                       IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2004-CA-02193-SCT

HUEY STOCKSTILL AND GAYLE B. STOCKSTILL

v.

LYNN CROSBY GAMMILL, STEWART GAMMILL, III,
STEWART GAMMILL, IV, LUCIUS OLSEN CROSBY
GAMMILL AND JENNIFER LYNN GAMMILL McKAY


DATE OF JUDGMENT:                            01/07/2004
TRIAL JUDGE:                                 HON. JOHNNY LEE WILLIAMS
COURT FROM WHICH APPEALED:                   PEARL RIVER COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS:                     O. STEPHEN MONTAGNET, III
ATTORNEY FOR APPELLEES:                      PAUL NORMAN DAVIS
NATURE OF THE CASE:                          CIVIL - REAL PROPERTY
DISPOSITION:                                 ON DIRECT APPEAL: AFFIRMED. ON
                                             CROSS-APPEAL: AFFIRMED - 10/26/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       CARLSON, JUSTICE, FOR THE COURT:

¶1.    Today’s appeal involves two cases consolidated by the Pearl River County Chancery

Court in order to litigate two families’ disputes over approximately 650 acres of land in Pearl

River County.    The Stockstills appeal from the chancellor’s final judgment confirming clear

title in the subject land to the Gammills.   The Gammills cross-appeal from the chancellor’s

order denying attorney’s fees, expert witness fees, and pre-judgment interest.   Upon careful
consideration of the various issues presented to us, we affirm both as to the direct appeal and

the cross-appeal.

                      FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2.     On October 4, 1996, the Gammills conveyed to the Stockstills approximately 650

acres of land in Sections 23 and 26, Township 6 South, Range 17 West, in Pearl River County,

Mississippi.    The two families primarily communicated through licensed real estate agent and

appraiser Glen Ford.        The Gammills attempted to except a 60-acre portion of the land, the

subject land of this appeal, by including a description in the warranty deed identifying the

subject land as lying “north of Telley Road” and west of Interstate 59 in Section 26. Because

one part of the road identified as Telley Road had been renamed, a hotly disputed issue in this

case is whether the description in the warranty deed adequately described the 60-acre portion

of the land in dispute as to make the exception effective.            In December, 1997, the Stockstills

cut timber on the subject land which had been purportedly excepted by the Gammills in the

warranty deed.1      A forester hired by the Gammills estimated the cut timber at a value of

approximately $50,000.       The Gammills’ discovery that timber on the subject land had been cut

served as the catalyst to put in motion events which led to this litigation.




        1
        The chancellor specifically found that the Stockstills had “harvested the timber on the
‘property in dispute’ in or around December of 1997.”

                                                      2
¶3.     Lynn Crosby Gammill (Gammill)2 filed suit against Huey Stockstill and his wife, Gayle

B. Stockstill, in the Chancery Court of Pearl River County on June 11, 1999, seeking to

confirm title in the subject land in Pearl River County and seeking statutory damages for the

cutting of trees on the property.        The Stockstills filed a separate suit against the Gammill

family in the Circuit Court of Pearl River County on October 1, 1999, concerning the subject

real estate.3   In the circuit court complaint and amended complaint, the Stockstills asserted

against the Gammills claims of fraud and deceit, negligent misrepresentation, breach of

covenants in the warranty deed, and unjust enrichment.            The Stockstills sought various forms

of relief against the Gammills, including rescission of the real estate transaction and

compensatory and punitive damages.           Likewise, the Stockstills sought a declaratory judgment

against the title company for indemnification in defending the chancery court action.

¶4.     In the chancery court action, Gammill filed a first amended complaint on August 31,

2001, and this amended complaint contained various counts of confirmation and clearing of

title, statutory damages and penalties, trespass, unjust enrichment, recovery of monies received

by the Stockstills relating to the tree cutting, actual and punitive damages, and attorneys fees.



        2
          Even though other members of the Gammill family were involved in these consolidated
cases, Lynn Crosby Gammill asserted in her chancery court complaint and amended complaint
that she “has been since January 1, 1983, the sole owner” of the subject land. However, as
hereinafter noted, the Stockstills later filed a circuit court action naming as defendants
members of the Gammill family; therefore, appellees/cross-appellants will sometimes be
referred to as either “Gammill” or “the Gammills.”
        3
          In their circuit court suit, the Stockstills sued Stewart Gammill, III, Stewart Gammill,
IV, Lucius Olen Crosby Gammill, Jennifer Lynn Gammill McKay, and Commonwealth Land
Title Insurance Company.

                                                    3
The Stockstills later filed their answer to Gammill’s first amended complaint, and included in

their answer certain counterclaims and a prayer for relief similar to that sought in their circuit

court lawsuit.   Gammill filed her answer to those counterclaims raising various defenses.       The

Stockstills’ circuit court suit was later transferred to chancery court on January 8, 2002, and

the chancellor subsequently ordered that these two cases be consolidated for all purposes.

