       IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                            NO. 2015-CA-00115-COA

JUNE ROSE THOMPSON VARNELL AND                                      APPELLANTS
DEXTER VARNELL

v.

MICHAEL FREDERICK ROGERS, JUDY                                        APPELLEES
CHISUM ROGERS, LAURA RATLIFF A/K/A
LAURA RATLIFF ROGERS, AND JOSEPH
SADLER

DATE OF JUDGMENT:                      10/28/2014
TRIAL JUDGE:                           HON. VICKI B. DANIELS
COURT FROM WHICH APPEALED:             DESOTO COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS:              JERRY WESLEY HISAW
                                       H.R. GARNER
ATTORNEY FOR APPELLEES:                NEAL HOWARD LABOVITZ
NATURE OF THE CASE:                    CIVIL - OTHER
TRIAL COURT DISPOSITION:               DISMISSED WITH PREJUDICE THE
                                       APPELLANTS’ COMPLAINT FOR
                                       INJUNCTIVE OR OTHER RELIEF
                                       AGAINST THE APPELLEES, ISSUED AN
                                       INJUNCTION AGAINST THE
                                       APPELLANTS IN FAVOR OF THE
                                       APPELLEES, AND AWARDED THE
                                       APPELLEES DAMAGES
DISPOSITION:                           AFFIRMED IN PART; REVERSED AND
                                       RENDERED IN PART – 04/19/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE IRVING, P.J., BARNES AND ISHEE, JJ.

      IRVING, P.J., FOR THE COURT:

¶1.   June Rose Thompson Varnell and Dexter Varnell (the Varnells, unless the context

dictates otherwise) appeal from a judgment of the Chancery Court of DeSoto County,
dismissing with prejudice their complaint for injunctive or other relief against Michael

Frederick Rogers and Judy Chisum Rogers (the Rogerses, unless the context dictates

otherwise), Laura Ratliff a.k.a. Laura Ratliff Rogers (Ratliff), and Joseph Sadler.1 The

chancery court also granted the Rogerses’ counterclaim for nuisance against the Varnells and

ordered the Varnells to reimburse the Rogerses $1,000 for a fence that the Rogerses had

erected on their property to place a barrier between the Rogerses’ and the Varnells’

properties. The chancery court also ordered the Varnells to pay the Rogerses $5,000 in

attorney’s fees. The Varnells filed a motion for reconsideration and/or a new trial, which the

chancery court denied. The Varnells appeal, arguing that the chancery court erred in (1) not

issuing an injunction against the Rogerses, (2) ordering them to reimburse the Rogerses for

the fence, and (3) awarding attorney’s fees to the Rogerses.

¶2.    Finding that the chancery court did not err in dismissing the Varnells’ complaint

against the Rogerses and refusing to issue an injunction against the Rogerses, we affirm that

portion of the judgment. However, we find that the chancery court erred in ordering the

Varnells to pay attorney’s fees and to reimburse the Rogerses for the cost of the fence.

Therefore, we reverse and render both awards.

                                          FACTS

¶3.    On January 23, 2002, June Varnell purchased the Varnells’ home in Southaven,



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        Judy and Michael Rogers are husband and wife, Ratliff is Judy and Michael’s
daughter, and Sadler is a family friend of Judy, Michael, and Ratliff.

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Mississippi. While the house was being constructed, June testified that she experienced,

among other things, vandalism, theft of building materials, the workmen’s port-a-potty being

overturned multiple times, and garbage being left on her property, all of which the Varnells

allege was caused by their neighbors, the Rogerses. The Varnells moved into their home on

October 23, 2004. Beginning in 2009 and continuing until 2014, a series of incidents

occurred between the Varnells and the Rogerses, all of which the Varnells also allege was

caused by the Rogerses, Ratliff, and Sadler. Some of the incidents required the assistance

of both law enforcement and the chancery court. Those incidents included, but were not

limited to: (1) fireworks landing on the Varnells’ property, (2) feces allegedly being placed

on the Varnells’ porch, (3) alleged “catcalls” by the Rogerses, Ratliff, and Sadler towards the

Varnells, (4) leaves that had been raked off the Varnells’ property by Dexter appearing back

on the Varnells’ property the next day, (5) friends of Ratliff allegedly coming and knocking

on the Varnells’ door, and (6) the Varnells’ plants being destroyed.

¶4.    In July 2009, Dexter began constructing a fence on the property line between the

Varnells’ and the Rogerses’ properties. However, he halted construction of the fence

because he became ill and had to have surgery. Michael then hired a friend to construct a

fence on his property, beginning at the point where the Rogerses’ partially constructed fence

terminated and continuing to the end of the property line between the Varnells and the

Rogerses.

