IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-00332-COA RONNIE ROBERTSON AND DIANE ROBERTSON APPELLANTS/CROSSAPPELLEES

v. JEAN A. CATALANOTTO AND JODY M. CATALANOTTO APPELLEES/CROSSAPPELLANTS

DATE OF JUDGMENT: 02/18/2014 TRIAL JUDGE: HON. DAW N H. BEAM COURT FROM W HICH APPEALED: FORREST COUNTY CHANCERY COURT ATTORNEY FOR APPELLANTS: S. CHRISTOPHER FARRIS ATTORNEYS FOR APPELLEES: SAMUEL STEVEN MCHARD MARCUS ALAN MCLELLAND PAUL MANION ANDERSON NATURE OF THE CASE: CIVIL - CONTRACT TRIAL COURT DISPOSITION: ENTERED JUDGMENT FINDING RESTRICTIVE COVENANTS STILL IN EFFECT AND DENIED APPELLEES’/CROSS-APPELLANTS’ REQUEST FOR DAMAGES DISPOSITION: AFFIRMED - 02/09/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., CARLTON AND JAMES, JJ. CARLTON, J., FOR THE COURT: ¶1. Ronnie and Diane Robertson appeal t he Forrest County C hancery Court’s judgm ent f inding t heir property subject to valid and enf orceable restrictive covenants. Jody and Jean Catalanotto f

iled a cross-appeal of the chancellor’s judgm e n t, asserting that the chancellor erred in f ailing to award dam ages to the Catalanottos. Fi n d i n g n o error, we af f irm thechancellor’s judgm ent. FACTS

¶2. The record ref

lects that South Pointe Inve s t m e n t C o m pany o wned 283.5 acres of property in Forrest Co u n t y , M ississippi, which it eventually sold into separate tracts of undeveloped l and. S outh Pointe attached r estrictive covenants to all of the property deeds, and this action arises out of a dispute over the restrictive covenants. ¶3. The restrictive covenants state, in pertinent part: The f ollowing Restrictive Covenants are hereby im pressed upon the land, and said Restrictive Covenants shall run with the title to said p roperty , or any part t h e r e o f , u p t o January 1, 1990, said Restrictive Covenants being a s f ollows, to-wit: Said protective restrictions and conditions are im posed o n the property f

or the purpose of insuring t he use of this property f or residential and im

proving the a t t r active f

eatures of the property and securing to the owner the f ull benef i t and enjoy m e nt of his hom e or cottage, with no greater restrictions u p o n t he f ree and undisturbed use of his property , t han i s n ecessary to i nsure the sam e advantages to other own e r s . Any violation of the w ithin restrictions m ay be prosecuted in law or in equity by any property owner of said area. (1) No portion o f s aid property s h all be used f o r other than residential or recreational purp o s e s , a n d no soil or trees shall be rem oved f or any com m ercia l use. Cutting of trees shall be lim ited to the extent necessary f or clearing the f

o undation site f

or construction and im

proving the topography [ ;] any cutting of trees shall be done only u nder good f orest m a n a g e ment practices. (2) No building shall be erected on any individual tract other than one single f am ily dwelling or cottage, with garage and a s i ngle utility building f or stable, equipm ent, e tc.

. . . Any house built on said tract shall have a m inim um of One Thousand (1,000) square f eet of total area . . . .

. . . . (4) No structure o f a t em

porary character, trailer, basem ent, tent, shack, garage

2or other outbuilding shall b e u s e d on any tract at any tim e as a residence,

wither [ sic] tem

porarily or perm anently

. Any garage shall b e c o nstructed at the sam e tim e or subsequent to the construction of the house it is i ntended to serve.

