IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CA-01743-COA ENSCOR, LLC, JEFFREY C. SMITH AND CYNTHIA H. SMITH, INDIVIDUALLY APPELLANTS

v. ED MORGAN, IN HIS OFFICIAL CAPACITY AS THE COMMISSIONER OF REVENUE OF THE MISSISSIPPI DEPARTMENT OF REVENUE APPELLEE

DATE OF JUDGMENT: 11/17/2016 TRIAL JUDGE: HON. W ILLIAM H. SINGLETARY COURT FROM W HICH APPEALED: HINDS COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT ATTORNEYS FOR APPELLANTS: JAMES GARY MCGEE JR. W I LLIAM HARRISON W EBB ATTORNEYS FOR APPELLEE: JOHN STEW ART STRINGER LARA E. GILL NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: AFFIRMED - 05/15/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., BARNES AND WILSON, JJ. BARNES, J., FOR THE COURT: ¶1. Enscor LLC (Enscor), a Tennessee-based general construction com p any licensed in Mississippi, was audited by the M ississippi Departm ent of Revenue (DOR) f or the tax period beginning April 1, 2011, and e nding April 30, 2014. A notice of the audit w as s ent to Enscor
via certif ied m ail. Following the audit, the DOR i ssued Enscor a w ithholding tax assessm ent
of $51,099. ¶2. On Octob e r 2 3 , 2 0 1 4 , Enscor, through its attorney and authorized representative,Jam es M c G e e J r
. , appealed the assessm ent to the DOR’s Board o f Review p ursuant to

Mississippi Code Annotated section 27-77-5(1) (Rev. 2010), which provides in part: Any taxpay er aggrieved by an assessm ent of tax by the agency
. . . and w ho wishes to contest the action of the agency s hall, within sixty (60) day s f rom the dat e o f t he action, f

ile an appeal in writing with the [ B]oard of [ R]eview requesting a hearing and correction of the contested a c tion specif y ing in detail the relief r equested and any other i n f o r ma t ion that m i ght be required by regulation.
McGee instructed t he DOR to f orward all f

urther com m

u ni c a t ions to his law of

f ice in Jackson, Mississippi. The Board of Review scheduled a hearing on t he appeal f or March 19, 2015, and m ailed a letter to McGee’s of f ice on Novem

ber 12, 2014, as n otif

ication of the hearing. The letter stated that the f ailure to a p p e a r a t the hearing would constitute a
withdrawal of the appeal and, once withdrawn, the assessm ent could not be appealed. 1 On
March 11, 2015, the DOR s ent an em ail to Sandra Crosby , an e m ploy ee with McGee’s f

irm ,

as a courtesy r em inder of the hea r i n g
. However, no Enscor representative attended the hearing; so the Board of R eview involuntarily withdrew Enscor’s appeal, m a king the

assessm ent subject to collection by the DOR. ¶3. Upon learning of the involuntary w ithdrawal of its appeal, Enscor insisted it did not
receive notif

ication of t he h earing date and f iled a tim ely p etition contesting the w ithdrawal
with th e M i s s i ssippi Board of Tax Appeals (BTA). The BTA scheduled a hearing on February 17, 2016, spec i f i c a lly to address the i ssue of the withdrawal of Enscor’s appeal.

1 T h is n o tice w as in acco rd an ce w ith M ississip p i C o d e A n n o tated sectio n 2 7 -7 7 -5 (2 ) (R ev
. 2 0 1 0 ), w h ich states th at th e “[ f ] ailu re o f th e tax p ay e r o r h is d esig n ated rep resen tativ e to atten d a h earin g o r to s u b m it h i s p o sitio n in w ritin g o r b y electro n ic tran s m issio n b y th e d ate sp ecif

ied b y th e [ B ] o ard o f

[ R ] ev iew o r b y th e h earin g d ate, if n o d ate w a s sp ecif

ied , sh all co n stitu t e a w ith d raw al o f th e ap p eal.”
2At the hearing, the D OR argued that once the appeal had been involuntarily w ithdrawn, the

