Arlin George Hatfield, III v. Deer Haven Homeowners Association, Inc.

• Court: Mississippi Supreme Court
• Decided: September 14, 2017
• Docket: 2016-CP-00820-SCT
• Status: Published

Opinion

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2016-CP-00820-SCT

ARLIN GEORGE HATFIELD, III

v.

DEER HAVEN HOMEOWNERS ASSOCIATION, INC.

DATE OF JUDGMENT: 05/26/2016 TRIAL JUDGE: HON. ROBERT GEORGE CLARK, III TRIAL COURT ATTORNEYS: STEVEN H. SMITH MICHAEL SCOTT JONES JAMES L. MARTIN JAMES L. PETTIS, III COURT FROM WHICH APPEALED: MADISON COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: ARLIN GEORGE HATFIELD, III (PRO SE) ATTORNEYS FOR APPELLEE: TIMOTHY JAMES ANZENBERGER MICHAEL SCOTT JONES JAMES L. MARTIN NATURE OF THE CASE: CIVIL - REAL PROPERTY DISPOSITION: AFFIRMED - 09/14/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC.

DICKINSON, PRESIDING JUSTICE, FOR THE COURT:

¶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.

FACTS AND PROCEDURAL HISTORY

¶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

1 Section 10.03 of the Declaration of Covenants, Conditions and Restrictions for Deer Haven 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.

2 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

3 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.

ANALYSIS

¶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(l) provides that “[a]ny brief containing language showing disrespect

4 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

2 Miss. R. App. P. 28(l). 3 Miss. R. App. P. 10(a).

5 “[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

4 Miss. R. App. P. 30(a). 5 Hardy v. Brock, 826 So. 2d 71, 76 (Miss. 2002) (citing Dew v. Langford, 666 So. 2d 739, 746 (Miss. 1995)). 6 Russell Real Prop. Servs., LLC v. State, 200 So. 3d 426, 430 (Miss. 2016) (citing Miss. R. App. P. 28(a)(6); quoting McNeil v. Hester, 753 So. 2d 1057, 1075 (Miss. 2000)).

6 ¶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

7 Miss. Power & Light Co. v. Cook, 832 So. 2d 474, 486 (Miss. 2002) (citing Regency Nissan, Inc. v. Jenkins, 678 So. 2d 95, 103 (Miss. 1995)). 8 Cook, 832 So. 2d at 486 (citing Regency Nissan, Inc., 678 So. 2d at 103; quoting Gilchrist Tractor Co. v. Stribling, 192 So. 2d 409, 418 (Miss. 1966); Mauck v. Columbus Hotel Co., 741 So. 2d 259, 269 (Miss. 1999)). 9 Hearn v. Autumn Woods Office Park Prop. Owners Ass’n, 757 So. 2d 155, 164 (Miss. 1999) (quoting Grisham v. Hinton, 490 So. 2d 1201, 1205 (Miss. 1986)).

7 Association’s attorneys billed unreasonable rates or hours.10 Instead, Hatfield argues the

chancellor erred for two other reasons.

¶18. First, Hatfield argues that the chancellor erred in his application of Section 10.03.

Hatfield points out that Section 10.03 allows recovery by the prevailing party, but leaves the

amount to be determined by the court.11 Hatfield argues that, under this provision, the

Association could not recover any fees expended before it filed its amended complaint

because the amended complaint alleged the only ground upon which the Association

prevailed: Hatfield’s failure to comply with county zoning ordinances. Further, Hatfield

argues that the chancellor should have awarded no attorney fees at all because the

Association failed to present sufficient evidence to prove which fees related particularly to

the zoning ordinance theory.

10 See Cook, 832 So. 2d at 486 (quoting Miss. R. Prof’l Conduct 1.5) (“‘(a) A lawyer’s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.’”). 11 Hatfield argues that this makes the attorney fees provision permissive, rather than mandatory. That distinction, for purposes of this appeal, is irrelevant. The chancellor awarded attorney fees. Hatfield asks this Court to reverse the award. Whether the chancellor had to award them, or exercised his discretion to do so, is irrelevant because, to prevail on appeal, Hatfield must show that the chancellor could not do so.

