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Alexander v. Pitts

Court of Appeals of Mississippi

November 14, 2017

DELBERT RAY ALEXANDER APPELLANT
v.
BILLY JOE PITTS, JR. APPELLEE

          DATE OF JUDGMENT: 02/09/2016

         COURT FROM WHICH APPEALED: JONES COUNTY CHANCERY COURT, SECOND JUDICIAL DISTRICT HON. FRANKLIN C. MCKENZIE JR. TRIAL JUDGE

          ATTORNEY FOR APPELLANT: MICHAEL DUANE MITCHELL.

          ATTORNEY FOR APPELLEE: JOHN ANTHONY PIAZZA.

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

          GREENLEE, J.

         ¶1. Billy Joe Pitts Jr. purchased real property from a person who had acquired it through a tax sale and successfully quieted title to the property. Pitts and his neighbor, Delbert Ray Alexander, subsequently had a dispute over their boundary line. Pitts and Alexander litigated the boundary-line dispute for years. The chancellor ultimately held that to the extent that Alexander had raised an adverse-possession claim, it lapsed due to the tax sale. On appeal, Alexander claims he did not have proper notice of the tax sale or the action quieting title to the property. Alexander's collateral attack on those proceedings is unrelated to the litigation that led to this appeal - an adverse-possession claim that he never properly alleged in a complaint - and he attempts to raise it for the first time on appeal. Therefore, we affirm the chancellor's judgment. As we grant Pitts's motion for attorney's fees on appeal, we remand the case so the chancellor can determine the amount of attorney's fees and costs payable to Pitts for defending this appeal.

         FACTS AND PROCEEDINGS BELOW

         ¶2. This litigation between adjoining landowners concerns a portion of the approximately six-acre property that Sherry Lowe bought at a 2001 tax sale. In March 2010, Lowe got a judgment quieting and confirming her title to the property. Lowe later sold that property and other land to Pitts.

         ¶3. In September 2011, Alexander filed a complaint for a preliminary injunction to prevent Pitts from trespassing over a "common boundary [that] ha[d] been separated by a fence and shrubs for more than ten . . . years." Alexander conceded that the property had been surveyed, and the fence was "not on the forty line." Alexander also alleged that Pitts had removed some of Alexander's personal property from the "disputed land."

         ¶4. Pitts moved to dismiss Alexander's complaint. Citing Mississippi Code Annotated section 27-45-23 (Rev. 2010)[1] and Massey v. Lewis, 21 So.3d 644, 648 (¶¶11-12) (Miss. Ct. App. 2008) (parties with an adverse-possession claim relinquished it when they allowed the property at issue to be sold along with adjoining property at a tax sale), Pitts argued that any claim Alexander had to the disputed property had lapsed due to the tax sale. Pitts also noted that he and Alexander had agreed in advance of a survey to abide by its results, and the survey showed that the property at issue belonged to Pitts.[2] However, Pitts admitted that he had removed some of the abandoned castoffs that Alexander had dumped on the land.[3]

         ¶5. The chancellor conducted a hearing on October 3, 2011. The record does not include a transcript of it or any other hearing in the case. The next day, the chancellor entered an order denying Alexander's request for a preliminary injunction "at this time." The chancellor gave Alexander thirty days to remove his personal property from the land and amend his complaint "to reflect his claim of ownership through adverse possession of [the] property in question . . . ."

         ¶6. As of July 2012, Alexander had not filed an amended complaint; so Pitts filed another motion to dismiss Alexander's initial complaint. Nearly a year later, Alexander finally filed an amended complaint asserting that he had acquired the land through adverse possession.[4]Pitts moved to dismiss it because it was untimely, Alexander's interest in the land had lapsed due to the tax sale, and Alexander should have joined Lowe's action to quiet and confirm her title to the property.

         ¶7. In November 2013, the parties convened for a hearing. As mentioned above, the record does not contain any transcripts. The hearing resulted in Pitts's attorney's preparation of a proposed stipulation of facts and order. Alexander's attorney had not signed it as of June 2014. In November 2015, Pitts's attorney filed a motion for a trial setting. Within it, Pitts's attorney stated that "Alexander, through his counsel, . . . announced to [the chancellor] that he ...


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