¶5.      The Stockstills asserted, inter alia, that no road named Telley Road traversed the land

conveyed. They argued that the road the Gammills claim is Telley Road is actually known as

Ridge Road.      The Stockstills claimed that Ridge Road bordered the entire parcel of the

conveyed land on the north, Edmund Mitchell Road bordered the land on the south, and

Interstate 59 bordered the land on the east.           Thus, the Stockstills assert that even if the

Gammills had identified the road as Ridge Road, the attempted exception would not lie within

the conveyed land.    The Stockstills further assert that Telley Road lies in Section 23, but not

in Section 26; thus, the attempted exception was superfluous.            The Stockstills also claimed

they wanted to buy the entire parcel and agreed on an increased purchase price to do so.         On

the other hand, the Gammills assert that there is only one road in Section 26 west of Interstate

59, that being the road they identified as Telley Road, and that the Stockstills’ argument is an

attempt to create an ambiguity in the deeds through parol evidence of a modern-day name

change of the road.    The Gammills further assert that Telley Road was the northern boundary

of the land they conveyed and presented numerous documents, such as tax records and land

deeds, referring to the road as Telley Road. Therefore, they argue that the intent of the parties

was clear and that the 60-acre exception in the subject warranty deed should be upheld as valid.

                                                   4
¶6.    After a three-day trial on October 14-16, 2003, the trial court filed its opinion on

December 30, 2003, containing detailed findings of fact and conclusions of law.              The

chancellor found that the Gammill-to-Stockstill warranty deed was valid, including the 60-acre

exception retained by the Gammills, and that “minimal research” on the part of the Stockstills

could have easily cleared up any discrepancy in the Edmund Mitchell Road/Telley Road

dispute.4 On February 5, 2004, the Gammills filed their Motion to Award Attorneys’ Fees and

Expenses, under Miss. Code Ann. § 95-5-10(3). Attached to the motion were affidavits from

two attorneys who worked on the case representing the Gammills, explaining how the fees

were assessed.   The Stockstills filed a response in opposition to the motion on February 19,

2004, asserting that because they believed they owned the subject land when they cut the

timber, they did not act in bad faith, and thus should not be required to pay attorneys fees. The

Gammills argued in rebuttal that the statute does not discriminate between intentional and

unintentional cutting of timber; therefore, since the timber was cut, the Stockstills were

required to pay attorneys fees to the Gammills.     The chancellor agreed with the Stockstills’

arguments and on March 2, 2004, entered an order denying the Gammills attorneys’ fees.

Consistent with his findings of fact and conclusions of law, the chancellor entered his final

judgment on October 12, 2004. In the final judgment, the chancellor, inter alia, confirmed and




       4
          In his opinion, the chancellor found that there was sufficient evidence revealing that
it was fairly common knowledge that “Telley Road” was sometimes used in referring to
“Edmund Mitchell Road.”             The chancellor found that “[a]lthough the description of the
‘property in dispute’ was inaccurate in its reference to ‘Telley Road,’ the description is still
sufficient to allow one to locate the property with some certainty.”

                                               5
cleared title in favor of Lynn Crosby Gammill, and awarded damages against the Stockstills for

the wrongful cutting of timber;5 awarded to Gammill and against the Stockstills the sum of

$65,526.50 [representing the value of the cut timber ($50,026.50), and the reasonable cost of

reforestation ($15,500.00)]; assessed post-judgment interest against the Stockstills; assessed

all costs against the Stockstills; and, denied Gammill’s claims for attorneys fees, expert

witness fees, and pre-judgment interest.

¶7.     The Stockstills timely appealed from the final judgment fifteen days later. Gammill

likewise filed her cross-appeal from the previously entered court order and final judgment

denying her attorneys’ fees, expert witness fees and pre-judgment interest. In both the appeal

and the cross-appeal three issues are raised.    The Stockstills present the questions of whether

the chancellor erred in: (1) finding the intent of the parties was evident from the language of

the “Telley Road” exception and in refusing to apply settled rules of deed construction; (2)

refusing to admit or consider the testimony of real estate agent Glen Ford as it related to the

parties’ intent and his dual agent role; and, (3) holding that the one-year statute of limitations

under Miss. Code Ann. § 95-5-29 did not bar Gammill’s claim for damages under Miss. Code

Ann. § 95-5-10 resulting from the alleged wrongful cutting of timber.           On cross-appeal,

Gammill re-states these issues and also raises three additional issues of whether: (4) McCain

v. Memphis Hardwood Flooring Co., 725 So.2d 788 (Miss. 1998), should be overruled and,

if so, then whether the award to Gammill should be modified to include double the fair market


        5
        The chancery court also entered a final judgment in the Stockstills’ suit, but noted the
cases had been consolidated.

                                                6
value of her trees instead of only the fair market value; (5) the chancery court abused its

discretion in failing to award Gammill recovery of her expert witness fees and attorneys fees;

and, (6) the chancery court abused its discretion in failing to award Gammill prejudgment

interest from the date she filed her suit.

                                              DISCUSSION

¶8.     If the chancellor has correctly considered the applicable law, we employ an abuse of

discretion standard when reviewing a chancellor’s decision. McNeil v. Hester, 753 So.2d

1057, 1063 (Miss. 2000).            This Court will not disturb a chancellor’s findings unless the

chancellor was manifestly erroneous.         Rice v. Pritchard, 611 So.2d 869, 872 (Miss. 1992)

(citing Mullins v. Ratcliff, 515 So.2d 1183, 1189 (Miss. 1984)). This Court has also held that

it is not the job of this Court to redetermine questions of fact resolved by the chancellor.

Johnson v. Black, 469 So.2d 88, 90 (Miss. 1985).

¶9.     The parties debate on direct appeal whether the chancellor abused his discretion (1) in

applying (or refusing to apply) certain rules of construction to the language of the deed; (2)

in determining the admissibility of evidence and testimony; and, (3) in deciding if the one-year

statute of limitations did not bar Gammill’s tree-cutting cause of action by relying on McCain.

The cross-appeal arguments focus on the question of whether we should overrule McCain, and

the questions of the award of attorneys’ fees, expert witness fees, and prejudgment interest.

