IN THE SUPREME COURT OF MISSISSIPPI
NO. 2017-CA-00092-SCT
CHERYL L. HIGH
v.
TODD KUHN AND ANGELA T. KUHN
DATE OF JUDGMENT: 01/10/2017
TRIAL JUDGE: HON. MICHAEL H. WARD
TRIAL COURT ATTORNEYS: VIRGIL G. GILLESPIE
STEVEN NICHOLAS NEWTON
ROBERT THOMAS SCHWARTZ
COURT FROM WHICH APPEALED: HARRISON COUNTY SPECIAL COURT OF
EMINENT DOMAIN
ATTORNEY FOR APPELLANT: STEVEN NICHOLAS NEWTON
ATTORNEY FOR APPELLEES: VIRGIL G. GILLESPIE
NATURE OF THE CASE: CIVIL - EMINENT DOMAIN
DISPOSITION: REVERSED AND REMANDED - 12/14/17
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE KITCHENS, P.J., MAXWELL AND ISHEE, JJ.
MAXWELL, JUSTICE, FOR THE COURT:
¶1. In High v. Kuhn, 191 So. 3d 113 (Miss. 2016) (High I), we reversed and rendered the
judgment of the special court of eminent domain, specifically finding the plaintiffs, Todd and
Angela Kuhn, were not entitled to condemn Cheryl High’s property for a private road. The
statutory procedures governing eminent-domain actions permit a defendant like High to
recover expenses—including attorney’s fees—when “the judgment be that the plaintiff is not
entitled to a judgment condemning property[.]” Miss. Code Ann. § 11-27-37 (Rev. 2004).
Following this Court’s mandate, High moved the special court for an award of attorney’s fees
and expenses under Section 11-27-37.
¶2. The special court held Section 11-27-37 did not apply and denied High’s request.
High again appealed to this Court. And once again, we must find error. The Kuhns clearly
invoked the statutory procedures of the special court of eminent domain when they petitioned
that court for the statutory right to condemn High’s property for a private road. Thus, Section
11-27-37—the eminent domain statute which provides for the recovery of attorney’s fees and
expenses—applied.
¶3. Because the award of fees and expenses under Section 11-27-37 is discretionary, not
mandatory, we remand this matter to the special court of eminent domain to consider the
merits of High’s motion and the reasonableness of her request for $25,990.58 in attorney’s
fees and expenses, plus interest.
Background Facts and Procedural History
I. First Appeal1
¶4. The Kuhns bought their landlocked residential property knowing the current route to
their driveway—over High’s neighboring property—could be cut off at any point in the
future. When High soon after refused to allow them to use her property to get to theirs, they
invoked the procedures of Mississippi Code Section 65-7-201 (Rev. 2012) and petitioned the
Harrison County Special Court of Eminent Domain for a private road across High’s property.
1
More details about the Kuhns’ attempt to establish a private road across High’s
property and High’s first appeal can be found at High I, 191 So. 3d 113.
2
¶5. At the close of the Kuhns’ evidence, High moved for dismissal. She argued the
undisputed evidence showed her property was in the City of Gulfport. And Section 110 of
the Mississippi Constitution clearly prohibited condemning for a statutory private road any
property located within an incorporated town or city. See Miss. Const. art. 4, § 110.
¶6. The special court denied High’s motion and granted the Kuhns a private road under
Section 65-7-201. High petitioned for and was granted interlocutory appeal. On appeal, this
Court agreed with High. “Section 110 of the constitution clearly prohibits the Legislature
from creating the statutory right to condemn for a private road property within an
incorporated city or town.” High I, 191 So. 3d at 117 (emphasis removed). Thus, the
statutory right the Legislature created in Section 65-7-201 to petition the special court of
eminent domain to establish a private road does not extend to condemning property within
a city like Gulfport. Id. at 118. For this reason, we reversed and rendered the judgment of
the special court, finding that court had erred as a matter of law when it granted the Kuhns’
request for a private road across High’s property in Gulfport. Id.
