author: CHANDLER, J.,

text:
    Henry R. JOURNEAY and Janie E. Journeay, J. Baxter and Wanda R. Burns, Appellants, Cross-Appellees v. Charles G. BERRY and Michelle M. Berry, Appellees, Cross-Appellants.
    No. 2005-CA-00896-COA.
    Court of Appeals of Mississippi.
    April 10, 2007.

      Michael P. Younger, Brandon, J. Kevin Watson, for appellants.
    Ian Charles Jones, Holmes S. Adams, Jefferson D. Stewart, Jackson, for appel-lees.
    Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. The Berrys sought to have their neighbors’ fences removed as being viola-tive of the “visual barriers” provision of the restrictive covenants for the Buckingham subdivision in Brandon, Mississippi. The neighbors, the Burns and the Jour-neays, argue that the covenants were invalid to begin with, and even if valid, that variances were obtained and the restrictive covenants amended to allow the fences. The Berrys counter that the Burns and the Journeays had actual and constructive notice of the restrictions and that any attempt to obtain a variance or amend the covenants was improper.

¶2. The lower court granted a cross summary judgment motion in favor of the Berrys, stating that (1) although the covenants were improperly filed with the recording office, (2) the Burns and the Journeays had actual and constructive knowledge of the restrictions, (3) the Burns and the Journeays acknowledged the covenants by seeking to obtain variances and other approvals, and (4) the Burns’s and the Journeay’s immediate predecessors-in-title expressly agreed to be bound by the covenants. Therefore, the court found that the Burns and the Journeays were bound by the restrictive covenants. Aggrieved, the Burns and the Journeays appeal, arguing the following:

I. WHETHER THE COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF BERRY.
II. WHETHER THE CHANCELLOR’S DENIAL OF THE RULE 56(F) REQUEST FOR ADDITIONAL TIME DENIED BURNS AND JOURNEAY A FAIR OPPORTUNITY TO RESPOND TO BERRY’S CROSS SUMMARY JUDGMENT MOTION.
III. WHETHER THE CHANCELLOR’S DENIAL OF THE RULE 59 MOTION WAS ERRONEOUS.
IV. WHETHER THE SUPERSEDE-AS BOND REQUIRED BY THE CHANCERY COURT WAS PROPER AND WHETHER ITS AMOUNT SHOULD HAVE BEEN REDUCED.

¶ 3. The Berrys also cross-appeal, claiming that as the “prevailing party,” they should have been awarded attorneys’ fees and costs, which the covenants unconditionally provide to the prevailing party in litigation.

¶ 4. We affirm the decision of the chancery court, except that we reverse and remand on cross-appeal for a determination of attorneys’ fees.

FACTS

¶ 5. Charles and Michelle Berry (hereinafter referred to collectively as “Berry”) brought suit against their next door neighbors Henry R. and Janie E. Journeay (hereinafter referred to collectively as “Journeay”), and J. Baxter and Wanda Burns (hereinafter referred to collectively as “Burns”), asserting that the Journeay’s and Burns’s fences violated the restrictive covenants governing their neighborhood property, and that the fences caused damage to Berry. The subdivision in question is the Buckingham subdivision located in Brandon, Mississippi.

¶ 6. Burns and Journeay own Lots 59 and 61 respectively of the Buckingham subdivision. Berry owns Lot 60. The fences in question, which run along the front of Lot 59 and two that run to the waterfront of Lots 59 and 61, are made of wrought iron and brick. A lake runs directly north of all three lots that is available for the use and enjoyment of all residents of the subdivision.

¶ 7. Berry contends that both Burns’s and Journeay’s lots are encumbered by a restrictive convent entitled, “Protective Covenants Buckingham Subdivision,” which were recorded in the land records of Rankin County on August 4, 1998. When the covenants were recorded, Michael Greene and Walter “Boo” Baker held title to the subdivision property in their individual names. However, the named declarant of and signatory to the covenants was “L.O.M. Corporation,” which apparently did not exist at the time the covenants were executed. A series of purported transfers and curative efforts followed. Below is a time line to assist with the events and parties involved.

¶ 8. January 1997: Michael Greene and Walter L. “Boo” Baker purchased land in Rankin County for a subdivision development. They also formed L.O.M. Properties, Inc. for the purpose of developing the new subdivision entitled, “Buckingham.”

August 4, 1998: Greene and Baker filed the plat for the subdivision and the protective covenants with the Office of the Chancery Clerk of Rankin County, Mississippi at Book 843, Page 575. The covenants were properly indexed, but Greene mistakenly listed the declarant’s name as “L.O.M. Corporation.” The correct name was “L.O.M. Properties, Inc.” Greene also signed the covenants as President of “L.O.M. Corporation.” The only legal entity registered with the Mississippi Secretary of State at that time having “L.O.M.” in its title was L.O.M. Properties, Inc.

August 14, 1998: Greene and Baker conveyed their interests in the realty to “L.O.M. Corporation.” The deed was recorded at Book 847, Page 380 with the Office of the Chancery Clerk of Rankin County. The conveyance was made “subject to all applicable building restrictions, restrictive covenants, easements and mineral reservations of record.”

September 3, 1998: Greene signed a warranty deed as President of “L.O.M. Corporation,” conveying Lot 61 to Finley and Robin Stricklin as joint tenants with rights of survivorship. The deed was recorded at Book 847, Page 380, and states that the property was subject to all applicable restrictive covenants. The Stricklins also received a copy of the covenants at their closing and expressly agreed to abide by them. The Stricklins are the predecessors-in-title to Journeay.

October 5, 1998: Greene and Baker, realizing the incorrect corporate name was listed on the deed conveyances, issued a quitclaim deed, conveying interest in the subdivision from “L.O.M. Corporation” to the correct name, “L.O.M. Properties, Inc.” The quitclaim deed is recorded at Book 850, Page 843, and the conveyance is subject to “applicable building restrictions, [and] restrictive covenants.” In addition, Greene issued a corrected warranty deed to the Stricklins on Lot 61 as joint tenants with rights of survivorship. The corrected warranty deed is recorded at Book 850, Page 486, and like the original warranty deed, states that the conveyance is subject to the restrictive covenants.

February 15, 1999: L.O.M. Properties conveyed Lots 59 and 60 to Steve L. And Teresa H. Milner. The warranty deed is recorded at Book 863, Page 488, and states that the conveyance is subject to the restrictive covenants. The Milners also received a copy of the covenants at their closing and agreed to abide by them “as long as we own a lot in the Buckingham subdivision.” Later, the Milners built a fence on the front of their property which violated the front setback line provision in the covenants.

July 25, 2000: The Stricklins conveyed Lot 61 by warranty deed to Journeay. The warranty deed was recorded at Book 917, Page 617 and stated that the conveyance was subject to the restrictive covenants.

March 15, 2001: The Buckingham Property Owners Association was formed as a non-profit. All Buckingham lot owners are members of the Association. The Association elected a Board of Directors (hereinafter the “Board”), and also formed an Architectural Review Committee (hereinafter the “ARC”) to review proposed building plans for subdivision lots.

May 11, 2001: Billy Wayne and Cynthia Herron conveyed by warranty deed Lot 60 to the Berrys. The warranty deed is recorded at Book 946, Page 303, and was subject to all restrictive covenants.

May 16, 2002: At a Board meeting, the ARC reviewed Journeay’s request for approval to build a fence on Lot 61 to enclose a pool. The Board denied the request because the proposed fence was in violation of the covenants and informed Jour-neay of the denial. The Board further found that it had no authority to grant variances or exceptions to proposed, building plans that would violate the covenants.

July 2002: Ignoring the decision of the Board, Journeay built a wrought iron fence with brick columns down the side of his house into the lake.

October 4, 2002: The Board notified Jour-neay by letter that the fence violated Article 11 of the covenants.

October 7, 2002: The Board notified the Milners that their fence built on Lot 59 violated Article 11 of the covenants. The fence was constructed of brick and wrought iron and ran along and adjacent to the street right-of-way next to Berry’s property.

January 14, 2003: Members of the homeowners association proposed certain amendments to the covenants; two of these directly affected Article 11 and would have allowed the fence that was built by Journeay to stay. However, the amendment failed. An amendment detailing the procedure for approving variances also failed.

February 25, 2003: Berry filed suit to compel Journeay to remove the portion of their fence coming within twenty-five feet of the water’s edge.

July 29, 2003: The ARC reviewed the Burns’s plans for a pool and cabana on Lot 59, the lot which they were planning to purchase from the Milners. The ARC approved the plans but did not discuss whether a fence was included in the plans.

August 19, 2003: The Milners conveyed Lot 59 to Burns. The warranty deed is recorded at Book 1029, Page 50, and is subject to all restrictive covenants. An addendum to Burns’s contract for the purchase of real estate signed on June 16, 2003, expressly indicates, “Purchaser acknowledges receipt of the Protective Covenants for Buckingham Estates and agrees to comply.”

Fall 2003: Burns built an additional wrought iron fence forming a boundary around all of Lot 59 located on dry land. Part of the fence built lies within twenty-five feet of the edge of the lake and actually goes into the lake. Part of the fence also is constructed nearer to the street than the rear wall of the residence on Lot 59. At some point, Berry verbally warned Burns of the pending litigation between himself and Journeay for a similar fence. Burns continued with the construction of the fence anyway.

October 25, 2003: The Board notified Burns by letter that their fence violated Article 11 of the covenants.

August 10, 2004: Berry added Burns as defendants in their lawsuit against Jour-neay. Burns filed a motion for summary judgment, seeking an adjudication that the covenants in question were, as a matter of law, defective and invalid. Burns claimed that the restrictive covenants were filed under a non-existent corporate moniker. The named declarant of and signatory to the covenants on record is “L.O.M. Corporation.” At the time the covenants were recorded, Michael Greene and Walter “Boo” Baker owned the subdivision property as “L.O.M. Properties, Inc.”

August 16, 2004: Journeay joined in Burns’s motion for summary judgment.

