IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CA-00331-COA MARTHA MURRELL APPELLANT

v. JEANETTE BROWN AND WILLIE COLEMAN APPELLEES DATE OF JUDGMENT: 12/11/2014 TRIAL JUDGE: HON. W ILLIAM H. SINGLETARY COURT FROM W HICH APPEALED: HINDS COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: LISA MISHUNE ROSS ATTORNEY FOR APPELLEES: LATRICE W ESTBROOKS NATURE OF THE CASE: CIVIL - PROPERTY DAMAGE TRIAL COURT DISPOSITION: APPELLEES AW ARDED $5,000 IN DAMAGES DISPOSITION: REVERSED AND REMANDED - 08/30/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. BARNES, J., FOR THE COURT: ¶1. O n D e c e m

b e r 11, 2012, Jeanette Brown and W i llie C olem an 1 f iled a c om plai n t a g a i n s t their next-door neighbor, Martha Murrell, f or constructing a f

ence in viol a t i o n o f their subdivision’ s protective covenants. The North C olony subdivision covenants explicitly provide that “[ n]o f

ence shall be constructed n or any o t her structure b e constructed within
25 f eet of f ront property line.” The com plaint alleged that M urrell constructed a f ence in her
f ront y ard within a f

ew f eet of the f ront property line in violation of this covenant, thereby

1 A s B ro w n an d C o lem an , h er d o m e s tic p artn e r , h av e o w n ed th e h o m e sin ce 1 9 8 7 , w e w ill ref

eren ce th e ap p ellees co llectiv ely as “B ro w n ” f

o r th e sak e o f sim

p licity

.dim inishing the value o f Brown’s property and “hindering [ h er] use and enjoy m e n t of [ her] property .” Brown requested that t he f ence be rem oved and that dam ages be awarded in the

am ount of

$30,000, including reasonable attorney ’s f ees and costs. ¶2. The com

plaint was originally f

iled in the County C ourt of H inds County

. On March 6, 2013, Brown m oved f

or a def ault j udgm ent against Murrell, based on Murrell’s f ailure to

answer the com

plaint. The f

o llowing day , Murrell f

iled an answer. On Septem ber 11, 2013, the court granted a m otion f i led by Brown’s attorney to withdraw as the attorney o f record.
Brown subsequently requested that the case be transf erred to c hancery court, arguing that the county c o u r t h a d no subject-m atter jurisdiction. See Miss. Code Ann. § 9-9-21; § 9-9-23 (Rev. 2014). The c ase w as transf erre d t o H i n d s County Chancery Court, First Judicial District, on Septem

ber 27, 2013. ¶3. Af ter a hearing o n Decem

ber 3, 2014, t he chancery court f ound Murrell in violation of the subdivision’s covenants and ordered h er t o r em ove the f ence. T he court f

urther held that because “the def

endant, or agents on her behalf , m utilated the p laintif

f s’ tree a nd cam e

on t o the property o f the plaintif f s to accom

plish such,” B r own was entitled to $ 5 , 0 00 in dam ages. Murrell f

iled a m otion to reconsider, which the chancellor denied. ¶4. On appeal, Murrell claim s that the chancery court abused its discretion in awarding dam ages f

or the tree and that the dam age award of $5,000 was excessive. 2 Although we f ind

no abuse of discretion in a warding dam ages f or t he m utilation of the tree, we do f i nd that the dam age award was excessive in light of t he evidence. Theref ore, we reverse the judgm ent

2 S h e d o es n o t ch allen g e o n ap p eal th e ch an cery co u rt’s o rd er to rem o v e th e f en ce. 2and rem and f or another hearing on the dam ages issue consistent with this opinion.