We restate and reorder the various issues for the sake of today’s discussion.




                                                    7
          I.     WHETHER THE WARRANTY DEED IS VALID

¶10.      The Gammills received the whole parcel of conveyed land through several different

deeds, one of which was only for the portion excepted in this case. On January 1, 1983, Lynn

Crosby Gammill received by quitclaim deed the subject land described as being in Township

6 South, Range 17 West of Pearl River County, and being more particularly described as:

          Sec. 26 - All that part of E ½ of SW 1/4 lying North of Telley Road, and all that
          part of W ½ of W ½ of SE 1/4 lying West of Interstate Highway 59 and North
          of Telley Road, and East 13 acres of that part of the E ½ of W ½ of SW 1/4
          lying North of Telley Road.

This deed was dated (and effective) January 1, 1983, and filed of record on January 31, 1983,

in Deed Book 368, at pages 268-74, in the office of the Chancery Clerk of Pearl River County.

On October 4, 1996, the Gammills conveyed to the Stockstills four tracts of land in Pearl

River County by warranty deed filed of record in Deed Book 660, at pages 323-31, in the

office of the Chancery Clerk of Pearl River County. In this warranty deed there appeared the

following language:

          LESS AND EXCEPT ALL INTERESTS CONVEYED BY THE FOLLOWING
          DESCRIBED INSTRUMENTS. ALL REFERENCES TO BOOK AND PAGE
          NUMBERS ARE TO BOOKS AND PAGES OF SAID INSTRUMENTS
          RECORDED IN THE LAND RECORDS IN THE OFFICE OF THE CHANCERY
          CLERK OF PEARL RIVER COUNTY, MISSISSIPPI, REFERENCE TO WHICH
          IS MADE FOR ALL PURPOSES JUST AS THOUGH EACH INSTRUMENT
          WERE COPIED IN THIS DEED IN FULL AT THIS POINT:

This language appears on page 325, in Book 660, in the Pearl River County Chancery Clerk’s

office.   On pages 325-31, there appear numerous conveyances which are “less and excepted”

from the Gammills’ conveyance to the Stockstills.     On page 330, in Book 660, there appears



                                                 8
a conveyance depicting “L. O. Crosby III et al” as the grantors, “Lynn Crosby Gammill” as the

grantee, January 31, 1983, as the filing date of the deed, and “368/ 268" as the book and page

where the deed is located.       The description of the land “less and excepted” is described as

follows:

           All that part of E ½ of SW 1/4 lying North of Telley Road, and all that part of W
           ½ of W ½ of SE 1/4 lying West of Interstate Highway 59 and North of Telley
           Road, and East 13 acres of that part of the E ½ of W ½ of SW 1/4 lying North
           of Telley Road of Section 26.

There is thus no question that the land conveyed to Gammill in 1983, is the same land which

was “less and excepted” from the 1996 conveyance to the Stockstills by the Gammills.

¶11.       The chancellor found that because of extrinsic evidence presented at trial, the deeds

from the Gammills’ predecessors in title and the numerous exhibits referring to the road as

Telley Road, as well as the testimony that proved others were familiar with the area, one would

have no difficulty from the deed description in determining where the subject land lay, and that

though inaccurate, the description of the land was still sufficient to allow one to locate the

property “with some certainty.” The chancellor found that this description was adequate to put

the Stockstills on constructive inquiry/notice in any case of what was intended in this

conveyance.      The chancellor relied on Sansing v. Thomas, 211 Miss. 727, 52 So.2d 478

(1951), and Overby v. Cavanaugh, 434 So.2d 1365 (Miss. 1983), to find in favor of the

Gammills.       The chancellor held that because the Stockstills recognized the exception in the

deed to be a mistake, they also had a duty to research and determine what was actually being

conveyed and excepted.        The chancellor also found that “minimal research” would have easily


                                                  9
allowed the Stockstills to learn what the Gammills’ intentions in the conveyance were.    Where

the description of land in a deed is wrong, but still adequate for one to locate the land on the

ground through reasonable inquiry and research, a purchaser is deemed to be on constructive

notice or inquiry.   The Stockstills recognized the description as wrong but made no efforts to

determine the grantors’ real intent, and testimony at trial proved that, though the Stockstills

argue no land fits the description in question, discovering the true intent of the grantors could

have been easily accomplished.

¶12.   In Sansing, a case also involving wrongful cutting of timber, this Court held that a

complete description of the land was not necessary in the disputed deed because of reference

to another deed which adequately described the land. 211 Miss. at 732, 52 So.2d at 481. The

facts of Sansing are not unlike the evidence of other deeds introduced here, including the deed

from the Gammills’ predecessor in interest, despite the fact that those deeds were not

referenced in the actual deed in question. However, as noted, that is not necessary. In Neil v.

Jones, 497 So.2d 797, 800 (Miss. 1986), we relied on deeds of predecessors-in-title not

mentioned in the deed at issue to determine if a land description was legally sufficient and held

that “[i]n order for a deed instrument to constitute a valid conveyance, it is not necessary that

a description of the land be contained in the deed, if it contains sufficient information so that

by reference to some document or instrument referred to in the deed, a true and accurate

description can be ascertained.” Neil, 497 So.2d at 800 (relying on Robert E. Ratliff Co. v.

