REPLY BRIEF OF THE APPELLANTS

Transcription

1 E-Filed Document May :23: CA SCT Pages: 15 IN THE SUPREME COURT OF MISSISSIPPI NO CA DAVID NEIL HARRIS, SR. AND VECIE MICHELE HARRIS APPELLANTS v. STATE OF MISSISSIPPI, ET AL. APPELLEES CONSOLIDATED WITH: NO CA CLYDE H. GUNN, III APPELLANTS v. STATE OF MISSISSIPPI, ET AL. APPELLEES REPLY BRIEF OF THE APPELLANTS SUBMITTED BY: David N. Harris, Jr. (MSB#100790) David N. Harris, Jr. Law Firm, PLLC P.O. Box 336 Gulfport, MS Phone: (228) A. Scott Cumbest (MSB#7944) Cumbest, Cumbest, Hunter and McCormick Post Office Drawer 1287 Pascagoula, MS Phone:

2 IN THE SUPREME COURT OF MISSISSIPPI NO CA DAVID NEIL HARRIS, SR. AND VECIE MICHELE HARRIS APPELLANTS v. STATE OF MISSISSIPPI, ET AL. APPELLEES CONSOLIDATED WITH: NO CA CLYDE H. GUNN, III APPELLANTS v. STATE OF MISSISSIPPI, ET AL. APPELLEES REPLY BRIEF OF THE APPELLANTS CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal. Honorable Hollis McGehee Special Chancellor, Jackson County P.O. Box 1574, Boutte, LA Trial Judge (Currently Inactive) David N. Harris, Jr. (MSB#100790) DAVID N. HARRIS, JR. LAW FIRM, P.L.L.C. P.O. Box 336, Gulfport, MS ii

3 A. Scott Cumbest (MSB#7944) CUMBEST, CUMBEST, HUNTER AND MCCORMICK Post Office Drawer 1287, Pascagoula, MS Attorneys of record for the Appellants David Neil Harris, Sr. and Vecie Michele Harris John G. Corlew (MSB#6526) CORLEW MUNFORD & SMITH PLLC 4450 Old Canton Road, Suite 111 (39211) Post Office Box 16807, Jackson, MS Attorneys of record for the Appellant Clyde H. Gunn, III W. Trey Jones, Esq. BRUNINI GRANTHAM GROWER & HEWES Post Office Drawer 119, Jackson, MS Robert W. Wilkinson, Esq. Amy Lassitter St. Pé, Esq. DOGAN & WILKINSON, PLLC Post Office Box 1618, Pascagoula, MS Lee D. Thames, Jr., Esq. Special Assistant Attorney General Office of Attorney General P.O. Box 220, Jackson, MS Hugh D. Keating, Esq. JéNell B. Blum, Esq. DUKES, DUKES, KEATING & FANECA, P.A. Post Office Drawer W, Gulfport, MS David Crane, Esq Broadmoor Place, Gulfport, MS Attorneys of record for Appellees iii

4 Secretary of State, Appellee Jackson County, Mississippi, Appellee City of Ocean Springs, Mississippi, Appellee D. Neil Harris, Sr. And Vecie Michele Harris, Appellants Clyde H. Gunn, III, Appellant So certified, this the 31 st day of May, By: s/ David N. Harris, Jr. DAVID N. HARRIS, JR. (MSB#100790) iv

5 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS. ii TABLE OF CONTENTS...v TABLE OF AUTHORITIES...vi INCORPORATION OF REPLIES 1 REPLY TO BRIEF OF SECRETARY OF STATE....1 REPLY TO BRIEFS OF OCEAN SPRINGS AND JACKSON COUNTY....5 CONCLUSION.7 CERTIFICATE OF SERVICE..9 v

