Robert S. Robertson v. Chateau LeGrand Property Owner's Assoc. Inc.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-00533-COA
ROBERT S. ROBERTSON
APPELLANT
v.
CHATEAU LEGRAND PROPERTY OWNER’S
ASSOCIATION, INC.
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
01/22/2007
HON. MARGARET ALFONSO
HARRISON COUNTY CHANCERY COURT
WAYNE L. HENGEN
WILLIAM V. WESTBROOK III
CIVIL - REAL PROPERTY
JUDGMENT ENTERED DENYING RELIEF
SOUGHT
AFFIRMED: 10/20/2009
BEFORE MYERS, P.J., ISHEE AND MAXWELL, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
Robert S. Robertson filed suit in the Harrison County Chancery Court against the
Chateau LeGrand Property Owner’s Association, Inc. (Association) seeking equitable relief
and damages. Robertson alleged that the Association and its predecessors leased, rented, and
used his two condominium units at Chateau LeGrand without his consent and knowledge.
He also claimed the Association prohibited him from using his time-share rights. The trial
was bifurcated into a liability phase and a damages phase. After finding in favor of the
Association in the liability portion of the trial, Robertson appeals arguing: (1) his continuing
trespass claim is not barred by the statute of limitations and laches; (2) the Association’s
amended declarations are invalid; (3) the Association did not have the authority to “lock out”
Robertson from his units; and (4) the Association should bear a portion of the appeal costs.
FACTS
¶2.
Chateau LeGrand is a condominium complex with fifty platted units located on Beach
Boulevard in Biloxi, Mississippi. Its declaration of covenants, conditions and restrictions,
and by-laws were adopted in June 1980; the declaration of covenants were amended in
August 1981 to include time-shares units or “interval ownership” units.
¶3.
In August 1981, Robertson acquired a time-share interest or interval ownership for
the twenty-seventh unit week of platted unit 509/living unit 502 (unit 502) and the fiftysecond unit week of platted unit 507/living unit 504 (unit 504). Thereafter, in March 1982,
Robertson purchased platted unit 101/living unit 110 (unit 110), a wholly owned unit.
Robertson went on to purchase a second wholly owned platted unit 304/living unit 307 (unit
307) in April 1982. In August 1984, Robertson conveyed the twenty-fourth unit week of unit
110 to James Juransinki and Nancy Clark; Juransinki and Clark sold the unit week back to
Robertson in July 1987. All of these deeds stated that they were subject to the amended
declaration of covenants, conditions, and restrictions.
¶4.
Robertson testified that he visited his condominiums three to four times per year from
the time he purchased them in the early 1980s until the early 1990s. Robertson testified that
he stopped paying any maintenance fees or assessment in April or May 1991 because he
believed these fees were improperly passed by the board of directors at Chateau LeGrand and
2
the Association.
¶5.
In August 1991, Robertson testified that his daughter was barred from entering unit
307 by Clyde Abercrombie, the property manager at that time, due to Robertson’s failure to
pay his maintenance fees and assessments to the Association. Robertson stated that he did
not return to his condominiums for several years due to the exchange he had with
Abercrombie over his daughter being refused access, his financial conditions, and Hurricane
Andrew damaging his other properties in Louisiana. Robertson testified that he subsequently
turned off all of the utilities in units 110 and 307.
¶6.
In April 1993, Robertson attended a board of directors’ meeting at Chateau LeGrand
to discuss his being charged twice for assessments to unit 110. Unit 110 had previously been
divided into two units, unit 110A and unit 110B. Robertson did not resolve his billing
problem at this board meeting. Robertson was, however, elected to the board of directors for
the Association at this meeting due to two other board members’ resigning.1
¶7.
Robertson testified that during his visit to his condominiums in April 1993, he
discovered six to eight people staying in his unit 110 without his permission or consent.
These people were discovered to be members in a band with Abercrombie, the property
manager. Robertson evicted them from the unit upon his discovery.
¶8.
Meanwhile, due to Robertson’s appointment to the Chateau LeGrand board of
directors for the Association, Robertson was added as a plaintiff in a suit filed by the
1
Robertson was subsequently dismissed as a board member in September 1993 due
to his delinquent fees.