August 17, 2004: Berry filed a cross-motion for summary judgment. In their response to Berry’s cross motion for summary judgment, Burns and Journeay argued that they had not had an opportunity to depose Berry. Therefore, summary judgment should be denied. However, neither Burns nor Journeay filed for or took any discovery.

September 2004: Burns and Journeay approached subdivision lot owners with “Declarations of Consent,” which attempted to add another paragraph to Article 17 of the covenants. The language implemented a procedure for approving single-lot variances, and specifically gave approval for Burns’s and Journeay’s fences.

January 26, 2005: After hearing oral arguments, the chancellor granted Berry’s summary judgment motion but declined to award them costs and attorneys’ fees.

March 9, 2005: A final judgment was entered, which included an injunction to be enforced against Burns and Journeay by a prospective contempt sanction. The chancery court held that the covenants were valid and enforceable against the Burns and Journeays because: (1) Burns and Journeay had actual and constructive knowledge of the covenants when they acquired title to Lots 59 and 61, and (2) they acknowledged the validity of the covenants by repeated attempts to obtain variances and architectural approval of their fences and other structures, and (3) their immediate predecessors-in-title expressly agreed in writing to be bound by the covenants.

¶ 9. Burns and Journeay subsequently moved to alter or amend the judgment pursuant to M.R.C.P. 59, which was denied by the chancellor. Burns and Journeay thereafter filed their notice of appeal on May 3, 2005, and Berry cross-appealed on the issue of attorneys’ fees and costs on May 10, 2005. On August 18, 2005, the chancellor set a supersedeas bond as a requirement for staying the chancery court’s judgment.

STANDARD OF REVIEW

¶ 10. An appeal from summary judgment is reviewed de novo. Jacox v. Circus Circus Miss., Inc., 908 So.2d 181, 183(¶ 4) (Miss.Ct.App.2005) (citing Cossitt v. Alfa Ins. Corp., 726 So.2d 132, 136(¶ 19) (Miss.1998)). The standard by which we review the grant or denial of summary judgment is the same standard as is employed by the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. Id. (citing Dailey v. Methodist Med. Ctr., 790 So.2d 903, 906-07(¶ 3) (Miss.Ct.App.2001)). Pursuant to M.R.C.P. Rule 56(c), summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” The evidence must be viewed in the light most favorable to the non-moving party. Jacox, 908 So.2d at 184(¶ 4).

LAW AND ANALYSIS

I. WHETHER THE COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF BERRY.

¶ 11. Burns and Journeay argue that the lower court erred by granting summary judgment in favor of Berry, because there is no legal or factual basis to support the finding that Burns and Journeay are bound by the restrictive covenants.

A. Whether fíling under the wrong corporate name invalidated the deed transfers and restrictive covenants.

¶ 12. The original deed conveyance and restrictive covenants recorded in the real property general index for the county incorrectly listed the grantor and declarant as “L.O.M. Corporation,” instead of the correct name, “L.O.M. Properties, Inc.” Burns and Journeay argue that the misnomer invalidates the deeds and covenants, and therefore, the covenants do not run with the land and do not bind any of the subsequent landowners. We disagree.

¶ 13. Section 89-5-33(3) of the Mississippi Code Annotated (Rev.2006) provides guidance for an instrument relating to real property to be recorded in the county’s general index:

To be accepted for recording, an instrument shall state the name, address and telephone number of the person, entity or firm preparing it. The fact that the indexing instruction or preparer information may be omitted, incorrect, incomplete or false shall not invalidate the instrument or the filing thereof for record.

¶ 14. On August 4,1997, the subdivision plat for Buckingham subdivision was filed in the Rankin County land records. At the same time, the protective covenants for the subdivision were also filed. The protective covenants and deed transfer incorrectly listed the property owner’s company as “L.O.M. Corporation,” instead of the correct title, “L.O.M. Properties, Inc.” Burns and Journeay argue that the protective covenants were invalid and unenforceable because the name under which the covenants were filed was a non-existent corporation. While we agree that “L.O.M. Corporation” is not the equivalent of “L.O.M. Properties, Inc.,” we find that the misnomer did not invalidate the protective covenants.

¶ 15. For a warranty deed, “Ml the law requires is that the grantee be described in such terms that by reference to objective evidence otherwise available, his identity may be ascertained with reasonable certainty.” Garraway v. Yonce, 549 So.2d 1341, 1342 (Miss.1989). Upon conducting a records search, the identity of L.O.M. Properties, Inc. was reasonably ascertainable. “L.O.M. Corporation” did not exist at the time of the original conveyance. The only legal entity registered in Mississippi whose name began with “L.O.M.” or “LOM” was “L.O.M. Properties, Inc.” Thus, if one were to enter a search for “L.O.M. Corporation,” L.O.M. Properties, Inc. should have been included in the list of possible matches.

¶ 16. In addition, the owners of the subdivision, Michael Greene and “Boo” Baker, intended that the restrictive covenants be recorded as “L.O.M. Properties, Inc.” Once Greene was alerted to the problem of the incorrect name on the original deeds, he immediately remedied the situation by preparing new deeds with the correct name, although the protective covenants do not seem to have been amended accordingly. Greene admitted in his affidavit that the wrong company name was used initially, but it was his intent and understanding that the property conveyed would be subject to the protective covenants and that once he made the correction to the original deeds, he intended that they be subject to the restrictive covenants already on file under “L.O.M. Corporation.”

¶ 17. After the initial filing of the original warranty deed, deed transfers were made to ten different purchasers of lots in the Buckingham subdivision. All of those deed transfers were subsequently corrected with the proper corporate name. In addition, the corrected deeds contained an express provision which stated that the conveyance was subject to all applicable restrictive covenants, and all of the initial purchasers of Buckingham lots received a copy of the restrictive covenants.

¶ 18. When Burns and Journeay purchased their lots from the original lot owners, the corrected deeds had already been issued. Therefore, even if the incorrect name could have invalidated the original deed and protective covenants, any defect would have been cured by the time Burns and Journeay purchased their own lots.

¶ 19. Therefore, we find that the misnomer in the original deed transfer did not invalidate the restrictive covenants, and even if it had, the developer followed the necessary steps to correct the defect. Accordingly, Burns’s and Journeay’s argument that the deed transfers were invalid is without merit.

B. Whether the covenants run with the land and therefore bind Burns and Journeay to the “visual barriers” restriction.

¶ 20. Our next inquiry is whether the restrictive covenants ran with the land and, therefore, bound subsequent purchasers of the property.

¶ 21. Our supreme court has held that a covenant must meet the following criteria to run with the land: “(1) the covenanting parties must intend to create such covenant; (2) privity of estate must exist between the person claiming [sic] right to enforce the covenant and the person upon whom burden of covenant is to be imposed; and (3) the covenant must ‘touch and concern’ the land in question.” Hearn v. Autumn Woods Office Park Property Owners Ass’n, 757 So.2d 155, 158(¶ 12) (Miss.1999). “Covenants which run with the land may be enforced by subsequent assignees or successors in title to the original parties.” Griffin v. Tall Timbers Develop., Inc., 681 So.2d 546, 550 (Miss.1996) (citing White v. Miss. Power & Light Co., 196 So.2d 343 (Miss.1967) (where a covenant runs with the land, the covenant may be enforced by a member of a class of persons for whose benefit the deed is made although he is not a party to the instrument)).

i.Intent

¶ 22. As stated above, the developer intended the covenant to run with the land as evinced by the language in the Declaration of Covenants. The relevant wording in Article 17 of the Covenants is as follows: “These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of thirty (30) years from the date these covenants are executed, after which time said covenants shall be automatically extended for successive period of ten (10) years.... ”

¶ 23. Greene and Baker also testified that they intended to make lots 1 through 61 of Buckingham subject to the restrictive covenants on file. After recording the covenants, Greene and Baker deeded the property to their realty company with the understanding that the property would be subject to the covenants. Likewise, the deed transfers contain language stating that the property is subject to all applicable restrictive covenants. Moreover, Ronnie Richardson, a real estate agent who helped develop the covenants, testified in his affidavit that he had each new lot owner sign a copy of the covenants at closing, acknowledging their receipt and agreement to abide thereby.

¶ 24. In addition, the granting clause of the covenants states that “said owners hereby covenant and agree with any and all purchasers and owners of a lot or lots in Buckingham Subdivision, that the following protective and restrictive covenants shall apply to all lots of said Subdivision!)]” Clearly, the intent of the developers as well as the purchaser was that any property transfer be subject to the restrictive covenants on record.

ii. Privity of Estate

¶ 25. Furthermore, privity of estate was established when Greene and Baker initially sold lots 59 and 60 to the Milners and lot 61 to the Stricklins. Each lot owner received a copy of the restrictive covenants and agreed to be bound by them. The original lot owners of lots 59 and 61 both received and agreed to be bound by the protective covenants when they purchased their lots. They were told that their title was subject to those covenants, provided a copy of the covenants and signed the covenants. Therefore, they had actual notice of the covenants. Subsequently, lots 59, 60 and 61 were sold to Burns, Berry and Journeay, respectively. Because the lots have been sold, the current owners have both the burden of the covenants and the benefit of the right to enforce them.

iii. Touches and Concerns the Land

¶ 26. The covenant prohibiting visual barriers also touches and concerns the land. In order for a covenant to touch and concern the land, it “must be so related to the land as to enhance its value and confer a benefit upon it, or, conversely, impose a burden on it.” Vulcan Materials Co. v. Miller, 691 So.2d 908, 914 (Miss.1997). The relevant language of Article 11 states:

No wall or lot enclosure may project to a point nearer the street than the front setback line, of adjoining property.... No fence shall be constructed on any lot of the subdivision, nearer the street than the rear wall of any residence constructed on a lot.... Fences erected on water front lots may not be erected within 25 ft. of the water’s edge.

By restricting certain structures which would be inconsistent with the development scheme, the covenants protect the character of the subdivision. Therefore, the restrictions do touch and concern the land.

