Paula W. Crosby v. Kathryn Adele Mittelstaedt

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CA-00529-COA
PAULA W. CROSBY, INDIVIDUALLY, APPELLANTS
BENJAMIN F. CROSBY, JR., INDIVIDUALLY,
PAULA W. CROSBY, TRUSTEE OF THE PAULA
W. CROSBY REVOCABLE LIVING TRUST,
BENJAMIN F. CROSBY, JR., TRUSTEE OF THE
BENJAMIN F. CROSBY, JR., REVOCABLE
LIVING TRUST, AND BENJAMIN F. CROSBY,
III, INDIVIDUALLY
v.
KATHRYN ADELE MITTELSTAEDT, APPELLEES
EXECUTRIX OF THE ESTATE OF GLORIA
SIMON MITTELSTAEDT, DECEASED,
KATHRYN ADELE MITTELSTAEDT,
INDIVIDUALLY, DOUGLAS E.
MITTELSTAEDT AND CAROL ANN
MITTELSTAEDT KOELEMAY
DATE OF JUDGMENT: 03/19/2015
TRIAL JUDGE: HON. PRENTISS GREENE HARRELL
COURT FROM WHICH APPEALED: PEARL RIVER COUNTY SPECIAL COURT
OF EMINENT DOMAIN
ATTORNEY FOR APPELLANTS: THOMAS H. HUVAL SR.
ATTORNEYS FOR APPELLEES: JOSEPH H. MONTGOMERY
ELIJAH BRAGG WILLIAMS III
GREGORY PAUL HOLCOMB
NATURE OF THE CASE: CIVIL - EMINENT DOMAIN
TRIAL COURT DISPOSITION: MOTION TO REOPEN TIME TO APPEAL
DENIED
DISPOSITION: AFFIRMED - 02/23/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., BARNES AND WILSON, JJ.
WILSON, J., FOR THE COURT:
¶1. A settlement agreement entered in the Pearl River County Special Court of Eminent
Domain appeared to have resolved long-running and contentious litigation between the
Crosbys1 and the Mittelstaedts2 regarding the Mittelstaedts’ need for an easement to access
their property via the Crosbys’ adjoining land. In exchange for $25,000, a one-acre parcel
of land, and the Mittelstaedts’ covenant to maintain a suitable fence and gate, the Crosbys
agreed to grant the long-sought easement. But only weeks later, the parties were back in
court because the Crosbys had filed a lis pendens notice against the Mittelstaedts’ property.
The ostensible reason for the renewal of unpleasantries was the Crosbys’ claim that the
Mittelstaedts’ fence and gate were deficient, but the presiding circuit judge found that the
gate and fence satisfied the terms of the settlement, so he entered an order enforcing the
parties’ agreement and cancelling the lis pendens. He also found that the Crosbys had
deliberately violated the court-approved settlement and had not lived up to their obligation
to carry out its terms in “good faith.”
¶2. As the result of an apparent error or oversight in the clerk’s office, the Crosbys did
not receive notice of this adverse ruling until after the time for appeal had run. When they
received notice of the order, they promptly moved to reopen the time for appeal under
1
The three Crosby parties are related. Two are parties in both their individual
capacities and as trustees of revocable living trusts. Their precise relationships and
connections to the property at issue are neither immediately apparent from the record on
appeal nor important to the issues in the appeal.
2
The Mittelstaedt parties are three siblings; one is a party in both her individual
capacity and as administrator of their deceased mother’s estate.
2
Mississippi Rule of Appellate Procedure 4(h), but the circuit judge denied their motion. For
the reasons explained below, we conclude that the circuit judge did not abuse his discretion
by denying the Crosbys’ motion to file an out-of-time appeal. Therefore, we affirm.
FACTS AND PROCEDURAL HISTORY
¶3. From the record that the parties designated for this appeal, we can tell relatively little
about the long-running feud between the Crosbys and the Mittelstaedts. The parties are
adjoining landowners in Pearl River County. The Mittelstaedts inherited their property from
their mother, who passed away in February 2007. It appears that in 2007, the Crosbys
discussed buying the Mittelstaedts land from them, but the discussions broke down, and the
Mittelstaedts listed the property with a realtor. The Crosbys apparently then took steps to
fence off access to the Mittelstaedts’ property from a road; we cannot tell whether the
Crosbys’ actions were lawful. The Crosbys also filed a lis pendens notice against the
Mittelstaedts’ property in the Pearl River County Chancery Court, and three years of
litigation ensued in that court; we know nothing else about those proceedings.