¶5.    In January 2012, Dexter and Ratliff signed a mutual agreement in the Municipal Court


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of the City of Southaven whereby “[Ratliff] agreed not to harass or come on the property of

[Dexter], nor molest or interfere with [Dexter], or litter the yard of [Dexter].” On January

3, 2014, the Varnells filed a complaint for injunctive relief against the Rogerses, Ratliff, and

Sadler. The Varnells sought injunctive relief to preclude the Rogerses, Ratliff, and Sadler

from (1) causing a nuisance through the shooting of fireworks, (2) preventing the Varnells

from enjoying their property, and (3) continuing to harass the Varnells. Sadler filed a pro se

answer, wherein he denied all the allegations in the complaint. Subsequently, the Rogerses

filed an answer, by and through counsel, wherein they also denied the allegations within the

complaint and, in addition, filed a counterclaim against the Varnells for nuisance. On

October 28, 2014, the case was tried before the chancery court, and a plethora of testimony

was presented by both the Varnells and the Rogerses.

¶6.    Following the close of all the evidence, the chancellor issued a bench ruling in favor

of the Rogerses. While issuing her ruling, the chancellor noted the Varnells’ lack of actual

evidence linking the Rogerses, Ratliff, and Sadler to the numerous acts that they had accused

them of committing. The chancery court entered an order, on December 1, 2014, nunc pro

tunc for October 28, 2014, that granted to the Rogerses the relief discussed earlier in this

opinion. This appeal ensued.

                                       DISCUSSION

¶7.    A chancellor’s factual findings will not be disturbed “when supported by substantial

evidence unless [we] can say with reasonable certainty that the chancellor abused his


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discretion, was manifestly wrong, clearly erroneous[,] or applied an erroneous legal

standard.” Biglane v. Under the Hill Corp., 949 So. 2d 9, 13-14 (¶17) (Miss. 2007) (internal

citation and quotation marks omitted). “Additionally, where the chancellor has made no

specific findings, we will proceed on the assumption that the chancellor resolved all such fact

issues in favor of the appellee.” City of Picayune v. S. Reg’l Corp., 916 So. 2d 510, 519

(¶22) (Miss. 2005) (citing Newsom v. Newsom, 557 So. 2d 511, 514 (Miss. 1990)). We

review questions of law de novo. Biglane, 949 So. 2d at 14 (¶17) (internal citation omitted).

       I.      Injunction

¶8.     Here, the Varnells argue that the chancellor erred in failing to issue an injunction

against the Rogerses, Ratliff, and Sadler. We review a chancellor’s denial of an injunction

for abuse of discretion. Ruff v. Estate of Ruff, 989 So. 2d 366, 369 (¶11) (Miss. 2008)

(internal citation omitted). The Mississippi Supreme Court has explained:

       Rather than implying bad faith or an intentional wrong on the part of the trial
       judge, an abuse of discretion is viewed as a strict legal term that is clearly
       against logic and effect of such facts as are presented in support of the
       application or against the reasonable and probable deductions to be drawn
       from the facts disclosed upon the hearing.

White v. State, 742 So. 2d 1126, 1136 (¶42) (Miss. 1999) (internal citation and quotation

marks omitted).

¶9.    In support of their argument, the Varnells contend that the injunction against them is

“vague and overly broad.” They also contend that the injunction is so broad that they could

violate the injunction by just looking at the Rogerses or asking the Rogerses to stop shooting


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fireworks.2 The Varnells further contend that the testimony produced at trial by the Rogerses

was not enough to support an injunction against them. In support of their argument that an

injunction should have been issued in their favor, the Varnells point to the incidents

previously discussed in the facts section of this opinion and point out that Sadler, who

proceeded pro se, testified that he did not have any objection to an injunction being issued

against him.

¶10.   We briefly review the evidence produced at trial. June testified about the various

incidents that occurred from 2004 to 2014, including, but not limited to, fireworks being shot

by the Rogerses and landing in the Varnells’ yard, feces being left in a bag on the Varnells’

porch, and finding a used personal-hygiene item and cigarette butts in their yard. During her

testimony, June was asked if she had any proof that the Rogerses were actually the parties

committing the acts that she was accusing them of committing. After being asked the

question multiple times, she failed to offer any proof, other than her belief, that it was the

Rogerses who had committed the acts. The Varnells also put on testimony from Richard

Tamboli, the Varnells’ landscape designer. Tamboli’s testimony echoed June’s allegation

that the Rogerses and Sadler had driven by the Varnells’ home in September 2012 and

“ma[de] faces, gestures, [and] funny sounds.” Tamboli testified that, while he was


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         The injunction against the Varnells states that “[t]he [Varnells] are restrained from
interfering with [the Rogerses’] use and enjoyment of their property[] [and] . . . [that] [the
Varnells] are restrained from interfering with [the Rogerses’], [the Rogerses’] family’s,
and/or [the Rogerses’] guests’ use of [the Rogerses’] property and/or public roadways of the
city of Southaven.”

