Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Berlin v. Livingston Property Owners Association, Inc.

Court of Appeals of Mississippi

April 25, 2017


          DATE OF JUDGMENT: 06/23/2015





          WILSON, J.

         ¶1. Paul and Janice Berlin are residents of Livingston, a covenant-restricted community in Madison County. Their 3.56-acre lakefront lot is subject to a maintenance easement that extends twenty feet onto their property from the lake's highwater mark. Their lot is also subject to a covenant requiring them to obtain approval from the Architectural Review Committee (ARC) of the Livingston Property Owners Association (LPOA) prior to beginning construction of fences and other improvements on their property. The Berlins asked the ARC to approve a planned fence that would not be enclosed on the lakeside boundary of their property but would instead extend across the maintenance easement and three feet out into the lake along their east and west property lines. The ARC declined to approve the proposed fence on the ground that it would interfere with the maintenance easement. The Berlins built the fence anyway.

         ¶2. LPOA sued the Berlins in the Madison County Chancery Court. Following a two-day trial, the chancellor entered a final judgment and opinion finding that the Berlins were in violation of the restrictive covenants applicable to their property. She ordered them to remove the portions of their fence that extend across the easement and into the lake. She also awarded LPOA attorneys' fees. The Berlins appealed. They argue that the chancellor's decision is erroneous for multiple reasons, that she erred in awarding attorneys' fees without holding a hearing on the reasonableness of the fees requested by LPOA, and that she abused her discretion by excluding one document as irrelevant. For the reasons that follow, we find no error and affirm.


         ¶3. Livingston is a residential community consisting of fifty-nine lots and four lakes on sixteenth-section school trust land near the intersection of Highway 463 and Highway 22 in Madison County. All lots in Livingston are subject to a declaration of covenants, conditions, and restrictions that was duly filed with the Madison County Chancery Clerk in 2001. The declaration established LPOA, which is responsible for enforcing the covenants and maintaining all common areas and lakes. ¶4. In 2005, the Berlins entered into a long-term residential lease for Lot 21 at Livingston, a 3.56-acre lot on one of the subdivision's lakes. The Berlins' lease states that their lot is subject to the covenants.

         ¶5. Section 11.02 of Livingston's covenants reserves to LPOA a twenty-foot easement from the lake's edge at its highwater level for lake "maintenance and control purposes only." The declaration clearly states, in multiple places, that any interest in any of the lakefront properties in the subdivision is subject to the easement.

         ¶6. The covenants also establish the ARC to exercise "architectural control" over the subdivision. Section 10.02 of the covenants provides, as relevant in this case, that "no . . . fences . . . shall be commenced, erected, constructed[, ] . . . or permitted to remain on . . . any Lot, until after compliance with the review process of this Article X and approval . . . by the [ARC]." The review process requires the submission of detailed building and landscaping plans to the ARC. Section 10.03 provides that the ARC must review and approve or disapprove submissions within thirty business days of receipt of all plans. Section 10.03 also states that the ARC shall provide "[w]ritten notice of [its] decision, " which "shall specify the reasons for any disapproval." Decisions of the ARC may be appealed to the subdivision's board of directors, and residents are entitled to a hearing before the board.

         ¶7. On or about February 6, 2010, Paul Berlin delivered a handwritten plan for the construction of a fence on his lot to Jerry Ward, the chair of the ARC. The plan proposed the construction of iron fences commencing on both sides of the Berlins' home, running to and then continuing down the property lines on the east and west sides of the property, and then finally crossing the twenty-foot maintenance easement and extending three feet out into the lake. The plan also showed a three-foot-wide "walk gate" on one side of the maintenance easement and an eight-foot-wide "access gate" on the opposite side of the easement.

         ¶8. The ARC met within a few days and voted unanimously to disapprove the proposed fence. Ward then met with Paul and explained that the ARC had disapproved the fence because it crossed the maintenance easement and extended into the lake. Ward suggested that Paul could revise and resubmit his plan or meet with the ARC. The ARC would have approved a fence with the same design and materials if it had been enclosed on the lakeside of the property and stopped short of the maintenance easement. Ward told Paul that he could also appeal and meet with LPOA's board of directors. Paul responded that enclosing the fence, rather than extending it into the lake, would cost an additional $5, 400. Paul then told Ward that he was not going to meet with the board or the ARC and that he intended to build the fence as proposed, without revisions and without ARC approval.

