author: MAXWELL, JUSTICE, FOR THE COURT:

text:
    CAMPBELL PROPERTIES, INC. v. Rachael Dowe COOK, and Any All Persons Having or Claiming Any Legal or Equitable Interest in Hereinafter Described Land Sold for Taxes on August 26, 2013, VIZ: Part of Section 4, Township 18 North, Range 5 East, Warren County, Mississippi, Tax Parcel 005 04 999 001300; PPIN 206; Deed Book 1422, Page 769 Less and Except the Portion of Property Lying in Section 3, Township 18 North, Range 5 East of the Warren County, Mississippi Land Records
    NO. 2017-CA-01340-SCT
    Supreme Court of Mississippi.
    December 6, 2018
    ATTORNEY FOR APPELLANT: KENNETH B. RECTOR, Vicksburg
    ATTORNEYS FOR APPELLEE: A. J. "BUDDY" DEES, JR., Vicksburg, SARAH CUNNINGHAM McMILLIN
    BEFORE WALLER, C.J., MAXWELL AND ISHEE, JJ.
   MAXWELL, JUSTICE, FOR THE COURT:

¶ 1. When a property owner fails to timely pay his or her property taxes, the county will auction off the property for the amount of unpaid taxes. At that point, the property owner has two years to redeem the property. If he or she fails to do so, the property is forfeited to whoever wins the auction. But for a tax sale to be valid, the chancery clerk must strictly follow Mississippi Code Section 27-43-3's notice requirements. These statutory notice procedures further Mississippi's long-standing policy of protecting landowners from losing property in tax sales. Specifically, the statute mandates that when a clerk is unable to notify the landowner, he or she must diligently search and inquire for a new or different address to provide notice.

¶ 2. Here, the property owner failed to timely pay his taxes or to redeem them within two years of the tax sale of his property. The owner objected to the sale, asserting that he was deprived of his property without the statutorily required prior notice. What our review shows is that the chancery clerk's first notice was returned undelivered. At that point, by statute, the clerk was required to diligently search for a different address for the property owner. But despite having another address readily available in the county's land records, no notices were ever mailed to that address before the redemption period ended. Thus, the clerk's search and inquiry did not strictly comply with the statute. We must therefore reverse and render.

Background Facts and Procedural History

¶ 3. In 2006, Alan Osborne bought fifty acres off Highway 3 in Warren County, Mississippi. In 2012, Osborne failed to timely pay his property taxes. And on August 26, 2013, his property was auctioned off for the unpaid taxes to Rachael Cook. When the redemption period ended on August 26, 2015, Osborne had not redeemed the property. Several days later, Osborne visited the chancery courthouse. While paying property taxes for his employer, Osborne asked about his own property. He was told by a deputy clerk that the redemption period had expired. The clerk's office issued Rachael Cook a tax deed on September 11, 2015, which she filed the same day.

¶ 4. Osborne was unable to negotiate a deal with Cook to obtain his once-owned property. So Osborne filed a complaint to set aside the tax sale. In it, he claimed the Warren County sheriff never personally served him nor did he receive any notice by certified mail from the clerk's office. Cook answered and responded with her own counterclaim to confirm title in herself.

¶ 5. After Osborne's property was sold at auction, the chancery clerk's office was required to provide him notice-by personal service, certified or registered mail, and by newspaper publication-of when his right to redeem the property would expire. Miss. Code Ann. § 27-43-3 (Rev. 2017). Thus, the clerk's office needed Osborne's physical and mailing addresses. But when the chancery clerk sent a "courtesy notice" to Osborne in February 2015 to 8435 Highway 3, C/O P.O. Box 820258, Vicksburg, MS 39182-0258, the notice was returned to the clerk's office marked "not deliverable as addressed." Despite this, the clerk continued to use that very same post-office-box address for every subsequent notice that was mailed, certified or otherwise.

¶ 6. When the statutory notice sent in March 2015 and personal service by the sheriff were ineffective, the clerk was required by statute to perform a diligent search and inquiry to locate another address for Osborne. The deputy clerk responsible for redemption notices testified that she reviewed the tax collector's records. She also testified that she reviewed court and land records and prior tax sales for Osborne's address. Still, after doing so, the clerk's office continued to send future notices to the same post-office-box address, an address from which the very first notice-the courtesy notice-was returned "not deliverable as addressed." This address was continually used for mailings, though Warren County land records contained a deed of trust filed March 10, 2011, which listed Osborne's address at 8435 Highway 3, Redwood, MS 39156. In fact, the deed conveying the subject property to Osborne listed the correct address for the property as 8435 Highway 3, Redwood, MS 39156. This particular address is also listed in three deeds of trust recorded in the chancery clerk's office before 2015. However, no notices were ever mailed to that address.

¶ 7. Even so, the chancellor found that the chancery clerk diligently searched and inquired about Osborne's location and complied with Mississippi Code Section 27-43-3. So the chancellor affirmed the tax sale, confirming title in the Highway 3 property to Rachael Cook. Osborne now appeals.

