SOS Green Hills File

Case: 25CH1:16-cv-001060 Document #: 35 Filed: 12/22/2016 Page 1 of 9
IN THE CHANCERY COURT OF HINDS COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT
GREEN HILLS DEVELOPMENT COMPANY, LLC PLAINTIFF
VS. CAUSE NO. 2016-1060
THE SECRETARY OF STATE OF THE STATE

OF MISSISSIPPI, DELBERT HOSEMANN, in
his official capacity, UMB BANK, N.A.;
STONEBRIDGE HOLDINGS I, LLC; STONEBRIDGE
HOLDINGS II, LLC; STONEBRIDGE HOLDINGS III,
LLC; RANKIN COUNTY TAX COLLECTOR, JUDY
FORTENBERRY, in her official capacity; RANKIN
COUNTY TAX ASSESSOR, JOHN A. SULLIVAN,
in his official capacity; THE RANKIN COUNTY
BOARD OF SUPERVISORS; RANKIN COUNTY
CHANCERY CLERK, LARRY SWALES, in his
official capacity; and KENNETH PAUL BRADLEY, JR. DEFENDANTS
MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

OR
TO TRANSFER FOR IMPROPER VENUE
The Secretary of State for the State of Mississippi, Delbert Hosemann (SOS), moves to
dismiss this suit for lack of subject matter jurisdiction (Miss.R.Civ.P. 12(b)(1)), or to transfer
based on improper venue (Miss.R.Civ.P. 12(b)(3))1 stating:
I. INTRODUCTION
Green Hills Development Company, LLC (Green Hills) seeks a declaratory judgment
voiding the SOSs sale of tax-forfeited land located in Rankin County, Mississippi, which land
Green Hills once owned. Green Hills admittedly failed to pay taxes on the land for years and
failed to redeem the land within the two-year redemption period, forfeiting the land to the State
1
The SOS respectfully requests that the Court consider this combined motion and brief together.
Further, the SOS specifically reserves all other Rule 12 defenses and requests to be allowed to assert
such defenses once this threshold procedural matter is determined.
of Mississippi. The SOS later sold this tax-forfeited land to others. This subsequent sale of the
tax-forfeited Rankin County land is the subject of this suit. Green Hills seeks to void the
transfer of title to the land from the SOS to the subsequent purchasers. There is a specific
statute concerning the SOSs sale of state forfeited tax lands which provides in clear and
unmistakable language that: [T]he question of failure of title can only be determined in a
suit filed in the county in which the land is situated . . . Miss Code Ann. 29-1-85. This
statute establishes both subject matter jurisdiction as well as venue. This suit therefore can only
proceed in Rankin County Chancery Court.
The propriety of proceeding in Rankin County Chancery Court is further confirmed by
the chancery venue statute, Miss. Code Ann. 11-5-1, which provides that suits to confirm title
to real estate . . . or remove doubts therefrom as well as suits respecting real or personal
property . . . shall be brought in the county where the land, or some part thereof, is situated.
Similarly, Mississippis common law Local Action Doctrine requires that suits involving real
property be filed in the county where the real property is located.
Despite these clear legal principles, Green Hills complaint reveals a misapplication of
the law. Green Hills improperly claims that venue in Hinds County is proper because at least
one defendant resides there. (Doc. 15, 2.2) Green Hills then erroneously cites the Circuit
Court venue statute, Miss. Code Ann. 11-11-3. Id. This matter is, of course, in Chancery
Court and the Circuit Court venue statute is inapplicable. Equally significant, the residence of
any defendant is not a factor in applying the correct venue/jurisdiction statutes.
For the reasons set forth, this case should either be dismissed for lack of subject matter
jurisdiction, or transferred to Rankin County Chancery Court.
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II. BACKGROUND
Green Hills forfeited its land to the State of Mississippi. Green Hills owned certain
real property located solely in Rankin County, Mississippi the Rankin County Property.
(Second Amended Complaint, Doc. 15, 3.1) Green Hills, however, failed to pay its property
taxes. Accordingly, the Rankin County Property was struck off to the State of Mississippi so
that the State became the owner of the Rankin County Property. (Doc. 15, 3.2) Though Green
Hills had two years to redeem the property by paying the back taxes it owed, Green Hills did not.
By August, 2011, the Rankin County Property was therefore finally forfeited to the State of
Mississippi. (Doc. 15, 3.2)
SOS can sell tax-forfeited land. Among other statutes, Miss. Code Ann. 29-1-1, et
seq. gives the Mississippi Secretary of State the legal right to sell state forfeited tax lands. For
example, Miss. Code Ann. 29-1-39 specifically permits the SOS to contract to sell any state
forfeited tax land subject to the provisions of that statute. Similarly, Miss. Code Ann. 29-1-37
provides the process for any person desiring to purchase any state forfeited tax land to make
application to the SOS. This same statutory process sets forth that the conveyances of land by
the State shall be by patent. Miss. Code Ann. 29-1-81. Green Hills here terms the process
by which the SOS sells tax forfeited land as the land patent process. (Doc. 15, 3.13).
Green Hills claims a failure of title by the SOS sale. Green Hills alleges that the SOS
failed to follow proper procedure in selling the Rankin County Property pursuant to the land
patent process. (Doc. 15, 3.16-3.18) The SOS for its part specifically denies Green Hills
allegations and Green Hills characterization of the land patent process. Nevertheless, Green
Hills complaint makes clear that the gravamen the focus and substance of the Green Hills
complaint is the alleged failure of title by the SOS to the land purchasers.2 Setting forth
2
Green Hills complaint identifies these purchasers as the defendants Stonebridge Holdings I, LLC;
-3-
numerous causes of action under Section IV of the Complaint (See Doc. 15, 4.1-4.31), Green
Hills seeks a declaratory judgment against all defendants. (Doc. 15, p. 23) Looking beyond the
labels employed by Green Hills in its causes of action and instead examining the true substance
of Green Hills claims as required by law,3 the predicate for Green Hills claims is that the SOS
did not follow the land patent process set forth in the Mississippi Code, Miss. Code Ann.
29-1-1, et seq. and the corresponding administrative rules. Accordingly, Green Hills requests a
declaratory judgment that:
The sales of the subject property to the SPEs and defendant

