Paula W. Crosby v. Kathryn Adele Mittelstaedt

186 So. 3d 415, 2016 Miss. App. LEXIS 95, 2016 WL 700307
CourtCourt of Appeals of Mississippi
DecidedFebruary 23, 2016
Docket2015-CA-00529-COA
StatusPublished
Cited by3 cases

This text of 186 So. 3d 415 (Paula W. Crosby v. Kathryn Adele Mittelstaedt) 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
Paula W. Crosby v. Kathryn Adele Mittelstaedt, 186 So. 3d 415, 2016 Miss. App. LEXIS 95, 2016 WL 700307 (Mich. Ct. App. 2016).

Opinion

WILSON, J.,-

for the Court:

¶ 1. A settlement agreement entered in the Péarl River County Special Court of Eminent Domain appeared to have resolved long-running and’ contentious litigation between the Crosbys 1 and the Mittel-staedts 2 regarding the Mittelstaedts’ need for an easement to access their property via the Crosbys’ adjoining land. In exchange for $25,000, a one-acre parcel of land, and the Mittelstaedts’ covenant’ to maintain a suitable fence and gate, the Crosbys agreed to grant the long-sought easement. But only weeks later, the parties were back in court because the Cros-bys had filed a lis pendens notice against the Mittelstaedts’ property. The ostensible reason for the renewal of unpleasan- *417 tries was the Crosbys’ claim that the Mit-telstaedts’ fence and gate were deficient, but the presiding circuit judge found that the gate and fence satisfied the terms of the settlement, so he entered - an order enforcing the parties’ agreement and can-celling the lis pendens. He also found that the Crosbys had deliberately violated the court-approved settlement and had not lived up to their obligation to carry out its terms in “good faith.”

¶ 2. As the result of an apparent error or oversight in the clerk’s office, the Cros-bys did not receive notice of this adverse ruling until after the time for appeal' had run.- When they received notice of the order, they promptly moved to reopen the time for appeal under Mississippi Rule of Appellate Procedure 4(h), but the circuit judge denied their motion. For the reasons explained below, we conclude that the circuit judge did not abuse his discretion by denying the Crosbys’ motion to file an out-of-time appeal. Therefore; we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. From the record that the parties designated for this appeal, we can tell relatively little about the long-running feud between the Crosbys and the Mittel-staedts. The parties are adjoining landowners in Pearl River County. The Mit-telstaedts inherited their property from their mother, who passed away in February 2007. It appears that in 2007, the Crosbys discussed buying the Mittel-staedts land from them, but the discussions broke down, and the Mittelstaedts listed the property with a realtor. The Crosbys apparently then took steps to fence off access to the Mittelstaedts’ property from a road; we cannot tell whether the Crosbys’ actions were lawful. The Crosbys also filed a lis pendens notice against the Mittelstaedts’ property in the Pearl River County Chancery Court, and three years of litigation ensued in that court; we know nothing else about those proceedings.

¶ 4. On August 1, 2012, the Mittelstaedts filed a complaint for a dedicated private right-of-way in the' Pearl River County Special Court of Eminent Domain. See Miss.Code Ann. §§ 11-27-8 (Rev.2004) and 65-7-201 (Rev.2012). The docket reflects significant activity in the case over the next two years; however, the parties did not designate as part of the record on appeal any of the pleadings, motions, or orders filed in the case prior to a December 16, 2014 order granting the Mittel-staedts’ “Motion to Enforce Settlement.” That order recounts events beginning in February 2014 and sets forth the court’s findings and ruling as follows:

A lengthy settlement conference was conducted by the Court on February 14, 2014, after which the parties announced to the Court the case was settled. The ■ Court reviewed the settlement agreement reached between the parties, determined there had been a meeting of the minds, and the settlement agreement was dictated into the record resolving all claims and issues in this action and [the chancery court case].... An enforceable settlement was reached between the parties.
The settlement resolved a dispute over the establishment of a right-of-way and easement sought by the [Mittelstaedts]. [The Crosbys] agreed to convey a nonexclusive, perpetual and unobstructed right-of-way and easement to the [Mit-telstaedts] to provide access to Pete Harris Road and agreed to remove an alleged spite fence erected by the [Cros-bys] on the eastern boundary of [Mittel-staedts’] property obstructing the easements that were to, be granted by the [Crosbys]. [The Mittelstaedts] agreed *418 to pay the [Crosbys] $25,000.00 and convey a 1.061 acre parcel on the western boundary of [the Mittelstaedts’] property to [the Crosbys], and erect a fence and gate at the front entrance to their property from Pete Harris Road of sufficient strength and height to turn cattle, said fence and gate to be located wholly on [the Mittelstaedts’] property.
Pursuant thereto, the parties executed and delivered [a release and settlement agreement, and executed and recorded .right-of-way and easement deeds and .a restrictive covenant, and the Mittel-staedts paid the Crosbys $25,000], after which, on February 26, 2014, -the Court entered an Agreed Final Order of Dismissal With Prejudice retaining jurisdiction over the parties and subject matter to enforce the settlement agreement. On hlarch 19, 2014, the [Crosbys] sent a letter to [the Mittelstaedts] implying a violation of the .settlement with regard to the fence and gate.
On March 26, 2014, the [Mittelstaedts] overnighted a letter .to [the Crosbys] stating that the fence-and gate were constructed in compliance with .the settlement agreement and requesting] specifics as to any alleged violation.
On April 2, 2014, the [Crosbys], without leave of this Court, filed a Lis Pendens Notice with the Chancery Clerk of Pearl River County encumbering the entirety of the [Mittelstaedts’] property and sent a copy of said [notice] to the realtor for the [Mittelstaedts] who had been marketing the property for sale. This ac■tion precipitated the filing-of a Motion to Enforce Settlement by the [Mittel-staedts] —
The Court, having presided over the settlement conference-in this matter and having reviewed and approved the settlement agreement announced in Court and dictated into the record herein ... and all the settlement documents executed1 by the parties ..., and all pleadings and evidence pertinent to the pending motion, finds that the fence and gate as currently built and maintained by [the Mittelstaedts] ... are in full compliance and accord with the settlement reached between the parties.
The parties were obligated to use their best efforts and good faith to carry out all terms of the settlement agreement. [The Mittelstaedts] fully complied with the settlement agreement. The [Cros-bys] violated this obligation and [Mississippi Code Annotated section] 11-47-3 .... by intentionally filing the Lis Pen- ■ dens Notice, against [the Mittelstaedts’] property without leave of this Court[,] which retained jurisdiction to enforce the settlement agreement.
The Lis Pendens Notice filed against [the Mittelstaedts’] property ,by [the Crosbys]. on April 2, 2014 ... is void and hereby cancelled of record.

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Bluebook (online)
186 So. 3d 415, 2016 Miss. App. LEXIS 95, 2016 WL 700307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paula-w-crosby-v-kathryn-adele-mittelstaedt-missctapp-2016.