Discussion

¶ 8. Osborne is by no means blameless here and is quite unsympathetic. He frequently failed to pay his property taxes on time. And he did not update his address with the clerk's office. He also gave rather dubious testimony-claiming that he moved from the Highway 3 property the same day the sheriff attempted to serve him. However, this Court has been clear that before the State may deprive a citizen of his or her property, certain statutory requirements and procedures must be met. And compliance with those statutes is strict. Based on the record before us, we must reverse. While the chancery clerk did take certain steps to locate Osborne, the clerk continued to use the post-office-box address from which the very first notice had been returned as "not deliverable as addressed." This was done even though another address for Osborne was readily attainable in court filings. Thus, we find a diligent search and inquiry was not conducted as required by the statute. We therefore reverse and render.

I. Standard of Review

¶ 9. We will not disturb a chancellor's findings unless they are manifestly wrong, clearly erroneous, or apply the wrong legal standard. McNeil v. Hester , 753 So.2d 1057, 1063 (Miss. 2000). We review questions of law de novo. Id.

II. Diligent Search and Inquiry

¶ 10. Osborne's complaint is that the clerk was not diligent in the search and inquiry. He points out that notices were sent to his post-office box and not to the Highway 3 address. And he further argues that his correct Highway 3 address-which furthermore was wrongly identified as being in Vicksburg instead of nearby Redwood-was easily discoverable from a recent deed of trust in the county's land records. We agree.

¶ 11. When an owner fails to pay his or her taxes, their property is auctioned off. Mississippi Code Section 27-43-3 sets out the notice requirements and steps the clerk must take to try to notify landowners their property will be forfeited unless redeemed. A landowner has two years from the date of the tax auction to redeem their property. Miss. Code Ann. § 27-45-3 (Rev. 2017). Section 27-43-3 requires redemption notices to be given by personal service, certified or registered mail, and by appropriate newspaper publication. DeWeese Nelson Realty, Inc. v. Equity Servs. Co. , 502 So.2d 310, 312 (Miss. 1986). If personal service is not obtained and certified mail is returned undelivered, the clerk must then make a diligent "search and inquiry" to locate the record landowner. Miss. Code Ann. § 27-43-3. The clerk must file an affidavit documenting the specific search and inquiry undertaken and must keep the affidavit as a permanent record. Id.

¶ 12. This Court has held that "[s]tatutes dealing with land forfeitures for delinquent taxes should be strictly construed in favor of the landowners. Any deviation from the statutorily mandated procedure renders the sale void." Reed v. Florimonte , 987 So.2d 967, 973 (Miss. 2008) (quoting Roach v. Goebel , 856 So.2d 711, 716 (Miss. Ct. App. 2003) (internal citations and quotation marks omitted) ). Mississippi's public policy is to protect landowners from losing property in tax sales. Id. at 975.

¶ 13. The deputy chancery clerk responsible for sending Osborne notices and conducting searches, testified at trial. And she explained that she keeps a record of her actions and searches in a workbook. These records are later transcribed to a form affidavit, which here were attested to by another deputy clerk. But the initial clerk maintained that she had examined "everything that [she had] access to," including recently recorded deeds, a phone directory, court and clerk records, and tax collector records.

¶ 14. While Osborne also takes issue with what he claims are incomplete and noncompliant affidavits-affidavits that were either largely blank or signed after the redemption period had ended-we need not address the affidavits here. Rather, we focus on the records the deputy clerk had access to. When courtesy notices to delinquent property owners were sent in February 2015, the specific notice to Osborne was returned as undeliverable. Rather than note that the 8435 Highway 3, C/O P.O. Box 820258, Vicksburg, MS 39182-0258 address was a bad address, the clerk instead continued to use this post-office-box address for every subsequent notice to Osborne. But the county land records showed several deeds, and a March 10, 2011 deed of trust with Osborne's address listed as 8435 Highway 3, Redwood, MS 39156. This was easily discoverable. Yet the clerk made no attempt to send notice by certified mail to that address. Thus, after review, we find the required search and inquiry was not diligent as required by the statute. See Hart v. Catoe , 390 So.2d 1001, 1002 (Miss. 1980) (clerk's search and inquiry was not diligent when owner's name and address were readily available in public records but were unused by the clerk's office). See also Roach , 856 So.2d at 716 (clerk's search and inquiry was not diligent when a homestead application and corresponding address were available but unused by clerk's office).

¶ 15. There is testimony that a deputy chancery clerk personally handed Osborne a certified notice that had been returned to the clerk's office, and the record shows that Osborne did sign the return receipt. But putting aside the conflicting testimony over when Osborne signed the return receipt and whether he actually received the notice, the fact remains that the statute does not allow service in this manner. Rather, the statute dictates that notices be sent by certified or registered mail. We recognize this is a hard-line approach, but the redemption-notice statute must be followed strictly. Reed , 987 So.2d at 973. Because it was not here, we must reverse and render the chancellor's judgment affirming the tax sale.

Conclusion

¶ 16. A deed of trust in the county land records listed a different address for Osborne than the one used by the chancery clerk's office for redemption notices. This record was readily available. So when redemption notices were returned to the clerk's office undelivered and marked "not deliverable as addressed," a diligent search and inquiry would have revealed the different address. Thus, the search and inquiry was not diligent as required by statute. We must therefore reverse the chancellor's judgment affirming the tax sale and confirming title in Rachael Cook and render a judgment in Osborne's favor, setting aside the tax sale as void.

¶ 17. REVERSED AND RENDERED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      See Reed v. Florimonte , 987 So.2d 967, 975 (Miss. 2008).

