IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CA-01559-COA ESTATE OF FRANCES CHRISTINE JONES, BY AND THROUGH THE DULY APPOINTED AND QUALIFIED EX ECUTOR SIDNEY JONES; SIDNEY JONES, HEIR AT LAW OF FRANCES CHRISTINE JONES, DECEDENT; LINDRITH JONES THOMPSON, HEIR AT LAW OF FRANCES CHRISTINE JONES, DECEDENT; AND JEFFREY PATRICK JONES, TRUSTEE OF THE LINDRITH JONES THOMPSON TESTAMENTARY TRUST, AN UNFUNDED TESTAMENTARY TRUST ESTABLISHED PURSUANT TO THE LAST WILL AND TESTAMENT OF FRANCES CHRISTINE JONES, DECEASED APPELLANTS/ CROSS-APPELLEES

v. IROZ ENELL PRUITT APPELLEE/ CROSS-APPELLANT AND BOCEE PRUITT APPELLEE DATE OF JUDGMENT: 12/31/2014 TRIAL JUDGE: HON. JANACE HARVEY-GOREE COURT FROM W HICH APPEALED: MADISON COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANTS: PAMELA L. HANCOCK GLENN S. SW ARTZFAGER ATTORNEYS FOR APPELLEES: C.R. MONTGOMERY JOHN PRINCE MARTIN NATURE OF THE CASE: CIVIL - REAL PROPERTY DISPOSITION: AFFIRMED - 09/26/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., FAIR AND WILSON, JJ.IRVING, P.J., FOR THE COURT:

¶1. Sidney Jones, Jef f rey Patrick Jones, and Lindrith Jones Thom pson—hereinaf

ter collectively ref

erred to as the J o neses—brought a claim against Irozenell Pruitt and Bocee Pruitt—hereinaf

ter c ollectively ref

erred to as the Pruitts, a s to the dire c t a p p e a l —m aintaining that t hey had acquired ownership of two segm ents of the Pruitts’ l and through either adverse
p o s s e s sion or a prescriptive easem ent. The Pruitts responded with a counterclaim f or ejectm ent, and sought dam ages f or trespass and attorney s’ f ees. C hancellor Janace Harvey

Goree of the Chancery Court of Madison County denied the J o neses’ claim s, and granted the Pruitts’ claim s f

or ejectm ent and attorney s ’ f ees. The Joneses f

i led a mo t i o n f

or reconsideration or a n ew trial, and Chancellor Robert C lark m odif ied the judgm ent entered by Chancellor Harvey -Goree to eli mi n a t e t h e award of attorney s’ f e es. T he Joneses have appealed, m aintaining that the chancery court erred in (1) deny ing their claim s with respect
to t he two segm ents of the Pruitts’ land, and ( 2) excluding e xpert testim ony regarding a
survey of one segm ent o f t he disputed land, which was prepared by a now-deceased survey or. Irozenell P ruitt f

iled a cross-appeal, 1 m aintaining that the chancery court e rred in deny ing attorney s’ f

ees. W e af

f irm , both on direct appeal and cross-appeal.

FACTS ¶2. Frances Christine Jones and her husband bought a 206-acre plot of land in Madison County , M ississippi, in the 1 950s. Af ter her husband died in 1 968, Frances h eld t itle to the land until she died i n 1 993. Frances’s will specif ied that the land be lef

t in equal parts to her

1 B o cee d id n o t j o in Iro zen ell in th e cro ss-ap p e a l. 2three children, Sidney , Jef f rey , a nd Lindrith. 2 Although they did n ot actually hold r ecord title
to the land until Frances’s estate was closed in 2000, the Joneses f requently used the land f

or f arm ing and hunting f

rom the 1970s until the 1 990s. The Joneses also allowed others to f a rm

or h unt on the l and; at t rial, several witnesses testif ied to having u tilized the property in that

m anner. ¶3. Bocee Pruitt inherited the property adjacent to the Joneses’ property in 1 966. Bocee transf erred title t o her daughter, Irozenell, on O ctober 4, 2011. The Pruitts did not live on
t h e l a n d , and visited inf requently

