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: 12-07-2010 Opinion Author: Maxwell, J. Holding: Affirmed in part, reversed and remanded in part. |
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| Additional Case Information: |
Topic: Property - Tax sale - Statutory notice - Section 27-43-3 - Clerk's affidavits - Statutory damages - Section 27-45-3 - Frivolous appeal Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee, Roberts and Carlton, 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 Singletary Disposition: SET ASIDE TAX SALE AND DEED Case Number: G2007-2239S/2 |
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| Note: | MOTION FOR REHEARING FILED: 09/08/2010 - GRANTED; AFFIRMED IN PART AND REVERSED AND REMANDED IN PART: 12/07/2010 | |
| 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 | JEFFREY DALE RAWLINGS, JON JERDONE MIMS, PRO SE | ||
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: | Property - Tax sale - Statutory notice - Section 27-43-3 - Clerk's affidavits - Statutory damages - Section 27-45-3 - Frivolous appeal |
| Summary of the Facts: | The motion for rehearing is granted, and this opinion is substituted for the original opinion. 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 responded, arguing 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 set aside both tax sales, and 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. In order for a redemption notice to be complete and in accordance with the statute, all three requirements must be met. 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. 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 required to be served by the sheriff is returned not found. Here, 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. Additionally, for an affidavit to suffice, the statute requires both an initial diligent search and inquiry prior to the attempted service, as well as a second search and inquiry after the failed service; here, the clerk’s statements attest to only one search. Rebuild America argues that, in the alternative, the Court should remand the case to the chancery court to determine the statutory redemption amount owed to Rebuild America or whether Rebuild America is entitled to any other damages under the statute. Because the relief requested by Rebuild America is consistent with section 27-45-3, the issue of damages is remanded for the chancellor to calculate the amount of statutory damages and order the McGees to pay Rebuild America that amount. M&F Bank and the McGees argue that the Court should sanction Rebuild America for filing a frivolous appeal. Although Rebuild America’s arguments are without merit, they are not frivolous. |
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