¶ 27. Journeay further argues that the deed from his predecessor-in-title does not reference the restrictive covenants and therefore does not bind him to the covenants. However, “A covenant that runs with the land is enforceable against a subsequent owner, even if that covenant is not referenced in the subsequent owner’s deed.” Hearn, 757 So.2d at 158 (If 14). Burns concedes that he was aware of the restrictive covenants, but that he only agreed to be subject to them pending the approval of the plans to build a cabana and swimming pool. Even if Burns only agreed to be subject to the covenants pending approval of his plans, the ARC did approve Burns’s plan for a cabana and pool. Thus, Burns was subject to the enforcement of the covenants. As successors to the original contracting parties, Jour-neay and Burns had actual notice of the covenant restrictions. Thus, Burns and Journeay are both clearly bound by the covenants. Perry v. Bridgetown Community Ass’n, Inc., 486 So.2d 1230, 1234 (Miss.1986) (signature of lot owners or predecessors to covenants is actual notice of restrictions and liability).

¶ 28. Burns and Journeay also had constructive notice of the protective covenants. Our supreme court has held that a prior recorded deed gives a subsequent grantee constructive notice of that deed and its provisions. Hearn, 757 So.2d at 158(¶ 14). In the present case, the protective covenants were previously filed in the Declaration of Covenants before any lot owners were granted their deeds. A plat was filed in connection with the declaration, and the lots were sold by reference to the plat. The original deed conveyances, as well as the corrected versions, contained provisions which expressly stated that the property was subject to all applicable restrictive covenants.

¶ 29. We find that Burns and Journeay are bound by the restrictions. “Restrictions placed by the grantor on the use of property conveyed will be enforced if the intent to create them is clear, and if they are not contrary to law or public policy and are reasonable.” Carter v. Pace, 227 Miss. 488, 494, 86 So.2d 360, 362 (1956). Both Greene and Baker, the original developers, testified that their intent was to burden all of the Buckingham lots with the covenants. Thus, Burns’s and Journeay’s argument in this regard is without merit.

C. Whether the Homeowners Association Board or the ARC has the authority to permit single-lot variances.

¶ 30. Burns and Journéay contend that they were given single-lot variances for their fences by Baker, the Board, and/or the ARC. The original restrictive covenants do not contain a specific provision for a property owner to seek and obtain a variance to any of the property restrictions. However, as a general practice, Journeay asserts that the Board and the ARC allowed property owners to obtain variances from the enforcement of certain covenants against conditions on their property. For instance, Jimmy Wilkins submitted an affidavit stating that he was a Buckingham resident who was granted a variance to build a four-car garage, which was a larger garage than what was allowed in the restrictive covenants.

¶ 31. The Homeowners Association, the Board and the ARC review process are creatures of the covenants. The Association was formed in 2001. It promulgated procedures for voting on any other changes, rules, additions, or proposals to the covenants. “When covenants provide for a subdivision association to be formed, then the owners are on notice and they are obligated to comply with the rules and the bylaws of that association as long as they are consistent with the covenants themselves.” See Griffin, 681 So.2d 546; Perry, 486 So.2d 1230.

¶ 32. Journeay asserts and testimony corroborates that Boo Baker, one of the original developers, attempted to verbally grant Journeay a single-lot variance for his fence. The fence violated the covenants. Baker testified that he had the right as the developer to make changes to the covenants as he saw fit until a homeowner association was formed. However, no provision exists in the covenants to grant such authority. The only provision which comes close to granting such authority is in Article 4, which states in relevant part:

In order to ensure that all structures shall comply with these restrictions, two sets of the proposed plans and specifications for each building, mailbox, culvert placement, on-site parking, and driveway (concrete, paved, or slag) specifications are to be submitted to Declarants, them agents, successors and/or assigns, for review and approval, prior to the starting of any building, erection, or placing; such plans to be in sufficient detail to illustrate conformity with these specifications and decorations. Plans and specifications must be submitted to the Declarants or their representative until 40 lots of Buckingham Subdivision have been conveyed by Declarants to third parties, at such time the Buckingham Subdivision Property Owners Association will then delegate a committee of three persons, by majority vote of the said members of said association, to approve any such plans.

Article 4 makes no mention of exceptions to the restrictions. As it states, the purpose of the provision is to “ensure that all structures shall comply with these restrictions.” Moreover, Baker testified that the reference to “building,” was not intended to include a fence. In addition, Journeay never submitted any plans or specifications for a fence to Baker. Yet, Baker stated that he did give Journeay oral approval for the fence. However, the covenants do not provide any authority for approving a violation of the restrictions.

¶ 33. After the Board was formed, Journeay also requested permission from the Board to build a fence to surround his pool. The fence came within twenty-five feet of the water’s edge and was violative of the covenants. Minutes from the Board’s meeting on May 16, 2002, show that Journeay was denied his request. Regardless of the denial, Journeay built his fence and was later sent a letter from the Board regarding his willful violation.

¶ 34. Burns also argues that he was granted a single-lot variance from the ARC when it approved his plans for a pool and cabana. However, upon review of the plans submitted to the ARC, it does not appear to contain a visual drawing or specifications for a fence. In addition, Berry testified that he verbally warned Burns that litigation was pending against Jour-neay for building a fence which extended into the water. Burns moved forward with constructing his fence despite the warning.

¶ 35. Berry asserts that single-lot variances defeat the purpose of the general scheme of development embodied in restrictive covenants. Berry cites PMZ Oil Co. v. Lucroy, 449 So.2d 201, 207-08 (Miss.1984) as holding that under the doctrine of equitable estoppel, a subdivision’s developer may not be allowed to disregard the covenants it has already imposed on lot owners. In PMZ, the court stated:

[Ejvidence is uncontradicted that PMZ made similar representations to all lot purchasers in the Raintree Subdivision. The same covenants were included in every other deed to a third party. Without exception, PMZ had represented that these covenants would apply to all lots in the Raintree Subdivision.... These facts are more than sufficient to undergird the Chancery Court’s enforcement of an estoppel against PMZ.

Id.

¶ 36. Neither Burns nor Journeay cite any case to rebut the aforementioned position. Yet the facts in the present case are clear. Greene and Baker constructed the covenants to run with the land and bind all subsequent lot owners. All of the initial lot owners relied upon the provisions of the covenants and agreed to abide by them. The covenants did not contain a provision authorizing single-lot variances. However, the covenants did provide for a procedure to be followed to amend the covenants, which we will discuss below. Therefore, we find that neither the Board, ARC or developers had the authority to grant any single-lot variances.

D. Whether Burns and Journeay effectively “amended” the covenant restrictions for visual barriers.

¶ 37. Our next inquiry turns to whether any “amendments” to the covenants ratified Burns’s and Journeay’s fence violations. Burns and Journeay claim that they effectively obtained approval for their fences by formulating a Declaration of Consent petition signed by over 75% of the lot owners. We disagree.

¶ 38. No provision exists in the covenants for granting an individual variance to ratify a covenant violation. However, the covenants do provide for procedures to amend the covenants, and for review of covenant violations. Article 17 of the Covenants provides:

Term. These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of thirty (30) years from the date these covenants are executed, after which time said covenants shall be automatically extended for successive period of ten (10) years, unless an instrument signed by seventy-five (75%) percent of the then owners of the lots shall have been executed, agreeing to change the covenants in whole or in part; likewise any provision or term of these declarations may be amended at any time in the same fashion and by the same procedure. Owners could attend the Board meeting or vote by proxy. If a quorum is present at the meeting (including proxies), a vote may be taken, but if a quorum is not present, another meeting may be called. The results of the vote are to be recorded, and all property owners are to be notified by certified mail.

¶ 39. We defer to the language provided in the covenants because, “When a contract is clear and unambiguous on its face, its construction is a matter of law, and not fact, and must be construed and enforced as written.” Griffin, 681 So.2d at 551.

¶40. Pursuant to the covenants, the Board adopted additional procedures for amending the covenants. Under these procedures, property owners are to be provided, by certified mail, written information, not less than five days and not more than thirty days before the Board meeting, indicating the date and time of the meeting and agenda and specifics on what the vote will concern. The Board also adopted procedures for a request by a property owner for a review or action by the Board. If the request concerns a violation of the covenants, the Board must provide written notice to the lot owner of the violation, stating the violation and the time frame allowed for correction.

¶ 41. Burns and Journeay took measures to attempt to “amend” the covenants by personally soliciting signatures from residents of the subdivision to change the community bylaws. Fifty Declarations of Consent were signed by lot owners. Each declaration was signed by a single owner; thus, no jointly owned lots had the signatures of both owners. The Declaration of Consent included language that changed Article 17 of the covenants to allow single-lot variances pending either (1) Board approval or (2) written approval of not less than 75% of the owners of the “then owners” of the lots. The form also contained a provision which expressly permitted Burns and Journeay to keep their fences, subject to approval by 75% of the lot owners.

¶ 42. Burns and Journeay did not follow the procedure established by the Board. They did not inform the Board or property owners in writing or attempt to set a homeowners association meeting to assess the votes. It appears that the parties attempted to circumvent the established process by the Board in order to perfect their personal and willful violation of the existing covenants.

¶43. Furthermore, Article 11 of the protective covenants is clear and unambiguous as to how and where a fence may be constructed on any lot of the subdivision. Burns and Journeay did not amend, modify or attempt to amend or modify Article 11. Therefore, their fences remain in violation of Article 11.

¶44. Because this issue was one of contract interpretation and therefore a question of law, the lower court was correct in its interpretation of the covenants, and in finding that Burns and Journeay did not correctly amend the covenants. Therefore, Burns’s and Journeay’s arguments on this issue are without merit.

II. WHETHER THE CHANCELLOR’S DENIAL OF THE RULE 56(F) REQUEST FOR ADDITIONAL TIME DENIED BURNS AND JOUR-NEAY A FAIR OPPORTUNITY TO RESPOND TO BERRY’S SUMMARY JUDGMENT MOTION.