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conducting a consultation with June, he observed a car full of people who had left the

Rogerses’ home make obscene gestures while passing by the Varnells’ yard. However, when

asked on direct examination if he could “see the young man that was in the car in the

courtroom,” Tamboli responded, “It was such a short meeting I couldn’t tell you if I

recognized him.” On cross-examination, when asked if he was testifying that he “did not see

the party or recognize the party[,]” Tamboli stated, “I remember seeing people, but you’re

talking about one meeting. For me to remember exactly that person’s face, that’s all [sic].”

¶11.   The Varnells also put on testimony from Eileen Murley, a neighbor of both the

Varnells and the Rogerses and a friend of June. Murley testified to hearing “screaming,

yelling, [and] [n]onsensical noises” coming from the Rogerses, both while she was in her

home and at the Varnells’ home. She also testified to seeing the Rogerses shooting fireworks

on July 4, 2013, and hearing fireworks in the vicinity on other occasions. On cross-

examination, when asked if she had actually observed anyone screaming and yelling, Murley

testified that she had only observed someone yelling at the Rogerses’ home on one occasion

when she was standing in the Varnells’ driveway. She identified Sadler as the person doing

the screaming on that date. However, she acknowledged that he was not directing any kind

of threat towards the Varnells. Rather, she testified, “It was nonsensical. No sense to

speech, screaming, and yelling.” Dexter also testified during the Varnells’ case-in-chief and

addressed the string of incidents that allegedly occurred between the Varnells and the

Rogerses from 2009 to 2014. Dexter testified that he had found fireworks in his yard on


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“several” occasions. He also testified that in April 2011, he and his wife observed Ratliff get

into a physical altercation with a woman in the Rogerses’ yard, and while Ratliff was being

taken into police custody, he observed her yelling to June, “How ya doing.” He identified

Exhibit C as the municipal-court agreement between him and Ratliff, wherein she agreed not

to harass, litter the Varnells’ yard, come on to the Varnells’ property, or interfere with the

Varnells in any manner. He testified that Ratliff had not lived up to her end of the agreement

but did not explain how she had violated the terms of the agreement. Dexter’s testimony also

echoed his wife’s testimony in several respects. On direct examination, when asked about

whether he had a problem with the chancery court issuing a mutual injunction enjoining the

Rogerses from bothering the Varnells and enjoining the Varnells from bothering the

Rogerses, he stated that the Varnells did not have a problem with such an injunction.

¶12.   The Varnells argue that the Rogerses did not produce enough evidence to support an

injunction in the Rogerses’ favor. However, we find that that argument fails because the

Rogerses not only testified themselves, but they offered the testimonies of Ratliff and Sadler,

all of which detailed the offensive things that the Varnells had done. More specifically, the

Rogerses’ testimonies included the following allegations: (1) the Varnells had cameras

pointing at their home; (2) the Varnells requested that the Rogerses’ and Ratliff’s guests not

park on the public street in front of the Varnells’ home; (3) June would throw up the middle

finger whenever she saw the Rogerses exiting their home; (4) the Varnells took pictures of

the Rogerses’ guests as they would come and go; and (5) Dexter had almost run Judy over


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with his car while she was walking in the street with Michael and their grandchild. The

Rogerses also testified that they were in fear of the Varnells and what the Varnells might do

next.

¶13.    It is well settled that “[o]ne landowner may not use his land so as to unreasonably

annoy, inconvenience, or harm others.” Leaf River Forest Prods. Inc. v. Ferguson, 662 So.

