Journeay v. Berry
| Docket Number: | 2005-CA-00896-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 04-10-2007 Opinion Author: CHANDLER, J. Holding: Affirmed in Part, Reversed in Part |
|
| Additional Case Information: |
Topic: Real property - Misnomer in restrictive covenants - Covenants run with the land - Variances - Request for additional time - M.R.C.P. 56(f) - Motion to alter or amend the judgment - M.R.C.P. 59(e) - Supersedeas bond - M.R.A.P. 8(b) - Attorney’s fees Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Ishee, Roberts and Carlton, JJ. Dissenting Author : GRIFFIS, J. Concurs in Result Only: Irving and Barnes, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - REAL PROPERTY |
|
| Trial Court: |
Date of Trial Judgment: 03-09-2005 Appealed from: RANKIN COUNTY CHANCERY COURT Judge: Thomas L. Zebert Disposition: SUMMARY JUDGMENT FOR APPELLEE Case Number: 52894 |
|
| Party Name: | Attorney Name: | |||
| Appellant: | HENRY R. JOURNEAY AND JANIE E. JOURNEAY,
J. BAXTER AND WANDA R. BURNS |
MICHAEL P. YOUNGER,
J. KEVIN WATSON |
||
| Appellee: | CHARLES G. BERRY AND MICHELLE M. BERRY | IAN CHARLES JONES, HOLMES S. ADAMS, JEFFERSON D. STEWART |
|
|
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
|
| Topic: | Real property - Misnomer in restrictive covenants - Covenants run with the land - Variances - Request for additional time - M.R.C.P. 56(f) - Motion to alter or amend the judgment - M.R.C.P. 59(e) - Supersedeas bond - M.R.A.P. 8(b) - Attorney’s fees |
| Summary of the Facts: | Charles and Michelle Berry brought suit against their next door neighbors Henry and Janie Journeay and J. Baxter and Wanda Burns, asserting that the Journeay’s and Burns’s fences violated the restrictive covenants governing their neighborhood property, and that the fences caused damage to Berry. The chancellor granted Berry’s summary judgment and held that the covenants were valid and enforceable against the Burns and Journeays. The Burns and Journeays appeal, and Berry cross-appeals. |
| Summary of Opinion Analysis: | Issue 1: Misnomer in restrictive covenants The original deed conveyance and restrictive covenants recorded in the real property general index for the county incorrectly listed the grantor and declarant as “L.O.M. Corporation,” instead of the correct name, “L.O.M. Properties, Inc.” Burns and Journeay argue that the misnomer invalidates the deeds and covenants, and therefore, the covenants do not run with the land and do not bind any of the subsequent landowners. For a warranty deed, all the law requires is that the grantee be described in such terms that by reference to objective evidence otherwise available, his identity may be ascertained with reasonable certainty. The identity of L.O.M. Properties, Inc. was reasonably ascertainable. “L.O.M. Corporation” did not exist at the time of the original conveyance. The only legal entity registered in Mississippi whose name began with “L.O.M.” or “LOM” was “L.O.M. Properties, Inc.” Thus, if one were to enter a search for “L.O.M. Corporation,” L.O.M. Properties, Inc. should have been included in the list of possible matches. In addition, the owners of the subdivision intended that the restrictive covenants be recorded as “L.O.M. Properties, Inc.” and remedied the situation when alerted by preparing new deeds with the correct name. All of the deed transfers were subsequently corrected with the proper corporate name. The misnomer in the original deed transfer did not invalidate the restrictive covenants, and even if it had, the developer followed the necessary steps to correct the defect. Issue 2: Covenants run with the land For a covenant to run with the land, the covenanting parties must intend to create such covenant, privity of estate must exist between the person claiming the right to enforce the covenant and the person upon whom burden of covenant is to be imposed, and the covenant must touch and concern the land in question. Covenants which run with the land may be enforced by subsequent assignees or successors in title to the original parties. The developer intended the covenant to run with the land as evinced by the language in the Declaration of Covenants. The deed transfers contain language stating that the property is subject to all applicable restrictive covenants. Privity of estate was established when the lots were sold, and each lot owner received a copy of the restrictive covenants and agreed to be bound by them. By restricting certain structures which would be inconsistent with the development scheme, the covenants protect the character of