Rebuild America, Inc. v. Johnson


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Docket Number: 2008-CA-02123-COA

Court of Appeals: Opinion Link
Opinion Date: 04-13-2010
Opinion Author: Myers, P.J.
Holding: Affirmed

Additional Case Information: Topic: Real property - Invalid tax sale - Doctrine of caveat emptor - Section 27-43-3
Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Griffis, Ishee and Roberts, JJ.
Non Participating Judge(s): Maxwell, and Carlton, J.J.
Concurs in Result Only: Barnes, J.
Procedural History: Dismissal
Nature of the Case: CIVIL - TORTS - OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE

Trial Court: Date of Trial Judgment: 11-25-2008
Appealed from: PEARL RIVER COUNTY CIRCUIT COURT
Judge: Prentiss Harrell
Disposition: GRANTED MOTION TO DISMISS
Case Number: 2008-0269H

Note: Due to a military leave of absence, Hon. Virginia C. Carlton did not participate in this hand down.

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Rebuild America, Inc.




KIMBERLY PINE TURNER



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: David Earl Johnson, Individually and in his Official Capacity as the Chancery Clerk of Pearl River County, Mississippi and David Allison, Individually and in his Official Capacity as Sheriff of Pearl River County, Mississippi TERRY R. LEVY, JOSEPH H. MONTGOMERY, JAMES LAWRENCE WILSON IV, BRENDA B. BETHANY  
    Appellee #2:  

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    Topic: Real property - Invalid tax sale - Doctrine of caveat emptor - Section 27-43-3

    Summary of the Facts: Rebuild America, Inc., filed suit against David Earl Johnson, Chancery Clerk of Pearl River County, and David Allison, Sheriff of Pearl River County, after a tax deed it held was set aside for the defendants’ failure to strictly comply with the notice requirements of section 27-43-3. The trial court granted the defendants’ motion to dismiss with prejudice. Rebuild America appeals.

    Summary of Opinion Analysis: The trial court held that Rebuild America’s claims against the sheriff and the chancery clerk were barred under the doctrine of caveat emptor. The court noted that Rebuild America was held to have constructive knowledge both of the risks inherent in purchasing property at a tax sale and of the defects existing in the tax title held by Wachovia Bank at the time it conveyed the property, by quitclaim deed, to Rebuild America. The trial court’s holding on this issue appears to be well supported in Mississippi law. In the due application of the rule of caveat emptor to tax sales, the purchaser at such a sale must be deemed to know of the existence of every defect in the proceedings, and hence that if he purchases, and thus suffers loss because of the neglect of the officer to perform some ministerial duty, it must be considered that the proximate cause thereof was not the neglect or default of the officer, but the want of proper care and diligence on the part of the purchaser, and that the latter is without remedy, except as specifically provided by statute. Rebuild America argues that the trial court erred in applying section 27-43-3, because it alleges that the chancery clerk’s failure was not inadvertent, but intentional or effectively intentional through recklessness or disregard of the statutory notice requirements. The rule of law is that no remedy exists to the purchaser in an invalid tax sale unless a remedy is specifically created by statute. That section 27-43-3 creates an exception to liability – irrespective of whether that exception applies in this case – does not create liability in the absence of the exception. Nor does it change the fact that Rebuild America has failed to identify any statutory remedy allowing it to recover against the chancery clerk or sheriff.


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