Howard v. Johnny Joe Gunnell D/B/A 4–s Co.

Decision Date17 May 2011
Docket NumberNo. 2009–CA–01587–COA.,2009–CA–01587–COA.
PartiesLouis HOWARD, Appellantv.Johnny Joe GUNNELL d/b/a 4–S Company, Appellee.
CourtMississippi Court of Appeals

OPINION TEXT STARTS HERE

Drew McLemore Martin, Melissa Selman Martin, Jackson, attorneys for appellant.Mark R. Holmes, attorney for appellee.Before GRIFFIS, P.J., MYERS and CARLTON, JJ.CARLTON, J., for the Court:

¶ 1. Louis Howard filed a complaint in the Chancery Court of Lincoln County seeking to void a tax sale of his property. Shortly thereafter, Howard and Johnny Joe Gunnell d/b/a 4–S Company (Gunnell), the subsequent purchaser of the property, entered into an agreed order, whereby Howard agreed to pay Gunnell $8,075.26, plus interest at eight percent, in exchange for Gunnell's interest in the property at issue. Gunnell filed a Petition to Enforce the Court's Prior Order and to Adjudicate Ownership of Real Property,” claiming that Howard failed to abide by the terms of the agreed order. The chancery court held a hearing on Gunnell's petition, and at the close of the hearing, the chancellor adjudicated Gunnell as the owner of the property in dispute and entered an order providing for such. Howard then filed a motion for reconsideration, which he titled Motion for Reconsideration, For Disposition of Motion for Interpleader, and For Other Relief.”

¶ 2. After conducting a hearing on Howard's motion for reconsideration, the chancellor denied the motion and entered an order providing for the denial. Howard then filed his notice of appeal. Then, the day after filing his notice of appeal, Howard filed a Motion for Relief from Judgment Pursuant to Mississippi Rule of Civil Procedure 60(b).” Howard's 60(b) motion was subsequently denied by the chancellor since the court was limited in its authority to broaden, amend, or modify its previous ruling while the case was on appeal. Aggrieved, Howard appeals, raising the following issues: (1) whether the chancellor's enforcement of the agreed order violated the laws applicable to tax sales; (2) whether tender of the principal amount contemplated by the agreed order constituted substantial performance of the agreement; and (3) whether the agreed order was an enforceable contract as it is both illusory and unconscionable. Finding no error, we affirm.

FACTS

¶ 3. Howard claims that he received title to a piece of real property in Lincoln County, Mississippi in 1996. On March 16, 1998, Howard executed a deed of trust in favor of Copiah Bank pledging the subject property as collateral to secure an indebtedness owed by him to the bank.1 Howard claims that he was unaware that the Lincoln County Tax Assessor continued in 1998 to assess the property in the name of State Street Bank and Trust Company, rather than in his name or in the name of Copiah Bank.2 In his complaint, Howard claims that on February 15, 2002, the Lincoln County Chancery Clerk issued a tax deed, conveying the property for delinquent 1998 taxes to Merritt Tax Service, Inc., without providing notice of the tax sale to him or Copiah Bank. Howard alleges that shortly thereafter, Merritt Tax Service, Inc. conveyed the property to Gunnell. Howard asserts that after learning of the tax sale on March 31, 2005, he filed a complaint, alleging that the sale of his property was void since he failed to receive proper notice that a tax sale of his property was to occur.

¶ 4. Gunnell filed an answer and counterclaim to Howard's complaint, asserting that the subject property was sold for delinquent ad valorem taxes to Merritt Tax Service, Inc. on August 30, 1999, and that he subsequently purchased the property from Merritt Tax Service, Inc. on March 19, 2002. Gunnell also sought an order of the court which would preclude Howard and all other persons from questioning the validity of the tax sale of the property or, in the alternative, requesting that a lien be enforced against the property. Gunnell then filed an amended answer and counterclaim, adding an additional claim which alleged that the property was sold for delinquent ad valorem taxes to State Street Bank & Trust on August 25, 2003, and was then purchased by Gunnell. Howard responded to Gunnell's claims by asserting that Gunnell was not entitled to the relief sought in his amended counterclaim.

¶ 5. Howard and Gunnell signed an agreed order which was approved by the chancery court and entered on December 10, 2007. The agreed order provided for the following:

[T]he parties having appeared through counsel and having announced their agreement herewith, the Court finds the announced agreement and resolution to be fair, adequate, and reasonable, and having considered the premises, finds the agreement of the parties should be incorporated into an Agreed Order and makes the following findings:

....

2. At all relevant times, Louis Howard was the owner of the following described real property:

[Description of the property at issue]

3. Defendant, Johnny Joe Gunnell, D/B/A 4–S Company has acquired, through various tax sales conducted by the Tax Assessor/Collector for Lincoln County, Mississippi, an interest in the above described property.

