        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2015-CA-00006-COA

TOMMIE L. HUEY                                                           APPELLANT

v.

LEMORRIS STRONG                                                            APPELLEE

DATE OF JUDGMENT:                        11/24/2014
TRIAL JUDGE:                             HON. JANE R. WEATHERSBY
COURT FROM WHICH APPEALED:               SUNFLOWER COUNTY CHANCERY
                                         COURT
ATTORNEY FOR APPELLANT:                  ALSEE MCDANIEL
ATTORNEY FOR APPELLEE:                   HELEN E. MORRIS
NATURE OF THE CASE:                      CIVIL - REAL PROPERTY
TRIAL COURT DISPOSITION:                 GRANTED APPELLEE’S REQUEST TO
                                         REMOVE CLOUD ON TITLE AND QUIET
                                         TITLE; AND DENIED APPELLANT’S
                                         COUNTERCLAIM FOR WRONGFUL
                                         EVICTION
DISPOSITION:                             AFFIRMED: 12/13/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE IRVING, P.J., CARLTON, FAIR AND GREENLEE, JJ.

      FAIR, J., FOR THE COURT:

¶1.   This is a property case between two first cousins involving a lot in Moorhead,

Mississippi. On February 25, 2009, Acey Huey deeded Lot 24 of Palmer Subdivision to his

daughter, Fillisa Huey. He had received the property from his grandmother in the probate

of her will; a court order evidencing Acey’s title by devise had been recorded in the land

records of Sunflower County.

¶2.   A written agreement entitled “Repairing and Renting Agreement” was thereafter
signed by Acey and his brother, Tom Huey, calling themselves “landlords” and Tom’s

daughter, Tommie Huey, calling herself “tenant.” Dated August 7, 2009, and prepared at

Tommie’s direction by her godmother, the agreement provided that Tommie would pay rent

of $150 per month and repair the property at her sole expense. It further stated the landlords

could not increase her rent or evict her without reasonable cause. If forced to leave for any

other reason, she would be reimbursed for labor and material expended by her on the

property, moving expenses, and “pain and suffering.”           Fillisa was unaware of the

agreement’s existence until almost three years later.

¶3.    On June 8, 2012, Fillisa sent Tommie an eviction notice by certified mail, directing

her to vacate the property. On June 21, 2012, Fillisa sent Tommie a Notice to Pay Rent or

Quit, advising Tommie to pay her $800, $400 as a rental deposit and $400 as the first

month’s rent, within 30 days or remove herself from the property.

¶4.    By deed dated July 25, 2012, Fillisa conveyed the property to LeMorris Strong, who

filed the deed on August 14, 2012.

¶5.    On July 27, 2012, the 2009 rental agreement signed by Acey, Tom, and Tommie was

filed in the lis pendens records of Sunflower County, attached to a “Notice of Subordination,

Attornment and Non-Disturbance Agreement.”

¶6.    In November 2012, Strong made a written demand for Tommie to cancel the

documents filed on July 27, attaching a cancellation document for that purpose along with

a copy of Mississippi Code Annotated section 11-55-5 (Rev. 2004), which provides for an


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award of costs and attorney’s fees for frivolous litigation under the Litigation Accountability

Act (LAA) of 1988.

¶7.    After Strong acquired the property, he began to tear down the termite-infested carport.

He soon discovered that Tommie had left some personal belongings in the home and that she

was still claiming an interest in the home. So he filed an eviction claim in Sunflower County

Justice Court on August 6, 2012. The case was dismissed after Tommie’s attorney stated that

Tommie had completely moved out of the home.

¶8.    In June 2013, Strong filed a complaint to remove clouds and quiet title of the lot in

himself. Tommie counterclaimed for wrongful eviction on August 9, 2012. She also filed

a cross-claim against Acey and Fillisa, but made no effort to obtain process over them.

¶9.    After a hearing, the Sunflower County Chancery Court entered an order dismissing

Tommie’s counterclaim and cross-claim, removing clouds and quieting title in Strong, and

finding that Tommie’s wrongful-eviction defense was frivolous and without merit. The

chancellor observed:

       Neither Acey Huey nor Tom Huey had any interest in the property at the time
       of the rental agreement as it then belonged to Fillisa Huey. On June 4, 2012,
       Fillisa Huey decided it was time for her cousin to pay rent and sent her an
       eviction notice . . . . Tommie testified she wanted “everything I can get.” Her
       failure to discharge the lis pendens notice or to file suit against Strong is seen
       by the [c]ourt as nothing more than an attempt to extort money from Strong .
       . . . Her counterclaim for wrongful ejection is frivolous and without merit.
       Tommie’s defense against the cancellation of the lis pendens is without
       substantial justification and appears to the court to be interposed for
       harassment. Likewise, her counterclaim is without substantial justification.

