Dempsey Sullivan v. Estate of Samuel Maddox

• Court: Court of Appeals of Mississippi
• Decided: July 30, 2019
• Docket: 2017-CA-00418-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2017-CA-00418-COA

CONSOLIDATED WITH

NO. 2011-CT-00820-COA

DEMPSEY SULLIVAN, BILLIE JOYCE APPELLANTS/ SULLIVAN, AND TERRELL STUBBS, CROSS-APPELLEES INDIVIDUALLY

v.

ESTATE OF SAMUEL MADDOX APPELLEE/ CROSS-APPELLANT

DATE OF JUDGMENT: 02/23/2017 TRIAL JUDGE: HON. GERALD MARION MARTIN COURT FROM WHICH APPEALED: SIMPSON COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANTS: W. TERRELL STUBBS JAMES LAWTON ROBERTSON ATTORNEYS FOR APPELLEE: JAMES BURVON SYKES III L. WESLEY BROADHEAD NATURE OF THE CASE: CIVIL - REAL PROPERTY DISPOSITION: ON DIRECT APPEAL: AFFIRMED IN PART; REVERSED AND REMANDED IN PART. ON CROSS-APPEAL: AFFIRMED - 07/30/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC.

CARLTON, P.J., FOR THE COURT:

¶1. Dempsey Sullivan and Billie Joyce Sullivan (collectively, the Sullivans)1 filed a

1 The Sullivans’ attorney, Terrell Stubbs, is also a party to this appeal. For the purposes of clarity and brevity, we will refer to the appellants/cross-appellees collectively as “the Sullivans” unless individual usage of their names is appropriate. complaint in 2010 seeking an injunction to prohibit their neighbors Steve Maddox and

Samuel Maddox2 (collectively, the Maddoxes) from entering their property in Simpson

County. The Maddoxes filed a counterclaim asserting that they possessed an easement across

the Sullivans’ property. During the course of litigation, the chancellor entered an order

dismissing the Sullivans’ complaint for an injunction with prejudice and issuing sanctions

against their attorney, Terrell Stubbs. The chancellor appointed a special master to determine

the issue of the easement. The special master submitted a report, finding that the Maddoxes

did not possess a valid easement over the Sullivans’ property and recommending that the

chancellor dismiss the Maddoxes’ counterclaim with prejudice.

¶2. The chancellor ultimately entered a final judgment that, among other things, ratified

and adopted the special master’s report, dismissed the Maddoxes’ counterclaim with

prejudice after finding that no easement existed, affirmed and ratified all prior orders and

judgments filed in the matter, and assessed the costs of the special master to the Maddoxes.

¶3. The Sullivans now appeal, asserting the following assignments of error: (1) they did

not receive proper notice when the chancellor dismissed their complaint with prejudice; (2)

the chancellor erred in dismissing their complaint on the merits; (3) the chancellor erred in

awarding sanctions; (4) the Estate of Samuel Maddox was improperly substituted as a party

for Samuel Maddox; and (5) the chancellor erred by ratifying and affirming all prior orders

of the chancery court. The Maddoxes filed a cross-appeal, arguing that the chancellor erred

2 Steve Maddox died during the chancery court proceedings and is not a party to this appeal. Samuel Maddox also died during the chancery court proceedings. His estate was substituted as a party and is the appellee in this appeal.

2 in holding that the Maddoxes did not have an easement of record or an easement by

implication across the Sullivans’ property.

¶4. After our review, we affirm the following: the chancellor’s dismissal of the Sullivans’

complaint with prejudice; the chancellor’s award of sanctions; the chancellor’s judgment

ratifying and affirming all prior orders of the chancery court; the chancellor’s order

substituting the Estate of Samuel Maddox as a party; and the chancellor’s judgment finding

that the Maddoxes did not have an easement of record or an easement by implication across

the Sullivans’ property. However, we reverse the chancellor’s award of attorney’s fees and

expenses to the Maddoxes, which the chancellor issued as sanctions against Stubbs, and we

remand this issue to the chancellor with instructions to: (1) dismiss the present action without

prejudice as to Steve Maddox pursuant to Mississippi Rule of Civil Procedure Rule 25(a)(1)

and (2) then reassess the distribution of the award of attorney’s fees to the remaining party.

FACTS3

¶5. On March 30, 2010, the Sullivans filed a complaint in Simpson County Chancery

Court requesting injunctive relief to prohibit the Maddoxes from entering the Sullivans’

property.4 In their complaint, the Sullivans claimed that the Maddoxes wrongfully entered

3 On August 26, 2005, Dempsey Sullivan filed a complaint against the Maddoxes in Simpson County Chancery Court. See Sullivan v. Maddox, 122 So. 3d 75, 77 (¶2) (Miss. Ct. App. 2013) (Case No. 2011-CA-820-COA) (Sullivan I). Sullivan and Stubbs appealed the chancellor’s judgment, which this Court addressed in Sullivan I. The record in Sullivan I was consolidated with the present appeal, Sullivan v. Estate of Maddox, 2017-CA-00418- COA (Sullivan II). The real property at issue in Sullivan I is not the same as that at issue in Sullivan II. 4 In their complaint, the Sullivans also requested the following relief: (1) a temporary restraining order against the Maddoxes to enjoin them from crossing and entering on the

3 onto their property without the Sullivans’ consent under the pretense of an alleged easement.

The Sullivans attached the disputed easement to their complaint and asserted that the

easement was not valid or enforceable. The Sullivans also requested that the chancellor set

a hearing date with the time and place for a hearing to award a permanent restraining order

or permanent injunction to prohibit the Maddoxes from entering their property.

¶6. On April 6, 2010, the Maddoxes filed their answer denying the essential allegations

of the complaint. The Maddoxes also filed a counterclaim arguing that they possessed an

easement and asking the chancellor to enjoin the Sullivans from interfering with their use of

the easement. The Maddoxes also alleged several intentional torts and demanded damages

from the Sullivans.

¶7. On April 16, 2010, the chancellor entered an agreed order that stated, among other

things, that “[t]he parties have agreed that the [Maddoxes] will stay off [the Sullivans’]

property for a period of [forty-five] days and should this matter not be resolved within [forty-

five] days, this matter shall be brought back before this [c]ourt for further action.”

¶8. On February 22, 2011, the chancellor held a conference and set Sullivan I for trial on

May 3, 2011, and Sullivan II for trial on May 4, 2011.

Sullivans’ property; (2) a temporary restraining order enjoining the Maddoxes from any contact whatsoever with the Sullivans, their family, or any guests; (3) a temporary restraining order directing the Maddoxes to immediately remove all obstructions now existing on the Sullivans’ property and any equipment, including but not limited to any gates, fences, bridges, other structures and equipment; and (4) compensatory and punitive damages plus post-judgment interest, pre-judgment interest, reforestation costs, expert witness fees, attorney’s fees, all court costs, reasonable damages for mental anguish, worry, stress, and other damages, along with all other equitable general and special relief as the Sullivans may be entitled to in the premises.

4 ¶9. On April 12, 2011, the Sullivans filed motions for recusal of the chancellor, Judge

David Shoemake, in both Sullivan I and Sullivan II. In both motions, the Sullivans claimed

“it has recently been brought to the undersigned’s attention[] that Wesley Broadhead,

attorney for the [Maddoxes], is currently representing Mike Stuckey, the husband of this

[c]ourt’s [a]dministrator, on a proceeding on appeal” in the Simpson County Circuit Court.

The Sullivans asserted that based on this claim, the chancellor should recuse himself from

Sullivan I and Sullivan II “in order to avoid even an appearance of impartiality or

impropriety.” The Maddoxes filed motions to consolidate the hearings on the motions to

recuse filed in Sullivan I and II.

¶10. On May 3, 2011, the chancellor entered an order consolidating the hearings in regard

to the Sullivans’ motions to recuse. That same day, the chancellor entered its order denying

Sullivan’s motions to recuse in Sullivan I and Sullivan II. The next morning, prior to the

commencement of the Sullivan II trial, the Sullivans renewed the motions to recuse, which

the chancellor denied.

¶11. At the Sullivan II trial held on May 4, 2011, the chancellor heard testimony from

Samuel Maddox; Steve Maddox; Dempsey Sullivan; Bobby Hall, who owned the property

between Sullivan and Maddox; Stanley Eubanks, whose family once owned certain portions

of the Sullivans’ property; and Samuel Maddox Jr. The matter was then continued to a later

date.

