IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2017-CA-01347-COA WILLIE LEE WINTERS AND OPHELIA WINTERS APPELLANTS

v. PRESTON BILLINGS AND ALMETA H. BILLINGS APPELLEES

DATE OF JUDGMENT: 08/31/2017 TRIAL JUDGE: HON. W ATOSA MARSHALL SANDERS COURT FROM W HICH APPEALED: BOLIVAR COUNTY CHANCERY COURT, SECOND JUDICIAL DISTRICT ATTORNEYS FOR APPELLANTS: ROBERT G. JOHNSTON JOHN MARSHALL ALEXANDER ATTORNEY FOR APPELLEES: ELLIS TURNAGE NATURE OF THE CASE: CIVIL - REAL PROPERTY DISPOSITION: AFFIRMED IN PART; REVERSED AND RENDERED IN PART - 01/15/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. GREENLEE, J., FOR THE COURT: ¶1. This is an appeal f

rom the Bolivar County Chancery C ourt. The W interses assert that: (1) the ch a n cellor incorrectly applied the e lem ents of adverse-possession law; (2) the chancellor incorrectly denied judicial estoppel; and (3 ) t h e chancellor w rongly awarded attorney ’s f

ees and expenses. W e af

f irm in part and reverse and render in part. FACTS AND PROCEDURAL HISTORY ¶2. The B illingses purchased their land in 1 984 f rom the estate of Pearl Strickland. T hey had a survey done that showed that th e w h i t e picket f ence installed by M s. Strickland waswithin the b o u nds of their land and ten f eet north of their southern boundary

. Shortly thereaf ter, they replaced the p icket f ence with a chain-link f

ence. The B illingses m aintained the f ence and surrounding area and shrubbery until 1991. ¶3. The W i nterses purchased the neighboring lan d i n 1 9 9 1

. T h e y bought the property without having a survey d one and instead relied on the seller’s statem e nt that the chain-link f ence was the property line. A t the tim e of the purchase, Mr. W inters had a conversation with Mr. Billings about the property line; what was said, precisely , is disputed. Mr. B i l l ings testif i ed that he g ave Mr. W inters perm ission t o u se the l and, whereas Mr. W inters testif ied that Mr. Billings did not give h i m perm ission. Regardless, Mr. W inters testif i ed that he

m aintained the f

ence and the surrounding area and shrubbery f r om 1991 until 1 99 7

. H e f urther testif

ied that his f

am ily used the property just s outh of the f ence f or barbecue events, sof tball, and volley

ball. ¶4. The W interses testif ied that in 1994, they m o ved a trailer onto their property around

seven to eight f

e et south of the f

ence. They used this trailer as a beauty s h op until 1 997, when their h o me b u r n e d down, and they m oved into the trailer until their new h om e was constructed one y ear later. They rem oved the trailer in 2012. ¶5. In 2014, t h e Wi n t e r s e s w e n t on vacation, and the Billingses rem oved the f ence because i t was in bad c o n d i t i o n a nd a s af ety hazard. The Billingses then h ad two survey s done to designate their property lines. These survey s showed that the now-destroy ed f ence stood ten f

eet north of their southern boundary , the sam e property l ine as determ ined by their earliest survey

nearly thirty y ears bef ore.

2¶6. Several mo n t h s l a t e r , t h e W interses f iled a Com

plaint to A djudicate Title and f or Other Relief against the B illingses in the Bolivar C ounty Chanc e r y C ourt. They a sked the chancellor to: (1) adjudicate them to be the owners of the contested property ; (2) award them dam ages f

or negligent, wrongf

ul, tortious, and i ntentional trespass against the Billingses; (3) require the B i l l i n g s e s to pay f or the costs of replacing the f ence; (4) award dam ages f or

m ental and em otional d istress; (5) award attorney ’s f ees; (6) award punitive dam ages f or the

m alicious and outrageous conduct of the Billingses; and (7) enjoin the Billingses tem porarily and perm anently

f rom any f uture trespassing. ¶7. Two y ears later, the W interses f iled an am ended c om

plaint alleging ownership of the property by adverse possession. ¶8. The chancellor denied the W interses’ c l a i m o f a d v e r s e p o s s e s s i o n , f ound the W i nterses’ c laim f

o r com pensation m oot, denied the W interses’ claim f o r j udicial estoppel, and granted the Billingses’ request f or attorney ’s f

ees. ¶9. The W interses now appeal. They claim that: (1) the c hancellor incorrectly applied the elem ents o f adverse-possession law; (2) the chancellor incorrectly denied judicial estoppel; and (3) the chancellor wrongly awarded attorney ’s f