m atter was f

inal a nd “no longer subject to revi e w b y t h e R e v iew Board, [ BTA], or any court,” citing section 27-77-5(8) (Rev. 2010), which read:
Once an appeal is w ithdrawn, whether voluntary or involuntary , the action f rom which the appeal was taken, whether a tax assessm e n t , a d e n i al of [ a] ref und claim , a denial of [ a] waiver of tax penalty , or an order o f t he [ B]oard of [ R]eview, shall b e c o me f i nal and not subject t o further review by the [ B ] oard o f [ R ] eview, the [ BTA ] or a court . The agency s hall then proceed in accordance with law based on such f inal action. (Em phasis added). The DOR f urther asserted that Enscor had f ailed to rebut the presum

ption
that notice of the hearing “was properly delivered and received.” Enscor was r epresented at

t h e h e a ring by another attorney with McGee’s law f irm

. Requesting that the BTA g r a n t Enscor’s request to reconsider the audit results, Enscor’s counsel explained:

In s um m a ry , we do n ot contest the f actual and legal conclusions r eached by the [ DOR] on [ its] m otion to dism iss. It s eem s pretty straightf orward i n this c ase that generally not appearing bef o re t he B oard of Review would result in an involuntary

withdrawal of the appeal.

A s I ’ m sure [ y ou] a re all a ware, we represent hundreds of clients bef or e t h e [ DOR] in d i sputes all t he tim e
. I t was never our intention to withdraw the appeal or to som ehow negligently f ail to appear.
That being said, we would like to s ubm it to t h e B o a r d that it was an unf ortunate s equence of e vents that occurred in our of f ices which led us to not put the Board of

Review date on our calendar. ¶4. On March 2, 2016, t he BTA af f irm ed the Board of Review’s decision to involuntarily
withdraw Enscor’s adm inistrative appeal, concluding:

IT IS, THEREFORE, HEREBY ORDERED AND ADJUDGED by the [ BTA] that the [ DOR’s m ]otion to [ d]ism iss is sustained and the t axpay ers’ appeal is DISMISSED with prejudice and that t he tax assessm ent f rom which the appeal was taken has becom e f

inal and is not subject to further review by the Board

3of

Review, the [ BTA ] or a court and that the [ DOR] m ay proceed in a ccordance with law based upon such f inal action. (Em phasis added). The DOR i nstituted collections on t h e w i t hholding tax assessm ent by enrolling a lien against Enscor. ¶5. S e e k i n g r e l ief

, Enscor, along with Jef f rey and Cy

nthia S m ith (the p r i n c i p a l s o f Enscor), f iled a com

plaint w ith the Hinds County Chancery Court on June 22, 2016, against
Ed Morgan, in his of

f icial capacity as Com m issioner of the DOR. 2 The action r equested that
the chancery c ourt assum e jurisdiction under Mississippi Code A n notated section 11-13-11 (Rev. 2004), which p r o v i d e s t he chancery c ourt with “jurisdiction of suits b y one or m ore taxpay ers in any county , city , town[ ,] or village, to restrain the c o llection of taxes levied or

attem pted to be levied without authority of l aw.” Determ ining whether j urisdiction is proper
under section 11-13-11 requires t he application o f a three-part guideline b y t h e c h a n cery

court: (1) whether t he aggrieved t axpay er alleges an inadequate rem edy at law in his
com plaint; (2) whether there is not an adequate rem edy a t law available to the aggrieved taxpay er; a nd (3) whether t he taxpay er’s allegations of f act, if proven to b e true, warrant a conclusion that the t axes a re b eing collected or levied without authority

of law.
Bankston v. Miss. Dep’t of Revenue , 95 S o
. 3d 1275, 1 2 7 7-78 (¶7) (Miss. Ct. App. 2012). Asserting that it had “satisf i ed the criteria” f

o r the court to exercise jurisdiction and that the
DOR assessed the w ith h o l d i n g tax without authority of l aw, Enscor sought to vacate the
BTA’s f indings and enjoin the DOR f rom the collection of

said taxes.