Bradley must be set aside and/or void as a matter of law. (P. 23,
Doc. 15)
III. LAW
Miss. Code Ann. 29-1-85 addresses precisely this matter stating, in part:
Except as provided in this chapter, the question of failure of title

can only be determined in a suit filed in the county in which
the land is situated, and the Land Commissioner or the
municipality, as the case may be, shall be made a party to every
such suit.4
The terms of this statute cannot be more on point or more clear. Green Hills seeks a declaratory
judgment that the SOS sale of tax-forfeited land to the land purchasers is void as a matter of
law by claiming the SOS failed to follow the land patent process. The statute addressing the
sale of tax-forfeited land provides that any question of failure of title can only be determined in
a suit filed in the County in which the land is situated. Miss. Code Ann. 29-1-85. This
Stonebridge Holdings II, LLC and Stonebridge Holdings III, LLC (1.6, Doc. 15) and the individual
defendant, Kenneth Paul Bradley. (1.11, Doc. 15)
3
Union Natl Life Ins. Co. v. Crosby , 870 So.2d 1175, 1182 (Miss. 2004); Trustmark Natl Bank v.
Johnson, 865 So.2d 1148, 1151 (Miss. 2004) (trial courts are to look to the substance of the claim rather
than the form of the case).
4
Miss. Code Ann. 7-11-4 provides that the words State Land Commissioner and Land
Commissioner as well as State Land Office and Land Office shall all mean the Secretary of State.
-4-
statute is both mandatory as well as exclusive (only). Accordingly, this suit regarding Rankin
County land can only be brought in Rankin County Chancery Court. Suit in Hinds County is
improper both as a matter of venue and subject matter jurisdiction.
Miss. Code Ann. 29-1-85 is also jurisdictional. The Mississippi Supreme Court
addressed whether a statute is jurisdictional in the context of the divorce statute in Price v. Price,
32 So.2d 124 (Miss. 1947). In Price the Court noted that where a statute creates a right of
action which did not exist at the common law and the same statute fixes the conditions upon
which the right may be asserted, the conditions are an integral part of the right thus granted of
substantive conditions, the observance of which is essential to the assertion of the right.
Finding that the divorce statute is therefore not a mere statute of venue that may be waived but
one of jurisdiction of the subject matter of the suit, the Price court affirmed the Chancellors
dismissal of a divorce suit brought in the wrong county. Id.
Similarly, here, the sale of tax forfeited land is a creation of statute not existing at
common law. The same chapter of the code which creates the right of action also fixes the
condition upon which that right may be asserted. Specifically, Green Hills cannot challenge the
failure of title for tax forfeited land sale except in a suit filed in the county in which the land is
situated (Miss. Code Ann. 29-1-85) under principles of venue as well as subject matter
jurisdiction.
Local Action Doctrine and the Chancery Venue Statute. The Mississippi Supreme
Court distinguishes between jurisdiction and venue, recognizing that a statute can be given
jurisdictional effect by localizing the action. Leake County Co-op v. Barretts Dependents, 226
So.2d 608, 615 (Miss. 1969). Similarly, the Mississippi Supreme Court stated that in certain
instances we have recognized a concept of geographical jurisdiction. Belk v. State Department
-5-
of Public Welfare, 473, So.2d 447, 449 (Miss. 1985). The Belk court cited Miss. Code Ann.
11-5-1, the Chancery Court venue statute, and specifically its provision that suit be brought in
the county where the real or personal property is located as an example of such geographical
jurisdiction. The Belk court explained:
Geographical jurisdiction, therefore, was based on the location

of the property, not the parties. By statute there are many other
actions which may be brought only in the Chancery or Circuit
Court of Hinds County, Mississippi.
A well-regarded treatise discusses Mississippis Local Action Doctrine, 1 Ms. Prac. Civil Proc.
3:13 Local Actions (May, 2016), stating:
Mississippi is traditional in restricting venue of actions

