IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-01423-COA
ANTHONY LITTLE APPELLANT

v. DONALD RICHEY AND NANCY L. RICHEY APPELLEES DATE OF JUDGMENT: 09/01/2016 TRIAL JUDGE: HON. JACQUELINE ESTES MASK COURT FROM W HICH APPEALED: MONROE COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: SARAH CLINE STEVENS ATTORNEYS FOR APPELLEES: L. BRADLEY DILLARD JOHN M. CREEKMORE NATURE OF THE CASE: CIVIL - REAL PROPERTY DISPOSITION: AFFIRMED - 11/07/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ. CARLTON, J., FOR THE COURT: ¶1. Af ter a trial held on J u n e 3 0 , 2 0 1 6 , the Monroe County Chancery Court granted Donald and Nancy R i c h e y ’ s com plaint seeking to quiet and conf irm title and asserting a claim of adverse possession against Anthony Little. ¶2. Anthony now appeals, a sserting the f ollowing assignm ents of error: (1) the trial c ourt abused its discretion in deny ing his m otion f o r additional tim e to conduct discovery ; (2) the Richey s f

ailed to prove e ach elem ent of their adverse-possession claim by clear and convincing e vidence; and (3) the trial court abused its discretion in adm itting the deposition of witness Sherry

Bortz into evidence. ¶3. Finding no error, we af f irm the trial court’s judgm ent.FACTS

¶4. On January 2 6, 2011, Donald and Nancy f i l e d a c o mp l a i n t in the Monroe County Chancery Court asserting a claim of adverse p ossession and seeking t o quiet and conf irm title

to real property

. The Richey s initially f iled the com

plaint against T i m L i t t l e and any unknown persons having any legal or equitable interest in the real property l ocated in Monroe C o u n t y , M i ssissippi. The chancellor later granted the Richey s’ m otion to join Tim ’s son, A n t h o n y L i t tle, as a def endant. The agreed order granting the Richey s’ m otion to joi n Anthony a s a def

endant was executed by Bradley Dillard, counsel f or t h e R i c hey s, and
Tim othy Ervin, c ounsel f

or Tim

. The record s hows that Tim o thy Ervin also signed the order as counsel f

or Anthony

. ¶5. The chancellor held a trial o n the m atter o n April 21, 2016. The c h ancellor dism issed
Tim as a def

endant due t o the f

a ct that he no longer owned the property in question. At that tim e, Anthony inf

orm ed t he chancellor that Ervin did not, a nd never had, represented him in the m atter at issue. Anthony requested a continuance i n o rder to retain additional counsel. ¶6. The chancellor granted the request and continued the case until June 3 0, 2016, so that Anthony could r etain additional counsel. Af ter m oving the trial date to June 30, 2016, the chancellor cautioned Anthony : [ U]nless there is a n em ergency of som e k ind, there will not be a continuance, so y ou need to advise y our attorney , if y ou hire one, of the court d ate so they will be a vailable because we are going t o get this case f inalized w ithin the n ext hopef ully f ew weeks as soon as I check m y schedule. ¶7. On June 16, 2016, two weeks bef ore trial, S arah Cline Stevens e n tered a n appearance i n the m atter on behalf of Anthony and f i led a m otion f

or additional tim e to cond u c t

2discovery . The chancellor denied the m otion.

¶8. Af ter the trial, the c hancellor entered her opinion and judgm ent on Septem ber 1, 2016, f inding in f

avor of the Richey s a s t o their claim of adverse possession. Anthony now appeals.
STANDARD OF REVIEW ¶9. “This Court em

ploy s a lim ited standard of review when reviewing t he decisions o f a chancellor.” Powell v
. Meyer , 203 So. 3d 648, 652 (¶16) (Miss. Ct. App. 2 016). W e will

o n l y r e v e r se a chancellor’s determ inations if “they were m anif e stly wrong, clearly e r

r o n e o u s , or . . . the chancellor applied an incorrect legal standard.” Id

. DISCUSSION
I. Denial of Discovery ¶10. Anthony argues that the Richey s f ailed to properly and t im ely join him as a d ef endant
in the present case. Anthony asserts that, a s a result, the chancellor abused her discretion by allowing the case to p roceed to trial w ithout a dequate tim e f or him to conduct discove r y . Anthony also alleges that the chancellor and c o unsel f or the Richey s “coerced” Anthony into waiving his rights to d i s c o v e ry and tim e to prepare f or a t rial by soliciting a verbal waiver