8 ¶19. Hatfield relies on two Mississippi Court of Appeals opinions. A & F Properties, LLC

v. Lake Caroline, Inc. concerned a dispute surrounding A & F’s contract to build and run

a golf course for the Lake Caroline subdivision.12 There, the suit involved three distinct

matters. First, A & F claimed Lake Caroline failed to construct an adequate road into the

golf course.13 Second, under the contract, Lake Caroline was to convey ten lots in the

neighborhood to A & F.14 The parties, however, disputed the method of selecting those

lots.15 Finally, the contract required A & F “to execute a ‘Maintenance Deed of Trust’ in

favor of Lake Caroline that would serve as a permanent lien on the golf course property.”16

The parties had a third dispute concerning this obligation.17

¶20. Lake Caroline prevailed on the lot-selection and deed-of-trust issues.18 But A & F

prevailed on the road-construction issue.19 The contract at issue provided for an award of

attorney fees:

If it becomes necessary to insure the performance of the terms and conditions of this Contract by any party hereto having to employ an attorney, then the

12 A & F Props., LLC v. Lake Caroline, Inc., 775 So. 2d 1276, 1278 (Miss. Ct. App. 2000). 13 Id. 14 Id. 15 Id. 16 Id. 17 Id. 18 Id. 19 Id.

9 party admitting default, or the party adjudicated as the defaulting party by a court of competent jurisdiction, shall pay reasonable attorneys’ fees and the court cost incurred, if any.20

¶21. On appeal, the Court of Appeals held that, under this provision, A & F could recover

only attorney fees expended in litigating the road-construction issue—the only issue on

which it prevailed.21 The Court of Appeals also held that no attorney fees could be awarded

because the proof presented at trial was insufficient to distinguish between the awardable

attorney fees expended for the road-construction claim and those expended for other claims.22

¶22. Likewise, Industrial and Mechanical Contractors of Memphis, Inc. v. Tim Mote

Plumbing, LLC concerned a dispute based on Industrial’s contract with Mote as plumbing

subcontractor for a commercial building construction project.23 Industrial claimed that Mote

had breached the contract in three ways.24 “First, [Industrial] contended that Mote failed to

properly ‘tie-in’ a water pipe, resulting in a leak beneath part of the parking lot.”25 “Second,

evidence was also presented at trial alleging that Mote breached the contract by failing to

properly compact the trenches in which Mote laid sewage and water pipes.”26

20 Id. at 1282–83. 21 Id. at 1283. 22 Id. at 1283–84. 23 Indus. and Mech. Contractors of Memphis, Inc. v. Tim Mote Plumbing, LLC, 962 So. 2d 632, 634 (Miss. Ct. App. 2007). 24 Id. at 634–35. 25 Id. 26 Id. at 635.

10 “Finally,[Industrial] asserted that Mote breached the contract when Mote employees punched

holes in the sheetrock walls inside the building in an effort to locate water cutoff valves,

requiring [Industrial] to repair the holes at [Industrial’s] expense.”27

¶23. The chancellor found for Industrial on the first claim only, and denied Industrial’s

request for attorney fees.28 The contract had a provision providing for the recovery of

If it becomes necessary for Contractor to employ an attorney to enforce its rights against Subcontractor, Subcontractor agrees to pay a reasonable attorney’s fee to such attorney plus all costs of litigation incurred by Contractor.29

On appeal, the Court of Appeals applied the rule it articulated in A & F Properties, LLC and

held that Industrial could not recover attorney fees for work related to the two claims on

which it did not prevail.30

¶24. Hatfield argues this case is analogous. According to Hatfield, the Association brought

several claims against him: that he violated the restrictive covenant requiring prior approval

to erect improvements, that he violated the restrictive covenant prohibiting noxious activities,

and that he violated the restrictive covenant requiring compliance with all zoning ordinances.

Because the chancellor’s ruling in the Association’s favor was based on only one of the

three—compliance with zoning ordinances—Hatfield argues the Association was only

27 Id. 28 Id. 29 Id. at 638. 30 Id. at 638–39 (citing A & F Props., LLC, 775 So. 2d at 1282–83).

11 entitled to recover only fees expended in advancing that argument. And because the proof

does not show which fees corresponded with which theory, he believes no fees should have

been awarded. We disagree.

¶25. The covenant in question provides for the “prevailing party” to recover attorney fees

“[i]n any legal or equitable proceeding for the enforcement or to restrain the violation of this

Declaration or any provisions hereof by reference or otherwise.” As the chancellor reasoned,

the Association filed an equitable action for injunctive relief to enforce the covenants by

having Hatfield’s birds and pens removed from the property. The Association prevailed

because it had obtained that relief. So we find that the chancellor correctly applied the plain

language of the attorney-fees provision.

¶26. Hatfield next argues the chancellor erred by awarding attorney fees incurred by the

attorney the Association’s liability insurance carrier retained to defend against Hatfield’s

counterclaim. According to Hatfield, because the Association did not pay these sums—the

insurer did—it cannot recover these sums.

¶27. The chancellor awarded the Association $50,250 in attorney fees and costs. The proof

adduced at trial showed the Association paid or owed the attorney it retained—James L.

Martin of Taggart, Rimes, & Graham—$29,477.12. The proof also established that the

Association paid a $2,500 deductible for the work performed by the attorney its insurer

retained—M. Scott Jones of Adams and Reese, LLP—who accrued $36,684 in fees

excluding that deductible. Finally, the president of the Association testified that Jones’s fees

had been paid by the insurance company.

