Arletha Nelson v. Armatha Bonner
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CA-00903-COA
ARLETHA NELSON, MACK ARTHUR GANDY
AND BOBBY JOE GANDY
APPELLANTS/CROSSAPPELLEES
v.
ARMATHA BONNER, JOHNNIE M. BONNER
SIMMONS, BENNIE L. BONNER, DOLLIE M.
BONNER SIMPSON, JIMMY L. BONNER,
YVONNE BONNER, LEVONER BONNER,
YONIA BONNER, LEON BONNER, LONNIE
BONNER, LEVESTER BONNER, JUANITA
BONNER JONES AND DRUCILLA BONNER
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
APPELLEES/CROSSAPPELLANTS
4/25/2007
HON. J. LARRY BUFFINGTON
WAYNE COUNTY CHANCERY COURT
ROSS R. BARNETT
TERRY L. CAVES
LEONARD B. CAVES
CIVIL - REAL PROPERTY
AWARDED TWO PARCELS OF LAND TO
THE GANDYS AND ORDERED THE
GANDYS TO REMOVE NELSON’S MOBILE
HOME FROM THE BONNERS’ PROPERTY
AFFIRMED IN PART; REVERSED AND
RENDERED IN PART - 7/21/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, P.J., GRIFFIS AND ROBERTS, JJ.
LEE, P.J., FOR THE COURT:
PROCEDURAL HISTORY AND FACTS
¶1.
Armatha Bonner, Johnnie M. Bonner Simmons, Bennie L. Bonner (Bennie), Dollie
M. Bonner Simpson, Jimmy L. Bonner, Yvonne Bonner, Levoner Bonner, Yonia Bonner,
Leon Bonner (Leon), Lonnie Bonner (Lonnie), Levester Bonner, Juanita Bonner Jones, and
Drucilla Bonner (“the Bonners”) originally filed suit in the Wayne County Chancery Court
alleging that Arletha Nelson had trespassed upon their property by moving a mobile home
onto their land. Nelson, along with her brothers Mack Arthur Gandy and Bobby Joe Gandy
(Nelson and the Gandys will collectively be referred to as “the Gandys”),1 filed a
counterclaim for adverse possession. The chancellor denied the Gandys’ claim for adverse
possession. The Gandys appealed to this Court, and we reversed and remanded. See Nelson
v. Bonner, 829 So. 2d 700 (Miss. Ct. App. 2002) (Nelson I). We found that the chancellor
failed to consider certain evidence relating to the Gandys’ adverse possession claim. Id. at
704 (¶14). The evidence included testimony from the Gandys concerning their possession
of the disputed land, which commenced in 1941. Id. Our opinion noted that the Bonners did
not offer any evidence concerning the period of possession from 1941 through 1977. Id. at
706 (¶21). We further noted that the Gandys had failed to present a survey and legal
description of the tract of land on which Nelson’s mobile home sat, including the surrounding
areas that they claimed to have adversely possessed. Id. at 706 (¶22).
¶2.
Following remand, the Bonners filed a motion to amend their complaint, asserting in
the alternative that they had acquired the property by adverse possession. The Gandys
agreed to the Bonners’ motion to amend their complaint, and an agreed order granting the
1
According to the record, the Gandys own the land north of and adjacent to the
Bonners’ north property line. The record includes a 2003 survey of the Gandys’ land, which
includes the disputed property.
