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Residential Advantage Development, LLC v. Ross

Court of Appeals of Mississippi

April 15, 2014

RESIDENTIAL ADVANTAGE DEVELOPMENT, LLC AND MATTHEW AVERY, APPELLANTS
v.
EXECUTOR, ADMINISTRATORS, DEVISEES, BENEFICIARIES, AND ASSIGNS OF HEIRS-AT-LAW OF DWIGHT TYRONE ROSS, MARVIN FISHER, DWIGHT T. ROSS, JR., DONNA M. ROSS, JOHN LEES ROSS AND CATHERINE ROSS, ET AL., APPELLEES

COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT. DATE OF JUDGMENT: 11/08/2012. TRIAL JUDGE: HON. DENISE OWENS. TRIAL COURT MOTION TO ALTER OR AMEND THE JUDGMENT DENIED.

FOR APPELLANTS: CHRISTOPHER SOLOP, OTIS JOHNSON, TRAVIS JONATHAN CONNER.

FOR APPELLEES: DONNA ROSS PHILIP.

BEFORE LEE, C.J., ROBERTS AND JAMES, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

OPINION

Page 477

NATURE OF THE CASE: CIVIL - REAL PROPERTY

ROBERTS, J.

¶1. Residential Advantage Development LLC and Matthew Avery (collectively " RAD" ) appeal the Hinds County Chancery Court's grant of the Ross family's request for permanent injunctive relief.[1] At issue is Lot 20, Block F of Beverly Heights, Part 2, located in Hinds County, owned by the Ross family, but upon which

Page 478

RAD, which owns Lot 21, mistakenly built a residence. RAD asks this Court to determine whether the chancery court erred in failing to consider ejectment as an available equitable remedy. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On July 24, 2009, RAD was issued a forfeited tax land patent covering Lot 21, Block F of Beverly Heights, Part 2. RAD constructed a residence on an empty lot it believed to be Lot 21; however, the empty lot was actually Lot 20, belonging to the Ross family. It was not until the construction was complete that RAD had a survey conducted, and it was discovered that the residence was built mistakenly on Lot 20 instead of Lot 21.

¶3. Following this discovery, RAD filed suit on May 12, 2011, requesting the chancery court impose a constructive trust on the lot and, following a trial on the merits, compel the Ross family to sell Lot 20 to RAD for the unimproved value of the lot. The Ross family filed its answer and a counterclaim for injunctive relief in the form of a permanent injunction for RAD to remove the residence from Lot 20.

¶4. Trial began in the chancery court on May 29, 2011. RAD presented three witnesses at trial: Craig Lipka, Kenneth Williams, and Kenneth Avery. Lipka, a managing partner of RAD, testified that according to Mississippi land databases, the lot RAD owned was vacant and unimproved, when in actuality, the prior owner, who had owned Lots 21 and 22, had built a house on Lot 21 and not on Lot 22 as the city land databases indicated.[2] He also testified to the extent of difficulty and cost RAD would incur to move the residence off of the Ross family's lot. Lipka also testified that RAD would be willing to compensate the Ross family for the original, unimproved lot, or should the Ross family want to keep the lot, have the chancery court award RAD the cost of the residence, as it is an improvement on the lot. On cross-examination, Lipka acknowledged that if RAD had conducted a survey of the lot prior to beginning construction, it would have become apparent that it was not the correct lot. But Avery later testified that a pre-construction survey is generally not done in a platted subdivision recorded with the county or city " ...


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