STANDARD OF REVIEW ¶5. A chancery court’s f indings that are supported by substantial evidence, and which are

not an abuse of d iscretion, m anif estly wrong or clearly erroneous, or based on an application of a n e r r o n e o u s legal s tandard, will not be disturbed on appeal. Estate of Parrott v. McGruder , 820 So. 2d 780, 781 (¶10) (Miss. Ct. App. 2002) (citing McNeil v. Hester, 753 So. 2d 1057, 1063 (¶21) (Miss. 2000)).
DISCUSSION ¶6. In a warding B rown $5,000, the chancery court reasoned that Murrell or som eone on her behalf “m

utilated [ B rown’s tree] by chopping o f f these lim

bs in such a way that I don’t know w hat it would look like w hen it grows back. And [ the person] cam e s e veral f eet over
onto [ Brown’s] property to do it.” 3 Murrell asserts that the chancery court abused its discretion in awarding d a m ages f o r the tree, as Brown f

ailed to ref

erence the tree dam age in the com plaint. ¶7. On July 6, 2012, Brown’s attorney sent a letter to Murrell, noting the violation of the covenants due to the construction of the f ence. The letter f

urther stated:
W h en building y our f

ence[ ,] y ou also cut lim

b s f rom m y c lient’s tree near the side line of y our p roperty

. This tree is on m y client’s property and y ou were not authorized to cut her tree l i mb s . I n a d dition to dam aging m y client’s

3 T h ere w as testim o n y reg ard in g atto r n ey ’s f e e s, b u t th e ch an cello r d id n o t sp ecif ically in clu d e th e se in th e aw ard

. T h e M ississip p i S u p rem e C o u rt h as reco g n ized t h at “if atto r n ey ’s f ees are n o t au t h o rized b y th e co n tract o r b y statu te, th ey are n o t to b e aw ard ed w h en an aw ard o f p u n itiv e d am ag es is n o t p ro p er.” H a m ilto n v. H

o p k in s , 8 3 4 S o . 2 d 6 9 5 , 7 0 0 (¶1 6 ) (M iss. 2 0 0 3 ). T h ere w as n o p ro v isio n f o r t h e reco v e ry o f atto r

n ey ’s f ees u n d er th e p ro tectiv e co v en an ts, an d n o statu to ry law w as cited to th e co u rt b elo w . 3property , the f ence in the f

ront y ard dim inishes the overall value of m y client’s property due to its unsightliness. Although the com

plaint did not ref

erence the tree d am age, pictures of t he tree were entered into evidence at the hearing, showing that the tree’s branches had been c ut at the f e nce line. ¶8. Murrell m a de no objection to the evidence r egarding the cutting of t h e t r e e . Rule 15(b) o f the Mississippi Rules of Civil Procedure provides t hat “[ w]hen issues not raised by the pleadings a r e t ried by expressed or im plied consent of the parties, they shall be treated
in all respects as i f they had been raised in the pleadings.” The Mississippi Suprem e Court has held: “[ I]f evidence is of f e red by a party which i s outside the scope of the pleadings and the other party f

ails to object, the opponent will be considered t o have im pliedly consented

to the issue and the pleading will be am ended accordingly [ .]” Lahmann v. Hallmon , 722 So. 2d 614, 6 19 (¶16) (Miss. 1998) (citing Queen v. Queen, 551 S o. 2d 197, 202 (Miss. 1989));

see also R enfroe v
. Berryhill , 910 So. 2d 624, 629 (¶20) ( Miss. Ct. A p p. 2005) (f i nding that b e c a u s e the def

endant “f ailed to object and

. . . . his actions at t rial indicate[ d] th a t h e d i d recognize the entrance of the issue into the case, . . . the issue of [ the plaintif f ’s] em ploy m ent
status was tried by im

plied consent”) (citing L ahmann, 722 So. 2d at 619 (¶¶15-16); Shipley

v. Ferguson, 638 So. 2 d 1295, 1300 (Miss. 1994)). The cutting of the t ree was also related to the building of

the f e nce in question; the lim

bs were cut right at the f

ence line. ¶9. Murrell claim s that Brown f ailed to provide any proof that Murrell or her agent caused the dam a ge to the tree. Brown asserted at the hearing that Murrell “took a p ower saw and

cut [ her] tree to build the f ence,” but Brown c o nceded that she did n ot personally wi t n e ss Murrell, or any one acting on her behalf , cut the t ree. S he sim

ply testif ied that she “was

4inf

orm ed [ Murrell’s] f

ather h a d cut the t ree.” The chancellor, as the f act-f inder, clearly determ ined that Murrell or her agent cut Brown’s tree. See Brown v. Brown , 142 So. 3d 425,
429 (¶15) (Miss. C t. App. 2013) (“A chancellor sits as a f act-f i nder and, in resolving f