6 TABLE OF AUTHORITIES Cases: Davis v. Clement, 468 So.2d 58, 63 (Miss.1985)...6 In re Whitaker Constr. Co., Inc., 411 F.3d 197, 205 (C.A. 5 (La.) 2005) 3, 4 Nollan v. Cal. Coastal Com, 483 U.S. 825, 831 (1987) 5 Pitalo v. GPCHP-GP, Inc., 933 So.2d 927, 929 (Miss. 2006)..2 Secretary of State of the State of Mississippi and City of Ocean Springs, Mississippi v. Clyde H. Gunn III, Neil Harris, Sr. and Vecie Michele Harris, 75 So. 3d 1015 (Miss. 2011).6, 7 Snowden & McSweeney Co. v. Hanley, 16 So.2d 24, 25 (1943).6 Stockstill v. State, 854 So.2d 1017, (Miss. 2003).. 3 Statutes: Public Trust Tidelands Act of 1989 (Miss.Code Ann et. seq).... 1, 2, 4 Miss. Code Ann Fifth Amendment, United States Constitution....5 Fourteenth Amendment, United States Constitution...5 vi

7 INCORPORATION OF REPLIES Incorporation of Reply of Appellant, Clyde H. Gunn, III. In an effort to promote judicial economy and to eliminate duplicative briefing, these Appellants incorporate the separate brief filed on behalf of Appellant Clyde H. Gunn, III as is set forth herein in full words and figures. Incorporation of Brief of Appellants The Harris Appellants and Gunn Appellant reassert in all respects the facts, issues, law, and argument set for in the Brief of Appellants. Reply to All Briefs of Appellees In an effort to promote judicial economy and to eliminate duplicative briefing, these Appellants incorporate and set forth their Replies to the Briefs of the Secretary of State, City of Ocean Springs, and Jackson County in this Reply Brief. REPLY TO BRIEF OF SECRETARY OF STATE This case is about whether the Secretary of State and other governmental entities are required to comply with the public trust boundary line determined and drawn pursuant to the Public Trust Tidelands Act of 1989, Miss. Ann et. seq.; or whether the government can change the boundary line to fit their individual agendas. The Public Trust Tidelands Map [Tr. Ex. G-20; RE 149] designates the solid blue line south of the beach as the public trust tidelands boundary. The relevant portion of Tr. Ex. G-20 appears as follows: 1

8 The ultimate issue in this case is whether the Secretary of State, City of Ocean Springs, and Jackson County are required to comply with the public trust boundary line determined and drawn pursuant to the Public Trust Tidelands Act of 1989, Miss. Code Ann et. seq. The statute specifically states that that the boundary line can be in one of two locations: (1) the boundary as the current mean high water line where shoreline is undeveloped and in developed areas or (2) where there have been encroachments, such maps shall depict the boundary as the determinable mean high water line nearest the effective date of the Coastal Wetlands Protection Act [ July 1, 1973]. Miss. Code Ann (1). These two locations are where the plain and unambiguous statute mandated the Secretary of State to draw the boundary line. The statute provides no alternative locations. The statutory law is clear, unambiguous and should be enforced using its common sense and plain meaning. See Pitalo v. GPCHP-GP, Inc., 933 So. 2d 927, 929 ( 5) (Miss. 2

9 2006); Stockstill v. State, 854 So.2d 1017, (Miss. 2003); and In re Whitaker Constr. Co., Inc., 411 F.3d 197, 205 (C.A. 5 (La.) 2005). To enforce the statutory law, the Court should consider the follow questions: 1. Does the boundary line drawn per statute provide the definitive statutory and legal demarcation of the Public Trust boundary? 2. Does the statute allow the final boundary line drawn on the map to be moved after it was finalized? 3. Would moving the statutorily proscribed boundary line invalidate the legislature intent of the Public Trust Tidelands Act? 4. Would not enforcing the as drawn Public Trust Tidelands Map be consistent with the legislative intent of the statute? 5. Would not the public policy of this state be best served to maintain the established boundary line as set forth on the Public Trust Tidelands Map? 6. Would not any upland property owner be able to challenge anew the boundary line on their property if this boundary line is moved? 7. Would not the moving the boundary line result in an unconstitutional taking of property in violation of the United States Constitution and the Mississippi Constitution? After the Court has considered these questions, the clear conclusion is that the boundary line as drawn on the Public Trust Tidelands Map is the definitive boundary. This is the definitive boundary line required by the legislature to be drawn with the clear and unambiguous intent to end boundary disputes, and can be in no other place than the mean high water line closest to July 1, All of the Secretary of State s arguments are nothing more than smoke and mirrors, used by the Secretary of State to distract this Court from the clear and unambiguous statutory law. The Secretary of State wants the Court to ignore the 3

