                IN THE SUPREME COURT OF MISSISSIPPI

                         NO. 2002-CA-01431-SCT


JAMES ALEXANDER

v.

TAMMY WOMACK, BETTY CATCHINGS,
MAELEANER BENSON, ELZIE MAE BERRY,
DENNIE TAYLOR, CURTIS RAY TAYLOR, DARRON
TAYLOR, DONNELL TAYLOR, JR. AND WILLIE
RAY TAYLOR

                         CONSOLIDATED WITH
                         NO. 2002-CA-01437-SCT

JAMES ALEXANDER

v.

WILLIE BOYCE DAVIS


                         CONSOLIDATED WITH
                         NO. 2002-CA-01440-SCT

JAMES ALEXANDER

v.

GEORGE HARRIS, JR., ET AL.


DATE OF JUDGMENT:                7/22/2002
TRIAL JUDGE:                     HON. J. LARRY BUFFINGTON
COURT FROM WHICH APPEALED:       LAWRENCE COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:          PAT H. McCULLOUGH
ATTORNEY FOR APPELLEES:          MALCOLM T. ROGERS
NATURE OF THE CASE:                         CIVIL - REAL PROPERTY
DISPOSITION:                                AFFIRMED - 10/16/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE McRAE, P.J., EASLEY AND GRAVES, JJ.

       EASLEY, JUSTICE, FOR THE COURT:

¶1.    Aggrieved by chancery court judgments voiding the tax sales of three parcels of land,

the tax sale purchaser of all three parcels appeals contending that the landowners' suits to set

aside the sales were untimely and, alternatively, that the chancellor erred in setting aside the

sales because the chancery clerk and the sheriff failed to give the statutorily required notice

to the landowners. Finding no reversible error, we affirm.

                          FACTS AND PROCEEDINGS BELOW

¶2.    This appeal deals with three separate lawsuits from the Chancery Court of Lawrence

County, involving three different tax deeds. However, since these have similar facts involving

the same appellant, the same legal issues and the same attorneys, these cases have been

consolidated by this Court.

¶3.    Firstly, on August 21, 1990, a tax sale was conducted by the Lawrence County Tax

Collector (Tax Collector) for property delinquent in taxes for the year 1989. The taxes had

been assessed against Willie Boyce Davis (Davis). James Alexander (Alexander) purchased

the property at the tax sale. The two-year statutory tax sale redemption period required to

redeem pursuant to Miss. Code Ann. § 27-45-3 (Rev. 2002) ran on August 21, 1992, without

the property being redeemed by Davis. Alexander was issued a tax deed to the property on

April 13, 1999, and it was recorded in the land records on August 30, 1999. On April 17,



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2000, Davis filed suit in the Chancery Court of Lawrence County to set aside the tax deed.

Davis alleged that he never received notice of the impending maturity or the expiration of the

time for redemption of the property sold as required by Miss. Code Ann. §§ 27-43-1 & 27-43-

3 (Rev. 2002).

¶4.       Secondly, on August 20, 1992, a tax sale was conducted by the Tax Collector for

delinquent property taxes for the year 1991. The property was held in estate status listed as

the Elia Taylor Estate. Alexander purchased the property at the tax sale. The two-year

redemption period expired on August 30, 1994. The heirs of the Taylor Estate had made

redemption installment payments subsequent to the property's tax sale. However, the heirs did

not make full payment to satisfy the redemption within the two-year period of time. Alexander

was issued a tax deed to the property on April 27, 1999, and the tax deed was recorded on

August 30, 1999. On April 17, 2000, the heirs of the estate filed suit in Lawrence County

Chancery Court to set aside the tax deed alleging they did not receive notice of the expiration

of the two-year redemption period.

¶5.       Thirdly, on August 30, 1993, a tax sale was conducted by the Tax Collector for

delinquent property taxes for the year 1992. Alexander purchased the property for the

delinquent 1992 taxes assessed to Jack and Myrtis Harris Estate. The two-year redemption

period expired on August 30, 1995. Alexander was issued a tax deed to the property on August

27, 1999, which was recorded on August 30, 1999. On April 13, 2000, the heirs of the Harris

Estate filed suit in the Chancery Court of Lawrence County to set aside the tax deed. The heirs

alleged that no one received notice of the impending expiration of the two-year redemption

period.


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¶6.    In each of the three cases, Davis, the heirs of the Taylor Estate and the heirs of the

Harris Estate, collectively known as the plaintiffs, filed motions for partial summary judgment

contending that since the notice requirement contained in Miss. Code Ann. § 27-43-3 was not

complied with, the tax deeds should be declared null and void and set aside.

¶7.    On July 22, 2002, the trial court entered the same order in all three cases voiding the

tax sales and tax deeds. The trial court awarded Alexander a refund of his money paid with

statutory interest and reasonable attorney's fees.

¶8.    Alexander now appeals to this Court raising the following issues:




              A.      Whether the trial court erred in voiding the tax sales
                      and tax deeds as the three-year statute of limitations
                      barred these actions.

              B.      Whether the trial court erred in voiding the tax sales
                      and tax deeds as the Plaintiffs' damages were the
                      direct result of the State of Mississippi's breach of a
                      contractual obligation and not the fault of Alexander.

                                        DISCUSSION



¶9.    On appeal, Alexander contends that the trial court erred in not applying the general

three-year statute of limitations under Miss. Code Ann. § 15-1-49 (1) (Rev. 2003).

¶10.   “This Court uses a de novo standard of review when passing on questions of law

including statute of limitations issues.” Stephens v. Equitable Life Assur. Society of U.S.,

850 So. 2d 78, 81 (Miss. 2003) (quoting ABC Mfg. Corp. v. Doyle, 749 So.2d 43, 45 (Miss.

1999)). Our residual statute of limitations, as set out in Miss. Code Ann. § 15-1-49, states that

                                               4
“[a]ll actions for which no other period of limitation is prescribed shall be commenced within

three (3) years next after the cause of such action accrued, and not after.”