¶12. On March 13, 2013,5 the Sullivans filed a second motion for the recusal of the

5 The Sullivans filed their appeal in Sullivan I in July 2011.

5 chancellor in the present matter and in all other cases involving the Sullivans or their

attorney, Stubbs. The Sullivans alleged that Judge Shoemake and his court administrator had

a clear bias against the Sullivans that created a conflict in this case and in all cases involving

the Sullivans. The Sullivans attached the following documents to the motion for recusal:

Campaign Finance Reports for the 2010 Election Campaign filed by Judge Shoemake, who

was a candidate; a copy of a bar complaint filed by Judge Shoemake’s court’s administrator

against the former judge, Larry Buffington; a copy of the response to the bar complaint filed

by Larry Buffington; and seven affidavits.

¶13. On April 4, 2013, the Maddoxes filed a joint response to the Sullivans’ March 13,

2013 motion for recusal. In the response, the Maddoxes argued that the Sullivans should be

sanctioned or disciplined pursuant to Mississippi Rule of Civil Procedure 11 for knowingly

continuing to make false statements of material fact to the court.

¶14. Nearly a week later, on April 10, 2013, the chancellor entered an order denying the

motion for recusal, dismissing the Sullivans’ complaint, imposing sanctions, and continuing

the cause for a hearing on monetary sanctions. In his order, the chancellor stated that the

Sullivans’ March 13, 2013 motion to recuse was filed “801 days after this [c]ourt took the

bench on January 1, 2011, and 673 days after May 3, 2011,” the date the chancellor entered

his first order denying the Sullivans’ motion to recuse. The chancellor stated that Uniform

Chancery Court Rule 1.11 does not allow parties to file unlimited motions to recuse, and the

rule requires recusal motions to be filed within a reasonable period of time.

¶15. The chancellor discussed the Sullivans’ motion to recuse, as well as the affidavits and

6 bar complaint attached to the motion. The chancellor found that the attached documents

failed to “evidence any bias or partiality of this [c]ourt” and produced “no evidence of this

[c]ourt having any involvement in or knowledge of” improper campaign donations or other

improper conduct.

¶16. Regarding the Sullivans’ trespass claims, the chancellor found the Sullivans failed to

prosecute the claims. The chancellor explained as follows:

The 2010 [c]omplaint filed by the [Sullivans] asked the [c]ourt to cancel an easement given on August 24, 1981, across property that is now owned by the [Sullivans], the easement now benefitting the [Maddoxes]. The [c]omplaint also seeks damages for trespass, negligence, and damages to the value of the real property, and numerous other claims for damages. The prior [c]hancellor, without a trial, entered an [o]rder on April 7, 2010, ordering the [Maddoxes] not to cross the [Sullivans’] property and stated further “should this matter not be resolved within 45 days, this matter shall be brought back before this [c]ourt for further action.” Since the [Sullivans] have such an order, they have chosen not to bring their action back before the [c]ourt.

The [c]omplaint was filed March 30, 2010. The [Sullivans] have not sought to prosecute their [c]omplaint since the one day of trial on May 4, 2011. In fact, they have resisted all efforts by the [Maddoxes] to have the case concluded. Counsel for the [Sullivans] is well aware of Uniform Chancery Court Rule 1.11 which requires the filing of affidavits and requires a ruling by the [t]rial [c]ourt within thirty (30) days. To the [c]ourt, this is evidence of delay, dilatory conduct and a clear abuse of the judicial process, and in clear violation of [Mississippi Rule of Civil Procedure] 41(b).

The chancellor cited to Walker v. Parnell, 566 So. 2d 1213, 1216 (Miss. 1990), and

ultimately ruled that “the actions of [the Sullivans] and [Stubbs] show a complete failure to

prosecute and a clear pattern of dilatory delay, and contumacious conduct . . . .” The

chancellor then dismissed Sullivan’s complaint pursuant to Rule 41(b).

¶17. The chancellor further found that “all of the above referenced actions evidence the

7 filing of untimely and frivolous pleadings for the purpose of harassment and delay without

substantial justification, and disrespect for the integrity of the [c]ourt and constitute the

willful violation of Rule 11 . . . and the Litigation Accountability Act[,]” as well as

Mississippi Rule of Processional Conduct Rule 8.2(a).

¶18. In determining sanctions, the chancellor stated that he considered lesser sanctions

along with the fact that Sullivan and Stubbs also previously attacked the integrity of the

chancellor with allegations of improper campaign donations and the allegations of

impartiality in Sullivan I. The chancellor recalled that Sullivan’s attack in Sullivan I resulted

in sanctions in the amount of $42,922.91, which the Court of Appeals affirmed on appeal.

The chancellor then stated that despite the sanctions issued in Sullivan I, Sullivan and Stubbs

“continue[d] their dilatory conduct, delay, contumacious conduct and the preparing and

procurement of affidavits all in an effort to embarrass and attack the integrity of the [c]ourt.”

The chancellor determined that a monetary sanction in the present matter would therefore be

insufficient. The chancellor explained that he initially intended to impose a monetary

sanction after the hearing on the amount of attorney’s fees, but he felt “compelled to order

and assess other sanctions.” The chancellor thus held that the appropriate sanction in the

present matter was to dismiss the Sullivans’ 2010 complaint with prejudice.

¶19. The chancellor ordered the Sullivans to reimburse the Maddoxes for all expenses and

attorney’s fees incurred in the defense of the complaint and in prosecution of their demands

for affirmative relief. The chancellor set a hearing for April 30, 2013, on the matter of the

amount of sanctions to be assessed against the Sullivans. The chancellor also continued the

8 present matter for a hearing on the amount of monetary attorney’s fees sanctions. The

chancellor ruled that “this [c]ourt retains jurisdiction of the issue of this matter until such

time as final judgment is entered assessing the amount of attorneys’ fees and any other fines,

penalties, damages and/or other sanctions.”

¶20. On April 24, 2013, the Sullivans filed a petition in the Mississippi Supreme Court

pursuant to Mississippi Rule of Appellate Procedure 48(b),6 seeking review of the

chancellor’s judgment denying the Sullivan’s 2013 motion for recusal. On April 26, 2013,

the Sullivans also filed an emergency motion to stay the sanctions hearing. The supreme

court granted the Sullivans’ motion to stay the sanctions hearing pending the supreme court’s

decision of the Sullivan’s petition to review the chancellor’s judgment. On June 12, 2013,

the supreme court entered an order denying the Sullivans’ petition for review of the

chancellor’s judgment denying the motion to recuse.

¶21. On May 8, 2013, the Sullivans filed their notice of appeal of the chancellor’s order

dismissing their complaint. The Maddoxes filed a motion to dismiss the appeal, asserting

that the chancellor’s April 10, 2013 judgment did not dispose of all of the claims against all

of the parties. On April 1, 2014, the supreme court entered an order granting the Maddoxes’

motion and dismissing the appeal.

¶22. On September 16, 2013, the Sullivans filed a motion to dismiss or alternatively for a

continuance of the sanctions hearing. The next day, the chancellor held a hearing on the

issue of attorney’s fees and sanctions and on the Sullivans’ motion to dismiss. The

6 This rule addresses the appellate proceedings on a motion for disqualification of a trial judge.

9 chancellor explained that as part of the sanctions against the Sullivans, he dismissed the

complaint based on the Sullivans’ failure to prosecute:

[T]here were no efforts to prosecute the case. This [c]ourt tried part of the [case] on May . . . 4, 2011. Never since May [4, 2011] ha[ve] [the Sullivans] asked to proceed with the case. When the [Maddoxes] asked that it be put on the docket and tried, the [Sullivans] objected. Instead of moving the case, doing anything with the case, it turned into well, let’s get rid of the judge.

¶23. The chancellor also determined that the affidavits attached to the Sullivans’ motion

for recusal were false and not credible. The chancellor found that the motion itself was made

“in bad faith and was for an improper purpose and it was frivolous and it’s based on

complete falsehoods.” The chancellor stated that several of the affidavits referred to

incidents that allegedly occurred before he took the bench in January 2011, and this

information, as well as his campaign finance reports, was available in April 2011, when the

Sullivans filed their first motions to recuse.

¶24. Regarding sanctions, the chancellor “order[ed] and impose[d]” upon Stubbs the

payment of the Maddoxes’ attorney’s fees and expenses as a sanction to be paid by Stubbs.

