IN THE SUPREME COURT OF MISSISSIPPI NO. 2017-CA-01762-SCT MISSISSIPPI SAND SOLUTIONS, LLC

v. BESSIE OTIS, SHERRY FISHER, CONNIE FISHER WALKER, DENNIS ROY HOLMES, ROBBIE JEAN HOLMES WARE, GREG FISHER AND MAGGIE FISHER

DATE OF JUDGMENT: 12/04/2017 TRIAL JUDGE: HON. JANE R. W EATHERSBY TRIAL COURT ATTORNEYS: KEVIN EARL GAY KENNETH B. RECTOR DANA E. KELLY COURT FROM W HICH APPEALED: ATTORNEY FOR APPELLANT W A RREN COUNTY CHANCERY COURT KENNETH B. RECTOR ATTORNEY FOR APPELLEES: KEVIN EARL GAY NATURE OF THE CASE: CIVIL - REAL PROPERTY DISPOSITION: REVERSED AND REMANDED - 08/08/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE KING, P.J., MAX WELL AND GRIFFIS, JJ. KING, PRESIDING JUSTICE, FOR THE COURT: ¶1. A group of heirs (the Fisher heirs) who own what is known as the Fisher Property sued
M i s sissippi Sand Solutions f or trespass, a n d f

iled an Em ergency Motion f or Tem porar y Res t r a i n i ng Order and/or Prelim inary Injunction. A f ter the hearing on the em ergency

m otion, the chancery

court i ssued a decree on the m erits of the trespass com

plaint in f avor of the Fisher heirs and awarded t h e F isher h eirs dam ages and attorney s’ f ees. BecauseMississippi Sand Solutions did not receive notice that the case was being tried or heard on

the m erits, this Court reverses t he chancery c o u r t ’ s d e cree on the m erits and rem ands f or f urther proceedings.
FACTS AND PROCEDURAL HISTORY ¶2. Mississippi Sand Solutions (MSS) and its predecessors hauled gravel and sand of f its property via a private road on property belonging to the Fishe r h e i r s. At som e point, any
agreem ent between the parties ended, and M SS sued in chancery c ourt, a sking the chancery
court to f i nd that i t had an easem ent over the Fisher heirs’ property

. The chancery c ourt ruled that MSS did not have an easem ent o v e r t h e Fisher heirs’ property

. MSS appealed that decision, and this Court unanim ously af f irm ed the c hancery court’s ruling that MSS did not have an easem ent over the Fisher heirs’ property

. Miss. Sand Sols. v . Otis , 248 So. 3d 813 (Miss. 2 018). Additionally , s ettlem ent negotiations b etween the parties broke down, and the Fisher h e irs dem anded that MSS c ease and d esist t raversing their property

. The Fisher heirs placed “no trespassing” signs on their property and put u p a gate. MSS ignored the signs and
tore down the gate. The Fisher heirs reported that MSS was dam aging t h e i r p r o p e r t y by dum ping trash and gravel o n

the property

and in waterway s on the property . Additionally , the Fisher heirs were cited by t he Mississippi D epartm ent of Environm ental Quality f or the dum ping a nd burning of household waste on the F isher property and were required to clean the site within thirty day s. One of the F isher heirs testif ied that they had t o pay f

or the clean
up. ¶3. The Fisher heirs sued MSS in the chancery court on August 1 , 2017, alleging trespass.

2On August 4, 2017, the Fisher heirs f iled an Em ergency Motion f or Tem porary Restraining Order and asked that a hearin g b e s e t f or a f inal and perm anent injunction as soon as possible, pursuant to Mississippi Rule of Civil Procedure 65. On August 9, 2017, the Fisher
h e i r s f i led a Notice o f Hearing, indicating that the hearing on their Em ergency Motion f or Tem porary Restraining Order and/or f or Prelim inary Injunction would be held on August 22, 2017. The hearing on the em ergency m otion began on August 23, 2017. That hearing was continued until October 16, 2 017. MSS m eanwhile f iled its answer to an am ended com plaint

on October 13, 2017. 1 In it, M SS ar g u e d that the chancery c ourt l acked s ubject m atter jurisdiction over t he claim s f or trespass and dam ages. It requested that th e chancery court transf er the case to circuit c ourt f or a j ury trial. At the beginning of the October hearing, the trial court specif

ically s tated t hat “ [ t]his is a continuation of the f irst hearing that we had on W e dnesday , August t he 23rd

