Rush v. R&D Props. LLC

• Decision Date: 09 October 2018
• Docket Number: NO. 2017-CA-01441-COA,2017-CA-01441-COA
• Citation: 270 So.3d 1098
• Court: Mississippi Court of Appeals
• Parties: Patricia RUSH, Appellant v. R & D PROPERTIES LLC, Appellee

270 So.3d 1098

Patricia RUSH, Appellant

v.R & D PROPERTIES LLC, Appellee

NO. 2017-CA-01441-COA

Court of Appeals of Mississippi.

October 9, 2018

ATTORNEY FOR APPELLANT: JAMES H. ARNOLD JR.

ATTORNEY FOR APPELLEE: ROY GREGG ROGERS, LOUISVILLE

BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.

CARLTON, J., FOR THE COURT:

¶ 1. This appeal concerns the Winston County Chancery Court's denial of a petition to set aside a tax sale of property owned by Patricia Rush, located in Winston County, Mississippi. Patricia applied for a homestead exemption on the property in 2012. Her completed and filed application shows Patricia as the taxpayer, James H. Rush as her spouse, and Patricia's marital status as "married." Patricia signed the homestead exemption application and certified under penalty of perjury that the information it contained was correct. Patricia's 2013 homestead exemption was subsequently denied due to a charge-back for her ad valorem taxes due to James Rush's outstanding state income tax liability. Mississippi Code Annotated section 27-33-63(2) (Rev. 2010) establishes that no claimant for homestead exemption is eligible for the exemption if the claimant or claimant's spouse fails to comply with income tax laws of the State of Mississippi. When Patricia failed to pay the $551 in ad valorem taxes assessed for year 2013 due to the homestead exemption charge-back, Patricia's property was auctioned to R & D Properties LLC, at an August 2014 Winston County tax sale. The record reflects that Patricia was duly notified of her delinquent ad valorem taxes, the tax sale, and her right of redemption, but she failed to redeem her property within the time prescribed by law.

¶ 2. After expiration of the redemption period, however, Patricia filed a petition to set aside the tax sale in chancery court. At the September 2017 hearing on her petition, Patricia focused on how she completed her homestead application, instead of addressing the statutory requirements to obtain an exemption from her ad valorem taxes. She testified that when she filed for her homestead exemption, she told the clerk in the tax assessor's office that she was married, but that she and James Rush were "not together" because he had left her for her cousin. Patricia argued that because she was separated from James Rush, she was not responsible for his income tax liability. According to Patricia, the clerk mistakenly marked her marital status as "married" instead of "separated," and this error allegedly caused the tax assessor to wrongly deny her 2013 homestead exemption based on James Rush's income tax liability. Based on these circumstances, Patricia argued that the tax sale of her property was invalid and should be set aside.

¶ 3. Observing that Patricia had certified the validity of the information in her homestead exemption application under penalty of perjury, and that Patricia had been notified of the tax sale as required by law, the chancery court denied Patricia's petition and confirmed the tax sale as valid. Patricia appeals. Finding no error in the chancery court's denial of Patricia's petition and determination that the tax sale was valid, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 4. Patricia Rush owned property located at 3096 Highway 14 West in Louisville, Winston County, Mississippi. She acquired the property through a 1998 quitclaim deed from Leroy Triplett. At that time she was known as Patricia Triplett.¹ She subsequently married James H. Rush.² In March 2012, Patricia applied for a homestead exemption on the property. Her completed and filed homestead exemption application contains the following information:

Patricia A. Rush and her social security number are typed on line 1 -Taxpayer.

James H. Rush and his social security number are typed on line 2 - Name of Spouse.

Line 5 - Marital Status lists five options: Married, Widowed, Separated, Divorced, and Single. "Married" is checked on Patricia's application.³

Patricia signed the application, certifying that the information it contained was correct, as follows:

I do attest and affirm to the best of my knowledge and belief, under penalty of perjury, that the statements made and the answers given are true and correct as of January 1 of the year stated above.

The application was also notarized by Maxine Robertson, who attested:

The applicant herein has, IN PERSON, attested to and signed this applicationbefore me, this the 19th day of March, 2012.

¶ 5. Patricia's property was subsequently sold at a tax sale in August 2014 because she did not pay $551 in 2013 ad valorem taxes on the property. Patricia filed a petition to set aside the tax sale on July 12, 2017. R & D responded, and Patricia's petition was heard on September 6, 2017. The circumstances surrounding Patricia's completion of her homestead exemption application, the 2013 ad valorem tax assessment, and the ensuing tax sale, are addressed in detail below.

