~ IN THE SUPREME COURT OF MISSISSIPPI CASE NO. 2008-CA-00121 REBUILD AMERICA, INC. APPELLANT VERSES ROBERT K. MILNER AND WIFE, PATRICIA K. MILNER AND W ACHOVIA BANK, N.A., SUCCESSOR IN INTEREST TO FIRST UNION NATIONAL BANK, AS INDENTURE TRUSTEE APPELLEES REPLY BRIEF OF APPELLANT, REBUILD AMERICA, INC. APPEAL FROM THE CHANCERY COURT OF PEARL RIVER COUNTY, MISSISSIPPI ORAL ARGUMENT REQUESTED KIMBERLY P. TURNER, ESQ E. BARRY BRIDGFORTH, ESQ. HENRY,BARBOUR,DECELL&BRIDGFORTH,LTD. 774 Avery Boulevard North Post Office Box 4681 (Jackson, 39296) Ridgeland, Mississippi 39157 Telephone: 601.991.2231 Telecopier: 662.796.0255 ATTORNEYS FOR APPELLANT
TABLE OF CONTENTS Table of Cases, Statutes and Other Authorities... II Argument... I A. The Error(s) of the Lower Court Satisfy the Standard of Appellate Review... 1 B. The Lower Court Erred in Setting Aside the Ouitclaim Conveyance... 1 C. The Lower Court Erred in its Denial of Appellant's Motion to Dismiss... 2 D. The Lower Court Erred in Failing to Find Substantial Compliance with StatutOry Notice Requirements as to the Lienholder. First Union National Bank... 3 Conclusion... 5 Certificate of Service... 6, - 1.
Cases TABLE OF CASES. STATUTES. AND OTHER AUTHORITIES Page B & W Farms v. Mississippi Transportation Com 'n, 922 So. 2d 857 (Miss. App. 2006)... 1 Betty Reed v. Charles Ray Florimonte, 987 So. 2d 967 (Miss. 2008)... 1 Covington v. Butler, 242 So. 2d 444 (Miss. 1970)... 2 Cresswell v. Cresswell, 144 So. 41 (Miss. 1932)... 1 Dixon v. Milling, 59 So. 804 (Miss. 1912)... 2 Day v. Davis, 64 Miss. 253 (1886)... 2 Estate o/dykes v. Estate o/williams, 864 So. 2d 926 (Miss. 2003)... 2 Gober v. Chase Manhattan Bank, 918 So. 840 (Miss. App12006)... 3 Holmes v. O'Bryant, 741 So. 2d 366 (Miss. App. 1999)... 2 Hans v. Hans, 482 So. 2d 1117 (Miss. 1986)... 2 Lamar Life Ins. Co. v. Billups, 169 So. 32, 35-36 (Miss. 1936)... 3 Longmire v. Mars, 86 So. 753 (Miss. 1921)... 2 Mahaffey v. Alexander, 800 So. 2d 1284 (Miss. App. 2001)... 3 Osborn v. Harrison, 447 So. 2d 122, 123 (Miss. 1984)... 3 Statutes and Other Materials Miss. R. Civ. Proc. 9(b)... 1 Mississippi Chancery Practice, 113... 3 Section 27-43-7, Miss. Code Ann.... 3,4.. ii. ~- -,
ARGUMENT A. The Error(s) of the Lower Court SatisfY the Standard of Appellate Review. The Judgment by the lower court and findings upon which it was rendered were manifestly wrong and clearly erroneous, by reason ofthe Chancellor having applied an erroneous legal standard contrary to Mississippi law. See Betty Reed v. Charles Ray Florimonte, 987 So. 2d 967 (Miss. 2008). B. The Lower Court Erred in Setting Aside the Quitclaim Conveyance. Appellant, Rebuild America, Inc. (hereinafter "Rebuild America") advanced its Motion to Dismiss based upon the voluntary conveyance of the subject property by Appellees, Robert K. Milner Patricia K. Milner (hereinafter sometimes "the Milners"), to Rebuild America by delivery ofa Quitclaim Deed and Assignment. (R. at pp. 29-30; Trial Ex. 10). The Milners made no allegation within the Complaint to Set Aside Tax Sale and Deed that this quitclaim conveyance was obtained by fraud, and, more importantly, did not introduce evidence or testimony at trial to establish fraud in the inducement. See B & W Farms v. Mississippi Transportation Com 'n, 922 So. 2d 857 (Miss. App. 2006) (notice pleadings are required to place the opposing party on notice of the claim being asserted); Miss. R. Civ. Proc. 9(b) (in all averments offraud, the circumstances constituting the fraud or mistake shall be stated with particularity); Cresswell v. Cresswell, 144 So. 41 (Miss. 1932) (party alleging fraud or undue influence in procuring of a deed has burden of proving it). Having made no finding of fraud, the Chancery Court yet still set aside the Quitclaim Deed delivered by the Milners to Rebuild America by a stated reason oflack of adequate consideration. (R. at p. 4) This finding by the lower court is manifestly wrong and clearly erroneous because a voluntary conveyance of land cannot be vacated, at the instance of the grantor, upon the ground c-- 1
