David S. Lawrence v. Robert John Rankin
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CA-00008-COA
DAVID S. LAWRENCE D/B/A LAWRENCE
INVESTMENTS
v.
ROBERT JOHN RANKIN
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
APPELLANT
APPELLEE
5/7/2002
HON. JAYE A. BRADLEY
JACKSON COUNTY CHANCERY COURT
G. CHARLES BORDIS
ROBERT JOHN RANKIN (PRO SE)
CIVIL - REAL PROPERTY
THE CLERK FAILED TO GIVE STATUTORY
NOTICE, THEREFORE THE CLERK'S
CONVEYANCE OF PROPERTY TO LAWRENCE
IS CANCELED. RANKIN IS ORDERED TO
REFUND TO LAWRENCE THE TAXES HE PAID,
PLUS INTEREST.
AFFIRMED IN PART; REVERSED AND
REMANDED IN PART - 04/13/04
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
BEFORE MCMILLIN, C.J., BRIDGES AND GRIFFIS, JJ.
BRIDGES, J., FOR THE COURT:
¶1.
On or about January 27, 2000, Robert John Rankin filed a civil action to cancel cloud on title to
real property and improvements located at 817 13th Street, Pascagoula, Mississippi. David Lawrence,
d/b/a Lawrence Investments, filed an answer and counterclaim seeking a confirmation of title to the land.
On November 9, 2000, Rankin filed an amended civil action to cancel cloud on title which added the
United States Small Business Administration as a defendant.
¶2.
On April 10, 2001, the Circuit Court of Jackson County issued a ruling which set aside the
chancery clerk's conveyance to Lawrence and found that the Chancery Clerk of Jackson County,
Mississippi, failed to follow notice requirements set forth in Mississippi Code Annotated section 27-43-3
(Rev. 2002). The circuit court further ordered Rankin to pay Lawrence the sum of $957.84, plus interest.
¶3.
Lawrence now appeals to this Court. It should be noted that Rankin did not file a brief in this
appeal.
STATEMENT OF THE ISSUES
I. DID THE LOWER COURT COMMIT MANIFEST ERROR IN FINDING THE CHANCERY
CLERK FAILED TO COMPLY WITH MISSISSIPPI CODE ANNOTATED SECTION 27-43-3?
II. DID THE LOWER COURT ERR IN FAILING TO ENTER A FINDINGS OF FACT AND
CONCLUSIONS OF LAW?
III. DID THE LOWER COURT COMMIT MANIFEST ERROR IN FAILING TO AWARD
DAMAGES AND INTEREST TO DAVID LAWRENCE D/B/A LAWRENCE INVESTMENTS
PURSUANT TO APPLICABLE STATUTES?
FACTS
¶4.
Robert John Rankin is the owner of land and improvements located at 817 13th Street, Pascagoula,
Mississippi. He acquired fee simple title by way of a quitclaim deed which was executed on September
26, 1979, and recorded in the Office of the Chancery Clerk of Jackson County.
¶5.
For several years, Rankin had been delinquent in the payment of his land taxes. He was informed
of the delinquent taxes, notices of delinquency and the ultimate forfeiture of property for failure to pay taxes.
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¶6.
In 1996, Rankin failed to pay taxes which were due on the above listed land for 1995 and the
property was sold for delinquent taxes in August 1996. The land was bought by David S. Lawrence, d/b/a
Lawrence Investments, who paid the taxes which became due on the land.
¶7.