. The Joneses and the Pruitts m aintained a peacef u l relationship prior to the current dispute. ¶4. At trial, Sidney testif i ed t hat he, his f

am ily , and their guests have historically accessed the J oneses’ property through a 455

- f o o t s e c t ion of r oad—hereinaf ter ref erred to as the “roadway ”—connecting their property to Patrick Road, a public road. Sidney testif ied that the road existed at the tim e h i s parents bought the property i n the 1950s; however, i t has since been w idened a nd im

p roved upon. In or about 1974, S idney installed a g ate at t he roadway ’s
entrance at Patrick R oad. Sidney testif ied that he never asked f

or any one’s perm ission to put the gate up, and that no one e ver told him that he could n ot. S idney replaced t hat gate with

a larger one approxim ately twenty y ears later. Both the old gate a nd the new gate h ad locks

on them , and S idney testif ied that “[ o]nly t he people that f arm the land and people that had

2 O f n o te is th e f

act t h at L in d rith w as g iv en title to th e lan d su b j ect to a tru s t, o f w h ich Jef f rey w a s m ad e th e tru stee. A t th e tim e o f t rial, th e reco rd o w n ers o f t h e p ro p erty w ere S id n ey , Jef

f rey , an d J ef

f rey as th e tru stee f

o r L in d rith

. H o w ev er, as th is f act h a s n o b earin g o n th e o u t co m e o f th e t rial, w e treat L in d r ith as if sh e o w n ed an eq u al sh a re o f t h e p ro p erty alo n g w ith b o t h o f

h er b r o th ers. 3a k ey to the gate, m ostly f am ily m em

bers,” could access the roadway

. Sidney testif ied that the only co n v ersation he had with Bocee regarding his placem ent of a gate on that road occurred f

ive t o t e n y e a r s prior to trial, w hen Bocee asked him f or a key to the new gate. Sidney testif

ied that he told her “ that if it was necessary f or them to g et to their p lace through those gates, [ he] would gladly give her a key , but it was not necessary . They had their own entrance.” Sidney f

urther testif

ied that he “ alway s f

elt l ike [ he] u sed [ the r oadway ] as [ his] own,” and that neither Bocee nor I rozenell ever conf ronted him as to h is use of the roadway , prior to October 8, 2011. ¶5. In contrast, Bocee testif ied at trial that, b ef

ore transf erring title t o Irozenell, she “perm it t e d Sidney Jones to h u nt on [ her] land, to put up a gate to protect [ them ], to keep people f rom just driving in d oing what e v e r t h e y wanted to do,” and t hat “Sidney Jones
prom ised [ her] that if [ s h e] would let him c o ntinue to u se the land, he would be [ her] ey es because [ she] was out of town and he would watch out. And, if any thing illegal occurred out the r e , h e would call [ her].” Bocee f urther testif

ied that she had expressly given Sidney
perm ission to erect the gate on the roadway , af t er he called her and asked to rem ove the old gate currently in place a nd r eplace it with a new one. H owever, Bocee testif ied that although

s h e r e q u e s ted a key t o the n ew gate, Sidney never gave h er one. Bocee also testif ied t ha t Sidney had not kept his prom i se to keep the roadway m aintained, a n d t h at it h ad becom e
overgrown and had developed deep holes a s a result of his use o f heavy m a c hinery o n the road. ¶6. Both Sidney and Jef f rey t estif ied at trial that their property is landlocked, and that the

4surrounding pro p e r t ies are owned by m ultiple n eighbors. J ef

f r ey t estif ied that, t o create a

new access point, the Joneses would still have to obtain a n easem e nt allowing a c cess over

one of th o s e p r o p e r t i es. Furtherm ore, building a road pursuant to such a new easem ent would n o t b e f

e a s ible, as a n e w road would be several m iles long and would h ave to run through plow f

ields and ditches. In response, Irozenell testif i ed t hat she n ever s o ught to eject the J oneses f

rom t he r oadway ; rather, s he wanted them t o rem ove their lock f rom t he gate at the roadway ’s entrance. ¶7. Additionally , S idney te s t i f i e d t h at, since 1994, when he a nd his f a m ily hunted the land, they would cam

p in an a rea on the very edge of their property , adjacent to a barbed-wire f ence. This barbed-wire f

e nce served as the boundary between the Joneses’ property and the Pruitts’. The Joneses built an a ctual “deer[

