IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CA-01252-COA KENNETH MOORE AND CAROLYN MOORE APPELLANTS

v. ROY D. MCDONALD, DONNA R. MCDONALD AND RUTH BELTON APPELLEES

DATE OF JUDGMENT: 07/20/2015 TRIAL JUDGE: HON. DAW N H. BEAM COURT FROM W HICH APPEALED: PEARL RIVER COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANTS: JOHN R. REEVES JOHN JUSTIN KING ATTORNEYS FOR APPELLEES: SAMUEL STEVEN MCHARD MARCUS ALAN MCLELLAND NATURE OF THE CASE: CIVIL - REAL PROPERTY TRIAL COURT DISPOSITION: ENTERED JUDGMENT FOR APPELLEES AND AW ARDED COMPENSATORY DAMAGES OF $13,336.55, PUNITIVE DAMAGES OF $10,000, ATTORNEYS’ FEES AND EXPENSES OF $65,177.75, AND EXPERT EXPENSES OF $1,700, AND ENJOINED APPELLANTS FROM TRESPASSING ON APPELLEES’ PROPERTY DISPOSITION: AFFIRMED - 02/07/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. WILSON, J., FOR THE COURT: ¶1. This appeal i nvolves a l o n g - r u n n i n g boundary dispute between neighbors in Pearl River County

. In 2 0 10, this C ourt unanim ously af f irm ed t he judgm e nt of the chancery court establishing the boundary b e tween the property of Roy and D onna McDonald and Donna’sm other, R

uth Belton (collectively , “the McD o n a l d s ”), and the p roperty of Kenneth and Caroly n Moore. Moore v. McDonald , 47 So. 3 d 1 1 8 6 , 1 1 9 0 ( ¶ 1 7 ) (Miss. Ct. App. 2010). The judgm ent also e njoined the Moores f rom d isturbing the M cDonalds’ peacef ul and quiet enjoy m e nt of their property

. In 2013, the Moores willf ully v iolated t h a t injunction by ign o r i n g t h e boundary established by the judgm ent; using a tractor and auger to put f enceposts in the McDonalds’ driveway , which rendered the driveway im passable and f

orced the McDonalds t o install a new gate to access their land f rom another road; tearing down the McDonalds’ f

ence; uprooting or cutting down num erous large crepe m y rtle t r ees on the McDonalds’ property ; littering t he McDonalds’ property with d ebris; a nd thr e a tening, intim idating, a nd bully ing Donna McDonald. The McDonalds f iled a petition f

or contem pt and o ther relief

, and the chancellor f

ound that the Moores were in contem pt and awarded the McDonalds com

pensatory dam ages, attorney s ’ f ees and expenses, and $10,000 in punitive dam ages. ¶2. On appeal, the Moores do not dispute any of the chancellor’s f

i ndings. Nor do they dispute that their conduct was m alicious and outrageous such that it was appropriate f or the court to assess punitive dam ages and attorney s’ f ees. They argue that the chancellor erred by a warding the McDonalds a ttorney s’ f ees i ncurred in c o n n ection with t he Moores’ bankruptcy case and attorney s’ f ees f or the work of m ore t han one lawy er. They also argue
t h a t the punitive award exceeds two percent o f their n et worth, in violation of M ississ i p p i Code Annotated s ection 11-1-65(3) (Rev. 2014). A s w e e xplain below, the chancellor’s award of attorney s’ f

ees was proper, and t he M oores are not entitled to the benef it of the

2statutory cap on punitive dam ages because they waived the i s s u e and f ailed to present any credible evidence of their net worth. Theref ore, we af f irm