s t i pulating his s ubm ission to the jurisdiction of the court a nd waiving all rights to a

c o n tinuance. Anthony a rgues t hat the inability to c onduct discovery lef t him una b l e t o def end him self

against the Richey s’ claim of adverse possession. ¶11. T h e M i s s i s s i p p i S u p r e me Court has held that “[ t]he trial c ourt has considerabl e discretion in m atters relating to d iscovery and its order will not be d isturbed unless there has

3been an a

b use of that discretion.” Strickland v. Estate o f Broome , 179 So. 3d 1088, 1094 (¶19) (Miss. 2015); s ee also Blossom v. Blossom , 66 So. 3d 124, 126 (¶9) (Miss. 2011). ¶12. T h e r e c ord ref

lects that during Tim and A n t h o n y ’ s d e p o s i t i o n s , t h e R i c h e y s discovered that Anthony , and not Tim , now constituted the record owner of the property at is s u e . A s a result, the Richey s f iled a m otion to join A nthony in the action “ s o t hat a f ull adjudication in this cause would be binding o n him a s well as the other parties.” O n January 18, 2013, the chancellor granted t he Richey s’ m otion to join Anthony as a def e ndant. The order granting the m o tion ref lects that Anthony had no objection to the m otion. The order also states that Anthony waived service o f a sum m ons and com plaint on him

in the m atter. The order provides, in f

ull: Bef ore the court is a Motion f or Joinder of Party f

iled by [ t he Richey s], and af ter having duly considered said Motion and having b e e n advised t hat attorney Tim Ervin has no o b j e c tion, nor does proposed Def endant Anthony Little h ave any objection to sam e, the court hereby f inds that s aid Motion f

or Joinder of

Party is hereby well taken and should be granted. It is, theref ore, ORDERED AND ADJUDGED that Anthony Little is hereby joined as a party Def

endant in t his c ause, waiving service of a Sum m ons and Com plaint on him in this m atter.
I T I S F URTHER ORDERED AND A DJUDGED that Def enda n t Anthony Little m ay sim

ply adopt the answer of Co-Def endant Tim Little, or m ay f ile his own answer as he deem s appropriate. SO ORDERED this the 18th day of January , 2013. ¶13. T h e record s hows that the order w as executed by counsel f or the R i c h e y s , a n d b y Ervin as co u nsel f

or Tim and as “attorney f or Def endant Anthony Little.” Anthony acknowledged that Ervin signed the o rde r a s c o u n s el f or him and his f

a ther, Tim , but

4Anthony n ow m aintains t hat Ervin never actually represented him

. Anthony also claim s that

he never received notice of the January 18, 2 013 order. Anthony ’s argum ent f a ils to address the notice given to him

in court on April 21, 2016. ¶14. The record ref

lects t hat at the initial April 21, 2016 trial date, counsel f or the Richey s did not d ispute that Ervin never represented Anthony

. However, c o u n s e l f o r the Richey s argued: [ Anthony ] was j oined as a pa r t y i n J a n u a r y of 2013. This case was f iled in January o f 2011, so it’s been pending f or o v e r f ive y e ars; over three y ears since [ Anthony ] has been a party

. Apparently , at n o p o i n t d uring the course of this case has [ Anthony ] m ade any ef f ort to get his own independent counsel. ¶15. Counsel f

or the Richey s also asserted t hat Anthony provided a deposition i n the m atter and argued that “ [ t]his case has b een pending, he’s here t oday , so there was no reason f or us
to serve him with any

thing e lse once that order was entered.” Ervin also t est i f i e d t hat he
“never represented [ Anthony ] in the litigation at all.