¶10.   Finding that Tommie “deliberately and without merit placed a cloud upon the title of

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Strong . . . and refused to remove it upon request,” the chancellor also awarded Strong

attorney’s fees and damages. Tommie appeals. We find no error and thus affirm the

chancery court’s judgment.

                                STANDARD OF REVIEW

¶11.   As an appellate court, “we will reverse a chancellor only if he or she commits manifest

error.” Mize v. Westbrook Const. Co. of Oxford, LLC 146 So. 3d 344, 348 (¶6) (Miss. 2014).

“We will accept findings made by the chancellor regarding questions of fact and credibility

of witnesses, so long as the evidence in the record tends to reflect the chancellor’s findings.”

Id.

                                       DISCUSSION

¶12.   Tommie claims that the chancery court committed reversible error in: (1) finding her

counterclaim for wrongful eviction frivolous and without merit; and (2) concluding that her

lis pendens notice was without justification and awarding attorney’s fees.

       1.     Wrongful Eviction

¶13.   Tommie argues on appeal that the chancellor erroneously denied her counterclaim for

wrongful eviction because she was relying on the documents filed as a lis pendens.

However, she admitted under cross-examination that she had never paid $150 per month in

rent (nor had she ever paid any rent in any amount). Her father confirmed that, “to his

knowledge,” rent was never paid.

¶14.   But the chancellor found that it was not necessary to show breach of the document


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under which Tommie claimed tenant status. The chancellor held that the document was void

as to Fillisa and Strong both. Tommie’s status was found by the chancellor to be “basically

a squatter on another’s property,” further observing that “any claim she may have had to

damages should have been lodged against her father and Acey Huey.”

¶15.   Fillisa, appearing as a witness and not a party, testified she did not learn of the

“Repairing & Renting the House” agreement until after she had sold the property to Strong,

further affirming that she had received no rent in any amount from Tommie. She denied her

father had any authority to act on her behalf in any manner with regard to the property he

deeded to her. When asked about why she allowed Tommie to use her house, Fillisa stated

that “once it was mentioned to me that my cousin wanted to stay in the house I didn’t have

an issue with it . . . . I didn’t make an issue about it . . . . She was family.” She said she

intended to borrow money and fix it up, commenting with reference to Tommie, “I don’t

want any type of confrontation [but] you can’t just continue to stay somewhere for free.”

¶16.   The evidence was clear in the record that Tommie had voluntarily removed herself

from the property, if indeed she was occupying it. The removal process began no later than

the filing of an action in justice court by Strong, or perhaps the announcement of Tommie

and her counsel that the action was unnecessary as she was moving out and it could be

dismissed.

¶17.   According to Fillisa, when she sold the property to Strong, the only personal property

in the house was hers, put there by her for storage in 2009.


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¶18.   Based on these facts, established by written documents in context of circumstances

presented at trial in the testimony of Strong, Tom, Fillisa, Tommie, and a neighbor, we find

the chancellor acted within her discretion and relied on substantial evidence in finding

Tommie’s counterclaim to be frivolous and without merit.

       2.     Lis Pendens

¶19.   A lis pendens is a Latin phrase for “pending lawsuit” – notice of which is required by

statute to be filed in county land records when real estate is a subject of litigation.

Mississippi Code Annotated section 11-47-3 (Rev. 2004), the lis pendens statute, states:

       When any person shall begin a suit in any court, whether by declaration or bill,
       or by cross-complaint, to enforce a lien upon, right to, or interest in, any real
       estate, unless the claim be founded upon an instrument which is recorded, or
       upon a judgment duly enrolled, in the county in which the real estate is
       situated, such person shall file with the clerk of the chancery court of each
       county where the real estate, or any part thereof, is situated, a notice containing
       the names of all the parties to the suit, a description of the real estate, and a
       brief statement of the nature of the lien, right, or interest sought to be enforced
       ....

¶20.   Tommie claims that the chancellor erred in granting Strong’s request to remove the

clouds on his title and direct cancellation of Tommie’s documents on file in the lis pendens

records in Sunflower County. Specifically, she argues that she still has rights in the property.

