Lupo v. STATE, DEPT. OF TRANSP., No. 1999-CA-00470-SCT.

• Decision Date: 09 November 2000
• Docket Number: No. 1999-CA-00470-SCT.
• Citation: 771 So.2d 358
• Parties: H.H. LUPO, Wallace R. Gunn, Milton A. Schlesinger, Lora Randolph McClure, Evelyn McClure, Wayne L. McClure and Worthy McClure v. STATE of Mississippi, DEPARTMENT OF TRANSPORTATION, HUB Investment Company, A Mississippi Corporation, Ida Mosely, Molly Seal, Hattiesburg Handle & Lumber Co., David Lumford, Kelly S. Conn, Elijah Jones, and Any and All Persons Unknown Having or Claiming Any Legal or Equitable Interest or Title in the Lands Described in Plaintiff's Complaint.
• Court: Mississippi Supreme Court

771 So.2d 358

H.H. LUPO, Wallace R. Gunn, Milton A. Schlesinger, Lora Randolph McClure, Evelyn McClure, Wayne L. McClure and Worthy McClure v. STATE of Mississippi, DEPARTMENT OF TRANSPORTATION, HUB Investment Company, A Mississippi Corporation, Ida Mosely, Molly Seal, Hattiesburg Handle & Lumber Co., David Lumford, Kelly S. Conn, Elijah Jones, and Any and All Persons Unknown Having or Claiming Any Legal or Equitable Interest or Title in the Lands Described in Plaintiff's Complaint.

No. 1999-CA-00470-SCT.

Supreme Court of Mississippi.

November 9, 2000.

Wallace R. Gunn, Milton A. Schlesinger, Hattiesburg, Attorneys for Appellants.

Paul Richard Lambert, Hattiesburg, Roy Merritt Tipton, Jackson, G. Martin Warren, Jr., Gulfport, Attorneys for Appellees.

BEFORE PRATHER, C.J., SMITH AND DIAZ, JJ.

DIAZ, Justice, for the Court:

¶ 1. H.H. Lupo, Wallace R. Gunn, Milton A. Schlesinger, Lora Randolph McClure, Evelyn McClure, Wayne L. McClure, and Worthy McClure, collectively referred to as Lupo, appeal the final judgment of the Forrest County Chancery Court in this suit to confirm title which held that Lupo had a fee simple title to the real property in question subject to an easement held by the Mississippi State Department of Transportation.¹ The lower court further held that Lupo did not sustain any compensable damages flowing from the MDOT's use of their recorded easement.

¶ 2. In the interest of clarity, this Court has restated Lupo's assignments of error and consolidated those which raise similar issues. Lupo appeals to this Court requesting consideration of the following alleged errors:

I. WHETHER THE INTEREST IN THE SUBJECT PROPERTY ACQUIRED BY THE MDOT IS EXEMPT FROM TAXATION

II. WHETHER THE CHANCELLOR ERRED IN FINDING THAT THE MDOT WAS ENTITLED TO FULL USE OF THEIR RIGHT-OF-WAY INTEREST

III. WHETHER THE CHANCELLOR ERRED IN HOLDING THAT LUPO DID NOT SUSTAIN COMPENSABLE DAMAGES RESULTING FROM THE MDOT'S USE OF ITS RIGHT-OF-WAY INTEREST

Finding these issues to be without merit, we affirm.

FACTS

¶ 3. The controversy surrounding this particular parcel of land² and its history can be traced back to a tax sale in Forrest County prior to our Country's involvement in the Second World War. The Forrest County Board of Supervisors prepared a fiscal year budget for October 1, 1939, through September 30, 1940, based in part upon projected land tax returns for property situated within the borders of Forrest County. Pursuant to the statutory predecessors of Miss.Code Ann. § 27-35-1 (Supp.2000), a tax lien attached to every piece of real property in Forrest County on January 1, 1940. On July 17, 1940, the Forrest County Board of Supervisors published a notice to the taxpayers of Forrest County that the assessment rolls were ready for inspection should someone have an objection to the amount levied on their property. R. Lee Edmonson failed to pay the assessed and subsequently delinquent taxes from 1940 on his property.

¶ 4. Lupo's predecessor in title, D. Seward, purchased the subject real property at a November 17, 1941, tax sale. The property Seward purchased was sold because Edmonson, the previous owner, still had delinquent 1940 taxes assessed on the property. After the tax lien attached on January 1, 1940, but before the tax sale on November 17, 1941, the MDOT³ purchased a right-of-way interest in the subject real property from Edmonson. The record reflects that the transaction took place during the early part of 1940, and soon thereafter the MDOT began construction on a highway across the property within the legal rights of their interest. Some of the instruments used in the sale of the property and right-of-way interest were titled "warranty deeds." All of the instruments were duly filed and recorded in 1940. The right of redemption by the owner from the tax sale expired on November 17, 1943, and Seward's descendants sold the property to Harold H. Lupo in 1973, who has since owned the property along with the other appellants.

¶ 5. The property was removed from the tax rolls after the easement was granted and recorded and the tax sale became final. In 1973, Lupo approached the chancery clerk's office and had the property placed back on the tax roll. Lupo has diligently paid the taxes assessed upon the property each year. During the intermittent thirty or more years, no taxes were paid on the property.

