not be set aside on appeal unless, as
is not the case here, it is made to appear that it is not equitable but inequitable
to let it stand.” Durkin v. Lovknit Mfg. Co., 208 F.2d 665, 667 (5th Cir. 1953).
17
Id. at 779 (¶16). Here we find that the chancery court winnowed well and equitably divided
the costs of the litigation between the parties.
CONCLUSION
¶38. For the above reasons, the chancery court’s final judgment and final decree denying
the Browns’ motion for new trial is hereby affirmed.
¶39. AFFIRMED.
BARNES, C.J., CARLTON, P.J., GREENLEE, TINDELL, LAWRENCE,
McCARTY AND C. WILSON, JJ., CONCUR. J. WILSON, P.J., CONCURS IN PART
AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.
WESTBROOKS, J., NOT PARTICIPATING.
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