Delbert Ray Alexander v. Billy Joe Pitts, Jr.

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2016-CA-01471-COA

DELBERT RAY ALEXANDER APPELLANT

v.

BILLY JOE PITTS, JR. APPELLEE

DATE OF JUDGMENT: 02/09/2016
TRIAL JUDGE: HON. FRANKLIN C. MCKENZIE JR.
COURT FROM WHICH APPEALED: JONES COUNTY CHANCERY COURT,
SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: MICHAEL DUANE MITCHELL
ATTORNEY FOR APPELLEE: JOHN ANTHONY PIAZZA
NATURE OF THE CASE: CIVIL - REAL PROPERTY
DISPOSITION: AFFIRMED AND REMANDED - 11/14/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

GREENLEE, J., FOR THE COURT:

¶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

1
Section 27-45-23 provides that a chancery clerk’s tax deed “shall vest in the
purchaser a perfect title with the immediate right of possession to the land sold for taxes.”

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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.

2
Pitts attached three signed and witnessed statements supporting his claim that he and
Alexander had verbally agreed to “honor the survey line . . . as . . . the property line
separating the properties.”
3
Pitts had asked Alexander numerous times to remove his personal property, which
included “old equipment, an unburied septic tank, an old abandoned trailer, a storage van[,]”
old car batteries, a school bus, and old tires. An investigator from the Mississippi
Department of Environmental Quality described the area as “an unauthorized landfill . . . .”
4
Alexander filed his amended complaint under the wrong cause number.

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¶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 would be filing an appeal to the Mississippi Supreme Court . . . over [a] year ago, but . . .

no appeal was ever[ f]iled . . . .”

¶8. On February 9, 2016, the chancellor entered a document styled “stipulation of facts

and order.” According to that document, during the November 2013 hearing, Alexander

announced that he was aggrieved because he did not receive notice of the tax sale, and Lowe

did not serve him with “[p]ersonal service or notice of her suit to quiet and confirm title [to

the] property.” The chancellor added that “Alexander never made any such assertion prior

to the instant pending litigation . . . .”

¶9. After detailing the stipulated facts of the case, the chancellor held that “Alexander’s

interest in the land at issue would have lapsed during the time [that] the municipality held

title to the land, prior to the tax sale . . . .”5 Consequently, the chancellor held that

Alexander’s adverse-possession claim failed. The chancellor further held that “[a]ll statutory

requirements of public notice and publication were met during the tax sale, the issuance of

5
The order noted Pitts’s position that Alexander had not asserted an adverse-
possession claim.

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the tax deed, and the subsequent [s]uit to quiet and confirm title.” Finally, the chancellor

related that “[c]ounsel for . . . Alexander desires the appellate [c]ourt to review the existing

notification requirements of both the tax sale, issuance of the tax deed, and[/]or the suit to

quiet and confirm title.” Consequently, the chancellor held that “all factual testimony or

evidence except that stipulated herein by the parties[] is held in abeyance for a future hearing

consistent with the appellate [c]ourt’s opinion.”

¶10. Represented by different counsel, on March 7, 2016, Alexander filed a motion for a

new trial so he could “put on evidence of the total lack of substantive due process” regarding

the tax sale and Lowe’s complaint to quiet and confirm her title to the land. Pitts argued that

the lack of a previous trial in the case invalidated Alexander’s request for a “new” trial. On

October 3, 2016, the chancellor entered an order denying Alexander’s motion for a new trial.

The chancellor also adopted the February 9, 2016 order “as the [f]inal [j]udgment in this case

for purposes of appeal.” Alexander appeals.

DISCUSSION

¶11. On appeal, Alexander does not challenge any decision that the chancellor made in this

case. Instead, he attempts to collaterally attack the tax sale and Lowe’s complaint to quiet

and confirm title to the land. Although he cites authority discussing due-process

requirements in general terms, he cites nothing in support of his claim that he was entitled

to personal service of process incident to the tax sale or Lowe’s complaint to quiet and

confirm title. See M.R.A.P. 28(a)(7). Likewise, he cites no authority that would support his

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ability to collaterally attack them through this appeal of what we construe as an agreed

judgment in Pitts’s favor. These failures operate as a procedural bar to his claims. SASS

Muni-V LLC v. DeSoto Cty., 170 So. 3d 441, 449 (¶23) (Miss. 2015).

An appellant cannot give cursory treatment to an issue and expect this Court
to uncover a basis for the claims, either in the record or in the law. Simply put,
we will not act as an advocate for one party to an appeal. The appellant must
affirmatively demonstrate error in the court below, and failure to do so waives
an issue on appeal.

Satterfield v. State, 158 So. 3d 380, 383 (¶6) (Miss. Ct. App. 2015). As such, we affirm the

chancellor’s judgment.

¶12. On a related note, Pitts has filed a motion for sanctions as set forth in Rule 38 of the

Mississippi Rules of Appellate Procedure. Pitts requests that this Court remand the case to

the chancellor “for determination of attorney[’s] fees and expenses” and order that Alexander

pay double Pitts’s costs for defending this appeal. Alexander did not respond.

¶13. “In a civil case if the . . . Court of Appeals shall determine that an appeal is frivolous,

it shall award just damages and single or double costs to the appellee.” M.R.A.P. 38.

“Whether an appeal is frivolous pursuant to Rule 38 is evaluated using the standard from

Mississippi Rule of Civil Procedure 11. Accordingly, an appeal is frivolous where the

appellant has no hope of success.” Flowers v. Boolos (In re Estate of Smith), 204 So. 3d 291,

316 (¶60) (Miss. 2016).

¶14. Alexander agreed to the judgment denying his claim for a preliminary injunction

against Pitts. His appeal has nothing to do with that cause of action. Instead, he attempts to

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collaterally attack the tax sale and the judgment confirming Lowe’s title to the property as

some form of an end-run against Pitts. And although the chancellor seemed to address them

to some extent, apparently over Pitts’s objection and despite the fact that Alexander had not

properly filed an amended complaint,6 Alexander never asserted the collateral attacks that

he now advances on appeal. Instead, he wanted “the appellate [c]ourt to review the existing

notification requirements of the sale, the issuance of the tax deed, and/or [the] suit to quiet

and confirm title.” An issue that has not been presented to the trial court is procedurally

barred on appeal. Id. at 313 (¶49). Because Alexander clearly relied on the idea that he

would circumvent the chancellor and raise an issue for the first time on appeal, his attempted

collateral attack on judgments that did not stem from the underlying litigation had no hope

of success.

¶15. Pitts’s motion is granted. We remand this case to the Jones County Chancery Court,

Second Judicial District, for a determination of the attorney’s fees and costs that Pitts

incurred in defending the present appeal, and for the entry of an appropriate judgment.

¶16. AFFIRMED AND REMANDED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
WILSON AND WESTBROOKS, JJ., CONCUR. TINDELL, J., NOT
PARTICIPATING.

6
See M.R.C.P. 15(a); D.P. Holmes Trucking LLC v. Butler, 94 So. 3d 248, 255 (¶20)
(Miss. 2012) (“If a party fails to seek leave of the court or permission of the opposing party
prior to amending the pleadings, such amendment is improper and will be struck.”).

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