Jordan v. Fountain

986 So. 2d 1018, 2008 WL 73644
CourtCourt of Appeals of Mississippi
DecidedJanuary 8, 2008
Docket2006-CA-01936-COA
StatusPublished
Cited by5 cases

This text of 986 So. 2d 1018 (Jordan v. Fountain) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jordan v. Fountain, 986 So. 2d 1018, 2008 WL 73644 (Mich. Ct. App. 2008).

Opinion

986 So.2d 1018 (2008)

Nathan JORDAN and Sandra Peters, Appellants/Cross-Appellees
v.
Roscoe E. FOUNTAIN, Jr., Appellee/Cross-Appellant.

No. 2006-CA-01936-COA.

Court of Appeals of Mississippi.

January 8, 2008.
Rehearing Denied May 20, 2008.

*1019 Matthew W. O'Quain, attorney for appellants.

Michael Adelman, Hattiesburg, attorney for appellee.

Before MYERS, P.J., GRIFFIS and CARLTON, JJ.

MYERS, P.J., for the Court.

¶ 1. Roscoe E. Fountain, (owner of Lot Five) filed a complaint against Nathan Jordan and Sandra Peters, collectively (Jordan), (owners of Lot Six) for encroachment on an area containing a building, shed, fence, wooden floor, and concrete parking space located in the Washington Heights Addition Subdivision, a commercial area, in Forrest County. The chancellor found that Jordan had only met the requirements *1020 of adverse possession as to the portion of the land where the building rests in Lot Five; however, the other improvements, namely the shed, wooden fence, concrete parking space, and wooden floor, were declared the property of Fountain. On appeal, Jordan seeks reversal of the chancellor's determination that there was no adverse possession regarding the area containing the concrete parking area, the shed, the wooden fence, and the wood floor. In the alternative, Jordan asks the Court to reverse the trial court's judgment and remand this action for further proceedings under the correct legal standard. By cross-appeal, Fountain seeks reversal of the lower court's judgment in favor of Jordan granting adverse possession of the land area containing the building and concrete slab behind the building, but seeks to uphold that portion of the judgment finding there was no adverse possession as to the concrete parking area, the shed, the wooden fence, and the wooden floor. Fountain also seeks review by cross-appeal of the lower court's failure to grant compensatory damages, attorney's fees, and expenses. Finding error, we reverse and remand.

STATEMENT OF THE CASE

¶ 2. Fountain filed a complaint against Jordan, alleging encroachment. However, Jordan claimed that the predecessor in title, Leroy Willis, had already acquired the property in Lot Five through adverse possession. The chancellor found that Jordan had only met the requirements of adverse possession as to the portion of the land where the building rests in Lot Five; however, the other improvements, namely the shed, wooden fence, concrete parking space, and wooden floor, were declared the property of Fountain. The chancellor noted that the shed did not exist on the property when Jordan acquired the property in 1998, and the wooden fence was erected and the concrete parking space was poured in 2002, less than ten years ago. The chancellor held that Jordan had not met the requirements of adverse possession as to the shed, wooden fence, concrete parking space, and wooden floor located in Lot Five. Jordan was ordered to remove from use of that property adjudicated to be the fee simple property of Fountain. Jordan appeals, asserting that the chancellor applied the wrong legal standard.

¶ 3. Jordan asserts that the determination of whether he adversely possessed the property in question should not be based on whether certain improvements have been on the land for ten years, but rather the issue should be whether his predecessor in title openly used the real property, itself, for the requisite period of time. In support of the argument, Jordan demonstrates that his predecessor in title, Willis, used the property as his own for a period of twenty-eight years, dating back to 1970. The property described as Lot Six of Block Five was transferred from R.L. Calhoun to Leroy and Juanita Willis on July 15, 1970. Leroy Willis testified that there was a one-story building, a mobile home, and a shed on the property at the time he came into possession. Jordan subsequently purchased the Lot Six property on February 9, 1998, from Leroy and Juanita Willis. The Willises testified that while they resided on the property they mowed and maintained the grass, controlled access to the property, had a driveway cut over the property, paid no rent for use of the property, and maintained a clothesline alongside the driveway on the property for some time. Based on the Willises' past use of the property and alleged adverse possession, Jordan asserts that he should be allowed to tack the Willises' period of adverse possession onto his own period of possession. Jordan also asserts in the alternative, *1021 that the Willises had successfully possessed the property for over ten years, so that when it was sold to Jordan, the property was already rightfully owned by the Willises by adverse possession. The chancellor, at trial, found that the testimony presented at the hearing was unclear regarding the past use of the property by the Willises or other predecessors in title, dating back to 1960.

¶ 4. Fountain is the owner of Lot Five, which is situated immediately adjacent to Lot Six. Fountain obtained a survey of his land, which demonstrated that the building, concrete slab, wooden floor, shed, wooden fence, and parking area encroached across Lot Six onto Lot Five. Fountain cross-appeals, seeking a finding that the chancery court erred in denying him compensation for attorney's fees, the costs of the survey, the title opinion, and the deposition expenses, totaling $4,398. Fountain also asked for an award of $300 per month, as rent for the time period Jordan used the property allegedly unlawfully. The chancellor ordered that each party pay its own attorney's fees and declined to award monetary damages. However, the chancellor provided no findings regarding the denial of Fountain's requests. At a minimum, Fountain requests a remand for a determination as to whether just compensation should be awarded to him.

STANDARD OF REVIEW

¶ 5. This Court's review of a chancellor's findings is greatly limited. Apperson v. White, 950 So.2d 1113, 1116(¶ 4) (Miss.Ct.App.2007). This Court "will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." Id. (citing Sanderson v. Sanderson, 824 So.2d 623, 625-26(¶ 18) (Miss.2002)). Additionally, this Court will review a chancellor's findings of law under a de novo standard. Graves v. Dudley Maples, L.P., 950 So.2d 1017, 1020(¶ 14) (Miss.2007).

¶ 6. Mississippi Code Annotated section 15-1-13 (Rev.2003) sets forth the guidelines required to adversely possess land. The Mississippi Supreme Court has further established a six-part test to determine whether adverse possession has occurred. In order for possession to be considered adverse, it must be "(1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful." Rice v. Pritchard, 611 So.2d 869, 871 (Miss.1992). The person claiming to be in adverse possession must establish his or her claim by clear and convincing evidence and show that each element is met. Thornhill v. Caroline Hunt Trust Estate, 594 So.2d 1150, 1152 (Miss.1992).

¶ 7. Finally, "[t]he standard of review regarding attorneys' fees is the abuse of discretion standard, and such awards must be supported by credible evidence." Bailey v. Estate of Kemp, 955 So.2d 777, 787(¶ 41) (Miss.2007) (quoting Miss. Power & Light Co. v. Cook, 832 So.2d 474, 486(¶ 7) (Miss.2002)).

DISCUSSION

I.

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Bluebook (online)
986 So. 2d 1018, 2008 WL 73644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jordan-v-fountain-missctapp-2008.