The chancellor specifically ordered Stubbs “to pay $19,617.32 to Steve Maddox—or to the

chancery clerk of Simpson County for payment to Steve Maddox and Samuel Maddox[—]as

reimbursement for attorneys’ fees and expenses.” The chancellor acknowledged that the

April 10, 2013 judgment stated that the court “would impose sanctions against Mr. Dempsey

Sullivan and Billie Joyce Sullivan,” but the chancellor determined that “these fees were made

necessary.” The chancellor explained that the pleadings Stubbs prepared “were of such a

frivolous and incredible nature . . . . [that] the [c]ourt does not feel that it would be equitable

10 to assess monetary sanctions against [Dempsey] and Ms. Billie Joyce Sullivan[,] especially

due to the fact that they’ve had their case dismissed because of the actions of counsel.”

¶25. On October 8, 2013, the chancellor entered a judgment memorializing his rulings from

the bench and denying the Sullivans’ motion to dismiss or alternatively to continue the

hearing to assess monetary sanctions “for the reasons stated in [the chancellor’s September

17, 2013 bench ruling].” The chancellor awarded Maddox $19,617.32 in attorney’s fees.

¶26. On October 29, 2013, the Sullivans filed a notice of appeal from the October 8, 2013

judgment. The Maddoxes filed a motion to dismiss the appeal, asserting that the October 8,

2013 judgment was not a final, appealable judgment. On April 1, 2014, the supreme court

entered an order dismissing the Sullivans’ appeal.

¶27. The Sullivans also filed a petition for an extraordinary writ pursuant to Mississippi

Rule of Appellate Procedure 21 and alternatively requested permission to file an interlocutory

appeal pursuant to Mississippi Rule of Appellate Procedure 5(a) on October 29, 2013. On

April 1, 2014, the supreme court entered an order denying the petition.

¶28. The chancellor held additional trial proceedings on the merits of Sullivan II on

November 6, 2014. However, at the trial, the parties raised numerous issues concerning the

admissibility of documents and status of the pleadings. As a result, the chancellor, on his

own motion, recessed the hearing until all of the pretrial matters, including a scheduling

order, were properly completed.

¶29. On November 21, 2014, the chancellor entered an order appointing a special master

to the case pursuant to Mississippi Rule of Civil Procedure 53. The chancellor explained that

11 he had a full calendar for the remainder of 2014 and for the first three months of 2015. The

chancellor stated that he would also be charged with the administrative responsibilities of

organizing matters relating to a newly elected chancellor. The chancellor discussed the

procedural history of Sullivan II, including the Sullivans’ complaint and the Maddoxes’

counterclaim, and found that “the above matters constitute exceptional conditions which

require this [c]ourt to consider the use of a Special Master.”7

¶30. On February 17, 2015, Judge Shoemake entered an order recusing himself from

presiding over any case in which Stubbs served as the lead attorney. After this point, special

master Judge William Barnett and Chancellor Gerald Martin presided over the proceedings.

¶31. On May 19, 2015, the Sullivans filed a motion to set the case for trial. A notice of

hearing was entered, setting the trial for August 26, 2015, before special master Judge

William Barnett.

¶32. At the trial held on August 26, 2015, the special master heard testimony from Sullivan

and Bobby Hall, who owned property between the Sullivans’ property and the Maddoxes’

property. The special master entered his report on January 27, 2016. The special master

stated that “the only issue to be determined is whether or not the [Maddoxes] have an

easement over the lands of the [Sullivans] for ingress to their property.” The special master

found that the Maddoxes had no existing easement across the Sullivans’ land. The special

master stated that in making his ruling, he heard testimony and arguments from the parties,

read transcripts from prior hearings, examined the exhibits, reviewed the authorities

7 Only the first two pages of this order appear in the record.

12 submitted by the parties, and conducted his own research.

¶33. In his report, the special master set forth that in 1981 Annie Collier was granted an

easement from the public road to certain described land Collier owned. Collier’s land did

not front a public road. The easement constituted an easement appurtenant and set out in its

body that it constituted “a covenant running with the land owned by the Grantee” and for the

purpose of “ingress, egress and regress.” The easement was to be unobstructed and the

holder of the easement could maintain the easement as the holder elected. On April 27, 1987,

the Sullivans purchased land from Collier which contained in full the land over which the

easement was granted. Now the Sullivans owned all of Collier’s land for which the 1981

easement was granted. Collier maintained ownership of a pie-shaped portion of land. The

special master determined that Collier did not reserve an easement over the land she sold to

the Sullivans for access to the pie-shaped portion of land she still owned. The special master

found that “[w]ith the 1987 purchase, the Sullivans then became the owners of the easement

since by the easement’s very terms, the easement belonged to the land, not to . . . Collier

personally.”

¶34. By other conveyances over time, the Sullivans acquired the land through which the

1981 easement was given. The special master concluded that when the Sullivans “owned

both the land on which the easement was given and the adjacent land for which the easement

was given, the easement merged into the land on which the easement was given and,

therefore, the 1981 easement no longer existed.”

¶35. The special master found that in 1994, Collier transferred to the Maddoxes “certain

13 lands[,] including the remaining portion of Mrs. Collier’s lands for which the 1981 easement

was given and [she] purported to transfer the 1981 easement itself.” However, the special

master held that “Collier had no authority to transfer the easement to the Maddoxes as, by

fact and law, she no longer owned the easement.” The special master further stated that

although the pie-shaped portion of land Collier transferred to the Maddoxes “is adjacent to

other lands they own and lands the [Sullivans] own, it is not adjacent to the lands on which

the 1981 easement was located. In fact, it is about 900 feet away.” The special master also

found that the Maddoxes purchased the pie-shaped portion from Collier after Collier sold the

land between the pie-shaped portion and the land over which the easement ran. The special

master found that “[w]hen the Maddoxes purchased the pie-shaped lot from Mrs. Collier,

they knew, or should have known, that they would only have access to the lot through the

adjoining land they owned and not the Sullivans.”

¶36. The special master therefore recommended that the chancellor hold that the Maddoxes

possessed no easement to the public road across the Sullivans’ property; as a result, the

Maddoxes’ counterclaim should be dismissed. The special master advised that although “the

Maddoxes have no existing easement [across] the Sullivans’ [property], they may file an

action in the appropriate [c]ourt against the Sullivans and their other neighbors to attempt to

establish an easement for necessity if they think that such need exists.”

¶37. On January 5, 2016, Stubbs filed a suggestion of death stating that Steve Maddox died

on December 31, 2015. The Estate of Steve Maddox was not substituted as a party.

¶38. On February 2, 2016, the Maddoxes filed a motion objecting to the report of the

14 special master. The Maddoxes maintained that the Sullivans did not acquire all of the land

benefitted by the easement and explained that Collier still retained ownership of part of the

land. The Maddoxes therefore argued that the easement was not terminated by merger. The

Maddoxes also asserted that this action was not abated as a result of Steve Maddox’s death

and that the action should proceed in favor of Samuel Maddox.

¶39. On May 12, 2016, Sullivan and Stubbs filed a suggestion of death stating that Samuel

Maddox died on May 11, 2016.

¶40. On August 8, 2016, Samuel Maddox’s son, Samuel Jr., filed an entry of appearance

and a motion for extension of time for substitution. In his motion, Samuel Jr. asserted that

the Sullivans failed to properly serve the suggestion of death. Samuel Jr. requested that the

chancellor allow for an additional ninety days “for the person qualifying to serve as executor

by court appointment to be substituted in that capacity for Samuel Maddox in this action.”

¶41. On August 17, 2016, the Sullivans filed a motion to strike or dismiss Samuel Jr.’s

entry of appearance and motion for extension of time for substitution. The Sullivans also

filed a motion to dismiss the Maddoxes’ counterclaim on September 16, 2016, asserting that

no parties had been substituted for Samuel Maddox or Steve Maddox, the deceased parties.

A hearing on this motion was originally set for October 31, 2016, but later continued and

reset for December 7, 2016.

