49 So. 3d 156
Miss. Ct. App.2010Background
- McGees owned two Jackson, Mississippi properties; M&F Bank held deeds of trust on both.
- Taxes for 2004 were unpaid, leading to county tax sales on August 29, 2005 to Wachovia Bank for Sass Muni V.
- After the tax sale, neither the McGees nor M&F Bank redeemed the properties within two years; Wachovia conveyed its interest to Rebuild America by quitclaim.
- Rebuild America sued in Chancery Court (Dec. 11, 2007) to confirm and quiet title; McGees and M&F Bank challenged the tax deeds as improperly served with statutory redemption notice.
- Chancellor set aside both tax sales on June 23, 2009; case proceeded on undisputed facts and affidavits via stipulation.
- On appeal, court held the statutory notice requirements were not satisfied and remanded for calculation of damages under Miss. Code Ann. § 27-45-3.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether redemption notice complied with statutory requirements | McGees argued notices failed personal service and were not properly served. | Rebuild America urged that notices, though mail/publication were imperfect, were cured by clerk affidavits. | Not satisfied; notices void due to missing sheriff's return and improper curing. |
| Whether clerk affidavits could cure lack of sheriff's return | Affidavits from the clerk attempted to show diligent search and inquiry to cure defects. | Affidavits must be sworn and to require both initial and second searches; uncured if not returned not found. | Affidavits insufficient; cannot cure absent proper returns and must be sworn. |
| Damages entitlement and calculation under § 27-45-3 | Rebuild America seeks statutory damages and related costs under § 27-45-3. | Damages should align with taxes, interest, and statutory damages; remand appropriate to compute. | Remanded to calculate statutory damages and require McGees to pay Rebuild America. |
| Sanctions for frivolous appeal | Rebuild America’s appeal warranted reconsideration; target of sanctions if frivolous. | No frivolity; arguments lacked merit but not frivolous. | Sanctions denied. |
Key Cases Cited
- DeWeese Nelson Realty, Inc. v. Equity Services Co., 502 So.2d 310 (Miss. 1986) (mandatory three-part redemption notice: personal service, mail, and publication)
- Rebuild America, Inc. v. Estate of Wright, 27 So.3d 1202 (Miss. Ct. App. 2010) (affidavits cannot cure missing sheriff's returns; strict construction)
- Viking Invs., LLC v. Addison Body Shop, Inc., 931 So.2d 679 (Miss. Ct. App. 2006) (statutory forfeiture procedures strictly construed)
- Brown v. Riley, 580 So.2d 1234 (Miss. 1991) (strict compliance with statutory notice requirements)
- Hart v. Catoe, 390 So.2d 1001 (Miss. 1980) (deviations from mandated procedures render sale void)
- Norwood v. Moore, 932 So.2d 63 (Miss. Ct. App. 2006) (affidavit attestation requirements for notices)
- Lawrence v. Rankin, 870 So.2d 673 (Miss. Ct. App. 2004) (remand to compute taxes, interest, and damages under § 27-45-3)
- Estate of Wright, 27 So.3d 1205 (Miss. Ct. App. 2010) (affidavit sufficiency and notice procedures context)
- Rebuild America, Inc. v. Milner, 7 So.3d 972 (Miss. Ct. App. 2009) (notice to each owner must be properly issued)