. ¶3. The Moores do not challenge any of the chancellor’s f actual f i ndings, and their brief includes virtually no d i s c u s s ion of the f acts or procedural h istory of the case; accordingly ,

we di s c u s s t h e f

acts and proceedings below only to the extent necessary to a ddress the Moores’ three issues on appeal.
DISCUSSION
I. Attorney s ’ Fees Related to the Moores’ Bankruptcy Case ¶4. On M a y 16, 2014, the McDonalds f iled a m otion f

or sum m ary judgm ent supported by exhibits and af

f i davits. Eleven day s later, the Moores f iled f or bankruptcy

. As a result, all p r oceedings in the c hancery court were stay ed and the i m pending trial w a s c a n celled. Counsel f or the McDonalds entered an appearance i n the bankruptcy case and f iled an adversary com plaint to preserve the McDonalds’ claim against the Moores. See 11 U.S.C. § 523(a)(6) (2012) (providing that a debt f or “willf ul and m alicious injury ” to the person or property of another is not dischargeab l e i n b ankruptcy )

. The McDonalds’ counsel also attend e d t h e m eeting o f creditors and f iled a m otion f

or sanctions based on t he Moores’ alleged m isrepresentations in the bankruptcy case. In response to hearing n otices in the McDonalds’ a dversary pr o c e eding, the Moores appeared bef ore t he bankruptcy court and asked that their bankruptcy petition be dism issed. The c o u r t g r a nted their request, which
perm itted the chancery

case to proceed. ¶5. The chancellor f

ound “that the Moores intentionally stalled [ the chancery ] action by

3f

iling [ a petition f

or] bankruptcy w hich was d ism issed af ter considerable tim e a nd ef f ort by [ counsel f

or the M cDonalds].” T h e c h ancellor theref ore f ound that “attorney tim e and
expenses expended

. . . in the Moore bankruptcy case were p roperly incurred o n behalf of the McDonalds and should be awarded as part of the f e es and costs awarded in this case.” On appeal, the Moores do not challenge the chancellor’s f actual basis f

or awardi n g attorney s’ f ees incurred in connection wit h the bankruptcy case. The Moores’ only argum ent is that “[ t] h e P e a r l R iver County Chancery Court was not the appropriate f orum to request attorney s’ f

ees f or w ork related to the bankruptcy .” T hey argue that approxim ately $3,975
i n f e e s t hat the McDonalds incurred related to the bankruptcy proceeding could only b e recovered in the bankruptcy court. ¶6. The Moores’ arg u m e n t i s w i t h o u t me r i t

. The M oores do n ot d ispute that the McDonalds were entitled to an award of a t torney s ’ f ees, and they cite n o a

uthority f or their
argum ent that such f

ees are not recoverable s im ply because they were incurred in a related bankruptcy proceeding. Although not d irectly on point, our Suprem e Court recently held that

a state c ourt can award f

e es incurred in f

ederal court i n connection w ith a m otion to rem and the case to s t a t e c o u r t

. S ee O.D. v. D illard , 177 So. 3d 1 75, 1 89 (¶44) (Miss. 2015). In addition, other courts h a ve held that a state court m a y a wa rd attorney s’ f ees incurred in connection with a related bankruptcy proceeding. See C hinese Y e l low Pages Co. v. Chinese
Overseas M

ktg. Serv. Corp. , 170 Cal. App. 4th 868, 882 ( Cal. Ct. App. 2009); Gill Sav. Ass’n

v. Chair King Inc. , 797 S.W .2d 31, 32 (Tex. 1990). Accordingly , we hold t hat the chancellor did not err by

awarding attorney s’ f

ees related to the bankruptcy case.

4II. Attorney s ’ Fees for Multiple Attorney s

¶7. The Moores next a ssert that the chancellor “erred by assessing attorney s’ f ees . . . that

cover t h e c o s t s of m ore than one attorney .” The Moores argue that Mississippi Suprem e Court precedent “ clearly sets f orth t hat

