Misita v. Conn

138 So. 3d 174, 2013 WL 2302945, 2013 Miss. App. LEXIS 291
CourtCourt of Appeals of Mississippi
DecidedMay 28, 2013
DocketNo. 2011-CA-01865-COA
StatusPublished
Cited by2 cases

This text of 138 So. 3d 174 (Misita v. Conn) 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
Misita v. Conn, 138 So. 3d 174, 2013 WL 2302945, 2013 Miss. App. LEXIS 291 (Mich. Ct. App. 2013).

Opinions

ISHEE, J.,

for the Court:

¶ 1. In 2007, Joel Misita purchased approximately 8.226 acres of land (the three acres) in Natchez, Mississippi, from Kevin and Rebecca Wilson. The three acres were properly conveyed by a warranty deed containing a covenant prohibiting the building of any structures on the property. The Wilsons and Misita were neighbors with the three acres adjoining their properties. The Wilsons later sold their land to Roy A. Conn (Al) and his wife, Mitzi Conn. Shortly thereafter, Misita placed a movable advertisement sign for his business on the three acres. The Conns objected to the placement of the sign, and sought enforcement of the warranty deed’s covenant in the Adams County Chancery Court in May 2011. In October 2011, after a trial on the merits, the chancery court ruled in favor of the Conns and ordered the structure to be removed from the three acres. On appeal, Misita asserts the covenant is ambiguous and unenforceable. We reverse and render the chancery court’s determination that the sign constitutes a structure. We affirm the chancery court’s determination that the covenant is a permissible real covenant running with the land.

STATEMENT OF FACTS

¶ 2. In 2007, Misita and the Wilsons were neighbors in Elgin & Grove Plantation, a community in Adams County, Mississippi. Prior to the sale of the three acres, the Wilsons' property consisted of approximately thirty acres with a single residence. Misita’s land consisted of approximately seven acres with several structures positioned on the property. The main home on Misita’s land is an unusually tall three-story structure that houses Misita’s wood and metalworking business on the bottom floor and his residence on the top two floors. The main house measures over sixty-two feet tall. Also present on the property are multiple outbuildings, including a large woodworking facility, several large trailers, a small cabin on a hill, and various sheds.

¶ 3. In November 2007, Kevin commissioned Misita to build a copper vent hood for the Wilsons’ house. Misita agreed to construct the hood for the Wilsons and pay them ten dollars in exchange for the three acres. Kevin agreed to Misita’s proposal. However, according to Misita, Kevin looked up at Misita’s towering home and commented that the land would only be conveyed on the premise that no structures may be built on the three acres. Misita testified that he replied: “Fine.” On November 16, 2007, after the copper hood was delivered and Misita had given the [177]*177Wilsons ten dollars in cash, the Wilsons executed a warranty deed conveying the three acres to Misita with the following covenant: “No structures are to be erected on the property.”

¶ 4. In June 2008, the Wilsons sold the property and the residence to the Conns. About two years later, Misita decided to build a large movable sign on wheels to advertise his business. The sign is triangular in shape measuring eighteen feet long on all sides and is approximately fifteen feet tall. It contains a floor, a metal roof, and a door. Misita stores various examples of his work inside, and designed the sign to show to potential clients his work, as well as advertise his business to passersby on the highway. It is connected to pipes that are sunk into the ground and secured by concrete; however, the sign is movable. It is positioned on a trailer and has wheels so that Misita can take the sign to trade shows or to clients’ homes. Initially Misita was granted a trailer license with the sign. Currently, Misita must obtain a special permit in order to transport the sign.

¶ 5. Prior to placing the sign on the three acres, Misita discussed the sign’s placement with the Conns. The Conns considered Misita’s proposition as a request to eliminate the covenant, and ultimately decided that enforcement of the covenant was in their best interest. The Conns communicated this decision to Misi-ta by a written letter dated April 12, 2010, that was mailed by certified mail with a return receipt requested. Therein, they acknowledged Misita’s proposition and their decision. They also stated that they had relied on the covenant in their decision to purchase their property from the Wil-sons. They advised Misita that they would seek enforcement to the covenant should Misita continue with his plan to place the sign on the three acres.

¶ 6. Misita soon placed the sign on the three acres, and the Conns subsequently filed suit on May 4, 2011. The chancery court conducted a hearing on the Conns’ complaint on September 27, 2011. On October 25, 2011, the chancery court issued extensive findings of fact and conclusions of law, and determined that the covenant prohibited Misita’s placement of the sign on the three acres. Misita quickly filed a motion for reconsideration, which was denied. He now appeals the chancery court’s judgment.

DISCUSSION

¶ 7. The Mississippi Supreme Court has stated the following with regard to issues involving the interpretation of contracts:

Such issues are questions of law reviewed by our appellate courts under a de novo standard of review. We first look to the express wording of the contract itself, looking at the contract as a whole, to the exclusion of extrinsic or parol evidence. If the parties’ intent is unclear, the court will utilize the applicable “canons” of contract construction. Finally, if the meaning remains ambiguous, only then may the court consider extrinsic evidence.

Cherokee Ins. Co. v. Babin, 37 So.3d 45, 48 (¶ 8) (Miss.2010) (internal citations omitted). The supreme court has further held that “it is not the function of the courts to make contracts for parties, but rather to give effect to them as written ... [and] to adhere to the principle so deeply embedded in our jurisprudence that the plain and unambiguous language of a contract should be construed as written.” Vulcan Materials Co. v. Miller, 691 So.2d 908, 912 (Miss.1997) (citations omitted).

¶ 8. In his first issue on appeal, Misita claims the chancery court erred in finding that the covenant in question was a real covenant that runs with the land instead of a personal covenant. In order for [178]*178a covenant to be real, the evidence must show the following:

(1) [T]he covenanting parties intended to create such a covenant;
(2) [P]rivity of estate exists between the person claiming the right to enforce the covenant and the person to whom the burden of the covenant is to be imposed; and
(3) [T]he covenant “touches and concerns” the land[.]

Id. at 914.

¶9. Accordingly, we now analyze the intent of the parties while first addressing any possible ambiguities with regard to the covenant’s language. The covenant states: “No structures are to be erected on the property.” The parties differ in their determination of the original intent of the term “structure.” The chancery court cited Conservatorship of Estate of Moor v. State, 46 So.3d 849 (Miss.Ct.App.2010), in correctly stating: “[T]he mere fact that parties dispute what falls under the definition of a term to the contract does not make the term ambiguous as a matter of law. If the words are not defined in the deed, the court gives them their commonly accepted meaning.”

¶ 10.

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Related

Misita v. Conn
138 So. 3d 138 (Mississippi Supreme Court, 2014)
Joel Misita v. Roy A. Conn
Mississippi Supreme Court, 2011

Cite This Page — Counsel Stack

Bluebook (online)
138 So. 3d 174, 2013 WL 2302945, 2013 Miss. App. LEXIS 291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/misita-v-conn-missctapp-2013.