4. As of October 1, 2007, Defendant, Johnny Joe Gunnell, D/B/A 4–S Company, is entitled to reimbursement for funds expended and interest thereon in the total amount of $8,075.26. Defendant is awarded a judgment in the amount of $8,075.26 to accrue interest from the date of this Order at the legal rate of 8% until paid.

5. In the event Plaintiff, Louis Howard, tenders a lump-sum payment in the sum of $8,075.26 as of October 1, 2007, together with interest accrued thereon at the rate of 8% on or before October 1, 2008, then any and all interest acquired by Johnny Joe Gunnell, D/B/A 4–S Company shall be null and void and any and all documents of title shall be stricken as a cloud upon the title of Louis Howard.

6. However, in the event Louis Howard fails to pay the sum of $8,075.26 together with accrued interest at the rate of 8% until paid on or before October 1, 2008, then any and all interest of Louis Howard in and to the above-described property shall be null and void and Johnny Joe Gunnell, D/B/A 4–S Company shall be adjudicated the owner to the following described property:

[Description of the property at issue]

7. Johnny Joe Gunnell shall within ten (10) days of this Order prepare and deliver to his attorney of record, Honorable Mark R. Holmes, a deed conveying the above[-]described property to Louis Howard. In the event the payment set forth in paragraph 5 above is tendered to Johnny Joe Gunnell D/B/A 4–S Company on or before October 1, 2008, then counsel for Johnny Joe Gunnell is authorized, ordered, and directed to deliver to counsel for Louis Howard, Honorable Wayne Dowdy, the deed conveying the above[-]described property.

8. Louis Howard shall within ten (10) days of this Order prepare and deliver to his attorney of record, Honorable Wayne Dowdy, a deed conveying the above described property to Johnny Joe Gunnell D/B/A 4–S Company. In the event the payment set forth in paragraph 5 above is not tendered to Johnny Joe Gunnell D/B/A 4–S Company on or before October 1, 2008, then counsel for Louis Howard is authorized, ordered, and directed to deliver to counsel for Johnny Joe Gunnell D/B/A 4–S Company, Honorable Mark R. Holmes, the deed conveying the above[-]described property.

9. The judgment set forth in paragraph 4 above shall constitute a lien described upon the property described herein and the Chancery Clerk of Lincoln County, Mississippi, is authorized, ordered, and directed to record a copy of this Agreed Order on the land records of Lincoln County, Mississippi, reflecting the lien of Johnny Joe Gunnell D/B/A 4–S Company upon the property described in paragraph 2 above.

....

¶ 6. On or about October 1, 2008,3 Howard tendered funds in the amount of $8,075.26 to Gunnell, but no payment of interest was provided. On or about October 7, 2008, Gunnell's counsel returned the tendered funds to Howard's counsel with a letter that provided an explanation of the amounts due in interest. In the letter, Gunnell's counsel advised Howard that he owed Gunnell the following: $646.02, which he claimed was eight percent of $8,075.26; $872.35, for the amount Gunnell paid for the 2005 taxes on the property; and $26.17, the amount in interest on the $872.35. The total amount sought by Gunnell, as explained in his letter to Howard, was $9,619.80. On January 7, 2009, Howard tendered a certified check in the amount of $8,075.26 to the Chancery Court of Lincoln County.

¶ 7. After Howard failed to comply with the agreed order, Gunnell filed a petition to adjudicate ownership of the property in dispute on January 20, 2009. Howard answered the petition asserting that he had attempted to tender all sums due to Gunnell, but that Gunnell refused to accept Howard's tender of payment. After a hearing on the petition, the chancellor entered an order adjudicating Gunnell as the owner of the property in dispute. On July 21, 2009, Howard filed a motion for reconsideration. After conducting a hearing on Howard's motion, the chancellor entered an order denying the motion. On September 29, 2009, Howard filed a petition dismissing his current counsel of record, and on October 1, 2009, through new counsel, filed a notice of appeal with the Lincoln County Chancery Court. On October 2, 2009, Howard filed a 60(b) motion, which was subsequently denied by the chancellor. Howard now appeals.

STANDARD OF REVIEW

¶ 8. This Court applies a well-settled standard of review when considering a chancellor's decision. SKL Inv., Inc. v. Am. Gen. Fin., Inc., 22 So.3d 1247, 1249 (¶ 4) (Miss.Ct.App.2009) (citing Stokes v. Campbell, 794 So.2d 1045, 1047–48 (¶ 9) (Miss.Ct.App.2001)). We will not disturb a chancellor's findings unless they are manifestly wrong, clearly erroneous, or the chancellor applied an erroneous legal standard.” Id. “The standard of review employed by this Court for review of a chancellor's decision is abuse of...

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