actual disputes, is the s ole judge o f the credibility of witnesses.” (quoting M urphy v. Murphy , 631
So. 2 d 8 1 2 , 8 1 5 (Miss. 1994))). W e f i nd n o error in t he chancery court’s f indings. Circum stantial evidence (lim bs cut at the f

ence l ine) clearly supports the court’s f i nding that

som eone acting on Murrell’s behalf cut the lim

b s during the construction of the f ence. It is not within the prerogative of an appellate court t o re-weigh the evidence and reach an independent decision as to whether the court agrees or disagrees with the chancellor. Rather, on appeal, our authority is lim ited t o i nterceding only to correct w hat we consi d e r t o b e a m anif est error in the chancellor’s decision on the f

acts. Simmons v. Simmons , 724 So. 2d 1054, 1059 (¶16) (Miss. Ct. App. 1998). ¶10. Murrell also contends that the award of $5,000 “f or the m utilation of the t ree did not address the f

air m arket value of the tree in question.” I n h er m otion f or reconsideration, she argued that “[ t]he tree i n question is not a f ruit[ -]bearing t ree and the cost o f com plete lif e

m aturity is no m o re [ than] two hundred and f if t y d ollars.” On a

ppeal, b y way of analogy , she cites Mississippi Code Annotated section 95-5-10(1) (Rev. 2013), which provides:
If any person shall cut down, deaden, destroy or take away any tree without the consent of the owner of s uch t ree, such person shall pay to the owner of such tree a s u m e q u a l to double the f air m arket value of the t ree c ut down, deadened, destroy ed or taken away , together with t h e r easonable cost of ref orestation, which co s t shall not exceed Two Hundred Fif ty Dollars ($250.00) per acre. This is t he “the exclusive rem edy

. . . and shall be in lieu of any o ther com pensatory , punitive

or exem plary dam ages[ .]” Id . Although acknowledging that this case does not involve the

5cutting of tim ber, Murrell argues that this statute “is instructive on the issue of dam ages f or the cutting down of a tree.” Murrell m isreads the statute, as $250 i s the cost of ref orestation,

not the m axim

u m f a ir m arket value of the tree under the statute. Brown does not s pecif ically

a d d r ess this argum ent in her b r ief , m erely asserting that the dam age award “was n o t

m anif estly wrong or an abuse of

discretion.” ¶11. The chancery court properly f ound that Bro w n ’ s t r e e s u f f ered s om e dam age, and Murrell (or her a gent) l ikely trespassed on Brown’s p roperty to cut the tree. However, we f ind the chancellor’s award of $ 5,000 f or the tree dam age was e xcessive a nd not supported by substantial evidence. Brown’s tree was not cut down; the tree’s branches were m erely cut back a t the f

ence line. W hile the pruning was u nsightly , there was no evidence p resented that the tree was perm anently

dam aged. ¶12. In his separate opinion, Judge W ilson contends that t his C ourt should render an award
f or nom inal dam ages of $10, based on Brown’s f ailure to provide any evidenc e o f actual dam ages. W e agree that proof of actual dam a ges m ust be shown in order to r e c o v e r m ore than nom inal dam ages. Chevron Oil Co. v. Snellgrove , 253 Miss. 356, 364, 175 S o. 2d 471, 474 (1965). Actual dam a ges a re def ined as f ollows: “Com

pensation f

or actual injuries or loss[ .] [ A]ctual dam ages f lowing f rom injury [ ,]

. . . whic h are to be distinguished f rom dam ages which are nom inal, e xem plary or punitive[ .] [ A]ctual dam ages are sy nony m ous with com pensatory dam ages.” Gorman v. McMahon , 792 So. 2d 307, 3 16 ( ¶22) (Miss. Ct. App. 2001) (quoti ng Black’s Law Dictionary 35 (6th Ed. 1990)). W hile there was no discussion or evidence presented regarding the tree’s v alue, w e f i nd t hat evidence of actual

