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Lemon v. Mississippi Transportation Commission

March 25, 1999

FRED L. LEMON, OWNER; ROGER HYATT D/B/A OCEAN SPRINGS PAWN AND JEWELRY, LESSEE; PAT TARMATO D/B/A TARMATO'S CRAWFISH, LESSEE
v.
MISSISSIPPI TRANSPORTATION COMMISSION FRED L. LEMON
v.
MISSISSIPPI TRANSPORTATION COMMISSION



The opinion of the court was delivered by: Smith, Justice

CONSOLIDATED

DATE OF JUDGMENT: 11/20/1997

TRIAL JUDGE: HON. T. LARRY WILSON

COURT FROM WHICH APPEALED: JACKSON COUNTY COURT

NATURE OF THE CASE: CIVIL - EMINENT DOMAIN

DISPOSITION: REVERSED AND REMANDED - 3/25/1999

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

STATEMENT OF THE CASE

¶1. Appellant Fred Lemon owned two lots along U.S. Highway 90 in Ocean Springs, Jackson County, Mississippi. The property is currently home to two business lessees, Ocean Springs Pawn & Jewelry and Bayou Sporting Goods. Appellee Mississippi Transportation Commission ("MTC") seized those two pieces of property in connection with a highway project to widen a portion of Highway 90 in Ocean Springs.

The Proceedings Below

¶2. On August 15, 1997, MTC filed two Complaints and Declarations of Taking against Lemon under Miss. Code Ann. §§ 65-1-301 through -347 (Supp. 1998), in the County Court of Jackson County. Pursuant to the new statute, Lemon was served with process on August 22, and the Honorable T. Larry Wilson, County Court of Jackson County, Mississippi (hereinafter "trial court") signed orders granting MTC immediate right and title to the property on August 28, 1997.

¶3. On September 19, 1997, Lemon filed two Motions to Set Aside Orders of August 28, 1997, and to Dismiss. On October 3, 1997, MTC filed two Motions for Order Declaring Public Use and to Amend Order Granting Immediate Right and Title to Property.

¶4. On November 20, 1997, the trial court issued orders denying Lemon's motions but certified the question of the statute's constitutionality for interlocutory appeal. On January 5, 1998, the trial court granted MTC's Motions for Order Declaring Public Use and to Amend Order Granting Immediate Right and Possession. On February 2, 1998, this Court granted interlocutory appeal of the November 20, 1997, orders and has now consolidated the two cases for appeal.

¶5. On interlocutory appeal, Lemon raises the following issues for review by this Court:

I. WHETHER THE NEW TAKING SCHEME CODIFIED AT MISS. CODE ANN. §§ 65-1-301 TO -347 VIOLATES THE DUE PROCESS RIGHTS OF PROPERTY OWNERS LIKE LEMON.

II. WHETHER THE NEW TAKING SCHEME CODIFIED AT MISS. CODE ANN. §§ 65-1-301 TO -347 VIOLATES ARTICLE 3, SECTION 17 OF THE MISSISSIPPI CONSTITUTION.

III. WHETHER THE NEW TAKING SCHEME CODIFIED AT MISS. CODE ANN. §§ 65-1-301 TO -347 VIOLATES THE SEPARATION OF POWERS OF MISSISSIPPI GOVERNMENT.

STANDARD OF REVIEW

¶6. When passing on questions of law, the standard of review is de novo. Mauney v. State ex rel. Moore, 707 So.2d 1093, 1095 (Miss. 1998). Acts of the Mississippi Legislature are presumed to be constitutional, and the unconstitutionality of an Act must be proved beyond a reasonable doubt before it will be declared invalid. Chamberlin v. City of Hernando, 716 So.2d 596, 601 (Miss. 1998). Finally, a due process violation under the state constitution requires the infringement of a liberty or property right. Robinson v. Stewart, 655 So.2d 866, 869 (Miss. 1995).

LEGAL ANALYSIS

¶7. The statute, Miss. Code Ann. §§ 65-1-301 to -347 (Supp. 1998), became law in July of 1997. Before examining Lemon's specific issues on interlocutory appeal, it is first necessary to discuss briefly the general procedure of condemnation and taking as outlined by this statute.

¶8. First, MTC "finds it necessary to condemn property." Miss. Code Ann. § 65-1-303(1). Next, MTC files a complaint and declaration of taking in the circuit or county court of the county where the property is located identifying the owner(s), the property, the reason for the taking, and the fair market value as determined by the transportation commission as just compensation for the taking. Miss. Code Ann. § 65-1-303(1)-(3). Further, the complaint and the declaration are to be accompanied by a deposit of a sum in the amount of the fair market value of the property. Upon the filing of the complaint, declaration and deposit, summons is then issued and served on the landowner. Id. § 65-1-303(4).

¶9. Whereupon, "title to the land or such other interest therein specified in the complaint and the declaration of taking, together with the right to immediate possession thereof, shall vest in the Mississippi Transportation Commission, and the Judge shall enter such orders in the cause as may be required to place the transportation commission in possession and title." Id. § 65-1-305(1) (emphasis added). The landowner is provided an opportunity to file an answer to the Complaint "praying only for a determination of just compensation. Id. § 65-1-309 (emphasis added). Section 65-1-309 also contemplates that the answer contain "[s]uch affirmative defenses or matters as are pertinent to the action." Id. At this point, by statute title has already vested in the MTC. See Id. §§ 65-1-305(1) & -309(1).

¶10. Section 65-1-313 provides:

"After the filing of the plat, the Judge, upon motion and ten (10) days' notice by either the transportation department or the owner shall, either in or out of term, hear and determine all issues raised by the pleading other than the issue of just compensation, including, if controverted, questions of ...


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