¶ 6. The current Winston County Tax Collector/Assessor, Darlene Bane, testified about Patricia's homestead exemption application at the September 2017 hearing on Patricia's petition.⁴ Ms. Bane explained that married persons only need to file one application. In this case, Patricia's homestead exemption application was filed on behalf of both Patricia Rush and James Rush. Both parties' names and social security numbers are required to complete the application; however, only one signature is required to certify that all the information contained in the application is true and correct. Ms. Bane testified that Patricia's filed homestead exemption application listed Patricia Rush as the taxpayer and James Rush as her spouse, and that the homestead exemption application indicated that Patricia was "married" to James Rush when she signed and filed it.

¶ 7. The record reflects that Patricia's property was subsequently auctioned to R & D at an August 24, 2014, Winston County tax sale when Patricia did not pay $551 in 2013 ad valorem taxes on the property. The $551 was the amount Patricia had received in 2013 as a credit under her homestead exemption. She was subsequently denied her 2013 homestead exemption, however, due to a homestead charge-back relating to James Rush's⁵ outstanding income tax liability.⁶

¶ 8. Specifically, Ms. Bane testified at the hearing that Patricia lost her homestead exemption when the state discovered that James Rush owed income taxes. At that point, Ms. Bane testified, "the state throws a charge-back because they're not going to give credit when there's money due by the same party." As Ms. Bane explained, "[Patricia Rush's 2013] homestead [exemption] was denied due to a homestead charge-back which related to [James Rush's] income tax. So that's what she was charged for— ... the amount that she had received as a [homestead] credit in the prior year."

¶ 9. Regarding notice of the delinquent property taxes and the tax sale, Ms. Bane testified that before Patricia's land was sold, notice of the delinquent property taxes was published twice in the local newspaper in the time and manner required by law. Additionally, Julie Cunningham, the Winston County Chancery Clerk, testified that Patricia was provided with proper notice of the tax sale and her right of redemption under the applicable statute. She confirmed that the notice was sent via certified mail to Patricia at the address on the quitclaim deed, which matched the address on her homestead application. Ms. Cunningham testified that she had the return receipt signed by Patricia. Patricia offered no evidence or testimony contradicting the testimony of Ms. Bane and Ms. Cunningham that notice of her delinquent property taxes and of the tax sale were provided as required by law.

¶ 10. Patricia also testified at the September 2017 hearing on her petition. In contrast to the information in her filed and certified 2012 homestead exemption application, Patricia testified at the 2017 hearing that she had been separated from James Rush since 2009; James Rush was not on the deed to the subject property; and she and James had never filed taxes together. Patricia also described what happened when she went to file her homestead exemption application in 2012, as follows:

So when [the clerk in the tax assessor's office] said, "Are you married," I said, "Yes, ma'am, I'm married, but we are not together." She said, "What's your husband's name," and I told her. She said, "It doesn't mean anything." That's the only way his name got on there .... [S]he said, "Well, are you married," and I said, "I'm going to be honest with you. Yes, I'm married, but we are not together. He left me—abandoned me for my first cousin."

¶ 11. As noted above, Patricia did not pay the taxes necessary to redeem her property, and after the tax sale matured on August 25, 2016, R & D recorded its tax deed on October 4, 2016. In July 2017, Patricia filed her petition to set aside the tax sale.

¶ 12. After considering the pleadings, and the testimony and exhibits before it at the September 2017 hearing on Patricia's petition, the chancery court denied Patricia's petition, and confirmed the tax sale as valid. In its October 4, 2017 order,⁷ the chancery court found that Patricia signed her 2012 homestead exemption application "under penalty of perjury, that the statements made and the answers given are true and correct," and that Patricia submitted that her marital status was "married" rather than "separated." The chancery court found that "[i]t is unknown what exact information that [Patricia] gave in the tax office, but she clearly certified that she reviewed the statement and certified its contents as true and correct." The chancery court further found that it was uncontradicted that the list of delinquent taxes was published in the local newspaper in the time and manner required by law and that Patricia had been properly notified of the tax sale in accordance with the statutory procedure.

¶ 13. Finding that the tax sale was valid, the chancery court held:

Though [Patricia Rush] now

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