- ]cam p structure” in t he cam

p a r ea , w h ich

con s i s t ed of a 750-square-f oot wooden shelter, of s orts. Sidney testif i ed that this construction took place in 2001, while Jef f rey test i f i e d t h at it took place “in late [ 19]99, 2000, 2001.” A t s om e point—although the Joneses and Pruitts dif f er in t heir a ccounts as to when—the struct u r e w a s enlarged to the extent that it crossed the barbed-wire f ence and encroached onto the Pruitts’ property

. Sidney testif ied that n o o ne ever gave him perm ission
to cross the barbed-wire f e nce. However, Irozenell testif i e d t h a t a s urvey was c onducted

som etim e around 2004, which did not ref lect t hat t he deer-cam

p structure w as encroaching
onto their property

. I r o z e n e l l f urther testif

ied that she visited the land in 2004 during a f am ily reunion, and that the structure was not encroaching onto her land at that tim e. ¶8. At som e p oint, Bocee asked Sidn e y to r em ove the deer-cam p structure f

rom her

5property

. Sidney agreed t o do s o , but ultim ately never did. On O ctobe r 8 , 2011, Bocee,

Ironezell, and B ocee’s sister delivered an eviction notice dem anding that Sidney “rem ove all buildings, m aterials, and personal property ” f r om the Pruitts’ land, and that Sidney “rem ove [ the] lock f

r om the gate e ntering the property , ” w i t h i n t h e next thirty day s. Sidney agreed
to com ply but r e q u e s t e d an extension of the t im e p eriod so that h e could harvest his crop bef ore w i nter. The Pruitts orally agreed to extend the t hirty -day deadline to the beginning of the next y ear (2012). However, the Joneses ul t i m a t e ly ref used to com

p ly and, as stated

a b ove, f iled their com

plaint o n Decem

ber 29, 2011. The Pruitts f iled their answer an d counterclaim

. ¶9. The Chancery Court o f Madison C o u n ty , Chancellor Harvey -Goree presiding,

c o nducted a two-day trial. During trial, the Joneses presented Kelly Blake M en d r o p , w h o

was adm itted as an expert in civil roadway design and construction. Mendrop testif ied that he had p repared a report using his personal observations of the property , aerial photographs depicting the property , a nd a survey that had been previously p repared b y “Mr. M cDonald.” 3 Mendrop testif

i e d that he used M r. McDonald’s s urvey as a “ basis” f or when he looked at the property , but that he “did not review property lines or apparent property lines,” nor did he conduct “a d e tailed review” of the survey . At this p oint, c ounsel f or the P ruitts objected

on the basis that Mr. M cDonald was deceased, and that Mendrop was theref ore barred f

rom testif y ing as to “ the c redibility of the survey and whether or not it was done accurately .” The
court agreed, f

inding that Mendrop could not t estif y a s to the truth and veracity of the survey .

3 “M r. M cD o n ald [ ’s] ” f

u l l n am e w as n o t stated a t t rial; h o w ev er, in h is actu al rep o rt, M en d ro p w ro te th at th e su rv ey w as co n d u cted b y

“T E M c D o n ald .” 6Mendrop continued his testim ony , and counsel f o r the Joneses asked Mendrop if there were
any p oints on the survey that he verif ied or identif

ied when he m ade his p ersonal v isit to the property i n q uestion. Mendrop began describing the property as it was depicted on the
survey , along with his personal observation o f t h e p r o p e rty

. At this point, counsel f or the Pruitts again objected on the basis that Mendrop could testif y f r om his personal observations of the p r operty , b ut not in r ef e r e nce t o the survey . The survey was n ot m entioned again during the rem ainder of

