IN THE SUPREME COURT OF MISSISSIPPI

NO. 2004-IA-00488-SCT

GERALD M. WARREN, HANCOCK BANK AND

GANNETT RIVER STATES PUBLISHING

COMPANY, INC. d/b/a THE HATTIESBURG

AMERICAN

v.

NEVON JOHNSTON d/b/a JOHNSTON

PROPERTIES

DATE OF JUDGMENT: 11/25/2003

TRIAL JUDGE: HON. JOHNNY LEE WILLIAMS

COURT FROM WHICH APPEALED: LAMAR COUNTY CHANCERY COURT

ATTORNEYS FOR APPELLANTS: THOMAS LYNN CARPENTER, JR.

DOUGLAS BAGWELL

RICHARD F. YARBOROUGH, JR.

JAMES W. CRAIG

LUTHER T. MUNFORD

MARK DAVID FIJMAN

CHRISTOPHER ROYCE SHAW

ATTORNEYS FOR APPELLEE: JERRY A. EVANS

LOWE ARTHUR HEWITT

NATURE OF THE CASE: CIVIL - OTHER

DISPOSITION: REVERSED AND REMANDED - 08/11/2005

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

DICKINSON, JUSTICE, FOR THE COURT:

¶1. This dispute o ver the validity of a foreclosure sale requires us to decide whether a

notice of foreclosure is a “legal notice” within the scope of a stat ute which unambiguously

states in pertinent part:1 It is undisputed that, at the time Warren commenced the foreclosure proceedings, The Lamar

Times/Times of South Mississippi ( “The Times” ) was located in Lamar County.

2 The chancellor allowed Gannett River States Publishing Company, Inc., d/b/a The Hattiesburg

American to intervene.

2 A newspaper otherwise qualified under this section which is published in a

municipality whose corporate limits encompass te rritory in more than one (1)

county shall be qualified to publish legal notices for any cou nty a portion of

w hose territory is included within the municipality, irrespective of the actual

physical location within the municipality of the principal public business office

of the newspaper.

Miss. Code Ann. § 13-3-31(4) (Rev. 2002).

BACKGROUND FACTS AND PROCEEDINGS

¶2. Nevon Johnston d/b/a Johnston Properti es defaulted on a promissory note due to

Hancock Bank (the “Bank”). The note was secured by deeds of trust on certain real property

(“Property”) located in Lamar County. The trustee of the deeds of trust, Gerald M. Warren,

instituted foreclosu

re of the Property by placing notices in T he Hattiesburg American

, a

newspaper published in the Forrest County portion of Hattiesburg. The municipal boundaries

of Hattiesburg also reach into Lamar County. The foreclosure sale took place on August 7,

2002.

¶3. Claiming that the foreclosure sale was inval id, Johnston filed suit against Hancock

Bank, Warren, and the purchasers of the Property. The chancellor, persuaded that the

foreclosure notices should have been placed in a newspaper located in Lamar County, 1 set

aside the foreclosure sale. Warren, joined by the Bank and T he Hattiesburg American

, 2 filed

a motion for interlocutory appeal which we granted. See M.R.A.P. 5.3 DISCUSSION

I. Does Mississippi Cod e Annotated Section 13-3-31(4) permit

publicatio n in T

he Hattiesburg American of a foreclosure of

property located in Lamar County?

¶4. Where, as here, we are required to interpret statutory provisi ons, our standard of review

is de novo. S anders v. Chamb lee

, 819 So. 2d 1275, 1277 (Miss. 2002); R oberts v. New

Albany Separate Sch. Dist.

, 813 So. 2d 729, 730-31 (Miss. 2 002); Carrington v. Methodist

Med. Ctr., Inc. , 740 So. 2d 827, 829 (Miss.1999).