¶7. As part of her interlocutory appeal, High requested attorney’s fees under Section 11-
27-37. Section 65-7-201 directs that when a petition is filed under that section, “the case
shall proceed as nearly as possible as provided in Title 11, Chapter 27 for the condemnation
of private property for public use.” Miss. Code Ann. § 65-7-201. And Section 37 of Title
11, Chapter 27, provides that a successful defendant landowner may recover “reasonable
expenses, including attorneys’ fees, incurred by him in defending the suit.” Miss. Code Ann.
§ 11-27-37. But because those expenses are recoverable “in a separate action”—and High
3
had yet to bring an action for attorney’s fees and expenses—we denied High’s request
without prejudice. High I, 191 So. 3d at 120.
II. Current Appeal
¶8. Following this Court’s mandate, High went back to the special court and filed a post-
judgment motion for attorney’s fees and expenses in the amount of $25,990.58, plus interest.
See Cox v. Warren Cty., 600 So. 2d 935, 938 (Miss. 1992) (holding “[Section] 11-27-37
gives the defendant landowner a separate cause of action against the petitioner condemnor,
which may be brought via a post trial motion in the eminent domain court, or in a separate
action in any court of competent jurisdiction”). After a hearing, the special court denied
High’s motion.
¶9. According to the special court, because “our Supreme Court has made it abundantly
clear that the Kuhns were not entitled to seek relief from this Court, a Special Court of
Eminent Domain . . . , it follows that the provisions of the eminent domain laws, as codified
in Sections 11-27-1 are inappropriate here and, thus, Section 11-27-37 is inapplicable.” And
because “there is neither contractual nor statutory authority to grant attorney’s fees in this
cause,”2 the special court denied High’s motion.
¶10. High appealed for a second time.
Discussion
2
See Fulton v. Miss. Farm Bureau Cas. Ins., 105 So. 3d 284, 287-88 (Miss. 2012)
(noting, “absent some statutory authority or contractual provision, attorneys’ fees cannot be
awarded unless punitive damages are also proper”).
4
¶11. The three issues High raises on appeal boil down to one question—Did the special
court err when it ruled Section 11-27-37 did not apply? As we pointed out in High I, “[t]o
obtain an easement across High’s property, the Kuhns petitioned a statutorily created
court—the special court of eminent domain—for a statutorily created right.” High I, 191 So.
3d at 117. Thus, it follows that the statutes governing eminent domain actions—including
Section 11-27-37—apply.
¶12. First, Section 11-27-37 applies under the plain language of Section 65-7-201. “The
Kuhns based their petition on Section 65-[7]-201.” High I, 191 So. 3d at 117. And that
statute directs, “[w]hen any person shall desire to have a private road laid out through the
land of another, . . . he shall apply by petition . . . to the special court of eminent domain
created under Section 11-27-3 . . . , and the case shall proceed as nearly as possible as
provided in Title 11, Chapter 27 for the condemnation of private property for public use.”
Miss. Code Ann. § 65-7-201 (emphasis added). Thus, the Legislature’s intent was that an
action for a private condemnation, to the extent possible, would be just like an action for a
public condemnation. So, just like an action for a public condemnation, when a plaintiff fails
to obtain a judgment for a private condemnation, the defendant may recover her reasonable
expenses—including attorney’s fees—incurred in defending the action. Miss. Code Ann.
§ 11-27-37.
¶13. Second, Section 11-27-37 applies even though we ruled the Kuhns were not entitled
to the remedy they sought. Because we held that the Kuhns “had no right . . . to petition the
5
special court of eminent domain for a private road across High’s property in Gulfport,”3 the
Kuhns argued—and the special court agreed—that none of the provisions of Title 11, Section
27 applied. But the fact the Kuhns’ petition was dead on arrival actually supports awarding
High attorney’s fees.4
¶14. As we noted in High I, the Kuhns had other common-law remedies available to them
to gain better access to their property, which they could have pursued in chancery court.