. . . . (14) These restrictive covenants run with the land, but after January 1, 1990, may be changed by unanimous consent in writing of the owners

. (Em phasis added). ¶4. T h e Catalanottos and R obertsons each purchased tracts of land f orm erly own e d b y South Pointe. The record ref lects t hat the Catalanottos purchased their property in 1 997. The Robertsons purchased their f irst tract of property in January 2011, and the Robertsons claim that when they purchased their property , it contained a lot of dam aged t im ber f rom Hurricane Katrina. T he R obertsons also state t h a t w hen they bought the property , they were advised that the r estrictive covenants had expired. The record r ef lects t hat the Robertsons’ deed f ails

to m ention any

restrictive covenants. ¶5. Then, on April 25, 2011, t he Robertsons began com m ercial logging operations on the property

. The record ref

lects that the Robertsons subm it that they hired a registered f orester
to a dvise t hem on the best f o rest-m anagem ent practice in rem oving the dam aged tim ber f rom their property and replanting the property

. The record als o s h o w s that on that s am e day ,

c o unsel f or the Catalanottos called the Robertsons t o request that t hey com ply with the restrictive covenants and im m ediately c e a s e a l l logging operations on the land. However, the Robertsons c ontinued the logging operations. As a result, the Catalanottos f iled a petition
f or a prelim inary

injunction and tem

porary restraining order on April 25, 2011.

3¶6. The day af ter t h e f iling of the petition, the chancellor held a hearing on the m atter. The Robertsons received notice and participated in the hearing b y telephone. During the hearing, Ronnie Robertson adm itted t hat he began c om m ercial logging operations on April 25, 2011. The chancellor e ntered a tem porary restraining order prohibiting any f urther logging operations by t he Robertsons. The chancellor eventually e xtended the tem porary restraining order indef

initely pending a f

i nal trial on the m erits. ¶7. On May 12, 2011, the Catalanottos f iled a n am ended petition f o r i njunctive relief

, to quiet title, f

o r a d eclaratory judgm ent, f or tortious breach o f c ontract, f or breach of contract, and f or intentional i nf

liction of em otional d istress. The C a t a l a nottos asserted that the Robertsons breached the contractual term s of the r estricti v e c ovenant, and as a result, the Catalanottos suf

f ered the expense of lost tim e f rom work to enf

orce the covenants, p lus court
costs. ¶8. O n M a y 12, 2011, the Robertsons f iled an answer to the p etition f o r a prelim inary injunction and tem

porary restraining order, arguing that the r estrictive covenants expired on January 1 , 1990, and were no longer in f orce and ef

f e ct. 1 The R obertso n s a l s o f iled a
counter-com

plaint seeking a declaratory judgm ent that the restrictive covenants had expired and were no longer valid. T he Robertsons requested that the court dism iss the Catalanottos’ petition f or a prelim inary

injunction and restraining order. ¶9. Following a hearing on Septem b er 20, 2011, the chancellor entered an order setting
f orth that the parties had agreed to and entered into evidence a num ber of exhibits; that the

1 O n M ay 2 7 , 2 0 1 1 , th e R o b ertso n s f iled t h e a n s w e r t o th e C atalan o tto s’ M ay 1 2 , 2 0 1 1 am en d ed p etitio n f

o r in j u n c tiv e relief

an d co u n ter-co m

p lain t. 4parties should f ile expert o p inions; and that t he c hancellor would thereaf ter issue her opinion based upon the a greed exhibits, t he expert opinions, brief i ng, a nd a site visit of the property

. On Decem

ber 13, 2011, the chancellor also ordered that all property owners af f ected by the restrictive covenants in question be joined as parties to the action. ¶10. O n F e b r u a r y 1 2 , 2 0 1 2 , t h e Robertsons f iled a m otion to require r e mo v a l o f

noncom pliant structures and to increase the b ond posted by the Catalanottos f or the entry of the r estraining order. The Robertsons a lleged that t h e Catalanottos had “num erous

noncom pliant structures” on their p r o p e r t y that f ailed to com

ply with the restrictive

covenants. ¶11. O n February 24, 2 012, the Catalanottos f iled a p etition f

or a p relim inary

injun c t i o n against Ronnie Robertson requesting that t he court enjoin and r e s t r a i n h im “f

rom all activities which threaten[ e d]” the Catalanottos. 2 The C atalanottos claim ed that af ter f iling their initial petition f or an injunction, the R obertsons began verbally h aras s i n g a n d i ntim idating the Catalanottos and threatening to f urther destroy the security of their hom e. The Catalanottos specif ically claim that on t wo separate oc c a s i o n s , Ronnie tore down t he gate that the Catalanottos ma i n tained a t t he entrance of the r oad, warning that if i t w ere put back into place he would just “rem o v e it again.” The Catalanottos alleged that Ronnie also threatened to cut of f the Catalanottos’ road access entirely