e es and expenses. STANDARD OF REVIEW ¶10. “W hen reviewing a chancellor’s decision, our standard of review is lim ited.” Conliff

v. H udson , 60 So. 3d 203, 206 (¶8) (Miss. Ct. App. 2011) (citing N ichols v . Funderburk , 883 So. 2d 554, 556 (¶7) (Miss. 2004)). “The chancellor’s determ inations will o nly be reversed when they were m anif

e stly wrong, c learly erron e o us, or when the chancellor applied an

3incorrect legal standard.” Id. DISCUSSION

I. Did the chancellor incorrectly apply the elem ents of adversepossession law ? ¶11. The W interses’ f

irst issue on appeal is w hether the chancery c o urt incorrectly applied the elem ents of

adverse-possession law. ¶12. Section 1 5-1-13(1) of the Mississippi Code Annotated (Rev. 2012) d e f i nes adverse possession: Ten (10) y e ars’ actual adverse possession by any p erson cl a i ming to be the owner f or that tim e of any l a n d, 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 comm enced or contin u e d , shall vest in every actual occupant or possessor of

such land a f

ull and com

plete title . . . . It is well-established that we apply a six-part test to determ ine whether adverse possession has occurred: “f

or p o s s e ssion to be adverse it m ust be (1) under claim of ownership; (2) actual o r hostile; (3) open, notorious, a n d v isible; (4) continuous and uninterrupted f or a period of t en y ears; (5) exclusive; and (6) peacef u l.” Powell v . Meyer , 203 So. 3d 648, 652 (¶18) ( Miss. Ct. App. 2016) ( quoting W alker v. Murphre e , 722 So. 2d 1 277, 1281 (¶16) ( M i s s . C t. App. 1 998)). Furtherm ore, the “ [ o]ne who seeks to acquire real propert y b y adverse possession mu s t d e monstrate

. . . [ those] six e lem ents by clear and convincing evidence . . . .” Massey v. Lambert , 84 So. 3d 846, 848 (¶7) (Miss. Ct. App. 2012). ¶13. Im portantly , “[ t]he adverse possessor m ust hold the property w ithout the perm ission of the true title owner since ‘ perm ission def eats adverse possession.’” Stasher v. Perry , 217 So. 3d 765, 769 (¶12) (Miss. C t. App. 2017) (quoting Apperson v . W hite , 950 So. 2d 1113,

41118 (¶12) (M i s s . C t

. App. 2007)). And although the W interses a ssert that Mr. Billings

f alsely testif

ied w hen he claim ed that he g ave the W interses perm ission to use the property , “[ t]he credibility of the witn e s s e s a n d the weight of their testim ony , as well as the interpretation of evidence where it is capable of m ore than o ne reasonable interpretation, are prim arily f or the chancellor as the trier of f acts.” O’Briant v. O’Briant , 99 So. 3d 802, 806 (¶19) (Miss. Ct. App. 2012) (quoting Johnson v. Gray , 859 So. 2d 1006, 1014 (¶36) (Miss. 2003)). ¶14. The chancellor f

ound that Mr. Billings did, in f a ct, give the W i nterses perm ission, and this p erm ission alone s hould have negated the W interses’ a b ility to adversely possess the property

. E.g. , Stasher , 217 So. 3d at 769 (¶12). But because this perm ission was disputed by the W interses, the chancellor still an aly z ed the s ix e lem ents of adverse-possession law. W e recognize that Mr. B illings’s perm is s i o n def eats the W i nterses’ adverse-possession claim

. And given our s tandard of review, we f ind no reversible e r r o r in the chancellor’s determ ination that t h e Wi n t e r s es did not dem onstrate all o f those elem ents by clear and convincing evidence. Rester v. Greenleaf Res. I n c . , 1 9 8 S o. 3d 472, 477 (¶18) ( Miss. Ct. App. 2 016); D ean v. Slade , 63 So. 3d 1230, 1 2 3 5 ( ¶ 2 1 ) ( Miss. Ct. App. 2010). Thus, we

a f f i r m the chancellor’s decision and f ind that the W interses did not adversely possess th e disputed land. 1

1. Claim of Ownership

1 W e n o t e f

r o m th e reco rd th at th e o rig in al p l at o f C am p r o n o v o ’s A d d itio n to th e T o w n o f S h elb y , d ated 1 9 0 0 , sh o w s th e lo t l in es th at sep arate th e B i llin g ses’ p ro p erty f ro m th e Win terses’ w h i ch are co n sisten t w ith th e B illin g s es’ arg u m en t. 5¶15. Regarding the claim -of