Prior to the date of forfeiture, the Chancery Clerk of Jackson County, Mississippi, conducted a
title search on the land assessed to Rankin. A notice to landowner was forwarded to Rankin by the
Chancery Clerk of Jackson County, Mississippi on June 26, 1998. The notice advised Rankin that his land
had been sold to Lawrence on August 26, 1996, for delinquent taxes and that a failure to redeem the land
from the tax sale prior to August 26, 1998, would result in a forfeiture. The clerk forwarded the notice to
Rankin via certified mail and U.S. mail, postage paid. The delivery of certified mail was attempted on June
29, 1998 and July 14, 1998; however, the certified mail was returned as unclaimed. The clerk searched
telephone directories, records in the Office of the Tax Collector, records in the Office of the City Tax
Collector, school index and tax rolls, tax assessor records, and court department records in an effort to
locate Rankin. An affidavit setting forth the diligent search of the chancery clerk was prepared by Mrs. Jeri
Heidel, deputy clerk. Following the diligent search, the Sheriff of Jackson County attempted to personally
serve Rankin with the notice to landowner. The sheriff's return indicates that the deputy sheriff was advised
that Rankin "relocated." There was also a notice made in the Mississippi Press, a local newspaper, on
August 20/27, 1998.
¶8.
Rankin failed to redeem his land and the chancery clerk issued a "Chancery Clerk's Conveyance,
Land Sold for Taxes" to Lawrence on October 20, 1998, thereby selling and conveying the land to
Lawrence.
ANALYSIS
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I. DID THE LOWER COURT COMMIT MANIFEST ERROR IN FINDING THE CHANCERY
CLERK FAILED TO COMPLY WITH MISSISSIPPI CODE ANNOTATED SECTION 27-43-3?
¶9.
In his brief, Lawrence argues the chancellor committed manifest error in declaring the tax sale
invalid and setting aside the chancery clerk's conveyance which transferred title to the real estate to
Lawrence.
¶10.
Mississippi Code Annotated section 27-43-3 (Rev. 2002) requires the chancery clerk to issue
notice to landowners regarding the delinquent taxes and forfeiture. This section was amended in 1975, and
the pertinent parts of the amended statute follow:
In the event the notice by mail is returned undelivered and the personal notice as
hereinabove required to be served by the sheriff is returned not found, then the clerk shall
make further search and inquiry . . . [i]f personal notice is again issued and it is again
returned not found and if notice by mail is again returned undelivered, then the clerk shall
file an affidavit to that effect and shall specify therein the acts of search and inquiry made
by him in an effort to ascertain the reputed owner's street and post office address and said
affidavit shall be retained as a permanent record in the office of the clerk and such action
shall be noted on the tax sales record.
¶11.
The Mississippi Supreme Court, in Hart v. Catoe, 390 So. 2d 1001, 1002 (Miss. 1980), stated
that upon an examination of the above stated statute, it "indicates that stringent requirements were placed
upon the chancery clerk to notify a landowner of the tax sale and the fact that title to the land sold would
mature in the purchaser on a certain date."
¶12.
Without going into detail the acts taken by the chancery clerk in attempting to comply with the
statute, to locate and notify Rankin, the record does state that the clerk filed an affidavit which certified that
search was made in specific places, such as the phone directory, city tax directory, and sectional index and
rolls, only to name a few. Additionally, personal notice by certified mail was issued on two separate
occasions and both times service was "returned." There is also mention in the record that notice was
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served by the sheriff's department with the result being a notation on the back that he (Rankin) was
relocated. Finally, there is evidence that a publication was made as prescribed by statute.
¶13.
However, after a comprehensive reading of the record, it is undisputed that the chancery clerk
failed to file the supporting affidavits required by the statute when personal notice is returned undelivered.
In Mississippi, it is public policy to favor and protect landowners from loss by its sale for taxes.
Carmadelle v. Custin, 208 So. 2d 51, 55 (Miss. 1968).
¶14.
The statute involved in the present case must be given a strict construction, and its requirements
fully satisfied. Such was not the case here. The failure of the supporting affidavit renders the tax deed to
Lawrence void. The lower court was indeed correct in cancelling the tax deed and, therefore, the judgment
of the chancellor is affirmed.
II. DID THE LOWER COURT ERR IN FAILING TO ENTER A FINDINGS OF FACT AND
CONCLUSIONS OF LAW?
¶15.
