OF JUDGMENT: 02/09/2016
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.
GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
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.
AND PROCEEDINGS BELOW
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.
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."
Pitts moved to dismiss Alexander's complaint. Citing
Mississippi Code Annotated section 27-45-23 (Rev.
2010) 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. However, Pitts admitted that he had
removed some of the abandoned castoffs that Alexander had
dumped on the land.
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 . . . ."
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.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.
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 ...