. . . He’s not retained m e, he’s not paid

m e at all in this litigation.” ¶16. At the April 21, 2016 trial, the chancellor q uestioned both Ervin and counsel f or the Richey s about w hether Ervin ’ s signature e x ecuting the J anuary 18, 2013 order theref ore bound Anthony

to the order. The chancellor ultim ately opined “that there is no alternative but to c ontinue t he case.” The chancellor continued the case to J u ne 30, 2 016, and inf orm ed Anthony that he is “now aware of the f act that [ he is] a party i n the suit,” a nd instructed h im

to retain a n attorney

. The chancellor also advised Anthony that she was going to set the case f or hearing, and stated that “[ u]nless there is an em ergency of s om e kind, there w ill not be

a c ontinuance, so y o u n eed to a dvise y our attorney , i f y ou hire one, of the court date so that

5they

will be available[ .]” ¶17. Ervin also inf

orm ed t he chancellor that o n c e A n t h o n y o b t a i n e d c o u n s e l, Ervin intended to f

urnish the attorney with “every thing [ Ervin possessed] u p u n t i l t h is date

. . . because

. . . [ Anthony has] given a deposition in the past.” Signif icant t o t he resolution of this instant c ase, A nthony also e xecuted a waiver of service of p rocess on Ap r i l 2 6 , 2016, whi c h s t ated that A nthony had “voluntarily e nter[ ed] his a p pearance in t his m atter and acknowledge[ d] his status as a def endant pursuant to a January 18, 2013 order joining him

as a party , waiving service of process in this cause.” Acc o r d i n g l y , w e f ind that the record reveals t hat Anthony indeed entered a personal a ppearance, w aived service of p rocess, and acknowledged his status as a def endant. Notably , Anthony raised no objection to the January 18, 2013 order joining him as a def endant. ¶18. On June 16, 2016, two w eeks bef ore trial, Stevens entered an appearance in the m atter

as counsel f

or Anthony a nd f

iled a m o tion f

o r additiona l tim e to conduct discovery

. Af ter considering the m o t ion and af ter a telephone conf

erence, the chancellor entered an order on June 23, 2 016, deny ing the m otion. The record shows that S tevens again renewed her m otion
f or additional tim e at the s t art of the June 3 0, 2016 hearing, which t h e c h a n c e l lor again denied, e xplaining t hat she had “ denied that [ m otion] during o ur phone conf erence and that

rem ains t he decision of the court, and [ she] gave the r easons at t hat tim e. . . . Those reasons continue to exist.” 1 ¶19. In Robinson v. Brown , 58 S o. 3d 38, 4 2 (¶10) (Miss. C t. App. 2011), this Court held

1 T h e tran scrip t f

ro m th e p h o n e c o n f

eren ce d o es n o t ap p ear in th e reco rd b ef o re u s. 6that “the decision to grant or deny a continuance is within t he sound discretion of the trial

court and will not b e reversed absent an abuse of discretion th a t r e s u l t e d i n a m anif est injustice.” On appeal, “[ t]his Court will not reverse the denial of a continuance abs ent a f inding of prejudice.” Id

. Furtherm ore, as previously stated, the suprem e court has held that “[ t]he trial court has considerable d iscretion in m a tters relating t o discovery and its order will not be disturbed unless there has been an abuse of that discretion.” Strickland , 179 So. 3d at 1094 (¶19). ¶20. The r ecord bef

ore u s r e veals that counsel f or the Richey s deposed Anthony and his
f ather, Tim , on August 30, 2 012, a little less than f our y ear s bef

ore the i nitial date set f

or trial. Additionally , the record ref lects that o n April 21, 2016, the initial date set f or the trial,

t h e chancellor granted a continuance at Anthony ’s request af ter he argued that E r v i n h a d

never represented him

. As stated, at the April 21, 2 016 trial, Antho n y e n t ered a personal
appearance and agreed to t he term s of the continuance on the record, acknowledging that he understood t hat any attorney he h i red would r epresent him subject to the June 3 0, 2016 trial

s etting, and that the chancellor would not grant a continuance based on any conf l i c t t h a t Anthony o r his attorney m ight h a ve with t h a t date. Moreover, as discussed, on April 21, 2016, Anthony executed a written waiver of s e r v i c e o f p rocess and entered a v oluntary
appearance a nd a cknowledged the trial court’s prior order joining him as a def endant without objection. As a result, we cannot say that the chancellor’s decision t o deny Anthony ’s second request f or a continuance caused Anthony to s uf f er m anif est injustice in the m atter. W e accordingly f

in d n o a b u se of discretion by the chancellor. See R obinson , 58 So. 3d at 42

