                IN THE SUPREME COURT OF MISSISSIPPI

                       NO. 2008-CT-02067-SCT

J. CLIFFORD HARRISON AS TRUSTEE
(“HARRISON”) AND REGIONS BANK f/k/a
AMSOUTH BANK AND SUCCESSOR IN
INTEREST TO DEPOSIT GUARANTY NATIONAL
BANK (“BANK”)

v.

MISSISSIPPI TRANSPORTATION COMMISSION

                      ON WRIT OF CERTIORARI


DATE OF JUDGMENT:              06/23/2008
TRIAL JUDGE:                   HON. JOSEPH H. LOPER, JR.
COURT FROM WHICH APPEALED:     WEBSTER COUNTY SPECIAL COURT OF
                               EMINENT DOMAIN
ATTORNEYS FOR APPELLANTS:      JON J. MIMS
                               JEFFREY D. RAWLINGS
ATTORNEYS FOR APPELLEE:        JAMES T. METZ
                               ALAN M. PURDIE
                               BETTY RUTH FOX
                               JOSHUA D. FREEMAN
NATURE OF THE CASE:            CIVIL - EMINENT DOMAIN
DISPOSITION:                   THE JUDGMENT OF THE COURT OF
                               APPEALS IS AFFIRMED. THE JUDGMENT
                               OF THE WEBSTER COUNTY SPECIAL
                               C O U R T O F EM IN EN T DO M A IN IS
                               REVERSED AND REMANDED - 03/03/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




     EN BANC.

     LAMAR, JUSTICE, FOR THE COURT:
¶1.    In this eminent-domain case, the Mississippi Transportation Commission (MTC)

deposited money with the trial court to take title to 1.45 acres of property under quick-take

provisions. But a jury determined that the property was worth less than the amount of the

deposit.     The court subsequently entered personal judgment against the landowners,

mortgagee, and trustee for the difference. At issue is whether the mortgagee and trustee are

liable for reimbursing MTC for the difference. We find that they are not liable under the

plain language of the statute governing such reimbursements.

                                 Facts & Procedural History

¶2.    On October 20, 1998, MTC filed a complaint for eminent-domain proceedings to

acquire 1.45 acres of a fifty-acre parcel of property in Webster County, Mississippi, to

expand a portion of U.S. Highway 82. It named the owner of the property, Sherry Mann, as

well as the mortgagee, Deposit Guaranty National Bank,1 and trustee, J. Clifford Harrison,

as defendants.2 It also filed a statement of values, in which its appraiser valued the property

at $14,450. This amount was deposited with the court.

¶3.        In compliance with quick-take provisions,3 the court appointed an independent

appraiser, who valued the property at $57,400. The trial court entered an order granting

MTC the right of immediate title and possession upon MTC’s deposit of the difference



       1
           Regions Bank is the successor in interest to Deposit Guaranty National Bank.
       2
        With leave of the court, MTC filed an amended complaint under quick-take
provisions (Miss. Code Ann. §§ 11-27-81 to -91 (Rev. 2004)) and added Peggy and Wayne
Mann (Sherry Mann’s parents) after discovering that Sherry had conveyed the property to
her mother.
       3
           Miss. Code Ann. § 11-27-83 (Rev. 2004).

                                               2
between $14,450 and $57,400. MTC complied with the order and deposited with the circuit

clerk a total of $57,400.

¶4.    The court then ordered that the $57,400 be released to the “defendants,” and the

circuit clerk issued a check in that amount payable to “Sherry Belinda Mann A/K/A, Ben F.

Hilburn, Jr., Atty., Deposit Guaranty National Bank, Beneficiary, J.L. Clifford Harrison,

Trustee.” 4 The clerk’s docket shows that the check was “handed to” Ben Hilburn, Sherry’s

attorney. Hilburn and Sherry endorsed the check, and Sherry presented it to the Bank to

satisfy the lien on the property.5

¶5.    A jury trial to determine the value of the property was not held until June 17, 2008,

ten years after the original complaint had been filed. The record shows that counsel for the

Bank and Trustee did not attend the trial. The jury returned a verdict of $14,450 in favor of

the defendants. And in its judgment, the trial court ordered that all defendants must pay the

difference between the withdrawn deposit of $57,400 and the jury award of $14,450.

¶6.    Upon notice of the judgment, the Bank and Trustee filed a motion to amend judgment

or alternatively for relief from judgment under Mississippi Rules of Civil Procedure 59(e)

and 60(b)(6). The Bank and Trustee argued that they should not be responsible for paying

the difference, when they were not “party to the withdrawal of the funds” from the court.

They argued that the judgment should be amended to remove them as judgment debtors. In


       4
           Peggy and Wayne Mann had not been named defendants at this point.
       5
        Under Hilburn and Sherry’s signatures is a stamp with the following: “Deposit
Guaranty National Bank, Post Office Drawer 919, Eupora, Mississippi 39744-0919.” And
below the stamp is an illegible signature and notation: “Personal Banker, the funds were
applied to ILS # 9500312557.” The Bank and Trustee admitted in their supplemental
certiorari brief that Sherry had used the deposit to pay off her lien with the Bank.

                                             3
response, MTC argued that the Bank and Trustee were named on the check; that they had

failed to file notice that their lien on the property had been satisfied; and that they were never

dismissed as parties to the action.