      In 2011, Osborne used the Highway 3 property to secure a loan. His employers, Paul and Glenn Campbell, cosigned the note. When Rachael Cook acquired her tax deed in 2015, the Campbells' company, Campbell Properties, Inc., bought the debt from Osborne's lender. By agreed order, Campbell Properties foreclosed on the Highway 3 property and was substituted for Osborne as the plaintiff in this suit. But because Osborne was the record property owner at all relevant times to this suit, we will continue to refer to Osborne as the plaintiff.

      Miss. Code Ann. § 27-43-3 states, in full,
      The clerk shall issue the notice to the sheriff of the county of the reputed owner's residence, if he is a resident of the State of Mississippi, and the sheriff shall be required to serve notice as follows:
      (a) Upon the reputed owner personally, if he can be found in the county after diligent search and inquiry, by handing him a true copy of the notice;
      (b) If the reputed owner cannot be found in the county after diligent search and inquiry, then by leaving a true copy of the notice at his usual place of abode with the spouse of the reputed owner or some other person who lives at his usual place of abode above the age of sixteen (16) years, and willing to receive the copy of the notice; or
      (c) If the reputed owner cannot be found after diligent search and inquiry, and if no person above the age of sixteen (16) years who lives at his usual place of abode can be found at his usual place of abode who is willing to receive the copy of the notice, then by posting a true copy of the notice on a door of the reputed owner's usual place of abode.
      The sheriff shall make his return to the chancery clerk issuing the notice. The clerk shall also mail a copy of the notice to the reputed owner at his usual street address, if it can be ascertained after diligent search and inquiry, or to his post-office address if only that 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 of the 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 the county. The publication shall be made at least forty-five (45) days prior to the expiration of the redemption period.
      If the reputed owner is a nonresident of the State of Mississippi, then the clerk shall mail a copy of the notice to the reputed owner in the same manner as set out in this section for notice to a resident of the State of Mississippi, except that notice served by the sheriff shall not be required.
      Notice by mail shall be by registered or certified mail. In the event the notice by mail is returned undelivered and the notice as required in this section 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 additional search and inquiry, the clerk shall again issue notice as set out in this section. If 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 in the affidavit the acts of search and inquiry made by him in an effort to ascertain the reputed owner's street and post-office address and the affidavit shall be retained as a permanent record in the office of the clerk and that 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 any additional notice but the clerk shall file an affidavit specifying the acts of search and inquiry made by him in an effort to ascertain the reputed owner's street and post-office address and the affidavit shall be retained as a permanent record in the office of the clerk and that action shall be noted on the tax sale record.
      For examining the records to ascertain the record owner of the property, the clerk shall be allowed a fee of Fifty Dollars ($50.00); for issuing the notice the clerk shall be allowed a fee of Two Dollars ($2.00) and, for mailing the notice and noting that action on the tax sales record, a fee of One Dollar ($1.00); and for serving the notice, the sheriff shall be allowed a fee of Thirty-five Dollars ($35.00). For issuing a second notice, the clerk shall be allowed a fee of Five Dollars ($5.00) and, for mailing the notice and noting that action on the tax sales record, a fee of Two Dollars and Fifty Cents ($2.50), and for serving the second notice, the sheriff shall be allowed a fee of Thirty-five Dollars ($35.00). The clerk shall also be allowed the actual cost of publication. The fees and cost shall be taxed against the owner of the land if the land is redeemed, and if not redeemed, then the fees are to be taxed as part of the cost against the purchaser. The failure of the landowner to actually receive the notice herein required shall not render the title void, provided the clerk and sheriff have complied with the duties prescribed for them in this section.
      Should the clerk inadvertently fail to send notice as prescribed in this section, then the sale shall be void and the clerk shall not be liable to the purchaser or owner upon refund of all purchase money paid.

      See supra note 2.


source: Caselaw Access Project

author: ISHEE, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    NRG WHOLESALE GENERATION LP f/k/a Genon Wholesale Generation, LP v. Lori P. KERR, in the Official Capacities of Tax Assessor and Collector of Choctaw County, Mississippi, and Choctaw County, Mississippi
    NO. 2017-CA-00804-SCT
    Supreme Court of Mississippi.
    December 6, 2018
    ATTORNEYS FOR APPELLANT: JOSEPH ANTHONY SCLAFANI, SHELDON G. ALSTON, Jackson, PETER J. CROSSETT
    ATTORNEYS FOR APPELLEES: PAUL H. STEPHENSON, III, PEYTON D. PROSPERE, Jackson, KASEY CAROLBURNEY
    BEFORE WALLER, C.J., CHAMBERLIN AND ISHEE, JJ.
   ISHEE, JUSTICE, FOR THE COURT:

¶ 1. The main issue presented by this case is whether NRG Wholesale Generation's proffered expert used an acceptable method to determine the "true value" of its power plant in computing ad valorem tax. NRG's expert used a mixture of the sales-comparison approach, the income approach, and the cost approach to determine the true value of the facility. Lori P. Kerr, the tax assessor for Choctaw County, and Choctaw County, Mississippi (collectively, the "County"), contend that Mississippi law mandates a trended historical cost-less-depreciation approach to calculate the true value of industrial personal property. The circuit court found in favor of the County and excluded NRG's proffered expert testimony. NRG claims the circuit court abused its discretion.

