IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CA-00098-COA
PETER RUSSELL APPELLANT

v.
BEACHWALK CONDOMINUMS ASSOCIATION, INC. APPELLEE

DATE OF JUDGMENT: 12/18/2014 TRIAL JUDGE: HON. LISA P. DODSON COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: L. CHRISTOPHER BREARD ATTORNEY FOR APPELLEE: THOMAS LYNN CARPENTER JR. NATURE OF THE CASE: CIVIL - OTHER TRIAL COURT DISPOSITION: DENIED SANCTIONS DISPOSITION: AFFIRMED: 05/17/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., FAIR AND WILSON, JJ. FAIR, J., FOR THE COURT: ¶1. Peter Russell entered into a two-y ear lease f or a condom inium 1 shortly bef ore it was
f oreclosed upon, a nd the continuing validity o f his lease was challenged by t he new owner.
B e a c h w a l k C o n d o m i n i u

m s A s s o c i ation, the hom eowners’ association, b r o u g h t a s e p a r a t e s u i t against Russell to enjoin him f rom using the com m o n a reas of the com plex. Several y ears later, Russell surrendered the p rem ises and t he Beachwalk suit w as dism issed as m oot. All

1 T h e lease w as actu ally w ith R u ssell an d “B ay H o m es, L L C ,” b u t th e L L C w as n o t a p arty to th is s u it. R

u ssell ap p ears to h av e sig n ed th e lease in t h e cap acity o f B ay H o m es’
m an ag er, an d th e lease stated th at o n ly R u ssell w o u ld o c cu p y

th e p rem ises.that r em ains are Russell’s various claim s f or sanctions, which were denied by the t rial court. ¶2. Because s anctions are entrusted to the sound discretion of the trial court, and no abuse
of that discretion has been shown, we af f irm

. FACTS ¶3. W e borrow the f

ollowing statem ent o f f

a c t s f r om t he t horough recitation of the Harrison County

Circuit Court, which heard the f irst appeal in this case:
The litigation of this m a tter began in the Chancery Court of the First J u dicial District of H arrison County , Mississippi when [ Beachwalk] f iled suit against Russell seeking both a tem porary and a perm anent injunction. The m atter was litigated in that court f

o r a period of t im e and w as then transf erred to the County Court. By Order d ated October 31, 2013, the County Court denied R u s sell’s Motion f

or Protective Order and Russell’s Motion f o r Sum ma r y Judgm ent as m oot, d enied Russell’s Motion f or S anctions, and denied Beachwalk’s M o t ion to Am end and Other Relief

. Russell sought reconsideration only

as to his Motion f

or Sanctions. T hat r equest w as denied by Order f iled February

3, 2014. This appeal f

ollowed.
Beachwalk is the hom eowners association f or the B eachwalk c ondom inium com plex. The Meltons owned a condom inium there which was f oreclosed on by the Federal National Mortgage A ssociation ( FNM A )

. R u ssell w a s living in t hat condom inium

. At som e point, question s w ere raised about Russell’s living there and c om

plaints were m ade about Russell w ith regard to his a lleged behavior in the c om m on areas of t he condom inium com plex, including at the pool and around children. B eachwalk f iled suit in the Chancery C o urt seeking an injunction regarding Russell’s behavior and seeking to enjoin him f r om u se of the com m o n areas. T he C o mp l a int alleged t hat FNMA owned the condom ini u m i n w h i ch Russell was living; that Russell was a squatter w ho was trespassing on the com m on areas of the com plex; and that R

u ss e ll was engaging in loud, prof

ane, and otherwise of

f ensive conduct and language.
Beachwalk also posted a notic e on the door of the c ondom i nium in which Russell lived g iving n otice of the a m ount of hom eowners association dues or f ees (hereinaf

ter f ees) past due and advising that the water was being cut of f and that the com m on areas could not b e u sed until the f ees were paid. Russell