¶42. On October 19, 2016, Judge Gerald Martin entered an order allowing the substitution

of Samuel Maddox’s estate as a party. The order recognized that Samuel Jr. had been

appointed as executor of Samuel Maddox’s estate. The Sullivans filed a motion seeking to

15 set aside the order allowing substitution on November 18, 2016. The Sullivans argued that,

pursuant to Mississippi Rule of Civil Procedure 25, an “action shall be dismissed without

prejudice as to the deceased party if the motion for substitution is not made within ninety

days” after service of a suggestion of death. The Sullivans asserted that this ninety-day

period for the substitution of a party lapsed on April 6, 2016, for Steve Maddox and on

August 10, 2016, for Samuel Maddox.

¶43. On December 7, 2016, the chancellor held a hearing to rule on the following orders

and motions: the special master’s report; the Maddoxes’ objection to the report; the

Sullivans’ response to the Maddoxes’ objection; the Sullivans’ motion to dismiss the

Maddoxes’ counterclaim; the Maddoxes’ response to the Sullivans’ motion to dismiss; the

Sullivans’ motion to set aside and vacate the order for substitution of party; and the

Maddoxes’ response to the Sullivans’ motion to set aside the order. From the bench, the

chancellor ruled that he ratified, affirmed, and adopted “all prior orders, decrees, rulings, and

judgments” that were entered before the matter was transferred to him.

¶44. On February 23, 2017, the chancellor memorialized his bench rulings in an order. The

order provided that the chancellor was “adopt[ing] and ratif[ying]” the report of the special

master and making it the final judgment of the chancellor. The chancellor held that the

Maddoxes “shall have no easement,” and dismissed the Maddoxes’ counterclaim with

prejudice. The chancellor assessed the costs for the special master, which amounted to

$3,547.50, against the estates of both Steve and Samuel Maddox jointly and severally. The

chancellor denied the Sullivans’ request for attorney’s fees, as well as the Sullivans’ motion

16 to set aside and vacate the order allowing Samuel Maddox’s estate to be substituted as a

party. The chancellor further stated that “All prior [o]rders, [d]ecrees, [r]ulings[,] and

[j]udgments filed in this cause are hereby ratified and affirmed by this [c]ourt.”

¶45. On March 22, 2017, the Sullivans filed their notice of appeal of the chancellor’s

February 23, 2017 final judgment as well as the October 8, 2013 judgment denying the

Sullivans’ motion to dismiss or alternatively for a continuance of the hearing and assessment

of monetary sanctions. On March 29, 2017, the Maddoxes filed their notice of cross-appeal,

asserting as error several sections of the February 23, 2017 final judgment: (1) paragraph

two, where the chancellor adopted and ratified the report of the special master; (2) the

chancellor’s finding that the Maddoxes shall have no easement across the Sullivans’

property; (3) the denial of the Maddoxes’ counterclaim; (4) the chancellor’s assessment of

the special master’s costs to the Maddoxes; and (5) the finding that “the report of the special

master is hereby adopted and ratified by this [c]ourt and made the final judgment of the

[c]ourt.”

DISCUSSION

I. April 10, 2013 Judgment Dismissing Complaint and Awarding Sanctions

¶46. We review a chancellor’s Rule 41(b) dismissal for failure to prosecute for an abuse

of discretion. Cox v. Cox, 976 So. 2d 869, 874 (¶11) (Miss. 2008).

A. Notice

¶47. The Sullivans argue that they failed to receive notice that they were at risk of having

their complaint dismissed pursuant to Rule 41(b). The Sullivans maintain that the

17 chancellor’s April 10, 2013 judgment dismissing their complaint was entered “in utter

disregard” to the Sullivans’ right to reasonable advance notice and their opportunity to be

heard. The Sullivans argue that the lack of notice and opportunity to be heard prior to

dismissing the complaint violated their federal and state procedural due process rights. The

Sullivans also argue that the Maddoxes never filed a Rule 41(b) motion to dismiss the

complaint and that as a result, the chancellor erred in dismissing the complaint sua sponte.

¶48. In support of their argument, the Sullivans cite to Holly v. Harrah’s Tunica Corp., 962

So. 2d 136, 140 (¶21) (Miss. Ct. App. 2007), where this Court reversed a dismissal under

Rule 4l(b) after finding that the plaintiffs were denied sufficient notice of the defendants’

motion and an opportunity to respond prior to the circuit court’s ruling. However, Holly is

distinguishable from the present action. In Holly, the defendants filed the motion to dismiss

the plaintiff’s complaint; in the case before us, the chancellor dismissed the complaint sua

sponte. Id.

¶49. “The power to dismiss for failure to prosecute can be exercised sua sponte where a

motion by a party is lacking.” Miss. Dep’t of Human Servs. v. Guidry, 830 So. 2d 628, 631

(¶10) (Miss. 2002). In Guidry, the supreme court addressed the issue of whether notice is

required before a trial court’s entry of an involuntary dismissal:

The [United States] Supreme Court . . . discussed the fundamental due process requirements of being heard and of notice being given of such a dismissal. Link [v. Wabash R.R. Co.], 370 U.S. [626,] 632 [(1962)]. The Court stated that every order entered without notice given did not violate due process. Id. “The adequacy of notice and hearing respecting proceedings that may affect a party’s rights turns, to a considerable extent, on the knowledge which the circumstances show such party may be taken to have of the consequences of his own conduct.” Id. The Court also found “when circumstances make such

18 action appropriate, a District Court may dismiss a complaint for failure to prosecute even without affording notice of its intention to do so or providing an adversary hearing before acting.”

Guidry, 830 So. 2d at 632 (¶11).

¶50. We therefore find that the chancellor’s judgment dismissing the Sullivans’ complaint

without notice to the Sullivans “did not violate due process.” Id.

B. Dismissal

¶51. The Sullivans next assert that the chancellor was not authorized to dismiss their

complaint and grant sanctions pursuant to Rule 41(b). The Sullivans argue that although the

chancellor dismissed their complaint based on the failure to prosecute prong of Rule 41(b),

the record reflects that they prosecuted their case to trial on May 4, 2011, to the point where

they had completed presenting their evidence and rested. The case was then continued. The

Sullivans quote Wallace v. Jones, 572 So. 2d 371, 376 (Miss. 1990), in support of their

argument that “the case had come to trial and there was no want of prosecution. Therefore,

the chancellor could not have dismissed this case under Rule 41(b) for [the Sullivans’] failure

to prosecute the case.” The Sullivans also maintain that the Maddoxes never filed a Rule

41(b) motion seeking dismissal of the complaint.

¶52. The Maddoxes, however, maintain that in their answer and counterclaim they

requested that the chancellor dismiss the complaint with prejudice. The Maddoxes also

assert that they requested sanctions in their joint response to the Sullivans’ 2013 motion for

recusal.

¶53. We recognize that “the law favors a trial of the issues on the merits,” and therefore

19 “a dismissal for lack of prosecution is employed reluctantly.” Holder v. Orange Grove Med.

Specialties, P.A., 54 So. 3d 192, 196 (¶16) (Miss. 2010) (quoting Miss. Dep’t of Human

Servs. v. Guidry, 830 So. 2d 628, 632 (¶13) (Miss. 2002)). Rule 41(b) allows defendants to

move for dismissal of any action based on the plaintiff’s failure to prosecute. Id. at 196-97

(¶17); M.R.C.P. 41(b). The supreme court has further held that “Rule 41(b) embodies the

tenet that ‘any court of law or equity may exercise the power to dismiss for want of

prosecution. This power, inherent to the courts, is necessary as a means to the orderly

expedition of justice and the court’s control of its own docket.’” Id. at 197 (¶17) (quoting

Hillman v. Weatherly, 14 So. 3d 721, 726 (¶17) (Miss. 2009)). “Unless otherwise specified

in its order, a dismissal under Rule 41(b) is an adjudication on the merits of the case and is

with prejudice.” Hensarling v. Holly, 972 So. 2d 716, 719 (¶7) (Miss. Ct. App. 2007).

¶54. Upon review of a Rule 41(b) dismissal, we consider “[w]hat constitutes failure to

prosecute . . . on a case-by-case basis.” Cox, 976 So. 2d at 874 (¶14). The supreme court has

provided considerations to be weighed in determining whether to affirm a Rule 41(b)

dismissal with prejudice: “(1) whether there was a clear record of delay or contumacious

conduct by the plaintiff; (2) whether lesser sanctions may have better served the interests of

justice; and (3) the existence of other aggravating factors.” Id. (internal quotation marks

omitted) (quoting AT&T v. Days Inn of Winona, 720 So. 2d 178, 181 (Miss.1998)).