7(¶10).
II. Clear and Convincing Evidence

¶21. Anthony next asserts that the Richey s f ailed to p rove each elem ent o f their adversepossession c laim by clear a nd convincing evidence and, as a result, the chancellor erred in granting the Richey s’ m otion to quiet and conf irm title. ¶22. This Court has h eld that “[ t ]he chancellor’s f indings o f f

act will b e accepted as long

as t he record reasonably supports those f indings.” Rester v. Greenleaf Res. Inc ., 198 So. 3d 472, 474 (¶5) (Miss. Ct. A pp. 2016) (internal quotation m a r ks om i tted). W e will o nly reverse where the chancellor “abused h e r discretion, was m a nif estly wrong or c learly erroneous, or applied the wrong legal s tandard.” Id

. (citing Biddix v. McConnell , 911 So. 2d 4 68, 474-75 (¶17) (Miss. 2005)). W e f urther recognize t hat “[ a]s the trier of f act, t he c hancellor evaluates the suf f iciency o f the e v i d e n c e based on the credibility o f the witnesses and the weight of their testim ony .” Id . “Questions of law are reviewed de novo.” Id. ¶23. Mississippi Code Annotated section 15-1-13(1) ( Rev. 2012) sets f orth the f ollowing elem ents of

adverse possession:
Ten (10) y e ars’ actual adverse possession by any p erson c l a im ing to be the owner f or t hat tim e of an y l and, uninterruptedly continued f o r ten (10) y ears by occupancy , descent, convey ance, or o therwise, in whatever way such occupancy m ay h ave com m enced o r c ontinued, shall vest in every actual occupant or possessor of

such land a f

ull com plete title . . . . ¶24. In Powell v. Meyer , 203 So. 3d 648, 6 52 (¶18) (Miss. Ct. A pp. 2 0 1 6 ) , t h i s C o urt explained the six-part test that is applied when d eterm ining whether adverse possession has occurred: “f

o r possession t o be adverse it m ust be (1) under claim of ownership; ( 2) actual

8or h ostile; (3) open, notorious, and visible; (4) continuous and uninterrupted f or a period of

ten y e a rs; (5) exclusive; and (6) peacef ul.” T h e “adverse p ossessor” bears the burden of proving each elem ent b y clear and convincing evidence. Ellison v. M eek , 820 So. 2d 730, 734 (¶13) (Miss. Ct. App. 2002). ¶25. Anthony argues that the Richey s f a i l e d t o show that they possessed the land to the exclusion of others. Anthony explains that “by not prohibiting the thinning of trees in 2004 and 2007, the Richey s did not exclude the true owners f rom continui n g t o i mp r ove and cultivate their tree f

arm [ .]” Anth o n y a lso argues t hat the R i chey s’ peacef u l use and possession of the land was disrupted by Tim Little in 2010, when he hired an attorney to send the Richey s a cease and desist letter af ter the Richey s cut tim

ber f rom the p roperty at issue. ¶26. The record ref

lects t hat at t rial, Nancy Richey testif ied that she and her husband began constructing a f

e nce on the property at issue, which was com pleted in 1994. Anthony asserts that t he Richey s f

ailed t o provide clear and convincing evidence to prove that they built an encroaching f

ence on the property in 1994. The record shows that A n t h o n y presented testim o ny f

rom a registered f

orester who opined t hat the encroaching f e nce w as built in 2004, rather than 1994. Anthony also asserts that his f ather, Tim , r em oved the encroaching f ence in 2010 and erected another f ence along the survey ed boundary line. As a r esult, Anthony claim s that t he Richey s u s e o f t h e property was not continuous a n d uninterrupted f or ten
y ears. ¶27. In Ellison , 820 So. 2 d a t 734-35 (¶14), this Court explained t hat “ m ere possession is

not suf f icient to s atisf

y the req u irem ents of o pen and notorious p ossession.” Rather, the

9“adverse possessor m u s t f ly the f lag over the l and and put t he true owner upon notice that his land is held under an adverse claim of ownership. Id