Miss. State Hwy. Comm’n, 400 So.2d 1211 (Miss. 1981); McManus v. Wilson, 138 Miss. 1,



                                               10
102 So. 543 (1925); McLendon v. Ravesies, 178 Miss. 428, 173 So. 303 (1937)). “In the

deed instruments here, there is no reference to other deeds or documents by which the land

may be more specifically identified.          However, the record and briefs reflect that appellants’

predecessors in title, from whom they inherited their interests in the lands, were vested with

title only to lands in Monroe County involved in this suit.       Therefore, the interests acquired by

appellee are easily found and determined from the records in the office of the Chancery Clerk,

Monroe County, Mississippi.” Id. Neil is thus applicable and, like Sansing, assists this Court

in reaching our conclusion in today’s case.

¶13.    The chancellor likewise relied on Overby as an example of when this Court has held a

deed invalid. 434 So.2d at 1367. The deed in Overby was a tax deed and considered invalid as

several different configurations of the land at issue in that case were possible by following the

description. Id. at 1366. This Court distinguished other cases by pointing out that no extrinsic

evidence had been introduced to demonstrate that the land descriptions were susceptible of

being followed with certainty.     Id.   The same cannot be said here.      We noted that, regarding

rules of construction, interpretation of tax deeds differs from that of conveyance deeds and,

“[i]ntent of the parties controls in a voluntary conveyance.”           Id. at 1367.    The extrinsic

evidence introduced in today’s case more than adequately shows what the true intent of the

parties was.    The State of Mississippi, in 1974 condemnation proceedings, identified the road

in Section 26 as Telley Road.       In a 1975 condemnation proceeding from the Special Court of

Eminent Domain of Pearl River County, the judgment (and the map and report considered)



                                                    11
refers to the subject road as Telley Road.    Other numerous documents, including deeds, deeds

of trust, and easements, from various financial institutions of the area, identify the road as

Telley Road.   In fact, even the deed conveying Tract 2 in the 1996 warranty deed to the

Stockstills refers to the road as Telley Road.    On cross-examination, Huey Stockstill conceded

that he knows that it is customary for people familiar with the area to refer to the road as

Telley Road.

¶14.   The Stockstills argue that the language of the deed is ambiguous and since even the

chancellor declared it inaccurate, certain rules of deed construction apply.    According to the

Stockstills, since the chancellor failed to employ these rules of deed construction, the

chancellor’s judgment should be reversed.         The Stockstills likewise argue that the “four

corners doctrine” discussed in Peoples Bank & Trust Co. v. Nettleton Fox Hunting &

Fishing Ass’n, 672 So.2d 1235, 1237-38 (Miss. 1996), requires that the document be read

as a whole for purposes of ascertaining the true intent of the parties. That doctrine requires

that the court proceed to other rules of deed construction if a reading of the language alone

does not evidence a clear understanding of the parties’ intent.    Id. at 1238.   The Stockstills

provide various authorities for the proposition that ambiguous deeds are to be construed

against the grantor when the grantor’s attorney prepared the deed. See McCuiston v. Blaylock,

215 Miss. 504, 509, 61 So.2d 332, 334 (1952). The Stockstills argue that because the trial

court failed to apply these rules of construction, reversal is required.   The Gammills, as well

as this Court, acknowledge that these general rules of deed construction are valid.        More



                                                 12
specifically, however, we have said that we will not hold a deed void “for uncertainty of

description if, by any reasonable construction, it can be upheld.” Neil, 497 So.2d at 800

(emphasis added).

¶15.   The chancellor also relied on Dead River Fishing & Hunt Club v. Stovall, 147 Miss.

385, 395-96, 113 So. 336, 337-38 (1927), where this Court stated:

       A purchaser of land is charged with notice not only of every statement of fact
       made in the various conveyances constituting his chain of title, but he is also
       bound to take notice of and to fully explore and investigate all facts to which his
       attention may be directed by recitals in said conveyance contained. The duty is
       also imposed on him to examine all deeds and conveyances previously executed
       and placed of record by his grantor--either immediately or remote--if such
       deeds or conveyances in any way affect his title. And if in any such deed or
       conveyance there is contained any recital sufficient to put a reasonably prudent
       man on inquiry as to the sufficiency of the title, then he is charged with notice
       of all those facts which could and would be disclosed by a diligent and careful
       investigation.

147 Miss. at 395-96, 113 So. at 337-38.         Additionally, the chancellor relied on Fla. Gas

Exploration Co. v. Searcy, 385 So.2d 1293 (Miss. 1980) (finding constructive notice of

parties’ intent based on statements made by the parties before closing as well as the

documents), and Adams v. Hill, 208 Miss. 341, 44 So.2d 457, 459 (1950) (holding an

ambiguous description is enough to put a buyer on constructive notice that further research was

needed and that a reasonable examination of the factual situation would have disclosed the

homestead, described as included within the land conveyed).         In today’s case, based on

testimony at trial that Huey Stockstill was aware of the exception, discussed it with real estate




                                               13
agent Ford, and considered it a mistake or a typographical error, a finding of constructive

notice by the chancellor was not manifestly wrong or clearly erroneous.

¶16.     Under Neil, Sansing, and Overby, and considering the extrinsic evidence introduced

at trial by the Gammills, and from the totality of the record, we find the deed in this case was

valid.    Stated differently, the record in this case convinces us that the decision of the

chancellor on this issue is beyond our authority to disturb.      We will only disturb a chancellor’s

findings if the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal

standard. Rice, 611 So.2d at 871.         This chancellor correctly applied this Court’s decisions in

Neil, Sansing, Overby, and Stovall, in reaching his decision.             Additionally the chancellor’s

findings of fact are more than adequately supported by the record. This issue is thus without

merit.