2 A s o f th e d ate o f th e B T A o rd er, th e D O R h ad m ad e n o attem p t t o co llect a n y o f th e tax ass e s s me n t o w ed d irectly f ro m E n sco r ’s p rin c ip als, th e S m ith s. We w i ll ref er to th e ap p ellan ts co l l ectiv ely as “E n sco r” u n less o th e rw i se sp ecif ied

. 4¶6. The DOR f iled a m o tion to dism iss, o r in the a lternativ e , a mo t i o n f o r s um m ary judgm ent. It c laim ed the chancery court lacked subject-m atter jurisdiction because Enscor
did not suf

f iciently plead all the requisite e lem ents f or j urisdiction under section 11-13-11, noting E nscor had an adequate r em edy under l aw to appeal the BTA’s order under section 27-77-7(1), which provides f or judicial review o f a BTA order by a taxpay er. 3 A lternatively , the DOR argued that s hould t he court determ ine it h ad subject-m atter jurisdiction, the DOR’s
notif ication of t he March 1 9 , 2015 hearing satisf ied d ue process, and the Sm iths f ailed to

state a claim u pon which relief could be granted since the DOR levied the tax assessm ent against E nscor, not the Sm iths as individual plaintif f s. In response, Enscor subm itted an
af f idavit f rom Crosby , McGee’s em ploy ee, which stated that af ter a t horough search, “there exist[ ed] no records of McGee Tax Firm ever receiving a [ n]otice f r om the Board of Review advising us o r [ Enscor] that a hearing had been scheduled bef ore t he Board o f Review in this

m atter.” ¶7. Af ter a review of t he pleadings and a h earing, t he chancery court granted t he DOR’s

m otion to dism iss with p rejudice on N ovem b e r 1 7 , 2 0 1 6

. T he c h ancery court f ound that

Enscor had f

a i led to perf

ect subject-m atter jurisdiction because it did not exhaust its

a d m inistrative rem edies as required by law under Mississippi Code Annotated section 27-77

- 5(8) (Rev. 2015), which provided a recently added exception to the f inality o f r eview f

or “the
issue of whether a taxpay e r’s actions or inaction constituted a f ailure on the part of the

3 S ectio n 2 7 -7 7 -7 (1 ) stated in p art: “T h e f i n d in g s an d o rd er o f th e [ B T A ] en t e r e d
u n d er S ectio n 2 7 -7 7 -5 sh all b e f i n al u n less t h e a g en cy o r th e tax p ay er sh all, w ith i n s ix ty (6 0 ) d ay s f ro m th e d a te o f

th e o rd er, f

ile a p etitio n in th e ch an c ery co u rt ap p ealin g th e o rd er.”
5taxpay er to prosecute his appeal.” 4 Thus, t h e c h a ncery c ourt determ ined that it was

“precluded f

rom c onsidering whether the f acts support the concl u s i o n t hat the taxes were collected without authority of law.” ¶8. Aggrieved, Enscor appeals. W hile we f i nd that the chancery court erred in holding
that Enscor had an a dequate rem e dy a t law available, we conclude that neither the f actual allegations in the pleadings nor the sum m ary -judgm ent m a t erials support the conclusion that the DOR acted without authority of law. Accordingly , we af f irm on alternative grounds.
ANALYSIS ¶9. Enscor argues that the chancery court erred in granting the DOR’s m otion to dism iss
b ecause the court had s u

bject-m atter jurisdiction over Enscor’s claim u n d e r s e c t i o n 1 1

- 1 3

- 1 1

. “A dism issal f

or lack o f subject[ -]m a tter jurisdiction is r eviewed de n ovo.” S chmidt v.
Catholic Diocese of

Biloxi , 18 So. 3 d 814, 821 (¶13) (Miss. 2009) (citing R obinson v. TCI/US

We s t Commc ’ ns , 117 F.3d 900, 904 (5th Cir. 1997)). “W hen considering a m otion t o
dism iss, t he allegations in the c om plaint m ust be taken as true, and the m otion should not be granted u n l e s s i t a ppears b ey ond doubt that t he plaintif f will be unable to prove a ny set of
f acts in support of his claim .” Jones v. Billy , 798 So. 2d 1 238, 1239 (¶2) (Miss. 2001) (citing Lang v. Bay St. Louis/W

aveland Sch. Dist. , 764 So. 2d 1234, 1236 (¶7) (Miss. 1999)). ¶10. As m entioned, a chancery court has subject-m a t ter jur i s d i c t i o n o v e r a taxpay er’s
claim s to restrain the collection o f t a x es where the f ollowing criteria are m et: (1) the aggrieved taxpay er’s com plaint alleges “ an in a d e q u a t e rem e dy a t law”; (2) no adequate

