           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2015-CA-00331-COA

MARTHA MURRELL                                                               APPELLANT

v.

JEANETTE BROWN AND WILLIE COLEMAN                                            APPELLEES

DATE OF JUDGMENT:                          12/11/2014
TRIAL JUDGE:                               HON. WILLIAM H. SINGLETARY
COURT FROM WHICH APPEALED:                 HINDS COUNTY CHANCERY COURT,
                                           FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                    LISA MISHUNE ROSS
ATTORNEY FOR APPELLEES:                    LATRICE WESTBROOKS
NATURE OF THE CASE:                        CIVIL - PROPERTY DAMAGE
TRIAL COURT DISPOSITION:                   APPELLEES AWARDED $5,000 IN
                                           DAMAGES
DISPOSITION:                               REVERSED AND REMANDED - 08/30/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       BARNES, J., FOR THE COURT:

¶1.    On December 11, 2012, Jeanette Brown and Willie Coleman1 filed a complaint against

their next-door neighbor, Martha Murrell, for constructing a fence in violation of their

subdivision’s protective covenants. The North Colony subdivision covenants explicitly

provide that “[n]o fence shall be constructed nor any other structure be constructed within

25 feet of front property line.” The complaint alleged that Murrell constructed a fence in her

front yard within a few feet of the front property line in violation of this covenant, thereby


       1
        As Brown and Coleman, her domestic partner, have owned the home since 1987,
we will reference the appellees collectively as “Brown” for the sake of simplicity.
diminishing the value of Brown’s property and “hindering [her] use and enjoyment of [her]

property.” Brown requested that the fence be removed and that damages be awarded in the

amount of $30,000, including reasonable attorney’s fees and costs.

¶2.    The complaint was originally filed in the County Court of Hinds County. On March

6, 2013, Brown moved for a default judgment against Murrell, based on Murrell’s failure to

answer the complaint. The following day, Murrell filed an answer. On September 11, 2013,

the court granted a motion filed by Brown’s attorney to withdraw as the attorney of record.

Brown subsequently requested that the case be transferred to chancery court, arguing that the

county court had no subject-matter jurisdiction. See Miss. Code Ann. § 9-9-21; § 9-9-23

(Rev. 2014). The case was transferred to Hinds County Chancery Court, First Judicial

District, on September 27, 2013.

¶3.    After a hearing on December 3, 2014, the chancery court found Murrell in violation

of the subdivision’s covenants and ordered her to remove the fence. The court further held

that because “the defendant, or agents on her behalf, mutilated the plaintiffs’ tree and came

on to the property of the plaintiffs to accomplish such,” Brown was entitled to $5,000 in

damages. Murrell filed a motion to reconsider, which the chancellor denied.

¶4.    On appeal, Murrell claims that the chancery court abused its discretion in awarding

damages for the tree and that the damage award of $5,000 was excessive.2 Although we find

no abuse of discretion in awarding damages for the mutilation of the tree, we do find that the

damage award was excessive in light of the evidence. Therefore, we reverse the judgment



       2
           She does not challenge on appeal the chancery court’s order to remove the fence.

                                              2
and remand for another hearing on the damages issue consistent with this opinion.

                                STANDARD OF REVIEW

¶5.    A chancery court’s findings that are supported by substantial evidence, and which are

not an abuse of discretion, manifestly wrong or clearly erroneous, or based on an application

of an erroneous legal standard, will not be disturbed on appeal. Estate of Parrott v.

McGruder, 820 So. 2d 780, 781 (¶10) (Miss. Ct. App. 2002) (citing McNeil v. Hester, 753

So. 2d 1057, 1063 (¶21) (Miss. 2000)).

                                       DISCUSSION

¶6.    In awarding Brown $5,000, the chancery court reasoned that Murrell or someone on

her behalf “mutilated [Brown’s tree] by chopping off these limbs in such a way that I don’t

know what it would look like when it grows back. And [the person] came several feet over

onto [Brown’s] property to do it.”3 Murrell asserts that the chancery court abused its

discretion in awarding damages for the tree, as Brown failed to reference the tree damage in

the complaint.