         II.    WHETHER THE TESTIMONY OF GLEN FORD SHOULD HAVE
                BEEN ADMITTED AS IT RELATED TO THE INTENT OF THE
                PARTIES

¶17.     The chancellor heard testimony from real estate agent Glen Ford, a portion of which

was heard strictly as an offer of proof (proffer) on testimony and documents not allowed into

evidence by the chancellor.     The Stockstills argue on appeal that the chancellor erred in not

admitting the testimony of Ford at trial because Ford was a “dual agent,” acting in the interest

of both parties.     The Stockstills had planned on introducing testimony of Ford concerning

documents they claim evidence the negotiations between the parties.             The Gammills objected

based on the fact that the documents were not signed by Stewart Gammill, were not contracts,

and were not relevant. The Stockstills also argue on appeal that Ford had apparent authority,

                                                  14
even though he lacked actual authority, to represent any statements of the Gammills to the

Stockstills concerning the boundaries of the property.        The Stockstills rely on several cases

from other jurisdictions for the proposition that knowledge of a dual agent is imputed to both

parties represented by the dual agent.

¶18.    The Gammills argue that Ford was never acting as a dual agent on behalf of both parties.

In fact the Gammills stated they paid Ford only because Ford told them that it was customary

for the seller to pay the real estate broker, yet the Gammills denied engaging Ford as an agent.

Both parties acknowledged that no written agreement authorized Ford to act as an agent on

behalf of the Gammills.        This Court held long ago that “the agency of the broker extends only

to bringing the parties together.      He is not authorized to make sale of the customer’s land, or

to make a contract of sale binding on him.” Everman v. Herndon, 71 Miss. 823, 829, 15 So.

135, 137 (1894) (citations omitted).          Our well-established standard for reviewing the trial

court’s admission or suppression of evidence, including expert testimony, is abuse of

discretion, and the discretion possessed by a trial judge in such matters is no doubt great.

Miss. Transp. Comm'n v. McLemore, 863 So.2d 31, 34 (Miss. 2003).                 Finally, findings of

fact made by a chancellor which are supported by credible evidence, may not be set aside on

appeal. Allgood v. Allgood, 473 So.2d 416, 421 (Miss. 1985). Given the testimony from both

parties that Ford was not expressly given actual authority, we cannot state here that the findings

of the chancellor, vested with his broad discretion concerning the admission of evidence, were

not supported by credible evidence or that they were manifestly wrong or clearly erroneous.

This issue is without merit.

                                                   15
        III.    WHETHER THE STATUTE OF LIMITATIONS BARRED THE
                CLAIM FOR DAMAGES FOR WRONGFUL CUTTING OF
                TIMBER

        IV.     WHETHER McCAIN SHOULD NOW BE OVERRULED AND
                GAMMILL AWARDED DOUBLE THE FAIR MARKET VALUE OF
                HER TREES

¶19.    Because the Stockstills’ final issue on appeal is so closely related to Gammill’s first

issue in the cross-appeal, we will jointly consider and discuss these issues.

¶20.    Early on in the life of the chancery court proceedings, and prior to consolidation, the

Stockstills raised via a motion the statute of limitations issue pursuant to Miss. Code Ann.

§§ 95-5-10, -29. In a very thorough 4-page order filed on February 18, 2003, the chancellor

addressed various pre-trial issues, including this statute of limitations issue raised by the

Stockstills.    On this issue, the chancellor, in his order, declined to dismiss Gammill’s

complaint based on the alleged running of the statute of limitations.           The Stockstills thereafter

filed a motion requesting the chancellor to reconsider his prior ruling on the statute of

limitations issue, and the chancellor, by order, denied the motion for reconsideration. At trial,

the Stockstills again raised this issue via a motion to dismiss, which was denied by the

chancellor.

¶21.    In the trial court’s final judgment, Gammill was awarded $65,526.50, based on the value

of the timber and the cost of reforestation.         The trial court found the sum, stipulated by the

parties, represented $50,026.50, the reasonable value of timber cut and sold, and $15,500, the

reasonable cost of reforestation. These are damages provided for in Miss. Code Ann. § 95-5-

10(1), which allows initial recovery regardless of whether the cutting was done by mistake or

                                                    16
in good faith, or whether the cutting was done willfully.        Section 95-5-10(2) provides for

additional damages if the cutting was actually the result of cutting done willfully, or in reckless

disregard for the owner’s rights.

¶22.    Miss. Code Ann. § 95-5-10 states, in its entirety:

        (1) 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. The liability for the damages established in this subsection shall be
        absolute and unconditional and the fact that a person cut down, deadened,
        destroyed or took away any tree in good faith or by honest mistake shall not be
        an exception or defense to liability. To establish a right of the owner prima facie
        to recover under the provisions of this subsection, the owner shall only be
        required to show that such timber belonged to such owner, and that such timber
        was cut down, deadened, destroyed or taken away by the defendant, his agents or
        employees, without the consent of such owner. The remedy provided for in this
        section shall be the exclusive remedy for the cutting down, deadening,
        destroying or taking away of trees and shall be in lieu of any other
        compensatory, punitive or exemplary damages for the cutting down, deadening,
        destroying or taking away of trees but shall not limit actions or awards for other
        damages caused by a person.