¶4. On August 1, 2012, the Mittelstaedts filed a complaint for a dedicated private right-
of-way in the Pearl River County Special Court of Eminent Domain. See Miss. Code Ann.
§§ 11-27-3 (Rev. 2004) and 65-7-201 (Rev. 2012). The docket reflects significant activity
in the case over the next two years; however, the parties did not designate as part of the
record on appeal any of the pleadings, motions, or orders filed in the case prior to a
December 16, 2014 order granting the Mittelstaedts’ “Motion to Enforce Settlement.” That
3
order recounts events beginning in February 2014 and sets forth the court’s findings and
ruling as follows:
A lengthy settlement conference was conducted by the Court on February 14,
2014, after which the parties announced to the Court the case was settled. The
Court reviewed the settlement agreement reached between the parties,
determined there had been a meeting of the minds, and the settlement
agreement was dictated into the record resolving all claims and issues in this
action and [the chancery court case]. . . .
An enforceable settlement was reached between the parties.
The settlement resolved a dispute over the establishment of a right-of-way and
easement sought by the [Mittelstaedts]. [The Crosbys] agreed to convey a non-
exclusive, perpetual and unobstructed right-of-way and easement to the
[Mittelstaedts] to provide access to Pete Harris Road and agreed to remove an
alleged spite fence erected by the [Crosbys] on the eastern boundary of
[Mittelstaedts’] property obstructing the easements that were to be granted by
the [Crosbys]. [The Mittelstaedts] agreed to pay the [Crosbys] $25,000.00 and
convey a 1.061 acre parcel on the western boundary of [the Mittelstaedts’]
property to [the Crosbys], and erect a fence and gate at the front entrance to
their property from Pete Harris Road of sufficient strength and height to turn
cattle, said fence and gate to be located wholly on [the Mittelstaedts’] property.
Pursuant thereto, the parties executed and delivered [a release and settlement
agreement and executed and recorded right-of-way and easement deeds and a
restrictive covenant, and the Mittelstaedts paid the Crosbys $25,000], after
which, on February 26, 2014, the Court entered an Agreed Final Order of
Dismissal With Prejudice retaining jurisdiction over the parties and subject
matter to enforce the settlement agreement.
On March 19, 2014, the [Crosbys] sent a letter to [the Mittelstaedts] implying
a violation of the settlement with regard to the fence and gate.
On March 26, 2014, the [Mittelstaedts] overnighted a letter to [the Crosbys]
stating that the fence and gate were constructed in compliance with the
settlement agreement and request[ing] specifics as to any alleged violation.
On April 2, 2014, the [Crosbys], without leave of this Court, filed a Lis
4
Pendens Notice with the Chancery Clerk of Pearl River County encumbering
the entirety of the [Mittelstaedts’] property and sent a copy of said [notice] to
the realtor for the [Mittelstaedts] who had been marketing the property for sale.
This action precipitated the filing of a Motion to Enforce Settlement by the
[Mittelstaedts] . . . .
The Court, having presided over the settlement conference in this matter and
having reviewed and approved the settlement agreement announced in Court
and dictated into the record herein . . . and all the settlement documents
executed by the parties . . . , and all pleadings and evidence pertinent to the
pending motion, finds that the fence and gate as currently built and maintained
by [the Mittelstaedts] . . . are in full compliance and accord with the settlement
reached between the parties. . . .
The parties were obligated to use their best efforts and good faith to carry out
all terms of the settlement agreement. [The Mittelstaedts] fully complied with
the settlement agreement. The [Crosbys] violated this obligation and
[Mississippi Code Annotated section] 11-47-3 . . . by intentionally filing the
Lis Pendens Notice against [the Mittelstaedts’] property without leave of this
Court[,] which retained jurisdiction to enforce the settlement agreement.
The Lis Pendens Notice filed against [the Mittelstaedts’] property by [the
Crosbys] on April 2, 2014 . . . is void and hereby cancelled of record. A
certified copy of this Order shall be filed and recorded in the [county land
records] to evidence this cancellation . . . .
The [Crosbys’] actions necessitated the filing of [the Mittelstaedts’] Motion to
Enforce Settlement Agreement and [the Mittelstaedts] are entitled to reasonable
attorney’s fees as the prevailing party herein as set forth in the settlement
agreement.
....