10 Public Trust Tidelands Act. This Court should not fall victim to that charade. This Court should interpret the statutory provisions to mean what they say and to avoid constructions that will render legislation absurd. See In re Whitaker Constr. Co., Inc., 411 F.3d at 205. If the boundary line is not enforced against the Secretary of State, then the boundary line is meaningless. If the boundary line is meaningless to the Secretary of State, then it is meaningless to the property owners. If it is meaningless to the property owners and the Secretary of State, then the Public Trust Tidelands Act is meaningless. If the Public Trust Tidelands Act is meaningless, then we are back to the same place where litigation will occur throughout the coastal areas regarding where the boundary of the Public Trust is located. Such an absurd and unintended result is precisely what the Legislature sought to avoid when the Public Trust Tidelands Act was passed. See Miss Code Ann Regardless of the arguments made by the Secretary of State (that on their face ignore the statutory mandate under which the Secretary of State, past and present, are required to act) the definitive public trust boundary line is that which was drawn on the map which represents the mean high water mark closest to July 1, Period. All credible evidence in this case shows that the boundary line is at the actual waters edge between 115 and 145 feet south of the road bed and wall that makes up East Beach Drive. The decisions of the chancellor to the contrary should be reversed and rendered. 4

11 REPLY TO THE BRIEFS OF THE CITY OF OCEAN SPRINGS AND JACKSON COUNTY Ocean Springs and Jackson County ride the coattails of the Secretary of State with regard to their flawed arguments regarding the location of the public trust tidelands boundary line. These parties add no compelling evidence or actual facts to support the illogical legal arguments set forth by the Secretary of State. However, Ocean Springs and Jackson County contend they each had obtained the rights to the property of Harris and Gunn either through adverse possession and/or prescriptive use. These arguments are fatally flawed because of the protections of the United States Constitution, Mississippi Constitution, and the actual facts, all of which Ocean Springs and Jackson County wants this Court to ignore. First, the Fifth and Fourteenth Amendments to the United States Constitution do not allow governments to obtain permanent physical occupation of property without just compensation. See Nollan v. Cal. Coastal Com., 483 U.S. 825 (1987). The record in this case shows that no compensation had been paid to Harris or Gunn for any portion of their property claimed by adverse means by either Ocean Springs or Jackson County. Any ruling of the chancellor which gives Ocean Springs and/or Jackson County permanent physical occupation of the property of Harris or Gunn without compensation is unconstitutional, prohibited, and should be reversed by this Court. 5

12 Second, regardless of the unconstitutional assertion that these governmental entities can gain adverse ownership or adverse use of the subject properties, the facts presented demonstrate that Ocean Springs and Jackson County have always acknowledged that Harris and Gunn own the disputed property. The evidence shows that the Gunn and Harris properties extend to the water s edge as confirmed by the taxing authority for the county and city. [Tr. Ex. H-9; RE ] Attached are maps to these assessor information sheets which show the Harris property extending to the water s edge [Tr. Ex. H-9, p. 2; RE 323] and the Gunn property extending to the water s edge [Tr. Ex. G-18, p. 3; RE 327. Tr. 156, ; RE 328, Tr ; RE ]. The act of adverse possession must be sufficient to fly [the] flag over the land and put the true owner upon notice that his land is held under an adverse claim of ownership. See Davis v. Clement, 468 So. 2d 58, 63 (Miss. 1985) (quoting Snowden &. McSweeny Co. v. Hanley, 16 So.2d 24, 25 (1943).) The yearly acknowledgements of ownership through the taxing authority negates any claims that Ocean Springs and/or Jackson County obtained physical possession of the disputed property through adverse means. Lastly, Ocean Springs and Jackson County made no claim of ownership of any portion of the Harris or Gunn property prior to the institution of litigation regarding the ability of the Secretary of State to lease the disputed property to the City of Ocean Springs. See Secretary of State v. Gunn, 75 So.3d 1015 (Miss. 2011). If Ocean Springs and/or Jackson County truly believed it had obtained the rights to the Harris and Gunn property through adverse possession or prescriptive easement, 6

