Delbert Ray Alexander v. Billy Joe Pitts, Jr.

229 So. 3d 1073
CourtCourt of Appeals of Mississippi
DecidedNovember 14, 2017
DocketNO. 2016-CA-01471-COA
StatusPublished
Cited by1 cases

This text of 229 So. 3d 1073 (Delbert Ray Alexander v. Billy Joe Pitts, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Delbert Ray Alexander v. Billy Joe Pitts, Jr., 229 So. 3d 1073 (Mich. Ct. App. 2017).

Opinion

GREENLEE, J.,

FOR THE COURT:

¶ 1. Billy Joe Pitts Jr. purchased real property from a person who had acquired it through a tax sale and successfully quieted title to the property. Pitts and his neighbor, Delbert Ray Alexander, subsequently had a dispute over their boundary line. Pitts and Alexander litigated the boundary-line dispute for years. The chancellor ultimately held that to the extent that Alexander had raised an adverse-possession claim, it lapsed due to the tax sale. On appeal, Alexander claims he did not have proper notice of the tax sale or the action quieting title to the property. Alexander’s collateral attack on those proceedings is unrelated to the litigation that led to this appeal—an adverse-possession claim that he never properly alleged in a complaint—and he attempts to raise it for the first time on appeal. Therefore, we affirm the chancellor’s judgment. As we grant Pitts’s motion for attorney’s fees on appeal, we remand the case so the chancellor can determine the amount of attorney’s fees and costs payable to Pitts for defending this appeal.

FACTS AND PROCEEDINGS BELOW

¶2. This litigation between adjoining landowners concerns a portion of the approximately six-acre property that Sherry Lowe bought at a 2001 tax sale. In March 2010, Lowe got a judgment quieting and confirming her title to the property. Lowe later sold that property and other land to Pitts.

¶ 3. In September 2011, Alexander filed a complaint for a preliminary injunction to prevent Pitts from trespassing over a “common boundary [that] ha[d] been separated by a fence and shrubs for more than ten ... years.” Alexander conceded that the property had been surveyed, and the fence was “not on the forty line.” Alexander also alleged that Pitts had removed some of Alexander’s personal property from the “disputed land.”

¶ 4. Pitts moved to dismiss Alexander’s complaint. Citing Mississippi Code Annotated section 27-45-23 (Rev. 2010) 1 and Massey v. Lewis, 21 So.3d 644, 648 (¶¶ 11-12) (Miss. Ct. App. 2008) (parties with an adverse-possession claim relinquished it when they allowed the property at issue to be sold along with adjoining property at a tax sale), Pitts argued that any claim Alexander had to the disputed property had lapsed due to the tax sale. Pitts also noted that he and Alexander had agreed in advance of a survey to abide by its results, and the survey showed that the property at issue belonged to Pitts. 2 However, Pitts admitted that he had removed some of the abandoned castoffs that Alexander had dumped on the land. 3

¶ 5. The chancellor conducted a hearing on October 3, 2011. The record does not include a transcript of it or any other hearing in the case. The next day, the chancellor entered an order denying Alexander’s request for a preliminary ■ injunction “at this time.” The chancellor gave Alexander thirty days to remove his personal property from the land and amend his complaint “to reflect his claim-of ownership through adverse possession of [the] property in question .... ”

¶ 6. As of July 2012, Alexander had not filed an amended complaint; so Pitts filed another motion to dismiss Alexander’s initial complaint. Nearly a year later, Alexander finally filed an amended complaint asserting that he had acquired the land through adverse possession. 4 Pitts moved to dismiss it because it was untimely, Alexander’s interest in the land had lapsed due to the tax sale, and Alexander should have joined Lowe’s action to quiet and confirm her title to the property.

¶ 7. In November 2013, the parties convened for a hearing. As mentioned above, the record does not contain any transcripts. The hearing resulted in Pitts’s attorney’s preparation of a' proposed stipulation of facts and order. Alexander’s attorney had not signed it as of June 2014. In November 2015, Pitts’s attorney filed a motion for a trial setting. Within it, Pitts’s attorney stated that “Alexander, through his counsel, ... announced to [the chancellor] that he would be filing an appeal to the Mississippi Supreme Court ... over [a] year ago, but ... no appeal was ever[ fjiled .... ”

¶ 8. On February 9, 2016, the chancellor entered a document styled “stipulation of facts and order.” According to that document, during the November 2013 hearing, Alexander announced that he was aggrieved because he did not receive notice of the tax sale, and Lowe did not serve him with “[personal service or notice of her suit to quiet and confirm title [to the] property.” The chancellor added that “Alexander never made any such assertion prior to the instant pending litigation

¶ 9. After detailing the stipulated facts of the case, the chancellor held that “Alexander’s interest in the land at issue would have lapsed during the time [that] the municipality held title to the land, prior to the tax sale ....” 5 Consequently, the chancellor held that Alexander’s adverse-possession claim failed. The chancellor further held that “[a]ll statutory requirements of public notice and publication were met during the tax sale, the issuance of the tax deed, and the subsequent [s]uit to quiet and confirm title.” Finally, the chancellor related that “[c]ounsel for ... Alexander desires the appellate [c]ourt to review the existing notification requirements of both the tax sale, issuance of the tax deed, andl7]or the suit to quiet and' confirm' title.” Consequently, the chancellor held that “all factual testimony or evidence except that stipulated herein by the parties[ ] is held in abeyance for a future hearing consistent with the appellate [cjourt’s opinion.”

¶ 10. Represented by different counsel, on March 7, 2016, Alexander filed a motion for a new trial so he could “put on evidence of the total lack of substantive due process” regarding the tax sale and Lowe’s complaint to quiet and confirm her title to the land. Pitts argued that the lack of a previous- trial in the case invalidated Alexander’s request for a “new” trial. On October 3, 2016, the' chancellor entered an order denying Alexander’s motion for a new trial; The chancellor also adopted the February 9, 2016 order “as the fflinal judgment in this case for purposes of appeal.” Alexander appeals.

DISCUSSION '

¶ 11. On appeal, Alexander does not challenge any decision that the chancellor made in this case. Instead, he attempts to collaterally attack the tax sale and Lowe’s complaint to quiet and confirm title to the land.' Although he cites authority discussing due-process requirements in general terms, he cites nothing in support of his claim that he was entitled to personal service of process incident to the tax sale or Lowe’s complaint to quiet and confirm title. See . M.R.A.P. 28(a)(7). Likewise, he cites no authority that would support his ability, to collaterally attack them through this appeal of what we construe as an agreed judgment in Pitts’s favor. These failures operate as a procedural bar to his claims. SASS Muni-V LLC v. DeSoto Cty., 170 So.3d 441, 449 (¶ 28).(Miss. 2015).

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Bluebook (online)
229 So. 3d 1073, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delbert-ray-alexander-v-billy-joe-pitts-jr-missctapp-2017.