E-Filed Document May 31 2018 14:44:32 2017-CA-01441 Pages: 18 IN THE SUPREME COURT OF MISSISSIPPI PATRICIA RUSH APPELLANT v. V. NO. 2017-CA-1441 R R&D & D PROPERTIES, LLC APPELLEE BRIEF OF APPELLEES R. GREGG ROGERS, ESQ. (MSB # 5651) Post Office Box 478 Louisville, Mississippi 39339 Telephone: (662) 779-41300 Facsimile: (662) 779-4125 ATTORNEY FOR R&D R & D PROPERTIES, LLC
IN THE SUPREME COURT OF MISSISSIPPI PATRICIA RUSH APPELLANT v. NO.2017-CA-1441 R&D PROPERTIES, LLC APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Patricia Rush; 2. James H. Arnold, Esq..J. " R&D Properties, LLC 4. R. Gregg Rogers, Esq. 5. Honorable Joseph Kilgore Respectfully submitted, R&D PROPERTIES, LLC BY: ATTORNEY FOR APPELLEE II
TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS...................... i TABLE OF CONTENTS................. ii TABLE OF AUTHORITIES......................... iii STATEMENT OF ISSUES......................................... iv STATEMENT OF CASE................................. 1 STATEMENT OF FACTS............................. 2 ARGUMENT AND AUTHORITIES.............. 4 CONCLUSION...................................................... 10 CERTIFICATE OF SERVICE...... II III
TABLE OF AUTHORITIES CASES: Carmadelle v. Custin, 208 So.2d 51 (Miss. 1968).................... 6 Gober v. Manhattan Bank, 918 So.2d 840 (Miss. Ct. App. 2005)................................ 6 Kron v. Van Cleave, 339 So. 2d 559 (Miss. 1976)................. 6,7 Lawrence v. Rankin, 870 So. 2d 673 (Miss. Ct. App 2014)................................. 7 Moore v. Marathon Asset Management. LLC, 973 So. 2d 1017 (Miss Ct. App. 2008)... 7 Reedv. Florimonte, 987 So. 2d 987 (Miss. 2008)................................. 7 Rhoda v. Weathers, 87 So. 3d 1067 (Miss. Ct. App. 2011)......... 8, 9 Russell v. Performance Toyota, Inc., 826 So.2d 719 (2002).......................4 Shavers v. Shavers, 982 So. 2d 397 (Miss. 2008)............................ 8 SKL Investments, Inc. v. American General Finance, Inc.,...............4, 5, 6 22 So. 3d 1247 (Miss. Ct. App. 2009) Stathos v. Lee County Rentals, LLC, 119 So. 3d 377 (Miss. Ct. App. 2013)......... 9 United Credit Corp. v. Hubbard, 905 So.2d 1176 (2004)...............4 STATUTES: Miss. Code Ann. 23-33-31 (1972)....................4 Miss. Code Ann. 27-43-11 (1972)........................................... 6 Miss. Code Ann. 27-47-1 (1972)........................ 5 RULES: Miss. R. App. P. 28..................... 8 iv
STATEMENT OF THE ISSUE Whether the trial court correctly denied Appellant's Petition to Set Aside Tax Sale. v
STATEMENT OF THE CASE On May 16,2016, due to Petitioner's failure to pay real property taxes owed on her property, the Chancery Clerk of Winston County, Mississippi notified Ms. Rush ("Petitioner") that her property had been sold to R&D Properties, LLC ("R & D" or Respondent"), at the tax sale in August, 2014. When Ms. Rush failed to redeem the subject property, and the tax sale had matured, Respondent recorded its tax deed on October 4, 2016. Ms. Rush filed a Petition to Set Aside Tax Sale in the Chancery Court of Winston County on July 12, 2017, to which R&D responded. Appellate Record (hereinafter referred to as "AR") at 12. A hearing was held on September 6, 2017. Shortly thereafter, the trial court entered its Order denying the Petition, specifically finding that Ms. Rush had proper notice and that the tax sale was conducted according to Mississippi law. AR at 57. It is from this Order that Petitioner appeals. 5
STATEMENT OF FACTS Petitioner owned property at 3096 Highway 14 West in Louisville, Winston County, Mississippi. 1 AR at 45. In 2012, she applied for a homestead exemption of the property as a married person. At that time, she was married to Leroy Triplett, whose name was also listed on the application. Id.; AR at 99-100. Petitioner, under penalty of perjury, signed the application certifying that the information contained thereon was true and correct. Id. at 45. Her husband owed back income tax(es) to the State of Mississippi. AR at 98-99. The taxes were assessed against his wife's property. Q. Okay. And it was actually a state income tax bill in the amount of $551 - something like that? A. Her homestead was denied due to a homestead chargeback which related to his income tax. AR at 99. Because Petitioner failed to pay the taxes her husband owed, the property was sold on August 25, 2014 at the Winston County tax sale to R & D Properties, LLC ("R & D" or Respondent") upon payment of the delinquent taxes. Thereafter, the Tax Assessor/Collector of Winston County, Mississippi notified Petitioner that her property had been sold to Respondent at the tax sale and described the steps Petitioner needed to take to redeem the property. This notice was sent to Petitioner at the address she gave on her homestead exemption application via certified mail, return receipt requested, for which Petitioner signed. AR. at 111. Upon maturation of the tax sale, Respondent recorded its tax deed on October 4, 2016. Petitioner filed her Petition to Set aside Tax Sale challenging the validity of the sale. AR 1 At the hearing of this matter, testimony established that Patricia Rush is the same person as Patricia Triplett on a quit claim deed for the subject property. AR at 104. 6