. ¶12. On June 27, 2 0 12, the Catalanottos f i led an am ended m otion f or sum m ary judgm ent

2 O n M arch 6 , 2 0 1 2 , th e C atalan o tto s f iled an am en d e d p etitio n ad d in g t h e o th er p ro p erty o w n ers af

f e ct e d b y t h e restrictiv e co v en an ts in q u e s tio n as d ef en d an ts, an d also ad d ed a cro s s-m o tio n f

o r su m m ary

j u d g m e n t. 5r e g a r ding the validity o f the restrictive covenants. T he record ref lects that the chancellor heard testi mo n y f

r o m t h e parties on July 1 7, 2012. On Septem ber 18, 2012, the parties entered an agreed stipulation, agreeing to a n um b er of f a c ts not in dispute; to the adm ission

o f e xhibits and expert opinions; and that the issue of the existence, validity , a n d enf orceability of the restrictive covenants was subm i tted to the chancellor b a sed upon the agreed stipulation. ¶13. On October 5, 201 2 , t h e chancellor entered its order f i nding and adjudging that the

r e s t r i c tive covenants ran with the land and that based upon the “f o ur-corners test,” a f

ull reading of the t ext showed that the restrictive covenants were “clear and unam biguous” and had not expired. The chancellor explain e d t h a t a l though “all of the def endants (a vast

m ajority o f the property owners) testif ied that they no longer wanted the restrictive covenants
to apply a nd only the [ Catalanottos] wanted to continue t o have the restrictive covenants in
f orce,” the subject restrictive covenants required unanim ous consent, rather than m ajority rule, to be changed. ¶14. The chancellor also determ ined, af ter apply ing the f

a c t o r s s e t f

o r t h i n V u l c a n Materials Co. v. Miller , 691 So. 2d 908, 914 (Miss. 1997), that the restrictive covenants that are the subject of this litigation run with the land because (1) South Pointe Investm ent Com

pany c learly intended to c reate s uch cove n a n t s ; (2) there is privity of e state between [ the Catalanottos] claim ing the right to e nf orce the c o v e nant and the def

endants upon whom the b urden o f covenants i s t o b e im p osed; and (3) the covenants touch and concern the land in question.
As a r esult, the c hancellor held that “it is im m aterial that the restrictive covenants m ay not have b een included in t he convey ance to [ the Robertsons],” since covenants that run with the

6land are enf orceable against a subsequent o wner, even if the subsequent owner’s deed f ails to ref erence the covenant. ¶15. Af ter reviewing the e xpert opinio n s o f r egistered f oresters Shawn C linton and Don
W i lliam s regarding good f o r e s t managem ent, the chancellor also f ound t hat the restrictive

covenants prohibited the rem oval of trees f or com m ercial u se. The issue of dam ages was, per a stipulation, set to be determ ined at a later hearing. ¶16. On April 26, 2013, the C atalanottos f iled a m otion f

or rem oval of a m obile hom e and

a m otion f

o r citation of contem

pt of court against t he Robertsons, alle g i n g t h a t the
R o b e r t sons m oved a m obile hom e onto their p roperty i n March 2 013, a “clear a n d

contem ptuous violation of t he restrictive covenants” that the chancellor adjudged to be valid and enf orceable. 3 ¶17. A trial was held on January 16, 2 014, on the i ssues of : dam ages f

or t he violation of restrictive covenants; whether a m o bile hom e violates restrictive c ovenants; contem pt f or the

rem oval of the gate; and attorney ’ s f ees. T h e c h a n cellor entered a n order on February 21, 2014, deny ing the Catalanottos’ request f or dam ages, f

inding no violation of the restrictive

covenants by the Robertson’s logging op e r a t ion. The chancellor f ound, however, that the Robertsons’ m obile h om e f ailed to com

ply with the square-f

ootage requirem ents in the restrictive covenants. The chancellor ordered t h a t t h e R o bertsons m ust either rem ove the

m obile hom e or a d d a d d i t i onal square f ootage to bring i t into com p liance. R egarding the issue of rem oving the gate, the chancellor s t ated t hat s he “ heard no p roof ” t h at Ronnie