        (2) If the cutting down, deadening, destruction or taking away of a tree without
        the consent of the owner of such tree be done willfully, or in reckless disregard
        for the rights of the owner of such tree, then in addition to the damages provided
        for in subsection (1) of this section, the person cutting down, deadening,
        destroying or taking away such tree shall pay to the owner as a penalty Fifty-five
        Dollars ($55.00) for every tree so cut down, deadened, destroyed or taken away
        if such tree is seven (7) inches or more in diameter at a height of eighteen (18)
        inches above ground level, or Ten Dollars ($10.00) for every such tree so cut
        down, deadened, destroyed or taken away if such tree is less than seven (7)
        inches in diameter at a height of eighteen (18) inches above ground level, as
        established by a preponderance of the evidence. To establish the right of the
        owner prima facie, to recover under the provisions of this subsection, it shall be
        required of the owner to show that the defendant or his agents or employees,
        acting under the command or consent of their principal, willfully and knowingly,

                                                  17
        in conscious disregard for the rights of the owner, cut down, deadened,
        destroyed or took away such trees.

        (3) All reasonable expert witness fees and attorney’s fees shall be assessed as
        court costs in the discretion of the court.

¶23.    In other words, section 95-5-10(1) makes liable anyone who wrongly cuts trees of

others and provides damages owed for so doing; and, section 95-5-10(2) provides for an

additional award by way of penalties when the wrongful cutting is done willfully, or in reckless

disregard.   At the time of the accrual of the cause of action in today’s case, section 95-5-29

provided for a one-year limitations period from the time an injury was committed in which to

commence an action for “any specific penalty.”6       Here the Stockstills argue that the trial judge


        6
         Miss. Code Ann. § 95-5-29, as it existed at the time, the Stockstills harvested the
timber in December, 1997, stated:

        An action for any specific penalty given by this chapter may be prosecuted in any
        court of competent jurisdiction within twelve months from the time the injury
        was committed, and not after; and a recovery of any penalty herein given shall
        not be a bar to any action for further damages, or to any criminal prosecution for
        any such offense as herein enumerated. A party, if he so elect, may, under any
        of the provisions of this chapter, claim less than the penalty given.

        The 1999 legislative amendment, effective from and after March 19, 1999, states:

        An action for the remedies and penalties provided by Section 95-5-10 may be
        prosecuted in any court of competent jurisdiction within twenty-four (24)
        months from the time the injury was committed and not after. All other actions
        for any specific penalty given by this chapter may be prosecuted in any court of
        competent jurisdiction within twelve (12) months from the time the injury was
        committed, and not after; and a recovery of any penalty herein given shall not be
        a bar to any action for further damages, or to any criminal prosecution for any
        such offense as herein enumerated. A party, if he so elect, may, under any of the
        provisions of this chapter, claim less than the penalty given.


                                                 18
erred in holding that the one- year statute of limitations prescribed in section 95-5-29, as

applied to section 95-5-10, did not bar Gammill’s claim for damages, since the trial judge

noted that the Stockstills cut the trees on the land more than one year before Gammill filed

suit.   Gammill stipulated that “these penalties” under section 95-5-10(2) were barred by the

one-year statute of limitation. However, Gammill argued that while the prosecution of any

action for penalties under section 95-5-10(2) would be barred by the one-year statute of

limitations; on the other hand, actions for damages specified under section 95-5- 10(1) would

not necessarily be barred by the one-year statute. In the end, the trial court found McCain to

be factually dissimilar, and likewise found that a later decision of the Court of Appeals created

doubt as to the applicability of McCain to the case sub judice.        See Redhead v. Entergy

Mississippi, Inc., 828 So.2d 801, 813 (Miss. Ct. App. 2002).7          Therefore, the trial court

refused to dismiss the Gammills’ lawsuit on the basis of a time-bar under section 95-5-29 or

section 15-1-33.

¶24.    The pertinent part of the statute upon which the Stockstills build their argument is this:

“The remedy provided for in this section shall be the exclusive remedy . . . and shall be in lieu




This 1999 amendment does not apply to today’s case.
        7
          In fact, the trial court found Redhead to be in conflict with the earlier case of Jones
v. Lovett, 755 So.2d 1243, 1247- 48 (Miss. Ct. App. 2000), which applied McCain in finding
that an action commenced under section 95-5-10 was time-barred by both sections 95-5-29
and 15- 1-33. Miss. Code Ann. § 15-1-33 states that “[a]ll actions and suits for any penalty or
forfeiture on any penal statute, brought by any person to whom the penalty or forfeiture is
given, in whole or in part, shall be commenced within one year next after the offense was
committed, and not after.”

                                               19
of any other compensatory, punitive or exemplary damages for the cutting down, deadening,

destroying or taking away of trees . . . .” Miss. Code Ann. § 95-5-10(1) (emphasis added). The

Stockstills point out that this Court in McCain recognized this statute as the exclusive remedy,

noting that other statutes concerning wrongful cutting of timber were repealed.   725 So.2d at

791. See also Greenlee v. Mitchell, 607 So.2d 97, 111 (Miss. 1992). The Stockstills argue

that since the statutory damages were the exclusive remedy under Miss. Code Ann. § 95-5-10,

no other basis existed under which damages could be sought except pursuant to this particular

statute. Gammill presents the issue this way: Whether a property owner can recover damages

of any type for the wrongful cutting of timber when the timber was cut more than one year

before the plaintiff filed suit.   Gammill argues that any damages which would have been due

under subsection (2) were “penalties” because that subsection provides for specific penalties,

such as certain dollar amounts per trees of specific sizes. Gammill states that those penalties

are precluded because the statute of limitations applies only to specific penalties.   However,

Gammill, and the trial judge, read the statute as to allow compensatory damages from the

Stockstills for the cut timber.

¶25.    In McCain, the McCains were property owners who sued Memphis Hardwood Flooring

Company for the wrongful cutting of timber. 725 So.2d at 789. Memphis Hardwood had cut

the timber between May and July of 1991, but the McCains did not discover the timber had

been cut until July of 1993, two years later. Id. They filed suit in early August of 1993. Id.