at 12. At trial, she claimed that, because she was separated from her husband at the time she completed the homestead application, she was not responsible for his taxes.2 However, such a contention ignores and blatantly contradicts her statement of marital status on the homestead application. Therefore, the trial court found that the evidence established that"... the Petitioner clearly certified that she reviewed the statement and certified its contents as true and correct." AR at 57. Thus, the trial court specifically found that Petitioner had proper notice of the tax deficiency and that the tax sale was conducted according to Mississippi law. AR at 58. Moreover, it held that the sale was valid as to the Petitioner based upon statute and case law. 3 Id. It is from this Order that Petitioner appeals. 4 2 Petitioner testified that she had never filed a joint income tax return with her husband. In the trial court's Order, it noted that if she"... had marked [the homestead application] that she was "separated" and was not filing joint income tax returns, she would not be liable for the tax debt" of her husband. 3 The trial court determined that tax sale was invalid as to Petitioner's lienholder because it did not receive notice of the sale. In fact, the Chancery Clerk acknowledged at the hearing that she failed to give notice to the lienholder. 4 Petitioner also appealed the "order denying reconsideration and from all related orders entered prior or subsequently in this case." AR at 60. Notice of Appeal However, a review of the trial court docket reveals that Petitioner did not file a motion requesting reconsideration. Petitioner did file a Motion for Stay of Judgment Pending Appeal which the trial court denied. AR at 72. December 7, 2017 Order However, Petitioner only included in her Brief the argument challenging the trial court's October 4, 2017 Order upholding the tax sale as to Petitioner. For reasons more fully described later in Appellee's Brief, any other issues that the Notice of Appeal could be construed to contain have been abandoned. 7
ARGUMENT AND AUTHORITIES STANDARD OF REVIEW Mississippi law is exceedingly clear that a chancellor's order is entitled to wide latitude on appeal. In SKL Investments, Inc. v. American General Finance, Inc., 22 So. 3d 1247 (~4)(Miss. Ct. App. 2009), the Court of Appeals stated: Our standard of review of a chancellor's decision is well settled: We will not disturb a chancellor's findings unless they are manifestly wrong, clearly erroneous, or the chancellor applied an erroneous legal standard. Stokes v. Campbell, 794 So.2d 1045, 1047-48 (~9)(Miss. Ct. App. 2001). We review questions oflaw de novo. Gillespie v. Kelly, 809 So.2d 702, 705 (~9)(Miss. Ct. App. 2001). SKL Investments, 22 So. 3d at 1249. THE TRIAL COURT CORRECTLY DENIED APPELLANT'S PETITION TO SET ASIDE TAX SALE Mississippi law requires a person applying for a homestead exemption to comply with certain conditions. The landowner shall supply true and correct information. Miss. Code Ann. 23-33-31(n)(i972)(as amended). Further, he or she "shall make affidavit to the application and to the truth of all statements made and answers to questions contained therein, and the oath may be administered by the tax assessor, a member of the board of supervisors, or any other officer authorized by law to take acknowledgments." Miss. Code Ann. 27-33-31(p)(as amended). These are affirmative and mandatory obligations ofthe landowner. Moreover, Mississippi law recognizes that it is a person's duty to read what they sign and understand it. United Credit Corp. 8
v. Hubbard, 905 So.2d 1176, 1178 (~I 0)(2004). "In Mississippi, a person is charged with knowing the contents of any documents that [she] executes." Russell v. Performance Toyota, Inc., 826 So.2d 719, 726 (~28 ) (2002). The facts of this matter are simple. When Petitioner completed a homestead application, she stated that she was a married person and certified that fact as true and correct under the penalty of perjury. AR at 45. After the tax sale was certified and a tax deed issued to Respondent, she claimed that she was not liable for her husband' s unpaid taxes because she was separated at the time she completed the application and did not file a joint tax return with him. However, revisionist history is insufficient to alter the ChanceJlor' s decision that evidence clearly belied any finding other than she had identified herself as, and was, married when she applied for the homestead exemption. There was no reason for the tax assessor/cojlector to conduct a community search to determine whether a landowner might have had a change in marital status. Quite frankly, that is simply too much to ask and is not required. It is uncontradicted that Petitioner had notice