. . . o n l y a suf

f icient f ee to secure one com

petent attorney m ay b e g ranted.” In f a c t , h o w ever, our Suprem e Court has rejected this very
argum ent. Coleman & Coleman Enters. Inc. v. W aller F uneral Home , 106 So. 3 d 309, 318 (¶27) (Miss. 2012) (“W e d o not interpret [ McKee v. McKee , 418 So. 2 d 764 (Miss. 1982),]

as having held that attorney s’ f ees in Mississippi are lim ited to the f ees o f only one lawy er.”);

see also Upchurch Plumbing I nc.v. Greenwood Utils. Comm’n , 964 So. 2d 1100, 1116 (¶40) (Miss. 2007) (af

f irm ing an award of

attorney s’ f

ees f or the work of

two attorney s); Mabus

v. M abus , 910 So. 2d 486, 490 (¶13) (Miss. 2005) ( sam e). The Moores do not identif y any duplicative tim e e ntrie s o r e x c essive charges. They m a ke only a broad argum ent that f ees f or the work o f m ore than one attorney are not recoverable. T h is argum ent is c ontrary to Suprem e Court precedent and thus without m erit.
III. Punitive Dam ages ¶8. The Moores do not d i s p u t e that their conduct was m alicious such that an award of punitive dam ages was appropriate. Miss. Code Ann. § 11-1-65(1)(a). Their only objection is that the punitive award e xceeds two percent of their net worth i n violation of Mississippi Code Annota t e d section 11-1-65(3). See id. § 11-1-65(3)(a)(vi) (“[ N]o award of punitive dam ages shall exceed

. . . [ t]wo percent (2 % ) o f the def endant’s net worth f

or a def endant with a net worth of Fif

t y Million Dollars ($50,000,000.00) or less.”). On appeal, t hey argue

5that the chancellor w as required to accept at f ace value their own representations of their net worth and cap punitive dam a ges at $1,268. However, in the court below, the Moores f ailed

to raise the issue of the statutory cap on punitive dam ages. T he Moores al s o f a i led to introduce any reliable evidence of their net worth. Accordingly , t hey were not entitled to the benef it of the statutory

cap on punitive dam ages. ¶9. On March 2 0 , 2 0 1 5 , a t t h e conclusion of t he hearing on the McDonalds’ contem pt petition, the chancellor f o und that an award of $10,000 in punitive d a mages would be appropriate. Af

ter that hearing, the Moores, w ho had been p roceeding p ro se, decided to hire

a lawy er. At a hearing on May 8, 2015, the Moores’ recent l y retained counsel argued that the burden was on the McDonalds to pr o v e t h e Moores’ net worth bef ore the court could award a ny am ount of punitive d am a ge s . Indeed, counsel asserted that “[ t]he c a se law is clear” on this point. A t the Moores’ request, the chancellor t hen c ontinued the case to July 7, 2 015, f o r a hearing on attorney s’ f ees and the Moores’ net worth f or purposes of assessing punitive dam ages. ¶10. At the July 7 hearing, counsel f or the Moores acknowledged that his argum ent at the prior hearing was m istaken and that proof of net worth i s not n ecessary to support an award of p unitive dam ages. Counsel then argued that either side could of f er such e vidence, which the c ourt should then consider i n assessing p u n i t i v e dam a g es. However, i n all of the proceedings in t he chancery court, the Moores never —at a ny h e a r i ng or in any pleading—m entioned t he s tatutory cap on punitive dam ages o r argued that p unitive dam ages

m ust b e c apped at two percent of their net worth o r a n y o t h e r num b er. “It is a long6established rule i n this state that a question n ot r aised in the trial court will not be considered

on appeal.” Adams v. Bd. of Sup’rs o f Union Cty. , 177 Miss. 403, 170 So. 684, 685 (1936). “Moreover, it is not suf

f icient to sim

ply m ention or discuss an issue at a hearing. The rule is t hat a ‘trial j udge cannot be put in error on a m atter w hich was never presented to him for decis i o n .’” City o