- o w n e r s h i p e l e m ent, the W i nterses note that the chancellor determ ined that b ecause the f ence was constructed by the Billingses, the W i nterses could not claim title. The W interses state that “[ i]t should m ake no dif f e rence, who put the f

ence up, if the neighbor possesses up to the f ence, under the requisite circum s tances, f o r the requisite 10 y ear period.” ¶16. “[ T]he chancellor m ust determ ine whether the purported a dverse p ossessor’s actions

were suf f icient t o ‘f

ly a f lag over the p roperty ’ and put the actual owners on notice that the property was ‘being held under an adverse c laim o f ownership.’” Roberts v. Y oung’s Creek Inv. Inc. , 118 So. 3 d 665, 6 69 (¶8) (Miss. C t. App. 2013) (quoting A pperson , 950 So. 2d at 1 1 1 7 ( ¶ 7 )). The W interses are correct in n oting that the chancellor considered wh o constructed the f

ence, but the chancellor also considered several other pertinent d e t a i l s , including that the W interses never planted any of the shrubbery or seasonal f

lowers on the disputed line a n d t h a t i t was unclear how f r equently the W interses’ barbecues took place. Theref ore, we agree with the chancellor that the W i nterses were unable t o satisf y the claim

of -ownership elem ent by

clear and convincing evidence. 2. Adverse or Hostile ¶17. Next, the W interses dispute t h e a d v e r s e o r h o s t i l e elem ent. They posit that the chancellor m isunderstood th i s elem ent as “acrim onious or argum entative” and that its holding that the W interses did not possess the l and with host ility was an error of law. W e def ine possession a s “ef

f ective control o ver a def inite area o f land, evidenced by things visible to the ey e or perceptible to the s enses. It includes c ontrol over the l and and the intent

6to e xclude others except with the occupant’s consent.” Blankinship v. P a y t o n , 6 0 5 So. 2d 8 1 7, 8 19-20 ( Miss. 1992). “Possession is hostile and adverse when the a dverse p o s s e s s o r intends to claim title notwithstanding that the claim is m ade under a m istaken belief that the land is within the calls o f the possessor’s deed.” W icker v. Harvey , 937 So. 2 d 983, 994 (¶34) (Miss. Ct. App. 2006). ¶18. T o p r o v e this elem ent, the W interses m ust have acted in a m anner that co n s t i t u t e d ef f ective control over the disputed acreage that w a s v i sible to the e y e o r perceptible to the

senses. Roberts , 118 So. 3d at 670 (¶10). The chancellor f o und that t h e Winterses did not bui l d t h e f

ence or occupy the land in a way that constituted e f f e ctive control; rather, their occupation was tem

porary and lim ited. W e agree, theref ore, that the W i nterses did not prove the adverse or hostile elem ent by clear and convincing evidence.

3. Open, Notorious, and Visible ¶19. Third, the W interses assert that the chancellor incorrectly applied the open, notorious, and visible elem ent because the chancellor determ ined that the W interses m ust h ave given the Billingses actual notice of their occupation. “ To satisf y [ the open, notorious, and visible] elem ent, the possessor ‘m ust unf url his f lag on the land, and keep it f ly ing, so that the actual

owner m ay see, and if he will, that an enemy h a s i n v a d e d his d om ains, and planted the standard of conquest.’” Id. at (¶13) ( q uoting W i c k e r , 9 3 7 So. 2 d at 9 94 (¶35)). W hile the chancellor did im

ply that the W interses n eeded to notif y the B illingses “that their p ossession

was hostile to the Billings’ claim o f ownership,” we f ind that this elem e nt still was not m et. It was the Billingses who paid taxes on the land, an im portant f actor. B roadus v. Hickman ,