that it was made without consideration, nor may the grantor be permitted to dispute the existence of the consideration as recited within in the deed See Dixon v. Milling, 59 So. 804 (Miss. 1912), quoting Day v. Davis, 64 Miss. 253 (1886); Estate of Dykes v. Estate of Williams, 864 So. 2d 926 (Miss. 2003) (deed executed as a gift under power of attorney from grantor was not void for lack of consideration; it was permissible to execute a deed for any reason the grantor saw fit, such as love, affection, gratitude, partiality, prejudice or even a whim or caprice); Holmes v. 0' Bryant, 741 So. 2d 366 (Miss. App. 1999) (deed conveying property from father to daughter was not facially invalid due to lack of monetary consideration); Hans v. Hans, 482 So. 2d 1117 (Miss. 1986) (voluntary conveyance of land cannot be vacated at instance of grantor upon ground that it was made without consideration); Covington v. Butler, 242 So. 2d 444 (Miss. 1970) (in the absence of fraud, a voluntary conveyance of land cannot be set aside at the instance of the grantor because of a failure of consideration); Longmire v. Mars, 86 So. 753 (Miss. 1921) (in the absence offraud, a voluntary conveyance ofland cannot be vacated at the instance of the grantor... upon the ground that it was made without any consideration). As a matter of law, the lower court could not set aside the voluntary quitclaim conveyance by the Milners delivered to Rebuild America based upon inadequate or a complete failure of consideration, absent an allegation, evidence and/or specific finding of fraud. The lower court clearly erred in setting aside the Quitclaim Deed, having applied an erroneous legal standard. C. The Lower Court Erred in its Denial of Appellant's Motion to Dismiss. Given the validity ofthe voluntary conveyance of the subject property from the Milners to Rebuild America, the lower court's denial of Appellant's Motion to Dismiss was also manifestly wrong and clearly erroneous. In order to have standing to sue to remove a tax deed as a cloud on title, it is necessary that a plaintiff prove title in himself or herself, or such interest as will warrant!--, 2
the action. Osborn v. Harrison, 447 So. 2d 122, 123 (Miss. 1984). Persons who no longer claim an interest in the property, having conveyed it away and against whom no personal judgment is sought, are neither indispensable nor even proper parties with regard to interests in land. Mahaffey v. Alexander, 800 So. 2d 1284 (Miss. App. 2001) citing Mississippi Chancery Practice at 113. If the conveyance by Quitclaim Deed from the Milners to Rebuild America, subsequent to delivery of the Chancery Clerk's Conveyance of September 26, 2005, is valid, then the Milners had absolutely no standing whatsoever to initiate or maintain the lower court action to set aside the 2003 tax sale or quitclaim conveyance thereafter. The lower court therefore erred in its denial of Appellant's Motion to Dismiss, which was premised upon the lack of standing of the Milners. D. The Lower Court Erred in Failing to Find Substantial Compliance with Statutory Notice Requirements as to the Lienholder, First Union National Bank. Absent the Milners as party plaintiffs in the lower court action, the lower court's inquiry should have been limited only to the statutory compliance of that notice provided to the lienholder of record, namely First Union National Bank. See Gober v. Chase Manhattan Bank, 918 So. 840 (Miss. App. 2006), citing Lamar Life