Johnson v. Anderson, et al.


<- Return to Search Results


Docket Number: 2010-CP-01356-COA
Linked Case(s): 2010-CP-01356-COA

Court of Appeals: Opinion Link
Opinion Date: 11-08-2011
Opinion Author: Ishee, J.
Holding: Affirmed

Additional Case Information: Topic: Real property - Suit to confirm and quiet title - Tax sale - Redemption period - Service of process - M.R.C.P. 4 - Bankruptcy law - Section 27-45-3 - 11 U.S.C. § 108(b)
Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Barnes, Roberts, Maxwell and Russell, JJ.
Concurs in Result Only: Carlton, J.
Procedural History: Default Judgment
Nature of the Case: CIVIL - REAL PROPERTY

Trial Court: Date of Trial Judgment: 07-07-2010
Appealed from: Harrison County Chancery Court
Judge: Margaret Alfonso
Disposition: DENIED MOTION TO SET ASIDE DEFAULT JUDGMENT
Case Number: C2402-09-00678

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: James M. Johnson




PRO SE



 
  • Appellant #1 Reply Brief

  • Appellee: E. H. Anderson, Ruby Anderson and Thomas Kohler JASON BROOKS PURVIS ROBERT THOMAS SCHWARTZ JEFFREY WARD BERTUCCI  
    Appellee #2:  

    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.

    Topic: Real property - Suit to confirm and quiet title - Tax sale - Redemption period - Service of process - M.R.C.P. 4 - Bankruptcy law - Section 27-45-3 - 11 U.S.C. § 108(b)

    Summary of the Facts: James Johnson at one time owned five lots in the Forrest Park Subdivision in Biloxi. However, he failed to pay his 2005 city, county, and school taxes in the amount of $719.44. The Harrison County Tax Collector held an auction on August 28, 2006. Ruby and E.H. Anderson were the highest bidders, paying $719.44 for the property and chancery fees of $80.50. The two-year redemption period expired on August 28, 2008, without Johnson coming forward to redeem the property. The property was conveyed to the Andersons via a tax deed on October 8, 2008, by the Chancery Clerk of Harrison County. The tax deed was recorded in the office of the Chancery Clerk of Harrison County on October 21, 2008. The documents placed in the record by Johnson show that he filed for Chapter 13 bankruptcy protection first on April 28, 2008, and the case was dismissed on September 25, 2009. He said that he filed another Chapter 13 bankruptcy. The Andersons found a buyer for the property, Thomas Kohler. On August 26, 2009, they filed a complaint to confirm and quiet title. The complaint to confirm and quite title named Johnson as one of the defendants because he was the record title holder at the time of the tax sale. The Andersons’ attorney attempted to serve personal process on Johnson twice. The Andersons next issued summons by publication in the local newspaper. Proof of publication was filed with the chancery court on November 2, 2009. On January 4, 2010, the Andersons filed an application to the clerk for an entry of default and supporting affidavit stating that Johnson had failed to plead or otherwise defend the suit to confirm and quiet title. On the same day, the clerk executed and filed the entry of default against Johnson. The following day, without a hearing, the chancellor entered a final judgment of default against Johnson and confirmed title in the Andersons. The Andersons sold the property via warranty deed to Kohler on January 22, 2010. On February 1, 2010, Johnson timely filed a pro se motion to set aside the default judgment. Prior to the hearing, the Andersons and Kohler sought and received a preliminary injunction against Johnson after he had tried to put a trailer on the property. The chancellor found that Andersons had made a diligent search and inquiry as to Johnson’s whereabouts and that the summons by publication was proper. Thus, the chancellor denied Johnson’s motion to set aside. Johnson appeals.

    Summary of Opinion Analysis: Issue 1: Service of process Johnson argues that the Andersons failed to make a diligent inquiry to find him before resorting to summons by publication. M.R.C.P. 4 governs how a party is to be served. The principal purpose of process is to give to the party to whom it is addressed notice of the proceeding to be defended. The Andersons twice attempted personal service upon Johnson pursuant to Rule 4(c)(1) by using a process server. The address on the summons was 954 1/2 Howard Avenue in Biloxi. This was the address that was listed on the Harrison County tax rolls as Johnson’s last known address. The chancellor also recognized that the attorney for the Andersons stated by sworn affidavit that he had not been able to ascertain, after diligent search and inquiry, the post office box or street address for Johnson. Determining diligent inquiry involves balancing the quality of the inquiries for the summoned party with their quantity. The Andersons’ attorney’s affidavit is not a part of the record as it was not designated by Johnson to be included. However, the chancellor, in her ruling, states that the attorney said in the sworn affidavit that he had been unable to ascertain Johnson’s post office or street address after diligent search and inquiry. The chancery court found that Johnson had multiple addresses over the last few years. She ruled that the Andersons had attempted to locate Johnson by a diligent search and inquiry before resorting to summons by publication; thus, she found summons by publication was proper. The Andersons’ attempts to locate Johnson were proper, with two personal service summons returned unfound at an address, which Anderson himself used on various documents including his own bankruptcy filings. Issue 2: Bankruptcy law Johnson argues that he was under the jurisdiction of the bankruptcy court at the time the suit to confirm and quiet title was filed; thus, any action in the chancery proceeding was stayed by the automatic stay under bankruptcy law. There is no doubt Johnson was not in bankruptcy when the tax sale was held on August 28, 2006. However, he said that he had filed for Chapter 13 bankruptcy on August 19, 2008. The chancellor and the attorney for the Andersons must have accepted this date for filing. Under section 27-45-3, the owner of land sold for taxes may redeem the land if he comes forward to do so within two years after the date of sale. Accordingly, Johnson would have had the nine days between August 19, 2008, when he filed for bankruptcy, and August 28, 2008, when the two-year redemption period expired, in which to redeem his property. He admitted that he did not redeem his property during this time. Under bankruptcy law, the right to redeem property from a tax sale is an asset that becomes the property of the estate. The real property involved in the sale is not itself an asset. Under 11 U.S.C. § 108(b), if the period of redemption has not expired when the bankruptcy petition is filed, then a period of sixty days is given to the debtor or his representative to redeem. The law makes no mention of tolling the running of the redemption period other than for the sixty days. The automatic stay prevents only certain affirmative acts taken by a creditor, and the running of time is not one of those acts. Under the application of bankruptcy law, Johnson is precluded from setting aside the default judgment.


    Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court