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Hatfield v. Deer Haven Homeowners Association, Inc.

Supreme Court of Mississippi, En Banc

September 14, 2017


          DATE OF JUDGMENT: 05/26/2016






         ¶1. A homeowner appeals an award of attorney fees associated with a complaint filed against him for injunctive relief to enforce a neighborhood's restrictive covenants. We affirm.


         ¶2. On October 31, 2013, the Deer Haven Owners Association filed a Complaint for Mandatory Injunction and Other Relief against Arlin George Hatfield III in the Chancery Court of Madison County, claiming Hatfield-a homeowner in the subdivision-had violated the subdivision's restrictive covenants by erecting pens for various fowl without the covenants' required prior approval, and that Hatfield's fowl had violated the covenants' prohibition against noxious or offensive activities by roaming around the subdivision and making loud noises. The Association sought an injunction ordering Hatfield to comply with the covenants and an award of attorney fees.[1]

         ¶3. Hatfield answered and filed a counterclaim seeking a declaratory judgment. He asked the chancellor to declare that his birds were domestic animals which could be kept in Deer Haven consistent with the covenants and that the pens were not improvements within the meaning of the covenants. Hatfield also sought attorney fees.

         ¶4. On June 29, 2015, the Association filed an amended complaint alleging that the Madison County Board of Supervisors had rendered a decision finding that "Hatfield's keeping and raising of birds/fowl on his lot [was] a violation of the Madison County Zoning Ordinance." And according to the Association, Hatfield's failure to comply with county zoning ordinances also violated the covenants.

         ¶5. The parties filed motions for summary judgment and the chancellor held a hearing, following which the chancellor granted the Association's motion, found that Hatfield had violated the Madison County Zoning Ordinance, and concluded that the Association was entitled to an injunction ordering him to remove the fowl from his property. The chancellor also concluded the Association was entitled to recover attorney fees, but that a hearing was necessary to determine the appropriate amount. Finally, the chancellor found that triable issues of fact remained as to whether the pens were a improvement erected in violation of the covenants. But the parties later filed an agreed judgment stating any issues regarding the pens were moot because Hatfield had removed them from the property.

         ¶6. On December 15, 2015, the chancellor held a hearing on the issue of attorney fees and later denied fees for either party. The Association moved for reconsideration, arguing a Mississippi Court of Appeals decision held it was an abuse of discretion to deny attorney fees when provided for in restrictive covenants. Hatfield responded, arguing that, while the covenants did provide for the prevailing party to recover attorney fees, the amount of those fees was left to the chancellor's discretion, and the chancellor was justified in awarding the Association no fees because a large portion of the fees were incurred before the Association filed its amended complaint to add the only ground upon which it prevailed. Hatfield also argued the Association had failed to present sufficient evidence to support an award of attorney fees because the billing statements were insufficiently definite to show which fees corresponded with the prevailing claim.

         ¶7. The chancellor held a hearing on the motion for reconsideration. After the hearing, the chancellor granted the motion and awarded the Association $50, 250 in attorney fees. The chancellor rejected Hatfield's argument that the Association could not recover fees incurred before it filed the amended complaint. According to the chancellor, the original complaint sought to have the fowl and pens removed for violations of the covenants, and the Association prevailed on that argument. Hatfield appealed.


         ¶8. On appeal, Hatfield primarily argues the chancellor erred by awarding the Association attorney fees. But Hatfield first devotes a significant portion of his brief to accusing the chancellor and the Association's attorneys of misconduct. In his record excepts, Hatfield has provided a "Motion for Mistrial" which he filed in the chancery court after this case already had been appealed to this Court. Attached to the motion is what appears to be a judicial performance complaint against the chancellor, bar complaints against the Association's attorneys, and a bar complaint against the Association's president, who also is an attorney. The argument in Hatfield's brief mirrors that in the judicial performance complaint.