This Court held that section 95-5-29, then a one- year statute of limitations, applied only to



                                                20
subsection (2) and not to subsection (1) as the latter was not a specific penalty controlled by

section 95-5-29.     We likewise found both subsections (1) and (2) of section 95-5-10 to be

penal, finding that subsection (1) permits other damages caused by a person and that subsection

(2) requires a specific penalty; thus, section 95- 5- 29 controlled only subsection (2).   Id. at

792-93. At the time McCain was decided, section 95-5-29 had not been amended. The statute

applicable in McCain stated: “An action for any specific penalty given by this chapter may be

prosecuted in any court of competent jurisdiction within twelve months from the time the

injury was committed, and not after; and a recovery of any penalty herein given shall not be a

bar to any action for further damages, or to any criminal prosecution for any such offense as

herein enumerated.     A party, if he so elect, may, under any of the provisions of this chapter,

claim less than the penalty given.” Id. at 790 (quoting Miss. Code Ann. § 95-5-29 (1994)).

The amended statute now has this additional sentence opening its only paragraph: “An action

for the remedies and penalties provided by Section 95-5-10 may be prosecuted in any court

of competent jurisdiction within twenty-four (24) months from the time the injury was

committed and not after.” Miss. Code Ann. § 95- 5-29 (Supp. 2006). The first sentence of the

old statute is now the second sentence and begins, “All other actions for any specific penalty

given by this chapter may be prosecuted in any court of competent jurisdiction within twelve

(12) months from the time the injury was committed, and not after; and a recovery of any

penalty herein given shall not be a bar to any action for further damages, or to any criminal

prosecution for any such offense as herein enumerated. A party, if he so elect, may, under any



                                               21
of the provisions of this chapter, claim less than the penalty given.” Miss. Code Ann. § 95-5-

29 (Supp. 2006).

¶26.   On cross-appeal, and seemingly in response to the Stockstills’ final issue raised,

Gammill asks this Court to revisit McCain and now overrule it, since the legislative revision

to section 95- 5- 29 specified portions of section 95-5-10 as remedial, and portions of it as

penal, thus making the statute subject to varying limitations periods.        In doing so, Gammill

concedes she is not due “penalties,” but requests that her remedial damages be not only

affirmed but doubled in that she should be awarded under the statute “double the fair market

value” of the trees which were cut by the Stockstills. Gammill urges this Court to overrule

McCain so that she may prevail on this issue, since, in McCain, we specifically found both

subsections under the statute to be penal.       McCain, 725 So.2d at 794.8         Indeed, Gammill

asserts that the statute is remedial as it calls for double fair market value of the trees cut, which

could be deemed to be a specific, and not a general, penalty. “[A]fter the wrongdoer pays the

fair market value of the trees to the owner, any additional amount paid is not compensatory but

a penalty.” McCain, 725 So.2d at 793.

¶27.   Gammill relies on the dissenting opinion in McCain which found section 95-5-10(2)

to be penal, but section 95- 5- 10(1) to be remedial, describing subsection (1) as “intended to

compensate tree owners, regardless of whether the ‘guilty’ party acted in good faith or by



       8
        In McCain, we found that section 95-5-10(2) was subject to the limitations period
provided in section 95-5-29, and we found section 95-5-10(1) was subject to the limitations
period provided in section 15-1-33. 725 So.2d at 794.

                                                 22
honest mistake.” Id. at 796 (McRae, J., dissenting, joined by Pittman, P.J., and Mills, J.). The

Legislature amended the statute in its next session following our decision in McCain.        In light

of the legislative revisions to section 95-5-29, and upon further consideration of McCain, we

are of the opinion that McCain should be overruled to the extent that the remedies provided

in section 95-5-10(1) are subject to the limitations period set out in section 15-1-33.9

Likewise, in McCain, we stated:

        The plaintiffs are not entitled to double the fair market value of the trees, the
        fair market value of the trees, or restoration costs. The double fair market value
        damages and reforestation costs are only permissible if action was taken within
        12 months of the offense.

Id. at 794. We thus also find that McCain should be overruled to the extent that section 95- 5-

29 would apply to a claim for the fair market value of the trees cut or the cost of reforestation.

Such damages would clearly be considered to be compensatory damages, while a claim for

“double the fair market value” of the trees cut would indeed be penal in nature.

¶28.    In sum, McCain is overruled to the extent that it found that the remedies provided in

section 95- 5- 10(1) were subject to the limitations period set out in section 15-1-33, and that

section 95-5-29 would apply to a claim for the fair market value of the trees cut and the cost

of reforestation.   Since the 1999 legislative amendment to Miss. Code Ann. § 95-5-29 does

not apply to today’s case, the practical effect of today’s decision is that Gammill’s claims for

the fair market value of the trees cut and reforestation costs were governed by Miss. Code Ann.



        9
        The majority in McCain found that section 95-5-10(1) was not subject to section 95-
5-29, but was subject to the limitations period set out in section 15-1-33. 725 So.2d at 794.