4 A 2 0 1 5 am en d m en t to sectio n 2 7

- 7 7 -5 (8 ) p ro v id e d th is ad d itio n al lan g u ag e allo w in g f

o r an ap p eal o f

th is d istin ct issu e. 6r e me d y a t law is available to t he taxpay er; and (3) the f a ctual allegations m ade by t h e taxpay er, if proven, “warrant a conclusion” that the challenged t axes “are b eing collected or levied without authority

of law.” Bankston , 95 S o. 3d a t 1277-78 (¶7). Enscor claim s that it “acted properly in f

iling its [ p]etition under [ s ection] 11-13-11” and “ satisf i ed the threepronged analy sis which sets f orth the threshold c riteria f or the [ c]hancery [ c]ourt t o exercise jurisdiction over this case.” ¶11. T h e chancellor determ ined that Enscor had an a dequate rem edy at law, but E n s c o r
contends it had no available rem edy t o challenge the involuntary w ithdrawal of its appeal.
The basis f

or the chancellor’s f

inding was the 2015 r evision to section 27-77-5(8), which provided in part:
Once an appeal is w ithdrawn, whether voluntary or involuntary , the action f rom which t he appeal was taken, whether a tax assessm ent, a denial of ref u nd claim , a denial of waiver o f tax penalty , o r the denial of a c l aim to tax credits
or incentives, or an order of the Board of Review, shall becom e f inal and not subject to f

urther review by the Board of Review, the [ BTA] o r a court, other than as to t

he issue o f whether a taxpayer ’ s actions or inactions constituted a failure on the p art o

f the taxpayer to prosecute his appeal . The agency shall then proceed in accordance with law based on such f inal action. (Em phasis added). The parties do not dispute that the 2015 revision was not applicable in
this case because the taxes were assessed in 2014. 5 Rather, t he present case is governed by

5 S ectio n 1 9 o f H o u se B ill 7 9 9 , w h ich p ro v id ed th e 2 0 1 5 am e n d m en ts to sectio n 2 7

- 7 7 -5 , stated th at t h e p ro v i sio n s o f th e law in ef f ect at th e t im e o f a n assessm en t w ere to rem ain in ef

f ect f o r th e p u rp o ses o f

an ad m in istrativ e ap p eal o r j u d icial rev iew :
N o th in g in S ectio n s 1 5 , 1 6 o r 1 7 o f th is act sh all af f ect o r d ef

eat an y assessm en t, ref

u n d claim , req u est f

o r w aiv er o f a tax p en a lty o r claim f o r tax cred its o r in c en tiv es o r th e ad m in istrativ e ap p e al o r j u d i cial ap p eal th ereo f
w h ere th e in itial d ate o f said assessm en t, ref u n d claim , tag p en alty , claim f o r tax cred its o r in c en tiv es is b ef o re th e d ate o n w h ich th is act b eco m es ef f ectiv e. 7the 2010 version of s ection 27-77-5(8), which stated that “ [ o]nce an appeal is withdrawn,

whether voluntary o r involuntary , the action f rom which the a

pp e a l was taken

. . . shall
becom e f i nal and not subject to fur t h e r r e v i ew by the [ B ] oard of [ R ] e view, the [ BTA ] or a

court .” (Em

phasis added). See also Virk v. Miss. Dep ’ t

. of Revenue , 133 So. 3d 809, 813-15 (¶¶8-11) (Miss. 2014) (upholding a chancery court’s f inding that the appellant’s f ailure to
attend a Board of Review hearing “m ade his assessm ent f inal” and determ ining there was no statutory authority under section 2 7-77-5(8) to h e a r h i s appeal in the BTA or t he chancery court). ¶12. However, the DOR argues that because Mississippi Code Annotated section 27-77- 7(1) ( Rev. 2010) provided f or j udicia l r e v iew of a BTA ruling, Enscor was af f orded an adequate r em edy at law under that statute to challenge the appeal’s involuntary withdrawal.