involving land to a county where some part of the real
property is located. In such cases, venue is deemed to be
jurisdictional because the parties may not waive objections to
venue and so authorize any other court to proceed with the case.
To be denominated a local action for venue purposes, the suit
must be directly involved with the real property . . . .
See also Donald v. Amoco Production Co., 735 So.2d 161, 181, 74 (Miss. 1999) (The effect of
the local action doctrine on venue is jurisdictional, i.e. subject matter jurisdiction lies only
where the property is located and objections to venue cannot be waived).
Here, not only does Miss. Code Ann. 29-1-85 both establish venue and jurisdiction,
([T]he question of failure of title can only be determined in a suit filed in the county in which
the land is situated . . . .) but similarly, the chancery venue statute, Miss. Code Ann. 11-5-1,
under these facts, establishes both jurisdiction and venue, requiring that suits respecting real
property, including removing doubts regarding title, shall be brought in the county where the
land, or some part thereof, is situated. See also 1 Ms. Prac. Civil Proc. 3:4 (May, 2016)
(Miss. Code Ann. 11-5-1 provides for venue in Chancery Court for actions including specific
venue provisions for what were traditionally referred to as local actions.)
-6-
Both the Local Action Doctrine and the Chancery venue statute demonstrate that both
venue and subject matter jurisdiction is proper only in Rankin Chancery Court.
Venue statutory construction. The Mississippi Supreme Court has recognized that the
Mississippi venue statutes are subject to the rules of general statutory construction.
Accordingly, when a specific venue statute exists, it controls over general venue statutes.
Division of Medicaid v. Johnson, 950 So.2d 1033, 1035, 4 (Miss. 2006). Further, statutory
construction gives preference to one [venue] statute over the other. Capital City Insurance Co.
v. G. B. Boots Smith Corp., 889 So.2d 505, 515 (Miss. 2004). A statute with mandatory
shall language controls over the more permissive may language in another statute. Id. The
Mississippi Supreme Court has recognized that there can be a ranking of venue statutes, so that
even the venue good for one good for all rule applicable in some venue matters, gives way to
mandatory and exclusive language contained in specific venue statutes. Baptist Memorial
Hospital Baptist Desoto, Inc. v. Bailey, 919 So.2d 1, 4 (Miss. 2005) (This logical conclusion
has the effect of ranking the general venue statute above the other venue statutes in
circumstances where more than one may apply.); See also Adams v. Baptist Memorial Hospital
Desoto, Inc., 965 So.2d 652 (Miss. 2007) (Finding that the language in the circuit venue statute
11-11-3(3) any action against a licensed physician . . . shall be brought only in the county in
which the alleged acts or omission occurred . . . controlled rendering the county where the
medical acts occurred as the only proper venue, despite the presence of other defendants.)
Here the specific, mandatory, exclusive nature of the statutes cited require either dismissal of this
suit or transfer to the Rankin County Chancery Court.
Alternatively Forum Non Conveniens applies. Forum non conveniens principles also
serve to confirm that Rankin Chancery is the proper venue for this action. Miss. Code Ann.
-7-
11-11-3(4) (listing factors and applying forum non conveniens principles to a court of this
state.) Green Hills has sued the Rankin County Tax Collector, the Rankin County Tax
Assessor, the Rankin Count Chancery Clerk, as well as the Board of Supervisors for Rankin
County. This land and all its records are located in Rankin County. The defendant, Kenneth
Paul Bradley, is a Rankin County resident. The very allegations in the plaintiffs complaint
demonstrates that all of the factors set forth under the cited statute weigh in favor of transfer to
Rankin County Chancery Court.
IV. CONCLUSION
For the foregoing reasons, the SOSs motion to dismiss or, alternatively, to transfer venue
to Rankin County Chancery Court should be granted.
Respectfully submitted, this the 22nd day of December 2016.
SECRETARY OF STATE OF THE STATE OF

MISSISSIPPI, DELBERT HOSEMANN, in his
official capacity
By: /s/ Michael O. Gwin

MICHAEL O. GWIN
OF COUNSEL:
MICHAEL O. GWIN (MB #5086)

WILLIAM C. SMITH, III (MB # 7632)
NEILL BRYANT (MB # 103579)
mgwin@watkinseager.com
WATKINS & EAGER PLLC
400 East Capitol Street
Emporium Building
Post Office Box 650
Jackson, Mississippi 39205
Tel: (601) 965-1900
Fax: (601) 965-1901
-8-
CERTIFICATE OF SERVICE
I, MICHAEL O. GWIN, do hereby certify that I have this date caused a true and correct
copy of the above and foregoing document to be filed using the MEC filing system, which sent
notice to the following:
Michael A. Heilman (MSB No. 2223)

John W. Nisbett (MSB No. 103120)
E. Taylor Polk (MSB No. 103653)
Heilman Law Group, P.A.
4266 I-55 North, Suite 106
Jackson, MS 39211
mheilman@heilmanlawgroup.com
jnisbett@heilmanlawgroup.com
tpolk@heilmanlawgroup.com
Jason Fortenberry
Bradley Arant Boult Cummings LLP
Post Office Box 1789
Jackson, MS 39215
jfortenberry@babc.com
Craig Slay
Palmer & Slay, PLLC
Post Office Box 896
12 Woodgate Drive, Suite F
Brandon, MS 39043
cslay@rankincounty.org
I have caused a true and correct copy of the above and foregoing document to be mailed
by United States Mail, postage fully prepaid, to the following:
Kenneth Paul Bradley, Jr.

