Mize v. Westbrook Construction Co. of Oxford

146 So. 3d 352, 2013 WL 3607468, 2013 Miss. App. LEXIS 432
CourtCourt of Appeals of Mississippi
DecidedJuly 16, 2013
DocketNo. 2012-CA-00610-COA
StatusPublished

This text of 146 So. 3d 352 (Mize v. Westbrook Construction Co. of Oxford) 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
Mize v. Westbrook Construction Co. of Oxford, 146 So. 3d 352, 2013 WL 3607468, 2013 Miss. App. LEXIS 432 (Mich. Ct. App. 2013).

Opinion

BARNES, J.,

for the Court:

¶ 1. Jerry Mize filed suit to quiet and confirm the title to his property, which he argues extends slightly south of County Road 206 in Lafayette County, Mississippi. His neighbors to the south counterclaimed, asserting that according to them deeds, they own the property to the centerline of County Road 206, and, even if their deeds are incorrect, they own the land by adverse possession. The chancellor agreed with the neighbors and confirmed their titles. The chancellor also found that Mize acted maliciously in pursuing his claim and awarded attorney’s fees and damages. Mize now appeals, arguing the chancellor was biased and lacked support for his findings. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Mize owns fifty-six acres in Lafayette County north of County Road 206. Westbrook Construction Company of Oxford LLC owns fifty-two acres directly south of Mize’s property. Kay and Jimmy Lewis Jr. (the Lewises), Jimmie Waller (Kay’s mother), and Craig Merrell also own land to the south of Mize’s. The disputed property is a somewhat triangle-shaped piece of land that runs along the south side of County Road 206 for approximately a quarter of a mile and extends approximately four feet to the south on the [355]*355west side and thirty-five feet to the south on the east side.1

¶ 3. The crux of this matter began in the summer of 2007, when Westbrook requested site approval with the Lafayette County Planning Commission for development of a subdivision. Westbrook had purchased the land south of Mize’s property in 2005 with intentions of future development. Mize and several neighbors protested the subdivision.

¶ 4. According to Mize, when he purchased his property in August 2000, he was told by the previous property owner, Estelle Kiger, that his property line extended slightly south of County Road 206. Mize’s ownership of the property south of County Road 206 would cut off access for the proposed subdivision. In October 2007, Mize hired Melvin James Cannatella, a surveyor with W.L. Burle, Engineers P.A., to survey his property. Upon reviewing Mize’s 2000 deed, Cannatella discovered that the property description “did not close” on the south side, meaning there was a gap in the property’s border. Can-natella determined that the only way to close the description was to include County Road 206 and a portion of the land extending south of it. In October 2007, Canna-tella rewrote the property description, and Kiger executed a correction deed to Mize.

¶ 5. On September 18, 2008, Mize filed suit in the Lafayette County Chancery Court against Westbrook, the Lewises, Waller, and Merrell to quiet and confirm his title and to bar the defendants from using his property. Westbrook, the Lew-ises, and Waller answered the complaint and filed counter-complaints.2 The defendants/counter-claimants alleged that Mize had slandered their titles; they sought to quiet and confirm their own titles.

¶ 6. A hearing was held at which Mize introduced Cannatella’s survey as evidence, and the defendants introduced a survey that they had commissioned by Robert Sealy. Sealy’s survey stated that Mize’s property line stopped at County Road 206. The chancellor found that Sealy’s survey was correct, and, alternatively, that the defendants had proven all the elements of adverse possession. And because the chancellor found Mize acted with malice in pursuing his claim, Mize was ordered to pay $5,687.50 in attorney’s fees and $32,530.05 in damages.

¶ 7. On appeal, Mize asserts the following issues: (1) the chancellor should have recused himself because he had personal knowledge of disputed facts; (2) the chancellor erroneously excluded three deeds from evidence; (3) the defendants did not prove adverse possession; (4) the chancellor erred in awarding attorney’s fees for slander of title; (5) the chancellor erred in awarding Westbrook damages for the lost sale of property; and (6) the chancellor erred in finding Sealy’s testimony more credible than Cannatella’s.