At the conclusion of the hearing, the chancellor instructed counsel for both parties to submit
proposed findings of fact and conclusions of law within twenty days. However, prior to the expiration of
the twenty day period, the chancellor entered a ruling declaring the tax sale and the clerk's conveyance to
Lawrence invalid. Lawrence claims that the failure of the chancellor to enter findings of fact and
conclusions of law constitutes manifest, reversible error.
¶16.
Lawrence partially relies on Turpin v. Turpin, and quotes the following from that case: "To aid in
appellate review, findings of fact by the chancellor, together with the legal conclusions drawn from those
findings, are required." Turpin v. Turpin, 699 So. 2d 560, 565 (¶16) (Miss. 1997). While this is certainly
true, it only applies to certain instances in DOMESTIC cases, which in the case of Turpin, involved division
of marital assets as well as the award of periodic and/or lump sum alimony.
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¶17.
However, Mississippi Rules of Civil Procedure Rule 52 provides that:
[i]n all actions tried upon the facts without a jury the court may, and shall upon the request
of any party to the suit or when required by these rules, find the facts specifically and state
separately its conclusions of law thereon and judgment shall be entered accordingly.
In Tricon Metals & Services, Inc. v. Topp, 516 So. 2d 236, 239 (Miss. 1987), the Mississippi Supreme
Court addressed a trial court's responsibility to provide findings of fact and conclusions of law absent a
party's request to do so, which is the case sub judice. The court in Tricon held that the word "may" in Rule
52 should be construed to read "generally should" in complex cases, and failure to make such findings "will
generally be regarded as an abuse of discretion." Id. at 239.
¶18.
Obviously this is not a domestic case, and this Court finds that this case is neither complex nor
complicated. While we feel the chancellor should have made such findings and conclusions, this in no way
creates manifest, reversible error.
III. DID THE LOWER COURT COMMIT MANIFEST ERROR IN FAILING TO AWARD
DAMAGES AND INTEREST TO DAVID LAWRENCE D/B/A LAWRENCE INVESTMENTS
PURSUANT TO APPLICABLE STATUTES?
¶19.
Lawrence claims that the lower court erred in its ruling, dated May 7, 2002, in which the court
ordered Rankin to refund Lawrence the taxes paid, plus interest at the rate of 8% per annum.
¶20.
Mississippi Code Annotated section 27-45-3 involving redemption of land sold for taxes, states
in pertinent part, as follows:
The owner, or any persons for him with his consent, or any person interested in the land
sold for taxes, may redeem the same, or any part of it . . . by paying to the chancery clerk,
regardless of the amount of the purchaser's bid at the tax sale, the amount of all taxes for
which the land was sold, with all costs incident to the sale, and five percent (5%) damages
on the amount of taxes for which the land was sold, and interest on all such taxes and costs
at the rate of one and one-half percent (1-1/2%) per month, or any fractional part thereof,
from the date of such sale, and all costs that have accrued on the land since the sale, with
interest thereon from the date such costs shall have accrued, at the rate of one and one-half
percent (1-1/2%) per month, or any fractional part thereof.
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¶21.
We find that the chancellor erred in not ordering that Rankin pay to Lawrence the interest due him
as provide by the statute at one and one half percent per month, together with damages thereon at a rate
of 5% per annum on such amount due as provided by statute. We are reversing this matter so that the
chancellor can calculate the amount of taxes due and owing, plus said interest and damages, said amount
to be ordered paid by Rankin to Lawrence.
¶22.
We find no provision in the law for the assessment of attorney's fees in a case such as the case sub
judice. Therefore, this Court cannot order that attorney's fees be paid. Further this Court cannot assess
or order attorney's fees in a case unless same was ordered in the trial court. Since there is no provision
for the payment of such, this Court has no authority to order attorney's fees.
¶23. THE JUDGMENT OF THE JACKSON COUNTY CHANCERY COURT IS AFFIRMED
IN PART AS TO ISSUES I AND II AND REVERSED AND REMANDED IN PART AS TO
ISSUE III. COSTS OF THIS APPEAL ARE ASSESSED, ONE HALF TO THE APPELLANT
AND ONE HALF TO THE APPELLEE.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING,
MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.
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