BOONEVILLE COLLISION REPAIR, INC.
CITY OF BOONEVILLE, MISSISSIPPI, A MUNICIPALITY OF THE STATE OF MISSISSIPPI AND SHEILA G. BOLDEN
DATE OF JUDGMENT: 05/01/2013.
COURT FROM WHICH APPEALED: PRENTISS COUNTY CHANCERY COURT. TRIAL JUDGE: HON. JACQUELINE ESTES MASK.
FOR APPELLANT: B. BRONSON TABLER.
FOR APPELLEES: MITCHELL O. DRISKELL, III.
BEFORE WALLER, C.J., CHANDLER AND KING, JJ. PIERCE AND COLEMAN, JJ., JOIN THIS OPINION.
NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE
¶1. When Booneville Collision Repair (BCR) unknowingly purchased land tat had been sold for delinquent municipal taxes, it redeemed the land and sued Prentiss County, the City of Booneville, and the municipal tax collector, Sheila Bolden, for the damages incurred from the failure to provide notice of the tax sales. BCR argued that it had not received notice because Bolden never filed with the chancery clerk the list of properties sold for taxes as required by Mississippi Code Section 27-41-79. Miss. Code Ann. § 27-41-79 (Rev. 2010). BCR alleged a negligence claim under the Mississippi Tort Claims Act (MTCA) and also argued that liability existed under Section 27-41-79, which provides that " [i]f the tax collector or clerk shall fail to perform the duties herein prescribed, he shall be liable to the party injured by such default . . . on his official bond for the actual damage sustained." Id. The chancellor granted the defendants' motions to dismiss for failure to state a claim. See M.R.C.P. 12(b)(6).
¶2. BCR appeals the dismissal of its claims against the City and Bolden, asserting that they may be found liable under the MTCA and under Section 27-41-79. We find that an action under Section 27-41-79 is a separate statutory action and not a tort action subject to the MTCA, and that BCR stated a claim under the statute. We further find that, while BCR's negligence claim is subject to the MTCA, no immunity exists. Therefore, we reverse the grant of the motions to dismiss and remand for further proceedings.
¶3. According to BCR's second amended complaint, BCR is a corporation with its principal place of business and principal offices located in Mississippi. Shortly before April 1, 2011, BCR had a title abstract
performed for a parcel of land it sought to purchase in Booneville to identify any liens, outstanding taxes, or clouds on the title. Through the title search, BCR identified approximately $65,000 in liens, clouds on the title, and outstanding taxes under PPIN 1859:
2008 City of Booneville Taxes; PPIN: 1859
2009 City of Booneville Taxes; PPIN: 1859
2010 City of Booneville Taxes; PPIN: 1859
2009 Prentiss County Taxes; PPIN: 1859
2010 Prentiss County Taxes; PPIN: 1859
2009 Personal Property Taxes
Judgment in favor of Unifirst Corp., Inc.
Lien in favor of MS State Tax Commission
Lien in favor of MS Employment Sec. Commission
On April 1, 2011, BCR purchased the property from Fortis Plastics, LLC (Fortis), which had acquired the property in 2004. As a condition of closing, BCR demanded that Fortis pay all known outstanding taxes and judgments, and Fortis complied.
¶4. But, unknown to BCR, unpaid property taxes remained. On June 22, 2011, the City mailed BCR two (2) Notices to Lienors of Lands Sold for 2008 Delinquent Taxes. One of the notices revealed that a portion of the property had been designated for taxation purposes as PPIN 18886. This notice also showed that parcel 18886 had been sold on August 31, 2009, to Pine Hills Lands Company, Inc., for $267.19 in taxes due in 2008, and that the property could be redeemed through June 30, 2011. The second notice showed that another portion of the property had been designated as PPIN 18887 and was sold on August 31, 2009, to James L. Shipman for $5,154.27 in taxes due in 2008, and that the property could be redeemed through June 30, 2011.