Section 13-3-31

¶5. Because our decision turns on o ur interpretation of Miss. Code Ann. § 13-3-31(4), we

again set forth the language selected by our Legislature for inclusion therein:

A newspaper otherwise q ualified under this section which is published in a

municipality whose corporate limits encompass territory in more than one (1)

c ounty shall be qualified to publish legal notices for any county a portion of

whose territ o ry is included within the municipality, irrespective of the actual

physical location within the municipality of the principal public business office

of the newspaper.

¶6. If this statute applies to foreclosure proceedings, then it clearly, unquestionably and

unambiguously permitted the notice of f oreclosure to be published in T he Hattiesburg

American

.

¶7. According to th

e statute’s clear provisions, T he Hattiesburg American is “qualified to

publish legal notices” for Lamar County if it meets the following requirements:

1. It must be “otherwise qualified under [§13-3-31];”

2. Hattiesburg’s corporate limits must “encompass territory in more than one

county;” and4

3. Lamar County must be a “county a portion of whose te rritory is included within

[Hattiesburg].”

¶8. Find ing no dispute in this case that these three statutory requirements are met, we must

conclude that The Hattiesburg American is “q ualified to publish legal notices” for Lamar

Coun ty. Our conclusion thus requires us to address whether publication of notice of a

foreclosure

sale is publication of “legal notice.” Since simple logic demands that it is, and

since neither the appellant urge a different conclus ion, we find that notice of a foreclosure

sale is a “legal notice.”

¶9. Thus , every requirement and provision of Section 13-3-31(4) has been met, leading us

to two inescapable conclusions: Section 13-3-31(4) applies to the notice of foreclosure, and

the notice of foreclosure published in The Hattiesburg American was valid and authorized by

the statute.

¶10. We find further support for our conclusions in the f irst subsection of the statute which

provides: “Whenever it is required by law that any summon s, order, citation, advertisement or

other legal notice shall be published in a newspaper in this state, it shall mean

. . . .”Miss. Code

Ann. §13-3-31(1) (Rev. 2002). This language seems to us difficult to misunderstand.

Although notice of a foreclosure sale may not be a “summons, order [or] citation,” it is clearly

an “advertisement” for the sale of property. Indeed, section 89-1-55 – which squarely

addresses foreclosure proceedings

– mandates that the “sale of said lan ds shall be a dvertised

. . . .” (Miss. Code Ann. § 89-1-55 (emphasis added). We find it equally clear, although

unnecessary to our decision, that the notice of a foreclosure sale is a “legal notice.”

Section 89-1-555

¶11. Johnston relies on the provisions of Mis s. Code Ann. § 89-1-55(1999), which provides

in relevant part that: “Sale of said lands shall be advertised for t hree consecutive weeks

preceding such sale, in a newspaper p ublished in the county

, or if none is published, in some

paper having general circulation therein , . . .”(emphasis added). This statute, Johnston urges,

is an unambi

guous mandate that the advertisement of the foreclosure appear in a newspaper

published in Lamar County. However, the statute requires that the notice be “published in the

county,” and the provisions of § 13-3-31(4) clearly qualify publication in T he Hattiesbu r g

American as publication in Lamar County. Stated another way, The Hattiesburg American is

deemed to be published in Lamar County pursuant to the clear provisions of §13-3-31(4).

¶12. It seems to us illogical to say that a clear, unambiguous right granted by Miss. Code

Ann. § 13-3-34(4), may be ignored because the righ t is not repeated or spelled out in § 89-1-

55. The Mississippi Code is filled with clear, unambiguous statutes which nevertheless are

explained and defined in other statut es. For instance, Miss. Code Ann. § 97-17-1(1) provides

that “ [a]ny person who willfully and maliciously sets fi re . . . shall be guilty of arson in the

first degree, and

. . . sentenced to

. . . not less than five (5) nor more than twenty (20) years .

. . .”(emphasis added). There is nothing ambiguous about the term, “any person.” Yet, we know

that youth offenders who qualify under the specific provisions of another sentencing statute

are subject to the jurisdiction of the youth court and are not includ e d in the “any person”

provision of § 97-17-1(1).