of the sale. It was sent to Petitioner at the address she gave on her homestead exemption application via certified mail, return receipt requested, for which Petitioner signed. According to Miss. Code Ann. 27-47-1, [t]he clerk of the chancery court shall, within one hundred eighty (180) days and not less than sixty (60) days prior to the expiration of the time of redemption with respect to land sold, either to individuals or to the state, be required to issue notice to the record owner of the land sold as of one hundred eighty (180) days prior to the expiration of the time of redemption,..." Miss. Code Ann. 27-43- 1 (I 972)(as amended). As the ChanceJlor determined, the notice to Petitioner was valid and complied with state law. She had actual notice of the sale and the steps she needed to take to 9
redeem the property. She failed to do so despite having two (2) years to cure the issue. For these reasons, the tax sale was correctly upheld as to Petitioner. In SKL Investments v. American General Finance, the Court of Appeals was faced with an analogous situation. There, just as in this case, all parties received notice but the notice to the lienholder was determined to be improper. Rather than invalidate the entire sale when only the notice to the lienholder was insufficient, the court followed existing Mississippi law and held that "failure to give proper notice to a lienholder renders that tax sale void as to that lienholder." SKL Investments, 22 So.3d at 1250 (~1 0)( citing Gober v. Manhattan Bank, 918 So.2d 840, 843 (~I O)(Miss. Ct. App. 2005). That is the exact case at bar. Petitioner claims that because the Chancery Clerk did not provide notice to the lienholder of the property, that the Respondent's deed is void. However, that contention runs contrary to Mississippi law. The Chancery Clerk followed the statute as it pertained to Petitioner. The Court in SKL pointed out that Miss. Code Ann. 27-43-11 establishes that the "failure to give the required notice to such lienors shall render the tax title void as to such lienors, and as to them only." SKL Investments, 22 So. 3d at 1250 (~9)(emphasis added)(quoting Miss. Code Ann. 27-43- 11 (I 972)(as amended». Thus, "[wje interpret that provision to mean that the tax sale is confirmed as to all others except those lienholders who failed to receive the statutorily-required notice." Id. at 1250. For those reasons, Petitioner's Motion was properly denied. The cases on which Petitioner relies are distinguishable and provide no support for her position. In Carmadelle v. Custin, 208 So.2d 51 (Miss. 1968), the case turned on an error in the description of the property in the Sheriffs list ofland sold for taxes. There is no such error in this case. Petitioner argues that the homestead application was completed in error but she 10
ignores the fact that she certified the information on her application as being true and correct. She represented that she was married. This was not an error by a third person and no evidence - other than Petitioner's uncorroborated change of story - was offered to support her claim. Accordingly, Carmadelle gives Petitioner no assistance. Petitioner relies on several cases for the general proposition that the "public policy of the State favors and protects landowners from the loss of their property by its sale for taxes." Appellant's Brief at p. 5. But, those cited cases are factually distinguishable. In Kron v. Van Cleave, 339 So. 2d 559 (Miss. 1976), the City of Pascagoula had committed clerical error in retrieving information from other taxing authorities in Jackson County, such that the landowner did not receive any notice of a tax sale, sufficient to take away its power to convey title to anyone.ld, at 339 So.2d at 562. Clearly, that is not the issue in this case. Petitioner had good notice of the tax sale. In Moore v. Marathon Asset Management, LLC, 973 So. 2d 1017 (Miss Ct. App. 2008), the notice provided to the landowner was inadequate inasmuch as certified mail was returned "unclaimed" and the sheriff was unable to locate the owner. No other measures were taken to locate the owner before his property was purchased at a foreclosure sale prior to the tax sale maturing. That is most certainly not the case in this matter. Petitioner received notice as evidenced by her signed return receipt and her testimony at trial. In two other cases, Reed v. Florimonte, 987 So. 2d 987 (Miss. 2008) and Lawrence v. Rankin, 870 So. 2d 673 (Miss. Ct. App 2014), the Court addressed situations in which the land owners did not receive statutorily sufficient notice. In Reed, the errors in attempting to locate the landowner and provide notice were many. ld. at 971. That is not the case here, inasmuch Petitioner had actual notice according to the statute. In Lawrence, certified mail to the owner was returned unclaimed 11