233 Stonebridge Blvd.
Brandon, MS 39042
This the 22nd day of December, 2016.
/s/ Michael O. Gwin

MICHAEL O. GWIN
-9-

VS. CAUSE NO. 2016-1060

OPPOSITION TO GREEN HILLS MOTION TO STRIKE
The Secretary of State of the State of Mississippi, Delbert Hosemann (SOS) opposes
Green Hills motion to strike,1 stating:
I. INTRODUCTION
Opposition to Motion to Strike. Green Hills motion to strike certain affirmative
defenses is both procedurally and legally meritless, as well as factually inaccurate. Green Hills
wrongly and repeatedly claims the SOS asserted fifty-three (53) affirmative defenses. It did not.
The SOS asserted 15 defenses (and even then, the 2nd defense is a response to the complaint, and
the 15th defense is a reservation to assert other affirmative defenses). Green Hills motion is
apparently a motion it has filed in Federal Court previously. Green Hills cites only federal cases
1
The SOS respectfully requests this Court to consider this motion and brief together. The SOS
has separately filed a motion challenging both subject matter jurisdiction and venue, as well as requesting
this and all other motions and discovery be held in abeyance until the Court first determines its
jurisdiction and the proper venue.
and misconstrues the Mississippi Rules of Civil Procedure. The motion should be denied in its
entirety. Should the Court, however, agree with any aspect of Green Hills motion, the SOS
respectfully requests permission to amend its answer.
II. LAW
The Mississippi Rules. Miss.R.Civ.P. 8 sets forth the General Rules of Pleading. 8(a)
addresses only a complaint a claim for relief. 8(b) addresses the form of denials to that
complaint. It is 8(c) that addresses affirmative defenses.
Rule 8(c) Affirmative Defenses explains precisely, explicitly and in mandatory
language how an affirmative defense shall be pled. It states:
In a pleading to a preceding pleading, a party shall set forth

affirmatively . . .
The rule then sets forth a single word to capture the applicable defense such as waiver and
statute of limitations. The SOSs answer sets forth its, few, affirmative defenses exactly how
the rule mandatorily requires.
The advisory committee note to the rule explains:
Rule 8 allows claims and defenses to be stated in general terms

so that the rights of the client are not lost by poor drafting skills of
counsel. . . . Just as Rule 8(a) requires only that the plaintiff give
the defendant notice of the claims, Rule 8(c) requires only that
the defendant give the plaintiff notice of the defense.
The Advisory Committee confirms that defenses can be stated in general terms and require
only . . . notice of the defense. This is obviously so the plaintiff can conduct discovery based
on this general notice.
Miss.R.Civ.P. 84 provides an appendix of forms to illustrate the simplicity and brevity
of statement which the Rules require. Form 23 presents an example of an answer with defenses.
The defenses set forth in Form 23 are consistent with the SOSs answer here.
-2-
The SOSs answer and defenses comply with the Mississippi Rules of Civil Procedure.
Federal Law. But even the federal courts in Mississippi disagree with Green Hills
motion to strike. In EEOC v. LHC Group, Inc., 2012 WL 3242168 (S.D. Miss., August 7, 2012)
the Court considered similar arguments to those of Green Hills and then properly exercised its
discretion to deny in its entirety the motion to strike affirmative defenses. In denying the motion,
the LHC Group, Inc. Court noted that striking an affirmative defense is a drastic remedy and
often is sought by the movant simply as a dilatory tactic. Id. Accordingly, the court observed
that motions to strike are viewed with disfavor and are infrequently granted. The court further
observed that the exercise of discretion to strike should be exercised sparingly. Id.
Equally applicable, the court found that a motion to strike should not be granted unless
the moving party demonstrates that it would be prejudiced otherwise. Here, Green Hills makes
no attempt to claim or establish prejudice; it is not.
Significantly, the LHC Group, Inc. Court cites the federal forms (similar to the
Mississippi pleadings forms) and found that simply stating: The complaint fails to state a claim
upon which relief can be granted requires no more detail and is itself a sufficient affirmative
defense. This is one of the SOSs defenses challenged by Green Hills. Further, Green Hills
complaint about the SOSs assertion of a Miss.R.Civ.P. 12(b)(6) defense is particularly odd.
Green Hills claims, wrongly, that a 12(b)(6) defense must be made before the SOS answers.
Miss.R.Civ.P. 12(h)(2) states exactly otherwise. (A defense of failure to state a claim upon
which relief can be granted . . . may be made in any pleading permitted or ordered under Rule
7(a) . . .). The comments to Rule 12 provide the same.
Even under the different federal rules and federal standards, Green Hills motion should
be denied.
-3-
Green Hills has notice. Ironically, Green Hills motion demonstrates that it actually has
the notice it pretends it does not have. The additional detail requested in Green Hills motion
to strike are all matters of simple discovery, once it has notice. In fact, Green Hills has sent
discovery to the SOS asking for exactly such further information. This is, of course, how the
Rules of Procedure are designed to work. For example, Green Hills sent the SOS its
Interrogatories No. 10 and 11 stating:
INTERROGATORY NO. 10: You assert all applicable