¶7.    On July 6, 2012, Brown’s attorney sent a letter to Murrell, noting the violation of the

covenants due to the construction of the fence. The letter further stated:

       When building your fence[,] you also cut limbs from my client’s tree near the
       side line of your property. This tree is on my client’s property and you were
       not authorized to cut her tree limbs. In addition to damaging my client’s

       3
          There was testimony regarding attorney’s fees, but the chancellor did not
specifically include these in the award. The Mississippi Supreme Court has recognized that
“if attorney’s fees are not authorized by the contract or by statute, they are not to be awarded
when an award of punitive damages is not proper.” Hamilton v. Hopkins, 834 So. 2d 695,
700 (¶16) (Miss. 2003). There was no provision for the recovery of attorney’s fees under
the protective covenants, and no statutory law was cited to the court below.

                                               3
       property, the fence in the front yard diminishes the overall value of my client’s
       property due to its unsightliness.

Although the complaint did not reference the tree damage, pictures of the tree were entered

into evidence at the hearing, showing that the tree’s branches had been cut at the fence line.

¶8.    Murrell made no objection to the evidence regarding the cutting of the tree. Rule

15(b) of the Mississippi Rules of Civil Procedure provides that “[w]hen issues not raised by

the pleadings are tried by expressed or implied consent of the parties, they shall be treated

in all respects as if they had been raised in the pleadings.” The Mississippi Supreme Court

has held: “[I]f evidence is offered by a party which is outside the scope of the pleadings and

the other party fails to object, the opponent will be considered to have impliedly consented

to the issue and the pleading will be amended accordingly[.]” Lahmann v. Hallmon, 722 So.

2d 614, 619 (¶16) (Miss. 1998) (citing Queen v. Queen, 551 So. 2d 197, 202 (Miss. 1989));

see also Renfroe v. Berryhill, 910 So. 2d 624, 629 (¶20) (Miss. Ct. App. 2005) (finding that

because the defendant “failed to object and . . . . his actions at trial indicate[d] that he did

recognize the entrance of the issue into the case, . . . the issue of [the plaintiff’s] employment

status was tried by implied consent”) (citing Lahmann, 722 So. 2d at 619 (¶¶15-16); Shipley

v. Ferguson, 638 So. 2d 1295, 1300 (Miss. 1994)). The cutting of the tree was also related

to the building of the fence in question; the limbs were cut right at the fence line.

¶9.    Murrell claims that Brown failed to provide any proof that Murrell or her agent caused

the damage to the tree. Brown asserted at the hearing that Murrell “took a power saw and

cut [her] tree to build the fence,” but Brown conceded that she did not personally witness

Murrell, or anyone acting on her behalf, cut the tree. She simply testified that she “was

                                                4
informed [Murrell’s] father had cut the tree.” The chancellor, as the fact-finder, clearly

determined that Murrell or her agent cut Brown’s tree. See Brown v. Brown, 142 So. 3d 425,

429 (¶15) (Miss. Ct. App. 2013) (“A chancellor sits as a fact-finder and, in resolving factual

disputes, is the sole judge of the credibility of witnesses.” (quoting Murphy v. Murphy, 631

So. 2d 812, 815 (Miss. 1994))). We find no error in the chancery court’s findings.

Circumstantial evidence (limbs cut at the fence line) clearly supports the court’s finding that

someone acting on Murrell’s behalf cut the limbs during the construction of the fence.

       It is not within the prerogative of an appellate court to re-weigh the evidence
       and reach an independent decision as to whether the court agrees or disagrees
       with the chancellor. Rather, on appeal, our authority is limited to interceding
       only to correct what we consider to be a manifest error in the chancellor’s
       decision on the facts.

Simmons v. Simmons, 724 So. 2d 1054, 1059 (¶16) (Miss. Ct. App. 1998).

¶10.   Murrell also contends that the award of $5,000 “for the mutilation of the tree did not

address the fair market value of the tree in question.” In her motion for reconsideration, she

argued that “[t]he tree in question is not a fruit[-]bearing tree and the cost of complete life

maturity is no more [than] two hundred and fifty dollars.” On appeal, by way of analogy, she

cites Mississippi Code Annotated section 95-5-10(1) (Rev. 2013), which provides:

       If any person shall cut down, deaden, destroy or take away any tree without the
       consent of the owner of such tree, such person shall pay to the owner of such
       tree a sum equal to double the fair market value of the tree cut down,
       deadened, destroyed or taken away, together with the reasonable cost of
       reforestation, which cost shall not exceed Two Hundred Fifty Dollars
       ($250.00) per acre.

