Delbert Ray Alexander v. Billy Joe Pitts, Jr.
229 So. 3d 1073
| Miss. Ct. App. | 2017Background
- Pitts purchased ~6-acre parcel that Sherry Lowe had acquired at a 2001 tax sale and obtained a judgment quieting and confirming Lowe’s title in March 2010; Lowe later conveyed the property to Pitts.
- Alexander, Pitts’s neighbor, filed for a preliminary injunction (Sept. 2011) claiming a boundary had been established by fence and shrubs for over ten years and alleging Pitts trespassed and removed personal property from the disputed strip.
- Chancellor denied the preliminary injunction and gave Alexander 30 days to remove personal property and to amend his complaint to assert adverse possession; Alexander delayed and ultimately filed an amended complaint nearly a year later asserting adverse possession (filed under wrong cause number).
- Pitts moved to dismiss, arguing Alexander’s adverse-possession claim lapsed by operation of the tax sale and that Alexander should have joined Lowe’s quiet-title action; hearings were held but transcripts are not in record.
- Chancellor entered a stipulated-facts order (Feb. 9, 2016) finding statutory notice and publication for the tax sale and Lowe’s quiet-title action were satisfied, concluding Alexander’s adverse-possession interest had lapsed, and holding Alexander’s attempts to collaterally attack the tax sale were procedurally barred.
- Court of Appeals affirmed, holding Alexander failed to properly present or support his collateral-attack arguments on appeal and granted Pitts’s Rule 38 motion remanding for assessment of attorney’s fees and costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Alexander can assert adverse possession to the disputed strip | Alexander claimed long use by fence/shrubs created title by adverse possession | Pitts argued any claim lapsed due to the intervening tax sale and quiet-title judgment; survey favored Pitts | Court held adverse-possession claim failed because interest lapsed via tax-sale chain and Alexander did not timely/sufficiently plead it |
| Whether Alexander may collaterally attack the tax sale and Lowe’s quiet-title judgment in this appeal | Alexander argued he lacked notice of the tax sale and of Lowe’s suit and sought relief on due-process grounds | Pitts argued collateral attack was not raised below, lacked supporting authority, and is procedurally barred | Court held collateral attack was procedurally barred for failure to raise/argue below and for failure to cite authority |
| Whether statutory notice/publication for the tax sale and quiet-title action were satisfied | Alexander contended he was entitled to personal service and due process | Pitts and chancellor maintained statutory requirements were met | Court accepted chancellor’s finding that statutory notice/publication requirements were met |
| Whether the appeal was frivolous warranting fees under M.R.A.P. 38 | Alexander pursued novel collateral attack on tax-sale/quiet-title without raising it timely or citing authority | Pitts argued appeal was frivolous and moved for sanctions/fees | Court found appeal had no hope of success, granted Pitts’s motion, and remanded for calculation of fees and costs |
Key Cases Cited
- Massey v. Lewis, 21 So. 3d 644 (Miss. Ct. App. 2008) (adverse-possession claims can be extinguished when property is sold at tax sale)
- SASS Muni-V LLC v. DeSoto Cty., 170 So. 3d 441 (Miss. 2015) (appellate waiver where appellant fails to brief issues or cite supporting law)
- Satterfield v. State, 158 So. 3d 380 (Miss. Ct. App. 2015) (appellant must affirmatively demonstrate error; court will not act as advocate)
- Flowers v. Boolos (In re Estate of Smith), 204 So. 3d 291 (Miss. 2016) (Rule 38 frivolous-appeal standard ties to Rule 11; appeal is frivolous if appellant has no hope of success)
- D.P. Holmes Trucking LLC v. Butler, 94 So. 3d 248 (Miss. 2012) (amendments to pleadings made without leave or consent are improper)