Warren v. Johnston
| Docket Number: | 2004-IA-00488-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 08-11-2005 Opinion Author: DICKINSON, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Publication of foreclosure sale by newspaper in county - Section 13-3-31(4) - Section 89-1-55 Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Easley and Carlson, JJ. Non Participating Judge(s): Diaz and Randolph, JJ. Dissenting Author : Graves, J. Procedural History: Bench Trial Nature of the Case: CIVIL - OTHER |
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| Trial Court: |
Date of Trial Judgment: 11-25-2003 Appealed from: Lamar County Chancery Court Judge: Johnny Lee Williams Disposition: The chancellor, persuaded that the foreclosure notices should have been placed in a newspaper located in Lamar County,1 set aside the foreclosure sale. Case Number: 2003-0061-GN-W |
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| Note: | Nature of Case - validity of a foreclosure sale | |
| Party Name: | Attorney Name: | |||
| Appellant: | GERALD M. WARREN, HANCOCK BANK AND
GANNETT RIVER STATES PUBLISHING
COMPANY, INC. d/b/a THE HATTIESBURG
AMERICAN |
THOMAS LYNN CARPENTER, JR.,
DOUGLAS BAGWELL, RICHARD F. YARBOROUGH, JR., JAMES W. CRAIG, LUTHER T. MUNFORD,
MARK DAVID FIJMAN, CHRISTOPHER ROYCE SHAW |
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| Appellee: | NEVON JOHNSTON d/b/a JOHNSTON PROPERTIES | JERRY A. EVANS, LOWE ARTHUR HEWITT |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Publication of foreclosure sale by newspaper in county - Section 13-3-31(4) - Section 89-1-55 |
| Summary of the Facts: | Nevon Johnston d/b/a Johnston Properties defaulted on a promissory note due to Hancock Bank. The note was secured by deeds of trust on certain real property located in Lamar County. The trustee of the deeds of trust, Gerald Warren, instituted foreclosure of the property by placing notices in The Hattiesburg American, a newspaper published in the Forrest County portion of Hattiesburg. The municipal boundaries of Hattiesburg also reach into Lamar County. After the foreclosure sale took place, Johnston filed suit against Hancock Bank, Warren, and the purchasers of the property. The chancellor set the foreclosure sale aside. Warren, joined by the Bank and The Hattiesburg American, filed a motion for interlocutory appeal which the Court granted. |
| Summary of Opinion Analysis: | The chancellor found that the foreclosure notices should have been placed in a newspaper located in Lamar County. According to the clear provisions of section 13-3-31(4) (dealing with the publication of legal notices by a newspaper), The Hattiesburg American is qualified to publish legal notices for Lamar County if: it is otherwise qualified under section 13-3-31, Hattiesburg’s corporate limits encompass territory in more than one county, and Lamar County is a county a portion of whose territory is included within Hattiesburg. There is no dispute in this case that these three statutory requirements are met. Johnston argues that section 89-1-55 is an unambiguous mandate that the advertisement of the foreclosure appear in a newspaper published in Lamar County. However, the statute requires that the notice be “published in the county,” and the provisions of section 13-3-31(4) clearly qualify publication in The Hattiesburg American as publication in Lamar County. Johnson argues that, regardless of the provisions of the statute, the language in the deed of trust required publication in another newspaper. However, the exact same language is employed in the deed of trust as was selected by the Legislature in section 89-1-55, which requires that the sale be advertised “in a newspaper published in the county.” |
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