This is the “the exclusive remedy . . . and shall be in lieu of any other compensatory, punitive

or exemplary damages[.]” Id. Although acknowledging that this case does not involve the

                                               5
cutting of timber, Murrell argues that this statute “is instructive on the issue of damages for

the cutting down of a tree.” Murrell misreads the statute, as $250 is the cost of reforestation,

not the maximum fair market value of the tree under the statute. Brown does not specifically

address this argument in her brief, merely asserting that the damage award “was not

manifestly wrong or an abuse of discretion.”

¶11.   The chancery court properly found that Brown’s tree suffered some damage, and

Murrell (or her agent) likely trespassed on Brown’s property to cut the tree. However, we

find the chancellor’s award of $5,000 for the tree damage was excessive and not supported

by substantial evidence. Brown’s tree was not cut down; the tree’s branches were merely cut

back at the fence line. While the pruning was unsightly, there was no evidence presented that

the tree was permanently damaged.

¶12.   In his separate opinion, Judge Wilson contends that this Court should render an award

for nominal damages of $10, based on Brown’s failure to provide any evidence of actual

damages. We agree that proof of actual damages must be shown in order to recover more

than nominal damages. Chevron Oil Co. v. Snellgrove, 253 Miss. 356, 364, 175 So. 2d 471,

474 (1965). Actual damages are defined as follows: “Compensation for actual injuries or

loss[.] [A]ctual damages flowing from injury[,] . . . which are to be distinguished from

damages which are nominal, exemplary or punitive[.] [A]ctual damages are synonymous

with compensatory damages.” Gorman v. McMahon, 792 So. 2d 307, 316 (¶22) (Miss. Ct.

App. 2001) (quoting Black’s Law Dictionary 35 (6th Ed. 1990)). While there was no

discussion or evidence presented regarding the tree’s value, we find that evidence of actual



                                               6
damages suffered by Brown was provided to the court through pictures of the “mutilated”

tree and could be ascertained by the chancellor. In Muirhead v. Vaughn, 878 So. 2d 1028,

1032 (¶¶13-14) (Miss. Ct. App. 2004), William Muirhead provided the chancery court

photographs showing his land had been cleared without his permission, and this Court

concluded that those photographs constituted proof of actual damages. We reversed and

remanded for damages, noting “once the chancellor was presented clear evidence that

Muirhead owned the property and that the trees had been cut without his consent, the

chancellor was obliged under the circumstances to award damages in some form.” See also

Chevron Oil Co., 253 Miss. at 367, 175 So. 2d at 475 (finding a jury instruction for nominal

damages should not have been granted and remanding for a determination of damages, noting

that although “damages were not shown with reasonable certainty[,] . . . . [i]t [was] admitted

that there was actual damage to the land”). Accordingly, we reverse the judgment and

remand for a hearing on the damages.

¶13. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY,
FIRST JUDICIAL DISTRICT, IS REVERSED, AND THIS CASE IS REMANDED
FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

      LEE, C.J., IRVING, P.J., ISHEE, FAIR AND GREENLEE, JJ., CONCUR.
WILSON, J. CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE
WRITTEN OPINION, JOINED BY GRIFFIS, P.J; CARLTON, J., JOINS IN PART.
CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. JAMES,
J., NOT PARTICIPATING.

       WILSON, J., CONCURRING IN PART AND DISSENTING IN PART:

¶14.   I agree that there was some evidence to support a finding that Murrell or someone

acting on her behalf committed a slight trespass by cutting tree branches on Brown’s


                                              7
property. Murrell “had the right at all times to . . . remove so much of the [branches] as

overhung [her] land.” Rogers v. Ford, 57 So. 3d 681, 683 (¶7) (Miss. Ct. App. 2011)

(quoting Griefield v. Gibralter Fire & Marine Ins., 199 Miss. 175, 181, 24 So. 2d 356, 358

(1946)); accord Buckingham v. Elliott, 62 Miss. 296, 300 (1884) (holding that if a tree’s

branches “overhang a neighbor’s soil,” “[t]he neighbor has a remedy in such case by clipping

the overhanging branches”). But Murrell’s right to self-help stopped at the property line,4

and a photograph—entered into evidence as Trial Exhibit 8 and included as an appendix to

this opinion—appears to show that the tree was cut beyond the property line by a matter of

inches or maybe as much as a couple of feet.