6d a ma g e s s uf f ered by Brown w as provided to the court through pictures of the “m utilate d ” tree and could be ascertained by the chancellor. In Muirhead v. Vaughn , 878 So. 2d 1028,
1032 (¶¶13- 1 4 ) ( M i s s. C t. App. 2004), W illiam Muirhead provided the chancery court photographs showing his land had been cleared without h i s p e r mi s sion, and this Court concl u d e d that those photographs constituted proof of a ctual dam ages. W e reversed and

rem anded f

or dam a ges, noting “once the chancellor was presented clear evidence that Muirhead owned the p roperty and that the trees had been cut without h i s consent, the chancellor was obliged under t he circum s tances to award dam ages in som e f orm .” See also Chevron O il Co. , 253 Miss. at 367, 175 So. 2d a t 475 (f inding a jury instruction f or nom inal dam ages should not have been granted and rem and i n g for a determ i nation of dam ages, noting that although “dam ages were n ot shown with reasonable certainty [ ,]

. . . . [ i]t [ was] adm itted that there was actual dam age t o the lan d ” )

. Accordingly , we reverse the judgm ent and

rem and f or a hearing on the dam a ges. ¶13. THE J U D G M E NT OF THE CHANCERY COURT OF HINDS C OUNTY, FIRST JUDICIAL DISTRICT, IS REVERSED, A N D T HIS C ASE IS R EMANDED FOR FURTHER PROCEE DINGS CONSISTENT W ITH T HIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES. LEE, C .J., IRVING, P.J., ISHEE, FAIR AND G REENLEE, JJ., CONCUR. WILSON, J. CONCURS IN PART AND D I S S E N TS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J; CARLTON, J., JOINS IN PART. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN O PINION. JAMES, J., NOT PARTICIPATING. WILSON, J., CONCURRING IN PART AND DISSENTING IN PART: ¶14. I a gree that there was s om e evidence to support a f i n d i n g that M urrell or som eone acting on her behalf com m itted a slight trespass by cutting tree branches on Brown’s

7property

. Murrell “ had the r ight at all tim es to

. . . rem ove s o m u ch of t he [ branches] as overhung [ her] land.” Rogers v. Ford , 57 So. 3 d 6 8 1 , 683 (¶7) ( Miss. Ct. App. 2011) (quoting Griefield v
. G ibralter Fire & Marine Ins. , 199 M iss. 1 75, 181, 24 So. 2 d 356, 358 (1946)); accord Buckingh a m v
. Elliott , 62 M iss. 296, 300 (1884) (holding that i f a tree’s branches “overhang a neighbor’s s oil,” “[ t]he neighbor has a rem e dy in such case by clipping the ove r h a n g i ng branches”). But Murrell’s right to self -help stopped at the property line, 4
and a photograph—entered into e vidence as T r ial Exhibit 8 and included as a n appendix to this o pinion—appears t o show that the tree was cut bey ond the property line by a m atter of inches or m a y

be as m uch as a couple of

f eet. ¶15. However, as the m ajority recognizes, Brown presented absolutely no evidence of the
tree’s v alue or that it w as perm anently dam aged. Ante at (¶11). In f act, Brown did not even establish what kind of tree is at issue in this appeal. 5 I t was Brown’ s b u rden to prove her

4 S ee, e .g
. , M

eln ick v. C .S .X

. C o rp
. , 5 4 0 A .2 d 1 1 3 3 , 1 1 3 5 ( M d

. 1 9 8 8 ) (“With reg a rd to self -h elp , th e lan d o w n er is g en erally lim ited to cu ttin g b ack g ro w th to th e p ro p erty lin e; h e m ay n o t e n ter th e ad

j o in in g lan d o w n er’s p r o p e rty to ch o p d o w n a tree o r cu t b ack g ro w th w i th o u t h is n eig h b o r’s co n sen t.”); Lane v. W .J. Curry & Sons , 92 S.W .3d 355, 360 (Tenn. 2002) (“The courts unif

orm ly hold that a landowner h as a rem e dy of self -help, m eaning that the l a n d owner has the right to cut encroaching branches, roots, and other g rowth to the property line, but m ay not enter the adjoining property to chop d own the t ree or p lant or cut back growth without the adjoining property owner’s consent.”); Alvarez v. Katz , 124 A.3d 839, 844 (Vt. 2015) (“It is clear

. . . that t he ri g h t to self -help extends only to the property line. Under the se l f

- help r em edy , a landowner subject t o e ncroachm e nt m ay not cross the property l ine and cut or rem ove that part of a tree or h edge which h as not encroach e d

. ”); Brewer v
. Dick Lavy Farms L LC , No. 2015–CA–7, 2016 W L 3461100, at *15 (Oh. Ct. App. June 2 4, 2016) (Hall, J., concurring) (“[ A landowner] m ay cut, m utilate, d ecim ate, pulverize or obliterate branches or roots which inf ringe upon her property

f rom a neighbor’s trees or plants. . . . W hat she cannot do is intrude into the neighbor’s property in doing so.”).

