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Mississippi Sand Solutions, LLC v. Otis

Supreme Court of Mississippi

August 8, 2019

MISSISSIPPI SAND SOLUTIONS, LLC
v.
BESSIE OTIS, SHERRY FISHER, CONNIE FISHER WALKER, DENNIS ROY HOLMES, ROBBIE JEAN HOLMES WARE, GREG FISHER AND MAGGIE FISHER

          DATE OF JUDGMENT: 12/04/2017

          WARREN COUNTY CHANCERY COURT HON. JANE R. WEATHERSBY TRIAL JUDGE

          TRIAL COURT ATTORNEYS: KEVIN EARL GAY KENNETH B. RECTOR DANA E. KELLY

          ATTORNEY FOR APPELLANT KENNETH B. RECTOR

          ATTORNEY FOR APPELLEES: KEVIN EARL GAY

          BEFORE KING, P.J., MAXWELL AND GRIFFIS, JJ.

          KING, PRESIDING JUSTICE

         ¶1. 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.

         FACTS AND PROCEDURAL HISTORY

         ¶2. 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.

         ¶3. 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.[1] 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.

         Both parties then argued the preliminary injunction issue, and the court took it under advisement.

         ¶4. 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 ...


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