¶55. We acknowledge that “[t]here is no set time limit on the prosecution of an action once

it has been filed . . . .” Holder, 54 So. 3d at 197 (¶17) (quoting Guidry, 830 So. 2d at 632).

“However, if the record shows that a plaintiff has been guilty of dilatory or contumacious

20 conduct, or has repeatedly disregarded the procedural directives of the court, such a dismissal

is likely to be upheld.” Hensarling, 972 So. 2d at 720 (¶8). “We also are mindful of the fact

that dismissal with prejudice is an extreme and harsh sanction that deprives a litigant of the

opportunity to pursue his claim, and any dismissals with prejudice are reserved for the most

egregious cases.” Holder, 54 So. 3d at 197 (¶17) (internal quotation marks omitted) (quoting

Hoffman v. Paracelsus Health Care Corp., 752 So. 2d 1030, 1034 (¶11) (Miss. 1999)).

¶56. In examining the first factor of whether a clear record of delay or contumacious

conduct by the plaintiff exists, the record reflects that in April 2010 the chancellor entered

an agreed order prohibiting the Maddoxes from entering the Sullivans’ property. The agreed

order stated: “[S]hould this matter not be resolved within [forty-five] days, this matter shall

be brought back before this [c]ourt for further action.” In his April 10, 2013 judgment, the

chancellor observed that the Sullivans filed their complaint on March 30, 2010 and they

“have not sought to prosecute their [c]omplaint since the one day of trial on May 4, 2011.”

Our review of the docket reflects the following filings made over a nearly two-year period

after the chancellor continued the May 4, 2011 trial:

May 19, 2011 The Maddoxes’ Motion for Designation of Expert Witness Out of Time May 19, 2011 Notice of Hearing on Motion to Allow Designation of Expert Witness Out of Time May 24, 2011 The Sullivans’ Response and Defenses to the Maddoxes’ Motion to Allow Designation of Expert Witnesses Out of Time

21 October 29, 2012 Letter from Stubbs to the Maddoxes’ attorney in response to the email stating that the Maddoxes planned to ask the chancellor on October 28, 2012, to set the matter for trial. Stubbs stated he was not available on that date and that “this case does not need to be set to complete trial” until after the Court of Appeals renders its decision in Sullivan I. November 2, 2012 Letter from Stubbs (recipient and subject matter not listed) March 13, 2013 The Sullivans’ Motion for Recusal of Judge in This Case and in All Other Cases April 4, 2013 The Maddoxes’ Joint Response to the Sullivans’ Motion for Recusal

¶57. These filings show no effort by the Sullivans to set the case for trial after May 4, 2011,

when it was continued. In October 2012, Stubbs wrote an email to the Maddoxes’ attorney

(in response to their email informing him that they intended to set the matter for trial),

informing counsel that he was unavailable and that “this case does not need to be set to

complete trial” until after the Court of Appeals renders its decision in Sullivan I. However,

the record contains no order from the chancellor or motion to stay the proceedings until the

Court of Appeals entered a decision in Sullivan I.

¶58. Turning to the second factor of whether the chancellor considered lesser sanctions,

we recognize that “[l]esser sanctions include fines, costs, or damages against plaintiff or his

counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice,

and explicit warnings.” Cox, 976 So. 2d at 876 (¶24) (internal quotation marks omitted).

Where the record shows no indication that the chancellor considered any alternative

sanctions, “[t]his Court is less likely to uphold a Rule 41(b) dismissal.” Id.

¶59. The chancellor’s April 10, 2013 judgment clearly reflects that he did in fact consider

22 lesser sanctions. The chancellor stated that he also considered the Sullivans’ and Stubb’s

prior attack on the chancellor’s integrity by making allegations of improper campaign

donations and the allegations of impartiality in Sullivan I. The chancellor recalled that

Sullivan’s attack in Sullivan I resulted in sanctions in the amount of $42,922.91, which this

Court affirmed on appeal. The chancellor found that despite these sanctions, the Sullivans

and Stubbs “continue[d] their dilatory conduct, delay, contumacious conduct and the

preparing and procurement of affidavits all in an effort to embarrass and attack the integrity

of the [c]ourt.” The chancellor determined that a monetary sanction in the present matter

would therefore be insufficient. Our review of the record shows that lesser sanctions were

considered and rejected. Cox, 976 So. 2d at 876 (¶25).

¶60. In reviewing whether aggravating factors existed, we acknowledge that aggravating

factors include “the extent to which the plaintiff, as distinguished from his counsel, was

personally responsible for the delay, the degree of actual prejudice to the defendant, and

whether the delay was the result of intentional conduct.” Id. at (¶27) (quoting AT&T, 720 So.

2d at 181 (¶13)). While not required, a finding of aggravated factors “strengthens the case

for dismissal under Rule 41(b).” Id. In the present case, the chancellor found that the

Sullivans intentionally tried to delay the case from moving forward. In his April 10, 2013

judgment, the chancellor stated that when the Maddoxes informed Stubbs that they intended

to put the case on the docket in October 2012, “the [Sullivans] objected. Instead of moving

the case, doing anything with the case, it turned into well, let’s get rid of the judge,” referring

to the Sullivans’ 2013 motion to recuse.

23 ¶61. After reviewing the record, we find that the chancellor did not abuse his discretion by

dismissing the complaint and imposing monetary sanctions.

C. Impermissible Sanction Enhancers

¶62. The Sullivans assert that the chancellor used impermissible sanction enhancers in

determining to dismiss their complaint. In their appellate brief, the Sullivans make several

arguments in support of this claim. In so doing, the Sullivans delve into various explanations

and arguments as to why they initiated and prosecuted the action in Sullivan I. On appeal of

Sullivan I, this Court affirmed the chancellor’s grant of summary judgment dismissing the

claims of all parties with prejudice. Sullivan I, 122 So. 3d at 82 (¶22). This Court also

affirmed the chancellor’s denial of Dempsey Sullivan’s motion to recuse and the chancellor’s

findings that the motion to recuse was made for the purposes of harassment and delay. Id.

at 84, 85 (¶¶28, 33). Any further arguments as to the merits of Sullivan I should have been

made in a motion for rehearing. Accordingly, we decline to entertain these arguments in the

present appeal.

¶63. We will, however, briefly address the Sullivans’ argument regarding their motion for

recusal. The Sullivans maintain that their March 2013 motion for recusal was made in good

faith and rested on new grounds and evidence not available at the time of their 2011 motion

and that, as a result, the chancellor erred in enhancing the Sullivans’ sanctions based on the

chancellor’s finding that the 2013 motion was impermissibly repetitious. The Sullivans

further maintain that on appeal in Sullivan I, this Court ruled that the 2011 motion was

procedurally deficient. The Sullivans state that the 2013 motion contains the requisite

24 affidavits.

¶64. As stated, on April 12, 2011, the Sullivans filed motions for recusal of the chancellor

in both Sullivan I and Sullivan II. Both motions made identical allegations of a lack of

impartiality. In Sullivan I, this Court affirmed the chancellor’s finding that Dempsey

Sullivan’s complaint and April 2011 motion for recusal constituted frivolous filings made

for the purposes of harassment and delay. Sullivan I, 122 So. 3d at 85 (¶33).

¶65. In the present matter, in the chancellor’s April 10, 2013 judgment, he discussed the

Sullivans’ 2013 motion to recuse, as well as the affidavits and bar complaint attached to the

motion. After his review, the chancellor found that the attached documents failed to

“evidence any bias or partiality of this [c]ourt” and produced “no evidence of this [c]ourt

having any involvement in or knowledge of” improper campaign donations or other improper

conduct. Like the 2011 motion, the chancellor determined that the 2013 motion was also a

frivolous pleading made for the purpose of harassment and delay without substantial

justification and showed disrespect for the integrity of the court. As stated, the chancellor

also found that despite the sanctions issued in Sullivan I, the Sullivans and Stubbs

“continue[d] their dilatory conduct, delay, contumacious conduct and the preparing and

procurement of affidavits all in an effort to embarrass and attack the integrity of the [c]ourt.”

The chancellor determined that a monetary sanction in the present matter would therefore be

insufficient.

¶66. We find that the chancellor was within his discretion to consider the 2011 motion for

recusal and previously existing information when assessing sanctions.