¶5. When BCR learned of the unpaid 2008 taxes, it made additional inquiries to the City regarding the two newly discovered PPIN numbers. These inquiries revealed that the 2009 taxes for PPIN numbers 18886 and 18887 were also due, in amounts of $302.55 and $7,782.41, respectively, and that that PPIN 18886 had been sold to James L. Shipman for $302.55, and PPIN 18887 had been sold to ACC Tax Sale Properties, LLC, for $7,782.41. BCR further alleged that, as of August 22, 2011, the tax records for the City and Prentiss County showed the following:
(1) The City's tax records for PPIN 18886 for the years 2008-2009 showed that an exemption, good through [December] 2011, applied to the parcel.
(2) The City's tax records for PPIN 18887 for the years 2008-2009 showed that an exemption, good through [December] 2016, applied to the parcel.
(3) PPIN 900017 was created to replace PPIN 18886. It encompassed the 2008-09 tax years with a balance due of $3,475.67 rather than the previously identified amounts due of $262.14 and $302.55.
(4) PPIN 900018 was created to replace PPIN 18887. It encompassed the 2008-09 tax years with a balance due of $3,348.32 rather than the previously identified amounts due of $5,154.27 and $7,782.41.
(5) The Prentiss County Tax Records have " no such landroll receipt record on file" for either PPIN 18886 or 18887 for the tax year of 2009.
¶6. On August 22, 2011, BCR filed a petition for a preliminary injunction and temporary restraining order to prevent the issuance of tax deeds and petition to confirm and quiet title. The chancery court
denied injunctive relief. To prevent issuance of tax deeds for failure to pay the outstanding taxes, BCR redeemed the property by paying $5,571.09 to satisfy the 2008 taxes, and $9,394.67 to satisfy the 2009 taxes, including interest and penalties. Subsequently, BCR filed an amended petition to quiet title and a second amended petition to quiet and confirm title and for general damages and other relief against Fortis, the City, Bolden, and Prentiss County. The second amended petition alleged that BCR had provided the City with notice of claim under the MTCA.
¶7. BCR alleged that the PPIN numbers that reflected the outstanding taxes had not been made a part of the public record or cross-referenced with PPIN 1859. BCR further alleged that, because the City and/or Prentiss County negligently failed to provide public notice of the 2008 and 2009 tax sales, BCR had been unable to discover those tax sales despite its diligent efforts to discover all liens upon the property in anticipation of closing. BCR argued that, if the City had made the PPIN references and unpaid taxes a part of the public record, then BCR would have required Fortis to pay the taxes as a condition of closing. Because the City never made this information available, BCR was forced to pay the outstanding taxes to avoid the issuance of tax deeds. BCR prayed for a judgment in the amount of the outstanding taxes, plus interest, and a judgment quieting and confirming title in BCR in fee simple.
¶8. The City and Bolden filed motions to dismiss under Mississippi Rule of Civil Procedure 12(b)(6). They argued that BCR's claims were subject to the MTCA, which provides immunity for claims that arise " out of the assessment or collection of any tax or fee." Miss. Code Ann. § 11-46-9(1)(i) (Rev. 2012). Bolden argued that she was in the course and scope of her employment at all times and that she was entitled to MTCA immunity. At the hearing on the motions to dismiss, BCR argued that, because Bolden had not filed the tax-sale list as required by Section 27-41-79, Bolden and the City were subject to liability under Mississippi Code Section 27-41-79, which provides that " [i]f the tax collector or clerk shall fail to perform the duties herein prescribed, he shall be liable to the party injured by such default . . . on his official bond for the actual damage sustained." Miss. Code Ann. § 27-41-79 (Rev. 2010). The chancery court granted the motions to dismiss, holding that (1) under Boyle v. Matthews, 196 Miss. 833, 18 So.2d 156 (1944), the City and the tax collector owed BCR no duty under Section 27-41-79, and (2) the City and the tax collector are immune from suit on BCR's negligence claim because it arises from the assessment or collection of taxes. The chancery court entered a final judgment as to the City and Bolden under Mississippi Rule of Civil Procedure 54(b). From that ruling, BCR now appeals.
STANDARD OF REVIEW
¶9. This Court reviews the grant or denial of a motion to dismiss under a de novo standard. Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (Miss. 2006). We take the allegations in the plaintiff's complaint as true, and the motion should be denied " unless it appears beyond doubt that the plaintiff ...