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Misita v. Conn

Supreme Court of Mississippi, En Banc

May 15, 2014

JOEL MISITA
v.
ROY A. (AL) CONN AND MITZI P. CONN

As Corrected May 21, 2014.

COURT FROM WHICH APPEALED: ADAMS COUNTY CHANCERY COURT. DATE OF JUDGMENT: 10/25/2011. TRIAL JUDGE: HON.E. VINCENT DAVIS. TRIAL COURT ATTORNEYS: KATIE W. FREIBERGER.

THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THE JUDGMENT OF THE ADAMS COUNTY CHANCERY COURT IS REINSTATED AND AFFIRMED.

FOR APPELLANT: R. KENT HUDSON.

FOR APPELLEES: KATIE W. FREIBERGER.

RANDOLPH, PRESIDING JUSTICE. WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

OPINION

Page 139

NATURE OF THE CASE: CIVIL - REAL PROPERTY

RANDOLPH, PRESIDING JUSTICE.

¶1. Roy and Mitzi Conn. filed suit in the Chancery Court of Adams County against their adjoining landowner Joel Misita, who had placed a structure on his land. The Conns sought to enforce a warranty deed restriction placed by their predecessors in title that prohibited Misita from erecting any " structures" on three acres of his land. The chancery court ruled in favor of the Conns and ordered the removal of the structure. The Court of Appeals affirmed the Conns' authority to enforce the restrictive covenant but reversed the chancery court's determination that it was a structure. This Court granted the Conns' Petition for Writ of Certiorari. We affirm in part and reverse in part the judgment of the Court of Appeals and reinstate and affirm the judgment of the chancery court.

Page 140

FACTS AND PROCEDURAL HISTORY

¶2. Kevin and Rebecca Wilson owned a residence and approximately twenty-seven acres in Adams County. On November 16, 2007, the Wilsons deeded approximately three acres of the twenty-seven acres to Misita.[1] The conveyance consisted of unimproved property fronting Highway 61 in Adams County and adjoined Misita's existing seven acres, where Misita had constructed a sixty-two-feet-high, custom-built, three-story home.[2] There were also multiple outbuildings, sheds, and trailers on this property as well. Prior to the sale of the three acres, Kevin visited Misita and informed Misita that the deed would contain a provision " that no structures are to be erected on the property." Misita stated that such a provision was " fine," but now Misita alleges he understood Wilson's request to encompass only structures like his sixty-two-feet high home. The warranty deed conveyed to Misita from Wilson contained a provision which provided, inter alia, that " [n]o structures are to be erected on the property."

¶3. On June 19, 2008, the Wilsons sold their remaining acreage and home, which was appraised for $850,000, to Al and Mitzi Conn. Prior to the sale, Kevin informed the Conns that the three acres of Misita's property fronting Highway 61 were subject to a scenic easement and no structures could be placed on the property. Al later reviewed the deed from Wilson to Misita to confirm the " no-structure" provision prior to purchasing the property. The Conns testified that the restrictive covenant played a major role in their decision to purchase the property, as it prevented the three-acre frontage portion of Misita's property from becoming " junked-up" like the rest of Misita's property. The warranty deed conveying the property did not include the restrictive covenants placed on Misita's land. After the Conns purchased the Wilson property, Misita informed the Conns that ...


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