¶ 2. NRG also argues that the circuit court erred in denying its motion to change venue. NRG asserts that, because many of the jurors knew the county officials named as defendants in this case, a fair trial in Choctaw County was impossible.

¶ 3. We hold that the Mississippi Department of Revenue (the "DOR") regulation controlled and that NRG's expert applied an unacceptable method to determine true value. Therefore, the circuit court did not err in excluding NRG's proffered expert testimony. Additionally, because NRG was afforded a fair and impartial jury, the circuit court did not abuse its discretion in denying the motion to change venue. We affirm the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 4. NRG owns a power plant located in Choctaw County. In calculating the ad valorem tax, the Choctaw County Tax Assessor determined that the true value of the facility was $467,213,070. Having itself appraised the true value of the facility at $110,000,000, NRG appeared before the Choctaw County Board of Supervisors (the "Board") in protest. Upon reconsideration, the Board discovered a calculation error and found that the true value of the facility was actually $559,974,970, or $92,761,900 more than the tax assessor's initial valuation. NRG appealed.

¶ 5. NRG designated Mark R. Simzyk as its valuation expert and submitted his report. In calculating the true value of the facility, Simzyk first determined the value of the facility under the sales-comparison approach, the income approach, and the cost approach. He then reconciled the three results, finding the true value of the facility to be $180,000,000.

¶ 6. After the close of discovery, the County moved to exclude Simzyk's expert testimony. The County argued that Simzyk utilized methods for determining the true value of industrial personal property different from the method mandated by state law and regulation. NRG countered that, since the circuit court must hear NRG's tax appeal anew, Simzyk's appraisal would assist in determining the true value of the facility. NRG asserted that the County ignored the clear language of Mississippi Code Section 27-35-50 (Rev. 2017), which defines "true value" as encompassing all approaches to value.

¶ 7. In its order granting the County's motion to exclude Simzyk's expert testimony, the circuit court noted that no DOR regulations allowed a taxpayer to use a method other than the one prescribed by state law and regulation. Allowing Simzyk to testify to an appraisal based on a method other than the method prescribed by the DOR would contradict the guidelines established for expert witnesses, such as Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 582, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 145, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). NRG's petition to this Court for permission to file an interlocutory appeal was denied.

¶ 8. Trial was set and a ninety-one person venire was empaneled. When asked by the circuit court, seventy-two members of the venire admitted they knew the tax assessor. Following the court's voir dire examination, NRG moved for a change of venue, contending that most of the venire knew the tax assessor. In response, the County pointed out that knowing a party is different from being biased. The circuit court took the motion under advisement to be renewed at the close of voir dire. Upon renewal, the circuit court overruled NRG's motion for a change of venue. The circuit court concluded that a majority of the venire could be fair and that those who could not were to be struck for cause. A twelve-member jury with two alternates was sworn in. After a four-day trial, the jury found for the County. The circuit court entered judgment on March 27, 2017, awarding the County $533,827.80 together with 8 percent interest per year. NRG timely appealed.

DISCUSSION

I. Expert Testimony

¶ 9. This Court reviews the admission or exclusion of expert testimony for an abuse of discretion. But this matter involves an alleged departure from the proper legal standard for determination of value, which is a question of law; "[i]t is well-settled that questions of law are to be reviewed de novo." Madison HMA, Inc. v. St. Dominic-Jackson Mem'l Hosp. , 35 So.3d 1209, 1215 (Miss. 2010).

A. Legal Standard for Valuation

¶ 10. Taxation falls within the purview of the Legislature. The Mississippi Constitution provides,

All property not exempt from ad valorem taxation shall be taxed at its assessed value. Property shall be assessed for taxes under general laws, and by uniform rules, and in proportion to its true value ....
The Legislature shall provide, by general laws, the method by which the true value of taxable property shall be ascertained ....
The assessed value of property shall be a percentage of its true value ....

Miss. Const. art. 4, § 112. From this authority, the statute defines true value as "includ[ing], but ... not limited to, market value, cash value, actual cash value, proper value and value for the purposes of appraisal for ad valorem taxation." Miss. Code Ann. § 27-35-50(1) (Rev. 2017). The county tax assessor ascertains the true value of a property by "consider[ing] whenever possible the income capitalization approach to value, the cost approach to value, and the market data approach to value, as such approaches are determined by the Department of Revenue." Miss. Code Ann. § 27-35-50(2) (Rev. 2017). But Section 27-35-50(2) provides,

For differing types of categories of property, differing approaches may be appropriate. The choice of the particular valuation approach or approaches to be used should be made by the [tax] assessor upon a consideration of the category or nature of the property, the approaches to value for which the highest quality data is available, and the current use of the property.

Id.

¶ 11. Also, the Legislature granted to the DOR the "power to adopt, amend or repeal" tax regulations. Miss. Code Ann. § 27-35-50(6) (Rev. 2017). For industrial personal property,

Original acquisition cost new, including all cost associated with installing the equipment in place for production, will be the base for all industrial property. The industry will be classed by utilizing Marshall Valuation Service's manual showing the average life category for the industry. The base cost will be multiplied by the appropriate inflation factor furnished by the [DOR] (from Marshall Valuation Service) based on the age of the item. This calculation will be multiplied by the appropriate percent good depreciation factor (again based on age) that is provided annually by the [DOR].