3 A n am e n d ed m o tio n w as f iled o n N o v em

b er 1 4 , 2 0 1 3

. 7rem oved the g ate af ter the chancellor entered an order prohibiting Ronn i e f r o m doing so. Finally , the chancellor denied the Catalanottos’ request f or attorney ’s f

ees. ¶18. On March 7 , 2014, t he R obertsons appealed the c h ancellor’s judgm e nt deny ing their request f or declaratory relief

. On March 12, 2014, the Catalanottos f iled a c ross-appeal of the chancellor’s judgm ent on the issues of : d enial o f dam ages f

or violation of restrictive covenants; tortious interf erence w ith contract; intentional inf liction o f e mo t ional distress;
f ailure to f

ind contem

p t and dam age f

o r r em oval and tamp ering with the gate; f ailure to award punitive dam ages; f a ilure to award dam ages f or conversion of gates; f

ailure to award attorney ’s f

ees f or contem p t b y t h e R o b e r t s o n s ; failure to award pre-judgm e nt interest; f ailure to award a perm anent injunction preventing tam pering with the entrance gate.
STANDARD OF REVIEW ¶19. “The standard of review of a chancell or' s decision is abuse of discretion.” Jones v. Graphia , 9 5 So. 3d 751, 7 53 (¶6) (Miss. Ct. A pp. 2012). On appeal, we “will not disturb the
f actual f indings of a c hancellor when supported by s ubstantial evidence unless w e can say

w ith reasonable certainty that the c hancellor abused his discretion, was m anif e stly wrong [o r ] clearly erroneous, or applied an erroneous legal s tandard.” Id

. Additionally , “this [ C]ourt’s review of a ruling regarding a restrictive covenant is lim ited t o abuse of discretion.” Rawaid v. Murguia & Arias Grocery LLC , 124 So. 3d 118, 121 (¶14) (Miss. Ct. App. 2013). ¶20. However, we apply a de novo standard w hen r eviewing questions o f law. J ones , 95 So. 3d at 753 (¶6).
DISCUSSION

8I. Restrictive Covenants

¶21. The R obertsons argue that the c hancellor erred in f inding tha t t

h e r e s trictive covenants

at issue w ere valid and ef f ective. The Robertsons as s e r t t h a t the p lain language of the restrictive c ovenants provides that t he covenants expired on January 1, 1990. T he Robertsons also subm it that n o ef f ort was e ver m ade by t he landowners prior to or af ter the expiration date of January 1, 1990, to extend or change th e restrictive covenants. The chancellor f

ound that t he restrictive covenants ran with the land and were enf orceable against the Robertsons. ¶22. In review of

this case on appeal, we recognize the f ollowing: Generally , courts do not look with f avor on restrictiv e covenants. Such cove n a n t s are subject m o re or less to a strict construction and, in the case of am biguity , construction is usually m ost strongly against t he p erson seeking the restriction and in f

avor of the person being restricted. Kephart v. Northbay P rop. O wners Ass'n , 134 So. 3d 784, 786 (¶8) (Miss. Ct. App. 2013). The suprem e court also explained the f ollowing: Restrictive c oven a n t s s h ould be f airly and reasonably construed, and the language used w ill be read i n t h e o r d inary s ense. . . . The entire instrum ent s h o u l d be considered i n a scertaining its m e aning, but t he restrictions should not be extended by strained construction, especially when, as in this c a se, the restrictive covenants expressly perm it the use being m ade of the land. Id

. (citing Kinchen v. Layton , 457 So. 2d 343, 346 (Miss. 1984)). “Restrictive covenants are to be f airly and reasonably

interpreted according to their apparent purpose.” K ephart , 134 So. 3d at 786 (¶8). ¶23. R e s t r i c t i v e c o v e n a nts are subject t o the rules of contra c t c o n s t r u c t i o n . S

e e Belager-Price v. Lingle , 28 S o. 3d 706, 711 (¶¶8-10) (Miss. Ct. A pp. 2010). Regarding the