¶ 45. Burns and Journeay argue that the chancellor’s denial of their Rule 56(f) request for additional time denied them a fair opportunity to respond to Berry’s cross-motion for summary judgment. Burns and Journeay assert that Berry’s cross-motion extended beyond the issues argued in the original summary judgment motion, because of factual and legal issues that were unrelated to the specific issues raised in their own motion.

¶ 46. Burns and Journeay state that their own summary judgment motion focused on one narrow issue: whether the covenants were valid and enforceable given that they were filed under a non-existent corporate moniker. However, Berry’s cross-motion for summary judgment included additional issues. Journeay and Burns desired an opportunity to depose Berry, whom they claim may have approved granting certain variances in his position on the Board of Directors, which would preclude the suit by employing equitable estoppel principles.

¶ 47. M.R.C.P. 56(f) provides as follows:

Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just.

Burns and Journeay requested that the court reserve hearing arguments on Berry’s cross-motion for summary judgment until after the court had ruled on their own motion for summary judgment. The court denied that request and went on to grant Berry’s cross-motion for summary judgment.

¶ 48. It is within the court’s discretion whether to permit or deny a Rule 56(f) motion. Marx v. Truck Renting and Leasing Ass’n Inc., 520 So.2d 1333, 1343 (Miss.1987). “[T]he party resisting summary judgment must present specific facts why he cannot oppose the motion and must specifically demonstrate” how he would be able to rebut the “mov-ant’s showing of the absence of a genuine issue of material fact.” Id. at 1344.

¶ 49. We find nothing in the record to indicate that the chancellor abused his discretion in denying Burns’s and Journeay’s 56(f) motion. Berry filed the case against Journeay on February 25, 2003, and added Burns to the amended complaint on April 6, 2004. Burns filed a motion for summary judgment on August 10, 2004, and Berry responded on August 17, 2004, with a cross-motion for summary judgment. No discovery requests or notice to depose Berry were filed by Burns or Journeay. Therefore, we find that sufficient time passed in which neither Burns nor Jour-neay attempted to avail themselves of the discovery process. Accordingly, we find this issue to be without merit.

III. WHETHER THE CHANCELLOR’S DENIAL OF THE RULE 59 MOTION WAS ERRONEOUS.

¶ 50. Burns and Journeay argue that the chancellor abused his discretion by denying their Rule 59(e) motion to set aside his order and allow discovery to proceed because they were denied the opportunity to develop additional evidence.

¶ 51. The grant or denial of a Rule 59 motion is within the discretion of the judge and we will not reverse the denial absent an abuse of discretion or if allowing the judgment to stand would result in a miscarriage of justice. Clark v. Columbus & Greenville Railway Co., 473 So.2d 947 (Miss.1985). M.R.C.P. 59(e) provides for a motion to alter or amend a judgment. In order to succeed on a Rule 59(e) motion, the movant must show: (1) an intervening change in controlling law, (2) the availability of new evidence not previously available, or (3) the need to correct a clear error of law or to prevent manifest injustice. Brooks v. Roberts, 882 So.2d 229, 233(¶ 15) (Miss.2004).

¶ 52. Burns and Journeay argue that after the Board’s vote on January 13, 2003, to amend Article 5 of the covenants, the vote provided new evidence to bolster their case. We disagree. The original language of Article 5 stated, “The minimum setback line or building setback line for all residences shall be 25 ft.” The change added that the minimum setback line would still be twenty-five feet from adjoining property lines and seventy-five feet from the edge of the right-of-way line. An exception was provided for the lots along Fannin Landing Road, where the minimum setback lines could be less than seventy-five feet, but that was “subject to the A.R.C. approval.” Burns and Journeay claim that the new language provides that the Board approved a single-lot variance.

¶ 53. In addition, Burns and Journeay argue that a question has arisen as to whether Berry, who may have attended the Board meeting approving the language change to Article 5, voted for the amendment. They claim that had they been able to depose Berry on this issue, an equitable estoppel defense could have been pursued, preventing Berry from denying the validity of other single-lot variances.

¶ 54. First, we are unable to see how the new language in Article 5 is relevant to any of the parties. None of the lots involved in the present case sit on Fannin Landing Road. The setback lines referenced in Article 5 apply to building setbacks, which we have already stated do not involve “fences.” A separate provision for fences applies to Article 11.

¶ 55. Likewise, even if Berry did vote for the amendment, an equitable es-toppel theory would not apply to the argument. Equitable estoppel “requires a representation by a party, reliance by the other party, and a change in position by the relying party.” Westbrook v. City of Jackson, 665 So.2d 833, 839 (Miss.1995). A vote by Berry would not meet any of these three elements. In addition, a proposed amendment granting single-lot variances had already failed when put to a vote before the homeowners association. Finally, neither Burns nor Journeay filed a discovery order to depose Berry on this issue. Therefore, we find this issue to be without merit.

IV. WHETHER THE SUPERSEDEAS BOND REQUIRED BY THE CHANCERY COURT WAS PROPER AND WHETHER ITS AMOUNT SHOULD HAVE BEEN REDUCED.

¶ 56. The chancellor included in his final order, sua sponte, a $50 per day penalty from the 90th day after the entry of the judgment if Burns or Journeay failed to comply with the injunction. Burns and Journeay filed a motion to stay that judgment penalty, pending appeal to the supreme court. Berry filed a cross-motion to require Burns and Journeay to file a supersedeas bond if the court granted the stay. The court granted the stay for the contempt order, but also required an $18,250 supersedeas bond.

¶ 57. Burns and Journeay argue that under Mississippi Rule of Appellate Procedure 8(b), the final judgment is not a monetary judgment; therefore, the final order constitutes an improper penalty assessment. They further argue that the amount of the bond should not have exceeded the statutory maximum of $1,000. Berry maintains that the stay merely delays the enforcement of the protective covenants that the court found to have been clearly violated and that continue to be violated.

¶ 58. M.R.A.P. 8(b)(1) provides:

Application for a stay of the judgment or the order of a trial court pending appeal or for approval or disapproval of a contested supersedeas bond ... must ordinarily be made in the first instance to the trial court. The court shall require the giving of security by the appellant in such form and in such sum as the court deems proper, and for good cause shown may set a supersedeas bond in an amount less than the 125 percent required in cases under Rule 8(a).

The comments to Rule 8 further instruct that the purpose of the supersedeas bond is to “preserve the status quo while protecting the judgment creditor’s rights pending appeal,” and that the trial court should “endeavor to protect the prevailing party.”

¶ 59. In Jenkins v. Jenkins, 757 So.2d 339, 341(¶ 3) (Miss.Ct.App.2000), this Court affirmed the lower court’s order in which a supersedeas bond was required for an appeal from its judgment requiring a partition of a land tract. In addition to ordering partition of the land, the chancery court issued an injunction requiring the appellants to remove their trailers from the appellee’s land. The injunction was conditioned upon the appellant’s posting of the supersedeas bond. When the appellants posted that bond, the court stayed the injunction. In Moreland v. Riley, 537 So.2d 1345, 1347 (Miss.1989), our supreme court held, “Where the appeal is without supersedeas, the successful party may proceed to execute on the lower court decree.” Therefore, a supersedeas bond is still proper even where the relief appealed is nonmonetary, such as injunctive relief.

¶ 60. Burns and Journeay further argue that the supersedeas bond exceeds the statutory maximum of $1,000 pursuant to Mississippi Code Annotated Section 11-51-12 (Rev.2002). Section 11-51-12 sets a statutory maximum for appeals from a judgment of civil contempt, which should not exceed 125% of the sum the person has been adjudicated in contempt for failure to pay. A statutory maximum for $1,000 is set forth under Section 11-51-11 (Rev. 2002), which provides for appeals from a 'criminal contempt judgment. Miss.Code Ann. § 11-51-11.

¶ 61. In the present case, the lower court did not make a final judgment of civil or criminal contempt against Burns and Journeay. The court stated that if Burns and Journeay did not comply with the final order within ninety days, then they would be in contempt and subject to a civil fine or penalty of $50 for each day not in compliance. Therefore, we again refer to Rule 8(b) of the Mississippi Rules of Appellate Procedure, which states that, “[t]he court shall require the giving of security by the appellant in such form and in such sum as the court deems proper, and for good cause shown may set a supersedeas bond in an amount less than the 125 percent,” of the amount of the judgment appealed from.

¶ 62. We find that the court did not abuse its discretion in ordering the amount to be paid for the supersedeas bond. Accordingly, this issue is without merit.

ISSUE ON CROSS-APPEAL

I. WHETHER BERRY SHOULD HAVE BEEN AWARDED REASONABLE ATTORNEYS’ FEES.

¶ 63. Berry cross-appeals that the judge erred in denying him attorneys’ fees. As the “prevailing party,” Berry asserts that he was due attorneys’ fees based on the wording in Article 18 of the Buckingham covenants. Article 18 provides in pertinent part:

In any legal or equitable proceeding for the enforcement or to restrain the violation of these Protective Covenants or any provisions hereof by reference to otherwise [sic], the prevailing party or parties shall also be entitled to an award of reasonable attorneys’ fees and costs, in such amount as may be fixed by the Court in such proceeding from the non-prevailing party or parties, including the costs of any expert witness.

¶ 64. We review a grant or denial of attorneys’ fees under an abuse of discretion standard. Mauck v. Columbus Hotel Co., 741 So.2d 259, 269(¶ 32) (Miss.1999). However, our supreme court has stated that “unless a statute or contract provides for the imposition of attorney fees, they are not recoverable.” Hearn, 757 So.2d at 164. In addition, “parties may by contract provide that in event of dispute, the losing party must pay the winner attorney’s fees.” Grisham v. Hinton, 490 So.2d 1201,1206 (Miss.1986).

¶ 65. Berry asserts that the chancellor abused his discretion by ignoring the manifest provisions of Article 18 in the restrictive covenants. The relevant contract provision is unambiguous. The clause provides that, “In any legal or equitable proceeding ..., the prevailing party or parties shall also be entitled to an award of reasonable attorneys’ fees and costs[.]”