3
Association against Abercrombie and his various corporations in a cased styled “Stephen
Ward, et al. vs. Gulf Landing Resort, Inc., et al.,” Civil Action Number 22,159 (hereinafter
Ward). The plaintiffs sought to stop foreclosures on the properties, remove Abercrombie
from the property, appoint a receiver, conduct a full accounting, and recover certain
assessments and expenditures due to the misappropriation and commingling of funds by
Abercrombie. One of the specific charges in the Ward complaint was that Abercrombie had
“without authorization of the owners, rented out whole units or time-share units which did
not belong to [Abercrombie]. . . . and converted the proceeds to his own use.” Stephen Ward,
a fellow board member, testified that this charge was added to the Ward complaint
specifically for Robertson. However, Robertson testified that he never signed the amended
complaint and did not know he was a named plaintiff.
¶9.
On April 30, 1993, Robertson, Ward, and Robert Tyler, an attorney for the plaintiffs
in the Ward case, went to Chateau LeGrand and informed Abercrombie that he was being
terminated as the manager of the property. Ward testified that the night before they expelled
Abercrombie from Chateau LeGrand, Robertson and Ward met in Robertson’s hotel room
in Biloxi. According to Ward, Robertson and Ward made an agreement that Esta McCrory,
the new manager at Chateau LeGrand, would be able to stay in his unit 110A, and Vernon
Daigle, another board member, would be able to stay in unit 110B. The Association would
credit Robertson’s account at the condominium for seventy percent of the rental income
derived from these two persons renting Robertson’s units, with the other thirty percent being
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retained by the Association.2 However, there was no documentation of a formal agreement
reflecting the above agreement. McCrory testified that she remained in unit 110A for
approximately two months, and then she moved to another unit at the condominiums because
Robertson wanted to increase her monthly rent.
¶10.
On May 6, 1993, an oral stipulation was entered in the Ward case that provided:
McCrory and another individual would be interim managers of the condominium complex;
an independent auditor would be appointed; Abercrombie would refrain from managing the
premises, other than the units he owned; the 70/30 rental arrangement would continue; there
would be no collection of special assessments; and there would be a moratorium placed on
the non-use of units by persons who had not paid certain assessments. Tyler testified that
Robertson was prepared to testify at this hearing about the improper and unauthorized renting
of his condominium units and him not receiving proper credit for the rentals. However,
Robertson stated that he was only an observer at this hearing and did not recall being prepped
by Tyler to testify.
¶11.
On May 9, 1993, a letter, signed by Robertson and the other board members, was sent
to all members of the Association. The letter outlined the actions taken at the May 6, 1993,
hearing, reiterating the 70/30 rental arrangement.
¶12.
The minutes of the board’s July 24, 1993, meeting reflected that the board was going
2
Ward testified that a similar 70/30 rental agreement had been in place at the
condominiums since he purchased his time-shares in 1982. McCrory stated this standard
policy has continued since she began working as manager for the complex in 1993.
5
to notify Robertson of his “current balance due, taking into account all credits for rentals
applied to his account,” and that he must resolve the balance within thirty days or be removed
from the board. On July 27, 1993, the board sent a certified letter to Robertson discussing
his delinquent balance. Included in this letter were ledgers depicting the charges and credits
to each of his wholly owned units and time-share units. The ledgers clearly indicated that
Robertson was receiving credit for rental income to unit 110A and 110B. No such entry
appears for unit 307 or either of his time-share units. Testimony was given that Robertson
never responded to this letter. Another certified letter was sent to Robertson on November
15, 1995, stating that his outstanding balance was approximately $70,560. Robertson did not
respond to this letter either.
¶13.
In July 1997, the Ward judgment was handed down which appointed a receiver for
Chateau LeGrand, and required Abercrombie to deed certain properties to the Association
and settle certain debts that accumulated while Abercrombie was manager. Especially
relevant to the appeal at bar is that the judgment found that both parties agreed that the
original declaration of covenants and restriction, the by-laws, and the amended declarations
of covenants were the controlling documents for the condominium complex. After receiving
the receiver’s report, a second Ward judgment was issued in November 1998, which released
the receiver and Chateau LeGrand from its duties and obligations under the previous order.