5 In a p o st-trial m o tio n , M u rrell su b m itted a r ep o rt f ro m D o n n a B eliech , a certif ied arb o rist an d A r ea H o rticu ltu re A g e n t f o r th e M ississip p i S tate U n iv ersity E x ten sio n S erv ice. 8d a ma g e s, and having f ailed to present any evidence of actual dam ages, she should not b e given anothe r o pportunity to do s o. “A litigant is e n titled to b ut one bite at the dam ages apple.

. . . I know o f no law directing that a plaintif f who m isses with his f

i rst s h ot at proving dam ages should be given a second shot.” W h ittington v. W

h ittington , 535 So. 2d 573, 588
n.1 (Miss. 1988) (Robertson, J ., concurring), maj. op. overruled on other grounds by C & C
Tru c k i n g Co. v. S

mith , 612 So. 2d 1092 (Miss. 1992). Accordingly , I disagree with the

m ajority ’s decision to “rem and f or a hearing on the dam ages.” A nte a t (¶12). ¶16. Because Brown f

ailed to prove any

dam ages, we should sim ply bring the case to an end by rendering judgm ent in f avor of Brown f

or nom inal dam ages only

. T h e S uprem e Court h a s h e l d t h a t ten d ollars i s an a ppropriate am ount. In W hitten v. C

ox , 799 So. 2d 1 (Miss. 2000), the Court reasoned as f ollows: [ W ]here there i s a trespass to land , t h e landowner has a right t o at least n o minal dam ages. The jury ’s ref usal to award nom inal dam ages f o r t h e trespass w as in error, but s ince there w e r e n o actual dam ages resulting f rom the trespass, t his error is of little consequ e nce. If this Court reversed and rem anded on this i ssue, [ the landowner] could o nly receive nom inal dam a ges. Instead, this error will be cured by this Court reversing and rendering an award of nom inal dam ages w ithout the necessity of rem and or retrial. Accordingly , we reverse and r ender as t o the trespass claim only and award [ t he landowner] nom inal dam a ges in the total am ount of $10.00 . . . . Id. at 1 8 (¶47) (citation om itt e d ) ; accord R eeves v. Meridian S. Ry. LLC , 61 So. 3d 964,
968-69 ( ¶¶22-23) (Miss. Ct. App. 2011) ( rendering judgm e n t f or $ 10 nom inal dam ages where t here was n o proof that trespass caused any actual dam ages); Gaw v. Seldon , 85 So.

B e liech stated t h a t “[ t] h e lan d s cap e p lan t in q u estio n is a m a tu re V ari e g a t e d W a x L eaf L i g u stru m , L i

g u stru m ja

p o n icu m ,” w h ich s h e ch aracterized as a “sh ru b ” rath er th an a tree. B e liech co n clu d ed th at th ere w a s n o p erm an en t d am ag e to th e sh r u b an d th at, ev en if it h ad b een d estro y ed co m

p letely , its rep lacem en t co st w as b etw een $ 1 2 5 an d $ 2 8 7 .5 0

.

93d 312, 318 (¶¶21-24) (Miss. Ct. App. 2012) (sam e). W e should do the sam e in this case.

¶17. In sum m ary , there was som e evidence to support a f inding that Murrell exceeded her right to self

-help and intruded upon Brown’s property , but Brown p resented no evidence to

m eet her burden of p roving that she suf f ered dam ages as a result. H a v ing f ailed t o do so, she is n ot entitled to a second c hance to prove com pensatory dam ages. Theref ore, rather than

rem and the case, we should r ender j udgm e n t f or nom inal dam ages o n l y . Accordingly , I respectf ully concur in part and dissent in part. GRIFFIS, P.J., J O I N S T H I S O P I N I O N ; C A R L T O N , J . , J O I N S T H I S OPINION IN PART.

1 0Appendix

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