¶ 66. As we stated above, the restrictive covenants for the Buckingham subdivision were valid, ran with the land, and subsequently bound each successor in interest. Therefore, the contract provision of Article 18 should be upheld and attorneys’ fees should be awarded to Berry as the prevailing party. Accordingly, we reverse on this issue and remand to the chancery court for a determination of reasonable attorneys’ fees and costs.

¶ 67. THE JUDGMENT OF THE CHANCERY COURT OF RANKIN COUNTY IS AFFIRMED ON DIRECT APPEAL AND REVERSED AND REMANDED ON CROSS-APPEAL FOR A DETERMINATION OF ATTORNEYS’ FEES CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS AND THE CROSS-APPEL-LEES.

KING, C.J., LEE AND MYERS, P.JJ., ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING AND BARNES, JJ., CONCUR IN RESULT ONLY. GRIFFIS, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . The amount of the bond was computed by multiplying $50, which is the day rate of penalty for each day the court’s order was not complied with, times 365 days, which is the number of days the appellate process was reasonably expected to be completed.


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    James W. MARTIN, and Wife, Mae A. Martin and Martin Outdoor Advertising, Inc., Appellants v. MISSISSIPPI TRANSPORTATION COMMISSION, Appellee.
    No. 2005-CA-02287-COA.
    Court of Appeals of Mississippi.
    April 10, 2007.

      Mark D. Herbert, Lisa Anderson Rep-peto, Jackson, attorneys for appellants.
    John McNeil, James T. Metz, attorneys for appellee.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. James Martin, Mae Martin, and Martin Outdoor Advertising, Inc. appeal a jury verdict rendered in an eminent domain action brought by the Mississippi Transportation Commission (“MTC”)- On appeal, the Martins and Martin Outdoor argue that: (1) the MTC failed to meet its burden of proof; (2) the jury improperly engaged in speculation; (3) they are entitled to an additur; or (4) in the absence of an additur a new trial is warranted. We find error and affirm in part and reverse and remand in part.

FACTS

¶2. On November 6, 2002, the MTC filed an eminent domain action and sought to condemn the real property owned by the Martins and any leasehold interests, which included two sign structures owned by Martin Outdoors in Senatobia. MTC proceeded to gain title to the land and one of the advertising signs by quick-take method. See Miss.Code Ann. § 11-27-81 (Rev.2004)

¶ 3. At the trial, MTC presented the testimony of two witnesses for its case-in-chief. Daniel Norris was the project engineer for the construction of a new four-lane highway that would connect with Interstate 55. Norris identified the portion of the Martins’ and Martin Outdoors’ property needed to be acquired for the new interchange.

¶ 4. William Wiseman testified as MTC’s sole expert on valuation. It is Wiseman’s testimony that is the subject of this appeal. Wiseman was certified, by the court, as an expert in real estate appraisal. He then testified that the value of the land taken was $12,700 and value of the billboards was $65,100.

¶ 5. As to the value of the land, Wiseman testified that he considered the various approaches for the appraisal of real property, i.e., the income approach, the cost approach, and the sales comparison approach. Wiseman determined that the sales comparison approach was appropriate. To arrive at a valuation, Wiseman compared different properties from the surrounding area to arrive at his value of $12,700. During cross-examination, Wise-man was questioned why he did not use the income approach, since the property was an income producing property due to the different leases to Martin Outdoor. Wiseman stated that since there was only one lease for the entire property, the lease would continue after the taking. The Martins and Martin Outdoor established that there were actually two different leases for the sign sites. Each billboard had its own lease that was site specific and terminated with the removal of the sign. After being confronted with this information, Wiseman testified that he would not accept his own appraised price.

¶ 6. Wiseman’s testimony on the value of the billboards relied on an oral quote he obtained from Memphis Sign Erectors. Wiseman testified that he called Memphis Sign Erectors and was told that the price to construct each sign would be $42,000. Wiseman then reduced the value by the depreciation of each sign according to the age of the sign, ten years and eight years respectively. Wiseman then determined that the ten-year-old sign was valued at $31,500 and the newer sign was valued at $33,600. During cross-examination Wise-man admitted that the value of the signs was based solely on the verbal quote he obtained from a third party, Memphis Sign Erectors, and his calculation of depreciation based on that quote.

¶ 7. At the end of Wiseman’s testimony, the Martins and Martin Outdoors moved to strike Wiseman’s testimony. They argued that Wiseman was not an expert in the valuation of outdoor signs and that he was merely quoting another expert’s opinion on the value of the sign. The trial judge overruled the motion and stated that the quote was something upon which experts normally relied.

¶ 8. The Martins and Martin Outdoor offered testimony from expert witnesses that just compensation for the taking amounted to $565,847, representing $177,447 damage to the real property, $188,000 for the ten-year-old sign, and $200,400 for the eight-year-old sign.

¶ 9. The jury returned a verdict that awarded the Martins and Martin Outdoor compensation for the real estate taken in the amount of $36,000 and compensation for both signs taken in the amount of $120,000. The Martins and Martin Outdoor filed a motion for judgment notwithstanding the verdict, for additur, or in the alternative to alter or amend the judgment, or in the alternative for a new trial, which the court denied. Their appeal has been deflected to this Court for review.

ANALYSIS

I. MTC failed to meet its burden of proof

¶ 10. The burden of proof in an eminent domain case is unique, because the government is depriving the citizen of his or her property. Sarphie v. Mississippi State Highway Comm’n, 275 So.2d 381, 383 (Miss.1973). Therefore, the State has the “non-delegable” burden to establish a prima facie case of the value of the property taken. Id. If the condemnor fails to establish the prima facie case, a dismissal of the proceedings would be required. Mississippi State Highway Comm’n v. Fisher, 249 Miss. 198, 201-02, 161 So.2d 780, 781 (1964). The supreme court explained that “[t]he reason for placing the burden on the condemnor is that if it offers no evidence of the value of the property taken there is no basis for awarding any damages and there could be no compliance with Section 17, Mississippi Constitution.” Id. After a prima facie case has been established, if the party whose property is being condemned desires to receive greater compensation, then it must present evidence of a higher valuation. Ellis v. Mississippi State Highway Comm’n, 487 So.2d 1339,1342 (Miss.1986).

¶ 11. The Martins and Martin Outdoors argue that MTC failed to present competent evidence as to the value of the signs or the land. Therefore, they conclude that MTC failed to establish a prima facie case as required in an eminent domain action. This issue centers on the evidence MTC offered to establish the property’s value. The Martins and Martin Outdoor claim that Wiseman’s testimony was inadmissible.

¶ 12. The standard of review for the admission or suppression of evidence is abuse of discretion. Mississippi Transp. Comm’n v. McLemore, 863 So.2d 31, 34(¶ 4) (Miss.2003) (citing Haggerty v. Foster, 838 So.2d 948, 958(¶ 25) (Miss.2002)). Further, the decision of the trial court must stand “unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.” McLemore, 863 So.2d at 34(¶ 4) (citing Puckett v. State, 737 So.2d 322, 342(¶ 57) (Miss.1999)). Therefore, the Martins and Martin Outdoor have a heavy burden to overcome.

A. Evidence as to the value of the signs

¶ 13. Wiseman was MTC’s sole expert on valuation. Martin Outdoor argues that Wiseman was not an expert in valuing outdoor advertising signs and that his testimony was merely a conduit for another expert’s statement. After cross-examination of Wiseman during voir dire, the following discussion took place among the court, MTC’s counsel (Howie), and Martin Outdoor’s counsel (Herbert):

THE COURT: Just a moment. Mr. Howie, Mr. Wiseman is being offered as an expert in what field?
MR. HOWIE: The field of real estate appraising.
MR. HERBERT: I don’t know that there was any testimony that he’s licensed as a real estate appraiser in the State of Mississippi, so on that basis as that stands we would object. We also would object to him being called to offer any opinions with regard to the valuation of sign structures or to give an opinion as to the cost to rebuild sign structures as he’s never been accepted as an expert and he’s not an expert in that field. And in this case he simply took an opinion given by someone else and is going to offer it as his opinion. MR. HOWIE: Redirect, Your Honor?

¶ 14. Following a short redirect, the court accepted Wiseman as an expert in the field of real estate appraisal and instructed Martin Outdoor’s counsel to object if he felt Wiseman testified “outside his field.” The Court did not certify Wise-man as an expert in any field but real estate appraisal. Martin Outdoor argues that Wiseman’s valuation is inadmissible because it solely relied on a quote to build a sign given by Memphis Sign Erectors.

¶ 15. Martin Outdoor cites to Bishop v. Mississippi Transp. Comm’n, 734 So.2d 218, 221(¶7) (Miss.Ct.App.1999), for the proposition that “the testimony of one expert witness may not serve as a conduit for hearsay about another expert’s opinion.” There is an exception “[i]f the expertise of the testifying witness is such as to permit that witness’s adoption of the statements of a similar expert, then the witness is not a mere conduit.” Id. (citing Morley v. Jackson Redevelopment Auth., 632 So.2d 1284, 1293-94 (Miss.1994)). While the supreme court adopted the federal standard for expert witnesses in 2003, the principle addressed in Bishop still holds true. McLemore, 863 So.2d at 40(¶ 25). Thus, the question for this Court is whether the trial court abused its discretion in determining that the quote of Memphis Sign Erectors was the type of statement that an expert would adopt.

¶ 16. Wiseman’s testimony was very similar to the testimony of Griffin in Bishop. In Bishop, Griffin testified about a piece of property that had essentially two elements of value, land and timber. Bishop, 734 So.2d at 221(¶ 4). She stated that “she did not have the skills to value timber.” Id. at (¶ 7). Griffin testified that she contacted a timber cruiser to obtain the value of the timber. Id. This Court held that she merely passed through the information from another expert when she did not have the skills to value the timber herself. Id. Her timber valuation was held to be inadmissible, because Griffin merely acted as a conduit for the testimony of an expert not testifying at trial. Id. The exception is that the witness is not a mere conduit, if the “expertise of the testifying witness is such as to permit that witness’s adoption of the statements of a similar expert.” Id. (citing Morley, 632 So.2d at 1293-94). The exception is also spelled out in Rule 703 of the Mississippi Rules of Evidence. It states that an expert’s opinion may be based off of inadmissible evidence, such as hearsay, if it is of a type reasonably relied upon by experts in the particular field. M.R.E. 703.