. . . .” At the end of the continued h eari n g , the F isher heirs’ counsel requested dam a ges f or trespass and attorney s’ f ees. Counsel f

or MSS responded,
Your Honor, ma y

b e I ’ m c o n f

u s e d , a n d I have been m any tim es, but m y understanding is today that the only thing w e’re here o n is the sam e thing we were here on two m onths ago and that’s t he m otion f or prelim inary injunctive relief in this case. The c ase on the m erits, I assum e, will be tried at som e other tim e which would include whatever c laim he’ s t r y i ng to m ake f or attorney [ sic] f ees o r dam ages. . . . [ T]o clarif y , Your Honor, and, if I’m w rong, we need t o get it c orrected, but m y understanding is that this was set on an em ergency b asis, a s I rem em ber, without notice, basically , and we appeared at that t im e f

or that hearing on the r e q u e s t f o r, I believe, it w as c a lled an em ergency tem

porary restraining ord e r and a prelim inary injunction. So, counsel’s assertion that he’s entitled t o attorney ’ s f e es and dam a g es and all that sort of

thing is not bef

ore the court. Both parties then a rgued t he prelim inary injunction issue, and the court took it under

1 T h e F ish er h e irs f

iled an am en d ed c o m

p lain t o n A u g u st 2 4 , 2 0 1 7

. 3advisem ent.

¶4. On Novem

ber 15, 2017, the Fisher heirs f iled a Motion f

or Trial Setting, asking the chancery court to set a trial and to hold a h ear i n g t o d e t e r mi n e a trial date and to consider discovery and alternate dispute resolutions. On D ecem ber 4, 2017, the chancery c ourt f iled its decree, stating that “ [ t]his cause cam e to be heard upo n Com plaint f or Trespass,
Pre l i mi n a r y Injunction a nd Dam age to Real Property and R esponse thereto by Mississippi Sand Solutions

. . . .” T he court stated t hat it considered “the p leadings, heard and considered the evidence a dduced, prof f ered and s u b mi t t e d, h eard and c o nsidered the argum ents and
statem ents of counsel

. . . . ” The chancery court f ound that the requirem e n t s f or a prelim inary injunction w ere n ot m et, and then i t ruled on the m erits of t he trespass com plaint
in f a vor of the Fisher heirs. It awarded them dam ages and attorney s’ f ees. ¶5. MSS appeals, arguing that it was deprived of due process, given that t he court issued

a f inal ruling o n the m erits af ter a hearing o n the em ergency prelim inary injunction without allowing MSS to def

e n d those claim s af

t er having an opportunity t o engage in d iscovery

. It also argues that jurisdiction l ies with the circuit, not the c h ancery court, that the chancellor erred in awarding $30,500 in trespass dam ages, a nd t hat the chancellor erred in awarding attorney s’ f

ees. ANALYSIS 1. Standard of Review ¶6. T h i s C o u r t r e v e r s e s a chancery court on its f indings of f

a ct only when they a r e

m anif estly wrong, clearly e rroneous, or when that c o urt applied an erroneous legal standard.