To support its argum ent, the DOR cites Bankston , in which this Court upheld a c h a n cery

court ’ s fi nding t hat it l acked subject-m atter jurisdiction because the claim ant had an adequate

rem edy at law under section 27-77-7(1). Bankston , 95 So. 3d at 1278 (¶9). But unlike the
present case, t h e appellant’s ability to appeal in Bankston o riginated f rom Mississippi Code
Annotated section 27-77-5(4) (Rev. 2005), which allowed f or a taxpay e r t o appeal “the issue

T h e p r o v isio n s o f t h e l aw s relatin g to th e ad m in istrativ e ap p e al o r j u d i cial
rev iew o f su ch actio n s w h ich w e re in ef f ect p rio r to th e ef

f ectiv e d ate o f th is act are e x p ressly c o n tin u ed in f u ll f o rce, e f f ect an d o p eratio n f

o r th e p u rp o se o f p ro v id in g an a d mi n istrativ e ap p eal an d /o r j u d icial rev iew o f an y assessm en t, ref

u n d claim , req u est f

o r w aiv er o f a tag p en alty o r claim f o r tax cred its o r in cen tiv es w h ere th e in itial d a te o f s aid assessm en t, ref u n d claim , tag p e n alty , claim f

o r tax cred its o r in cen tiv es is b ef o re t h e d ate o n w h ich th is act b eco m es ef

f ectiv e.
2 0 1 4 M iss. L aw s ch . 4 7 6 , § 1 9

. 8of whether a written appeal f r om t he order of the Board was tim ely f iled with the [ State Tax]
Com m i ssion.” 6 Id . at 1278 (¶8) (quoting section 27-77-5(4)). 7 ¶13. Theref

ore , w e f i n d B a n k s t o n d i stinguishable. Here, the 2 010 version of section 27-77- 5(8) precluded Enscor f rom appealing the assessm ent and deprived the B TA f rom jurisdiction over s aid appeal. Enscor properly alleged an inadequate r em edy at law, and no adequate rem edy at law was available t o r eview the involuntary withdrawal of Enscor’s appeal. Accordingly , the chancery court’s f inding that E nscor had an adequate rem e dy at law under section 27-77-5(8) was erroneous. ¶14. The cha n c e r y c o u r t d i d n o t a d d r e ss Enscor’s claim t hat the DOR acted without authority o f law in levy ing the t ax assessm ent. Enscor does n ot dispute that it was notif ied
of the tax assessm ent levied against it; nor does it contend t hat the DOR lacked au t h o r i ty
under the law to levy the taxes. Rather, Enscor argues that the DOR acted without authority

o f l aw by f

ailing to notif

y Enscor of the Board of Review hearing a n d to pr o v i d e i t a n opportunity to def

end itself , which it asserts was a violation o f its due-process rights. Upon review, we f

ind that t he allegations contained in t h e pleadings, “if proven,” f ail to support
Enscor’s claim

. ¶15. “Due process does not require that a property owner receive actual notice b ef ore the

6 T h is is s im i lar lan g u ag e to th a t in th e rev ised 2 0 1 5 v e rsio n o f 2 7 -7 7 -5 ( 8 ) allo w i n g an ap p eal f

o r “ th e issu e o f w h eth er a tax p ay er’s a ctio n s o r in actio n s c o n stitu ted a f ailu re o n th e p art o f

th e tax p ay er to p ro secu te h is ap p eal.”

7 A s i n th is case, w e n o ted i n B a n ksto n th at th e ap p licab l e statu te h a d b een am en d ed , b u t b ecau se “th e actio n p red a ted th e am en d m en t,” th e C o u r t’s an aly s is n ecessarily r elied “o n th e statu te as it ex isted b ef o re th e am e n d m en t.” B a n ksto n , 9 5 S o . 3 d at 1 2 7 6 n .2

.