2f

iled a Motion seek i ng em ergency r elief in the Chancery Court suit. The em ergency m otion sought to have the w ater turned b ac k on. It a lleged t hat Russell h ad a lease o n the condom inium w ith an a d dendum , w hich addendum provided f

or pay m ent of the m onthly hom eowners association f ees by pay m ent f rom Russell of a portion o f the rent pay m ents; stated that Russell would pay the m onthly f

ees; r ef ers to the FNMA suit which was then p ending in County Court stating t h a t F N MA was s eeking to rem ove Russell f rom the condom inium ; r aised the i ssue of s tanding and a f ederal act which Russell al l e g ed p rotected h im concerning the lease; say s that Russell’s rights were violated due to lac k o f d u e p rocess; and sought to enjoin Beachwalk f rom interf ering with his use of

the prem ises.
A hearing was held, and the [ c ] hancellor ordered th a t R u s s ell post a [ M.R.C.P.] Rule 65 bond, that B e achwalk t urn the w ater back on at the condom inium , and that both parties were enjoined f r om interf

ering w i th the other’s use a nd e njoy

m ent of the prem ises. That O rder stated that the right of possession of t he condom inium w ould be decided by the County Court in the FNMA suit. Russell also f iled an answer in the Chancery Court m a tter. Other hearings occurred in C hancery Court, but none involving a f inal determ ination on the m erits of

the com plaint or def

e nses.
W h ile the Chancery Court m atter was pending, t he FNMA suit against Russell in County Court sought to evict him f rom the condom inium , alleging that the purported lease was i nvalid. Rus s e l l d ef ended, c laim i ng a valid lease and protection of f

ederal statutes concerning lessees of f o r e c l o sed property

. At som e point, the Chancery Court m atter was t r ansf erred t o County Court. Beachwalk then sought to consolidate its claim s with those in t he FNMA suit. This m otion was denied b y t he judge assigned t o the F NMA case. Both
m atters then proceeded separately in County

Court bef

o re dif f e rent judges.
In t he Beachwalk case, Beachwal k f iled a Motion to A m end o n January 11, 2013. T hat M otion sought t o a me nd the c om plaint to claim that Beachwalk was a third party b enef

iciary to the lease addendum a nd to s eek the pay m ent of the h om eowners a ssociation f ees. R ussell o pposed the am endm ent and also sought s um m ary judgm ent and sanctions. The m otions were a l l apparently s et by the parties, b u t d i d n o t get put on the C ounty Court Judge’s docket and were, theref

ore, not h eard. Those m otions were reset f or Jul y 3, 2013. The FNMA County Court case was resolved betwe e n F N MA and Russell. As a result o f that resolution, Russell was to vacate the condom i nium by March 4, 2013. FNMA then sold the condom inium

. The past due hom eowners
3association dues were paid in f ull in April of 2 013.
At th e J u l y 3, 2013 hearing in this case, Beachwalk’s attorney advised the County Court that all m otions were m oot wit h t h e e x c e ption of the m otion seeking sanctions. This was based o n t h e f act that, as of that hearing date, Russell had m oved out and the past due f ees had b een paid. The County Court Judge h eard the argum ents and took the m a t ter under a dvisem ent. The County Court J udge later f

ound that Beachwalk was s uccessf u l in obtaining part of the relief which it sought in Chancery Court and f o und that the m otion seeking to am end in Count Court was not f rivolous and not a hopeless e n deavor. He denied sanctions. The judge f urther noted that Beachwalk had i ndicated t hat it was w ithdrawing its m otion seeking t o am end s hou l d sanctions b e denied. He, t heref

ore, denied t he m otio n to am end. The j udge then f o und the other two m otions to be m oot.
The circuit court a f

f i r me d t h e county court’s decision to d eny sanctions, and R ussell has again appealed.
DISCUSSION ¶4. Russell enum erates two i ssues f or appe a l , but his statem e nts of t he issues are

com pound and c onvoluted, and his f if ty -page brief m e anders f

rom o ne assertion t o the next
with little heed to the purported outline. Mississippi Rule of Appellate Procedure 28(a)(3) requires that t h e a

ppellant’s b rief “sep a r a t e ly num b er” each issue, which Russell has not
done. More im

portantly , “[ n]o issue not distinctly identif ied shall b e a rgued.” Id. And each
issue which is identif