[The Crosbys’] actions constitute a deliberate violation and breach of the
settlement agreement. As directed by the Court[, the Mittelstaedts’] counsel
submitted [their] attorney’s fees and costs, and the Court . . . finds that they are
reasonable, and [the Mittelstaedts] are hereby awarded attorney’s fees and a
judgment against [the Crosbys] in the amount of $1,000.00 . . . .
....
5
The Court retains jurisdiction to enforce the settlement agreement in this
action, this Order and any further Order of the Court . . . .
All issues relating to Rule 11 violations and sanctions and/or costs and amount
of supersedeas bond, if any, required for appeal, if an appeal is taken, are
hereby continued and reserved for hearing at a future date to be set by the
Court.
Any and all other relief sought by the parties not addressed herein is denied.
SO ORDERED, ADJUDGED, and DECREED on this, the 16th day of
December, 2014.3
As noted above, the record on appeal does not contain the complaint, any hearing transcripts,
the settlement agreement, the motion to enforce the settlement, or any evidence submitted
in support of or opposition to the motion. Our record begins with the above-quoted order.
¶5. Although the court’s order was filed and noted on the docket on December 16, 2014,
counsel for the Crosbys did not receive it until January 20, 2015—too late to file a timely
appeal under Mississippi Rule of Appellate Procedure 4(a). The postmark on the envelope
reflects a mailing date of June 4, 2014, which was months before the order was heard or
signed and thus an obvious error. On January 25, 2015, the Crosbys moved to reopen the
time for appeal under Rule 4(h), which provides:
Reopening Time for Appeal. The trial court, if it finds (a) that a party entitled
to notice of the entry of a judgment or order did not receive such notice from
the clerk or any party within 21 days of its entry and (b) that no party would
be prejudiced, may, upon motion filed within 180 days of entry of the
3
In quoting the court’s order, we have omitted paragraph numbers. All other
omissions and alterations are indicated within the above quote.
6
judgment or order or within 7 days of receipt of such notice, whichever is
earlier, reopen the time for appeal for a period of 14 days from the date of
entry of the order reopening the time for appeal.
¶6. With respect to the requirements of Rule 4(h), there is no dispute that the Crosbys did
not receive notice of the order “within 21 days of its entry” and filed a motion to reopen
“within 7 days of receipt of . . . notice” of the order. Nonetheless, the Mittelstaedts opposed
the Crosbys’ motion, arguing that they would be prejudiced by an appeal and that the judge
should exercise his discretion to deny the motion. The Mittelstaedts argued that the Crosbys’
filing of lis pendens notices and other actions had been intended to prevent, and had
prevented, them from marketing and selling their property.
¶7. In support of their argument, the Mittelstaedts submitted an affidavit from their
realtor. The realtor stated that she had “show[n] the property to several potential buyers, but
those buyers quickly lost interest after they were informed that the property was subject to
a Lis Pendens notice.” She further stated that between 2009 and 2014, the home located on
the property had “continued to deteriorate,” presumably because it is no longer occupied,
“greatly depreciating its value.” She averred that the Mittelstaedts had lowered the price of
the property more than once but that potential buyers continued to lose interest upon learning
of the lis pendens notice and related litigation, and the property was eventually removed from
active listing due to the ongoing litigation. In 2014, the property was relisted based on the
parties’ settlement, but shortly thereafter, the realtor received the April 2014 lis pendens
notice. The realtor continued to show the property, and some potential buyers expressed
7
interest in making an offer, but only if the lis pendens was cancelled and the litigation
concluded. Prospective buyers eventually moved on when that did not happen. The realtor’s
affidavit concluded by stating that she had been unable to sell the property because of stigma
caused by the ongoing litigation. She said that there had been significant interest in the
property, and she believed that it would sell if the litigation concluded; however, she believed
that the property would not sell as long as the litigation continued.
¶8. The Crosbys filed a rebuttal memorandum in support of their motion but informed the
court that they did “not believe a hearing [was] necessary.” On March 19, 2015, the court
entered an order finding that the Crosbys’ motion to reopen the time for appeal was “not well
taken and should be denied.” The Crosbys appealed from this ruling.
ANALYSIS
I. Appellate Jurisdiction
¶9. Although no party has raised the issue of appellate jurisdiction, we must first address
on our own initiative whether the special court of eminent domain (“special court”) ever
entered a final, appealable order. See Clausell v. Bourque, 122 So. 3d 825, 827 (¶6) (Miss.