35-VI Miss. Code R. § 2.08.104 (West, Westlaw through Sept. 2018). The DOR also maintains the Mississippi Appraisal Manual, which "represents the Mississippi Department of Revenue's guidelines for the valuation of real and personal property" and "serve[s] as a comprehensive reference guide for the property tax assessors and appraisers." Department of Revenue Office of Property Tax, Mississippi Appraisal Manual , Preface, https://www.dor.ms.gov/Documents/Introduction.pdf (last visited Oct. 11, 2018). The Manual states, "[r]eplacement cost new less depreciation is the preferred method for determining personal property costs in industries," because insufficient sales or market comparisons exist to use the market comparison approach, and the income approach is impractical because of the Department's inability to obtain accurate income information from industries. Department of Revenue Office of Property Tax, Mississippi Appraisal Manual, Chapter XI Personal Property, (Nov. 2015), https://www.dor.ms.gov/Documents/Chpt11_PersonalProperty.pdf.

B. Exclusion of Expert Testimony

¶ 12. NRG contends the circuit court erred in excluding its proffered expert testimony. It argues that, since this appeal stems from a trial de novo in the circuit court, the DOR regulations do not apply. This Court disagrees. NRG ignores well-established DOR regulations and misinterprets its proffered authorities.

¶ 13. NRG cites Mississippi Code Section 11-51-77. It provides that "[a]ny person aggrieved by a decision of the board of supervisors ... as to the assessment of taxes ... may ... appeal to the circuit court of the county." Miss. Code Ann. § 11-51-77 (Rev. 2012). Further, "the controversy shall be tried anew in the circuit court." Id. NRG principally relies on Lenoir v. Madison County , 641 So.2d 1124, 1132 (Miss. 1994) for its interpretation of Section 11-51-77. In Lenoir , this Court held that the requirement of filing a bill of exceptions with the circuit court to appeal the decision of the board of supervisors under Mississippi Code Section 11-51-75 was superseded by the timely filing of a complaint with the circuit court under Section 11-51-77. Id. This Court observed that, under Section 11-51-77, "cases appealed to the circuit court from the board of supervisors are tried 'anew.' That is to say, such cases are tried 'de novo' by the circuit court." Id. at 1128. In a trial de novo, "the proceedings of the board of supervisors are not in issue, only the decision of the board of supervisors is reviewed." Id.

¶ 14. NRG is correct that Section 11-57-77 applies and that a tax appeal is tried in the circuit court without consideration of the actions of the tax assessor or board of supervisors. But NRG goes too far in arguing that trying the case anew would exclude not only the proceedings of the board of supervisors, but also the underlying substantive statutes and regulations. The Lenoir Court simply stated that a trial de novo requires a new trial by the circuit court. Id. The circuit court reviews only the decision of the board of supervisors, not the board's proceedings. Id. Nowhere in Lenoir does the Court equate "proceedings" with the underlying law or regulations.

¶ 15. NRG also relies on Rebelwood, Ltd. v. Hinds County , 544 So.2d 1356, 1360 (Miss. 1989). There, this Court cited Mississippi Code Section 27-35-50(2) and discussed the "three statutorily-authorized approaches to value: the cost approach, the income capitalization approach, and the market data or competitive sales approach." Id. But NRG fails to consider the rest of the statute, which continues that the DOR determines the approach or approaches used and that, "for differing types of categories of property, differing approaches may be appropriate." Miss. Code. Ann. § 27-35-50(2). Rebelwood dealt with a federally subsidized apartment complex, which is classified as Class II real property. Rebelwood , 544 So.2d at 1358. NRG's facility is classified as an industrial personal property. The entirety of Section 27-35-50(2) makes clear that different classifications of property use different methods of determining true value as determined by the DOR.

¶ 16. NRG also cites the Rebelwood Court's observation: "Rarely is the day when a competent appraisal may be based on a single approach." But this approach is outdated. After Rebelwood , the Legislature enacted Mississippi Code Section 27-35-50(4)(d). This statute mandates that the tax assessor use only one prescribed method, not a combination of methods, to determine the true value of affordable rental housing. Miss. Code. Ann. § 27-35-50(4)(d) (Rev. 2017). This Court upheld Section 27-35-50(4)(d) as constitutional in Willow Bend Estates, LLC v. Humphreys County Board of Supervisors , 166 So.3d 494 (Miss. 2013). Like in Willow Bend , NRG's expert used a valuation method different from the mandated approach. This Court held that the use of an approach other than the approach prescribed in the statute was not permitted. Id. Because Section 27-35-50 gives the DOR the exclusive authority to determine the method to be used to calculate true value, the DOR's regulation is mandatory and binding, as was the statute in Willow Bend .

¶ 17. Because the DOR mandates the use of the trended historical cost-less-depreciation approach to calculate the true value of property classified as industrial personal property (like NRG's facility) and because NRG's expert did not use this mandated approach, the circuit court did not err in excluding NRG's proffered expert testimony.

II. Denial of NRG's Motion for a Change of Venue

¶ 18. Whether to grant a motion for a change of venue "lies within the discretion of the trial court." Bayer Corp. v. Reed , 932 So.2d 786, 788 (Miss. 2006).

This Court "will not overturn that decision unless the trial court abuses its discretion." Id.