the subdivision. Therefore, the restrictions do touch and concern the land. As successors to the original contracting parties, Journeay and Burns had actual notice of the covenant restrictions. Thus, Burns and Journeay are both clearly bound by the covenants. Issue 3: Variances Burns and Journeay argue that they were given single-lot variances for their fences. The original owners constructed the covenants to run with the land and bind all subsequent lot owners. All of the initial lot owners relied upon the provisions of the covenants and agreed to abide by them. The covenants did not contain a provision authorizing single-lot variances. However, the covenants did provide for a procedure to be followed to amend the covenants. Therefore, neither the Board of Directors or the Architectural Review Committee of the Homeowners’ Association or the developers had the authority to grant any single-lot variances. Although Burns and Journeay took measures to attempt to amend the covenants by personally soliciting signatures from residents of the subdivision to change the community bylaws, they did not follow the procedure established by the Board. Issue 4: Request for additional time Burns and Journeay argue that the chancellor’s denial of their M.R.C.P. 56(f) request for additional time denied them a fair opportunity to respond to Berry’s cross-motion for summary judgment. The party resisting summary judgment must present specific facts why he cannot oppose the motion and must specifically demonstrate how he would be able to rebut the movant’s showing of the absence of a genuine issue of material fact. Berry filed the case against Journeay on February 25, 2003, and added Burns to the amended complaint on April 6, 2004. Burns filed a motion for summary judgment on August 10, 2004, and Berry responded on August 17, 2004, with a cross-motion for summary judgment. No discovery requests or notice to depose Berry were filed by Burns or Journeay. Therefore, sufficient time passed in which neither Burns nor Journeay attempted to avail themselves of the discovery process. Issue 5: Motion to alter or amend the judgment Burns and Journeay argue that the chancellor abused his discretion by denying their M.R.C.P. 59(e) motion to set aside his order and allow discovery to proceed because they were denied the opportunity to develop additional evidence. In order to succeed on a Rule 59(e) motion, the movant must show an intervening change in controlling law, the availability of new evidence not previously available, or the need to correct a clear error of law or to prevent manifest injustice. Burns and Journeay argue that after the Board’s vote to amend Article 5 of the covenants, the vote provided new evidence to bolster their case. However, the new language in Article 5 is not relevant to any of the parties. Issue 6: Supersedeas bond The chancellor included in his final order, sua sponte, a $50 per day penalty from the 90th day after the entry of the judgment if Burns or Journeay failed to comply with the injunction and required an $18,250 supersedeas bond. Burns and Journeay argue that under M.R.A.P. 8(b), the final judgment is not a monetary judgment; therefore, the final order constitutes an improper penalty assessment. They further argue that the amount of the bond should not have exceeded the statutory maximum of $1,000. A supersedeas bond is proper even where the relief appealed is nonmonetary, such as injunctive relief. The lower court did not make a final judgment of civil or criminal contempt against Burns and Journeay but stated that if Burns and Journeay did not comply with the final order within ninety days, then they would be in contempt and subject to a civil fine or penalty of $50 for each day not in compliance. Under Rule 8(b), the court did not abuse its discretion in ordering the amount to be paid for the supersedeas bond. Issue 7: Attorney’s fees Berry cross-appeals that the judge erred in denying him attorneys’ fees. Unless a statute or contract provides for the imposition of attorney fees, they are not recoverable. Article 18 in the restrictive covenants provides that, “In any legal or equitable proceeding . . . , the prevailing party or parties shall also be entitled to an award of reasonable attorneys’ fees and costs[.]” Because the restrictive covenants were valid, ran with the land, and subsequently bound each successor in interest, the contract provision of Article 18 should be upheld and attorneys’ fees should be awarded to Berry as the prevailing party. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