Ct. App. 2013). We raise the issue because the special court’s December 16, 2014 order
enforcing the parties’ settlement agreement—which both sides consider “final,” and which
the Crosbys desire to appeal on the merits—expressly reserved ruling on “[a]ll issues relating
to Rule 11 violations and sanctions and/or costs[.]” Given the limited record on appeal, we
cannot determine whether the issue of sanctions was raised by the Mittelstaedts or by the
8
court sua sponte.4 Moreover, the question whether an order may be final and appealable even
though it reserves ruling on the issue of sanctions has not been expressly addressed in
Mississippi.
¶10. However, the federal courts of appeals have uniformly held that such a reservation
does not prevent an appeal of an otherwise final order on the merits.5 We believe that these
federal decisions are consistent with our own final judgment rule that an appeal may be taken
as a matter of right once the trial court has disposed of all claims against all parties. See, e.g.,
In re Norton, 126 So. 3d 890, 891 (¶5) (Miss. 2013); Hooker v. Greer, 81 So. 3d 1103, 1108
n.10 (Miss. 2012); Ulmer v. Tracker Marine LLC, 154 So. 3d 77, 79 (¶7) (Miss. Ct. App.
2015). After the special court entered its December 16, 2014 order enforcing the parties’
settlement, there were no more claims to be resolved—only the issue, collateral to the merits,
of possible sanctions under Rule 11. Accordingly, we conclude that the order enforcing the
4
See Tricon Metals & Servs. Inc. v. Topp, 537 So. 2d 1331, 1335 (Miss. 1989) (“Our
trial courts have authority to act sua sponte under Rule 11 and ought exercise that authority
against the backdrop of their inherent authority to impose sanctions upon those who abuse
the judicial process.”).
5
Jackson v. Cintas Corp., 425 F.3d 1313, 1316 (11th Cir. 2005) (“[E]very circuit that
has considered this issue has held that the pendency of a motion for sanctions after a
dismissal on the merits does not bar appellate jurisdiction.”); see, e.g., Allflex USA Inc. v.
Avid Identification Sys. Inc., 704 F.3d 1362, 1365 n.4 (Fed. Cir. 2013); Brown v. Francis,
75 F.3d 860, 864 n.3 (3d Cir. 1996); Turnbull v. Wilcken, 893 F.2d 256, 257 (10th Cir.
1990); Triland Holdings & Co. v. Sunbelt Serv. Corp., 884 F.2d 205, 208 (5th Cir. 1989);
Cleveland v. Berkson, 878 F.2d 1034, 1036 (7th Cir. 1989) (“To avoid any further ambiguity
with respect to this issue, we now hold that the pendency of . . . motions [for Rule 11
sanctions] in the district court, when the district court definitively and completely has
disposed of the entire case on the merits, does not render the district court’s judgment
nonfinal.”).
9
settlement was final and appealable,4 and we may reach the issue raised in the Crosbys’
present appeal, i.e., whether they were entitled to file an out-of-time appeal from the order.
II. Denial of the Motion to Reopen the Time for Appeal
¶11. “The denial of motions made under Rule 4(h) is within the discretion of the trial court.
Therefore, we review denials of motions made pursuant to Rule 4(h) under an abuse of
discretion standard.” Clayton v. Hartsog, 970 So. 2d 248, 250 (¶4) (Miss. Ct. App. 2007)
(citing Pre-Paid Legal Servs. v. Anderson, 873 So. 2d 1008, 1009 (¶4) (Miss. 2004)).
¶12. As noted above, Rule 4(h) provides that if a trial court finds “(a) that a party entitled
to notice of the entry of a judgment or order did not receive such notice from the clerk or any
party within 21 days of its entry and (b) that no party would be prejudiced,” the court “may,
upon motion filed within 180 days of entry of the judgment or order or within 7 days of
receipt of such notice, . . . reopen the time for appeal[.]” Here, there is no dispute that the
Crosbys did not receive timely notice of the order and that they filed a timely motion to
4
The order enforcing the settlement in this case is distinguishable from the order we
deemed non-final and non-appealable in Ulmer, supra. There, we held that an order on a
motion to enforce a settlement “does not become final until after the trial court has entered
a judgment on the settlement and dismissed the underlying petition.” Ulmer, 154 So. 3d at
80 (¶9) (quoting State ex rel. Am. Bouvier Des Flanders, Club Inc. v. Jamison, 413 S.W.3d
359, 362 (Mo. Ct. App. 2013)). As in any other case, an order to enforce a settlement is not
final unless it “disposes of all the claims against all the parties.” Id. at (¶11). Here, as
recounted above, the special court did enter an agreed final order dismissing the underlying
claims with prejudice based on the parties’ settlement, while retaining jurisdiction to enforce
the settlement. See Kokkonen v. Guardian Life Ins. of Am., 511 U.S. 375, 381-82 (1994)
(holding that under Federal Rule of Civil Procedure 41(a), a court may retain jurisdiction to
enforce the terms of a settlement). In addition, the order enforcing the settlement disposed
of all remaining claims between the parties.
