MISSISSIPPI LEGISLATURE
2013 Regular Session
To: Judiciary B
By: Representative Snowden
AN ACT TO AMEND SECTIONS 11-15-1, 11-27-3, 11-27-7, 11-27-15, 11-27-19, 11-27-27 AND 11-27-29, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT EMINENT DOMAIN PROCEEDINGS SHALL BE DETERMINED BY BINDING ARBITRATION; TO REPEAL SECTIONS 11-27-11, 11-27-13, 11-27-17, 11-27-23 AND 11-27-25, MISSISSIPPI CODE OF 1972, WHICH PROVIDE FOR CERTAIN PROCEDURES AND PROVISIONS REGARDING SPECIAL COURTS OF EMINENT DOMAIN; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 11-15-1, Mississippi Code of 1972, is amended as follows:
11-15-1. (1) All persons, except infants and persons of unsound mind, may, by instrument of writing, submit to the decision of one or more arbitrators any controversy which may be existing between them, which might be the subject of an action, and may, in such submission, agree that the court having jurisdiction of the subject matter shall render judgment on the award made pursuant to such submission. In such case, however, should the parties agree upon a court without jurisdiction of the subject matters of the award, the judgment shall be rendered by the court having jurisdiction in the county of the residence of the party, or some one of them, against whom the award shall be made.
(2) All eminent domain cases shall be submitted to binding arbitration.
SECTION 2. Section 11-27-3, Mississippi Code of 1972, is amended as follows:
11-27-3. * * *
Eminent domain cases shall be settled by binding arbitration
as provided in this chapter and according to Section 11-15-1 et seq.
SECTION 3. Section 11-27-7, Mississippi Code of 1972, is amended as follows:
11-27-7. The complaint
shall be filed with the circuit clerk and shall be assigned a number and placed
on the docket as other pleadings in circuit court or county court. The complaint
shall then be decided by binding arbitration. The plaintiff shall also
file a lis pendens notice in the office of the chancery clerk immediately after
filing the complaint. The circuit clerk, or the plaintiff by his attorney,
shall forthwith present such complaint to the * * * arbitrators
who shall by written order directed to the circuit clerk fix the time and place
for the hearing of the matter * * * and the time of hearing
shall be fixed on a date to allow sufficient time for each defendant named to
be served with process as is otherwise provided by the Mississippi Rules of
Civil Procedure, for not less than thirty (30) days prior to the hearing. If a
defendant, or other party in interest, shall not be served for the specified
time prior to the date fixed, the hearing shall be continued to a day certain
to allow the thirty-day period specified. Not less than twenty (20) days prior
to the date fixed for such hearing, the plaintiff shall file with the circuit
clerk and serve upon the defendants, or their respective attorneys, a statement
showing: (1) the fair market value of the property to be condemned, determined
as of the date of the filing of the complaint; (2) the damages, if any, to the
remainder if less than the whole is taken, giving a total compensation and
damages to be due as determined by the plaintiff. Not less than ten (10) days
prior to the date fixed for such hearing, each of the defendants shall file with
the circuit clerk and serve upon the plaintiff, or his attorney, a statement
showing: (1) the fair market value of the property to be condemned, determined
as of the date of the filing of the complaint; (2) the damages, if any, to the
remainder if less than the whole is taken, giving a total compensation and
damages to be due as determined by the defendants. In each such instance, both
the plaintiff and the defendant shall set out in such statement the asserted
highest and best use of the property and shall itemize the elements of damage,
if any, to the remainder if less than the whole is taken. The statements
required by this section shall constitute the pleadings of the parties with
respect to the issue of value, and shall be treated as pleadings are treated in
civil actions in the circuit court. The * * * arbitrator, for good cause shown,
may increase or decrease the time for pleading by the plaintiff or by the
defendant.
