Rebuild America, Inc. v. McGee
| Docket Number: | 2009-CA-01188-COA Linked Case(s): 2009-CA-01188-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 08-17-2010 Opinion Author: Myers, P.J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Real property - Tax sale - Notice of redemption - Section 27-43-3 Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Griffis, Barnes, Ishee, Roberts, Carlton and Maxwell, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - OTHER |
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| Trial Court: |
Date of Trial Judgment: 06-23-2009 Appealed from: Hinds County Chancery Court Judge: William H. Singletary Disposition: SET ASIDE TAX SALE AND DEED Case Number: G2007-2239S/2 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Rebuild America, Inc. |
KIMBERLY PINE TURNER |
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| Appellee: | Robert McGee, Mattie P. McGee, and Merchants and Farmers Bank | PRO SE, JEFFREY DALE RAWLINGS, JON JERDONE MIMS | ||
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: | Real property - Tax sale - Notice of redemption - Section 27-43-3 |
| Summary of the Facts: | Robert and Mattie McGee were the owners of two pieces of real property. Merchants and Farmers Bank held a deed of trust on both properties. The McGees failed to pay the 2004 ad valorem taxes, and the properties were sold by Hinds County for taxes on August 29, 2005, to Wachovia Bank, as custodian for Sass Muni V. After the tax sale, the properties were not redeemed by the McGees or M&F Bank during the following two years. Wachovia Bank then conveyed its interest in both properties to Rebuild America, Inc., by quitclaim deed. Rebuild America filed petitions to confirm and quiet title. The McGees and M&F Bank argued that the tax deeds were invalid because they had not been properly served with the required statutory notice of the end of the redemption period. The chancellor entered an order setting aside both tax sales. Rebuild America appeals. |
| Summary of Opinion Analysis: | When property is sold for unpaid county or municipal ad valorem taxes, the property owner must be given notice of his right to redeem the property within 180 days of, but no less than 60 days prior to, the expiration of the redemption period. Chancery clerks are required to provide notice to property owners in accordance with section 27-43-3 which requires redemption notice be given by personal service, by mail, and by publication in an appropriate newspaper. Any deviation from the statutorily mandated procedure renders the sale void. The chancellor found that M&F Bank was properly served with the required notice for both properties, and there is no dispute that the McGees were properly served with notice by publication. However, the chancellor found that the McGees had not been personally served by the sheriff and that no sheriff’s returns had been made to the chancery clerk for either of the McGees on either property. Rebuild America argues that this defect was cured by the execution of unsworn affidavits by the Hinds County Chancery Clerk – each to the effect that the clerk had made a diligent effort to locate the McGees. It is undisputed that no sheriff’s returns were made to the chancery clerk, and it is apparent from the record that the notice by mail to Mattie was ineffective because it was signed for by Robert. Rebuild America’s argument fails for several reasons. First, the plain language of the statute is that such an affidavit may suffice only where notice by mail is returned undelivered and the personal notice as herein above required to be served by the sheriff is returned not found. Affidavits cannot suffice because the notices by mail were not returned undelivered, nor were the sheriff’s returns made not found. Moreover, the “affidavits” executed by the chancery clerk are unsworn and therefore insufficient to meet the statutory requirements. As the McGees were not given the required statutory notice, the chancellor properly set aside the tax sale. In its reply brief on appeal, Rebuild America argues that, in the alternative, the case should be remanded to the chancery court to determine the statutory redemption amount. Because this issue was not properly raised in Rebuild America’s principal brief, it is procedurally barred. M&F Bank and the McGees argue that Rebuild America should be sanctioned for filing a frivolous appeal. Although Rebuild America’s arguments are without merit, they are not frivolous. |
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