No objections or appeals were filed regarding either of the Ward judgments.
¶14.
In December 1998, Ward, acting on behalf of the Association, sent a letter to
Robertson stating that Robertson had a substantial balance of past due maintenance fees on
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his unit 307. The Association offered to rent unit 307 to decrease his balance, with seventy
percent of the rent being credited to his balance. The next month, January 1999, McCrory
sent Robertson a letter, per Robertson’s request, outlining the rental activity in unit 110 from
April 30, 1993, to December 31, 1993. In May 1999, the Association’s president sent
Robertson a letter stating that Robertson should bring his figures in front of the board to
compare with the Association’s findings. Again, in August 1999, the board president sent
Robertson a letter asking that he present his purported balance to the board. Included in this
letter was a very detailed ledger of the fees assessed to Robertson and any rental credits he
received for each of his units. The accounting showed various rentals in unit 110A from July
1994 through November 1998, various rentals in 110B from September 1994 through
December 1998, and no rental activity in unit 307. Robertson finally responded to this last
letter asking that the Association start with a zero balance. However, Robertson was unable
to provide any evidence of when his account had a zero balance. In December 1999, another
letter was sent to Robertson stating the Association complied with Robertson’s request and
began with a zero balance, and his outstanding balance was approximately $64,993.
¶15.
Robertson was reelected to the board in March 1999, notwithstanding that he had yet
to pay any of his outstanding balance. Throughout the next several years, the board
discussed the problems of association members having delinquent fees. Robertson continued
to be one of these delinquent members and was present at the board meetings during these
discussions. The problem came to fruition when Robertson filed suit against the Association
in January 2000.
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¶16.
At the conclusion of a lengthy trial, the chancellor found the following: the original
declaration of covenants, conditions, and restrictions, the by-laws, and the amended
declaration are the controlling documents for the Association; unit 110 is one unit;
Robertson’s suit is not a premature derivative action; the statute of limitations and laches bar
Robertson’s continuing trespass claim; the Association may suspend a non-paying owner’s
space banking right; and the Association’s claims against Robertson for debt prior to May
1999 are barred by the statute of limitations, but the Association may pursue claims from
May 16, 1999, to the present. Aggrieved from the chancellor’s ruling, Robertson appeals.
STANDARD OF REVIEW
¶17.
This Court employs a limited standard of review on appeals from the chancery court.
Great deference is given to the chancellor in his findings of fact, and we will not disturb
those findings unless they are found to be manifestly wrong or clearly erroneous, or where
the chancellor applied an incorrect legal standard. In re Allen, 962 So. 2d 737, 741 (¶14)
(Miss. Ct. App. 2007) (citations omitted). Our job on appeal is to determine whether there
“was substantial, credible evidence supporting the chancellor's findings such that the decision
was not manifestly wrong or clearly erroneous.” Id. We also recognize that because a
chancellor is the only one to hear the testimony of witnesses and observe their demeanor, he
or she is in the best position to evaluate a witness's credibility. Id.
DISCUSSION
1.
¶18.
Continuing Trespass
The chancellor found that Robertson’s continuing trespass claim was barred by the
8
statute of limitations and laches. Robertson argues that the statute of limitations for the
continuing trespass did not begin to run until 1999, when the Association stopped going into
his unit without his consent or knowledge. He argues that each time the Association rented
his unit, it committed a trespass so that the statute of limitations did not begin to run until the
date of the last entry. There was also testimony that the Association went into Robertson’s
units to turn on the cable, telephone, electricity, and to perform pest control. Robertson
argues all of this was done without his consent and knowledge and supports his continuing
trespass claim. Robertson claims that the three-year catchall statute applies to the continuing
trespass claim, the last act of trespass being in 1999. He filed suit in 2000.
¶19.