9governm ent m ay t ake his property .” Jones v. Flowers , 547 U.S. 2 20, 226 (2006). Rather,

“due process requires the governm ent to p rovide ‘notice r easonably calculated, under all the
circum stances, t o apprise interested parties of the pendency of the action and af f ord them an opportunity to present their objections.’” Id

. ( q uoting Mullane v. Cent. H anover Bank &
Trust Co. , 339 U.S. 306, 314 (1950)).
This notice m

ust be of such n a t u re as reasonably to convey the required inf orm ation, and i t m

ust af f ord a reasonable tim e f

or those interested to m ake their appearance. But if w ith due regard f or the practicalities and peculiarities of the c ase these conditions are reasonably m et the constitutional requirem ents are satisf ied.
Mullane , 339 U.S. at 314-15 (citations om itted). ¶16. I n i t s c o mp l a i n t , Enscor asserted that neither it nor its representative “recei v e d a

t im ely notice f

rom the [ DOR] t hat a hearing date had been scheduled f or [ the] a p p e a l

. ”

Enscor acknowledged the notif ication letter was “ allegedly sent ” t o McGee and adm itted that

a c opy of the letter w as “subsequently provided to counsel” af ter the hearing, af

f i rm ing the
existence of the letter. However, Enscor argued that this notice “was not provided in t im e

to m ake any one aware” of the hearing. 8 Enscor f urther asserted that the DOR was “unable

to provide any docum entation that this [ n]otice w as actually sent to or received by [ Enscor’s] representative[ ,]” because the “im portant docum ent” was sent “m erely

. . . via regular U.S.

m ail.” In other words, t he DOR had no certif ied m ail receipt to dem onstrate t he notice was

8 A co p y o f a l etter d ated N o v e m b er 1 2 , 2 0 1 4 , n o tif

y in g E n sc o r o f th e h e arin g an d ad d ressed to E n sco r’s d esig n ated rep resen tativ e , M cG ee, w a s attach ed to th e D O R ’s m o tio n to d ism iss, alo n g w ith af

f id a v its o f th e D O R ’s stan d ard o p eratin g p ro ced u res w ith reg a rd to th e m ailin g o f n o tices. T h is w ill b e m o re f u lly a d d ressed in o u r d iscu ssio n o f th e D O R ’s altern ativ e su m m ary -j u d g m en t m o tio n
. 1 0sent or received.

¶17. “[ A] ‘m ere denial o f receipt [ of notice] is insuf f i cient to create a triable issue of f act.’”
Holt v. Miss. Emp ’ t Sec. Comm ’ n , 724 So. 2d 466, 470 (¶19) (Miss. Ct. App. 1998) (quoting Fidelity Fin. S

ervs. v. Stewart , 6 0 8 So. 2d 1111, 1113 (Miss. 1 992)). H ere, Enscor’s pleadings m erely deny receipt of notice. Moreover, the DOR was not required under the law

to send notice by certif

i ed m ail. M ississippi Code Annotated section 27-77-1(o) (Rev. 2010) provided: “Mail,” “m ailed” or “m ailing” m e ans placing the docu me n t or item ref erred to in f irst-class U nited States m ail, postage prepaid, addressed to the person to
w h o m the docum ent or item is to be sent at the l ast known address of t hat person. W here a person is re p r e s e n t e d in an adm inistrative a ppeal bef ore a hearing of

f icer, the [ B]oard of [ R ]eview or t h e [ B T A] by a d esignated representative, the t e rm s “ m ail,” “m ailed” or “m ailing” when ref erring to sending a docum ent or i t e m to that person shall also m ean placing the docum ent o r item ref

e rred to in f

irst-class United States m ail, postage prepaid, to the last known address of that person’s designated r epresentative. Mailing to the designated representative of a taxpayer

. . . shall constitute mailing a nd notice to the taxpayer [

. ] (Em phasis added). “There is a presum ption that m ail deposited, po s t a g e p r epaid and properly a ddressed i s tim ely delivered to the p erson a ddressed.” Thames v. Smith Ins. Agency

Inc. , 7 10 S o. 2d 1213, 1216 (¶16) (Miss

. 1 9 9 8 ) ( c i t i ng Hagner v. United States , 285 U.S. 427, 430 (1932)). ¶18. W i th regard to the courtesy em ail rem inder sent a w eek b e f o r e t h e h e a ring, it is
evident f r om the pleadings that Enscor’s f ailure to receive this later notice o f the hearing was
due not to any f

ailure on the part o f t h e D O R , but to t he law f irm ’s c o m

puter sy stem designating the em ail as “spam ” and placing it in a separate “spam ” f o lder. The pleadings

