E-Filed Document Oct 7 2014 13:06:15 2014-CA-00332 Pages: 10 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI RONNIE AND DIANNE ROBERTSON APPELLANT VS. CAUSE NO. 2014-CA-00332 JEAN MESSER CATALONATTO AND JODY CATALONATTO APPELLEE BRIEF OF APPELLANT BY: S. CHRISTOPHER FARRIS Attorney for Appellants Mississippi Bar No. 5154 farrislawoffices@aol.com 6645 U.S. Hwy 98, Suite #3 Hattiesburg, Mississippi 39402 601-271-2285 601-271-6041 1
CERTIFICATE OF INTERESTED PARTIES I, the undersigned counsel for the Appellant, do hereby certify that the following individuals have an interest in the outcome of this case: 1) Jean and Jody Cattalonatto 2) Ronnie and Dianne Robertson 3) S.Christopher Farris, Attorney for the Robertson s 4) Sam McCard, Attorney for the Cattalonatto s 5) Chancery Court Judge Dawn Beam th Respectfully submitted this the 7 day of October, A.D. 2014. s./s. Christopher Farris S. CHRISTOPHER FARRIS 2
TABLE OF CONTENTS Table of Authorities 4 Statement of the Issues 4 Statement of the Facts and Case 4 Summary of the Argument 6 Argument 7-9 Conclusion 9 Certificate of Service 10 3
TABLE OF AUTHORITIES Cases: Carter v. Pace, 86 So.2d 360, 492 ( Miss. 1956) 7 Gulfport v. Wilson, 603 So.2d 295, 300 ( Miss. 1992) 7 Kemp v. Lake Serene Property Owners Association, Inc. 256 So.2d 924, 926 ( Miss. 1971) 6 Kephart v. Northbay Property Owners Association, 134 So.3d 784 ( Miss. Apps. 2013) 7 Misita v. Conn, 138 So. 3d 138 ( Miss. 2014) 7 Rawaid v. Murguia & Arias Grocery, LLC, 124 So.3d 118 ( Miss. Apps 2013) 7 Stokes v. La Cav Improvement Company, 654 So.2d 524, 528 ( Miss. 1995) 7 STATEMENT OF THE ISSUES I. THE RESTRICTIVE COVENANTS EXPIRED WITHOUT ANY EFFORT ON THE PART OF THE LANDOWNERS TO EXTEND, ALTER OR AMEND THEM BEFORE OR AFTER JANUARY 1, 1990. II. EVEN IF THE COURT WAS CORRECT IN FINDING THE COVENANTS HAD NOT EXPIRED, DEFENDANTS EXERCISED GOOD FOREST MANAGEMENT PRACTICES IN CUTTING THE TIMBER STATEMENT OF THE FACTS AND CASE Richard Freeman conveyed to South Pointe Investments Company, a Mississippi Corporation approximately 283.5 acres of undeveloped land on May 16, 1979. The property is located in Section 29, Township 2 North, Range 13 West, Forrest County, Mississippi. South Pointe Investment Company began selling the property into separate tracts 4
of undeveloped land as follows: 1) Louise Autry 13 acres 2) James M. Burge et.ux. 23 acres 3) John C. Lowery 40.37 acres 4) Clinton J. Bellenger et. ux. 10.99 acres 5) Richard Howell et. ux. 33 acres 6) Saunders and Company 118 acres 7) Thomas J. Smith et. ux. 31 acres 8) John Ziffle et.ux. 28 acres South Pointe Investment Company attached restrictive covenants to all of the deeds as Exhibit A except for Mr. John Ziffle s tract. Mr. Ziifle s warranty deed does not reference any restrictive covenant on his property. The specific language of the restrictive covenants that is the subject of this litigation is contained in the following three provisions: A. The following Restrictive Covenants are hereby impressed upon the land, and said Restrictive Covenants shall run with the title to said property, or any part thereof, up to January 1, 1990,... B. (1) No portion of said property shall be used for other than residential or recreational purposes, and no soil or trees shall be removed for any commercial use. Cutting of trees shall be limited to the extent necessary for clearing the foundation site for construction and improving the topography, any cutting of trees shall be done only under good forest management practices. C. (14) These restrictive covenants run with the land, but after January 1, 1990, may be changed by unanimous consent in writing of the owners. When Ronnie and Dianne Robertson purchased their first tract of property in this development, the property contained a lot of damaged timber from Hurricane Katrina. The 5
Robertsons were advised that the covenants had expired. Their own deed does not make mention of any restrictive covenants. ( C.P. 42-45; R.E. 47-50) The Robertson s hired two registered foresters to advise them on the best forest management practice in removing the damaged timber from their property and replanting the property. Once Mr. Robertson began cutting the timber, the Catalanotto s sought injunctive relief from the Chancery Court of Forrest County, Mississippi.( C.P. 11-25; R.E.16-30) The Court entered an injunction prohibiting the cutting of any timber.( C.P.26-27; R.E. 31, 32) The Robertson s defended the action and sought declaratory judgment relief, i.e. the covenants had expired on January 1, 1990. (C.P. 71-74; 75-78; R.E. 76-83) The parties entered into a detailed stipulation as to the issues and facts. ( C.P. 567-572; R.E. 154-159) Some of the current landowners filed pro se answers objecting to the covenants being in effect.( C.P. 477, 478; R.E. 145, 146, 152, 153) At trial, the Court heard testimony of all of the landowners and the parties. ( R. 10-17; R.E. 177-186). After considering all of the evidence the Court entered a judgment finding the covenants still in effect. ( C.P. 574-579; R.E.161-166). It is from this ruling that the Robertsons seek relief from this Court. (C.P. 696, 697, 706, 707; R.E. 167-170) SUMMARY OF THE ARGUMENT By the plain language of the restrictive covenants, they expired on January 1, 1990. No effort was ever made by the landowners prior to or after the expiration date of January 1, 1990 to extend or change the restrictive covenants. Further, the covenants clearly allow a property owner to cut the timber as long as they follow good forestry management practices. 6
