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High v. Kuhn

Supreme Court of Mississippi

December 14, 2017

CHERYL L. HIGH
v.
TODD KUHN AND ANGELA T. KUHN

          DATE OF JUDGMENT: 01/10/2017

         HARRISON COUNTY SPECIAL COURT OF EMINENT DOMAIN HON. MICHAEL H. WARD TRIAL JUDGE

          TRIAL COURT ATTORNEYS: VIRGIL G. GILLESPIE STEVEN NICHOLAS NEWTON ROBERT THOMAS SCHWARTZ

          ATTORNEY FOR APPELLANT: STEVEN NICHOLAS NEWTON

          ATTORNEY FOR APPELLEES: VIRGIL G. GILLESPIE

          BEFORE KITCHENS, P.J., MAXWELL AND ISHEE, JJ.

          MAXWELL, JUSTICE.

         ¶1. In High v. Kuhn, 191 So.3d 113 (Miss. 2016) (High I), we reversed and rendered the judgment of the special court of eminent domain, specifically finding the plaintiffs, Todd and Angela Kuhn, were not entitled to condemn Cheryl High's property for a private road. The statutory procedures governing eminent-domain actions permit a defendant like High to recover expenses—including attorney's fees—when "the judgment be that the plaintiff is not entitled to a judgment condemning property[.]" Miss. Code Ann. § 11-27-37 (Rev. 2004). Following this Court's mandate, High moved the special court for an award of attorney's fees and expenses under Section 11-27-37.

         ¶2. The special court held Section 11-27-37 did not apply and denied High's request. High again appealed to this Court. And once again, we must find error. The Kuhns clearly invoked the statutory procedures of the special court of eminent domain when they petitioned that court for the statutory right to condemn High's property for a private road. Thus, Section 11-27-37—the eminent domain statute which provides for the recovery of attorney's fees and expenses—applied.

         ¶3. Because the award of fees and expenses under Section 11-27-37 is discretionary, not mandatory, we remand this matter to the special court of eminent domain to consider the merits of High's motion and the reasonableness of her request for $25, 990.58 in attorney's fees and expenses, plus interest.

         Background Facts and Procedural History

         I. First Appeal[1]

         ¶4. The Kuhns bought their landlocked residential property knowing the current route to their driveway—over High's neighboring property—could be cut off at any point in the future. When High soon after refused to allow them to use her property to get to theirs, they invoked the procedures of Mississippi Code Section 65-7-201 (Rev. 2012) and petitioned the Harrison County Special Court of Eminent Domain for a private road across High's property.

         ¶5. At the close of the Kuhns' evidence, High moved for dismissal. She argued the undisputed evidence showed her property was in the City of Gulfport. And Section 110 of the Mississippi Constitution clearly prohibited condemning for a statutory private road any property ...


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