f Hattiesburg v. Precision Constr. LLC , 192 So. 3d 1 089, 1 093 (¶18) (Miss. Ct. App. 2016) (quoting Methodist Hosps. of Memphis v. Guardianship of Marsh , 518
S o . 2 d 1227, 1228 (Miss. 1988)). Accordingly , the Moores waived any argum ent that the chancellor should have applied the statutory cap. ¶11. Procedural bar notwithstanding, the M oores also f ailed to present evidence suf f icient

to require the chancellor to apply the c ap. The only evidence t hat the Moores introduced of

t h e i r n e t worth was a Unif orm Chancery C ourt Rule 8.05 f inancial statem ent that the y apparently signed on t he m orning of the hearing. The Moores’ 8.05 statem e n t estim ated the value of their hom e and land as $85,000 with a $22,000 mo r t g age balance; claim ed household goods, f

u r n i t u r e , and c lothing w orth $400; disclosed checking accounts with a

com bined balanc e of $325 or less; and listed two vehicles—one worth $5,600 or less with

a $ 5,600 l o a n , a n d the other w orth $1,500 with an $1,800 loan. The Moores gave a total value of their assets of

$0, although the assets listed totaled $63,425. ¶12. The Moores claim ed that their 8.05 statem ent was accurate; h owever, in response to questions by the chancellor, Caroly n Moore a d m itted that the s t atem ent f ailed to account f

or the proceeds of the $ 22,000 m ortgage loan, which they had only recently obtained f ollowing the hearing o n t he McDonalds’ contem pt petition. C aroly

n Moore testif

ied that they had paid

7their new attorney $5,000 and h ad budgeted the rem aining $17,000 f or at t o r n e y s ’ f

ees f or post-trial m otions and appeal. On cross-exam ination, she testif i ed as f ollows: Q. W here is the m oney , Ms. Moore?
A. W ell, I’ve got the m oney . Don’t worry about that.
THE C OURT: W ell, y o u do have t o tell -- I’m worried about that.

W here is the $17,000?
MS. MOORE: M y d a ughter has got it i f y ou want t o know t h e

truth about it. Q. Do y ou not have any control about how that m oney is spent?
A. W ell, it’s not spent y et so -- Q. Okay . But y ou didn’t list that on y our 8.05, did y o u?
A. No, I did not list it. Q. So, in f

a ct, it’s not correct that this f i nancial declarati o n ref

lects every thing that y ou have got?
A. W ell I guess not. ¶13. In a ddition, the transcript of the m eeting of creditors in t he Moores’ bankruptcy case indicates that the Moores f ailed to m ake a f

ull and com

plete disclosure of their assets in their b ankruptcy f

ilings and m ay have understated the value o f their property or o the r a s s e t s . W h en questioned about om i ssions f rom their bankruptcy f

ilings, Kenneth Moore repeatedly ref used to answer or c laim e d that he had f orgotten. T he Moores did not introduce their tax
returns or the loan application that they had subm itted to the Bank of W i ggi n s o n l y weeks earlier. Instead, they

relied solely

on their adm ittedly

inaccurate 8.05 statem ent. ¶14. Having heard the Moores’ testim ony regarding their net worth, the chancellor m ade

8the f

ollowing f

indings and observations: The Court has reviewed the f inancial statem ent of the Moores,

. . . [ a]nd f inds that it is b y their o wn adm ission inaccurate. $17,000 that was borrowed and placed with their daughter is not included on the f inancial statem ent, and that really puts the w hole f inancial s tatem ent i nto question, in a ddition to the w h ole l ine of questioning