Ins. Co. v. Billups, 169 So. 32, 35-36 (Miss. 1936). Section 27-43-7, Miss. Code Ann., provides that [t]he notice shall be mailed to said lienors, if any, to the post-office address of the lienors, if such address is set forth in the instrument creating the lien, otherwise to the post-office address of said lienors, if actually known to the clerk, and if unknown to the clerk then addressed to the county site ofthe said county. Here, First Union National Bank, an unregistered company not qualified or authorized to do business within the state of Mississippi, was the lienholder of record by virtue of three (3) out of seven (7) separate Assignments of the original Deed of Trust executed by the Milners to Jim 3, c
Walter Homes, Inc. Admittedly, the Chancery Clerk utilized the address for First Union National Bank as set forth in the third Mississippi Assignment of Deed of Trust, rather than the seventh Mississippi Assignment of Deed of Trust, under both of which First Union National Bank was assignee. However, the force and effect ofthe third assignment was no less than that of the seventh assignment, both instruments having created the lien in favor of First Union National Bank. Furthermore, the statutory notice provided by the Chancery Clerk was received by First Union National Bank, as evidenced by the return receipt retained by the aforesaid clerk's office and introduced as evidence at trial. (Trial Ex. 4). The intent of 27-43-7, Miss. Code Ann., is to ensure that a lienholder of record is provided notice of an impending forfeiture of that property in which it has an interest and thereafter afford said lienholder the opportunity to redeem the same. The statutory intent was accomplished by providing First Union National Bank notice of the impending forfeiture of the subject property within the time limitations as also required by statute. The lower court thus erred in finding that there was no substantial compliance with the statutory requirement pertaining to First Union National Bank and, consequently, erred in concluding that the August 25,2005 tax sale and subsequent Chancery Clerk's Conveyance be set aside and held for naught'., Though Appellees raise the issue of the fonn ofthe notice offorfeiture provided to First Union National Bank, such issue was not addressed at the lower court level and was not within the Chancery Court's Final Judgment, and thus, is not an issue subject to this Court's review on appeal. 4
CONCLUSION For the reasons set forth herein and in the initial Brief of Appellant, Rebuild America, Inc., respectfully requests that the Judgment Setting Aside Tax Sale and Deed be reversed and rendered, thereby vesting in Rebuild America, Inc. perfect title in and to the property the subject of the lower court action, by virtue of the Chancery Clerk's Conveyance to Magnolia Investors, LLC, Quitclaim Deed and Assignment from Magnolia Investors, LLC to Rebuild America, Inc., and Quitclaim Deed and Assignment from Robert Milner and Patricia Milner to Rebuild America. Respectfully submitted, this the 15 1h day of October, 2008. REBUILD AMERICA, INC. By and Through Counsel: HENRY, BARBOUR, DECELL & BRIDGFORTH, LTD. By: }6JgJGIM~ KIMBERLY P. TURNER (MBN" 5
CERTIFICATE OF SERVICE I, Kimberly P. Turner, do hereby certify that I have this date served by First Class United States mail, postage prepaid thereon, a true and correct copy of the above and foregoing Record Excerpts, to the following: W. Stewart Robison Robison & Holmes, PLLC Attorney for Appellees Post Office Drawer 1128 McComb, Mississippi 39649-1128, and Honorable James H. C. Thomas, Jr. Chancery Court Judge, Pearl River County Post Office Box 807 Hattiesburg, Mississippi 39403-0807 DATED, this the 15 th day of October, 2008. ~41# KIMBERLP:T RNER (MB~,, 6