Diaz v. Bounds
| Docket Number: | 2006-CA-01634-COA Linked Case(s): 2006-CA-01634-COA ; 2006-CT-01634-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 02-05-2008 Opinion Author: CHANDLER, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Real property - Hearing on contempt - Timeliness of appeal - M.R.A.P. 4(a) - Contempt Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Concur in Part, Concur in Result 1: IRVING, J. Procedural History: Dismissal Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 09-21-2006 Appealed from: Lamar County Chancery Court Judge: Johnny Lee Williams Disposition: DEFENDANTS FOUND IN CONTEMPT OF COURT Case Number: 2004-0311-GN-W |
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| Party Name: | Attorney Name: | |||
| Appellant: | ALLEN DIAZ AND EDNA DIAZ |
WILLIAM L. DUCKER |
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| Appellee: | MARY ETHEL BOUNDS | JACK PARSONS |
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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. |
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| Topic: | Real property - Hearing on contempt - Timeliness of appeal - M.R.A.P. 4(a) - Contempt |
| Summary of the Facts: | Allen Diaz was found to be in contempt of court for failing to comply with a prior judgment that required Allen and his wife Edna Diaz to grant an easement to Mary Bounds. The chancellor ordered Allen to pay Bounds’s attorney’s fees and to be held in custody until he complied with the court order. Allen appeals. |
| Summary of Opinion Analysis: | Issue 1: Hearing The Diazes argue that it was error for the court to hear Bounds’ argument in support of her first motion for contempt (this appeal deals with her second motion for contempt) only hours after it had allowed the Diazes’ previous attorney to withdraw and had granted them fifteen days to find substitute counsel. They argue that because the court ignored its own order and proceeded with the hearing, the Diazes had no attorney to represent them for the contempt matter. M.R.A.P. 4(a) allows for thirty days to file an appeal once judgment has been entered. The Diazes did not file a notice of appeal following the first judgment of contempt. Instead, they waited until after the court entered a second order finding Allen in contempt. Therefore, this issue is procedurally barred from review. Issue 2: Contempt The Diazes argue that Allen should not have been held in contempt when it was his ailing wife who had not signed the easement. The evidence in the record supports the chancellor’s findings. The court order at issue was clear. As agreed by both parties, the judgment filed December 27, 2005, ordered the Diazes to execute an easement to Bounds along the north side of their property, to move their fence located along the north side of their property, and to clear the trees and debris located on the right-of-way. According to the terms of the judgment, the Diazes were to execute the easement within fifteen days and were to have the area cleared of trees and debris by January 31, 2006. It was uncontradicted that the Diazes did not comply with any of the terms of the judgment. Notwithstanding Allen’s wife’s failure to sign the easement, Allen’s own testimony provided that he did not sign the easement until the day before the second contempt hearing. The proposed easement that Allen signed did not include all of the terms of the judgment. Thus, the chancellor was not in error in finding Allen to be in contempt. Allen also argues that the court erred in holding him in contempt because, while he did not sign the easement drafted by Bounds, he did sign a form easement. The chancellor was not in error in finding Allen in contempt. At the time of the hearing, he had not signed an easement that contained the necessary provisions nor had he cleared the agreed-upon right-of-way. |
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