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Moore v. McDonald

Court of Appeals of Mississippi

February 7, 2017

KENNETH MOORE AND CAROLYN MOORE APPELLANTS
v.
ROY D. MCDONALD, DONNA R. MCDONALD AND RUTH BELTON APPELLEES

          DATE OF JUDGMENT: 07/20/2015

         PEARL RIVER COUNTY CHANCERY COURT, HON. DAWN H. BEAM.

          ATTORNEYS FOR APPELLANTS: JOHN R. REEVES JOHN JUSTIN KING.

          ATTORNEYS FOR APPELLEES: SAMUEL STEVEN MCHARD MARCUS ALAN MCLELLAND.

         EN BANC.

          WILSON, J.

         ¶1. This appeal involves a long-running boundary dispute between neighbors in Pearl River County. In 2010, this Court unanimously affirmed the judgment of the chancery court establishing the boundary between the property of Roy and Donna McDonald and Donna's mother, Ruth Belton (collectively, "the McDonalds"), and the property of Kenneth and Carolyn Moore. Moore v. McDonald, 47 So.3d 1186, 1190 (¶17) (Miss. Ct. App. 2010). The judgment also enjoined the Moores from disturbing the McDonalds' peaceful and quiet enjoyment of their property. In 2013, the Moores willfully violated that injunction by ignoring the boundary established by the judgment; using a tractor and auger to put fenceposts in the McDonalds' driveway, which rendered the driveway impassable and forced the McDonalds to install a new gate to access their land from another road; tearing down the McDonalds' fence; uprooting or cutting down numerous large crepe myrtle trees on the McDonalds' property; littering the McDonalds' property with debris; and threatening, intimidating, and bullying Donna McDonald. The McDonalds filed a petition for contempt and other relief, and the chancellor found that the Moores were in contempt and awarded the McDonalds compensatory damages, attorneys' fees and expenses, and $10, 000 in punitive damages.

         ¶2. On appeal, the Moores do not dispute any of the chancellor's findings. Nor do they dispute that their conduct was malicious and outrageous such that it was appropriate for the court to assess punitive damages and attorneys' fees. They argue that the chancellor erred by awarding the McDonalds attorneys' fees incurred in connection with the Moores' bankruptcy case and attorneys' fees for the work of more than one lawyer. They also argue that the punitive award exceeds two percent of their net worth, in violation of Mississippi Code Annotated section 11-1-65(3) (Rev. 2014). As we explain below, the chancellor's award of attorneys' fees was proper, and the Moores are not entitled to the benefit of the statutory cap on punitive damages because they waived the issue and failed to present any credible evidence of their net worth. Therefore, we affirm.

         ¶3. The Moores do not challenge any of the chancellor's factual findings, and their brief includes virtually no discussion of the facts or procedural history of the case; accordingly, we discuss the facts and proceedings below only to the extent necessary to address the Moores' three issues on appeal.

         DISCUSSION

         I. Attorneys' Fees Related to the Moores' Bankruptcy Case

         ¶4. On May 16, 2014, the McDonalds filed a motion for summary judgment supported by exhibits and affidavits. Eleven days later, the Moores filed for bankruptcy. As a result, all proceedings in the chancery court were stayed and the impending trial was cancelled. Counsel for the McDonalds entered an appearance in the bankruptcy case and filed an adversary complaint to preserve the McDonalds' claim against the Moores. See 11 U.S.C. § 523(a)(6) (2012) (providing that a debt for "willful and malicious injury" to the person or property of another is not dischargeable in bankruptcy). The McDonalds' counsel also attended the meeting of creditors and filed a motion for sanctions based on the Moores' alleged misrepresentations in the bankruptcy case. In response to hearing notices in the McDonalds' adversary proceeding, the Moores appeared before the bankruptcy court and asked that their bankruptcy petition be dismissed. The court granted their request, which permitted the chancery case to proceed.

         ¶5. The chancellor found "that the Moores intentionally stalled [the chancery] action by filing [a petition for] bankruptcy which was dismissed after considerable time and effort by [counsel for the McDonalds]." The chancellor therefore found that "attorney time and expenses expended . . . in the Moore bankruptcy case were properly incurred on behalf of the McDonalds and should be awarded as part of the fees and costs awarded in this case." On appeal, the Moores do not challenge the chancellor's factual basis for awarding attorneys' fees incurred in connection with the bankruptcy case. The Moores' only argument is that "[t]he Pearl River County Chancery Court was not the appropriate forum to request attorneys' fees for work related to the bankruptcy." They argue that approximately $3, 975 in fees that the McDonalds incurred related to the bankruptcy proceeding could only be recovered in the bankruptcy court.

         ¶6. The Moores' argument is without merit. The Moores do not dispute that the McDonalds were entitled to an award of attorneys' fees, and they cite no authority for their argument that such fees are not recoverable simply because they were incurred in a related bankruptcy proceeding. Although not directly on point, our Supreme Court recently held that a state court can award fees incurred in federal court in connection with a motion to remand the case to state court. See O.D. v. Dillard, 177 So.3d 175, 189 (¶44) (Miss. 2015). In addition, other courts have held that a state court may award attorneys' fees incurred in connection with a related bankruptcy proceeding. See Chinese Yellow Pages Co. v. Chinese Overseas Mktg. Serv. Corp., 170 Cal.App.4th 868, 882 ...


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