¶15.   However, as the majority recognizes, Brown presented absolutely no evidence of the

tree’s value or that it was permanently damaged. Ante at (¶11). In fact, Brown did not even

establish what kind of tree is at issue in this appeal.5 It was Brown’s burden to prove her


       4
          See, e.g., Melnick v. C.S.X. Corp., 540 A.2d 1133, 1135 (Md. 1988) (“With regard
to self-help, the landowner is generally limited to cutting back growth to the property line;
he may not enter the adjoining landowner’s property to chop down a tree or cut back growth
without his neighbor’s consent.”); Lane v. W.J. Curry & Sons, 92 S.W.3d 355, 360 (Tenn.
2002) (“The courts uniformly hold that a landowner has a remedy of self-help, meaning that
the landowner has the right to cut encroaching branches, roots, and other growth to the
property line, but may not enter the adjoining property to chop down the tree or plant or cut
back growth without the adjoining property owner’s consent.”); Alvarez v. Katz, 124 A.3d
839, 844 (Vt. 2015) (“It is clear . . . that the right to self-help extends only to the property
line. Under the self-help remedy, a landowner subject to encroachment may not cross the
property line and cut or remove that part of a tree or hedge which has not encroached.”);
Brewer v. Dick Lavy Farms LLC, No. 2015–CA–7, 2016 WL 3461100, at *15 (Oh. Ct. App.
June 24, 2016) (Hall, J., concurring) (“[A landowner] may cut, mutilate, decimate, pulverize
or obliterate branches or roots which infringe upon her property from a neighbor’s trees or
plants. . . . What she cannot do is intrude into the neighbor’s property in doing so.”).
       5
         In a post-trial motion, Murrell submitted a report from Donna Beliech, a certified
arborist and Area Horticulture Agent for the Mississippi State University Extension Service.

                                               8
damages, and having failed to present any evidence of actual damages, she should not be

given another opportunity to do so. “A litigant is entitled to but one bite at the damages

apple. . . . I know of no law directing that a plaintiff who misses with his first shot at proving

damages should be given a second shot.” Whittington v. Whittington, 535 So. 2d 573, 588

n.1 (Miss. 1988) (Robertson, J., concurring), maj. op. overruled on other grounds by C & C

Trucking Co. v. Smith, 612 So. 2d 1092 (Miss. 1992). Accordingly, I disagree with the

majority’s decision to “remand for a hearing on the damages.” Ante at (¶12).

¶16.   Because Brown failed to prove any damages, we should simply bring the case to an

end by rendering judgment in favor of Brown for nominal damages only. The Supreme

Court has held that ten dollars is an appropriate amount. In Whitten v. Cox, 799 So. 2d 1

(Miss. 2000), the Court reasoned as follows:

       [W]here there is a trespass to land, the landowner has a right to at least
       nominal damages. The jury’s refusal to award nominal damages for the
       trespass was in error, but since there were no actual damages resulting from
       the trespass, this error is of little consequence. If this Court reversed and
       remanded on this issue, [the landowner] could only receive nominal damages.
       Instead, this error will be cured by this Court reversing and rendering an award
       of nominal damages without the necessity of remand or retrial. Accordingly,
       we reverse and render as to the trespass claim only and award [the landowner]
       nominal damages in the total amount of $10.00 . . . .

Id. at 18 (¶47) (citation omitted); accord Reeves v. Meridian S. Ry. LLC, 61 So. 3d 964,

968-69 (¶¶22-23) (Miss. Ct. App. 2011) (rendering judgment for $10 nominal damages

where there was no proof that trespass caused any actual damages); Gaw v. Seldon, 85 So.


Beliech stated that “[t]he landscape plant in question is a mature Variegated Wax Leaf
Ligustrum, Ligustrum japonicum,” which she characterized as a “shrub” rather than a tree.
Beliech concluded that there was no permanent damage to the shrub and that, even if it had
been destroyed completely, its replacement cost was between $125 and $287.50.

                                                9
3d 312, 318 (¶¶21-24) (Miss. Ct. App. 2012) (same). We should do the same in this case.

¶17.   In summary, there was some evidence to support a finding that Murrell exceeded her

right to self-help and intruded upon Brown’s property, but Brown presented no evidence to

meet her burden of proving that she suffered damages as a result. Having failed to do so, she

is not entitled to a second chance to prove compensatory damages. Therefore, rather than

remand the case, we should render judgment for nominal damages only. Accordingly, I

respectfully concur in part and dissent in part.

     GRIFFIS, P.J., JOINS THIS OPINION; CARLTON, J., JOINS THIS OPINION
IN PART.




                                             10
Appendix




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