         ¶9. Ward notified LPOA's board of directors of Paul's statement that he intended to build the fence without ARC approval, and the board contacted LPOA's attorney, Don McGraw. On February 26, 2010, McGraw sent a letter to the Berlins confirming that the ARC had disapproved their proposed fence. McGraw's letter also stated that he understood that the Berlins had stated that they intended to disregard the ARC's decision and build the fence anyway. McGraw warned that LPOA would seek injunctive relief and an award of attorneys' fees and expenses if the Berlins proceeded in disregard of the ARC's decision.

         ¶10. The Berlins began construction on their fence at some point in March 2010. Although they never submitted modified plans to the ARC, they ultimately constructed the fence with three eight-foot-wide gates. Otherwise, the fence was constructed as originally planned. On March 31, 2010, their attorney sent McGraw a letter informing him that the Berlins intended to proceed with construction of the fence. The letter asserted that the Berlins were entitled to proceed with construction because LPOA failed to give them a written statement of the reasons that the fence was disapproved.

         ¶11. LPOA filed suit in the Madison County Chancery Court on May 20, 2010. LPOA's complaint asked the court to enforce the subdivision's covenants, enjoin the Berlins from maintaining their fence without ARC approval, and order the Berlins to remove the portion of the fence that encroached on LPOA's maintenance easement. LPOA also requested an award of attorneys' fees and other costs. The Berlins filed an answer and counterclaim accusing LPOA of arbitrary and selective enforcement of the covenants. The counterclaim demanded attorneys' fees, costs, and punitive damages. The parties engaged in discovery, and the case eventually proceeded to trial in January and September 2014.

         ¶12. Paul, Ward, and Steve Horn were the only witnesses at trial. Horn is a resident of Livingston and the president of its developer, Livingston Development Corporation. Ward and Horn testified that LPOA and its contractors regularly use the maintenance easements that surround the lakes to spray for weed control and to monitor the lakes for beavers and nutria, among other things. They testified that aquatic weeds, beavers, and nutria can cause serious harm to the lakes, which are one of the neighborhood's essential amenities. Horn testified that a contractor regularly rides along the easements, often on a four-wheeler, looking for any issues that need attention. Ward and Horn testified that weed control is conducted with a Kubota or Polaris utility vehicle equipped with a twenty-five gallon tank and a sprayer. Ward and Horn insisted that it was not practical for LPOA and its contractors to work through fences that cross the easement, even if the fences had gates. They noted that the Berlins have three dogs (two bulldogs and a schnauzer), and LPOA did not want to be responsible for keeping dogs inside a fence. In addition, the plans submitted by the Berlins had only one eight-foot-wide "access gate, " which would prevent a utility vehicle or four-wheeler from entering on one side of the property and continuing out the other.

         ¶13. Horn also testified that a neighbor three houses down from the Berlins requested permission to build a fence that was similar but was enclosed and stopped short of the maintenance easement. The ARC approved the plans, and a photograph of the fence was admitted into evidence at trial.

         ¶14. Paul claimed that he had not witnessed anyone performing any type of maintenance or monitoring within the easement in years. He did not believe that his gated fence would cause any problems for anyone. He testified that he would be happy to put up his dogs if given a little advance notice. Paul also complained that the ARC had authorized another resident, Darryl Gibbs, to plant shrubs across the maintenance easement on Gibbs's property. Paul felt that the ARC had been inconsistent in its enforcement of the covenants.

         ¶15. On June 24, 2015, the chancellor entered an opinion and final judgment finding that the Berlins had violated the covenants and that LPOA was entitled to injunctive relief. The chancellor ordered the Berlins, within sixty days of the judgment, to remove the portions of their fences that encroached on the twenty-foot maintenance easement. The chancellor also awarded LPOA $17, 485.58 for attorneys' fees and expenses, said amount to be paid in full by the Berlins within one year. The chancellor denied all relief requested ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.