2
motion was entered on February 25, 2003. Another trial on the matter was held on October
21, 2005. The chancellor limited the testimony to whether the Gandys adversely possessed
the property from 1941 and whether the Bonners adversely possessed the property back from
the Gandys. In order to make his decision, the chancellor noted that he viewed the subject
property, reviewed the transcript from the first trial, conducted a supplemental hearing,
reviewed the surveys provided by both parties, and reviewed this Court’s opinion. The
chancellor found the following:
It is undisputed, as shown both in the remand order, as well as the testimony
presented, that the Bonners were not the titleholders to that portion shown on
Exhibit 2 as lying north of the quarter section line being a triangle,
approximately 59.12 feet from the corner of the quarter section to the public
road, and being approximately 165 feet east of the corner of the 1/4 section and
running along said road to complete the triangle. The Bonners, however, are
recordholders to the property upon which the mobile home in question is
situated. The Court . . . is satisfied that no adverse possession occurred prior
to 1977 on the triangle in question. However, likewise, the Court is satisfied
there has been no adverse possession for a period of ten years on the property
upon which the mobile home is located. The Court is satisfied [that] the
occupation by Ms. Nelson did not begin until 1996 upon the moving of the
mobile home in question, and therefore said land was not adversely possessed
by the [Gandys.] The Court is further satisfied that because the Court of
Appeals found that there was no evidence contradicting possession from 1941
to 1977 and there was conflicting testimony that the Bonners, likewise, have
not adversely possessed that triangle that was previously described and which
is shown on Exhibit 2 as parcel 2A. However, the Court is satisfied that the
parcel shown as 2B being that property north of the public road has, in fact,
been adversely possessed by the [Gandys].
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that
parcel 2A and parcel 2B are confirmed in the [Gandys], and that all other
property properly before this Court in Exhibit 2 is properly confirmed, title
quieted in the Bonners. The [Gandys] shall have 60 days from the date of this
order from which to remove the mobile home situated on this property.
¶3.
The Gandys now appeal, asserting that the chancellor erred by failing to follow the
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decision of the Court of Appeals on remand. The Bonners filed a cross-appeal, asserting that
the chancellor erred in awarding parcel 2A and parcel 2B to the Gandys. Finding error, we
affirm in part and reverse and render in part.
STANDARD OF REVIEW
¶4.
Absent an abuse of discretion, this Court will not reverse the decision of the
chancellor. Martin v. Coop, 693 So. 2d 912, 914 (Miss. 1997). “This Court will not disturb
the factual findings of the chancellor unless said factual findings are manifestly wrong or
clearly erroneous.” Id. (citing McAdory v. McAdory, 608 So. 2d 695, 699 (Miss. 1992)).
DISCUSSION
I. THE GANDYS’ APPEAL
¶5.
The Gandys’ sole argument on appeal is that the chancellor erred by failing to follow
the decision of the Court of Appeals on remand. It is well settled that trial courts are bound
on remand by mandates issued by an appellate court. Dunn v. Dunn, 695 So. 2d 1152, 1155
(Miss. 1997). Furthermore, “[w]here [an appellate court] has already decided a specific issue
in a case on a prior appeal, the trial court has been found to be in error where, on remand, it
has refused to follow [the appellate court’s] opinion and directions.” Id.
¶6.
The Gandys argue that the sole reason this Court reversed was for the chancellor to
consider the evidence presented establishing their occupancy of the land from 1941 through
1977. The Gandys would have this Court reverse and remand for yet another hearing so the
chancellor can consider only the record from the original trial. Although our opinion in
Nelson I clearly states that the chancellor should consider the evidence regarding possession
commencing in 1941, our opinion does not decide a specific issue. We noted that “[h]ad [the
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chancellor] [considered the evidence] he may or [may] not have found the evidence
sufficient.” Nelson, 829 So. 2d at 706 (¶21). We reversed for the chancellor to consider the
evidence and determine if the Gandys successfully established adverse possession of the land
on which Nelson’s mobile home sat. Id. at 706 (¶22). Although this Court remanded for a
new hearing, this Court did not decide the primary and controlling issue of the lower case.
Thus, this issue is without merit.
II. THE BONNERS’ CROSS-APPEAL
¶7.
In their cross-appeal, the Bonners argue that the chancellor erred in not awarding them
title to parcel 2A and parcel 2B by adverse possession. Parcel 2A is a triangular-shaped
parcel situated directly north of the north property line of the Bonners’ property. Parcel 2B
is a sliver of property bordered on the north by the Bonners’ north property line and on the
south by Horseshoe Loop Road.2 According to the Gandys’ 2003 survey conducted by
Charles Dwayne Sharp, the Gandys’ property encompasses parcels 2A and 2B. Adverse
possession is statutory in Mississippi. Mississippi Code Annotated section 15-1-13(1) (Rev.