statutes of limitations and statutes of repose as the fourteenth
affirmative defense in your Answer. Identify all statutes of
limitations and statutes of repose that you contend bar Plaintiffs
claims against you and state all facts you rely upon to support this
defense.
INTERROGATORY NO. 11: You assert as your eighth

affirmative defense that the plaintiff had and received appropriate
notice, including both actual and constructive notice. State (a)
each fact supporting this defense, (b) the identity of each document
substantiating those fact, and (c) the identity of each person who
has knowledge of those facts. (See Exhibit A attached hereto)
The LHS Group Court notes that the rules actually encourage a defendant to assert a
defense to avoid waiver, while the facts regarding the defense are developed in discovery. The
LHS Group Court stated:
Accordingly, defendants must assert defenses out of an

abundance of caution to avoid the argument that meritorious
defenses should later be considered waived. Id. (failing to plead
a defense constitutes waiver); Lacroix v. Marshall Cnty., Miss.,
No. 3:07CV119BA, 2009 WL 3246671 (N.D.Miss. Sept. 30,
2009) (denying plaintiff's motion to strike and reasoning that [t]he
defendants were required to plead their affirmative defenses or
potentially waive such defenses under the rules of this court, and
they were entitled to assert any available defenses.); Baum v.
Faith Techs., Inc., No. 10CV0144CVETLW, 2010 WL
2365451, at *3 (N.D. Okla. June 9, 2010) ([I]t would be
unreasonable to expect defendants to be aware of all the
necessary facts or even to know for sure whether a particular
affirmative defense is applicable, given that discovery has not
-4-
yet occurred and the fact that defendants may waive affirmative
defenses that are not plead.) (citing Wanamaker v. Albrecht, 99
F.3d 1151 (10th Cir.1996)); 5 WRIGHT & MILLER, FEDERAL
PRACTICE & PROCEDURE 1271 (3d ed. 2010) ([I]t is
advisable for the defendant to allege affirmatively any new matter
he or she believes may not be embraced by the pleadings.... [A]
defendant will not be penalized for doing so and he will have the
advantage of immunizing ... against a possible waiver of the
defense.).
III. CONCLUSION
In short, Green Hills motion to strike demonstrates that Green Hills does have notice of
the SOSs affirmative defenses. Green Hills has instituted discovery as to the SOS defenses
demonstrating that it has notice of these defenses. The SOS complied with the requirements
of the Mississippi Rules of Procedure. Green Hills motion fails to prove or establish prejudice.
As in the federal LHS Group case, supra, Green Hills motion to strike should be denied in its
entirety.
Respectfully submitted, this the 22nd day of December, 2016.

official capacity

MICHAEL O. GWIN
OF COUNSEL:

Emporium Building
Post Office Box 650
Tel: (601) 965-1900
Fax: (601) 965-1901
-5-

Jackson, MS 39211
Jason Fortenberry
Bradley Arant Boult Cummings LLP
Post Office Box 1789
Jackson, MS 39215
jfortenberry@babc.com
Craig Slay
Palmer & Slay, PLLC
Post Office Box 896
Brandon, MS 39043
cslay@rankincounty.org
I have caused a true and correct copy of the above and foregoing document to be mailed
by United States Mail, postage fully prepaid, to the following:

Brandon, MS 39042
This the 22nd day of December, 2016.
/s/ Michael O. Gwin

MICHAEL O. GWIN
-6-

GREEN HILLS DEVELOPMENT PLAINTIFF

COMPANY, LLC
v. CAUSE NO. 2016-1060

OF MISSISSIPPI, DELBERT HOSEMAN, IN
HIS OFFICIAL CAPACITY; UMB BANK, N.A.; STONEBRIDGE
HOLDINGS I, LLC; STONEBRIDGE HOLDINGS II,
LLC; STONEBRIDGE HOLDINGS III, LLC;
RANKIN COUNTY TAX COLLECTOR; RANKIN
COUNTY TAX ASSESSOR; RANKIN COUNTY
BOARD OF SUPERVISORS; AND RANKIN COUNTY
CHANCERY CLERK; AND KENNETH PAUL BRADY, JR. DEFENDANTS
MOTION TO STRIKE CERTAIN OF THE SECRETARY OF STATES

AFFIRMATIVE DEFENSES AND BRIEF IN SUPPORT
COMES NOW, Plaintiff Green Hills Development Company, LLC, (Green Hills), by
and through counsel, and presents its Motion to Strike Certain of the Secretary of States
Affirmative Defenses and Brief in Support thereof as follows:
I. INTRODUCTION
On September 19, 2016, Green Hills filed its Second Amended Complaint against
Defendants challenging a group of improper sales of real property by the Secretary of State
under Mississippi statutory and regulatory law. The purchasing group of Defendants includes
Stonebridge Holdings I, LLC; Stonebridge Holdings II, LLC; Stonebridge Holdings III, LLC
(the SPEs). Defendant UMB Bank, N.A., formed the SPEs, which is the second of two
trustees for certain owners of bonds. In addition to violations of the Secretary of States own
statutes, Green Hills has asserted claims of violations of due process and equal protection against
the Secretary of State.

