Reed v. Florimonte


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Docket Number: 2007-CA-01540-SCT

Supreme Court: Opinion Link
Opinion Date: 07-31-2008
Opinion Author: CARLSON, J.
Holding: Affirmed

Additional Case Information: Topic: Real property - Notice of tax sale - Section 27-43-3 - Clerk’s affidavit
Judge(s) Concurring: SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, GRAVES, DICKINSON, RANDOLPH AND LAMAR, JJ.
Procedural History: Bench Trial
Nature of the Case: CIVIL - REAL PROPERTY

Trial Court: Date of Trial Judgment: 06-11-2007
Appealed from: Forrest County Chancery Court
Judge: Eugene "Gene" Fair
Disposition: The Chancellor voided Reed's purchase of real estate at a tax sale due to the Forrest County Chancery Clerk's failure to comply with the statutory notice requirement.
Case Number: 06-0444-GN-F

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: BETTY REED




ALEXANDER IGNATIEV



 
  • Appellant #1 Brief

  • Appellee: CHARLES RAY FLORIMONTE PENNY JONES ALEXANDER  

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    Topic: Real property - Notice of tax sale - Section 27-43-3 - Clerk’s affidavit

    Summary of the Facts: Charles Moody and Dorothy Moody conveyed by warranty deed approximately four acres of land in Forrest County to their grandson, Charles Florimonte. It was not until more than a year later, on October 2, 2001, that the warranty deed was filed of record in the office of the Chancery Clerk of Forrest County. Neither Florimonte nor his grandparents paid taxes on the property beginning with the 2002 tax year, and the property was sold for taxes to Betty Reed on August 25, 2003, for $21.80. On May 4, 2005, the Forrest County Chancery Clerk’s office attempted to serve Florimonte with notice of the tax sale by certified mail at 1107 West Pine Street, which was the grantee’s address listed on the Moody-to-Florimonte warranty deed. The certified mail was returned on May 5, 2005, as undeliverable. On July 19, 2005, the Forrest County Sheriff received a Notice of Forfeiture for service upon Florimonte, thereby informing him that his land had been sold to Reed for taxes on August 25, 2003, and that redemption must be made by August 25, 2005. On July 21, 2005, the Forrest County Deputy Sheriff attested in his return that he left a copy of the summons at the 1107 West Pine Street address and that Florimonte could not be found for personal service. On July 10, 2006, Pat Moody, Florimonte’s mother, issued a check in the amount of $21.80 to the Forrest County Chancery Clerk, noting on the check that the payment was for “a filing fee,” although the record reveals that the check was tendered in an effort to pay a portion of the back taxes. On July 11, 2006, Florimonte filed a Complaint to Void Tax Sale to Cancel Deed and to Remove Cloud on Title against Reed in the Forrest County Chancery Court. Reed filed a Counter-Complaint and Third-Party Complaint to Confirm and Quiet Title and for Ejectment. The Forrest County Chancery Court entered a Judgment for Default of Unknown Interested Parties. Reed filed an Application to Clerk for Entry of Default and Supporting Affidavit against Florimonte for his failure to answer her counter-complaint. Florimonte answered Reed’s counter-complaint; however, on the same day, Havard, in his capacity as chancery clerk, entered a Docket of Entry of Default against Florimonte. The chancellor held that the tax sale was void because Florimonte never received personal service of process via the sheriff, that Florimonte did not receive notice by mail because the chancery clerk failed to be diligent in locating his address, and that the affidavit was insufficient because the deputy chancery clerk failed to fill in the blanks detailing her diligent search. Reed appeals.

    Summary of Opinion Analysis: Reed argues that the chancery clerk complied with the notice statute because Florimonte was not entitled to actual notice pursuant to the specific language of the statute; the statute does not require a particular form of a supporting affidavit from the chancery clerk in the event that personal notice is returned undeliverable; and public policy favors the affirmation of tax deeds that properly vest. Section 27-43-3 provides that if personal notice is returned not found and if notice by mail is returned undelivered, then the clerk shall file an affidavit to that effect and shall specify therein the acts of search and inquiry made by him in an effort to ascertain the reputed owner's street and post office address. In this case, the chancellor found that the affidavit was unacceptable because “all blanks after the name and parcel number are blank.” Not even the tax sale number was filled in. Strict compliance with the statute is mandated. On the face of the affidavit, nothing was done to find Florimonte. The form affidavit had blanks to check indicating a search had occurred in the “Phone Directory,” with the “City Tax Collector,” and in the “City Tax Directory.” Also, there was a blank to list “Other” sources used. On the face of the affidavit, the clerk did not check any blanks and did not note any sources of her search. Accordingly, the chancellor did not err in finding that the Forrest County Chancery Clerk’s office did not comply with the notice requirements of the statute.


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