2003) provides, in pertinent part, as follows:
Ten (10) years’ actual adverse possession by any person claiming to be the
owner for that time of any land, uninterruptedly continued for ten (10) years
by occupancy, descent, conveyance, or otherwise, in whatever way such
occupancy may have commenced or continued, shall vest in every actual
occupant or possessor of such land a full and complete title . . . .
To establish a claim of adverse possession, the Bonners must show by clear and convincing
2
Although the Bonners hold title to parcel 2B, they are contending that if the Gandys
prove adverse possession of this property, then they have adversely possessed the property
back from the Gandys.
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evidence that their possession was: “(1) under claim of ownership; (2) actual or hostile; (3)
open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5)
exclusive; and (6) peaceful.” West v. Brewer, 579 So. 2d 1261, 1262 (Miss. 1991) (quoting
Stallings v. Bailey, 558 So. 2d 858, 860 (Miss. 1990)).
¶8.
In regard to parcel 2A, the chancellor determined that there was insufficient evidence
to support the Bonners’ adverse possession claim. The chancellor relied upon the testimony
from the first trial and our decision in Nelson I in which we found that the testimony
presented by the Gandys regarding their possession for the period of time between 1941 and
1977 was un-refuted by the Bonners. Nelson, 829 So. 2d at 706 (¶20). However, our opinion
noted that the evidence presented by the Gandys was not overwhelming in support of their
position. Id. at 706 (¶19). Although the chancellor did not make specific findings of fact,
we will assume that the chancellor made determinations of fact sufficient to support his
judgment. Pace v. Owens, 511 So. 2d 489, 492 (Miss. 1987).
¶9.
In this case, the testimony presented by the Bonners in regard to parcel 2A merely
established that at some point a fence ran along Horseshoe Loop Road, the road which the
Bonners claim borders the north boundary of their property, including parcel 2A and 2B.
Lonnie claimed that between 1970 and 1977 he worked for their predecessor in title, Ollie
Sterling. Bennie, Lonnie’s father, bought the property from Sterling in 1977. Lonnie
testified that they subsequently cut timber from the property. Both Lonnie and Leon,
Lonnie’s brother, moved their mobile homes onto the land. Leon moved his mobile home
onto the land in 1981, and the home was located near the area where Nelson placed her
mobile home in 1996. Lonnie’s mobile home was moved onto the land in 1983 and located
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further east of his brother’s home. The testimony presented by Lonnie, Leon, and their two
witnesses established the Bonners’ ownership of the area near Nelson’s mobile home, but
there was no clear and convincing evidence that parcel 2A was adversely possessed by the
Bonners.
¶10.
In regard to parcel 2B, the chancellor stated that “the Court is satisfied that the parcel
shown as 2B . . . has, in fact, been adversely possessed by the [Gandys.]” However, in their
appeal, the Bonners argue that they had adversely possessed parcel 2B even though they hold
title to parcel 2B. Regardless, the evidence regarding this sliver of property is sparse. A
majority of the testimony concerns the triangular area and the area where Nelson’s mobile
home sits. There is no specific testimony regarding the Gandys’ attempt to adversely possess
parcel 2B. Therefore, we reverse this determination by the chancellor and render judgment
to reflect that the Bonners are the record titleholders to parcel 2B.
¶11. THE JUDGMENT OF THE WAYNE COUNTY CHANCERY COURT IS
AFFIRMED ON DIRECT APPEAL AND REVERSED AND RENDERED ON
CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE DIVIDED EQUALLY
BETWEEN THE APPELLANTS/CROSS-APPELLEES AND APPELLEES/CROSSAPPELLANTS.
KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS
AND MAXWELL, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.
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