¶ 17. Wiseman testified that he valuated the signs based on a cost-based approach. He contacted Memphis Sign Erectors and obtained a verbal quote of the cost to build an outdoor sign. He then depreciated this amount according to the age of the signs arriving at his valuation. On cross-examination, Wiseman was unable to recall the date on which he spoke with a representative of Memphis Sign Erectors. He also stated that this was the first time he had used Memphis Sign Erectors for such a quote. Further, Wiseman testified that he did not have any personal knowledge of the experience of Memphis Sign Erectors at building outdoor signs like the ones at issue. While he testified that he had performed hundreds of valuations, Wiseman admitted to only four or five valuations of outdoor advertising signs and that he had never testified to those valuations in court.

¶ 18. Wiseman demonstrated little to no knowledge as to the valuation of a business sign based on the cost approach. He merely called Memphis Sign Erectors, a company he had no personal knowledge about, and depreciated the quote that it gave him. While he did more than the expert in Bishop since he depreciated the figure according to the age of the signs, he demonstrated little more than Griffin’s knowledge about timber. Here, as in Bishop, it appears that the expert for valuation, with little knowledge of the property he was appraising, contacted a separate expert and put that information forward as his own opinion. In each case, the appraiser provided an appraisal for the property which fell under their expertise, while someone else provided the value of the remaining property. Bishop, 734 So.2d at 221(¶ 5). Further, there was very little of the required “intellectual rigor” in Wiseman’s opinion as demonstrated on cross-examination. McLemore, 863 So.2d at 38(¶ 15) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)).

¶ 19. Martin Outdoor argues that this testimony should have been stricken from the record and we agree. We hold that the trial court was in error for failing to strike the testimony of Wiseman and that MTC failed to establish a prima facie case with admissible evidence as to the value of the billboards.

¶ 20. Martin Outdoor requests that an additur be granted to conform the verdict to the admissible evidence. Since, the jury verdict was based on inadmissible evidence, the jury “was left to nothing but its own speculative analysis to arrive at a properly discounted figure to represent true value.” Williamson v. Lowndes County, 723 So.2d 1231,1233(¶ 6) (Miss.Ct. App.1998). This necessitates that the verdict be reversed and remanded for a new trial as to the proper value of the billboards taken. Id. at (¶ 7).

B. Evidence as to the value of the land

¶ 21. The Martins also allege that Wiseman’s valuation of the land was based upon a factual error and therefore unreliable. The Martins point out that there were two leases that covered the sign sites taken, not one lease for the entire property. The Martins discovered this in the cross-examination of Wiseman. However, they never made an objection or motion to strike the testimony as unreliable. The only time this issue was brought to the attention of the trial court was during their post-trial motions.

¶ 22. Failure to make a contemporaneous objection waives the objection. Copeland v. Copeland, 904 So.2d 1066, 1073(¶ 24) (Miss.2004) (citing De La Beckwith v. State, 707 So.2d 547, 574 (Miss.1997)). “Furthermore, when a party makes an objection on specific grounds, it is considered a waiver regarding all other grounds.” Copeland, 904 So.2d at 1073(¶ 24) (citing Burns v. State, 729 So.2d 203, 219(¶ 67) (Miss.1998)). After the testimony of Wiseman, counsel for the Martins and Martin Outdoor made a motion to strike his testimony regarding the valuation of the signs. They did not make an objection as to the admissibility of Wise-man’s testimony as to the value of the land. As such, that objection was waived. Copeland, 904 So.2d at 1073(¶ 24).

¶ 23. Therefore, we find no merit to this issue.

II. The jury improperly engaged in speculation

¶ 24. This allegation of error consists wholly of possible juror speculation as to the value of the signs. Since we have determined that the valuation of the signs should be remanded, we decline to address this issue.

III. The Martins and Martin Outdoor are entitled to an additur

TV. In the absence of an additur a new trial is warranted

¶ 25. This allegation is primarily based on the premise that all of Wiseman’s testimony is inadmissible. The Martins and Martin Outdoor allege that they should not be required to pay for litigation expenses for a new trial due to MTC’s error.

¶ 26. Since the issue of the admissibility of Wiseman’s valuation of the land was waived, the jury correctly derived its verdict by taking into account the Martins’ valuation and MTC’s valuation. The damages awarded by the jury were not “contrary to the overwhelming weight of credible evidence” as required by Mississippi Code Annotated section 11-1-55 (Rev. 2000). Therefore, the Martins are not entitled to an additur as to the land.

¶27. As to the outdoor advertising signs, we have previously discussed why a new trial is required. Accordingly, this issue is without merit.

¶ 28. The judgment of the Special Court of Eminent Domain should be reversed and remanded as to the valuation of outdoor advertising signs taken and affirmed as to the valuation of the land taken.

¶ 29. THE JUDGMENT OF THE TATE COUNTY SPECIAL COURT OF EMINENT DOMAIN IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


author: NABERS, Chief Justice.

text:
    VISTA LAND AND EQUIPMENT, L.L.C. v. COMPUTER PROGRAMS & SYSTEMS, INC.
    1050642.
    Supreme Court of Alabama.
    Sept. 22, 2006.

      Patrick H. Sims of Cabaniss, Johnston, Gardner, Dumas & O’Neal, LLP, Mobile, for appellant.
    C. Richard Wilkins of Vickers, Riis, Murray & Curran, LLP, Mobile, for appel-lee.
   NABERS, Chief Justice.

Computer Programs & Systems, Inc. (“CPSI”), sued Vista Land and Equipment, L.L.C. (“VLE”), in the Mobile Circuit Court, alleging breach of contract. Following a bench trial, the trial court entered a judgment in favor of CPSI and set damages at $367,562.15. On appeal, VLE argues that the trial court lacked jurisdiction over it because it did not have minimum contacts with Alabama to subject it to suit in this State. VLE further argues that the trial court exceeded its discretion by imposing discovery sanctions against it in the amount of $2,107.20. We affirm the trial court’s judgment.

I.

CPSI, a Delaware corporation with its headquarters and principal place of business in Mobile, Alabama, develops hardware and software products for use in small and mid-sized hospitals. CPSI markets and sells its products, along with accompanying installation services, training, and technical support, to hospitals around the country.

VLE is a Texas limited liability company. Its sole member is Dynacq Healthcare, Inc., a Delaware corporation. VLE is the entity through which Dynacq acquires real property and enters into capital leases and other long-term obligations in Texas, and VLE owns the land and business equipment for hospitals operated by Dynacq in Pasadena, Texas, and Garland, Texas.

In 2001, VLE was looking to install a computer system in some of its facilities. VLE investigated purchasing a CPSI system and even went so far as to send representatives to Alabama to examine CPSI’s facilities and to review its products. However, VLE ultimately entered into a contract with Healthcare Management Systems, Inc. (“HMS”), a competitor of CPSI’s.

Sometime in 2003, VLE became dissatisfied with the service and performance of the HMS system it had installed. In September 2003, VLE recontacted CPSI to again express interest in purchasing a CPSI system and to request another presentation. After CPSI personnel traveled to Pasadena, Texas, and made their presentation, VLE agreed to purchase a CPSI system for a hospital in Garland, Texas, that Dynacq had recently acquired. On December 26, 2003, VLE entered into a purchase agreement with CPSI to purchase various software licenses, computer hardware, and computer-operating systems. This agreement contained a choice-of-law provision, which stated: “This agreement shall be construed and enforced under the laws of the State of Texas.” VLE simultaneously entered into a support agreement with CPSI in which CPSI agreed to provide system support and hardware maintenance services for a one-year period, to be automatically renewed each year unless terminated in writing by either party at least 30 days before the expiration of the previous term. The two agreements (hereinafter referred to collectively as “the contract”) were valued at approximately $490,000. Upon entering the contract, VLE mailed to CPSI in Alabama a deposit of 10% of that amount.

CPSI subsequently delivered the hardware and software to VLE in Texas and commenced installation and training. Pursuant to the terms of the contract, VLE sent CPSI another payment at this time. The system passed acceptance testing on April 1, 2004, and, although the remaining balance became due at that time, VLE did not immediately pay it.

Over the next several months, VLE and CPSI worked to get the system running to VLE’s full satisfaction. CPSI’s records indicate that VLE telephoned CPSI over 90 times between April 13, 2004, and June 23, 2004, for troubleshooting and other requests to modify, enhance, or otherwise customize the system to VLE’s specific needs. However, VLE ultimately determined that the CPSI system would not work as represented, and it refused to pay the balance due on the contract. On June 23, 2004, CPSI ceased providing support services to VLE because of VLE’s failure to pay the balance owed.

On August 24, 2004, CPSI sued VLE in the United States District Court for the Southern District of Alabama, alleging breach of contract. VLE promptly moved the court to dismiss the action for lack of personal jurisdiction over it, and, after CPSI filed a motion in opposition, the magistrate judge issued a report recommending that VLE’s motion be granted. The complete record of the federal action is not before this Court; however, VLE states that CPSI then notified the federal district court that the statement of jurisdiction in its complaint was wrong and that the federal district court in fact lacked subject-matter jurisdiction over the matter. The court then dismissed the action without prejudice without entering a judgment on the magistrate’s report.

On March 17, 2005, CPSI sued VLE in the Mobile Circuit Court, alleging breach of contract. On April 27, 2005, VLE moved that court to dismiss the action for lack of personal jurisdiction over it. CPSI opposed VLE’s motion to dismiss. Although no order is in the record, the statements of the parties indicate that the trial court denied VLE’s motion to dismiss on May 20, 2005. VLE filed its answer on June 10, 2005, and the parties thereafter proceeded with the pretrial process.