We must begin with determining whether the discovery rule applies. The “discovery
rule” may be applied when a cause of action does not accrue until a plaintiff knows or
reasonably should have known of his injury. Gerald Gaggini, Mississippi Limitations of
Actions 2d. § 2:05.1 (Jarrod W. Taylor & Thomas B. Walter eds. MLI Press 2006) (citing
54 C.J.S. Limitations of Actions § 87 (1987)). Some Mississippi statutes of limitation have
an express provision for application of the discovery rule; however, if the discovery rule is
not expressly provided for, Mississippi courts have imputed the rule in cases of latent injury.
Id. (citing Barnes v. Singing River Hosp. Sys., 733 So. 2d 199, 205 (¶16) (Miss. 1999))
(applying discovery rule to a Mississippi Tort Claims Act case involving latent injuries).
There is no express provision for application of the discovery rule for the case at bar, so we
must determine whether the discovery rule should be imputed due to a latent injury.
¶20.
A latent injury is one where the plaintiff is “precluded from discovering harm or
9
injury because of the secretive or inherently undiscoverable nature of the wrongdoing in
question . . . [or] when it is unrealistic to expect a layman to perceive the injury at the time
of the wrongful act.” PPG Architectural Finishes, Inc. v. Lowery, 909 So. 2d 47, 50 (¶12)
(Miss. 2005) (citing Donald v. Amoco Prod. Co., 735 So. 2d 161, 168 (¶18) (Miss. 1999)).
“The term ‘latent injury’ while seemingly vague does have definitive boundaries . . . .
[but][b]ecause there is no bright line rule, the specific facts of the case will determine
whether the plaintiff knew or reasonable [sic] should have known that an injury existed.” Id.
at 51 (¶14). Accordingly, “if a latent injury is not present, the discovery rule would not
apply.” Id. at 50 (¶11).
¶21.
We do not find that the discovery rule is applicable to the facts in the case at bar.
Robertson knew that Abercrombie and the Association had been renting out his unit without
his consent as early as 1993 when he discovered Abercrombie’s bandmates in his unit. Ward
and McCrory also testified that the Association sent each member an annual statement that
included his or her account balance. They testified that these statements would have
reflected any rental activity occurring in his units. This is not a secretive or inherently
undiscoverable activity that justifies applying the discovery rule. Accordingly, Robertson’s
trespass claims accrued when they occurred, not when he knew or should have known about
them.
¶22.
The next question is which statute of limitations to apply. A trespass claim for
damages arising due to the cutting of timber must be brought within two years of the time the
injury was committed. See Miss. Code Ann. § 95-5-29 (Rev. 2004) and Miss. Code Ann. §
10
95-5-10 (Rev. 2004). Other trespass actions for specific recovery such as fire, damage to
fences, barns, gates, bridges, buildings, poultry, livestock, boxing pine trees, taking
cottonseed sacks, and boats cast adrift, must be commenced within one year of the date of
damage. See id. Because we are not dealing with the cutting of timber or any of the other
specified recoveries, neither of these statutes apply. Therefore, we must look elsewhere.
¶23.
If there is no express statute of limitations for a cause of action, Mississippi applies
a general three-year statute of limitations. See Miss. Code Ann. § 15-1-49 (Rev. 2003). Both
parties agree that the general, catch-all three year statute of limitations should apply in this
case.
¶24.
In determining when the statute of limitations began to run in this matter, we note the
following:
In the case of a continuing trespass, the statute of limitations does not begin to
run from the date of the original wrong, but rather gives rise to successive
causes of action each time there is an interference with a person’s property.
Thus, if there are multiple acts of trespass, then there are multiple causes of
action, and the statute of limitations begins to run anew with each act.
54 C.J.S. Limitations of Actions § 202 (2008). Therefore, each time the Association rented
out Robertson’s unit or went into Robertson’s unit without his consent or knowledge, a new
cause of action was created.
¶25.
In his complaint and on appeal, Robertson alleges that a continued trespass occurred
in his units from 1991 until 1999. As stated above, a new cause of action arose each time a
trespass occurred. Robertson had three years from each trespass to file a cause of action, yet
he refrained from taking any action against the Association until he filed his complaint on
11
January 26, 2000. Therefore, by applying the three-year statute of limitations, any claim
occurring prior to January 26, 1997, is barred by the statute of limitations.