750 So. 2d 717, 720 (Miss. 1951). And it was the Billingses who survey ed the land, another

im p ortant f actor. Grantham v . Masonite Corp. , 67 So. 2d 727, 728 (Miss. 1953). Under our lim ited standard of review, we af f irm the chancellor’s decision that the W i n t e r s e s were unable to satisf

y the open, notorious, and visible elem ent. 4. Continuous and Uninterrupted for a Period of Ten Y ears ¶20. The W inte r s e s mo v e to the f ourth elem e n t of adverse possession: continuous and

u n i n t e r r u pted possession f or a period of ten y ears. Miss. Code Ann. § 15-1-13. But the Wi n t erses did not prove with clear and convincing evidence that their barbecue events , sof tball, and volley

b all gam es were regular activities. Rather, testim ony indicated that m ost of these activities took place in f r o nt of their house and not on the narrow strip o f contested l a nd. “[ M ]ere sporadic, noncontinuous use is insuf f icient” to establish continu o u s a n d uninterrupted possession. Buford v. Logue , 832 So. 2 d 594, 603 (¶25) (Miss. Ct. App. 2002). Theref ore, we af

f irm the chancellor’s decision that the W inters e s did not establish this elem ent by

clear and convincing evidence. 5. Exclusive ¶21. “Exclusive possessi o n i s ‘an intention t o possess and h old l and t o the exclusion of , and in opposition to, the c laim s of all others, and the cla i ma n t ’ s conduct m ust af f ord an

u nequivocal indication that he is exercising dom inion o f a sole owner.’” Cronier v. ALR Partners L.P. , 248 So. 3 d 861, 870 (¶32) (Miss. Ct. App. 2 017) (quoting W i cker , 937 So. 2d
at 9 95 (¶40)). The W interses assert that the trees, power lines, and m aintenance of the lawn,

am ong other things, were ignored by the chancellor.

8¶22. The chancellor f ound that both the W interses and the Billingses accessed and used the disputed property f

r om 1991 until 2017. And “ joint use of property i s insuf f icient to establish adverse possession.” Riverland Plantation P’ship v. Klingler , 942 S o. 2d 29 4 , 2 9 8 (¶14) (Miss. Ct. App. 2006). Furtherm ore, the chancellor f o und that the W interses erected nothing
to e xclude the Billingses f rom the land and that the B i l l i n g ses “paid taxes on the disputed property , h ad stum

ps rem oved, had the burned house rem oved, rem o ved the d am aged chain link f e nce, and also kept their side of the f e nce cut.” The W interses did not prove this elem ent by

clear and convincing evidence. Thus, we af f irm the chancellor’s judgm ent. 6. Peaceful ¶23. The f

inal adverse-possession e lem ent that the W i nter s e s mu s t p r o v e by clear and convincing evidence is that their occupation was peacef u l. The chancellor held that it was, and there is no evidence to indicate otherwise. W e agree that this elem e n t was satisf ied. II. Did the chancellor incorrectly deny j udicial estoppel? ¶24. The W inte r s e s a s s e r t t h a t b e c ause M r. Billings m ade seven statem ents in sworn interrogatories that he n e v er spoke with Mr. W inters about the land, the chancellor should have judicially estopped Mr. B illings f rom asserting that he gave M r. W inters perm ission to use the land. ¶25. “Judicial e stoppel i s designed to protect th e j u d i c i a l s y s t e m a n d a p p l i e s where intentional self

-contradiction is being used as a m e ans of o b t a i n i ng unf air advantage i n a f orum provided f

or suitors seeking justice.” Kirk v. Pope , 973 So. 2d 981, 991 (¶31) (Miss. 2 0 0 7 ) ( internal quotation m ark om itted). Our suprem e court has held that there are th r e e

9elem ents of judicial estoppel: “A party will b e judicially e stopped f rom taking a subsequent position if

(1) the position is i nconsistent with one p reviously taken during litigation, (2) a
court a cc e p t e d t h e previous position, and (3) the party did n ot inadvertently take the inconsistent positions.” Clark v. Neese , 131 So. 3d 556, 560 (¶16) (Miss. 2013). ¶26. The chancellor f

ound that the j o i n t l y - s u b mitted pretrial order indicated that “Mr. Billings g a ve Mr. W inters and his f am ily ‘perm i ssion’ to use the disputed strip of p roperty ” and that the pleadings were am ended t o conf orm to that p r e t r i a l order. F urtherm ore, the chancellor noted that Mr. W inters indicated in his o w n testim ony that he s poke with Mr. Billings about the la n d , a n d o n l y the contents of that conversation were d isputed. W e also
note that the interrogatories were vague as to their actual s ubject, but t h e y me a n t to elicit general responses and d o not f ocus o n perm ission o r lack thereof

. “A chancellor sits as a f act-f inder and i n resolving f

actual disputes, is the sole judge o f the credibility of witnesses.” Tice v. Shamrock GMS Corp. , 735 So. 2d 443, 444 (¶3) (Miss. 199 9 )

. In this position, the chancellor m ay assess the m ateriality and relevance of answers to interrogatories, along with

a n y inconsistent testim ony thereto at trial and decide on its c redibility

. Mr. Bi l l i n g s ’ s assertion w as not inconsistent with a prior position taken during litigation, the chancellor had
not accepted the previous position, and the chancellor’s holdings indicated that at m ost Mr. Billings inadvertently

m ay have taken the inconsistent positions. ¶27. Under our lim ited standard of review, we hold that the chancellor’s holding was not

m anif estly wrong o r clearly e rroneous, nor did the chancellor apply an incorrect legal standard. Thus, we af

f irm

.