¶ 19. NRG argues that the circuit court erred in denying its motion to change venue because a majority of the ninety-one-person venire knew the tax assessor and the Board; therefore, they were not afforded a fair and impartial jury. We disagree. As the circuit court noted, "there is a big difference" between merely knowing someone and having a direct connection with them.

¶ 20. While it is true that many of the jurors stated they knew the tax assessor and the Board, this does not mean that they were biased. This Court has held, "a person is not incompetent as a juror merely because he knows, or is a neighbor, or an intimate acquaintance of, or on friendly relations with, one of the parties or members of his family." Harding v. Estate of Harding , 185 So.2d 452, 453 (Miss. 1966).

¶ 21. "[U]nder Mississippi law, any person not disqualified under Mississippi Code Annotated Section 13-5-1, who will make oath that he or she is impartial, is competent to sit as a juror." Patton v. State , 248 So.3d 763, 767 (Miss. 2018) (quoting Archer v. State , 986 So.2d 951, 958 (Miss. 2008) ). During voir dire, the circuit court struck every juror that said he or she could not be fair and impartial. Additionally, every juror NRG challenged for cause was dismissed by the court. "[J]urors take their oaths and responsibilities seriously, and when a prospective juror assures the court that, despite the circumstance that raises some question as to his qualification, this will not affect his verdict, this promise is entitled to considerable deference." Id. at 769 (quoting Scott v. Ball , 595 So.2d 848, 849 (Miss. 1992) ).

¶ 22. Because the jurors testified under oath that they could be fair and impartial, the circuit court did not err by denying NRG's motion to change venue.

CONCLUSION

¶ 23. This Court finds that NRG's proffered expert testimony used an inappropriate method to determine true value and that NRG was afforded a fair and impartial jury. This Court therefore affirms the judgment of the circuit court.

¶ 24. AFFIRMED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.

      NRG's power plant is classified as industrial personal property for taxation purposes. The classification is not in dispute.

      The sales-comparison approach determines value by analyzing "recent sales of comparable property"; Simzyk did not find sufficient comparable-sales data to value the facility. The income approach relies on estimates of gross income, "consider[ing] risk, availability of financing, and current market conditions"; Simzyk determined the value of the facility under the sales-comparison approach to be $167,300,000. Value under the cost approach is determined by calculating the "amount currently required to erect or construct a new plant of equal utility," less physical deterioration, functional obsolescence, and economic obsolescence; Simzyk found the facility under the cost approach to be $207,400,000.

      Every prospective juror NRG moved to be struck for cause was excluded by the circuit court.

      Section 11-51-77 was rewritten in 2018 to incorporate numerical subsections. See Miss. Code Ann. § 11-51-77 (Supp. 2018). Because NRG appealed before the effective date of the amendment, all references to Section 11-51-77 will be cited without the numerical subsections.


text:
    Shannon Craig PARKER v. STATE of Mississippi
    2016-CT-01502-SCT
    Supreme Court of Mississippi.
    Filed: September 18, 2018 Closed: December 13, 2018
    Certiorari - Granted.


text:
    Reinaldo BACALLAO v. MADISON COUNTY, Mississippi
    2017-CT-00043-COA
    Supreme Court of Mississippi.
    Filed: September 18, 2018 Closed: December 13, 2018
    Certiorari - Denied.


text:
    Mark Edward CAMPBELL v. Misty McDaniel CAMPBELL
    2017-CT-00331-COA
    Supreme Court of Mississippi.
    Filed: September 20, 2018 Closed: December 13, 2018
    Certiorari - Denied.


text:
    John Bartholomew LOWE v. STATE of Mississippi
    2016-CT-00214-COA
    Supreme Court of Mississippi.
    Filed: September 24, 2018 Closed: December 13, 2018
    Certiorari - Denied.


text:
    Marquan D. STOVER v. Elaine G. DAVIS
    2016-CT-01605-SCT
    Supreme Court of Mississippi.
    Filed: September 25, 2018 Closed: December 13, 2018
    Certiorari - Granted.


text:
    Leslie Danielle DEWITT v. STATE of Mississippi
    2016-CT-01704-COA
    Supreme Court of Mississippi.
    Filed: October 2, 2018 Closed: December 13, 2018
    Certiorari - Denied.


text:
    George HUEY v. RGIS INVENTORY SPECIALISTS;
    George Huey v. RGIS Inventory Specialists
    2017-CT-00524-COA, 2013-CT-00310-COA
    Supreme Court of Mississippi.
    Filed: October 3, 2018 Closed: December 13, 2018
    Certiorari - Denied.


text:
    Cederic YOUNG v. STATE of Mississippi
    2017-CT-00612-COA
    Supreme Court of Mississippi.
    Filed: September 11, 2018 Closed: December 13, 2018
    Certiorari - Denied.


text:
    Abdulkhaliq Mohammed MURSHID v. MISSISSIPPI BUREAU OF NARCOTICS
    2017-CT-00354-COA
    Supreme Court of Mississippi.
    Filed: September 14, 2018 Closed: December 6, 2018
    Certiorari - Denied.


text:
    Sarah HODNETT v. Timothy HODNETT
    2016-CT-00885-COA
    Supreme Court of Mississippi.
    Filed: September 25, 2018 Closed: December 13, 2018
    Certiorari - Denied.