The Secretary of State has asserted fifty-three (53) affirmative defenses and certain of
these defenses either have no support in the law or the facts or fail to provide sufficient notice
under Mississippi Rule of Civil Procedure 8 to Green Hills. For these reasons, Green Hills
respectfully requests that this Court grant its Motion to Strike Certain Affirmative Defenses
under Rule 12(f).
II. SUMMARY OF RELEVANT FACTS
Green Hills was the record owner of the real property at issue in this lawsuit, which is
located in Rankin County, Mississippi, including certain tax parcels identified in Green Hills
Second Amended Complaint (the Subject Property).1
On August 31, 2009, and in subsequent years, the Subject Property was struck off to the
State of Mississippi as a result of unpaid property taxes. These taxes included city, county, and
school ad valorem taxes. These taxes also included assessments made by the Stonebridge Public
Improvement District (the PID), which were assessed (the PID Assessments) on the real
property in the Stonebridge development to benefit the PID pursuant to Mississippi statutory law.
On August 31, 2011, when the statutory period for redemption expired, the tax sale on the
Subject Property matured.
The Secretary of State sold the Subject Property to the purchasing group of Defendants
including Stonebridge Holdings I, LLC; Stonebridge Holdings II, LLC; Stonebridge Holdings
III, LLC (the SPEs). The second of two trustees for certain owners of bonds, Defendant UMB
Bank, N.A., formed these SPEs.
After the sales by the Secretary of State to SPEs, Green Hills filed this action against the
Secretary of State, in his Official Capacity, and other defendants asserting various constitutional

1
Green Hills incorporates by reference the full presentation of facts as alleged in its Second Amended Complaint,
which is attached hereto as Exhibit A.
2

claims and violations of statutes relevant to the sales process, including Mississippi
Administrative Code Section 1-11-1.6 and the Secretary of States Administrative Procedures.
See Exhibit A, Second Amended Complaint.
The Secretary of State asserted fifty-three (53) affirmative defenses in response to
Plaintiffs Second Amended Complaint. See Exhibit B, Amended Answer and Affirmative
Defenses to Second Amended Complaint.
II. THIS COURT SHOULD STRIKE THE SECRETARY OF STATES

AFFIRMATIVE DEFENSES THAT HAVE NO BASIS IN LAW OR FACT AND
PROVIDE NO NOTICE TO PLAINTIFFS.
Under Mississippi Rule of Civil Procedure 12(f), [u]pon motion made by a party before
responding to a pleading . . . the court may order stricken from any pleading any insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter. M.R.C.P. 12. The
Court has broad discretion to determine whether the challenged matter should be stricken. See
In re Beef Indus. Antitrust Litig., 600 F.2d 1148, 1168 (5th Cir. 1979). Although motions to
strike a defense are generally disfavored, a Rule 12(f) motion to dismiss a defense is proper
when the defense is insufficient as a matter of law. Kaiser Aluminum & Chem. Sales, Inc. v.
Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982). A defense is insufficient as a
matter of law if it clearly appear[s] that the plaintiff would succeed despite any state of facts
which could be provide in support of the defense. Id.
Additionally, in responding to a pleading, a party must state in short and plain terms his
defenses to each claim asserted against it, M.R.C.P. 8(b), and affirmatively state matters
constituting an avoidance or affirmative defense, M.R.C.P. 8(c). As articulated by the
Advisory Committee Notes:
Rule 8(c)'s requirement that defendants plead affirmative defenses when

answering is intended to give fair notice of such defenses to plaintiffs so that they
3