¶ 6. On March 1, 1996, Lupo filed a complaint to confirm and quiet title to the land and recover damages they suffered from unauthorized use of the land, specifically the construction of a highway and "cloverleaf" highway interchange across the property. The MDOT was the only interested party to file an answer to the complaint. A default judgment was entered against the other named defendants who failed to respond to the suit. On February 28, 1997, Lupo moved for a partial summary judgment requesting that the trial court confirm fee simple title in them and extinguish the right-of-way easement held by the MDOT. The MDOT filed the appropriate responses to Lupo's motion. On March 12, 1998, the chancellor entered a partial summary judgment in favor of Lupo confirming their fee simple title subject to the MDOT's continued use of the accrued right-of-way interest.

¶ 7. On November 25, 1998, the chancellor rendered his final judgment. The chancellor held that as a matter of law Lupo did not sustain any damages from the use of the property by MDOT since MDOT used the property in accordance with its easement right. On December 16, 1998, Lupo initiated this appeal.

STANDARD OF REVIEW

¶ 8. When reviewing decisions rendered by our chancery courts we must remember that our "[c]hancellors are vested with broad discretion, and this Court will not disturb the chancellor's findings unless the court's actions were manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard." Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997); Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss.1994).

¶ 9. An appeal of a decision to grant summary judgment requires this Court to review the case de novo. Crain v. Cleveland Lodge 1532, 641 So.2d 1186, 1188 (Miss.1994). Furthermore, summary judgment is a powerful tool which "should be used wisely and sparingly." Martin v. Simmons, 571 So.2d 254, 258 (Miss.1990). It should only be granted when "there is no genuine issue as to any material fact." M.R.C.P. 56(c). In addition, all evidentiary matters are viewed in a light most favorable to the non-movant. Id.; Morgan v. City of Ruleville, 627 So.2d 275, 277 (Miss.1993).

LEGAL ANALYSIS

I. WHETHER THE INTEREST IN THE SUBJECT PROPERTY ACQUIRED BY THE MDOT IS EXEMPT FROM TAXATION

¶ 10. Lupo argues that the ad valorem taxes for the fiscal year October 1, 1939-September 30, 1940 became a lien as of January 1, 1940 and attached to all lands in Forrest County despite ownership or easement rights, including those rights obtained by State entities. Lupo believes that if an interest is not separately assessed, sale of the land for unpaid taxes carries with it all interests above and below the surface and extinguishes any and all rights attached. Lupo therefore asserts that since the lien retroactively attached to the property, the MDOT transaction was subject to and invalidated by that tax lien. We disagree.

¶ 11. Tax liens attach on a particular date each year as set by statute. Vicksburg Waterworks Co. v. Vicksburg Water Supply Co., 80 Miss. 68, 72, 31 So. 535, 535 (1902). Furthermore, even though the amount of liability may be undetermined when title to the property is transferred, by law the lien relates back to the fixed statutory date. Vicksburg Waterworks Co., 80 Miss. at 72, 31 So. at 535. The validity of a tax sale is determined by the statutory law in effect during the time the sale was made. Board of Trustees of Monroe County Bd. of Educ. v. Rye, 521 So.2d 900, 905 (Miss.1988).

¶ 12. Lupo's "timeline" argument was made to this Court in City of Laurel v. Weems and found meritless. This Court explained Weems's contention saying

The chief contention of appellee is that by virtue of section 4255, Code of 1906, the lien for taxes attached to the property on the 1st day of February, 1906, while the property was the subject of private ownership and liable to taxes, and that when the taxes were ascertained and became due it related back to the 1st day of February, 1906, and did not abate when the city purchased the same.

City of Laurel v. Weems, 100 Miss. 335, 340, 56 So. 451, 452 (1911). In addressing this argument, the Court concisely stated that "[I]t is not to be supposed that the State ever intended to tax the property of a governmental agent of its own." City of Laurel, 100 Miss. at 340, 56 So. at 452-3. Quoting Cooley on Taxation, (3rd Ed.) p. 263, the Court also noted that

Before noticing the exemptions expressly made by law, it will be convenient to speak of some which rest upon implication. Some things are always presumptively exempted from the operation of general tax laws, because it is reasonable to suppose they were not within the intent of the Legislature in adopting them. Such is the case with property belonging to the state and its municipalities, and which is held by them for governmental purposes.

Id. at 453.

¶ 13. Lupo relies heavily on Equity Servs. Co. v. Mississippi State Highway Comm'n, 192 So.2d 431, 432 (Miss.1966) believing that it ostensibly overrules City of Laurel. The cases are easily distinguishable. In Equity Servs., the property owner executed the warranty deed to the State Highway Commission after the property was sold for delinquent taxes, and the State Highway Commission therefore only acquired a right of possession and redemption instead of legal title. In City of Laurel as well as in the case at bar, the instruments in question were executed prior to the tax sale. City of Laurel, 56 So. at 452.

¶ 14. Although non-binding, the Mississippi Attorney General opined that ...