High I, 191 So. 3d at 119. Instead, they pursued a statutory remedy in the special court of
eminent domain. In other words, it was the Kuhns who chose to invoke the statutory
provisions of Section 65-7-201 and Title 11, Chapter 27, to resolve their dispute with High.
3
High I, 191 So. 3d at 118.
4
On appeal, the Kuhns frame the issue as the special court of eminent domain
lacking “subject matter jurisdiction”—an argument High made and this Court declined to
address in High I. High I, 191 So. 3d at 117 n.5. We see no reason for this Court to
consider this issue now.
First, this assertion is inconsistent with the Kuhns’ position in High I, in which they
argued the special court of eminent domain was the only court that could afford them the
relief they sought.
Second, for the Kuhns now to change their tune and argue that the court they chose
lacked subject matter jurisdiction does not help their cause. The Mississippi Litigation
Accountability Act authorizes the award of attorney’s fees as a sanction for a “frivolous”
filing, which is defined as having “no hope of success.” See Anderson v. B.H. Acquisition,
Inc., 771 So. 2d 914, 921-22 (Miss. 2000) (discussing Miss. Code Ann. § 11-55-5(1) (Rev.
2012)). And a suit filed in a court lacking authority to grant the relief sought squarely falls
under that “no hope” category. See Mark S. Bounds Realty Partners, Inc. v. Lawrence, 34
So. 3d 1224, 1230 (Miss. Ct. App. 2010) (holding that the filing of an action in chancery
court, which the plaintiff knew or should have known lacked subject matter jurisdiction,
supported the chancery court’s award of attorney’s fees as sanctions). Thus, by insisting
they filed an action in a court that lacked subject matter jurisdiction, the Kuhns are
essentially conceding their action was “frivolous”—opening up another statutory door for
High to potentially recover attorney’s fees. See Miss. Code Ann. § 11-55-5(1); see also
Lawrence, 34 So. 2d at 1230 (upholding an attorney’s fees award imposed by a court
lacking subject matter jurisdiction over the action).
6
And one of these provisions is that, should the Kuhns not succeed, they may have to pay
High’s reasonable expenses. Miss. Code Ann. § 11-27-37. The Kuhns did not succeed,
because the remedy they chose was constitutionally unavailable to them. Thus, Section 11-
27-37 applied.
Conclusion
¶15. To hold that Section 11-27-37 applies, however, does not automatically entitle High
to the more than $25,000 in attorney’s fees and expenses, plus interest, she requested.
Recovering reasonable expenses and attorney’s fees under Section 11-27-37 is not automatic.
The statute provides “the defendant may recover,” not “shall.”5 Miss. Code Ann. § 11-27-37
(emphasis added). Thus, whether to award statutory attorney’s fees and expenses under
Section 11-27-37 and, if so, in what amount falls within the discretion of the trial court.
¶16. As an alternative argument, the Kuhns argue this Court should affirm the special
court’s denial of High’s motion because High failed to support her attorney’s fees petition
with sufficient evidence. But this argument is premature. The Kuhns concede that High
presented evidence that she incurred “some attorneys fees” in defending their action. So
what the Kuhns are really challenging is the reasonableness of the amount of an attorney’s
fee award that has not yet been granted. The special court held High could not recover
attorney’s fees and expenses, period. It did not address whether High’s evidence supports
her receiving the entire amount of fees she requested.
5
See Pitalo v. GPCH-GP, Inc., 933 So. 2d 927, 929 (Miss. 2006) (“Simply stated,
‘shall’ is mandatory, while ‘may’ is discretionary.”).
7
¶17. Because High’s reasonable attorney’s fees and expenses may be recoverable under
Section 11-27-37, we reverse the special court’s order denying High’s motion and remand
this issue to the special court for further proceedings.
¶18. REVERSED AND REMANDED.
WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN,
BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.
8