12 ¶28. Because the combined amount owed by the Association for Martin’s fees and the

deductible is $31,977.12, at least $18,272.88 of the fees the chancellor awarded represents

fees incurred by Jones and paid by the insurer. Hatfield argues that the Association cannot

be awarded these fees it did not pay.

¶29. This Court will affirm if a trial judge’s award of attorney fees is supported by credible

evidence.31 Here, the covenants provided that “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.” The covenants do not restrict the entitlement to an award only of

attorney fees that are paid by the Association. Hatfield cited no authority to the

chancellor—and he cites none here—that would require a reduction in the award of attorney

fees based on who paid the fees. Indeed, under the facts here, we know of no authority that

would require a reduction of the fees, even if they had not been paid at all. The covenants’

only requirement is that the fees be reasonable.

Attorney’s Fees on Appeal

¶30. The Association has filed a motion for this Court to award attorney fees incurred in

litigating this appeal. Where a contract provides for an award of attorney fees, fees are

awarded in the trial court, and the appellee successfully defends that award on appeal, this

Court has awarded fees incurred in litigating the appeal upon motion by the appellee.32 In

31 Cook, 832 So. 2d at 486 (citing Regency Nissan, Inc., 678 So. 2d at 103; quoting Gilchrist Tractor Co., 192 So. 2d at 418; Mauck, 741 So. 2d at 269). 32 See Knight v. McCain, 531 So. 2d 590, 597 (Miss. 1988); Dixie Contractors, Inc. v. Ballard, 249 So. 2d 653, 657 (Miss. 1971).

13 Dixie Contractors, Inc. v. Ballard, this Court awarded “a fee for the services of his attorney

on this appeal in the amount of one-half of that allowed by the trial court.”33 The Association

requests the same here; or $25,125.00. While allowing attorney fees on appeal in an amount

equal to one-half of the fees allowed by the trial court may not be fair and equitable in all

cases, we find doing so here to be appropriate. We think the better practice, however, would

be for the party seeking attorney fees on appeal to file a motion in this Court, supported by

affidavits and time records that establish the actual fees expended on appeal.

CONCLUSION

¶31. The judgment of the Chancery Court of Madison County is affirmed. And this Court

grants the appellee’s motions to strike and for attorney fees on appeal in the amount of

$25,125.00.

¶32. AFFIRMED.

WALLER, C.J., KITCHENS, KING, MAXWELL AND BEAM, JJ., CONCUR. CHAMBERLIN, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., AND COLEMAN, J.

CHAMBERLIN, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶33. In response to the majority, I feel compelled to swoop in and kill two birds with one

stone. I am as happy as a lark to join the flock in affirming the chancellor in this case.

However, I must also spread my wings and dissent in part because I fear that the majority’s

award of $25,125 in appellate attorney’s fees against a pro-se litigant—without any

33 Dixie Contractors, Inc., 249 So. 2d at 657.

14 evidentiary support in our record for the award—could become the goose that laid the golden

egg. It doesn’t take eagle eyes to see the problem with this approach. Therefore, I must cry

“fowl.”

¶34. The majority’s caution that “the better practice . . . would be for the party seeking

attorney fees on appeal to file a motion in this Court, supported by affidavits and time records

that establish the actual fee expended on appeal” is correct. (Maj. Op. at ¶ 30). As a matter

of fact, it is so much better that we should require it.

¶35. Our Court’s past directives on awards of attorney’s fees have been clear: “The court

may not judicially note what is a reasonable fee and it certainly may not merely pull a figure

out of thin air. Rather, the party entitled to recover a reasonable fee must furnish an

evidentiary predicate therefor.” Key Constructors, Inc. v. H & M Gas Co., 537 So. 2d 1318,

1325 (Miss. 1989). Key found “in no uncertain terms” that “‘reasonable attorney[’]s fees’

require[d] proof.” Id. There must be an evidentiary predicate. Sanford v. Jackson Mall

Shopping Ctr. Co., 516 So. 2d 227, 230 (Miss. 1987).

¶36. I see no reason why an appellate award should be treated any differently than a trial

award. While judicial economy might be served using this method on small awards or in

circumstances where justice requires, the facts of this case present neither situation. I would

find that appellate counsel, just like trial counsel, should have to “furnish an evidentiary

predicate []for” an award of attorney’s fees. Key, 537 So. 2d at 1325.

15 ¶37. Others may think my position bird-brained, but I sincerely believe that, once the

chickens come home to roost, this opinion will be a feather in my cap. Therefore, I dissent

as to this issue.

RANDOLPH, P.J., AND COLEMAN, J., JOIN THIS OPINION.