9construction of contracts, the suprem e court h as set out a three-tiered a pproach to contract interpretation: First, the f

o ur corners test is applied, wherein the reviewing court looks to the language that t he parties used in expressing their agreem e nt. W e m u st look to the f our corners of the contract whenever possible t o determ ine how to interpret it. W hen c onstruing a contract, we will read the contract as a whole, so as to give ef

f ect to a ll of its clauses. Our concern is not nearly so m uch with what the parties m ay have intended, but with what they said, since the words em ploy ed a re by f

ar the best resource f

o r ascertaining the intent and assigning m eaning with f

a irness and accuracy . Thus, the courts are not a t liberty to inf er intent contrary to t hat e m anating f rom the text at issue. O n the other hand, if the contract i s u n clear or am biguous, the court should a t tem pt to harm o nize the provisions in accord with t he parti e s ' a pparent i ntent. Only if t he c ontract is unclear or a m

b iguous can a court go bey ond the text to determ i ne the parties' tru e i n t e n t

. T he m ere f

a ct that the parties disagree about t he m e aning of a contract does not m ake the contract am biguous as a m atter of

law. Secondly , if the court is unable to translate a clear understanding of t he parties' intent, the court should apply t h e d i scretionary c anons of contract c onstruction. W h ere the language of an otherwise enf orceable contract is subject to m or e than one f air reading, the reading applied will be the o ne m ost f avorable t o the non-draf ting party

. Finally , if the contract continues to evade clarity as to the parties' intent, the court should consider extrinsic or parol e v idence. It is only when the review of a contract reaches this point th a t p r ior negotiation, agreem ents and conversations m ight be considered in determ ining the parties' intentions in the construction of the contract.
One S. Inc. v. Hollowell , 963 S o . 2 d 1 1 5 6 , 1162-63 (¶10) (Miss. 2 007) (internal quotation

m arks and citations om itted); see a lso Facilities Inc. v. Rogers-Usry C hevrolet Inc ., 908 So. 2d 107, 110-11 (¶¶10-11) (Miss. 2005); Royer Homes o f Miss. I nc. v. C h a n d eleur Homes
Inc ., 8 57 So. 2d 748, 752-53 (¶¶10-11) (Miss. 2003). Keeping these rules i n m ind, we turn to address the m erits of

this issue. ¶24. In apply ing the applicable law to the present case, w e acknowledge that the restrictive covenants im

posed upon the original deeds by South Pointe provided as f ollows:

1 0The f ollowing Restrictive Covenants are hereby im pressed upon the land, and said Restrictive Covenants shall run with the title to said property , or a ny part thereof , up to January 1, 1990

. . . . The s e r e s t r i c tive c ovenants run with the land, but a f

ter J anuary 1, 1990, m ay b e changed by unanim ous consent i n writing of the owners. The record ref

lects that the c hancellor acknowledged that when a naly zing the construction of t he restrictive covenant a t issue, she “kept

. . . in m ind” that construction is m ore strongly construed against the person seeking the restriction. Af t er l ooking “at the f

our corners” of the restrictive covenants, the c hancellor f ound t h a t “ the f

ull reading” of the restrictive

covenants “is not am

biguous[ ,] and t he intent is c l e a r ” t hat the covenants “ m ay only be changed by all owners agreeing.” The chancellor interpreted this language as providing that the restrictive covenants did not e xpire on J anuary 1, 1990. T he chancellor d eterm ined that the f ull reading of the restrictive c o venants c learly established that January 1, 1990,

c o nstituted the d a te when the covenants could be changed b y a n a greem ent of a l l o f t h e

owners. ¶25. The chancel l o r a l s o f o u n d t hat the restrictive covenants at issue ran with the land, stating that “it is im m aterial that t he restrictive covenants m ay not have been i ncluded in the
convey ance to [ the R obertsons].” In Misita v
. Conn , 138 So. 3d 138, 141 (¶8) (Miss. 2014),
suprem e court explained that [ a] covenant w ill run wi t h t h e l and if three conditions are m et: (1) the covenanting parties m

ust intend to create such covenant; (2) privity of estate m ust exist b e tween the person claim ing right t o e nf orce the covenant and the person upon whom [ th e ] b u rden of c ovenant i s to be im posed; a nd ( 3) the covenant m

ust touch and concern the land in question.• ¶26. In the present case, the chancel l o r f o u n d t h e f

o l l owing: that South P ointe clearly

1 1intended t o create the restrictive covenants; that p rivity of estate ex i s t ed between the