and no affidavit was filed regarding it. Additionally, the sheriff was unable to serve him as he was advised that the owner had relocated. Accordingly, the Court of Appeals affirmed the setting aside of the tax sale. Once again, here, lack of notice to Petitioner is not the issue. She had actual notice of the sale. Kron, Moore, Reed and Lawrence offer no support to Petitioner's cause. For these reasons, the trial court's denial of Petitioner's Motion to Set Aside the Tax Sale should be affirmed. ALL OTHER ISSUES PUT A TIVEL Y APPEALED HAVE BEEN ABANDONED Petitioner also appealed the "order denying reconsideration and from all related orders entered prior or subsequently in this case." AR at 60. However, a review ofthe trial court docket reveals that Petitioner did not request a hearing on the motion requesting reconsideration. Petitioner did file a Motion for Stay of Judgment Pending Appeal which the trial court denied. AR at 91. However, Petitioner only included in her Brief, the sole argument and authorities regarding the trial court's October 4, 2017 Order upholding the tax sale as to Petitioner. Petitioner has not complied with Rule 28 of the Mississippi Rules of Appellate Procedure. Rule 28(a)(3) requires that each issue presented to the Court on appeal shall be separately numbered and distinctly identified. "Failure to comply with the Rule 28 amounts to an abandonment of these issues on appeal. See, e.g., Shavers v. Shavers, 982 So. 2d 397, 403 (~34)(Miss. 2008). Petitioner has not provided any authority supporting any denial of reconsideration, the denial of her Motion for Stay of Judgment Pending Appeal or any other matter she may have intended to include in her Notice of Appeal. In Rhoda v. Weathers, 87 So. 3d 1067 (Miss. Ct. App. 2011)(rev'd in part on other grounds, Rhoda v. Weathers, 87 So.3d 1036, 1037 (~ 1)(Miss.2012)), the Court of Appeals stated that: 12
Rule 28(a)(6) requires that the assertions of the appellant must be supported by 'the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.' This is because there is 'a presumption that the judgment of the trial court is correct, and the burden is on the appellant to demonstrate some reversible error to the appellate court.' Cobb v. Cobb, 29 So. 3d 145, 152 (~24) (Miss. Ct. App. 2010). Thus we have held that the failure to employ relevant authority operates as a procedural bar on appeal. Id. at 1071 (~19). "[A]rguments of error [must] be supported by citation to the record. A reviewing court is not obligated to scour the record to substantiate an appellant's unsupported assertions as to what occurred at the trial." Id. 1072 (~22). Considering the lack of authority to support a proposition, the Court noted that it "ha[d] no obligation to try and figure it out." Id. at 1072 (~22). It continued: Rule 28 does not simply require a party to mention authority; the authority must be used to develop the argument in a meaningful way. Randolph v. State, 852 So.2d 547, 558 (~29)(Miss.2002). An appellant cannot give cursory treatment to an issue and leave it to this Court to uncover a basis for the claims, either in the record or in the law. Simply put, we will not act as an advocate for one party to an appeal. The appellant must affirmatively demonstrate error in the court below, and failure to do so waives an issue on \3
appeal. [d. at 1072 (~23). In Stathos v. Lee County Rentals, LLC, 119 So. 3d 377 (Miss. Ct. App. 2013), the Court of Appeals again emphasized that it is not required to scour the law to find support for the assertions of an appellant; to do so would put the Court in the position of an advocate and would deny the appellee a fair opportunity to respond. [d. at 380 (~9)(citing Rhoda, 87 So. 3d at 1071-72). While it could be argued that Petitioner has failed to comply with Rule 28 by citing authority in a meaningful way and affirmatively demonstrating error on the notice issue, it is abundantly clear that she has failed to point out where in the record any other issues which her Notice of Appeal could be construed to contain might be found and wholly failed to support any such claims of error with any argument or authority whatsoever. Accordingly, those issues should be deemed abandoned or waived. 14
CONCLUSION For all the reasons set forth above, R&D Properties, LLC, respectfully requests that this Court affirm the Order of the Trial Court denying Petitioner' s Motion to Set Aside Tax Sale, with all costs to be taxed against Petitioner. THIS, the II day of May, 2018. Respectfully submitted, BY: R&D PROPERTIES, LLC ff ~ R. GREG"JaERS:ESQ. (MSB # 5651) ATTORNEY FOR APPELLEE OF COUNSEL: R. GREGG ROGERS, ESQ. (MSB # 5651) Post Office Box 478 Louisville, Mississippi 39339 Telephone: (662) 779-4130 Facsimile: (662) 779-4125 15
CERTIFICATE OF SERVICE I, R. GREGG ROGERS, do hereby certify that on May :]L, 2018, I electronically filed the foregoing Brief of Appellee using the ECF system, which sent notification of said filing to the following: James H. Arnold, Esq. - arnoldjimh(@attv.net ATTORNEY FOR APPELLANT and by electronic mail to: Honorable Joseph Kilgore - jkilgore@neshobacounty.net CHANCELLOR FOR WINSTON COUNTY, MISSISSIPPI TIDS, the --7..L day of May, 2018. 16