¶13. In his order invalidating the foreclosure sale, the Chancellor referenced Cook v. Taylor

,

200 Miss. 381, 27 So. 2d 404, 407 (1946), in which this Court held that even though the land

in question actu

ally lay in two counties, publication in only the county where the majority of6

the land was located was inadequate, and therefore the subsequent foreclosure sale was

rendered void. By doing so, this Court upheld the language of § 89-1-55 by stating that

pub lication in only the one county would have been proper only if no paper existed in the other

county. Id.

¶14. Unlike a city which includes l and from two counties, land which lies in two different

counties is no t addressed by a specific statute. Thus, C ook is of no value in our analysis of this

case.

The 2004 amendment to §13-3-31

¶15. In its 200 4 regular session, the Legislature amended 13-3-31(4) to specifically include

“foreclosure sale notices as des cribed in Section 89-1-55.” Miss. Code Ann. § 13-3-31. If

prior to its amendment, Section 13-3-31(4) already provided clear authority for publication

of notice of the foreclosure sale in The Ha ttiesburg American , why then (one might ask)

would the Legislature amend the st atute to specifically say the statute applies to foreclosure

sales? In other words, if, as we hold today, it already applied to foreclosures, what was the

need for an amendment?

¶16. We are requ

ired by our Constitution to simply interpret statutes according to their clear

meaning. We do not believe we are required or authorized to speculate why the Legislature

does what it does. One given to speculation, however, might find the following possibility

quite plausible:

The amendment was enacted as a result of this very case. In his lawsuit filed in

F ebruary, 2003, Johnson raises

– for the first time in history

– an argument that

§ 13-3-34(4) does not apply to notice of a for eclosure sale. The Legislature,

learning of the position taken by Johnso n in the lawsuit, and wishing to make it7

c lear that the statute does in fact apply to notice of a foreclosure sale, enacts the

amendment at its very next opportunity.

We find this speculative scenario is at least as plausible as the idea t hat – out of a clear, blue

sky

– the Legislature decided for t he first time to extend the provisions of the statute to

foreclosure sales. And this, at the exact same time a lawsuit is pending wherein the issue had

been raised. To paraphrase Yogi Berra, this would be too much of a coincidence to be a

coincidence.

¶17. Without speculation, and simply reading the clear words of § 13-3-34(4), prior to its

amendment, we hold that the publication in The Hattiesburg American was proper.

II. Even if Mississippi Code Ann o tated Section 13-3-31(4) is properly

construed to permit publication of the Lamar County foreclosure

no tices in T

he Hattiesburg American

, should it also be used to

construe the language in the deed of trust in this case?

¶18. Johnson argues that , regardless of the provisions of the statute, the language in the deed

of trust required publication in the Times

. Each of the subject deeds of trust included the

following language:

Sale of the property shall be advertised for three consecutive week s preceding

the sale in a newspaper published in the county where the property is situated,

or if none is so published, then in some newspaper having general circulation

therein, and by posting a notice for the same time at the courthouse of the same

county. . . .

¶19. The exact same langu age is employed in the deed of trust as was selected by the

Legis lature in § 89-1-55, which requires that the sale be advertised “ in a newspaper

p ublished in the county.

. . .” This, of course, brings us right back to the question of what it

means for a newspaper to be “published in the county,” and again we find that §13-3-31(4)

qualifies The Hattiesburg American as a newspaper published in Lamar County.8 CONCLUSION

¶20. For the aforementioned reasons, this Court reverses the chancellor’s denial of th e

motion for summary judgment fi led by Warren and joined by the Bank and T he Hattiesburg

American

, as intervenor

. T his Court also reverse s the chancellor’s decision to set aside the

foreclosure sale. This case is remanded for further proceedings consistent with this opinion.

¶21. REVERSED AND REMANDED.

SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY AND CARLSON, JJ.,

CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ

AND RANDOLPH, JJ., NOT PARTICIPATING.