¶7.    The court denied the motion and found that the Bank and Trustee were proper parties

to the action, who chose not to appear and defend their interests. The court also found that

the Bank and Trustee were in fact parties to the withdrawal of funds, as evidenced by the

endorsement on the back of the check.

¶8.    The Bank and Trustee appealed the court’s denial of the motion, and this Court

assigned the case to the Court of Appeals. The Court of Appeals reversed the trial court and

found that it had abused its discretion in finding that the Bank and Trustee were parties to the

withdrawal of funds.6 The Court of Appeals further found:

       Due to the considerable delay between the time funds were disbursed and the
       time of trial, we find it prejudicial and inequitable for the trial court to hold
       that the Appellants failed to appear and defend their interests. Their interests
       were dissolved at the moment Sherry’s loan was extinguished. They were not
       on notice that they would be liable to the MTC under the quick-take provisions
       because they had no reason to believe they were still an “owner” of the
       property.7

While we agree with the outcome reached by the Court of Appeals, we do so under different

reasoning.




       6
           Harrison v. MTC, 2010 WL 610655, *4 (Miss. Ct. App. Feb. 23, 2010).
       7
           Id. at *5.

                                                4
                                         Discussion

¶9.    We review a denial of a Rule 59 8 or Rule 60 9 motion under an abuse-of-discretion

standard.

¶10.   At issue is whether the Bank and Trustee should be liable for the difference between

the amount deposited in the court and the amount of compensation finally determined. MTC

deposited the money in accord with Mississippi Code Section 11-27-85, which provides in

relevant part:

       Upon entry of [court] order, the plaintiff may deposit not less than eighty-five
       percent (85%) of the amount of the compensation and damages as determined
       by the appraiser with the clerk of court, and upon so doing, the plaintiff shall
       be granted title to the property . . . and shall have the right to immediate entry
       to said property. The defendant, or defendants, shall be entitled to receive the
       amount so paid to the clerk of the court, which shall be disbursed as their
       interest may appear, pursuant to order of the court.10

Here, the court’s order did not specify that the clerk was to disburse the deposit according

to each defendant’s respective interest. The court simply ordered the clerk to disburse the

funds to the “defendants.” So the clerk made the check payable to all the defendants without

specifying whether the defendants were to be paid jointly or alternatively.11 Sherry, through




       8
           Brooks v. Roberts, 882 So. 2d 229, 233 (Miss. 2004).
       9
           Briney v. U.S. Fid. & Guar. Co., 714 So. 2d 962, 966 (Miss. 1998).
       10
            Miss. Code Ann. § 11-27-85(2) (Rev. 2004) (emphasis added).
       11
         See Mississippi Code Section 75-3-110(d) which provides in relevant part that “[i]f
an instrument payable to two (2) or more persons is ambiguous as to whether it is payable
to the persons alternatively, the instrument is payable to the persons alternatively.” Miss.
Code Ann. § 75-3-110(d) (Rev. 2008).

                                               5
her attorney, obtained the check from the clerk, endorsed it, and deposited it at the bank,

applying the funds to the lien on the property.

¶11.   While Section 11-27-85 provides that the funds can be disbursed to the “defendant,

or defendants,” Mississippi Code Section 11-27-87 addresses who is to pay the difference

in the event the deposit is greater than the judgment. Section 11-27-87 provides in relevant

part that:

       If the plaintiff takes title to and possession of the land condemned pursuant to
       the order of the court and the amount of the compensation as determined upon
       final disposition of the case is less than the amount of the deposit, the plaintiff
       shall be entitled to a personal judgment against the owner for the amount of the
       difference.12

This statute expressly provides that the plaintiff’s [MTC] sole remedy is a personal judgment

against only the owner, not the mortgagee and trustee.13 While the eminent-domain statutes

do not define “owner,” we find that this term is commonly understood to refer to the

landowner–the one in actual possession of the property, not the mortgagee and trustee. This

understanding is also supported by the language of Mississippi Code Section 11-27-5, which

provides that, “[a]ny person or corporation having the right to condemn private property for

public use shall file a complaint . . . and shall make all the owners of the affected property

involved, and any mortgagee, trustee or other person having any interest thereon or lien

thereon a defendant thereto.” 14 Under this statute, the Legislature clearly distinguished

“owner” from “mortgagee” and “trustee.” The Legislature easily could have included


       12
            Miss. Code Ann. § 11-27-87 (Rev. 2004).
       13
            Id.
       14
            Miss. Code Ann. 11-27-5 (Rev. 2004).

                                               6
mortgagee and/or trustee in the reimbursement provision of Section 11-27-87 but did not.

The statute is clear and unambiguous, and we find further analysis unnecessary. The express

intent of the Legislature is that it is the landowner who is liable to MTC when the verdict is

less than the deposit withdrawn. Therefore, we find the trial court abused its discretion in

holding the Bank and Trustee personally liable for the difference.

                                          Conclusion

¶12.   The trial court abused its discretion in denying the motion to amend judgment. We

affirm the Court of Appeals and reverse the trial court and remand the case with orders to

the trial court to amend its judgment to remove Regions Bank and J. Clifford Harrison as

judgment debtors, as Mississippi Code Section 11-27-87 provides for personal judgment

only against the owner of the property.

¶13. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE
JUDGMENT OF THE WEBSTER COUNTY SPECIAL COURT OF EMINENT
DOMAIN IS REVERSED AND REMANDED.

    WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH,
KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.  KING, J., NOT
PARTICIPATING.




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