. at 735 (¶14). ¶28. The Ellison court f u rther held that “ [ i]f a f

ence encloses the property f or a period of

at least ten y ears, under a claim of adverse po s s e s s i o n , title vests in the c l aim ant and
possessor, even though the f ence was subsequently rem oved or f ell into disrep a i r . ” I

d

. at (¶15). However, the Court cautioned that “[ t]he existence o f a n old barbed wire f ence, as sole evidence[ ,] does not constitute a dverse possession.” Id

. Instead, “ [ t]he actual activity within the f

enced area s hows o pen and hostile possession.” Id

. The Ellison court also held that “the acts of cutting of t im b er and o c c a s i o n a l p asturing of the land are insuf f icient to constitute open and hostile possession.” Id

. ¶29. The record ref

lects that at trial, the chance l l o r h e a r d testim ony f rom the Richey s; Rob e r t Tom ey , c ounty supervisor f or Monroe County ; T im Little; Anthony Little; Bobby Edwards, Tim Little’s b rother-in-law; Bruce Pennington, who f a rm ed the land adjacent to

t h e property at issue; and Steven Gruchy , a registered f o rester. The c h ancellor a l s o h e a r d deposition testim ony f

rom Sherry Bortz. A dditionally , prior to entering her j udgm ent on the

m atter, th e chancellor v iewed t he disputed property , where she “observed no evidence of cutting trees and o bserved the f e nce that was torn down, and all m aterials looked old.” She opined that “[ t]he evidence o n the ground m atched the credible p roof of the Richey s.” The chancellor u ltim ately h e ld that “ t he R ichey s have established their claim by adverse possession to the area i ncluded within the f ence erected by them in 1993 and 1994, and title thereto is quiet and conf

irm e d in them .”

1 0¶30. I n her judgm ent, which w e quote in length, the chancellor “ assesse[ d] the c r e d i b l e

proof in light of

the f oregoing elem ents” and f ound the f

ollowing: (1) Under claim of ow nership
In t his instance, the court f inds the p lacem ent of the f enc e b y the Richey s was the result of their belief , though p erhaps m istaken, that the p r o perty was included in the tract which they had purchased. It was a l s o unrebutted that the R ichey s paid taxes on the parcel in question. Accordingly , the credible proof

is suf f i cient to m eet this elem ent. Nevertheless, The m ere presence of a f ence, without m ore, has never been suf f icient t o sustain a cla i m of adverse p ossession. As this Court has clearly

stated:
W hen a f

ence or h edge row i s relied up o n to delineate the boundary of an adverse c laim , the applicable rule is whether the e n closure[ , ] l ike other acts of possession, is suf f i cient to f

ly the f lag o ver t he land and put t he true o w ners on notice that his land is h eld by an adverse claim of ownership. Snowden & M

cSweeny Co. v. Hanley , 195 Miss. 682, [ 687,] 16 So. 2d 24, 25 (1943)[ .] In other words, the adverse possessor ( in this case, Double J) m

ust present som e proof that its occupation of the record o wner’s property was hostile, and that the record o w n e r

— a w a r e o f t h e a d v e r s e p o s s e s s o r ’ s h o s t i l e occupation—took no action to p revent adverse p ossession

. . . .

. . . . Double J Farmlands, Inc. v. Paradise B a ptist C hurch , 999 So. 2 d 8 26, 8 29 [ (¶15)] (Miss. 2008). (2) Actual or hostile The requisite proof

to satisf y this elem e nt has been sum m arized as f ollows:
To prove a ctual possession, the adverse possesso r m ust show that he exercised c ontrol over the disputed property , “ evidenced

1 1by things visible t o the ey e or p erc e p tible to t he senses.” [ W icker v. Harvey , 93 7 So. 2d 983, 993-94 ( ¶34) (Miss. Ct. App. 2006)] (quoting Blankinship v. P ayton , 605 S o. 2d 8 1 7 , 819-20 (Miss. 1 992)). That p o s s e s sion is c onsidered hostile when t he adverse possessor intends t o c laim ownership of the land of a nother although the adverse possessor is unde r a m i staken be l ief that t he land lies within the description contained in his own deed. Id

. a t 994 (¶34) ( citing Alexander v. Hyland , 214 Miss. 348, 357, 58 So. 2d 826, 829 (1952)).
W ebb v. D r e w r e

y , 4 So. 3d 1078, 1083 (¶16) (Miss. Ct. App. 2009). Additionally , “ an im

portant question to ask is w h e t h e r the person a dversely claim ing the property exercises the sam e character of control over the land as he would toward property a ctually his and which he w ould not have exercised over property which did not belong to him

