         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2014-CA-01314-COA

BALBIR SINGH AND JASWINDER KAUR                                            APPELLANTS

v.

CYPRESS LAKE PROPERTY OWNERS                                                  APPELLEE
ASSOCIATION

DATE OF JUDGMENT:                          08/20/2014
TRIAL JUDGE:                               HON. CYNTHIA L. BREWER
COURT FROM WHICH APPEALED:                 MADISON COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS:                   JOHNNIE MCDANIELS
ATTORNEYS FOR APPELLEE:                    MICHAEL STEPHEN MACINNIS
                                           JON JERDONE MIMS
NATURE OF THE CASE:                        CIVIL - REAL PROPERTY
TRIAL COURT DISPOSITION:                   APPELLANTS FOUND IN CONTEMPT
                                           AND ORDERED TO PAY $15,278.54 IN
                                           ATTORNEY’S FEES AND EXPENSES TO
                                           APPELLEE
DISPOSITION:                               AFFIRMED - 05/17/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       GREENLEE, J., FOR THE COURT:

¶1.    Homeowners Balbir Singh and Jaswinder Kaur appeal from the judgment of the

Madison County Chancery Court finding them in contempt of a permanent injunction

concerning violations of restrictive covenants attached to their property. In the same order,

the court considered and granted a distinct request from the Cypress Lake Property Owners

Association for legal fees and expenses pursuant to a provision of the covenants entitling the

Association to reimbursement for enforcement expenses. The homeowners argue on appeal
that the court erred in finding them in contempt because their noncompliance with the

permanent injunction was unwillful. They further argue that the court erred in awarding legal

fees and expenses as a judgment for finding the homeowners in contempt. We hold that the

contempt finding was not the basis for ordering reimbursement of the legal fees and

expenses, but rather a distinct enforcement of the terms of the covenants entitling the

Association to reimbursement for enforcement expenses irrespective of the homeowners’

contempt status. We affirm the chancellor’s judgment.

                        FACTS AND PROCEEDINGS BELOW

¶2.    Singh and Kaur are homeowners in the Cypress Lake subdivision located in Madison

County. The subdivision is subject to restrictive covenants of record. In February 2013, the

Association's Architectural Review Committee (ARC) approved a plan submitted by the

homeowners for constructing an addition to their house.

¶3.    As construction proceeded, the addition was visibly not in compliance with the

approved plan, and the general condition of the property was visibly not in compliance with

covenant restrictions. The Association provided the homeowners with notice of the violations

and met with them in person to develop a plan for remedying the situation. They granted the

homeowners three deadline extensions to submit a new plan for construction modifications

that would bring the property into compliance with the covenants. The homeowners did not

meet the deadlines.

¶4.    The Association filed a motion requesting a preliminary injunction, a temporary

restraining order, and a permanent injunction. The motion was heard and a permanent



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injunction granted on September 11, 2013. The order, filed September 23, 2013, required the

homeowners to immediately submit new plans for consideration to the ARC and also

required the homeowners to remedy specific violations as enumerated in the order.

Concerning the Association’s request for legal fees and expenses, the order stated:

       The Association has requested that its claim for legal fees and expenses in this
       matter which are due from Defendants pursuant to Section 13.02 of the
       Covenants, as well as the costs for any subsequent actions and costs of
       removal, if any, be reserved until a separate hearing on those matters, and it is
       so ordered by the Court. All lien assessments and assessments for violations,
       in an amount to be determined at the hearing of this matter, are hereby
       reserved and may be made and filed against the Property as allowed by the
       Covenants.

¶5.    Over the following months, disagreement continued between the homeowners and the

Association. The ARC rejected multiple new plans proposed by the homeowners before

finally approving a plan. The City of Madison became involved, shutting down construction

on the homeowners’ property that had commenced prior to the ARC’s final approval of a

plan and receipt of a city permit. The Association was also dissatisfied with the quality of

some of the subsequent construction, including, for example, the construction of a sidewalk.

¶6.    The Association filed a motion for contempt and for an award of legal fees and

expenses on March 11, 2014, asserting that the property was still not in complete accordance

with the final approved plan and that the homeowners had also failed to correct many of the

violations on the property explicitly enumerated in the chancery court's permanent injunction.

¶7.    The motion was heard on August 5, 2014, after a continuance due to one of the

homeowners being out of the country. In the final judgment dated August 20, 2014, the

chancery court found the homeowners in contempt of the permanent injunction and ordered

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them to immediately remedy specific violations on the property as enumerated in the order.

¶8.    The chancery court also acknowledged the progress and efforts that the homeowners

had made towards satisfying the exacting demands of the Association, and characterized the

homeowners’ current status of noncompliance with the permanent injunction as “unwillful.”

The court did not impose monetary sanctions or jail time. Rather, the relief granted

enumerated the specific performance necessary to bring the homeowners into compliance

with the approved plan and the permanent injunction.

¶9.    The chancery court also considered and granted the Association’s request for

reimbursement of legal fees and expenses pursuant to section 13.02 of the covenants, which

had been previously reserved for a separate hearing in the order granting the permantent

injunction. While the homeowners opposed imposition of a judgment against them for any

fees and expenses, they stipulated to the reasonableness of the requested fees and expenses

and waived any requirement of presentation of the McKee1 factors. The Association

nevertheless submitted a detailed accounting of its expenses below and has included this

evidence in the record on appeal.