may respond to such defenses. Just as Rule 8(a) requires only that the plaintiff
give the defendant notice of the claims, Rule 8(c) requires only that the defendant
give the plaintiff notice of the defense.
See also Woodfield v. Bowman, 193 F.3d 354, 362 (5th Cir. 1999) (defenses must include
enough specificity or factual particularity to give the plaintiff fair notice of the defense that is
being advanced to satisfy Rule 8) (internal quotation marks omitted). The Secretary of State
has pleaded sixteen affirmative defenses. The majority of these affirmative defenses fail to
provide Green hills with fair notice required by Rule 8 and others have no basis in the law.
Accordingly, Green Hills respectfully requests this Court to strike the Secretary of States
affirmative defenses as set forth herein.
A. THIS COURT SHOULD STRIKE THE FIRST AFFIRMATIVE DEFENSE.
The Secretary of State asserts the affirmative defense of failure to state a claim for which
relief can be granted. Rule 12(b) provides that a motion asserting the defense of failure to state a
claim for relief must be made before pleading if a responsive pleading is allowed. Miss. R.
Civ. P. 12(b). The Secretary of State has filed an answer, and accordingly, the affirmative
defense based upon Miss. R. Civ. P. 12(b)(6) is improper and should be stricken.
B. THIS COURT SHOULD STRIKE THE THIRD AFFIRMATIVE DEFENSE.
The Secretary of State asserts the affirmative defenses of plaintiffs alleged failure to
comply with applicable statutes, rules and regulations, including but not limited to, Miss. Code
Ann. 29-1-1 et seq. and the effective and governing corresponding administrative rules. This
defendant affirmatively asserts the protections, provisions, presumptions and defenses in Miss.
Code. 29-1-1 et seq. Ex. B, SOS Amended Answer and Affirmative Defenses at 11. The
Secretary of State has pleaded no facts in support of these purported affirmative defenses;
therefore, these affirmative defenses are improper under Rule 8, providing no notice to Green
4

Hills. See Woodfield, 193 F.3d at 362 (baldly naming affirmative defenses falls well short of the
minimum particulars needed to identify the affirmative defense in question, including waiver
and/or release). In addition, even if the Secretary of State had pleaded facts sufficient to give
Green Hills proper notice, Green Hills would still not know what affirmative defenses the
Secretary of State is referring to by mere reference to a lengthy provision in the Mississippi
Code.
C. THIS COURT SHOULD STRIKE THE FOURTH AFFIRMATIVE DEFENSE.
The Secretary of State asserts the affirmative defense of the provisions and protection
Miss. Code Ann. 19-31-1 et seq., and all the defenses contained therein. Ex. B, SOS Amended
Answer and Affirmative Defenses at 12. Like the Secretary of States Fourth Affirmative
Defense, this defense does not provide fair notice to Green Hills regarding the specific defenses
the Secretary of State seeks to invoke. The Secretary of State merely cites to lengthy statutory
provisions and forces Green Hills to guess what affirmative defenses the Secretary of State is
referring to. In addition, the Secretary of State pleads no facts in support of this purported
affirmative defense.
D. THIS COURT SHOULD STRIKE THE FIFTH AFFIRMATIVE DEFENSE.
The Secretary of State asserts as its sixth affirmative defense that plaintiffs own action
and omissions are the sole proximate cause, or a contributing cause, of its claimed damages, if
any. Ex. B, SOS Amended Answer and Affirmative Defenses at 12. Again, the Secretary of
State has pleaded no facts to support this affirmative defense. Furthermore, this defense has no
basis in that it seems to refer to some sort of comparative fault or negligence, yet Green Hills did
not allege negligence.
5

E. THIS COURT SHOULD STRIKE THE SIXTH AFFIRMATIVE DEFENSE.
The Secretary of State baldly asserts the affirmative defense of waiver. The Secretary of
State alleges no facts to provide Green Hills as to the factual allegations giving rise to this
affirmative defense. This violates Rule 8 and should be stricken.
F. THIS COURT SHOULD STRIKE THE SEVENTH AND TENTH

AFFIRMATIVE DEFENSES.
The Secretary of State asserts the defense of unclean hands and laches. However, the
Secretary of State pleads no facts in support. Accordingly, this Court should strike these
affirmative defense.
G. THIS COURT SHOULD STRIKE THE ELEVENTH AFFIRMATIVE

DEFENSE.
The Secretary of State asserts the defense of failure to exhaust administrative remedies.
However, the Secretary of State alleges no facts in support and does not specify the
administrative remedies to which he refers. Therefore, this affirmative defense violates Rule 8
and should be stricken.
H. THIS COURT SHOULD STRIKE THE FOURTEENTH AFFIRMATIVE

DEFENSE.
The Secretary of State asserts as the defense of all applicable statutes of limitations, and
statutes of repose. Ex. B, SOS Amended Answer and Affirmative Defenses at 13. The
Secretary of State does not specify any particular statute or the length of time such statute
prescribes. This pleading therefore gives no notice to Green Hills regarding the actual statute of
limitations or repose to which it refers. The Court should strike this affirmative defense.
IV. CONCLUSION
In this case, the Secretary of State has baldly named several affirmative defenses but has
provided no specificity as to the nature of these defenses, nor has the Secretary provided any
6

factual support to support these defenses. As such, the Secretary of State has failed to even give
Green Hills fair notice of the basis upon which these defenses are being asserted against them.
Therefore, Green Hills asks this Court to strike certain of the Secretary of States defenses, as set
out above, as insufficiently pled pursuant to Mississippi Rule of Civil Procedure 12(f).
This the 8th day of December, 2016.
Respectfully submitted,
GREEN HILLS DEVELOPMENT CO., LLC
/s Michael A. Heilman
Michael A. Heilman
OF COUNSEL:
HEILMAN LAW GROUP, P.A.
Telephone: (601) 914-1025
Facsimile: (601) 960-4200
7