Mendrop’s testim ony . ¶10. On January 5 , 2015, 4 the court f i led its “Findings of Fact, Conclusion s of Law, and Judgm ent,” in which it denied the Joneses’ claim s f or adverse p ossession or a prescriptive

easem ent as to t he r oadway and denied the Joneses’ claim f or adverse possession as to the deer-cam p structure. The court instructed the Joneses t o r em ove the lock f rom the gate on the roadway within thirty day s. Further, the c ourt granted the counterclaim f or ejectm ent in part, ordering the J o neses t o rem ove their deer-cam p structure f

rom the Pruitts’ property by February 1, 2015. The chancery court also granted t he P ruitts’ request f o r $12,000 in attorney s’ f

ees. The c ourt denied the Pruitts’ claim f or dam ages resulting f

rom the alleged trespass. ¶11. The Joneses f

iled a m o t i o n f

or reconsideration or, in the alternative, a n ew trial. C h ancellor Robert G. C lark III—who succeeded C hancellor Harvey -Goree f o llowing h e r retirem ent f

rom the bench—heard the m otion and i s s ued an o rder on S eptem ber 16, 2015,

4 Wh ile th e c h an c ery

co u rt d ated its j u d g m en t as D ecem b er 3 1 , 2 0 1 4 , t h e j u d g m en t w a s n o t electro n ically f

iled u n til Jan u ary 5 , 2 0 1 5 , an d w a s n o t f ile-stam p ed u n t il O cto b er 1 6 , 2 0 1 5

. 7in which he upheld a ll of C hancellor Harvey

- G o r e e’s f i ndings except f

or the award of attorney s’ f

ees to the Pruitts, which he set aside. The Joneses f iled a tim ely notice of appeal on October 14, 2015, and Irozenell f iled a notice of

cross-appeal on October 19, 2015. DISCUSSION ¶12. W h en r e v i e w i n g a chancellor’s judgm ent, w e will apply the f ollowing standard of review: On appeal, this Court will not reverse a chancery court’s f indings, be they

of ultim ate f

act or o f evidentiary f

act, where there is su b stantial evidence supporting those f

in d i n g s . W e only disturb a c hancellor’s f indings of f

act w h e r e the chancellor abused his discretion, w as m anif estly wrong or clear l y erroneous, or applied an erroneous legal s tandard. W e review questions of law de novo. McDowell v. Z

ion Baptist C

hurch , 203 So. 3d 676, 681 (¶15) (Miss. Ct. App. 2 016) (citation

om itted). A. The Joneses’ Appeal 1. W hether t he chancery court erred in d e n y i ng the Joneses’ claims for adverse possession or a prescriptive easement ¶13. The J oneses argue that the chancery court erred in deny i ng t h e i r claim s f o r adverse possession or a p rescriptive easem ent with respect to the 455-f oot roadway , a nd f

or adverse possession with respect to t he deer-cam p structure. Mississippi Code Annotated section 15- 1-13(1) (Rev. 2012) provides:
Ten (10) y e ars’ actual adverse p o ssession by any person claim ing to be the o w n er f or that tim e o f any land, uninterruptedly continued f or t en ( 10) y ear s by occupancy , descent, convey ance, or o therwise, in whatever way such occupancy m ay h ave com m enced o r c o ntinued, shall vest in every actual occupant or possessor of

such land a f

ull and com

plete title . . . .

8“The standard and burden of proof to establish a prescriptive e asem ent is t he sam e as a claim

f or adverse possession of land.” Morris v. W .R. F airchild Constr. Co. , 792 S o. 2d 282, 284 (¶7) (Miss. Ct. App. 2 001) (citation om itted). In either c laim , the f ollowing elem ents m

ust be proven: that u se of the property is “(1) under a claim of o wnership; (2) actual or hostile; (3) open, notorious and visible; (4) continuous and uninterrupted f or a period of

ten y ears; (5) exclusive; and (6) peacef ul

. ” We b b v
. D rewrey , 4 So. 3 d 1078, 1082 (¶12) (Miss. Ct. App. 2009). “The p erson claim ing the possession has the burden of proving each of these elem ents by clear and c onvincing ev i d e n ce.” Biddix v. McConnell , 9 11 So. 2d 468, 475 (¶18) (Miss. 2005) (citation om itted).

a. Roadway ¶14. First, the Joneses m aintain t hat the chancery c o urt erred in f inding that t heir use of the 455-f oot roadway was perm issive—and theref ore insuf f i c i e nt t o satisf

y the hostility requirem ent of a dverse possession or a prescriptive easem ent—on the basis that the Pruitts had given them verba l p e r mi s s i on to use the roadway