¶21.   The document she filed July 27, 2012, was not notice of a suit. She titled it as a

“Notice of Subordination, Attornment and Non-Disturbance Agreement.” Tommie attached

the “rental agreement” that she, her father, and her uncle signed to the notice. Historically,

“attornment” under English law is acknowledgment of a new lord by the tenant on the


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conveyance of land from a prior landholder to the new landholder. As used in modern legal

transactions, attornment refers to acknowledgment of the existence of the relationship of

landlord and tenant.

¶22.     Mississippi Code Annotated section 89-7-19 (Rev. 2011) provides that “the

attornment of a tenant to a stranger shall be void unless it be with the consent of the landlord

of such tenant, or pursuant to or in consequence of the judgment of a court of law or the

decree of a court of equity.” Tommie never had a valid rental agreement because the

property was owned by Fillisa when the document was prepared, and later owned by Strong

at the time she filed it and affected his title.

¶23.   The chancellor found that “Tommie Huey has deliberately and without merit placed

a cloud on the title of Strong to the property and refused to remove it upon request” and

awarded attorney’s fees and costs pursuant to the LAA. She found that $3,217.34 was

reasonable based on a rate of $175 per hour.

¶24.   The chancellor addressed fees further, stating:

       While filing a lis pendens notice, per se, does not invoke the [LAA,] . . . a
       defense without substantial justification when interposed for harassment will
       trigger said fees. Hooker v. Greer, 81 So. 3d 103 (Miss. 2012). [Tommie’s]
       denial of the allegation to remove the notice from the records of Sunflower
       County has no justification whatsoever.

¶25.   In Lehman v. Mississippi Transportation Commission, 127 So. 3d 277 (Miss. Ct. App.

2013), this Court addressed a claim of slander of title by the filing of a wrongful lis pendens

notice, and held:


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       The Mississippi Supreme Court has stated that filing “an instrument which is
       known to be inoperative, and which disparages the title to land, is a false and
       malicious statement for which damages may be recovered.” Phelps v.
       Clinkscales, 247 So. 2d 819, 821 (Miss. 1971) (citation omitted). Attorney’s
       fees and costs are an element of damages for slander of title. Welford v.
       Dickerson, 524 So. 2d 331, 332 (Miss. 1988). [The LAA] allows attorney’s
       fees to be awarded as a sanction if the court “finds that an attorney or party
       brought an action, or asserted any claim or defense, that is without substantial
       justification, or that the action, or any claim or defense asserted, was
       interposed for delay or harassment[.]”

Lehman, 127 So. 3d at 279 (¶11).

¶26.   In Hooker, which the chancellor cited as authority for her decision, Hooker filed a lis

pendens against his business partner but took no other action. Hooker, 81 So. 3d at 1105

(¶5). The supreme court stated:

       Filing a lis pendens is a preliminary action necessary to file a civil action to
       enforce an interest in property. See Miss. Code Ann. §§ 11-47-3, 11-47-9
       (Rev. 2002). The lis pendens filing provides notice to the public of an alleged
       claim on land.

       ....

       While the filing of the lis pendens notice itself does not constitute an “action”
       subject to the LAA, a defense to an action to remove a lis pendens, filed
       without substantial justification, may form the basis of an award under the
       LAA.

       ....

       In any civil action commenced or appealed in any court of record in this state,
       the court shall award . . . reasonable attorney’s fees and costs against any party
       or attorney if the court, upon the motion of any party or on its own motion,
       finds that an attorney or party brought an action, or asserted any claim or
       defense, that is without substantial justification, or that the action, or any claim
       or defense asserted, was interposed for delay or harassment . . . .


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Hooker, 81 So. 3d at 1109 (¶¶18, 20-21) (emphasis added).

¶27.   Following Lehman and Hooker, and in accord with section 11-55-5(1), the chancellor

found Tommie filed the lis pendens without substantial justification and awarded fees and

costs of $3,917.14. We find her award to be supported by substantial evidence and within

her discretion.

                                    CONCLUSION

¶28.   We find the chancellor acted within her discretion in denying Tommie’s counterclaim

for wrongful eviction and in awarding attorney’s fees against Tommie. Therefore, we affirm.

¶29. THE JUDGMENT OF THE CHANCERY COURT OF SUNFLOWER
COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
THE APPELLANT.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
WILSON AND GREENLEE, JJ., CONCUR. JAMES, J., NOT PARTICIPATING.




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