10
reopen.6 Therefore, the only issues we must address are whether the Mittelstaedts “would
be prejudiced” by an appeal and whether the special court abused its discretion by denying
the Crosbys’ motion.
A. Prejudice
¶13. Although the special court’s “order denying [the Crosbys’] motion for leave to file an
out-of-time appeal fails to make any findings of fact as to any prejudice that [the
Mittelstaedts] might suffer,” “[t]he standard of review in this situation is well known.” Lee,
23 So. 3d at 532 (¶10).
Where the trial court failed to make any specific findings of fact, this Court
will assume that the issue was decided consistent with the judgment and these
findings will not be disturbed on appeal unless manifestly wrong or clearly
erroneous. The reviewing court must examine the entire record and must
accept[ ] “that evidence which supports or reasonably tends to support the
findings of fact made below, together with all reasonable inferences which
may be drawn therefrom and which favor the lower court’s findings of fact.”
That there may be other evidence to the contrary is irrelevant.
Id. (quoting Flowers v. State, 805 So. 2d 654, 656 (¶4) (Miss. Ct. App. 2002)). “Therefore,
we must examine the record to see if any prejudice can be found that would support the
[special] court’s denial.” Id.
¶14. According to the comments to Rule 4(h), “‘[p]rejudice’ means some adverse
6
We note that “[w]hile the party seeking relief under Rule 4(h) bears the burden of
persuading the trial court of lack of timely notice, a specific factual denial of receipt of
notice rebuts and terminates the presumption that mailed notice was received.” Miss. Pub.
Employees’ Ret. Sys. v. Lee, 23 So. 3d 528, 530-31 (¶5) (Miss. Ct. App. 2009) (quoting
M.R.A.P. 4(h) cmt.).
11
consequence other than the cost of having to oppose the appeal and encounter the risk of
reversal, consequences that are present in every appeal.” M.R.A.P. 4(h) cmt. “Prejudice
might arise, for example, if the appellee had taken some action in reliance on the expiration
of the normal time period for filing a notice of appeal.” Id.
¶15. The Crosbys argue that the Mittelstaedts presented no evidence of prejudice because
they failed to show any action in reliance on the finality of the December 16, 2014 order.
However, the Crosbys’ argument fails to recognize that such reliance is but an “example” of
the sort of prejudice that may support the denial of a motion to reopen. Id. (emphasis added).
As the comments explain, “some adverse consequence other than the cost of having to
oppose the appeal and encounter the risk of reversal” is sufficient to support a finding of
prejudice. Id. (emphasis added). The Mississippi Supreme Court “adopted” these comments
“to give authoritative guidance to the correct interpretation of the[] Rules” of Appellate
Procedure. Order Adopting the Mississippi Rules of Appellate Procedure, No. 89-R-99027
(Miss. Dec. 15, 1994) (emphasis added).
¶16. Applying this standard, we conclude that there is some evidence in the record that
would support a finding of prejudice. Specifically, the Mittelstaedts have been trying to sell
their property since 2007, and their realtor stated in an affidavit that although a number of
potential buyers have shown interest in the property, it will be extremely difficult to sell as
long as this litigation is pending. While this adverse consequence is certainly related to the
pendency of the appeal, it is distinct from the mere “cost of having to oppose the appeal” or
12
“the risk of reversal.” The prejudice that the Mittelstaedts claim, supported by an affidavit,
is in addition to ordinary litigation costs and would be experienced even if the special court’s
order were eventually affirmed in full on the merits.
¶17. The Crosbys did not attempt to rebut the Mittelstaedts’ evidence; they simply argue
that it is not credible. The Crosbys argue that “there is no legal impediment to the
Mittelstaedts selling their property,” but that is too narrow a view of the issue. Regardless
of whether there is a direct legal barrier to sale, it would be reasonable to conclude that
prospective buyers could be scared away by the fact that this long-running and obviously
contentious litigation concerning the property remains unresolved. Given our deferential
standard of review, we believe that the Mittelstaedts’ evidence is sufficient to support the
special court’s implicit finding of prejudice. See Lee, 23 So. 3d at 532 (¶10). Accordingly,
the special court did not abuse its discretion by denying the Crosbys’ motion.