                                                   23
§ 15-1-49 (Rev. 2003), which provides for a three-year limitations period.             Therefore, in

applying section 15-1-49 to Gammill’s claims for the fair market value of the trees cut and the

cost of reforestation, these claims were not barred.        We thus find that the chancellor was not

in error in entering a judgment in favor of Gammill and against the Stockstills for the sum of

$65,526.50, representing the reasonable value of the timber cut ($50,026.50), and the

reasonable cost of reforestation of the subject land ($15,500.00).10

        V.      WHETHER GAM M ILL SHOULD HAVE BEEN AWARDED
                ATTORNEYS FEES’ AND EXPERT WITNESS FEES

¶29. In denying Gammill’s request for attorneys fees and expert witness fees, the chancellor

recognized that Miss. Code Ann. § 95-5-10(3) gives the trial judge discretion to award expert

witness fees and attorneys’ fees to a litigant who prevails on a claim of cutting of timber. “All

reasonable expert witness fees and attorney’s fees shall be assessed as court costs in the

discretion of the court.” Miss. Code Ann. § 95-5-10(3). The trial judge also read Miss. Code

Ann. § 95-5-10 as a whole to provide for two types of violations, intentional cutting and cutting

done by mistake, each resulting in different damage amounts for violations.          The trial court

found that the Stockstills cut down the trees on the subject land mistakenly, not intentionally,

and that to award attorneys’ fees in such a case would amount to removing the discretion

afforded the trial judge by the statute under Miss. Code Ann. § 95-5-10(3) and encourage

rewarding attorneys’ fees in every such case of a violation by mistake.        The trial court found




        10
         Gammill conceded any claimed “penalties” under Miss. Code Ann. § 95-5-10(2) were
barred by the one-year statute of limitations in Miss. Code Ann. § 95-5-29.

                                                   24
that, though punitive damages were not a prerequisite to awarding attorneys’ fees, Mississippi

law seemed to frown on awarding attorneys’ fees in cases unless they were coupled with

punitive damages. See Grisham v. Hinton, 490 So.2d 1201, 1205 (Miss. 1986). “With the

sole exception of punitive damages cases, in the absence of contractual provision or statutory

authority therefor, this Court 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.       Even where legal counsel for plaintiff unnecessarily put the

opposing side to extra legal and trial expenses . . . we refused to permit an award of attorney’s

fees.”   Id. at 1205-06 (internal citations omitted).     Since no punitive damages were awarded

in this case, and because the record supports a finding that the cutting of the timber was done

by mistake, the trial judge in his discretion decided not to award attorneys’ fees to Gammill,

notwithstanding the fact that judgment was entered in her favor.

¶30.     On cross-appeal, Gammill argues primarily that the word “shall” means that awarding

attorneys’ fees is absolutely required.       Indeed, Miss. Code Ann. § 95-5-10(3) states: “All

reasonable expert witness fees and attorney’s fees shall be assessed as court costs in the

discretion of the court.” However, when this subsection is viewed in its entirety, the only

logical interpretation which can be afforded is that the court has discretion in determining

whether to award expert witness fees and attorneys fees, and if so, in what (reasonable) amount,

but if such fees are awarded by the court, in the exercise of discretion, such fees “shall be

assessed as court costs.” From the record, we find no abuse of discretion by the chancellor

in refusing to award a successful litigant expert witness fees and attorneys’ fees.        Stated

                                                   25
differently, we certainly cannot find from the record that the chancellor, in the denial of expert

witness fees and attorneys’ fees to Gammill was manifestly wrong, clearly erroneous, or

applied the wrong legal standard. This issue is without merit.

        VI.     WHETHER GAMMILL SHOULD HAVE BEEN AWARDED
                PREJUDGM ENT INTEREST FROM THE DATE SHE FILED SUIT

¶31.    On cross-appeal, Gammill argues that the chancellor abused his discretion in choosing

not to award prejudgment interest. It is well-settled that in Mississippi a chancellor is afforded

discretion in deciding whether to award prejudgment interest.        “An award of prejudgment

interest rests in the discretion of the awarding judge. Under Mississippi law, prejudgment

interest may be allowed in cases where the amount due is liquidated when the claim is

originally made or where the denial of a claim is frivolous or in bad faith. No award of

prejudgment interest may rationally be made where the principal amount has not been fixed

prior to judgment.”       Coho Res. v. McCarthy, 829 So.2d 1, 19-20 (Miss. 2002) (quoting

Warwick v. Matheney, 603 So.2d 330, 342 (Miss. 1992)). See also Tupelo Redev. Agency

v. Abernathy, 913 So.2d 278, 286 (Miss. 2005).

¶32.    Gammill argues that the Stockstills’ denial of the claim in this case was in bad faith as

they were aware that the land in question actually belonged to Gammill, and that the Stockstills

therefore should not have cut the timber on the land. While it is true that the Stockstills were

on constructive notice that further research was needed and they, as reasonably prudent people,

should have been on inquiry, charged with facts which could be revealed in a diligent and

careful investigation, this does not mean they acted in bad faith. Of course, what could have


                                                    26
been revealed was that the Stockstills actually owned the land.           They simply made the

assumption, albeit erroneously, that the exception was superfluous.    As noted above, our case

law states when prejudgment interest may be appropriate, when it is clearly not allowed, and

that determining whether to award such interest is in the discretion of the trial judge. We thus

cannot find that the chancellor’s findings were manifestly wrong, clearly erroneous, or the

result of an application of the wrong legal standard.       No abuse of discretion was committed.

This issue is without merit.

                                          CONCLUSION

¶33.    For the reasons stated, the final judgment entered by the Chancery Court of Pearl River

County is affirmed both on direct appeal and on cross-appeal.

¶34.    ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: AFFIRMED.

    SMITH, C.J., WALLER, P.J., DIAZ, EASLEY, GRAVES, DICKINSON AND
RANDOLPH, JJ., CONCUR. COBB, P.J., NOT PARTICIPATING.




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