25 II. February 23, 2017 Final Judgment

¶67. The Sullivans argue that the chancellor should have adopted the special master’s

report in full and not included additional language outside of the report—specifically,

language affirming and ratifying prior orders of the court. The Sullivans maintain that in an

order entered November 21, 2014, the chancellor transferred the entire action to the special

master, not just part of the action. The Sullivans also assert that the special master’s report

addressed the entire action.

¶68. “We will not disturb a chancellor’s factual findings when supported by substantial

evidence unless the chancellor abused his discretion, was manifestly wrong, clearly

erroneous, or applied an erroneous legal standard.” Deans v. McColumn, 184 So. 3d 972,

975 (¶13) (Miss. Ct. App. 2015) (quoting Venture Sales LLC v. Perkins, 86 So. 3d 910, 913

(¶11) (Miss. 2012)).

¶69. Mississippi Rule Civil Procedure 53 allows the court to appoint a special master to

hear matters. Subsection (d) of this rule provides, in pertinent part, as follows:

The order of reference to the master may specify or limit his powers and may direct him to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearing and for the filing of the master report. Subject to the specifications and limitations stated in the order, the master has and shall exercise the power to regulate all proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order.

M.R.C.P. 53(d). Rule 53(g)(2) states that “[t]he court shall accept the master’s findings of

fact unless manifestly wrong.” We further recognize that “a master’s report has no effect

until it is either accepted or rejected by the chancellor.” In re J.W., 220 So. 3d 202, 203 (¶5)

26 (Miss. Ct. App. 2017).

¶70. As stated previously, in the present case, the chancellor’s full November 21, 2014

order appointing the special master does not appear before us—the record contains only the

first two pages of the order. In the order, the chancellor discussed the procedural history of

Sullivan II, including the Sullivans’ complaint and the Maddoxes’ counterclaim, and found

that “the above matters constitute exceptional conditions which require this [c]ourt to

consider the use of a Special Master so that this . . .”; the sentence is incomplete because the

remainder of the order does not appear in the record before us. The partial order seems to

transfer the entire matter to the special master; however, the special master’s report clearly

states that his only role was to determine whether the Maddoxes possessed an easement.

Additionally, a review of the special master’s report reflects that all of the claims in the

present action were not resolved by the special master’s report. At the December 7, 2016

hearing, the chancellor held a hearing to rule on the special master’s report, as well as the

following orders and motions not addressed in the report: the Maddoxes’ objection to the

special master’s report;8 the Sullivans’ response to the Maddoxes’ objection; the Sullivans’

8 Rule 53(g)(2) provides that a party objecting to the special master’s report must serve their written objections within ten days of the filing of the report. The Maddoxes filed a timely objection to the findings in the special master’s report, but the Sullivans did not file a written objection. In Cuevas v. Kellum, 12 So. 3d 1154, 1159 (¶21) (Miss. Ct. App. 2009), this Court held that a party “waived her objections to the findings when she failed to timely object within ten days as required under Mississippi Rules of Civil Procedure 53(g)(2).” However, in Davison v. Mississippi Dep’t of Human Servs., 938 So. 2d 912 (Miss. Ct. App. 2006), this Court held that although a party “failed to serve a written objection to the master report within ten days . . . [,] a master report has no effect until it is either accepted or rejected by the chancellor.” Id. at 914-15 (¶5) (citing Evans v. Davis, 401 So. 2d 1096, 1099 (Miss. 1981). The Davison court explained that “[e]ven if [the objecting party] never filed a written objection or notice of appeal, the chancellor was still required to determine whether

27 motion to dismiss the Maddoxes’ counterclaim; the Maddoxes’ response to the Sullivans’

motion to dismiss; the Sullivans’ motion to set aside and vacate the order for substitution of

party; and the Maddoxes’ response to the Sullivans’ motion to set aside the order. The

chancellor’s February 23, 2017 final judgment memorializes the rulings on these additional

motions and orders.

¶71. We find that the Sullivans were incorrect in their belief that the special master’s report

addressed all of the claims between all of the parties. The chancellor also possessed the

authority to accept or reject the special master’s report. The chancellor was therefore within

his discretion to ratify and affirm the prior orders and judgments of the court.

III. Estate of Samuel Maddox

¶72. The Sullivans next argue that the suggestions of death for both Steve and Samuel

Maddox terminated their claims in the matter, including their award of sanctions against the

Sullivans. The Sullivans assert that sanctions cannot be assigned to heirs. The Sullivans also

maintain that the Estate of Samuel Maddox was improperly substituted as a party because

Mississippi Rule of Civil Procedure 25 does not allow for an extension of time to substitute

a party.

¶73. Rule 25 provides that upon the death of one party, a “motion for substitution” must

be made “within ninety days after the death is suggested” or “the action shall be dismissed

without prejudice.” Burch v. Illinois Cent. R.R. Co., 136 So. 3d 1063, 1066 (¶8) (Miss. 2014)

(quoting Miss. R. Civ. P. 25(a)(1)). The comment to Rule 25(a)(1) states that “[t]he general

to accept or reject the master report.” Id.

28 provisions of [Mississippi Rule of Civil Procedure] 6(b) apply to motions to substitute;

accordingly, the court may extend the period for substitution if timely requested.” M.R.C.P.

25(a)(1) advisory committee notes; see Burch, 136 So. 3d at 1067 (¶8). The ninety-day

period commences upon “a statement of the fact of the death that is served on parties in the

suit under Rule 5 and on non-parties under Rule 4.” Keller v. Bennett, 103 So. 3d 747, 750

(¶10) (Miss. Ct. App. 2012) (internal quotation marks omitted).

¶74. On May 12, 2016, Sullivan and Stubbs filed a suggestion of death stating that Samuel

Maddox died on May 11, 2016. Eighty-eight days later, on August 8, 2016, Samuel Jr. filed

an entry of appearance and a motion for extension of time for substitution. In his motion,

Samuel Jr. asserted that the Sullivans failed to properly serve the suggestion of death.

Samuel Jr. requested that the chancellor allow for an additional ninety days “for the person

qualifying to serve as executor by court appointment to be substituted in that capacity for

Samuel Maddox in this action.” On October 19, 2016, Judge Gerald Martin entered an order

allowing the substitution of Samuel Maddox’s estate as a party. The order recognized that

Samuel Jr. had been appointed as executor of Samuel Maddox’s estate.

¶75. Our review shows that Samuel Jr. timely petitioned the court for an extension to file

a substitution of parties. The chancellor allowed the extension, and the chancellor later

entered an order substituting Samuel’s estate as a party.

¶76. Regarding the Sullivans’ claims that the Maddoxes’ deaths terminated their claims in

the matter and that sanctions cannot be assigned to heirs, Mississippi Code Annotated section

91-7-233 states that “[e]xecutors . . . may commence and prosecute any personal action

29 whatever, at law or in equity, which the testator or intestate might have commenced and

prosecuted.” “The term ‘personal action’ as used in [this section] means an action for

recovery of personal property, for breach of contract, or for injury to person or property.”

In re Estate of Beckley, 961 So. 2d 707, 710 (¶5) (Miss. 2007).

¶77. In Beckley, 961 So. 2d at 711 (¶5), the supreme court stated that “actions to recover

personal property, to enforce a contract, or to recover damages for breach of contract or for

injury to person or property survive the death of the decedent.” In that case, the supreme

court held that “[u]pon the executor’s substitution as party-plaintiff, the executor effectively

stepped into the shoes of [the plaintiff] in prosecuting the action pursuant to [section]

91-7-237.” Id. The supreme court determined that the estate “could then recover the funds

that [the decedent] might have recovered had he lived to final judgment.” Id.

¶78. We find no abuse of discretion by the chancellor in allowing substitution of the Estate

of Samuel Maddox as a party.

¶79. As stated, in the chancellor’s September 17, 2013 hearing on sanctions, he ordered

Stubbs to pay $19,617.32 to Steve Maddox and Samuel Maddox as reimbursement for

attorney’s fees and expenses. No party was ever substituted upon Steve Maddox’s death.

Rule 25(a)(1), which governs the substitution of parties, states: “The action shall be

dismissed without prejudice as to the deceased party if the motion for substitution is not

made within ninety days after the death is suggested upon the record by service of a

statement of the fact of the death as herein provided for the service of the motion.” It does

not appear that the chancellor ever dismissed the action as to Steve Maddox. We therefore

30 reverse the chancellor’s award of attorney’s fees and expenses and remand to the chancellor

with instructions to: (1) dismiss the action without prejudice as to Steve Maddox pursuant

to Rule 25(a)(1) and then (2) reassess the distribution of the award of attorneys’ fees and

expenses to the remaining party.

