Cheryl L. High v. Todd Kuhn
240 So. 3d 1198
Miss.2017Background
- Todd and Angela Kuhn bought landlocked property that accessed via a driveway crossing Cheryl High’s adjacent lot; High later denied access.
- The Kuhns petitioned the Harrison County Special Court of Eminent Domain under Miss. Code § 65-7-201 to establish a private road across High’s property.
- The special court granted the private road; High appealed (interlocutory), and this Court reversed in High I, holding the statute cannot authorize condemnation of property inside an incorporated city (Gulfport) under Miss. Const. art. 4, § 110.
- After mandate, High moved in the special court under Miss. Code § 11-27-37 for recovery of attorney’s fees and expenses ($25,990.58) incurred defending the eminent-domain petition; the special court denied the motion as inapplicable.
- On appeal, the Supreme Court held that because the Kuhns invoked the statutory eminent-domain procedures, § 11-27-37 applies and the special court erred in refusing to consider fees; award of fees remains discretionary and the case is remanded for the special court to assess merits and reasonableness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 11-27-37 applies to permit recovery of defendant’s attorney’s fees after a failed petition under § 65-7-201 | High: § 11-27-37 applies because Kuhns invoked § 65-7-201 and the special court procedures mirror Title 11, Ch. 27 | Kuhns: Special court provisions of Title 11, Ch. 27 do not apply because they were not entitled to seek relief; thus § 11-27-37 inapplicable | Court: § 11-27-37 applies because Kuhns invoked statutory eminent-domain procedures; remand to determine fees |
| Whether High is automatically entitled to the full requested fees ($25,990.58) | High: Requested specific amount supported by evidence of fees incurred | Kuhns: High failed to substantiate fee amount; award inappropriate | Court: Fee recovery is discretionary (statute uses “may”); remand for trial court to assess reasonableness |
| Whether denial below should be affirmed for lack of statutory/contractual authority to award fees | Kuhns: No statutory or contractual basis to award fees in this case | High: Statutory basis exists via § 11-27-37 because Kuhns chose statutory route | Court: Rejected Kuhns’ argument; statutory authority exists and trial court erred in blanket denial |
| Whether the Kuhns’ filing was frivolous and thereby supports alternative fee recovery (sanctions) | High: Kuhns knew or should have known remedy unavailable; could support fees under sanction statutes | Kuhns: Not argued below as central; prior position inconsistent | Court: Notes point as potential alternative under Mississippi Litigation Accountability Act but did not decide; remand focuses on § 11-27-37 |
Key Cases Cited
- High v. Kuhn, 191 So. 3d 113 (Miss. 2016) (reversed special court’s grant of a private road—statutory private condemnation unavailable inside an incorporated city)
- Cox v. Warren Cty., 600 So. 2d 935 (Miss. 1992) (§ 11-27-37 creates a separate cause of action for defendant to recover expenses; may be brought post-trial in eminent-domain court)
- Fulton v. Miss. Farm Bureau Cas. Ins., 105 So. 3d 284 (Miss. 2012) (attorney’s fees generally unavailable absent statute or contract)
- Anderson v. B.H. Acquisition, Inc., 771 So. 2d 914 (Miss. 2000) (discussing standards for frivolous filings under the Mississippi Litigation Accountability Act)
- Mark S. Bounds Realty Partners, Inc. v. Lawrence, 34 So. 3d 1224 (Miss. Ct. App. 2010) (filing in a court lacking authority to grant relief can support attorney’s fees as sanction)
- Pitalo v. GPCH-GP, Inc., 933 So. 2d 927 (Miss. 2006) (interpretive note distinguishing mandatory “shall” from discretionary “may")