. In support of their argum ent, the
Joneses cite this Court’s decision in Delancey v. Mallette , 912 So. 2d 4 83, 489 (¶17) (Miss. Ct. App. 2 0 0 5 ), in which w e held that “[ w]hen a use of the lands o f a nother f or roadway
purposes has been open, visible, continuous and unm olested sinc e som e point in tim e anterior
to t he aged inhabitants of t he com m unity , such use will be presume d t o h ave originated adversely .” (Quotations om itted). Further, the Joneses a rgue that “[ r]equiring a litigant who is attem p ting to establish adverse possession or a prescriptive easem ent to prove that there

was n o perm ission f

or use w ould be unreasonable. The law t y pically f rowns upon requiring

9a party

to prove a negative averm ent.” Morris , 792 So. 2d at 284 (¶9). ¶15. In response, the Pruitts contend that one of the m ost basic principles in establishing adverse p ossession or a p rescriptive e asem ent is t hat the use m ust be hosti l e , and that “perm issive use by the p o s s e s s or of the property in question def eats the claim of adverse possession.” E l lison v. Meek , 8 20 So. 2 d 7 3 0 , 735 ( ¶15) (Miss. Ct. App. 2 002) (citation

om itted). In support of

their argum ent, the Pruitts c i te the testim ony a t trial that the Pruitts and Joneses had a f

riendly relationship up until this dispute. The Pruitts f urther argue that the f act that Sidney kept the gate locked is consistent with B ocee’s testim ony at trial that she allowed h i m to cross i nto her land as long as he watched out f or h er property

. A dditionally , the Pruitts argue t h a t t h e f act that Sidney never g ave Bocee a key is irrelevant, a s Sidney , him self , adm itted that the Pruitts did not need a key t o access the Joneses’ property

. ¶16. This Court h eld in Cleveland v. Killen , 966 So. 2 d 848, 851 (¶11) (Miss. Ct. App. 2007): As a general rule, perm i ssive p ossession of lands, even if long c o ntinued, does not conf er t itle i n the p erson in p erm issive possession until a p ositive assertion of a right hostile to the owner has been m ade k nown t o him

. If there was never a r equest or a g rant o f perm ission to use the land, however, the use would not be perm issive, b ut would be adverse. It is a f act question f

or a chancellor to determ ine whether a use is prescriptive or perm issive. (Internal citations and quotations om itted). Furtherm ore, we reiterated:
Use of p r o p e rty by perm ission does not evolve into a h ostile or adverse u se until the perm ission ends. The tim e period f or obtaini n g a d verse p ossession or a prescriptive easem ent, when express or im plied perm ission is previously given, does n ot begin to run until som e f orm of objection to the use is m ade by the landowner. Id. at 852 (¶15).

1 0¶17. Chancellor Harvey -Goree, in her order, f ound that “all the testim ony revealed that the

u se [ of the roadway ] was p eaceable and perm issive.” Chancellor Clark m a de sim ilar f indings i n his order on the Joneses’ m otion f or r econs ideration or f

or a new trial, and af f irm ed Chancellor Harvey -Goree’s holding with r espect to the roadway

. W e af f irm

. The record is void of any evidence suggesting that the Joneses’ use of the roadway was any thing but peacef

ul. Furtherm ore, Irozenell even te s t i f ied at trial that she never sought to bar the Joneses f rom using the roadway ; rather, she m erely sought to have them

rem o ve their lock f rom the gate on the roadway

. As such, the Joneses have f a iled to establish that their use of the roadway

was hostile, and their claim f or adverse possession o r a prescriptive easem ent thereto is unsuccessf

ul. b. Deer-Camp Structure ¶18. Second, t he Joneses a rgue that the c hancery c ourt erred in f inding that they f

ailed to establish that t heir d e er-cam p structure had encroached o n t o t h e Pruitts’ property f or the statutorily required ten y ears. I n support of their argum ent, the Joneses p o i nt to Jef f rey ’s testim o ny that t h e d e er-cam p structure was built som etim e between 1999 and 2001, and Sidney ’ s t e s t i m o n y t h a t the structure was built in 2001. The Joneses also p oint to the testim o ny of s everal witnesses who had worked on or f arm ed the property

in the past, who

m aintained that the deer cam p had existed in that area in som e capacity since 1994. ¶19. In r esponse, the P ruitts argue that the Joneses provide no exact date f or when the deercam p structure actually began encroaching upon the P ruitts’ property , nor did they provide witness testim ony as to such. Thus, the Joneses did not prove t his statutory requirem ent by