1 1stated: [ O]n M arch 11, 2015, Ms. Sandrel Nichols, a n a dm inistrative assistant

em ploy ed b y the [ DOR], allegedly sent an e m ail to [ McGee] advising that the hearing w as scheduled f

or t he date listed a

b ove. H owever, [ McGee] never received this correspondence and was unable to reply accordingly

. I t w as o nly
some time later that the email was discovered, i n the representative ’ s spam folder

. . . . Having never received any notice that a hearing had been scheduled
on their b ehalf b y the [ DOR’s] B oard of Review, neither the Plaintif f s no[ r] their representative appeared or presented a ny argum ents or evidence t o the Def endants in advance of

the unilaterally s cheduled hearing. ( E mp h a s is added). W e f ind i t som ewhat disingenuous t hat Enscor would assert the em ail was “allegedly

sent,” but adm it that the em ail was later discovered in its “spam ” f older. ¶19. We f

i n d that the pleadings show that th e D O R p r o v i d e d n o t i c e “ r e a s o n a b l y
calculated” to notif

y Enscor of the hearing and af f ord it a n opportunity to dispute the tax

assessm ent. Accordingly , while Enscor satisf ied the f i rst t wo c r i t e r i a u

n d e r s ection 11-13-11,

we f ind the pleadings f

a iled t o dem onstrate that t he DOR acted without authority of law, and

we af f i r m t he chancery c ourt’s dism issal f or l ack of s ubject-m atter jurisdiction, albeit on alternative grounds. See Askew v. Askew , 699 So. 2d 515, 519 n.3 (Miss. 1997) (“[ A] trial

court judgm ent m ay be af

f irm ed on grounds other than those relied upon by the trial court.”). ¶20. W e f

u rther f ind that Enscor f

ailed to produce suf

f icient evidence to s u

rvive the DOR’s

m otion f or sum m ary judgm ent. Attached to the DOR’s m otion was a copy o f t he Novem ber

2 1 , 2 0 14 notif

ication letter a nd two af

f idavits f rom DOR e m

ploy ees, Sandrel Nichols and
Carlton McGrone, attesting the n o tice letter had been sent through the U.S. m ail sy stem and
addressed to McGee’s law f irm

. 9 Enscor responded with an af f idavit by McGee’s em

ploy ee,

9 A lso attach ed w as th e tran scrip t o f th e B T A h e a rin g , in w h ich co u n sel f o r E n sco r ack n o w led g e d t h a t t h e f a ilu r e to ap p ear at th e B o ard o f R e v i ew h earin g w a s d u e to an

1 2Crosby , in w h i c h s h e m erely averred that she did “not r ecall, nor h ave any evidence of

receipt” of the notice. “[ T]o survive sum m ary j udgm ent, ‘the party opposing the m otion m ay

not rest upon the m ere a llegations or denials of his pleadings, b ut his response m ust set f orth specif ic f a cts s howing t here i s a genuine issue f or trial.’” Huynh v. Phillips , 95 So. 3d 1259,
12 6 2 ( ¶ 6) (Miss. 2012). As previously stated, due process m e rely r equires “notice reasonably calculated, under all the circum s tances, to apprise interested parties of the pendency

of the
action and to af

f o rd them an opportunity to present their objections.” J o nes , 547 U.S. at 226.

W e f ind Enscor f

a iled to dem o n strate the existence o f a genuine issue of m aterial f act that its due-process rights were violated. ¶21. AFFIRMED.
LEE, C.J., IRVING AND G R I FFIS, P.JJ., CARLTON, F AIR, WILSON, GREENL E E AND WESTBROOKS, JJ., CONCUR. TINDELL, J., NOT PARTICIPATING.

“u n f o rt u n ate seq u en ce o f ev en t s th at o ccu rred in o u r o f f ices w h ich l ed u s to n o t p u t th e B o ard o f R ev iew d a te o n o u r calen d ar.”
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