The pretrial process was beset by delay and dispute. On June 29, 2005, the trial court set the case for a bench trial on September 15, 2005. On August 17, 2005, VLE moved the court to continue the trial, alleging that corporate officers involved in the case were also involved in preparing corporate securities filings that were due during this same time period. The trial court granted the motion and continued the trial until November 17, 2005.

On September 29, 2005, CPSI moved the trial court to compel VLE to answer interrogatories served upon it on July 16, 2005. The trial court granted CPSI’s motion and ordered VLE to respond by November 1, 2005.

On October 21, 2005, CPSI filed another motion to compel after being notified that two of VLE’s corporate representatives, who were scheduled to be deposed on October 25, 2005, in Pasadena, Texas, would be unavailable because an unrelated trial they were involved in had been rescheduled for that date by a Texas state court. CPSI asked the trial court to order the VLE representatives to travel to Mobile for depositions the next week; however, after a hearing, the trial court instead rescheduled the depositions for November 3, 2005, at VLE’s offices in Pasadena.

On November 2, 2005, VLE moved the trial court to continue both the depositions scheduled for the next day and the trial set for November 17, 2005. As grounds for the continuance, VLE alleged that the schedule as set at that time would impose undue hardship upon it because its representatives were busy preparing financial reports that the Securities and Exchange Commission (“SEC”) required be filed by November 14, 2005. The trial court held a hearing on VLE’s motion and, at that hearing, gave VLE the choice of either producing its representatives for the depositions scheduled in Pasadena on November 3, 2005, or, alternatively, producing those representatives for deposition in Mobile on November 15, 2005, and reimbursing CPSI for the nonrefundable travel expenses it had incurred in anticipation of traveling to Pasadena.

VLE elected not to proceed with the November 3 depositions. Accordingly, on November 7, 2005, the trial court entered an order: 1) requiring the VLE representatives to appear for depositions in Mobile on November 15, 2005; 2) ordering VLE to pay CPSI $2,107.20 as reimbursement for the airfare it had purchased for its representatives to travel to Pasadena for the November 3 depositions; and 3) continuing the trial until November 22, 2005.

On November 11, 2005, VLE petitioned this Court for a writ of mandamus ordering the trial court to vacate its November 7 order and to continue both the scheduled depositions and the trial until after December 1, 2005. This petition was still pending on November 15, 2005, the scheduled date for the depositions. At approximately 9:00 a.m. that morning, VLE notified CPSI that its representatives would not appear for their depositions. CPSI moved for sanctions and was awarded fees and expenses. This Court denied VLE’s petition for the writ of mandamus on November 16, 2005. Ex parte Vista Land & Equip., L.L.C. (No. 1050642).

On November 30, 2005, CPSI was finally able to depose Jean Wincher, whom VLE had designated its corporate representative pursuant to Rule 30(b)(6), Ala. R. Civ. P. A bench trial was held the following week and, on December 7, 2005, the trial court entered a judgment in favor of CPSI and against VLE and awarded CPSI $367,562.15. The trial court also taxed all costs against VLE and awarded CPSI an additional $4,032.70, which includes the $2,107.20 in airfare reimbursement that the trial court had previously ordered VLE to pay. VLE moved to vacate the judgment on the ground that CPSI had failed to prove any factual basis for the exercise of personal jurisdiction over VLE, but its motion was denied. VLE appeals.

II.

VLE first argues that the trial court erred in denying its motion to dismiss for lack of personal jurisdiction. This Court set forth the standard of review applicable to such a claim in Elliott v. Van Kleef, 830 So.2d 726, 729 (Ala.2002): “An appellate court considers de novo a trial court’s judgment on a party’s motion to dismiss for lack of personal jurisdiction.” Moreover, this Court has also stated that the plaintiff carries the burden of proving the trial court’s personal jurisdiction over the defendant. Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 229 (Ala.2004).

Alabama’s “long-arm rule,” Rule 4.2, Ala. R. Civ. P., governs when courts of this State may exercise personal jurisdiction over an out-of-state defendant. It effectively extends the personal jurisdiction of Alabama courts to the limits of due process under the federal and Alabama Constitutions. This Court has consistently interpreted the due process guaranteed under the Alabama Constitution to be coextensive with the due process guaranteed under the United States Constitution.

“A physical presence in Alabama is not a prerequisite to personal jurisdiction over a nonresident.” Sieber v. Campbell, 810 So.2d 641, 644 (Ala.2001). Rather, a nonresident defendant need only “have certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). The minimum-contacts analysis focuses on the defendant’s contacts with the forum state and whether the defendant has “purposefully avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) (citing International Shoe, 326 U.S. at 319, 66 S.Ct. 154). “When a [defendant] ‘purposefully avails itself of the privilege of conducting activities within the forum State,’ ... it has clear notice that it is subject to suit there” and the due-process requirements of the Fourteenth Amendment are fulfilled. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (quoting Hanson, 357 U.S. at 253, 78 S.Ct. 1228). However, even if a court determines that there are minimum contacts so as to permit it to exercise jurisdiction, it must still consider whether doing so is appropriate. See Elliott, 830 So.2d at 731 (“Only after such minimum contacts have been established does a court then consider those contacts in the light of other factors ... to determine whether the exercise of personal jurisdiction over the nonresident defendant comports with ‘ “traditional notions of fair play and substantial justice.” ’ Brooks v. In-low, 453 So.2d 349, 351 (Ala.1984), quoting International Shoe, 326 U.S. at 316, 66 S.Ct. 154”).

Thus, pursuant to the above guidelines, we first examine VLE’s contacts with the State of Alabama in order to determine whether those contacts are such that VLE could have reasonably anticipated being haled into an Alabama court. There is no evidence indicating that VLE has had any contacts with Alabama outside its relationship with CPSI, and CPSI has not argued that VLE is subject to general jurisdiction in this State; therefore, VLE must have had minimum contacts with Alabama to subject itself to specific, as opposed to general, jurisdiction.

In its reply brief filed with this Court, VLE concedes that it has had the following contacts with Alabama:

“In this case the facts supporting jurisdiction over VLE are these: (1) a VLE representative made a trip to Alabama to visit CPSI before the contract was formed; (2) the contract contained an annually renewable support agreement; (3) VLE made approximately 90 phone calls to CPSI to try to obtain product support; (4) VLE made payments to Alabama; and (5) VLE made separate purchases from CPSI of approximately $6,000 in office supplies.”

VLE then argues that these contacts fail to establish that it ever purposefully availed itself of the privilege of conducting business in Alabama. We disagree.

VLE argues that the telephone calls and payments made to CPSI in Alabama are, by themselves, of marginal relevance at best. See Steel Processors, Inc. v. Sue’s Pumps, Inc., 622 So.2d 910, 913 (Ala.1993) (“ ‘The use of interstate facilities (telephone, the mail) ... [is a] secondary or ancillary factor[] and cannot alone provide the “minimum contacts” required by due process.’ ” (quoting Scullin Steel Co. v. National Ry. Utilization Corp., 676 F.2d 309, 314 (8th Cir.1982))). VLE also discounts its purchases of additional supplies from CPSI, arguing that CPSI has admitted that those purchases were unrelated to the contract, so they are accordingly of no importance in establishing specific jurisdiction for CPSI’s breach-of-contract claim. However, even if VLE’s arguments on these points are correct, “[w]hat appears to be determinative is the fact that [the nonresident defendant] was involved in an ongoing business transaction with [the plaintiff].” Andalusia Distrib. Co. v. Singer Hardware Co., 822 So.2d 1180, 1184 (Ala.2001) (emphasis added).

As with the revolving-credit account in Andalusia Distributing Co., the promissory note in Ex parte AmSouth Bank, N.A, 675 So.2d 1305 (Ala.1996), and the services contract in Corporate Waste Alternatives, Inc. v. McLane Cumberland, Inc., 896 So.2d 410 (Ala.2004), all cases in which this Court authorized an Alabama court to exercise jurisdiction over a nonresident defendant, the contract between VLE and CPSI created an ongoing relationship between the two parties. It was not a onetime contract for the purchase of goods as was the contract in Steel Processors, in which this Court held that the Alabama court had no jurisdiction over the nonresident defendant. Rather, the contract between VLE and CPSI was ongoing; it was to renew automatically each year unless one of the parties gave advance notice under the terms of the contract. This contractual relationship, when combined with the additional contacts incidental to that relationship, should have put VLE on notice that it might be haled into an Alabama court in connection with that contract.

This Court’s decision in Corporate Waste Alternatives is particularly instructive. In that case, Corporate Waste Alternatives, Inc. (“CWA”), an Alabama corporation, entered into a contract with McLane Cumberland, Inc. (“Cumberland”), a Kentucky-based company, to help Cumberland reduce its waste-management expenses at a Kentucky distribution center. In return, Cumberland agreed that CWA would be entitled to 50% of its resultant savings. The contract had an initial 5-year term; however, under the terms of the contract the relationship could be extended to 10 years under certain circumstances. CWA performed most of the work under the contract on-site in Kentucky, but Cumberland officials made multiple telephone calls to CWA in Alabama to discuss the work. They also sent multiple payments to CWA in Alabama.

After approximately 18 months, Cumberland terminated the contract and refused to make further payments to CWA. CWA then sued Cumberland in the Baldwin Circuit Court, alleging breach of contract, and the personal-jurisdiction issue ultimately arrived in this Court. After reviewing Cumberland’s contacts with Alabama, this Court ultimately concluded that Cumberland could be haled into an Alabama court, holding:

“Because Cumberland was involved in an ongoing business relationship with CWA, an Alabama corporation, and because of the activities undertaken by Cumberland as part of that relationship — including telephoning CWA in Alabama and mailing payments to CWA in Alabama — we conclude that ‘it is fair and reasonable to require [Cumberland] to come to this state to defend an action.’ Rule 4.2(a)(2), Ala. R. Civ. P.”