4Tucker v. Prisock , 791 So. 2d 190, 192 (Miss. 2001). This Court reviews issues of law de

novo. I d . 2. Due Process ¶7. MSS received notice only of the hearing on the em e r gency m o tion. No hearing w a s noticed f or a dispositive f

i n a l j u d gm e nt o n t he m erits. A m otion f or judgm ent on the pleadings, which the Fisher heirs did not m ake, requires a hearing. Miss. R. Civ. P. 12(d). Likewise, MSS m ade a m otion regarding lack of subject m atter jurisdiction, which the trial
court was required to hear and did not. Id. A m otion f or sum m ary judgm ent, w hich was also
not m ade, likewise r e q u i r e s n o t i c e and a hearing. Miss. R

. Civ. P. 56(c). A t rial setting requires both notice and am ple tim e f or discovery . Miss. R. Civ. P. 40. ¶8. Further, the lack of f air notice deprived MSS of the potential opportunity to engage in discovery

. Miss. R. Civ. P. 26. MSS received no n otice that the com plaint w as b eing tried

on the m erits, and it had no m eaningf ul o pportunity to develop and introduce evidence on the

m erits or on dam ages. “‘Even t hough the r esult m ight be the sam e . . . every . . . def endant

or r espondent has the right to notice in a court proceeding involving him , and to be present, and to i n t r o duce evidence at t he hearing.’ W here that valuable right is denied, there m ust f ollow a reversal.” Johnson v. Weston Lum ber & Bldg. Supply C o. , 566 S o. 2d 466, 468 (Miss. 1990) (quoting Edwards v. Jam es , 453 So. 2d 684, 686 (Miss. 1984)). Because MSS received no notic e t h a t the case was being heard or t ried on the m erits, this Court reverses and rem ands the case. 2

2 T h e reco rd b ef

o re th i s C o u rt in d icates th at M S S w a s f lo u tin g th e p rev io u s ch an cery co u rt o rd er, as w e ll as t h e p ro p erty rig h ts o f th e F i sh er h eirs. A lth o u g h M S S is en titled to 53. Jurisdiction

¶9. The i ssue of s u b

j e c t ma t t e r j u r i s d i c tion was raised bef ore, but not heard by , the chancery court. The chancery court opted to retain jurisdiction in a short statem ent that it did
not want another court to have to rehear all the e v idence. It never actually heard the m otion, however. Because the argum ents and relevant evidence are undeveloped, we decline to rule

on this issue. Upon rem and, MSS m a y n otice its m otion(s) regarding subject m atter jurisdiction f

or hearing, so that the chancery court m ay determ ine whether i t has subject

m atter jurisdiction, or whether it should transf e r the case to circuit court.
4. Dam ages and Attorneys’ Fees ¶10. Because the Court reverses the chancery court’s d ecree in f ull, including its award of dam ages and a ttorney s’ f

ees, a nd rem ands f

or proper disposal of t he c ase on the m erits, these issues are m oot. 3
CONCLUSION ¶11. MSS did not receive n otice that the com plaint against it was being heard o r tried on the m erits. The chancery court disposed of the ca s e o n t h e m e r i t s a f ter only a prelim inary injunction hearing. MSS h as a r ight to be heard on the m erits, and, accordingly , this Court

n o tice an d to b e h eard o n t h e m erits, if M S S is still u sin g th e F ish er h eirs’ p ro p erty w ith o u t p erm i ssio n , it is also f

lo u tin g th is C o u rt’s p rev io u s u n an im o u s d ecisio n .

3 T h e ch an c ery c o u rt stated th at it “is aw ar e t h a t v e r y little actu al d am ag e h as b een d o n e t o t h e p r o p erty in q u estio n . . . .” H o w ev e r , th e F i sh e r h eirs d id n o t h av e an o p p o rtu n ity to p resen t ev id en ce o f d am ag es. In d eed , th e testim o n y in d icated th at th e ro ad h ad b een d am ag e d a n d t h at t h e F ish e r h eirs h ad to p ay s o m eo n e t o clean u p af ter M S S ’s alleg ed d u m

p in g . T estim o n y also in d icated th at w aterw ay s w ere d u m p e d in an d p o ten tially d am ag ed

. 6reverses the chancery court’s judgm ent and rem ands the case to the c h ancery court f or f urther proceedings consistent with this opinion. ¶ 12. REVERSED AND REMANDED.
RANDOL P H, C.J., KITCHENS, P.J., COLEMAN, MAX WELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.

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