. Jackson v. Peoples Bank , 869 So. 2d 422, 424 (¶8) (Miss. Ct. App. 2004) . . . .
In this c ase, t he credible proof was clear and convincing that the Richey s erected a f

ence then placed horses within t h e e n c losure and m aintained control of the f enced area throughout the tim e it was occupied by those anim als. The credible proof al s o e s t ablished that the sm aller barn identif ied as “B2” w as constructed by the R ichey s along the property in dispute. In the court’s view, this elem e nt has been satisf ied. (3) Open, notorious, and visible The c h a r a c t er of p r oof needed to s upport this elem ent was described by o ur appellate court: The m ere possession of land i s not suf f icient to satisf

y the requirem ent that the adverse possessor’s u se be open, notorious, and visible. W

icker , 937 So. 2d at 9 94 ( ¶35) (citing Craft v. Thompson , 4 05 So. 2d 128 , 130 (Miss. 1981)). A claim of adverse possession cannot begin unless t h e l a n d o wner has actual or constructive knowledge that there is an adverse claim against his property

. Scrivener v. Johnson , 861 S o. 2 d 1057, 1059 (¶6) (Miss. C t. App. 2003) (citing People’s Realty & Dev. Corp. v. S u l l i v a n , 336 So. 2d 1304, 1305 (Miss. 1 976)). “[ A]n adverse possessor ‘m

ust unf url his f lag o n t he land, and keep it f ly ing, so that the (actual) owner m ay see, and if he will, [ kn o w] t hat an enem y has invaded his do ma i n s , and p lanted the s tandard of conquest.’” . . . .

1 2W

ebb , 4 So. 3d at 1083 [ (¶19)].
In this case, the credible proof established in a c l e a r a nd convincing m anner that the Richey s erected a f ence in 1993 and 1994, placed livestock therein, constructed a s m all barn along the property l i n e , a n d m aintained a level of usage o f t h e disputed property that w ould h ave placed the record owner on notice of the occupation. The h orses treaded paths a long the f ence area, and likely c ontributed to som e o f the clearing of the occupied a r ea. The R i c hey s also cleared som e of the sm all t rees f r om the disputed area durin g their occupation there o f

. T i m Little’s a llegation that there was no f ence in 2006 was unsupported. The allegation that the f ence w as constructed in 2007 was not supported by c redible proof o r t he court ’ s viewing of the property

. This elem ent is satisf

i ed. (4) Continuous and uninterrupted for a period of ten y ears Pursuant to section 15

- 1

- 1 3 , t h e R i c h e y s m a i n t a i n ed a d verse occupation of t he disputed area beginning in 1994 a n d continued uninterrupted thereaf ter until 2010, af

ter which their f

encing was rem oved a nd this a ction ensued. The court f inds this elem ent has been satisf ied. (5) Ex clusive In the context of

a claim f or adverse possession:

“ E x clusive u se” does not m ean that no one else m ay use t h e property

. Moran v. Sims , 873 S o . 2 d 1 0 67, 1069 (¶10) (Miss. Ct. App. 2004). Exclusivity , within t he m eaning of the statute, means that t he adverse possessor’s use o f t he propert y w a s consist e n t w i t h a n exclusive claim to t he right to use the property

. Id

. Exclusive use is at t he m o st b asic level the intent of actual and hostile possession. Apperson v. W

hite , 950 So. 2d 1 113, 1119 [ ( ¶15)] ( Miss. Ct. App. 2007). The court f i nds t h e c r e dible proof was clear and convincing that the R ichey s exercised exclusive use of the area w ithin t he f enced enclosure. W hile it was alleged that the t rees h ad been thinned, this was not inconsistent w ith the f acts establish e d b y the R ichey s concerning their r em oval of sm all trees and the occupancy

of the property by

their horses. (6) Peaceful The credible proof was clear and convincing that the Richey s occupation of the 1 3area within the f ence was undisputed f

rom 1994 u ntil the incident in 2011 t hat prom pted this litigation. ¶31. Af ter our review of the record a nd the c hancellor’s thorough f indings set f