¶26.
The chancellor found that Robertson did not have a claim for any trespass occurring
from 1993 to 1999 because Robertson engaged in “actual or passive acquiescence” in the
trespass.3 Robertson argues that there is no exception in trespass actions for knowledge,
notice, or acquiescence.
¶27.
While Robertson is correct that no such exception applies, a claim for trespass can be
defeated by the owner consenting to the trespass. “Consent . . . may be implied from custom,
usage, or conduct. Consent . . . will only be applied if the owner has actual knowledge that
people have been entering the [property] and fails to take reasonable steps to prevent or
discourage them.” 75 Am. Jur. 2d. Trespass § 73 (2009). “The decisive factor is the
interpretation which a reasonable man would put upon the possessor’s acts, in the light of all
the surrounding circumstances, and the custom prevailing in the community.” Marlon Inv.
Co. v. Conner, 246 Miss. 343, 350, 149 So. 2d 312, 315 (1963).
¶28.
Upon viewing the evidence, we find that Robertson implicitly consented to the
Association’s actions. As stated above, Robertson discovered members of Abercrombie’s
band in his unit in April 1993. It was at this point that McCrory informed Robertson that
Abercrombie had been renting his unit as early as 1991. Robertson did nothing more than
evict these trespassers. In May 1993, Tyler stated that Robertson was prepared to testify
3
The chancellor found that Robertson’s claims prior to 1993 were barred by the threeyear statute of limitations.
12
about the improper renting and crediting of his unit in 1993. In July 1993, Robertson was
sent a letter reflecting the credits he received on his outstanding balance from the rental
activity occurring in units 110A and 110B. He never responded to this letter. McCrory and
Ward testified that the Association would send a similar letter to each Association member
annually, with their balance and any rental activity taking place in their units. Both testified
that Robertson never responded to any of these annual letters. Robertson also testified that
he knew the Association had turned his electricity back on in his units, but he admitted doing
nothing to notify the Association or turn off the electricity again. He also testified that he
knew that the locks on unit 307 had been changed in 1993, but he did nothing about it.
Robertson even admits in his reply brief that he had knowledge and notice of the trespass,
but he did nothing to stop it.
¶29.
Robertson also testified that he was elected to the board of directors twice during this
time, once in 1993 and again in 1999. In addition to being a board member, Robertson
attended several other board meetings as a whole unit owner and a time-share owner.
However, the minutes reflect that Robertson never took any action regarding these
“unauthorized” rentals.
¶30.
In reviewing the evidence, we find that Robertson implicitly consented to the
Association renting out his unit. He never responded to the letters sent to him, and he never
voiced his disapproval of the rentals at the board meetings, or at any other time prior to filing
his complaint in the present action. In summary, Robertson never objected to the rentals until
he filed his complaint in January 2000, even though he knew that the Association was
13
entering his unit without his consent as early as 1993. Therefore, we do not find error in the
chancellor’s finding that Robertson’s continued-trespass claim is untimely. Accordingly, this
issue is without merit.
2.
¶31.
Amended Declaration
The Association’s original declaration, filed on June 4, 1980, provided that the
declaration could be amended if “not less than sixty[-]six and two-thirds percent of unit
owners” signed the amendment, and the amendment was signed prior to the sale of the first
unit. Robertson argues that the amended declarations, filed in August 1981, did not meet
either of these requirements. He states that the requisite vote never occurred to amend the
declaration, and that the first condominium unit was sold seventeen days prior to the filing
of the amended declarations. Robertson argues that these two occurrences render the
amended declaration invalid.
¶32.
The chancellor found that amended declarations, along with the by-laws and the
original declarations, were the governing documents for the Association. She based her
decision on two grounds: Robertson presented no evidence regarding the invalidity of the
amended declaration, and the parties in Ward agreed that the amended declarations were one
of the controlling documents for the Association.
¶33.