text:
    GREENWOOD LEFLORE HOSPITAL v. Mark Anthony BENNETT
    2016-CT-00193-COA
    Supreme Court of Mississippi.
    Filed: October 2, 2018 Closed: December 13, 2018
    Certiorari - Denied.


text:
    Kacy WILLIAMS v. STATE of Mississippi
    2016-CT-01485-COA
    Supreme Court of Mississippi.
    Filed: October 5, 2018 Closed: December 13, 2018
    Certiorari - Denied.


text:
    Bettina GRANDBERRY v. RIH ACQUISITIONS MS II, LLC
    2017-CT-00258-COA
    Supreme Court of Mississippi.
    Filed: October 18, 2018 Closed: December 13, 2018
    Certiorari - Dismissed.


text:
    Jerry PAGE v. STATE of Mississippi
    2016-CT-01464-COA
    Supreme Court of Mississippi.
    Filed: November 19, 2018 Closed: December 13, 2018
    Certiorari - Dismissed.


author: LEE, C.J., FOR THE COURT:

text:
    Abdulkhaliq Mohammed MURSHID, Appellant v. STATE of Mississippi, EX REL. MISSISSIPPI BUREAU OF NARCOTICS, Appellee
    NO. 2017-CA-00354-COA
    Court of Appeals of Mississippi.
    May 8, 2018 Rehearing Denied August 28, 2018
    ATTORNEY FOR APPELLANT: P. SHAWN HARRIS, FOREST
    ATTORNEY FOR APPELLEE: ALLISON WALKER KILLEBREW
    BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. In this forfeiture case, we must determine whether the trial court's decision to grant the State's complaint for forfeiture is supported by substantial evidence.

PROCEDURAL HISTORY

¶ 2. On July 9, 2015, Abdulkhaliq Murshid was arrested for violating the Uniform Controlled Substances Law. Mushid was indicted for possession with intent to sell more than 200 grams of synthetic cannabinoids, a/k/a "spice," a Schedule I controlled substance. See Miss. Code Ann. § 41-29-139 (Supp. 2017). Due to the quantity involved, the charge qualifies as drug trafficking and carries a minimum sentence of ten years' imprisonment, a maximum sentence of forty years' imprisonment, and a fine of up to one million dollars. § 41-29-139(f). The State filed a complaint for forfeiture in the Lauderdale County Circuit Court, seeking certain property belonging to Murshid, including $227,278.26 in U.S. currency, two guns, a digital video recorder, a DVD player, and a computer tablet. Murshid filed a response arguing that the property was not subject to forfeiture. After a hearing, the trial court granted the State's request as to $131,729.26. The trial court denied the State's request as to the remainder of the currency ($95,549) and the property.

¶ 3. Murshid now appeals, arguing that the trial court erred by finding $131,729.26 was subject to forfeiture.

FACTS

¶ 4. On July 9, 2015, the Mississippi Bureau of Narcotics (MBN) executed a search warrant at the Meridian Tobacco Store, located at 4501 8th Street in Meridian, Mississippi. Murshid owned the store and operated it with his wife Susan. It was formerly named Chimney Tobacco Store and had been at a different location (5300 5th Street). The record is not clear when the store moved and changed names, but, prior to and after the store's name and location change, MBN agents made eight controlled buys at Chimney Tobacco and two controlled buys at Meridian Tobacco. According to the search warrant, all ten controlled buys occurred between July 30, 2014 and July 8, 2015.

¶ 5. That same day MBN agents went to Grey Cloud Discount Tobacco Store, located at 2012 Highway 45 North, to arrest Murshid. Murshid also owned Grey Cloud and several other stores in Meridian. Murshid was not at the store, but an MBN agent witnessed what he suspected were synthetic cannabinoids for sale. Another agent, Will Peterson, responded to the store to further investigate. Ultimately, Agent Peterson obtained a search warrant for Grey Cloud. During the search of Grey Cloud, agents discovered synthetic cannabinoids in a drawer near the cash register and in boxes in the office. Approximately 180 packages of suspected synthetic cannabinoids were seized. The agents also discovered the following in the office: approximately $28,000 in cash dispersed throughout several plastic bags; approximately $5,600 in cash locked in the office desk; $191,951 in cash locked inside a safe in the office; two guns; and various pieces of electronic equipment. At the forfeiture hearing, Agent Peterson testified that the items seized were in close proximity to the synthetic cannabinoids.

¶ 6. Murshid claimed that he thought the drugs were herbal incense and that his wife was responsible for ordering them. Murshid testified that $95,549 of the cash in the safe had been returned to him by the Drug Enforcement Agency in 2014. Murshid further testified that the remaining cash in his office was from his stores' earnings and his savings. He stated that he did not trust banks and would put the cash in his bank accounts as needed to cover business transactions and expenses.

STANDARD OF REVIEW

¶ 7. Our standard of review in forfeiture cases is as follows:

Forfeiture statutes are penal in nature and must be strictly construed. In a civil forfeiture case, the question is whether, given all of the evidence taken together, a rational trier of fact could have found that the funds were the product of or the instrumentalities of violations of the State's Uniform Controlled Substances Laws. The trier of fact may act on circumstantial evidence and inferences as well as direct evidence.

