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Vanaman v. American Pride Properties, LLC

Court of Appeals of Mississippi

December 18, 2018

JOHN FREDERICK VANAMAN JR. APPELLANT
v.
AMERICAN PRIDE PROPERTIES, LLC APPELLEE

          DATE OF JUDGMENT: 02/15/2017

          HARRISON COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT HON. CARTER O. BISE JUDGE

          ATTORNEY FOR APPELLANT: MICHAEL B. HOLLEMAN

          ATTORNEY FOR APPELLEE: LEWIE G. "SKIP" NEGROTTO IV

          BEFORE IRVING, P.J., CARLTON AND FAIR, JJ.

          IRVING, P.J.

         ¶1. The Harrison County Chancery Clerk entered a default judgment in favor of American Pride Properties LLC (American Pride), against John Frederick Vanaman Jr. in American Pride's lawsuit to quiet and confirm title to property owned by Vanaman but acquired by American Pride in a tax sale. Vanaman filed a motion to vacate and set aside the entry of default and default judgment, which the court denied. Vanaman now appeals, asserting two issues: (1) the court erred in finding that he was properly served with the summons and complaint in American Pride's lawsuit; and (2) the court erred in finding that he failed to satisfy the three-part test set forth in Rule 55(c) of the Mississippi Rules of Civil Procedure to set aside the default judgment. Because we agree with Vanaman's second argument, we reverse and remand this case to the chancery court for proceedings consistent with this opinion.

         FACTS

         ¶2. In 1984, Vanaman and his mother purchased a parcel of property (referred to throughout this opinion as the "Wortham Road property"). They operated a gas station and grocery store on the Wortham Road property. On October 6, 2001, Vanaman's mother quitclaimed her interest to Vanaman. The quitclaim deed listed Vanaman's mailing address as 20440 Armes Road, Saucier, Mississippi. Vanaman maintains that at the time the quitclaim deed was executed, he was temporarily living in a trailer at the Armes Road address while building a house at 22311 L. Lizana Road, Saucier, Mississippi. Vanaman purports that he moved into the house at L. Lizana Road in late 2006 or early 2007, and that he promptly filed a change of address form with the United States Postal Service to reflect his new address.

         ¶3. Sometime later, Vanaman fell behind in making his tax payments on the Wortham Road property. The Wortham Road property was sold three times: in 2009 for 2008 taxes, in 2010 for 2009 taxes, and in 2013 for 2012 taxes. Vanaman redeemed his property from the 2009 and 2010 tax sales but not the 2013 tax sale. TLHMS, LLC/RAI bought the property on August 26, 2013, when it was sold for nonpayment of the 2012 taxes.

         ¶4. On April 8, 2015, a notice of forfeiture mailed to Vanaman at 20440 Armes Road was delivered to that address. A return receipt included in the record bears Vanaman's handwritten signature, and in the space for the signatory's address, the following text is handwritten: 22311 L. Lizana Road.

         ¶5. A second notice of forfeiture was mailed to Vanaman at 20440 Armes Road on June 12, 2015, but it was returned not deliverable as addressed. The notice of sale of property for delinquent taxes that was published in the Sun Herald on July 10, 2015, listed the Wortham Road property. It showed that the property was owned by Vanaman and listed his address as 20440 Armes Road. On August 12, 2015, a deputy sheriff of Harrison County attempted to serve Vanaman with notice of the forfeiture at 20440 Armes Road, but was unable to locate him at that address. The deputy sheriff posted notice on the door at that location. On September 28, 2015, the chancery clerk executed an affidavit attesting that a diligent search and inquiry was made in an effort to ascertain Vanaman's address by use of the phone directory, internet directory, land deed records, and Harrison County tax roll, but that Vanaman's address was unable to be ascertained.

         ¶6. In October 2015, the chancery clerk conveyed the Wortham Road property to TLHMS, LLC/RAI. TLHMS, LLC/RAI then conveyed the property to American Pride via a quitclaim deed and assignment, dated October 30, 2015, and recorded November 30, 2015.

         ¶7. On January 20, 2016, American Pride filed a complaint to quiet and confirm tax title. The record contains a "Proof of Service - Summons" signed by a process server, warranting that Vanaman was served on January 28, 2016. Vanaman failed to answer American Pride's complaint. Therefore, on April 4, 2016, the Harrison County Chancery Court Clerk made an entry of default with respect to American Pride's lawsuit against Vanaman. The clerk's entry of default was twice amended: once on April 8, 2016, and again on May 11, 2016. On May 16, 2016, the court entered a judgment confirming and quieting tax title in American Pride. Vanaman filed a motion to set aside the entry of default and entry of default judgment on November 2, 2016.

         ¶8. The chancery court conducted a hearing on November 16, 2016, wherein the following conversation took place during direct examination of Vanaman:

Q. Now, in January of 2016, did a man come to you with some papers?
A. No, sir. Not that I remember.
Q. Did a man serve you with papers?
A. Seems like he did. Somebody gave me some papers. Exactly ...

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