2d 648, 662 (Miss. 1995). It is also well settled that, “[t]o obtain a permanent injunction, a

party must show an imminent threat of irreparable harm for which there is no adequate

remedy at law.” Punzo v. Jackson Cty., 861 So. 2d 340, 347 (¶26) (Miss. 2003) (quoting

Reynolds v. Amerada Hess Corp., 778 So. 2d 759, 765 (¶28) (Miss. 2000)) (internal citations

and quotation marks omitted). “The balancing of equities in a nuisance case is to be done

by the chancellor in accordance with established equitable principles.” Lambert v. Matthews,

757 So. 2d 1066, 1068 (¶7) (Miss. Ct. App. 2000). “Each case is to be decided on its own

facts, taking into consideration the location and the surrounding circumstances.” Id. at 1069

(¶11) (citing Alfred Jacobshagen Co. v. Dockery, 243 Miss. 511, 517, 139 So. 2d 632, 634

(1962)). It is not a requirement “that the other property owners be driven from their homes,

but only that their enjoyment of life and property is rendered materially uncomfortable and

annoying.” Id. (internal citation and quotation marks omitted).

¶14.    As stated above, both the Varnells and the Rogerses put on testimony regarding

various incidents that had occurred, and although the Varnells made many allegations against

the Rogerses, they were unable to produce any evidence linking the Rogerses to the alleged


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acts other than perhaps evidence of a small amount of debris from fireworks on one Fourth

of July. The record reflects ample evidence undergirding the chancellor’s findings of fact.

Moreover, it is the responsibility of the chancellor to weigh the credibility of the witnesses

and balance the equities of the parties. As such, we find that the chancellor was well within

her discretion to find one party’s testimony more credible than the other’s. Therefore, we

cannot find that the chancellor abused her discretion in dismissing the Varnells’ complaint

and, instead, granting an injunction against the Varnells.

       II.    Damages for the Fence

¶15.    Next, the Varnells argue that the chancellor erred in awarding reimbursement

damages to the Rogerses for the fence that Michael had constructed between the Rogerses’

and the Varnells’ properties. In support of their argument, the Varnells cite Mississippi Code

Annotated section 89-13-1 (Rev. 2011), which provides:

       Persons owning adjoining land or lots, or being lessees thereof for more than
       two years, shall be bound to contribute equally to the erection of fences on the
       line dividing the land or lots, if the land or lots on their respective sides be
       used by the owner or lessee thereof for purposes of cultivation, or for
       horticultural purposes, or for the purpose of pasturing cattle, horses, hogs or
       sheep, or if a lot be used as an inclosure for any other purpose; and each party
       shall be bound to contribute equally toward keeping the party fences in good
       repair so long as the land or lot be so used. An owner shall not be bound to
       contribute to the erection of a party fence, either built or to be built, or to
       keeping the same in repair, who may prefer to build a fence and to leave a lane
       on his land between himself and the adjoining owner. But the failure to erect
       such fence for the space of sixty days shall be deemed an abandonment of the
       intention to do so, and a determination to adopt the fence built, and the person
       so failing shall then be bound to pay his proportion of the value of the party
       fence.


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(Emphasis added).

¶16.   Although the portion of the fence that Michael constructed was along the Varnells’

and the Rogerses’ property line, there is no evidence that the fence was in fact a party fence

within the meaning of section 89-13-1. Therefore, the chancery court erred in requiring the

Varnells to reimburse the Rogerses for the cost of the fence that the Rogerses constructed.

Accordingly, we reverse and render that portion of the judgment.

       III.   Attorney’s Fees

¶17.   Finally, the Varnells argue that the chancellor erred in awarding attorney’s fees to the

Rogerses. In support of their argument, the Varnells cite Grisham v. Hinton, 490 So. 2d

1201, 1205 (Miss. 1986), where the Mississippi Supreme Court stated:

       With the sole exception of punitive damages cases, in the absence of a
       contractual provision or statutory authority therefor, this [c]ourt has never
       approved awarding trial expenses and attorney[’s] fees to the successful
       litigant. It has consistently been our view that such expenses are not allowable
       as part of the costs.

In the matter currently before us, there was neither a contract between the parties nor an

award of punitive damages. In addition, the Rogerses have not cited any statutory authority

as a basis for awarding the attorney’s fees under the facts of this case. Consequently, we

find that this award should also be reversed and rendered.

¶18. THAT PORTION OF THE JUDGMENT OF THE CHANCERY COURT OF
DESOTO COUNTY DISMISSING THE APPELLANTS’ COMPLAINT AND
GRANTING AN INJUNCTION IN FAVOR OF THE APPELLEES IS AFFIRMED,
AND THAT PORTION OF THE JUDGMENT AWARDING ATTORNEY’S FEES
AND DAMAGES IN THE AMOUNTS OF $5,000 AND $1,000, RESPECTIVELY, IS
REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED

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ONE-HALF TO THE APPELLANTS AND ONE-HALF TO THE APPELLEES.

    LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, FAIR, JAMES AND
GREENLEE, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION.




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