B. Trial Court’s Residual Discretion Under Rule 4(h)
¶18. In addition to evidence in the record that would support a finding that the Mittelstaedts
would be prejudiced, the comments to Rule 4(h) make clear that “the trial court retains some
discretion to refuse to reopen the time for appeal even when the requirements of Rule 4(h)
are met[.]” M.R.A.P. 4(h) cmt. (emphasis added). As noted above, the comments are
promulgated by the Supreme Court and are “authoritative” as to the “correct interpretation
of the[] Rules.” Order Adopting the Mississippi Rules of Appellate Procedure, No. 89-R-
99027 (Miss. Dec. 15, 1994). Thus, a trial court has some measure of residual discretion to
13
deny a motion to reopen the time for appeal even if evidence of prejudice is lacking.
¶19. We expressly applied this principle in Clayton v. Hartsog, where we affirmed the
denial of a motion for an out-of-time appeal without discussion of the issue of prejudice.
Clayton, 970 So. 2d at 250 (¶6). There, the county court granted summary judgment in favor
of the defendant and also sanctioned the plaintiff for filing a frivolous lawsuit. Id. The
circuit court affirmed the county court on both issues and then denied the plaintiff’s motion
for an out-of-time appeal. The court denied the motion even though, similar to this case, it
was undisputed that the plaintiff (a) did not receive timely notice of the judgment due to an
error in the clerk’s computer system and (b) promptly moved to reopen the time for appeal
upon receipt of notice. Id. at (¶¶5-6). We affirmed, reasoning, “Given these facts, especially
the imposition of sanctions for filing a frivolous suit, we cannot say that the circuit court
abused the discretion granted to it by Rule 4(h) when it denied [the plaintiff’s] motion to
reopen the time for appeal.” Id. at (¶6).
¶20. Unlike Clayton, the judge in this case did not actually sanction the Crosbys in his
December 2014 order (although, as discussed above, he expressly reserved ruling on that
very issue). But it is clear from the order that the judge found that the Crosbys acted in bad
faith. He found that the Crosbys “violated” their obligation “to use their best efforts and
good faith to carry out all terms of the [court-approved] settlement agreement.” He also
found that they violated the settlement agreement and Mississippi Code Annotated section
11-47-3 by filing a new lis pendens without leave of the court. He ordered the Crosbys to
14
pay $1,000 in attorneys’ fees because their actions compelled the Mittelstaedts to return to
court to enforce the settlement. And he found that the Crosbys’ “actions constitute[d] a
deliberate violation and breach of the settlement agreement.” In our view, these findings are
tantamount to the finding of frivolousness that was the basis of our affirmance in Clayton.
Furthermore, since the Crosbys placed nothing in the record on appeal that contradicts these
findings, we will presume that they are supported by the record.7 “Given these facts, . . . we
cannot say the [special] court abused the discretion granted to it by Rule 4(h) when it denied
[the Crosbys’] motion to reopen the time for appeal.” Clayton, 970 So. 2d at 250 (¶6).
¶21. As discussed in the previous section of this opinion, the special court did not abuse
its discretion because there is evidence in the record to support a finding that the
Mittelstaedts would be prejudiced by reopening the appeal. Standing alone, that is a
sufficient basis on which to affirm. However, we also conclude that the special court did not
abuse its discretion given its express findings that the Crosbys deliberately violated a court-
approved settlement agreement.
CONCLUSION
¶22. The Pearl River County Special Court of Eminent Domain did not abuse its discretion
under Mississippi Rule of Appellate Procedure 4(h) by denying the Crosbys’ motion to
7
See, e.g., Pennington v. Dillard Supply Inc., 858 So. 2d 902, 903 (¶5) (Miss. Ct.
App. 2003) (“It is an appellant’s duty to justify his arguments of error with a proper record
or the trial court will be considered correct. The record on appeal must show such portions
of the record of the trial court as are necessary for a consideration of the questions
presented.” (internal citation omitted)).
15
reopen the time for appeal. Therefore, we affirm.
¶23. THE JUDGMENT OF THE PEARL RIVER COUNTY SPECIAL COURT OF
EMINENT DOMAIN IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANTS.
LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE AND CARLTON, JJ., CONCUR.
IRVING, P.J., AND JAMES, J., DISSENT WITHOUT SEPARATE WRITTEN
OPINION. FAIR AND GREENLEE, JJ., NOT PARTICIPATING.
16