Evans v. City of Aberdeen , 925 So.2d 850, 853 (¶ 11) (Miss. Ct. App. 2005) (internal citations omitted). Our precedent further establishes that "[t]he appropriate standard of review in forfeiture cases is the familiar substantial evidence/clearly erroneous test. [The appellate court] will not disturb a circuit court's findings unless it has applied an erroneous legal standard to decide the question of fact." Six Thousand Dollars ($6,000) v. State ex rel. Miss. Bureau of Narcotics , 179 So.3d 1, 4 (¶ 4) (Miss. 2015) (citation omitted).

DISCUSSION

¶ 8. In his only issue on appeal, Murshid argues that the $131,729.26 was not in close proximity to the controlled substance and, as a result, the trial court erred by finding it was subject to forfeiture. Murshid contends that he met his burden to rebut the presumption that the money was forfeitable.

¶ 9. Mississippi Code Annotated section 41-29-153(a)(7) (Supp. 2017) states, "All monies, coin and currency found in close proximity to forfeitable controlled substances ... are presumed to be forfeitable under this paragraph; the burden of proof is upon claimants of the property to rebut this presumption." "Close proximity has not been strictly defined, but is instead understood to mean 'very near.' " Twenty Thousand Eight Hundred Dollars ($20,800.00) in U.S. Currency v. State ex rel. Miss. Bureau of Narcotics , 115 So.3d 137, 142 (¶ 23) (Miss. Ct. App. 2013) (citing Jones v. State ex rel. Miss. Dep't of Pub. Safety , 607 So.2d 23, 29-30 (Miss. 1991) ).

¶ 10. In One (1) Charter Arms, Bulldog 44 Special, Serial No. 794774 v. State ex rel. Moore , 721 So.2d 620, 624-25 (¶ 19) (Miss. 1998), our supreme court adopted a test to determine whether a forfeiture is lawful. We look to the following four elements:

(1) [t]he nexus between the offense and the property and the extent of the property's role in the offense;
(2) [t]he role and culpability of the owner;
(3) [t]he possibility of separating the offending property from the remainder; and
(4) [w]hether, after a review of all relevant facts, the forfeiture divests the owner of property which has a value that is grossly disproportionate to the crime or grossly disproportionate to the culpability of the owner.

Id. at 625 (¶ 19). "Essentially, the first three elements ensure a sufficiently close relationship between the property and the illegal activity. The fourth element protects offenders from forfeitures that are grossly disproportionate to the offense." Lewis v. State , 199 So.3d 1245, 1251 (¶ 12) (Miss. 2016) (citation omitted).

¶ 11. All of the money seized was found in Grey Cloud's office near a large quantity of synthetic cannabinoids. However, Murshid argues that the money seized was from a legitimate source of income, namely several businesses he owned in the area. To support his argument, Murshid submitted financial records, including tax returns and statements of assets and liabilities from several stores. The trial court, noting the above four elements, found that Murshid failed to rebut the presumption. The trial court found Murshid's testimony was unpersuasive, specifically stating that his testimony "was contradictory and not plausible." The trial court noted that Murshid presented a "maze of financial records, including statements of assets from various convenience stores and tax returns," but that upon questioning, Murshid "could only generally answer questions related to the substantive contents of the financial records."

¶ 12. Murshid testified that he gave the financial information to his CPA, Angie Shirley, and she prepared the financial documents. The trial court found inconsistencies within the documents, noting that the only exhibit with Shirley's name attached includes a letter from Shirley stating that "Management has elected to omit substantially all of the disclosures ordinarily included in financial statements prepared with the income tax basis of accounting." And the statements of assets for two other stores Murshid purportedly owned listed someone besides Murshid as the sole owner-Gas & Go and Smokers Express each listed Mohamed Hamood Mozip as the sole member of the LLC. Furthermore, Murshid stated that he gave the Chimney Tobacco store to his wife in 2013, well before the store changed its name and location. However, Murshid admittedly never legally transferred the business to his wife. Regardless, evidence indicated that out of the ten controlled buys at Chimney Tobacco and Meridian Tobacco between July 30, 2014 and July 8, 2015, the confidential informant purchased synthetic cannabinoids from Murshid himself six times, indicating Murshid's complicity. These controlled buys ultimately led the MBN agents to Grey Cloud where the money and additional synthetic cannabinoids were found.

¶ 13. The trial court determined that the only money Murshid proved was not subject to forfeiture was the $95,549 previously returned to him by the DEA. The trial court stated the quantity of synthetic cannabinoids indicated its use for sale, and as such, Murshid's reasons for having a large quantity of cash were "not plausible when taking the entirety of the evidence and testimony in consideration."

¶ 14. Lastly, the trial court concluded that the forfeiture did not divest Murshid of property with a value grossly disproportionate to the crime or to his culpability. The $131,729.26 in cash is minor when compared to the maximum $1,000,000 fine that could be imposed. This forfeited amount of cash is not grossly disproportionate to Murshid's crime or to his culpability.

¶ 15. Mindful of our standard of review, we cannot find the trial court erred in finding $131,729.26 was subject to forfeiture. This issue is without merit.

¶ 16. AFFIRMED.

IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      See Miss. Code Ann. §§ 41-29-101 to -191 (Rev. 2013 & Supp. 2017).

      At the time of the forfeiture hearing in January 2017, the criminal charges against Murshid were still pending.