Catalanottos and the Robertso ns; and that the covenants t ouch and concern the land in question. W e f

urther acknowledge that “[ a] covenant th a t runs w ith the land is not void

m erely because it is not ref

erred to in any

deed convey e d to subsequent owners.” Id

. • ¶27. T h e R o b e r tsons next argue that even if the chancellor correctly f o u n d t h a t t h e
covenants were valid a nd enf orceable, the R obertsons still exercised “go o d f orest

m anagem ent practices” in c utting tim ber. In support of their argum ent, the Robertsons cite to the f ollowing language in the covenants:
No portion of said pro perty s hall be used f or other than r esidential or recreational purposes, and no soil o r t r e e s s h a ll be rem oved f or any com m erc i a l use. Cutting of trees shall be lim ited to the extent necessary f or clearing the f

o undation site f

or c onstruction and im

proving t he topography [ ;] any cutting of t r e e s shall be done only under g ood f orest m anagem ent practices. ¶28. The Robertsons state that both they and the Catalanottos hired registered f oresters to review the property and to provide an opinion as t o whether or not t he cutting of the tim ber

w o u l d be in com

pliance with “good f

o rest m anagem ent practices.” The Robertsons argu e that the f act that the Catalanottos disagreed with the o pinion o f the Robertsons’ f o rester and hired their own expert f

ailed to c hange the f

act t hat as long as the R obertsons com plied with “good f orest m anagem e nt practices,” they can cut tim

b er. ¶29. The chancellor herein f ound that the language “any c u tting of trees shall be done only under good f

orest m anagem e nt practices” f a iled to ref

er to com m ercial logging, “but sim ply deal[ t ] with the o r d i n a r y care of this wooded property

. ” The c hancellor held that the langua g e t h a t “no

. . . trees shall be rem oved f or any com m ercial use” prohibited the

1 2Robertsons f rom engaging in com m ercial logging. ¶30. A f t e r o u r review, we f

ind that the substantial and credible evidence in the record supports t he chancellor' s determ ination that the restri c t i v e c o v enants herein are valid, enf orceable, and run with the land. 4 W e f urther f i nd no error in the chancellor’s r uling that the restrictive covenants prohibit the Robertsons f rom engaging in com m ercial logging.
II. Dam a ges ¶31. The Catalanottos a rgue on cross-appeal that the chancellor e rred by f ailing to award d am ages on t he f

o llowing issues: the R obertsons’ willf ul violation of the restrict i v e

coven a n ts; i ntentional inf liction of em otional d istress; rem o ving and tam pering with the

access gate to the Catalanottos’ property ; and conversion of the Catalanottos’ g ate. The Catalanottos a lso claim that they were entitled to p unitive dam ages and attorney ’ s f ees based

on t he Robertsons’ willf

ul and i ntentional breach of the restrictive c o v e n a n t s and court orders. The Catalanottos assert t hat e vidence showed the Robertsons stole the access gate
to t he Catal a n o t t os’ property and that the Robertsons threatened a nd harassed the Catalanottos to the point that they suf f e red f e ar, anxiety , and loss of

sleep. ¶32. As stated, we review the decision of a chancellor f

o r abuse of discretion. Jones , 95
So. 3d at 753 ( ¶6). W e “will not disturb the f actual f indings of a chancellor when supported b y s u b s tantial evidence unless we can say with reasonable certainty that the chancell o r abused his discretion, was m anif estly wrong [ o r] clearly erroneous, or applied an erroneous legal standard.” I

d

.