ied m ust be thoroughly and distinctly argued. See M.R.A.P. 28(a)(5)- (6). W e will not address contentions that have n ot been distinctly identif ied in the statem ent
of issues, nor w ill we address contentions that have not been separately and distinctly argued.
1. Failure to Consider Claim s Individually ¶5. Russell argues that the county court erred i n not considering all of his c l a i ms f or
4sanctions on their own individual m erits. It is not an exaggeration to say that Russell claim s

on appeal that nearly every contested f act asserted b y Beachwalk and every c ause of action
asserted b y B eachwalk warranted sanctions. Any f ailure of the county court to s pecif ically
address these potential c l a i ms s tem s f rom the lack of specif

i city i n Russell’s m otion f or sanctions, which, like his brief on appeal, lacks a clear s t atem ent of the issues p resented. The only claim s f

or sanctions that were prese n t e d in any detail related to Beachwalk’s investigation prior to f

iling t he com

plaint and i t s a t t e mp t to am e nd the com plaint to seek
hom eowners’ association f ees f rom R ussell. The tr i a l c o u rt addressed these contentions directly in its order deny ing sanctions. As to the o ther claim s, we will not h old a t rial court
in error f or a m atter not properly presented to it f or d ecision. Moffett v. State , 49 So. 3d 1073, 1088 (¶41) (Miss. 2010).
2. Mootness ¶6. Russell contends that the trial court erroneously denied his m o tion f o r sanctions based

on its f inding that the underly ing issues in the lawsuit had becom e m oot af ter R ussell m oved

out of the condom inium

. This contention i s sim ply m eritless. Both sides agreed during the hearing that the sanctions requests were not m oot, and there is no i ndication t he trial court
believed otherwise. The trial court specif ically addressed and rejected Russell’s requests f or sanctions, on the m e rits of his claim s. ¶7. W e f

ind n o m erit t o Russell’s argum ents that the trial c ourt em ploy e d the wrong legal standard in deny ing sanctions.

53. Merits of Claim s for Sanctions

¶8. Mississippi Rule o f Civil Procedure 11(b) states t hat a trial court m ay award sanctions against a party o r attorney w ho has f iled a pleading t hat is f

r ivolous o r was f

iled f or the

purpose of harassm ent or d elay

. The Litigation Accountability Act of 1988 pr o vides

com plem entary , overlapping authority to im pose sanctions f

o r c laim s brought “without
substantial justif

ication” or “ interposed f

o r d e lay o r harassm ent.” Miss. Code Ann. § 11-55-5 (Rev. 2012); S

tevens v. Lake , 615 So. 2d 1177, 1183-84 (Miss. 1 993). “W ithout s u bstantial justif i cation” m eans a f

iling that is “f

rivolous, groundless in f

act or in law, o r v exatious, as determ ined by t he court.” Miss. Code Ann. § 11-55-3(a) (Rev. 2012). A claim is f rivolous when, “objectively speaking, the pleader or m ovant has no hope o f success.” Leaf River
Forest Prods. Inc. v. Deakle , 661 So. 2d 188, 195 ( Miss. 1995). W e em ploy the sam e test

to d eterm ine whether a f iling is f riv o l o u s u nder both Rule 1 1 and the Litigation Accountability

Act. I d. at 196-97. ¶9. W e review the trial c ourt’s decision t o g r ant o r deny sanctions under the Litigation Accountability A ct or R

ule 11 f o r an abuse of discretion. Choctaw Inc. v. Campbell-CherryHarrison-Davis & Dove , 965 So. 2d 1041, 1045 n.6 (Miss. 2007). A. Standing to Sue ¶10. Russell argues t hat Beachwalk lacked authority or “standing” to s u e him based on provisions in its f

orm ation docum ents and by laws requiring certain procedures – warnings
and the like – to be im

posed bef ore rem edies ma y b e taken against o f f ending owners or

6“lawf

ul occupants.” ¶11. These argum ents are a l l p r em ised on t he unsupported a ssertion t hat Russell was a lawf ul tenant when Beachwalk f iled suit. Russell claim s, without any real argum ent, that his
lease continued to be valid af ter the p roperty

was acquired by

FNMA through f

oreclosure.
Russell bases this argum ent on the Protecting Tenants at Foreclosure Act of 2009. Pub. L. No. 111-22, Title VII, §§ 701-704 (2009) (as am ended by Pub. L. No. 111-203, Title XIII, § 1484 (2012)). But Russell does nothing m ore than cite to the Act – which, contrary to his suggestion, does not autom atically preserve his lease; the lease is protected only if Russell

was a “bona f

ide” tenant. Id. at § 702. This required that the lease be t he product of an
“arm s-length transaction” and that the rent not be “substantially less than the f air m arket rent
f or t he property