¶10.   The homeowners now appeal the final judgment finding them in contempt of the

permanent injunction and granting the Association’s request for an award of legal fees and

expenses.

                                      DISCUSSION

¶11.   The findings of the chancery court will not be disturbed when supported by substantial



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           McKee v. McKee, 418 So. 2d 764 (Miss. 1982).

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evidence unless the court abused its discretion, applied an erroneous legal standard, was

manifestly wrong, or committed clear error. Pittman v. Lakeover Homeowners’ Ass’n, 909

So. 2d 1227, 1229 (¶7) (Miss. Ct. App. 2005).

       I.     Whether the chancellor erred in finding the homeowners in
              contempt of the permanent injunction when the chancellor also
              found the homeowners’ noncompliance with the injunction to be
              “unwillful.”

¶12.   The homeowners argue that the chancery court erred in declaring them to be in

contempt of the permanent injunction because the contempt was “unwillful.” Lack of a

willful or deliberate violation of a prior judgment or decree is a defense to a citation for

contempt. Newell v. Hinton, 556 So. 2d 1037, 1044 (Miss. 1990). In Pittman, this Court

reversed the imposition of monetary sanctions and jail time against a homeowner where the

evidence supported that the homeowner was unemployed and could not afford to complete

construction of his house by a date ordered by the trial court. Pittman, 909 So. 2d at 1230

(¶12). In that case, not only was the contempt “unwillful,” but this Court additionally found

that the underlying restrictive covenants did not authorize the trial court to have imposed a

construction deadline in the first place. Id.

¶13.   Here, the chancery court did not impose contempt sanctions, such as a monetary fine

or jail time until the contempt was purged. This is consistent with the court’s characterization

of the homeowners’ noncompliance as “unwillful.” Instead, the relief granted was, in

essence, an update of the standing permanent injunction enumerating the outstanding

violations of the covenants and approved plan. And, unlike in Pittman, here the underlying

enforcement action and the terms of the injunction are permitted by the covenants and are not


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overreaching.

¶14.      While we clarify any confusion created by the use of the language “unwillful

contempt” in the chancellor’s order, we affirm the relief granted, as it did not impose actual

sanctions for contempt.

          II.    Whether the chancellor erred in granting the Association
                 reimbursement of legal fees and expenses incurred while enforcing
                 the restrictive covenants.

¶15.      The homeowners argue that the award of legal fees and expenses should be reversed

because a grant of attorney’s fees on an erroneous finding of contempt is improper. The

Association argues that the award of legal fees and expenses did not stem from the finding

of contempt, but instead was reimbursement for the expenses the Association underwent in

enforcing the covenants as permitted by the terms of the covenants irrespective of contempt

status.

¶16.      The homeowners are correct that when there is no contractual provision or statutory

authority providing for attorney’s fees, attorney’s fees may not be awarded as damages unless

punitive damages are also proper. Grisham v. Hinton, 490 So. 2d 1201, 1205 (Miss.1986).

And an award of attorney’s fees, based upon an erroneous finding of contempt, is improper.

Pittman, 909 So. 2d at 1230 (¶16).

¶17.      But here, the provisions of the restrictive covenants serve to authorize attorney’s fees

as reimbursement for enforcement expenses irrespective of contempt status. “A restriction

expressed in unambiguous language in a covenant will be enforced.” COR Devs. LLC v. Coll.

Hill Heights Homeowners LLC, 973 So. 2d 273, 280 (¶15) (Miss. Ct. App. 2008). Restrictive



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covenants must be reasonable in order to be enforceable. Here, section 13.02 of the

covenants provides:

       This Declaration shall be enforced by any appropriate proceeding at law or in
       equity (i) against any Person who breaches or violates or threatens to breach
       or violate any provisions of this Declaration, (ii) to recover damages for any
       such breach or violation, (iii) to collect any amounts payable by any Owner to
       the Association under this Declaration, including Assessment attorney’s fees,
       costs of collection, late charges, overhead charges, or other amounts incurred
       by the Association to perform or discharge any obligation or duty of an Owner
       under this Declaration . . . .

¶18.   The award of attorney’s fees in this case was not based on a finding of contempt.

While considered at the same hearing and disposed of in the same order, the chancery court

explicitly treated the Association’s request for legal fees and expenses as a distinct

proceeding from the contempt motion. The court’s final order states:

       [In] this Court’s [previous] Injunction, the Association’s legal fees and
       expenses, any expenses for subsequent actions and costs, if any, and
       assessments for violations were reserved for a separate hearing. The
       Association has requested their legal fees and this request is distinct and
       separate from the Contempt relief sought by the Association.

Unlike the circumstances in Pittman, where the underlying enforcement action overreached

what was permitted by the covenants, the underlying enforcement action and injunction in

this case were consistent with the terms of the restrictive covenants. The homeowners are

bound by this attachment to their property. They were in violation of the covenant restrictions

as determined by the court, and the court appropriately enforced section 13.02 of the

covenants to find the Association entitled to reimbursement for enforcement expenses.

                                      CONCLUSION

¶19.   While we reiterate that lack of willfulness is a defense to a citation for contempt, we


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affirm the relief granted on the Association’s motion for contempt because the relief did not

include sanctions for contempt. We affirm the distinct award of attorney’s fees and expenses

to the Association for reimbursement of enforcement expenses under section 13.02 of the

covenants.

¶20. THE JUDGMENT OF THE CHANCERY COURT OF MADISON COUNTY
IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.

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




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