¶11.     Under Rule 8(c) of the Mississippi Rules of Civil Procedure, the statute of limitations

is an affirmative defense which must be pled. If a party intends to rely on one of the M.R.C.P.

8(c) defenses, he must affirmatively plead it. Wholey v. Cal-Maine Foods, Inc., 530 So. 2d

136, 138 (Miss. 1988). An affirmative defense is waived where it is neither pleaded nor tried

by consent. Id. (citing Bell v. First Columbus Nat'l Bank, 493 So.2d 964, 968 (Miss. 1986)).

See also Goode v. Village of Woodgreen Homeowners Ass'n, 662 So. 2d 1064, 1077 (Miss.

1995).

¶12.     First, the learned chancellor in his order did not make any findings regarding the statute

of limitations. Even if the statute of limitations issue were properly before the Court,

Alexander is likewise unable to refer this Court to any controlling precedent as to his position

on the statute of limitations. We have consistently held that “an argument unsupported by cited

authority need not be considered by the Court.” Dowdle Butane Gas Co. v. Moore, 831 So.

2d 1124, 1136 (Miss. 2002). In addition, we have expressly held that “[i]t is the duty of an

appellant to provide authority in support of an assignment of error.” Jones v. Howell, 827 So.

2d 691, 702 (Miss. 2002). Where an assertion of error is not supported by authority, that

assertion is deemed abandoned. Id. This Court is therefore procedurally barred from

considering unsupported assertions on appeal. Webb v. DeSoto County, 843 So. 2d 682, 685

(Miss. 2003).

¶13.     Second, a review of the record in this consolidated case indicates that Alexander failed

to raise the statute of limitations in his answers. Moreover, Alexander did not raise this issue

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in his responses to the plaintiffs’ motions for partial summary judgment. The only reference

to the statute of limitations Alexander made was in a memorandum of law submitted on issues

raised by the undisputed facts of record “[i]n compliance with [the court’s] instructions of

March 25, 2002.” However, there is no evidence in the record that the statute of limitations

issue was tried by consent of the parties. Because Rule 8(c) and our cases hold that affirmative

defenses are waived if not pleaded or tried by consent, it is clear that this issue is not properly

before the Court.




       1




                                                6
¶16.      Miss. Code Ann. § 27-43-1 provides in part:

          The clerk of the chancery court shall, within one hundred eighty (180) days and
          not less than sixty (60) days prior to the expiration of the time of redemption
          with respect to land sold, either to individuals or to the state, be required to
          issue notice to the record owner of the land sold as of 180 days prior to the
          expiration of the time of redemption ....

¶17.      Working in connection with Miss. Code Ann. § 27-43-1, Miss. Code Ann. § 27-43-3

states:

                   The clerk shall issue the notice to the sheriff of the county of the reputed
          owner's residence, if he be a resident of the State of Mississippi, and the sheriff
          shall be required to serve personal notice as summons issued from the courts
          are served, and make his return to the chancery clerk issuing same. The clerk
          shall mail a copy of same to the reputed owner at his usual street address if same
          can be ascertained, and he shall note such action on the tax sales record. The
          clerk shall also be required to publish the name and address of the reputed owner
          of the property and the legal description and the legal description of such
          property in a public newspaper of the county in which the land is located, or if
          no newspaper is published as such, then in a newspaper having a general
          circulation in such county. Such publication shall be made at least forty-five
          (45) days prior to the expiration of the redemption period.
          If said reputed owner is a nonresident of the State of Mississippi, then the clerk
          shall mail a copy of said notice thereto in the same manner as hereinabove set
          out for notice to a resident of the State of Mississippi, except that person notice
          served by the sheriff shall not be required.




                                                   7
              Notice by mail shall be by registered or certified mail. In the event the
      notice by mail is returned undelivered and the personal notice as hereinable
      required to be served by the sheriff is returned not found, then the clerk shall
      make further search and inquiry to ascertain the reputed owner's street and post
      office address. If the reputed owner's street or post office address is
      ascertained after the addition search and inquiry, the clerk shall again issue
      notice as hereinabove set out. If personal notice is again issued and it is again
      returned not found and if notice by mail is again returned undelivered, then the
      clerk shall file an affidavit to that effect and shall specify therein the acts of
      search and inquiry made by him in an effort to ascertain the reputed owner's
      street and post office address and said affidavit shall be retained as permanent
      record in the office of the clerk and such action shall be noted on the tax sales
      record. If the clerk is still unable to ascertain the reputed owner's street or post
      office address after making search and inquiry for the second time, then it shall
      not be necessary to issue an additional notice but the clerk shall file an affidavit
      specifying therein the acts of search and inquiry made by him in an effort to
      ascertain the reputed owner's street and post office address and said affidavit
      shall be retained as a permanent record in the office of the clerk and such action
      shall be noted on the tax sale record.
              Should the clerk inadvertently fail to send notice as prescribed in this
      section, then such sale shall be void and the clerk shall not be liable to the
      purchaser or owner upon refund of all purchase money paid.

(emphasis added).




                                               8
¶18.   Here, the trial court found that the required notices were not sent and published as

required by statute and that, as a result, the tax sales were void.          the clerk and the

sheriff did not provide the                       statutory notice required in Miss. Code Ann.

§§ 27-43-1 and 27-43-3 as to the three properties in question.



                                        CONCLUSION

¶19.   Therefore, for all the foregoing reasons, the judgments of the Lawrence County

Chancery Court are             .

¶20.

    PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, COBB, CARLSON AND
GRAVES, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.




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