896 So.2d at 416. The instant case is almost identical; VLE and CPSI were involved in a similar ongoing business relationship that was supported by multiple telephone calls from VLE to CPSI in Alabama, as well as by multiple payments mailed to CPSI in Alabama. The facts that VLE representatives traveled to Alabama to learn about CPSI’s products and that it was VLE that reinitiated contact with CPSI in Alabama before entering into the contract further bolster a finding that VLE should be subject to the jurisdiction of Alabama courts.

VLE attempts to distinguish Corporate Waste Alternatives in two ways. First, it argues that the Supreme Court of the United States in Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), specifically refuted the proposition that a party subjects itself to a foreign court’s jurisdiction simply by entering into a contract with a party within that jurisdiction:

“At the outset, we note a continued division among lower courts respecting whether and to what extent a contract can constitute a ‘contact’ for purposes of due process analysis. If the question is whether an individual’s contract with an out-of-state party alone can automatically establish sufficient minimum contacts in the other party’s home forum, we believe the answer clearly is that it cannot.”

(Footnote omitted.) Neither Corporate Waste Alternatives nor our holding today conflicts in any way with Rudzewicz. This Court has never held that a party may be subject to jurisdiction in the courts of this State simply because that party contracted with an Alabama party. To the contrary, in Steel Processors, we explicitly recognized that a one-time contract for the purchase of goods was an insufficient basis for jurisdiction.

VLE’s argument fails to recognize that our caselaw does not authorize the exercise of personal jurisdiction over a nonresident defendant solely on the basis of contracts it may have entered into with Alabama parties; rather, such jurisdiction is authorized when there is an ongoing contractual relationship supported by the additional contacts that are incidental to such a relationship. See Andalusia Dis-tñb. Co., 822 So.2d at 1184 (“What appears to be determinative is the fact that [the nonresident defendant] was involved in an ongoing business transaction with [the plaintiff]_”); Rudzewicz, 471 U.S. at 475-76, 105 S.Ct. 2174 (“Thus where the defendant ‘deliberately’ has engaged in significant activities within a State, or has created ‘continuing obligations’ between himself and residents of the forum, he manifestly has availed himself of the privilege of conducting business there .... ” (emphasis added; citations omitted) ). Even “Steel Processors expressly acknowledges that a contractual relationship will justify the exercise of personal jurisdiction where that relationship has a ‘ “substantial connection[ ]” ’ to the forum state.” Ex parte AmSouth Bank, 675 So.2d at 1308.

VLE next attempts to distinguish Corporate Waste Alternatives on the basis that the contract in that case contained a choice-of-law provision stating the contract was governed by Alabama law. In this case, the contract contained a choice-of-law provision stating it was governed by Texas law. In Corporate Waste Alternatives, we stated that “the provision in the contract stating that the contract would be governed by Alabama law should have further alerted Cumberland that it might ‘reasonably anticipate being haled into court in [Alabama].”’ 896 So.2d at 414 (quoting Elliott, 830 So.2d at 730). However, it is important to note that this statement was made only after we had already concluded that Cumberland should have foreseen that it might be haled into an Alabama court based on its ongoing contractual relationship with an Alabama business. In Andalusia Distributing Co., this Court discussed the significance of a choice-of-law provision in the personal-jurisdiction analysis. We stated:

“The defendants make much of the fact that the agreements in Keelean [v. Central Bank of the South, 544 So.2d 153 (Ala.1989) ], and Ex parte AmSouth Bank, [NA., 675 So.2d 1305 (Ala.1996) ], contained forum-selection clauses indicating that Alabama law would govern. We agree that in each of those cases this Court referred to that fact in concluding that sufficient contacts existed to assert in personam jurisdiction over the out-of-state defendant. However, it was not the sole factor. Considering the language of Keelean and Ex parte Am-South Bank, it is questionable whether it was even a primary factor.”

822 So.2d at 1183. See also Rudzewicz, 471 U.S. at 482, 105 S.Ct. 2174 (stating that choice-of-law provisions are relevant, but “such a provision standing alone would be insufficient to confer jurisdiction”).

For all of the above reasons, we conclude that VLE has purposefully established minimum contacts within Alabama sufficient to allow an Alabama court to exercise jurisdiction over it. Nevertheless, we still must consider “whether subjecting [VLE] to Alabama’s jurisdiction would violate traditional notions of ‘fair play and substantial justice.’ ” Leithead v. Banyan Corp., 926 So.2d 1025, 1032 (Ala.2005) (quoting International Shoe, 326 U.S. at 320, 66 S.Ct. 154). In doing so, we may evaluate:

“‘[T]he burden on the defendant,’ ‘the forum State’s interest in adjudicating the dispute,’ ‘the plaintiffs interest in obtaining convenient and effective relief,’ ‘the interstate judicial system’s interest in obtaining the most efficient resolution of controversies,’ and the ‘shared interest of the several States in furthering fundamental substantive social policies.’ ”

Rudzewicz, 471 U.S. at 477, 105 S.Ct. 2174 (quoting World-Wide Volkswagen, 444 U.S. at 292,100 S.Ct. 559).

The only one of these considerations VLE has directly addressed is the burden placed on it by being forced to litigate its dispute with CPSI in Alabama. In its reply brief to this Court, VLE argues that “as demonstrated by the course of this lawsuit, litigation in Alabama is highly inconvenient for VLE.” Litigation is rarely convenient, whatever the forum. However, it is not clear that the inconvenience in this case was caused by the Alabama forum. Twice depositions were scheduled for VLE’s witnesses at their own company offices in Texas, and twice VLE canceled those depositions. It was only then that anybody from VLE was required to travel to Alabama. VLE’s argument on this point is not convincing, and, in any event, it fails to outweigh Alabama’s “interest in adjudicating the dispute” and CPSI’s “interest in obtaining convenient and effective relief.” Traditional notions of fair play and substantial justice are not offended by haling VLE into court in Alabama.

III.

VLE’s second argument is that the trial court exceeded its discretion in imposing discovery sanctions upon VLE for canceling the November 3, 2005, depositions of VLE’s corporate representatives. In Environmental Monitoring & Testing Corp. v. Kidd, 623 So.2d 1031, 1032 (Ala.1993), this Court stated:

“Deeply rooted in the common law is the court’s power to manage its affairs in order to achieve the orderly and expeditious disposition of cases, including the authority to impose reasonable and appropriate sanctions for failure to comply with discovery and the court orders resulting therefrom. Iverson v. Xpert Tune, Inc., 553 So.2d 82 (Ala.1989). The appellate court will not disturb the trial court’s choice of discovery sanctions on appeal absent some abuse of discretion. Ragan v. Blazon Flexible Flyer, Inc., 590 So.2d 882 (Ala.1991).”

Thus we review the trial court’s order requiring VLE to reimburse CPSI $2,107.20 for its travel expenses associated with the canceled November 3 depositions to determine if the trial court exceeded its discretion.

VLE argues that the rescheduling of the depositions was necessitated by a “bona fide business crisis” and that it, accordingly, should have received some scheduling consideration from the trial court. The alleged business crisis was that VLE’s parent company, Dynacq, was facing a November 14, 2005, deadline to file forms with the SEC, and, VLE alleges, the individuals scheduled for deposition were needed to help prepare those forms.

In fact, the record reveals that the trial court afforded VLE a great deal of scheduling consideration. One month before the original September 15, 2005, trial date, the trial court, on VLE’s motion, continued the trial for two months until November 17, 2005, so that VLE officials could work to prepare the corporate filings. When the depositions of VLE’s representatives scheduled for October 25, 2005, were canceled because of unrelated litigation and CPSI sought to have the depositions rescheduled in Alabama, the trial court denied CPSI’s request and reset the depositions for November 3 in Texas. When VLE then moved to postpone the November 3 depositions, the trial court gave it the option of either continuing with the depositions as scheduled or canceling them, reimbursing CPSI for its travel expenses, and rescheduling the depositions in Alabama. VLE chose not to produce its representatives for the November 3 depositions in Texas, and the trial court followed through in its November 7 order and sanctioned VLE by ordering it to reimburse CPSI for its nonrefundable travel expenses.

Considering the fact that the trial court expressly warned VLE of the consequences if it elected not to proceed with the November 3 depositions, and in light of the previous scheduling consideration afforded VLE, we conclude that the trial court did not exceed its discretion by sanctioning VLE and requiring it to reimburse CPSI $2,107.20 for expenses for the canceled depositions.

IV.

Because VLE was involved in an ongoing business and contractual relationship with CPSI, an Alabama corporation, and because of the activities undertaken by VLE as part of that relationship — including traveling to Alabama, telephoning CPSI in Alabama, and mailing payments to CPSI in Alabama — we conclude that VLE is subject to suit here on matters related to that business relationship. Moreover, we also conclude that the trial court acted within its discretion in imposing sanctions on VLE. For these reasons, the judgment of the trial court is affirmed.

AFFIRMED.

SEE, HARWOOD, STUART, and BOLIN, JJ., concur.

      . During this same approximate time period, VLE placed nine additional orders with CPSI for supplies, materials, and equipment that were unrelated to the computer system that was the subject of the contract.

      . In Leventhal v. Harrelson, 723 So.2d 566, 569 (Ala.1998), this Court stated:
      "General jurisdiction applies where a defendant's activities in the forum state are 'substantial' or 'continuous and systematic,’ regardless of whether those activities gave rise to the lawsuit.... A court has specific jurisdiction when a defendant has had few contacts with the forum state, but those contacts gave rise to the lawsuit.”
      (Citing Helicópteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).)

      . Although the evidence as to how VLE and CPSI first came in contact with each other is disputed, it indicates that it was VLE that reached out to CPSI in Alabama after becoming unsatisfied with the HMS system it first purchased. Which party initiates a sale or contract is not controlling, but it is "[o]f particular relevance.” Ex parte Troncalli Chrysler Plymouth Dodge, Inc., 876 So.2d 459, 465 (Ala.2003).