[356]*356ANALYSIS OF THE ISSUES

1. Chancellor’s Personal Knowledge of the Facts

¶ 8. Mize argues the chancellor should have recused himself because he was familiar with the properties in controversy and had prepared one of the deeds in evidence. Alternatively, Mize argues the chancellor should have disclosed his possible disqualifications on the record and given the parties an opportunity to waive the conflict.

¶ 9. Canon 3E(l)(a)-(b) of the Mississippi Code of Judicial Conduct states:

(1) Judges should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentia-ry facts concerning the proceeding;
(b) the judge served as lawyer in the matter in controversy....

¶ 10. Mize’s first issue arises from the following statement made by the chancellor when giving the opinion of the court: “And I believe Exhibit No. 24, it was a number of lots that were surveyed by Mr. Edward Overall, a surveyor over in Marshall County. And there was a survey made of a—two surveys made for property for a black church. This judge did one of the deeds.” (Emphasis added). The deed, dated May 1996, is signed by the chancellor and describes 2.2 acres in the Northwest Quarter of Section 6.3 The deed clearly bears the chancellor’s name and signature. No objection or motion for re-cusal was made when the deed was offered into evidence or when the chancellor stated he prepared the deed. The failure to object waived this issue for appeal. See Tubwell v. Grant, 760 So.2d 687, 689 (¶ 8) (Miss.2000) (“Where the party knew of the grounds for the motion [for recusal] or with the exercise of reasonable diligence may have discovered those grounds and where that party does not move timely prior to trial, the point will be deemed waived.”).

¶ 11. Regardless, the deed prepared by the chancellor does not involve the parties or properties in this action, and the contents of the deed are not in controversy. The deed references a stone in a church lot that was recognized as marking the northwest corner of Section 6. There is no dispute as to the location of the northwest corner of Section 6. In fact, Mize’s surveyor, Cannatella, stated in his testimony he used the stone to establish the northwest corner of his survey. Finally, we have carefully reviewed the deeds in evidence, and their descriptions relevant to this case have a point of beginning at the southwest comer of the Northwest Quarter of Section 6. Also, we note that a seventeen-acre tract, labeled tract 26 in Appendix A, lies between the church’s property and Mize’s property; thus, the borders of the church’s property as established in the deed drafted by the chancellor could not possibly encroach Mize’s property. Therefore, the deed prepared by the chancellor is not a matter in controversy. Also, no bias has been shown to have resulted from the chancellor’s work on the deed. Thus, we cannot find that the chancellor should have sua sponte re-cused himself.

¶ 12.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Webb v. Drewrey
4 So. 3d 1078 (Court of Appeals of Mississippi, 2009)
Walker v. Murphree
722 So. 2d 1277 (Court of Appeals of Mississippi, 1998)
Bell v. Parker
563 So. 2d 594 (Mississippi Supreme Court, 1990)
Tubwell v. Grant
760 So. 2d 687 (Mississippi Supreme Court, 2000)
Blankinship v. Payton
605 So. 2d 817 (Mississippi Supreme Court, 1992)
Walley v. HUNT
54 So. 2d 393 (Mississippi Supreme Court, 1951)
Ellison v. Meek
820 So. 2d 730 (Court of Appeals of Mississippi, 2002)
Blackburn v. Wong
904 So. 2d 134 (Mississippi Supreme Court, 2004)
Thornhill v. Caroline Hunt Trust Estate
594 So. 2d 1150 (Mississippi Supreme Court, 1992)
Phelps v. Clinkscales
247 So. 2d 819 (Mississippi Supreme Court, 1971)
Walters v. Rogers
75 So. 2d 461 (Mississippi Supreme Court, 1954)

Cite This Page — Counsel Stack

Bluebook (online)
146 So. 3d 352, 2013 WL 3607468, 2013 Miss. App. LEXIS 432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mize-v-westbrook-construction-co-of-oxford-missctapp-2013.