. . . of Mr. Moore and his dishonesty wit h t h e Bankruptcy

Court. The Court has n o i dea what the v alue of the i r property is. I don’t believe that the value is what t hey say it is. I don’t b elieve them period. I wish the Appellate C ourt -- because I ’m conf ident that t his will be appealed -- could sit in this c hair and see the s nickering p eriodically o f the Moores, both. I rem em ber m aking a note of that in the initial trial, as well as I have j ust noted f or m y self sm

ug l ooks or at one point , I s a w t h e m - - Mr. and Ms. Moore

-- laughing between the two of them while the Court was going on.
Af ter noting som e additional questions regarding c laim s in the Moores’ 8 .05 statem ent, the chancellor concluded that the M oores’ evidence of their net worth was “ not s uf f i cient f or the Court to disturb its order that the Moores should pay $10,000 in punitive dam ages.” ¶15. The chancellor d id not err by reaf f i rm i ng her $ 10,000 punitive award. “[ P]roof of net worth is n ot required to award punitive dam ages. . . . [ F]or a def endant to m itigate potential punitive dam a ges, it is his responsibility t o present proof of his net worth and f inancial condition.” W

oodkrest Custom Homes Inc. v. C ooper , 108 S o. 3d 460, 469 (¶¶41-42) (Miss.
Ct. App. 2013) (citing C& C T rucking Co. v. Smith , 612 So. 2d 10 9 2 , 1 1 0 2 , 1 105 (Miss. 1992)); accord Coleman & Coleman Enters. , 106 So. 3d at 320 (¶33). F u rtherm ore, the “evidence m

ust be suf f icient to enable the trial court to determ i ne the def endant’s current net worth, a ccording to generally accepted accounting principles.” In re M iss. M edicaid Pharm.
Avera g e Wh o l e s a l e Price Litig. ( “AW P Litig.”) , 1 90 So. 3d 829, 846 ( ¶40) (Miss. 2015) (opinion of Chandler, J., joined by Kitchens and King, JJ., af f irm i ng). T he Moores f

ailed to

9m eet their burden. They p resented only one self -serving and adm ittedly inaccurate docum ent of their own c reation. Clearly , they did not present “ e v i d e nce . . . suf f icient to e nable the [ chancellor] to determ ine [ their] current n et worth , a c c o rding to generally accepted accounting principles.” Id. ¶16. A trial judge is n ot required to apply the punitive dam ages cap when, as in this case, the def e n dant presents absolutely no credible evidence to support its application. Again, the Suprem e Court has m ade c lear that proof of the def endant’s n et wort h “ i s n o t legally
necessary . . . to support an award of punitive dam ages.” Coleman & Coleman Enters. , 106
So. 3d at 320 ( ¶33) ( quoting C& C Trucking , 612 So. 2d at 1105). So if a def endant relies on the cap, i t m

ust present “evidence

. . . suf f icient to e n a b l e t h e trial court t o determ ine [ its]

current net w orth, according to generally accepted accounting p rinciples.” A W P Litig. , 190
So. 3d at 846 (¶40). The Moores f a iled to p rovide evidence suf f icient to enable the trial court
to m a ke s uch a d e t erm ination. Given the Moores’ f ailure of proof

, the chancellor was not required to apply

the statutory

f orm ula based on speculation or guesswork. ¶17. In sum m ary , t he M oores waived appellate review of t h e i r a r g um ent regarding the statutory cap on p u nitive dam ages. In addition, the Moores p rovided n o reliable basis f or the chancellor to apply t he statutory cap. Theref ore, w e af f irm the chancellor’s award o f $10,000 in punitive dam ages. CONCLUSION ¶18. For the f

oregoing reasons, the chancery court d id n ot err by awarding attorney s’ f ees incurred in connection with the Moores’ bankruptcy proceeding, f e es f o r the services of m ore

1 0than one attorney , or $10,000 in punitive dam ages. Accordingly , we af f irm

. ¶19. THE JUDGMENT OF THE PEARL RIVER COUNTY CHANCERY COURT IS AFFIRM E D . A LL COSTS OF THIS A PPEAL A RE ASSESSED TO THE APPELLANTS. LEE, C .J., GRIFFIS, P.J., BARNES, ISHEE, FAIR AND WESTBROOKS, JJ., CONCUR. IRVING, P.J., A ND GREENLEE, J., CONCUR IN PART AND D ISSENT IN PART WITHOUT SEPARATE W R I T T E N OPINION. CARLTON, J., NOT PARTICIPATING.

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