4 R a w a id , 1 2 4 S o . 3 d at 1 2 1 (¶1 4 ) (stan d ard f o r r e v i e w in g a ru lin g reg ard in g a restrictiv e co v en an t is ab u se o f d iscretio n ). 1 3¶33. In her February 21, 2014 order, the chancellor denied the Catalanottos cross-appeal

and declined to awar d a ctual dam ages, punitive dam a ges, or attorney ’s f ees to the Catalanottos. R egarding the Catalanottos’ c laim that they were entitled to actual dam ages

as a r esult of Ronnie’s alleged violation o f the restrictive c ovenants, the chancellor cited to
Levens v. Campbell , 733 So. 2d 753, 7 60-61 ( ¶27) (Miss. 1999), an d a p p l i e d the elem ents f or pro v i n g t o r tious interf erence with contractual relations. 5 The record r ef lects that the chancellor herein held “[ t ]hese elem ents are just not present in this action and the court f inds the act[ s] of c u t t i n g t he trees were not done with a purpose of causing dam age and loss, without right or justif

iable cause on the part of Robertson and that no actual dam age or loss occurred.” The chancellor f ailed to f i n d Robertson' s c onduct “m alicious in a ny way ,” explaining as f

ollows: [ Ronnie] testif

ied that he was told w hen he b ought the p roperty th at the restrictive covenants no longer applied by the attorney w ho did the title work on the subject property

. W hen Robertson w as served with the r estraining order he stopped c utting trees. Pr e v i ously , Robertson testif ied that h e bought the property as an i nvestm ent to harvest the t rees s o the co u r t ruling that the restrictive c ovenants still apply is a n extrem e f inancial setback f

or Robertson. ¶34. In a ddressing the Catalanottos’ claim f or intentional inf

liction of em otional distress, the chancellor, citing Summers ex rel. Dawson v. St. Andrew's Episcopal School Inc ., 759 So.

5 In L even s , 7 3 3 S o . 2 d at 7 6 0 -6 1 (¶2 7 ), th e su p rem e co u rt stated : T h e e lem en t s o f to rtio u s i n terf eren ce w ith a co n tract in c lu d e: 1 ) th e acts w ere in ten tio n al an d w illf

u l; 2 ) th at th ey w ere calcu lated to cau se d am ag es t o t h e p lain tif f s in th eir law f

u l b u sin ess; 3 ) th at t h e y w ere d o n e w i th th e u n law f u l p u rp o se o f cau sin g d am ag e an d lo ss, w ith o u t rig h t o r j u stif iab le cau se o n th e p art o f th e d ef e n d an t; an d 4 ) th at actu al lo ss o c c u rred

.

1 42d 1203, 1211 ( ¶34) (Miss. 2000), recognized that “ [ i]ntentional inf lic t i o n o f em otional distress can b e predicated on behavior that is ‘m alicious, intentional, willf ul, wanton, grossly

c a r e l ess, i ndif

f erent or reckless.’” In deny ing the Catalanottos’ request f o r dam ages , t h e chancellor provided the f ollowing: [ T ]he court cannot connect any of these com plaints to v iolations of the restrictive covenants. In a ddition, there was no testim ony of m onetary dam age d u e t o em otional distress and theref o re the c o urt awards n o m o ney f or t h i s com plaint. The court did not hear any evidence to support a j u d g ment f or punitive dam ages [ against the Robertsons]. ¶35. The decision of whether or not to grant a n award of punitive d am ages lies within the chancellor' s sound discretion. Griffith v. Griffith , 9 97 So. 2d 218, 2 23-24 ( ¶20) (Miss. Ct.
A p p . 2008). “[ T]he question o f whether p unitive d am ages should be awarded depend s largely upon the particular circum stances of the case.” Id

. In the present c ase, the chancellor recognized that the standard of proof f or punitive dam ages is clear and convincing e vidence, and sta t e d that “the plaintif f m ust show that the def

e ndant acted w ith actual m alice, gross negligence which evidences a willf ul, wanton or reckless disregard f or the saf e ty o f others,

or com m itted actual f

raud.” 6 In deny ing the C atalanottos’ request f or an award of punitive dam ages, the chancellor explained that “[ t]he c ourt could not tie a n y c o n d u c t d irectly to [ Ronnie] Robertson e xcept r e m o val of the f irst gate. There was no showing of actual m alice,
gross n egligence which evidences a willf ul, wonton or reckless disregard f o r t he saf ety of others or f

raud.” See Miss. Code Ann. § 11-1-65(1)(a) (Rev. 2014). ¶36. Af ter e x a mi n i n g t h e r e s t r i c t i v e c o venants, the c h ancellor f urther f ound that the