IV. Cross-Appeal

¶80. On cross-appeal, the Maddoxes argue that the special master erred in determining that

they did not have a valid easement across the Sullivans’ property. The Maddoxes assert that

they in fact possessed two easements: an easement of record and an easement by

implication.9

¶81. As stated, “[w]e will not disturb a chancellor factual findings when supported by

substantial evidence unless the chancellor abused his discretion, was manifestly wrong,

clearly erroneous, or applied an erroneous legal standard.” Deans, 184 So. 3d at 975 (¶13)

(quoting Venture Sales LLC, 86 So. 3d at 913 (¶11)). “We review questions of law de novo.”

Hardy v. Hardy, 241 So. 3d 636, 638 (¶5) (Miss. Ct. App. 2018).

¶82. As stated above, the special master issued a report, finding that Collier was granted

an easement from a public road to certain land she owned, which did not front a public road.

The special master stated that this easement constituted an easement appurtenant that ran

with the land owned by Collier and was for the purpose of ingress, egress, and regress. In

1987, the Sullivans purchased land from Collier that adjoined the land on which the easement

9 In the proceedings below and on appeal, the Maddoxes use the terms “easement by implication” and “easement by implied grant” interchangeably. For the purposes of continuity, we will use the term “easement by implication.”

31 was given. Collier maintained ownership of a pie-shaped portion of land. The special master

determined that Collier did not reserve an easement over the land she sold to the Sullivans

for access to the pie-shaped portion of land she still owned. The special master found that

“[w]ith the 1987 purchase, the Sullivans then became the owners of the easement since by

the easement’s very terms, the easement belonged to the land, not to . . . Collier personally.”

¶83. By other conveyances over time, the Sullivans acquired the land through which the

1981 easement was given. The special master concluded that when the Sullivans “owned

both the land on which the easement was given and the adjacent land for which the easement

was given, the easement merged into the land on which the easement was given and,

¶84. In 1994, Collier sold the Maddoxes the remaining portion of the land for which the

easement was given and purported to transfer the easement itself. The special master found

that “[w]hile the Maddoxes’ pie-shaped piece of land is adjacent to other lands they own and

lands the [Sullivans] own, it is not adjacent to lands on which the 1981 easement was located.

In fact, it is about 900 feet away.”

¶85. Our review of the record confirms that the Sullivans and Maddoxes purchased their

land from a common source. The special master stated that when the Maddoxes purchased

their property from Collier, “they knew, or should have known, that they would only have

access to the lot through the adjoining land they owned and not the Sullivans[’] land.” The

special master determined that if the Maddoxes had purchased the property before the

Sullivans purchased the land between the pie-shaped portion and the land over which the

32 easement was granted, they could have possibly obtained an easement by implication, but

because they purchased the land after the Sullivans, the Maddoxes did not obtain an easement

by implication.

¶86. On cross-appeal, the Maddoxes claim they have an easement to access their property

across the Sullivans’ property by way of the 1981 easement and an additional easement. The

Maddoxes specifically claim that the 1981 easement is valid, that it did not terminate, and

that they have an easement by implied grant.

A. Easement of Record

¶87. The 1981 easement created an easement to Collier’s property described in the

easement, but to no other property. The easement, by its terms, ran with the land, and when

the Sullivans obtained both the land on which the easement was granted and all the land

adjoining the easement which the easement served, the easement merged and no longer

existed. The special master advised that the Maddoxes “may file an action in the appropriate

Court against the Sullivans and their other neighbors to attempt to establish an easement for

necessity if they think that such need exists.”

¶88. The Maddoxes claim the 1981 easement is valid in that it comports with the rules for

instruments conveying an interest in land, complies with the Statute of Frauds, was properly

acknowledged and recorded, was granted upon the receipt of valuable consideration, and the

description of the easement is sufficient. Second, the Maddoxes claim that the finding that

the easement “no longer existed because of merger is in error because it fails to recognize

that there was not a complete merger of the dominant and servient estates.” They cite Taylor

33 v. Hays, 551 So. 2d 906 (Miss. 1989). In that case, the supreme court addressed whether the

trial court properly removed an access easement. Id. at 907-08. The easement at issue was

not written or recorded. Id. at 908. The supreme court stated that “[t]he type of easement

in existence has been named an easement by implication in some cases and in other cases an

easement by necessity. We think that, here, we are confronted with an easement by necessity,

arising by implication.” Id. The Taylor court “set forth the general rule that an easement

by necessity arises by implied grant when a part of a commonly-owned tract of land is

severed in such a way that either portion of the property has been rendered inaccessible

except by passing over the other portion or by trespassing on the lands of another.” Id. The

Taylor court further stated that “easements or rights-of-way by necessity exist only so long

as the necessity exists and the easement by necessity terminates when other access to the

land-locked property becomes available.” Id. This rule might be distinguishable from

easements that are written and recorded. However, the supreme court quoted a case from the

Connecticut Supreme Court:

It is a fallacy to suppose that a right of way of necessity is a permanent right, and the way a permanent way, attached to the land itself, whatever may be its relative condition, and which may be conveyed by deed, irrespective of the continuing necessity of the grantee. . . . It is a principle true from the very nature of the case, and as such is recognized by all the authorities, that a way of necessity, whether it originates in the necessity of the party claiming it, or from the operation of deeds furnishing evidence of the intent of the parties, where a necessity exists, is limited by the necessity which creates it, and is suspended or destroyed, whenever such necessity ceases.

Id. at 909 (citing Pierce v. Selleck, 18 Conn. 321, 329 (1847)).

¶89. The Maddoxes also rely on Will v. Gates, 680 N.E.2d 1197, 1200 (N.Y. 1997), for the

34 proposition that “[a]n easement is not extinguished under the doctrine of merger by the

acquisition by the owner of the dominant or servient estate to title to only a fractional part

of the other estate.” Id. at 1200. Will v. Gates involved a right-of-way that abutted properties

of all the parties. Id. at 1198. The Maddoxes claim that they have a dominant estate with

access to the easement despite the fact that, as determined by the special master, their

property is about 900 feet away from the easement. It is not clear from Will that a dominant

estate could be divided and subdivided with each retaining rights to the easement even if

such divided estates are separated from the easement.

¶90. In the present case, the record shows that Collier sold the land on which the 1981

easement existed to the Sullivans. Several years later, the Maddoxes purchased the pie-

shaped portion. The land was no longer commonly owned. The special master also found

that Collier’s land did not originally abut or front the public road. The 1981 easement did

not connect to the pie-shaped portion. The special master stated that when the Maddoxes

purchased their property from Collier, “they knew, or should have known, that they would

only have access to the lot through the adjoining land they owned and not the Sullivans[’]

land.” We accordingly find that the Maddoxes did not possess an easement of record.

B. Easement by Implication

¶91. The Maddoxes also claim that when Collier conveyed part of the dominant estate to

Sullivan, she retained an easement by implication to the property she retained and that

“[w]ith the Okatoma River to the West and otherwise being landlocked, this easement by

35 [implication] was necessary at the time of the initial severance and remains necessary.”10

¶92. This Court has held that “[a]n ‘easement by necessity’ and an ‘implied easement’ are

the same.” Hardy v. Hardy, 241 So. 3d 636, 638 (¶7) (Miss. Ct. App. 2018) (quoting King

v. Gale, 166 So. 3d 589, 594 (¶25) (Miss. Ct. App. 2015)); see also Taylor v. Hays, 551 So.

2d 906, 908 (Miss. 1989) (recognizing that “an easement by necessity arises by implied grant

when a part of a commonly-owned tract of land is severed in such a way that either portion

of the property has been rendered inaccessible except by passing over the other portion or by

trespassing on the lands of another”)). “A claimant seeking an easement by necessity has the

burden of proof and must establish that he is entitled to a right of way across another’s land.”

Id. (quoting Davidson v. Collins, 195 So. 3d 825, 827 (¶11) (Miss. Ct. App. 2015)). To

establish an easement by necessity, a claimant is required to prove that “(1) the easement is

necessary; (2) the dominant and servient estates were once part of a commonly owned parcel;

(3) the implicit right-of-way arose at the time of severance from the common owner.” Id.