SECTION 4. Section 11-27-15, Mississippi Code of 1972, is amended as follows:
11-27-15. Any defendant
may, not less than five (5) days prior to the date fixed for the hearing of the
complaint and in the same court where the complaint is pending, serve and file
a motion to dismiss under the Mississippi Rules of Civil Procedure for failure
to state a claim upon which relief can be granted on any of the following
grounds: (1) that the plaintiff seeking to exercise the right of eminent
domain is not, in character, such a corporation, association, district or other
legal entity as is entitled to the right; (2) that there is no public necessity
for the taking of the particular property or a part thereof which it is
proposed to condemn; or (3) that the contemplated use alleged to be a public
use is not in law a public use for which private property may be taken or
damaged. Any such motion, if served and filed, shall be heard and decided by
the * * * arbitrator
as a preference proceeding * * * prior to the hearing on the
complaint. Any party may appeal directly to the Supreme Court from an order
overruling or granting any such motion to dismiss, as in other cases, but if
the order be to overrule the motion, the appeal therefrom shall not operate as
a supersedeas and the * * * arbitration may nevertheless proceed * * *
on the complaint.
Any appeal from an order overruling or granting a motion to dismiss shall be a
preference action in the Supreme Court and advanced on the docket as
appropriate.
SECTION 5. Section 11-27-19, Mississippi Code of 1972, is amended as follows:
11-27-19. Evidence may be
introduced by either party, and the jury may, in the sound discretion of the * * *
arbitrator, go to the
premises, under the charge of the * * * arbitrator as to conduct, conversation
and actions as may be proper in the premises. Evidence of fair market value
shall be established as of the date of the filing of the complaint. Any
judgment finally entered in payment for property to be taken shall provide
legal interest on the award of the * * * arbitrator from the date of the
filing of the complaint until payment is actually made; provided, however, that
interest need not be paid on any funds deposited by the plaintiff and withdrawn
by the defendants prior to judgment. * * *
SECTION 6. Section 11-27-27, Mississippi Code of 1972, is amended as follows:
11-27-27. Upon return of
the * * * determination
of the arbitrator and entry of the judgment, the applicant shall pay to
defendants, or to the clerk if defendants absent themselves, the differences
between the judgment and deposits previously made, if any; shall pay the costs
of * * * arbitration * * *.
Then, ownership of the property described in the petition shall be vested in
petitioner and it may use said property as specified in the petition. If
deposits perviously made exceed the judgement, then the clerk or defendant to
whom disbursement thereof has been made, as the case may be, shall pay such
excess to the petitioner.
SECTION 7. Section 11-27-29, Mississippi Code of 1972, is amended as follows:
11-27-29. (1) Every party
shall have the right to appeal directly to the Supreme Court from the judgment
entered in the * * * arbitration of eminent domain * * *
by giving notice within ten (10) days from the date of the judgment or final
order entered by the * * * arbitrator
to the court reporter * * *
to transcribe the record as taken and by prepaying all costs that may be
adjudged against him; and said notice to the court reporter shall be given and
the costs shall be paid as is otherwise required by law for appeals to the
Supreme Court. If the judgment be in excess of the sum, if any, deposited, and
the plaintiff, other than the State of Mississippi or any political subdivision
thereof, desires an appeal, he shall deposit a sum, or a good and sufficient
surety bond with a surety company authorized to do business in the State of
Mississippi acceptable to the clerk, equal to double the amount of the
judgment, less the amount of the deposit, if any, which shall be held
exclusively to secure all damages assessed against plaintiff. In any case
where the deposit exceeds the compensation to be paid the defendants as
determined by the final judgment, the excess shall be returned to the
plaintiff. If the appeal is by the defendant, it shall not operate as a
supersedeas, nor shall the right of the plaintiff to enter in and upon the land
and to appropriate the same to public use be delayed. If the appeal be by the
State of Mississippi or any political subdivision thereof, no bond or
prepayment of costs shall be required, except the Supreme Court filing fee as
required by Section 25-7-3.
(2) The term of * * *
arbitration
shall begin when the * * * arbitration
is convened * * * and shall continue for ten (10) days immediately
following the entry and filing of a judgment or final order with the clerk of
the court, and thereafter the * * * arbitrator shall have jurisdiction
to dispose of any post trial motions or proceedings filed within said ten (10)
days. The jurisdiction of * * * eminent domain arbitration
shall expire upon the entry and filing with the clerk of a final judgment or
order disposing of any post trial motions or proceedings.
SECTION 8. Sections 11-27-11, 11-27-13, 11-27-17, 11-27-23 and 11-27-25, Mississippi Code of 1972, which provide for certain procedures and provisions regarding special courts of eminent domain, are repealed.
SECTION 9. This act shall take effect and be in force from and after July 1, 2013.