OF JUDGMENT: 12/04/2017
COUNTY CHANCERY COURT HON. JANE R. WEATHERSBY TRIAL JUDGE
COURT ATTORNEYS: KEVIN EARL GAY KENNETH B. RECTOR DANA E.
ATTORNEY FOR APPELLANT KENNETH B. RECTOR
ATTORNEY FOR APPELLEES: KEVIN EARL GAY
KING, P.J., MAXWELL AND GRIFFIS, JJ.
A group of heirs (the Fisher heirs) who own what is known as
the Fisher Property sued Mississippi Sand Solutions for
trespass, and filed an Emergency Motion for Temporary
Restraining Order and/or Preliminary Injunction. After the
hearing on the emergency motion, the chancery court issued a
decree on the merits of the trespass complaint in favor of
the Fisher heirs and awarded the Fisher heirs damages and
attorneys' fees. Because Mississippi Sand Solutions did
not receive notice that the case was being tried or heard on
the merits, this Court reverses the chancery court's
decree on the merits and remands for further proceedings.
AND PROCEDURAL HISTORY
Mississippi Sand Solutions (MSS) and its predecessors hauled
gravel and sand off its property via a private road on
property belonging to the Fisher heirs. At some point, any
agreement between the parties ended, and MSS sued in chancery
court, asking the chancery court to find that it had an
easement over the Fisher heirs' property. The chancery
court ruled that MSS did not have an easement over the Fisher
heirs' property. MSS appealed that decision, and this
Court unanimously affirmed the chancery court's ruling
that MSS did not have an easement over the Fisher heirs'
property. Miss. Sand Sols. v. Otis, 248 So.3d 813
(Miss. 2018). Additionally, settlement negotiations between
the parties broke down, and the Fisher heirs demanded that
MSS cease and desist traversing their property. The Fisher
heirs placed "no trespassing" signs on their
property and put up a gate. MSS ignored the signs and tore
down the gate. The Fisher heirs reported that MSS was
damaging their property by dumping trash and gravel on the
property and in waterways on the property. Additionally, the
Fisher heirs were cited by the Mississippi Department of
Environmental Quality for the dumping and burning of
household waste on the Fisher property and were required to
clean the site within thirty days. One of the Fisher heirs
testified that they had to pay for the clean up.
The Fisher heirs sued MSS in the chancery court on August 1,
2017, alleging trespass. On August 4, 2017, the Fisher heirs
filed an Emergency Motion for Temporary Restraining Order and
asked that a hearing be set for a final and permanent
injunction as soon as possible, pursuant to Mississippi Rule
of Civil Procedure 65. On August 9, 2017, the Fisher heirs
filed a Notice of Hearing, indicating that the hearing on
their Emergency Motion for Temporary Restraining Order and/or
for Preliminary Injunction would be held on August 22, 2017.
The hearing on the emergency motion began on August 23, 2017.
That hearing was continued until October 16, 2017. MSS
meanwhile filed its answer to an amended complaint on October
13, 2017. In it, MSS argued that the chancery court
lacked subject matter jurisdiction over the claims for
trespass and damages. It requested that the chancery court
transfer the case to circuit court for a jury trial. At the
beginning of the October hearing, the trial court
specifically stated that "[t]his is a continuation of
the first hearing that we had on Wednesday, August the 23rd .
. . ." At the end of the continued hearing, the Fisher
heirs' counsel requested damages for trespass and
attorneys' fees. Counsel for MSS responded,
Your Honor, maybe I'm confused, and I have been many
times, but my understanding is today that the only thing
we're here on is the same thing we were here on two
months ago and that's the motion for preliminary
injunctive relief in this case. The case on the merits, I
assume, will be tried at some other time which would include
whatever claim he's trying to make for attorney [sic]
fees or damages. . . . [T]o clarify, Your Honor, and, if
I'm wrong, we need to get it corrected, but my
understanding is that this was set on an emergency basis, as
I remember, without notice, basically, and we appeared at
that time for that hearing on the request for, I believe, it
was called an emergency temporary restraining order and a
preliminary injunction. So, counsel's assertion that
he's entitled to attorney's fees and damages and all
that sort of thing is not before the court.
parties then argued the preliminary injunction issue, and the
court took it under advisement.
On November 15, 2017, the Fisher heirs filed a Motion for
Trial Setting, asking the chancery court to set a trial and
to hold a hearing to determine a trial date and to consider
discovery and alternate dispute resolutions. On December 4,
2017, the chancery court filed its decree, stating that
"[t]his cause came to be heard upon Complaint for
Trespass, Preliminary Injunction and Damage to Real Property
and Response thereto by Mississippi Sand Solutions . . .
." The court stated that it considered "the
pleadings, heard and considered the evidence adduced,
proffered and submitted, heard and considered the arguments
and statements of counsel . . . ." The chancery court
found that the requirements for a ...