“To satisfy this burden, the claimants must show strict necessity; that they possess no other

means of access to their property.” Id. (quoting Haik v. Gammill, 122 So. 3d 771, 778 (¶26)

(Miss. Ct. App. 2013)).

¶93. In the case before us, as in Hardy, “[i]t is undisputed that the parties to this appeal

hold land derived from a once commonly owned . . . parcel.” Id. at (¶8). As to the factor of

whether the implicit right-of-way arose at the time of severance from the common owner, the

Maddoxes maintain that they acquired Collier’s easement by implication for ingress and

10 In their answer and counterclaim, the Maddoxes claim that they have an easement by necessity and an easement by implication.

36 egress from the pie-shaped portion of the estate she later sold to the Maddoxes to the parcel

of land that is the subject of the 1981 easement and which provides access to the public road.

The special master determined that the parcel of land on which the Maddoxes maintain they

have an easement by implication measures approximately 900 feet. However, the special

master determined that Collier did not reserve an easement on this 900 feet for access to from

the pie-shaped portion of land she still owned to the subject of the 1981 easement.

¶94. As to whether the easement is necessary, the special master stated that the Maddoxes

“only have access to the [pie-shaped portion they purchased from Collier] through the

adjoining land they owned and not the Sullivans.” The Maddoxes assert that the Okatoma

River lies to the west of their property, and therefore the easement by implication is

necessary to afford Collier, and now the Maddoxes, with access to the 1981 easement, which

then provides access to and from the public road. The Sullivans argue that “[f]urther proof

shows that the Maddoxes have not one but two other routes to enter their property”; however,

they provide no record citation for this claim, and we find nothing in the record to support

the claim.

¶95. Although the special master concluded that the Maddoxes did not have an easement

of record or an easement by implication, he advised that the Maddoxes “may file an action

in the appropriate [c]ourt against the Sullivans and their other neighbors to attempt to

establish an easement for necessity if they think that such need exists.”

¶96. After our review, we find no easement of necessity exists. In Hardy, the land was still

all commonly owned, and no land separated the tracts owned by the brothers. Here, the land

37 with the easement was no longer commonly owned when the Maddoxes bought their pie-

shaped portion. The record and the special master’s report reflect that the Maddoxes can

access the pie-shaped portion from the other land they own. As stated, the chancellor

adopted and ratified the special master’s report in his final judgment. We find the chancellor

did not abuse his discretion in finding that the Maddoxes did not possess an easement of

record or an easement by implication across the Sullivans’ property and in dismissing the

Maddoxes’ counterclaim with prejudice.

CONCLUSION

¶97. We affirm the following the chancellor’s dismissal of the Sullivans’ complaint with

prejudice; the chancellor’s award of sanctions; the chancellor’s judgment ratifying and

affirming all prior orders of the chancery court; the chancellor’s order substituting the Estate

of Samuel Maddox as a party; and the chancellor’s judgment finding that the Maddoxes did

not have an easement of record or an easement by implication across the Sullivans’ property.

However, we reverse the chancellor’s award of attorney’s fees to Steve Maddox and Samuel

Maddox, which the chancellor issued as sanctions against Stubbs, and we remand this issue

to the chancellor with instructions to: (1) dismiss the present action without prejudice as to

Steve Maddox pursuant to Rule 25(a)(1) and (2) and then reassess the distribution of the

award of attorney’s fees and expenses to the remaining party.

¶98. ON DIRECT APPEAL: AFFIRMED IN PART; REVERSED AND REMANDED IN PART. ON CROSS-APPEAL: AFFIRMED.

BARNES, C.J., WESTBROOKS, TINDELL AND LAWRENCE, JJ., CONCUR. GREENLEE, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY TINDELL AND LAWRENCE, JJ.; McCARTY, J., JOINS IN PART.

38 J. WILSON, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. McDONALD, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. McCARTY, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY McDONALD, J. C. WILSON, J., NOT PARTICIPATING.

GREENLEE, J., SPECIALLY CONCURRING:

¶99. Because of our limited standard of review, I am compelled to concur with the

majority. Although part of the attorney’s fees in this case was awarded to the Maddoxes for

the cost of defending the complaint, it appears some attorney’s fees were also awarded for

the cost of the counter-complaint even though the counter-complaint was unsuccessful. The

chancellor ultimately denied the Maddoxes’ request for an easement—the object of their

unsuccessful counter-claim. The amount and reasonableness of attorney’s fees, however,

was not challenged on appeal. Nor was Exhibit 1 (which detailed the attorney’s fees)

included in the record on appeal. Only the appropriateness of the chancellor’s award of

attorney’s fees as a sanction is before this Court, not the propriety of fixing the amount so

ordered. I therefore specially concur.

TINDELL AND LAWRENCE, JJ., JOIN THIS OPINION. McCARTY, J., JOINS THIS OPINION IN PART.

McCARTY, J., CONCURRING IN PART AND DISSENTING IN PART:

¶100. Everyone deserves zealous counsel, and no one deserves the burden of vexatious

litigation. The boundary between these lands is not always distinct. Combined with the prior

iteration of this long-running fistfight in Sullivan I, the majority allows a sanction against the

lawyer totaling $62,540.23. Because I see the lawyer’s action as one of zealous service to

his client, I cannot agree to the imposition of this amount, or the use of prior conduct

39 resulting in sanctions as a basis for further sanction.

¶101. The Preamble to our Rules of Professional Conduct tells how “[a]s advocate, a lawyer

zealously asserts the client’s position under the rules of the adversary system.” Our

Mississippi Rules of Civil Procedure were established “to secure the just, speedy, and

inexpensive determination of every action.” M.R.C.P. 1. Mississippi Rule of Civil

Procedure 11 puts teeth to these lofty ideals, so that when a litigant has interfered with our

ordered system of justice they may be sanctioned—not must be sanctioned, but “the court

may order” sanctions. M.R.C.P. 11(b). The Advisory Committee Notes to Rule 11 explain

“[t]he final sentence of Rule 11(b) is intended to ensure that the trial court has sufficient

power to deal forcefully and effectively with parties or attorneys who may misuse the liberal,

notice pleadings system effectuated by these rules.” So we have rules, but they may at times

be in tension with a lawyer’s duty to be zealous on behalf of a client.

¶102. In Sullivan I, the lawyer in this case was hammered for not attaching an affidavit

supporting a request for recusal. Sullivan v. Maddox, 122 So. 3d 75, 83 (¶26) (Miss. Ct. App.

2013). We were blunt: “Sullivan has provided no explanation on appeal for this defect in the

record.” Id. This omission was a significant portion of our decision, resting on a finding

“that Sullivan failed to present evidence in support of his motion for recusal raising a

question as to the chancellor’s impartiality,” properly construed as a total failure of proof.

Id. at 84 (¶27).

¶103. The trial court had determined sanctions were appropriate in part because of the

motion to recuse, one of four bases claimed for sanction. Id. On appeal, the Court affirmed,

40 finding “no abuse of discretion in the chancellor’s finding that Sullivan’s complaint and

motion for recusal constituted frivolous filings made for the purposes of harassment and

delay.” Id. at 85 (¶33).

¶104. After that decision—and after paying over $42,000 levied as a sanction—the lawyer

then filed a new motion to recuse. This one did have affidavits and supporting proof. In fact,

the motion to recuse had seven affidavits from seven different people, a copy of a campaign

contribution, and an expenditure list from the trial court’s recent campaign. Having learned

from this Court’s pronouncement in Sullivan I, the lawyer appears to have followed the rule

with gusto.

¶105. It is clear the trial court did not like what was in the affidavits and did not like that the

request to recuse was resumed. This is where that wandering line between zealousness and

vexation must be pinned to a map. The trial court ruled that this was a continuing example

of delay and harassment, which was in line with the lawyer’s prior sanctioned actions.

¶106. It seems to me to be quite different. We should remember that to be zealous means

to embrace the wildness of advocacy and belief. I do not quibble with the trial court’s denial

of the request to recuse but rather the refusal to recognize that the lawyer was striking a blow

out of passion. The decision was also made based on the rule requiring affidavits in support

of a motion to recuse.

¶107. The lawyer paid the sanction fee the first time. The point was made, and we do not

need to make it again. I would affirm but reverse the sanction, setting the mark on this map

41 within the land of zeal.

McDONALD, J., JOINS THIS OPINION.