Scarborough v. City of Petal


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Docket Number: 2009-CA-01431-COA
Linked Case(s): 2009-CA-01431-COA
Court of Appeals: Opinion Link
Opinion Date: 09-21-2010
Opinion Author: King, C.J.
Holding: Reversed and remanded.
Additional Case Information: Topic: Real property - Notice of demolition - Section 21-19-11(1)
Judge(s) Concurring: Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee, Roberts, Carlton and Maxwell, JJ.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - OTHER
Trial Court: Date of Trial Judgment: 07-27-2009
Appealed from: Forrest County Circuit Court
Judge: Robert Helfrich
Disposition: SUMMARY JUDGMENT GRANTED IN FAVOR OF THE CITY OF PETAL
Case Number: CI07-0175
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Wayne Scarborough




 ORVIS A. SHIYOU JR.



  
  • Appellant #1 Brief
    		•
    Appellee: City of Petal, Mississippi THOMAS W. TYNER, JULIE HAWKINS  
    Synopsis provided by:

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    Topic: Real property - Notice of demolition - Section 21-19-11(1)
    Summary of the Facts: Wayne Scarborough, co-owner of a parcel of real property, filed a complaint against the City of Petal on September 4, 2007, for failure to give him notice before demolishing the building belonging to Wayne Scarborough and his father, Percy Scarborough. The City filed a motion for summary judgment arguing that from the years 2000 through 2006, both Percy Scarborough and Wayne Scarborough, co-owners of the real property, were individually provided notice of the numerous violations of city ordinances regarding the property’s state of disrepair, and they were both given adequate notice of the April 18, 2006, hearing by serving notice upon Percy Scarborough. The circuit court granted summary judgment and dismissed the action with prejudice. Wayne Scarborough appeals.
    Summary of Opinion Analysis: Wayne Scarborough argues that the City violated his due-process rights because the City never provided him notice of the hearing that resulted in the demolition of the building. Wayne Scarborough argues that none of the notices mailed to Percy Scarborough bore his name or address, nor were any of the mailings ever delivered to him by mail or personal service. The City claims that Wayne Scarborough had random conversations with city officials over the course of several years regarding the subject property. Where the property owner, after reasonable notice provided for in an ordinance, fails and refuses to either repair or remove an unsafe and unfit building that constitutes a public nuisance, the municipality can remove it at the owner’s expense. To fulfill the requirements of due process, notice must be given to all owners of the subject property. In this case, all the notices regarding the condition of the property and the hearing were addressed, mailed, and delivered solely to Percy Scarborough. Wayne Scarborough filed an affidavit stating that he never received any correspondence or notice regarding the subject property either by mail or personal process nor had he ever given Percy Scarborough the authority to accept service of process on his behalf. There was no evidence that Wayne Scarborough had ever received the required statutory notice from the City of the alleged violations, hearing, or demolition. Additionally, there was no indication in the record that suggested that Percy Scarborough possessed the authority to accept service of process for Wayne Scarborough. The City argues that Wayne Scarborough received constructive notice based upon the conversations with Percy Scarborough and random conversations with various city officials. However, section 21-19-11(1) clearly requires that notice be given to the property owner by United States mail or by service of notice by a police officer at least two weeks prior to the date of the hearing, and if the property owner’s address is unknown, then two weeks’ notice must be provided by publication in a newspaper having general circulation in the perspective municipality. Accordingly, the case is remanded to the circuit court for further proceedings.


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