In Bailey v. Estate of Kemp, 955 So. 2d 777, 784 (¶¶ 28-29) (Miss. 2007), the supreme
court stated:
The defense of laches applies when one party neglects to assert a right or
claim, and such neglect, when taken together with any lapses of time and other
circumstances causing prejudice to the adverse party, operates as a bar in a
14
court of equity . . . . The party seeking to invoke the doctrine of laches must
show: (1) a delay in asserting a right or claim; (2) that the delay was not
excusable; and (3) that there was undue prejudice to the party against whom
the claim is asserted.
¶34.
The supreme court addressed the issue of laches in Morgan v. Morgan, 431 So. 2d
1119 (Miss. 1983). In late 1980, six children of E.D. Morgan brought a suit against their
brother, Wallace Morgan, to cancel a quitclaim deed from E.D. to Wallace as a forgery, and
to cancel all claims of interest under the instrument. Id. at 1120. In 1966, Wallace filed a
quitclaim deed which purported to give him property from his father. Id. Thereafter, in
1971, Wallace executed a quitclaim deed to an oil, gas, and mineral lease to an oil company
with the interest to be received by him. Id. The trial court found the quitclaim deed to be a
forgery and cancelled it. Id. However, the oil company’s interest was not invalidated
because the six children were estopped from their claim through laches. Id. On appeal, the
evidence established that 5 of the 6 children had actual knowledge of the quitclaim deed the
year it was filed. Id. at 1121. The supreme court also found that the children would have had
constructive knowledge of the lease through several of their own actions and actions of the
oil company. Id. at 1121-22. The supreme court found the trial court did not err in its
finding that the children were estopped by laches from asserting their claim due to their
unreasonable delay in making their claims known. Id. at 1122.
¶35.
The supreme court also found that laches barred a property owner from asserting her
claim in Twin States Realty Co. v. Kilpatrick, 199 Miss. 545, 26 So. 2d 356 (1946). In
Kilpatrick, the appellee was the owner of three lots and houses. Id. at 547, 26 So. 2d at 357.
15
Her deeds contained a restriction that the lots should be used solely for residential purposes,
and never for commercial purposes. Id. Unaware of the restrictions, the appellee began to
use one of the main rooms of the residence as a tea room and gift shop. Id. at 552, 26 So. 2d
at 357. Appellee even placed a sign outside the gift shop. Id. The appellant, the original
owner of the lot, objected to the sign and directed the appellee’s attention to the restriction.
Id. Appellee removed the sign, but she continued operating the tea room and gift shop. Id.
The evidence established that for six years, no one, including the appellant, made any other
objections to the appellee’s operation. Id. at 553, 26 So. 2d at 358. On appeal, the supreme
court found that laches barred the appellant’s claim. Id.
¶36.
Turning to the case at bar, we find that Robertson’s amended declaration claim against
the Association is barred by laches. As stated above, the amended declarations were filed
in August 1981. Robertson testified that he first read the amended declarations around the
same time he bought unit 110, which was in 1982. In August 1984, Robertson conveyed the
twenty-fourth unit week of unit 110 to Juransinki and Clark. The instrument stated that the
conveyance was subject to the amended declarations. Robertson testified that he voiced his
concern about the invalidity of the amended declarations to an attorney for the Association
at this time, and that the attorney stated the problem would be resolved. Robertson testified
that when he discovered the amended declaration problem would not be resolved, he bought
his unit week back from Juransinki and Clark in July 1987.
¶37.
The evidence establishes that Robertson made no effort to correct the alleged problem
with the amended declarations after they were passed. He was a member of the board of
16
directors for the Association on two separate occasions and visited other board meetings as
a whole unit owner and a timeshare owner, but he never voiced his concern about the alleged
invalidity of the amended declarations. He has now waited over fifteen years to take any
type of action regarding the amended declaration. Therefore, we find that Robertson’s claim
is barred by the defense of laches. Accordingly, this issue is without merit.
3.
¶38.