6 S ee S u m m ers , 7 5 9 S o . 2 d at 1 2 1 1 ( ¶3 4 ). 1 5covenants “do not m ention a gate to the com m o n road that leads to the i ndividual tracts of

land.” The chancellor acknowledged her prior March 14, 2012 order e njoining the Robertsons f

rom rem oving or tam

pering w ith t he gate at the entrance to t he roadway

easem ent f

rom Rockhill Road, and explained that “this was an ef f o rt . . . t o k eep the peace during the pendancy o f this action.” The chancellor, however, clarif ied that “the restrictive covenants do not address this gate and theref ore the court does not order any of the parties

not to rem ove or tam

per with the g ate.” The chancellor d eclined to award dam ages based on the Catalanottos’ c laim that the Robertsons rem oved and t am p ered with the gate, stating “the
Court heard no proof

that it was [ Ronnie] R obertson who rem oved the gate af ter the Order

was e ntered. Mr. Robertson testif ied that a third party rem oved the gate a nd that he replaced the second gate with the f irst gate that he did rem o ve prior to the Order being entered.” ¶37. Finally , t he chancellor declined to awa r d attorney ’s f ees as a result o f the expenses incurred by t he Catalanottos in enf orcing t he restrictive covenants. W hen reviewing a grant

or denial of

attorney ’s f

ees, “this Court will not disturb the trial court' s a ward of attorney ' s f ees unless there was an abuse of discretion.” Griffith , 9 97 So. 2d a t 2 24 (¶23). A trial court “m ay award attorney ' s f

ees, absent a contractual p rovision or statutory authority , w here the trial court has f

ound that punitive dam ages are a ppropriate.” Id. ; see Aqua–Culture Techs. Ltd. v
. Holly , 677 So. 2d 1 71, 184 (Miss. 1996). The d eterm i nation of an am o unt constituting

a reasonable attorney ' s f

ee is within the s ound discretion o f the trial court.” Griffith, 997 So. 2d at 224 (¶23). ¶38. In the present case, the c hancellor explained t h a t t h e r estrictive c ovenants at issue

1 6f

ailed to address the issue o f attorney ’s f e es. Additionally , “ t here was a legitim ate issue of whether or not the r estrictive covenants were s t i ll in f orce and [ e]f

f ect.” Further, the chancellor stated that “the c ourt is unaware of any statutory authority f o r awarding attorney [ ’s] f

ees to the [ Catalanottos].” ¶39. In Hudson v. Morrison Heights Baptist Church , 782 So. 2d 726, 732 ( ¶ 3 3 ) ( M i ss. 2001), the suprem e court held that a chancellor did not abuse h i s d i s cretion in f ailing to award attorney ’ s f

ees where an injunction had not b e en violated by the d ef endants. Sim ilarly , we f

i nd no abuse of discretion in the chancellor’s denial of a ttorney ’ s f ees to the Catalanottos. ¶40. Our review of the record herein reveal s n o abuse of discretion by the c hancellor in determ ining that t he restrictive co v e n ants are valid a nd e nf orceable and in deny ing the Catalanottos’ request f

or dam ages. W e f

urther f ind that substantial evidence in the record supports the chancellor’s f indings and judgm ent. 7 Accordingly , we af f irm

. ¶41. THE J U D G M E N T O F THE FORREST COUNTY CHANCERY C OURT IS AFFIRMED ON DIRECT APPEAL AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE A SSESSED EQUALLY BETWEEN THE APPELLANTS/CROSSAPPELLEES AND THE APPELLEES/CROSS-APPELLANTS. IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, J A MES AND WILSON, JJ., CONCUR. L EE, C.J., AND GREENLEE, J., N OT PARTICIPATING.

7 S ee Jo n es , 9 5 S o . 3 d at 7 5 3 (¶6 ). 1 7