1 1clear and convincing evidence. W e agree. The Joneses presented evidence that they began

cam ping in the general vicinity of the f uture deer-cam

p s t ructure in 1994, and t h at the
structure itself was built som etim e between 1 999 a nd 2001. However, the Joneses presented

no evid e n c e a s to when t he structure was e nlarged to the extent that it began actually encroaching upon t he Pruitts’ property

. To t he contrary , the Pruitts p resented evidence that the structure was not encroaching upon their property as late a s 2 004. W e theref ore f ind no

m erit to this issue.

2. W hether the chancery court erred in e x c luding Kelly Blake Mendrop from testifying r egarding a survey of the property ¶20. The Joneses also a rgue that the chancery court erred i n ref u sing to allow their expert witness, K elly Blake Mendrop, t o testif y at trial regarding a survey that h ad been previously

com pleted by a survey or who is now deceased. “[ D]ecisions concerning the rel e v a n cy of evidence are in t he broad discretion of the trial court.” Terrain Enterprises, Inc. v. Mockbee , 654 S o . 2 d 1 1 2 2, 1 131 (Miss. 1995). Appellate courts “will not r everse the trial court’s decision unless abuse of that discretion is shown.” Id

. (citation o m itted). “Further, f or a case
to be r eversed o n the adm ission or exclusion of evidence, it m ust result in prejudice and harm or adversely

af f ect a substantial right of

a party .” Id

. (citation om itted). ¶21. Both the J o n e s e s and the Pruitts r ef erence K ing v. Gale , 166 So. 3 d 589 (Miss. Ct. App. 2015), as c ontrolling authority f or this issue. I n K

i n g , a p arty s eeking a prescriptive

easem ent attem

pted to elicit testim ony f

rom an expert witness regarding a survey prepared by another surv e y or. Id

. at 592 (¶16). The party a t tem pted t o introduce the survey as a

1 2business record, but the chancellor excluded it as h earsay . Id

. at 593 (¶17). This Court f ound that while t h e c h ancellor should have a dm itted t he docum ent under the b usiness-records exception to the hearsay r

ule, any error was harm less since the chancellor was also the f inder of f act. Id

. ¶22. The Joneses argue in their brief that, here, just as in King , any evidentiary

problem s with the survey

had to do with the weight and credibility of the evidence as opposed to the adm issibility of it

. T h e J o n e s e s do not explicitly argue in their brief that the survey f alls under the business-records exception to the hearsay rule; however, they

do cite the portion of King discussing the business-records exception. The Pruitts, in r esponse, point out that counsel f or the Joneses did not seek to introduce t he survey as a business record at trial; thus, the Joneses c annot argue that t he survey was a business record on appeal. The Pruitts f urther

m aintain t hat, even if the chancellor erred in f ailing to adm it Mendrop ’ s t e s tim ony with respect to the survey , such an error was harm less because here, as in King , t he c hancellor was the f inder of f act and was q

ualif ied to m ake such a decision. Furtherm ore, the Pruitts point out that in this m atter, the chancellor had an opportunity to visit the site herself

. ¶23. W e ref

use to consider whether the survey f alls under t he business-records e xception to the hearsay

rule, as the Joneses m ade no s uch argum e nt a t trial, and m ake no com petent
argum ent of such on appeal. “ A t rial judge cannot be put in error on a m atter not presented
to him

. ” Conley v. W

right , 193 So. 3d 663, 66 6 ( ¶ 1 2 ) (Miss. Ct. App. 2016) (citation

om itted). Further, “it is the duty of counsel to m ake m ore than an assertion; t hey should state

reasons f or the i r propositions, and cite authorities in their support.” M inor v. City of

1 3Indianola , 909 So. 2d 146, 148 (¶3) (Miss. Ct. App. 2005) (citation om itted).