. ” Id. R

ussell of f e red no proof on either of t hese points, and he certainly has

not shown that there was no colorable argum ent that his lease was invalid. In f act, Russell

was in l itigation with FNMA o ver the validity o f his lease at the tim e Beachwalk f iled suit, though the question was apparently never r e s o lved on the m erits. Also, there is som e evidence in the record sugg e s t i n g t h e potential f or a f actual dispute – Russell’s two-y ear lease was executed shortly b ef ore the f o r e c l o s u re, a nd the rent w as $800 per m onth, only $300 m o re than the hom eowners’ association f ees. ¶12. W e f

ind no m e rit to this argum ent. B. Amended Complaint ¶13. Russell adequately brief s only one other requested sanction, regarding Beachwalk’s

7m otion f

o r leave to f

ile an am e nded com

plaint, which would have sought ho me o w ners’
association f

ees f rom Russell b ased on an agreem ent he executed with a n agent of FNMA
af ter i t obtained the condom inium f ollowing the f

oreclo s u r e , where Russell agreed to pay $500 of his $800 per m o n th rent directly to Beachwalk. Russell initially s tated that he
intended to pay the hom eowners’ association dues, but he n ever a c tually did because no one would accept his m oney
. ¶14. Russell now contends that the agreem ent with FNMA was an i llegal m odif ication of
his lease under the Protecting T enants at Foreclosure A ct, but this contention is unsupported by any a r gum ent or authority except ref erence to t he Act by n am e. The issue does not appear
to have been resolved in the suit between Russell a nd FNMA, and FNMA was not brought into the instant litigation by either party

. ¶15. Russell also argues that Beachwalk had no standing to assert this claim against h im
because it was only an incidental benef iciary t o the a greem ent between him and FNMA. He provides little argum ent in support, and m akes n o real ef f ort to show tha t B e a chwalk’s
contention was f

rivolous. In f

act, the Mississippi Suprem e Court has recognized that the law

on third-part y benef

iciaries is rather com

plicated. See Burns v. W ash. Savings , 251 Miss. 789, 7 93-97, 171 So. 2d 3 22, 324-25 (1965). This weighs against an award of sanctions. And, as the court noted, i t is generally the case that “a third person m a y in his own right and

nam e, enf

orce a p r om ise m ade f

or h is benef

it e v e n t h o u g h he is a stranger both to the

contract a nd the considera t i o n
. ” I d

. at 795, 171 S o. 2d at 324 ( citation om itted). FNMA

8owed Beachwalk association dues, and Russell owed FNMA rent. He agreed to pay the dues

to B eachwalk in lieu of som e of his rent. Russell lived in the condom inium and enjoy ed the services provided by Beachwalk, but neither Russell nor FNMA paid the association dues.
Beachwalk’s claim

to be a third-party

benef iciary was hardly f

rivolous. ¶16. Finally , Russell contends that the county court should h ave awarded sanctions based

on Beachwalk’s f

ailure to i m m ediately withdraw the m otion seeking to am end the com plaint
af ter F NMA ultim ately paid the dues. T his c o ntention was n ot presented in Russell’s m otion
f or sanctions and is procedurally barred.
CONCLUSION ¶17. Russell has not s h own any abuse of discretion in the county court’s denial of
sanctions. ¶18. THE JUDGMENT O F T HE CIRCUIT COURT OF HARRISON C OUNTY, FIRST JUDICIAL D ISTRICT, I S A F F I R MED. ALL COSTS O F THIS APPEAL ARE ASSESSED TO THE APPELLANT. LEE, C.J., IRVING AN D G R I F FIS, P.JJ., BARNES, I SHEE, CARLTON, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

9