         ¶9. The Association has filed a motion to strike Hatfield's brief and record excerpts, arguing they should be struck because (1) they contain language disrespectful to the trial judge, (2) the "Motion for Mistrial" and its exhibits are not in the record on appeal, and (3) these arguments-which are ethical complaints-must be addressed through the Mississippi Bar Association and the Mississippi Commission on Judicial Performance. On March 21, 2017, Justice Chamberlin entered a single-justice order passing this motion for consideration with the merits.

         ¶10. This Court finds that the motion to strike should be granted. Mississippi Rule of Appellate Procedure 28(1) provides that "[a]ny brief containing language showing disrespect or contempt for the trial court will be stricken from the files, and the appropriate appellate court will take such further action as it may deem proper."[2] As the Association argues, Hatfield's brief is full of language disrespectful to the chancellor.

         ¶11. Hatfield essentially argues that every time the chancellor ruled against him, the ruling was purely the result of the chancellor's bias. Hatfield never identifies any particular conflict of interest or any evidence of bias. He also never provides any argument or citation to suggest any of the chancellor's rulings-except the award of attorney's fees-were legally incorrect. Further, nothing in the record reflects bias on the part of the chancellor. Instead, Hatfield simply lodges speculative claims of bias without foundation, often employing boldface and all-capital letters when describing the chancellor's "prejudice."

         ¶12. Further, the Association correctly points out that this portion of Hatfield's brief and record excepts is based on matters outside the record on appeal. Mississippi Rule of Appellate Procedure 10(a) provides that "[t]he parties shall designate the content of the record pursuant to this rule, and the record shall consist of designated papers and exhibits filed in the trial court, the transcript of proceedings, if any, and in all cases a certified copy of the docket entries prepared by the clerk of the trial court."[3] Rule 30(a) then provides that "[a]ppeals shall be on the record as designated pursuant to Rule 10."[4] "Mississippi appellate courts may not consider information that is outside the record."[5]

         ¶13. Here, Hatfield's "Motion for Mistrial" and its supporting documentation are not in the record. In fact, the record was filed in this Court October 17, 2016. These documents were not filed in the chancery court until February 6, 2017. They are not properly part of the record before this Court and cannot be considered. Likewise, Hatfield's ethical complaints against the Association's attorneys are based on his belief that they threatened the chancellor in order to persuade him to allow an amended complaint. But no such threat is reflected in the record.

         ¶14. Finally, as noted above, Hatfield cites no authority to show that any of the chancellor's rulings-attorney fees aside-was erroneous. "It is the duty of the briefing party to cite to authority which supports its argument. The Court 'considers assertions of error not supported by citation or authority to be abandoned.'"[6] Instead, Hatfield focuses this portion of his brief not on legal error, but on his belief that the chancellor violated the Canons of Judicial Conduct and that the attorneys violated the Rules of Professional Conduct. These matters, if at all, should be addressed through disciplinary proceedings, not a direct appeal.

         Attorney Fees in the Trial Court

         ¶15. This Court reviews an award of attorney fees for an abuse of discretion.[7] The award must be supported by credible evidence, but determining a reasonable fee is left to the discretion of the trial judge.[8]

         ¶16. "This Court has stated 'unless a statute or contract provides for the imposition of attorney fees, they are not recoverable.'"[9] Here, the chancellor based the award of attorney fees to the Association on Section 10.03 of the Declaration of Covenants, Conditions and Restrictions for Deer Haven, which provides:

In any legal or equitable proceeding for the enforcement or to restrain the violation of this Declaration or any provisions hereof by reference or otherwise, the prevailing party or parties shall also be entitled to an award of reasonable attorney's fees, in such amount as may be fixed by the court in such proceeding.

         ¶17. Hatfield does not argue this provision is unenforceable. In fact, Hatfield sought attorney fees under this provision in the trial court. Nor does Hatfield argue the Association's attorneys billed unreasonable rates or hours.[1 ...

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