¶24. However, we note that e ven if the chancellor erred i n e xcluding Mendrop’s testim ony with respect to the survey , such an error was h arm l ess. First, t he chancellor was the f inder of f act and heard all of t he testim ony presented; s he e ven had an opportunity to visit the property site. Second, Mendrop s tated that, in com piling his sum m ary , he only ref erred to the survey as a basis to “get [ his] bearings on w here [ h e] w a s ” while he was personally inspecting the property

. T he survey was a m inim al aspect of Mendrop’s report. As such, we f ind no m e rit to this issue.
B. Irozenell’s Cross-Appeal ¶25. Irozenell asserts one issue on cross-appeal: W hether the chancery court, pursuant to
t h e J oneses’ m o t ion f

o r r econsideration or a new trial, erred in vacating its a w a r d o f attorney s’ f

ees. “[ T]he issue of attorney [ s’] f ees f alls within the sound discretion of the trial court.” Ford Motor Co. v. Tennin , 960 So. 2d 379, 395 (¶57) (Miss. 2007) (citation om itted). Appellate courts “will not reverse the trial court on the question of attorney [ s’] f

ees unless there is a m anif

est abuse of discretion in m aking the a llowance.” Deer Creek C onst. Co. v. Peterson , 412 So. 2 d 1169, 1173 (Miss. 1982). “W ith t he sole exception of p unitive dam ages
cases, in the absence of contractual provision or statutory authority theref or, [ the Mississippi Suprem e Court] has never approved awarding trial e x penses a n d att o rney [ s’] f ees to the successf ul litigant.” Grisham v. H inton , 490 So. 2d 1201, 1205 (Miss. 1986). “Of course, parties m ay by contract provide t hat in event of dispute, the losing p arty m ust pay the winner attorney [ s’] f

ees.” I d

.

1 4¶26. “Punitive dam ages m ay be awarded as punishm ent f or t respass where the proof shows the t respass was willf

ul, g rossly negligent or wanton.” R& S Dev., I nc. v. W i lson , 534 So. 2d 1008, 1013 ( Miss. 1988) (citation om itted). “ Furtherm ore, attorney s[ ’] f ees m ay be included

as part of an award o f punitive dam ages.” Id

. (citation om itted). The “awarding of punitive dam ages is not a p rerequisite f o r the awarding of attorney [ s’] f ees.” W alker v. Murphree , 722 S o . 2d 1277, 1283 (¶25) (Miss. Ct. App. 1998) (citation om itted). T he Mississippi Suprem e C ourt held in A qua-Culture Technologies, L td. v. Holly , 677 S o. 2 d 171, 184 (Miss. 1996), that attorney s’ f

e es m ay be awarded where “ p unitive da ma g es w ould h ave been justif i ed.” Ultim ately , “ the question of whether punitive dam ages should b e a w a r ded depends largely upon the particular circum stances of the case.” Id

. ¶27. Irozenel l asserts that Chancellor Clark e r red i n setting aside Chancellor Harvey

Goree’s award of $12,000 in attorney s’ f ees. In their counterclaim f or ejectm ent, the Pruitts sought punitive dam a ges f or trespass that was “willf ul, grossly negligent, or wanton.” The Pruitts also s ought recovery of “[ r]easonable attorney s’ f ees.” C hancellor Clark, in granting the Joneses’ m otion f

or a reconsideration of the award of attorney s ’ f ees, d eterm i ned that the Pruitts f aile d t o o f

f er any evidence as to the f inancial ability of the Joneses to pay , in accordance with the requirem ents of M cKee v. McKee , 418 S o. 2d 764, 7 67 (Miss. 1982), so

as to d e term ine the r easonableness of the attorney s ’ f e es requested. W e cannot f ind that this was an abuse of

discretion. ¶28. Accord i n g ly , we af f irm the chancellor’s j udgm ent deny ing the J oneses’ claim , granting the Pruitts’ claim f or ejectm ent, and deny ing Irozenell’s claim f or attorney s’ f

ees.

1 5¶29. ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: AFFIRMED.

LEE, C.J., GRIFFIS, P.J., CARLTON, FAIR, GREENLEE A ND WESTBROOKS, J J., CONCUR. BARNES AND WILSON, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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