orth in her judgm ent, w e f

ind substantial evidence in the r ecord to support the chancellor’s determ ination that the Richey s proved adverse possession by clear and convincing e vidence. Theref ore, we f i nd the chancellor did not abuse her discretion.
III. Deposition Testim ony ¶32. Anthony asserts that t he trial court abused i ts discretion in allowing the deposition of witness Sherry Bortz, the Richey s’ daughter, to be read into evidence. Anthony m aintains that he f a i l e d t o r eceive notice o f the deposition, nor was he present or represented by counsel. Anthony claim s that had he been r e p r e s e n ted by c ounsel during the deposition, add i t i o n a l cross-exam ination m ay have been conducted, a nd testim ony f a vorable to h im could have been elicited. ¶33. The r ecord ref

lects that Bortz resides in Murf reesboro, Tennessee. The record also ref lects that during Bortz’s M arch 25, 2016 deposition, Ervin appeared at the deposition on behalf of Tim and Anthony

. ¶34. At trial, Anthony ’s c ounsel objected t o t he a dm ission of Bortz’s deposition testim ony into evidence, stating it’s in violation o f Mississippi Rule[ ] of Civil Procedure 32, which states t hat a d eposition is only adm issib l e and m ay be used i n advance of party who is present or represented at the taking of the deposition, or h ad reasonable notice thereof

. W hen this deposition was taken . . . on March 22nd, [ A nthony ] had not y e t properly b e en joined as a party

. The notice of deposition was o nly sent to his f ather’s attorney , Mr. Ervin, and [ A n t h ony ] was not p resent at the deposition.

1 4The chancellor o verruled the objection and allowed Bortz’s deposition testim ony to be read

into evidence. ¶35. In h er judgm ent, t he chancellor ref erred t o Bortz’s deposition testim ony , stating that
Bortz’s testim ony “indicated s he rode horses on the disputed property f r om 1996 to 2010 or 2011, at least twice a y ear.” During that tim e, B ortz “never observed any one e lse using the property

. In her v iew, t he Richey s claim ed to be owners of the area, and m ade open and visible use of it, and the f ence never m oved until it was taken down.” ¶36. W e recognize th a t “ [ t ] h e a d mi s s i o n of deposition testim ony is within the sound discretion of t he trial court.” W illiams v. Homecomings Fin. Network Inc ., 134 S o. 3d 779,
78 1 ( ¶10) (Miss. Ct. App. 2013). Regarding the adm ission of evidence, “ r eversal is not warranted unless j udicial discretion is abused.” McCullough v. McCullough , 52 So. 3d 373, 377-78 (¶17) (Miss. Ct. App. 2009). ¶37. The r ecord ref

lects that at the tim e of the depositio n , A n t h o n y had been joined as a party pursuant t o the January 18, 2013 agreed order. Our r e v i e w of the chancellor’s judgm ent reveals that in m aking her decision to quiet and conf ir m title i n f

avor of the Richey s, s he relied upon testimo n y f r o m a l l of the witnesses, as well as various item s adm itted into evidence, such as p hotographs, a survey of the property , Conservation Reserve Program records, as well as the chancellor’s own o bservations m ade when v i s i t i n g t h e disputed property

. T he r e c o r d r e f lects that regarding t he f

ence a nd the Richey ’s open and visible use of the property , Bor t z ’ s d e position t estim ony was consistent with that of other witnesses. Hence, Bortz’s testim ony was cum ulative with the t estim ony of other witnesses. The chancellor o nly specif ically m entioned Bortz’s d eposition testim ony when sum m arizing

1 5the testim ony presented at trial b y each of the witnesses. As a resu l t , w e f i nd no abuse of discretion in the chancellor’s adm ission o f Bortz’s deposition testim ony i nto e vidence.
W illiams , 134 So. 3d at 781 (¶10). ¶38. AFFIRMED. LEE, C.J., IRVING AND GRIFFIS, P.JJ., FAIR, GREENL E E A N D WESTBROOKS, JJ., CONCUR. W ILSON, J., CONCURS I N PART A N D I N THE RESULT WITHOUT SEPARATE WRITTEN OPINION. BARNES AND TINDELL, JJ., NOT PARTICIPATING.

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