Lockout
Robertson testified that in December 1995, the board passed a lockout policy where
the Association could lock out a time-share owner if his or her fees were delinquent, charge
a 10% annual interest on the balance, cancel reservations, and prohibit time-share exchanges
with the time-share exchange system Resort Condominiums International (RCI). RCI is a
space banking system, where, by enrolling in the system, a time-share owner may “bank”
unused time from his own unit and spend it in units in RCI’s system located elsewhere. RCI
and the Association had a separate agreement that a time-share owner must be current on his
or her balance at the Association in order for the member to be able to “space bank” their unit
with RCI.
¶39.
At approximately the same time the Association passed the above policy preventing
a delinquent owner from space banking his or her unit with RCI, the Association also passed
a lockout policy whereby the Association would lock delinquent owners out of their units.
¶40.
Robertson states that, under its by-laws and declarations, the Association only has two
remedies against a delinquent owner, an action at law or foreclosure. Robertson argues that
the Association has no such lockout power under the covenants, and that by allowing the
17
Association to pass such a lockout policy, the chancellor exceeded the principles of equity.
¶41.
The chancellor found that by liberally construing portions of the Association’s
declarations of covenants, the Association was allowed to suspend delinquent unit owners
from space banking their unit with RCI. The chancellor also found that due to Robertson’s
refusal to pay his fees and assessments, he came into court with unclean hands.
¶42.
Although the chancellor appeared to find that Robertson was dilatory in bringing his
lockout claims, we find that Robertson’s lockout claims are also barred by the defense of
laches. Robertson testified that, due to his failure to pay his fees and assessments at Chateau
LeGrand, RCI would not allow him to space bank his units as early as 1994. He also testified
that the Association passed a resolution in 1995 or 1996 permitting both lockout policies.
Similar to his amended declarations claim, Robertson sat on his hands for years before taking
any action in hopes of deterring the Association from locking him out of his unit and
suspending his space banking rights with RCI. Therefore, we find that Robertson’s claims
are barred by the defense of laches. This issue is without merit.
4.
¶43.
Costs
Robertson argues that the Association should bear the lion’s share of the appeal costs.
Robertson states that because he is only appealing the chancellor’s conclusions of law, the
record on appeal does not have to be extensive. He argues all that is needed for the present
appeal is the chancellor’s order, an order, the condominium by-laws, its original declaration,
and amended declaration, and one deed.
The remainder of the record, he argues, is
unnecessary and irrelevant.
18
¶44.
The Mississippi Rules of Appellate Procedure dictate that the record on appeal should
include all relevant and necessary information. See M.R.A.P. 10. In Grice v. Grice, 726 So.
2d 1242, 1257 (¶56) (Miss. Ct. App. 1998), this Court required the appellant husband to bear
the costs of additional designation made by the appellee wife because these additional
designations were relevant to the issues being appealed.
¶45.
In his first designation of the record, Robertson listed two judgments, two orders,
portions of Robertson’s and McCrory’s testimonies, and eleven exhibits. The Association,
pursuant to Mississippi Rule of Appellant Procedure 10(b)(4), then filed a supplemental
designation of the record. Robertson responded by filing an amended designation. In his
amended designation, Robertson listed the same two judgments and two orders that were
listed in his original designation, all of Robertson’s and McCrory’s testimonies, and eighteen
exhibits. In his second, and last, amended declaration, Robertson reduced the amount of the
record by listing only one judgment, one order, and four exhibits.
¶46.
While the final, designated record was voluminous, it contained all the necessary
information to render a decision. The testimonies of Robertson, Ward, and McCrory were
needed on all three issues to fully grasp the circumstances surrounding each actor, the
condominium, and its history. The various board minutes were needed to address issues one
and three. The letters that were sent by the board to Robertson were vital to issue one. The
various deeds included in the record were necessary to resolve issue two. Moreover, our
knowledge of the Ward suit would have been minimal without the trial transcript in the
present case and the judgment in the Ward case. Notwithstanding that the record is very
19
copious, it was necessary and relevant to resolve each issue presented. Accordingly, this
issue is without merit.
¶47. THE JUDGMENT OF THE HARRISON COUNTY CHANCERY COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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