ARGUMENT I. THE RESTRICTIVE COVENANTS EXPIRED WITHOUT ANY EFFORT ON THE PART OF THE LANDOWNERS TO EXTEND, ALTER OR AMEND THEM BEFORE OR AFTER JANUARY 1, 1990. The law on restrictive covenants was established by this court in Kemp v. Lake Serene Property Owners Association, Inc. 256 So.2d 924, 926 ( Miss. 1971): Generally, courts do not look with favor on restrictive covenants. Such covenants are subject more or less to a strict construction and in the case of ambiguity, construction is usually most strongly against the person seeking the restriction and in favor of the person being restricted. The fact that restrictive covenants run with the land is not in dispute. Unlike so many, the restrictive covenants did not provide for an automatic renewal of the covenants for a specific term. If a term limit is placed upon a restrictive covenant, those covenants expire unless action is taken in compliance with the procedure outlined in the covenants to extend, change or modify them. Gulfport v. Wilson, 603 So.2d 295, 300 ( Miss. 1992). In Stokes v. La Cav Improvement Company, 654 So.2d 524, 528 ( Miss. 1995) the Supreme Court reviewed a similar case that had restrictive covenants filed in 1959 with a termination date of May 15, 1984, unless renewed, changed or extended by the majority of the owners. The Court found that the landowners prior to the expiration date of the covenants had voided the 1959 covenants and issued new covenants in 1984 in compliance with the procedure outlined in the covenants. Not one shred of evidence or document was offered by the Plaintiffs to prove that any single land owner took any affirmative action to extend the life of the restrictive covenants beyond January 1, 1990. The Court heard testimony from all of the other landowners that the covenants had expired and they had not been following them since expiration. ( R.10-17, R.E. 7
177-186 ). This Court has continued it s strict interpretation of restrictive covenants. Misita v. Conn, 138 So. 3d 138 ( Miss. 2014); Rawaid v. Murguia & Arias Grocery, LLC, 124 So.3d 118 ( Miss. Apps 2013); Kephart v. Northbay Property Owners Association, 134 So.3d 784 ( Miss. Apps. 2013). The trial court erred in not strictly construing the restrictive covenants based upon the clear and unambiguous language stating: The following Restrictive Covenants are hereby impressed upon the land, and said Restrictive Covenants shall run with the title to said property, or any part thereof, up to January 1, 1990,... Therefore, the Judge erred in finding them enforceable after January 1, 1990. II. IF THE TRIAL COURT WAS CORRECT IN FINDING THE COVENANTS WERE STILL VALID, DEFENDANTS EXERCISED GOOD FOREST MANAGEMENT PRACTICES IN CUTTING THE TIMBER If this Court determines that the restrictive covenants first placed on the property by Southpointe Investment Company have not expired, the Robertson s can still cut the timber according to the following language in the covenants: (1) No portion of said property shall be used for other than residential or recreational purposes, and no soil or trees shall be removed for any commercial use. Cutting of trees shall be limited to the extent necessary for clearing the foundation site for construction and improving the topography, any cutting of trees shall be done only under good forest management practices. Prior to cutting any timber, Plaintiff hired Curtis Breland, a registered forester, to review the property and advise as to what needed to be done to remove all of the damaged timber and 8
older timber. After the filing of the injunction, Defendant hired Don Williams, a registered forester to review the property and give an opinion as to whether or not the cutting of the timber is in compliance with good forest management practices.. The fact that one of the property owners disagrees with the opinion of Mr. Robertson s forester and hires his own expert does not change the fact that as long as Mr. Robertson is complying with good forrest management practices he can cut his timber. This is plainly stated in the restrictive covenants. CONCLUSION Appellants would submit that the covenants expired by their plain language on January 1, 1990. Appellants request that the trial court s ruling be reversed and rendered finding the covenants expired on January 1, 1990. If the Court determines that the restrictive covenants have did not expire, the Robertson s still can cut their timber as long as they follow good forest management practices. th Respectfully submitted this the 7 day of October, 2014, RONNIE AND DIANE ROBERTSON Appellants BY: s./s.christopher Farris S. CHRISTOPHER FARRIS Attorney for Appellant Mississippi Bar No. 5154 farrislawoffices@aol.com 6645 U.S. Hwy 98 Suite #3 Hattiesburg, MS 39402 601-271-2285 601-271-6041 telefax 9
CERTIFICATE OF SERVICE I the undersigned do hereby certify that I have this day mailed via U.S. Postal Service, postage prepaid, a true and correct copy of the foregoing Brief of Appellants to : Hon. Dawn Beam Chancery Court Judge P.O. Box 1664 Hattiesburg, MS 39403-1664 Hon. Sam McHard Attorney for Appellee through the court s electronic filing system This the 7th day of October, 2014 s/s. Christopher Farris S. CHRISTOPHER FARRIS 10