Crosby v. Mittelstaedt

186 So.3d 415

Paula W. CROSBY, individually, 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, Appellants

v.Kathryn Adele MITTELSTAEDT, Executrix of the Estate of Gloria Simon Mittelstaedt, Deceased, Kathryn Adele Mittelstaedt, individually, Douglas E. Mittelstaedt and Carol Ann Mittelstaedt Koelemay, Appellees.

No. 2015–CA–00529–COA.

Court of Appeals of Mississippi.

Feb. 23, 2016.

Thomas H. Huval Sr., attorney for appellants.

Joseph H. Montgomery, Elijah Bragg Williams, III, Gregory Paul Holcomb, attorneys for appellees.

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 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 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 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....

....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 judgment or order or within 7 days of receipt of

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