1 0III. Did the chancellor w rongly aw ard attorney ’s fees and ex penses?

¶28. “[ T]he standard of review regarding attorney s’ f ees is the a

b u s e o f d i s c retion standard, and such awards m

ust be supported by credible e vidence.” Jordan v. Fountain , 986 So. 2d 1018, 1021 (¶7) (Miss. Ct. App. 2008). ¶29. U n d e r Ru l e 1 1 (b) of our rules of civil procedure, “[ i]f any party f iles a m otion or pleading which, in the o pinio n o f t h e c o u r t , is f rivolous o r is f

iled f or the purpose of harassm ent or delay

. . .” then a chancellor m ay order a party

to pay expenses or attorney ’s f e e s. M.R.C.P. 11(b). “A claim is f rivolous w hen objectively speaking, the pleader o r

m ovant has no hope o f success.” Ill. C ent. R.R. Co. v . Broussard , 19 So. 3d 821, 824 (¶11) (Miss. Ct. App. 2009) (internal quotation m ark om itted). ¶30. The c hancellor f

ound t h a t t h e Wi n t e r s e s a c t e d in bad f aith, that their c laim

was entirely m eritless, and that they f iled o nly to h arass the Billingses. However, we f i nd that the record contradicts this. The W interses subm itted an a f f i d a vit b y their f

orm er a t torney , in which he indicates that he evaluated the W i nterses’ claim f o r adverse possession on Evans

v. A rcher , No. 2 001-443 (Coahom a Cty

. Chancery Ct. Dec. 21, 2001), th a t h e v i sited the contested site bef

o r e f iling s uit, and that Mr. W i nters acted at all tim es o n h is prof essional advice. At no tim e did the attorney suspect that Mr. W inters was acting i n bad f aith. W e note that the W interses had a colorable claim , 2 and their action was not f rivolous or intended to harass the Billingses. ¶31. W e f

ind, theref

ore, that the chancellor abused discretion in awarding attorney ’s f ees,

2 “A co lo rab le c laim o r actio n is o n e ap p earin g to b e tru e, v a l id , o r rig h t.” I n re C ity o f B ilo xi , 1 1 3 S o . 3 d 5 6 5 , 5 7 0 (¶1 3 ) (M iss. 2 0 1 3 ) (in tern al q u o tatio n s m ark s o m itted ). 1 1a n d , t h u s , we reverse the chancellor’s decision and render a judgm ent that the award o f

attorney ’s f

ees and expenses is im

proper. 3 CONCLUSION ¶32. W e f

ind that: (1) the chancellor did not m anif estly err in apply i ng the correct elem ents of a dverse-possession law; (2) the chancellor did not m an if estly err in deny i ng the elem ents of judicial estoppel; and (3) the chancellor wrongly awarded attorney ’s f

ees and expenses. Thus, we af

f irm in part and reverse and render in part. ¶33. AFFIRMED IN PART; REVERSED AND RENDERED IN PART. GRIFFIS, C.J., BARNES AND CARLTON, P.JJ., WESTBROOKS AND TINDELL, JJ., C O N C U R . W I LSON, J ., CONCURS I N P ART A ND IN THE RESULT WITHOUT SEPARATE W RITTEN OPINION. McDONALD, LAWRENCE AND McCARTY, JJ., NOT PARTICIPATING.

3 O n D ecem

b er 1 9 , 2 0 1 7 , th e B illin g ses f iled a m o t io n f

o r p o st-j u d g m en t in terest o n atto rn ey ’s f

ees. T h e W in terses resp o n d ed o n D ec e mb e r 2 8 , 2 0 1 7 , an d o u r s u p rem e co u rt p assed th e ir m o tio n f

o r co n sid e ratio n w ith th e m erits o f th e ap p eal o n F e b ru ary 5 , 2 0 1 8

. We d en y th i s m o tio n b a sed o n o u r d ecisio n to o v erru le th e aw ard o f atto rn ey ’s f ees. M .R .A .P

. 3 7

. 1 2