13 then why was it necessary to lease the same property from the Secretary of State. Id. at 1018 (P5). The answer is that Ocean Springs and Jackson County never claimed ownership of any portion of the Harris or Gunn property until they decided to fabricate their claim as a legal backstop in the event that the Secretary of State was unsuccessful in this litigation. Such contrived claims without any genuine factual basis must be dismissed, and any finding by the chancellor to uphold such claims must be reversed. For these reasons, and the reasons set forth in the Briefs of Appellants, the finding of the chancellor regarding the adverse possession and/or prescriptive easement granted to Ocean Springs and/or Jackson County should be reversed as an abuse of discretion based on misapplication of law. CONCLUSION The overwhelming evidence shows that the Trial Court abused its discretion and made manifestly erroneous factual findings that are against the overwhelming weight of the evidence. The Trial Court abused its discretion by failing to consider the evidence which clearly demonstrates that the Harris and Gunn property should be CONFIRMED in all respects as set forth in the deeds, surveys, and Complaints to Confirm Title. The Trial Court s failure to follow the law is manifestly erroneous, an abuse of discretion, and should be reversed and rendered by this Court. The evidence presented further demonstrates that the Trial Court s factual findings are manifestly erroneous because they are against the overwhelming 7

14 evidence presented by testimony, eyewitness testimony, and expert testimony and reports. This Court should reverse and render the manifestly erroneous findings and legal conclusions of the Trial Court, and specifically confirm Harris and Gunn properties in all respects as set forth in the Harris and Gunn deeds, surveys, and Complaints to Confirm Title. DAVID NEIL HARRIS, SR., and VECIE MICHELE HARRIS By: s/ David N. Harris, Jr. DAVID N. HARRIS, JR. (MSB#100790) COUNSEL OF RECORD FOR APPELLANTS David N. Harris, Jr. (MSB#100790) DAVID N. HARRIS, JR. LAW FIRM, P.L.L.C. P.O. Box 336 Gulfport, MS Phone: (228) A. Scott Cumbest (MSB#7944) CUMBEST, CUMBEST, HUNTER AND MCCORMICK Post Office Drawer 1287 Pascagoula, MS Phone: John G. Corlew (MSB#6526) CORLEW MUNFORD & SMITH PLLC 4450 Old Canton Road, Suite 111 (39211) Post Office Box Jackson, MS Phone: Fax:

15 CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the appellate e-filing system, which sent notification of such filing to the following: W. Trey Jones, Esq. Brunini Grantham Grower & Hewes Post Office Drawer 119 Jackson, MS tjones@brunini.com Robert W. Wilkinson, Esq. DOGAN & WILKINSON, PLLC Post Office Box 1618 Pascagoula, MS rwilkinson@dwwattorneys.com astpe@dwwattorneys.com Lee D. Thames, Jr., Esq. Special Assistant Attorney General Office of Attorney General P.O. Box 220 Jackson, MS ltham@ago.state.ms.us Hugh D. Keating, Esq. JéNell B. Blum, Esq. Dukes, Dukes, Keating & Faneca, P.A. Post Office Drawer W Gulfport, MS hugh@ddkf.com jenell@ddkf.com David Crane, Esq Broadmoor Place Gulfport, MS dwcrane@att.net Further, I hereby certify that I have mailed the foregoing pleading or other paper to the following interested persons: This, the 31 st day of May, Honorable Hollis McGehee Special Chancellor, Jackson County P.O. Box 1574, Boutte, LA By: s/ David N. Harris, Jr. David N. Harris, Jr. (MSB #100790) 9