I, Michael A. Heilman, do hereby certify that I have this day caused the foregoing
document to be electronically filed with the Clerk of the Court using the MEC system, which
sent notification of such filing to tall counsel of record, with the exception of the following,
which was served via U.S. Mail:

Brandon, Mississippi 39042
This the 8th day of December, 2016.
/s Michael A. Heilman
Michael A. Heilman
8

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VS. CAUSE NO. 2016-1060

AMENDED ANSWER AND DEFENSES OF

THE MISSISSIPI SECRETARY OF STATE
TO THE SECOND AMENDED COMPLAINT
Secretary of State of the State of Mississippi, Delbert Hosemann, in his official capacity,
responds to the Second Amended Complaint as follows:
FIRST DEFENSE
The Amended Complaint fails to state a claim upon which relief can be granted as to this
defendant.
SECOND DEFENSE
This defendant asserts the defense of improper venue.
THIRD DEFENSE
Without waiving the above and foregoing defenses, this defendant responds to the
Amended Complaint asserted against him, paragraph by paragraph, as follows:
Exhibit B
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I.
PARTIES
1.1. It is admitted that Green Hills Development Company, LLC (Green Hills) is a
Mississippi limited liability company. This defendant is without sufficient information to either
admit or deny the remaining allegations contained in paragraph 1.1 of the Second Amended
Complaint and, to the extent necessary, denies the same.
1.2 The allegations of paragraph 1.2 of the Second Amended Complaint are admitted.
1.3 This defendant admits UMB Bank N.A. is Trustee for the Stonebridge Public
Improvement District Series 2007 bonds. This defendant is without sufficient information to
either admit or deny the remaining allegations contained in paragraph 1.3 of the Second
Amended Complaint and, therefore denies the same.
1.4 The allegations of paragraph number 1.4 of the Second Amended Complaint are
admitted.
admitted.
admitted.
admitted.
admitted.
admitted.
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admitted.
1.11 The allegations of paragraph 1.11 of the Second Amended Complaint are
admitted.
II.
JURISDICTION AND VENUE
admitted.
2.2 The allegations of paragraph number 2.2 are denied.
III.
FACTS
3.1 This defendant admits Green Hills was the owner at one time of real property
located in Rankin County, Mississippi, identified in paragraph number 3.1. The remainder of
the allegations of paragraph number 3.1 of the Second Amended Complaint are denied.
3.2 This defendant admits that, pursuant to applicable law, certain real property of
Green Hills was acquired by the State of Mississippi as a result of Green Hills failure to pay
taxes. The amounts not paid by Green Hills included PID assessments made pursuant to
Mississippi statutory law by the Stone Bridge Public Improvement District for certain real
property in the Stonebridge Development. Following the two-year period of redemption, the
real property was forfeited to the State of Mississippi, pursuant to applicable law. The
description of the real property which was struck off to the State of Mississippi, and the dates of
these events is set forth in public records. The remainder of the allegations of paragraph number
3.2 of the Second Amended Complaint is denied.
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3.3 This defendant admits that certain real property owned by Green Hills was part of
the Stonebridge Development. The content of any covenants relative to the Stonebridge
Development are a matter of public record, and speak for themselves. The remainder of the
allegations of paragraph number 3.3 of the Second Amended Complaint are denied.
3.4 After Green Hills real property was forfeited to the State of Mississippi,
following the two-year period of redemption, Green Hills was notified in writing that its
described real property had been conveyed to the State of Mississippi for the non-payment of
taxes. Green Hills was further timely notified that if it was interested in obtaining title to the
real property, it should complete a written application to the Mississippi Secretary of States
office on the prescribed form. This defendant admits Green Hills never made proper written
application to purchase all or any part of its real property following the real propertys forfeiture
to the State of Mississippi. The remainder of the allegations of paragraph number 3.4 of the
Second Amended Complaint are denied.
3.5 This defendant is without sufficient information to either admit or deny the
allegations of paragraph 3.5 of the Second Amended Complaint, and, to the extent necessary,
denies the same.
allegations of paragraph number 3.6 of the Second Amended Complaint, and, to the extent
necessary, denies the same.
3.7 This defendant admits that on May 16, 2016 he executed a Forbearance
Agreement, the terms of which speaks for itself. The remaining allegations of paragraph
number 3.7 of the Second Amended Complaint are denied.
3.8 This defendant admits that he executed a Forbearance Agreement, the terms of
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which speaks for itself. The e-mail sent by David Weems dated May 17, 2016 and attached as
Exhibit D to the Second Amended Complaint is a true and correct copy of that e-mail, which
e-mail speaks for itself. The remaining allegations of paragraph number 3.8 of the Second
Amended Complaint are denied.
3.9 This defendant provided all proper and legally required notice to the plaintiff
pursuant to Mississippi law, including, but not limited to, Miss. Code Ann. 29-1-1, et seq. and
the corresponding governing and effective administrative rules. It is further admitted that all or
part of the Green Hills real property which is the subject of this suit was properly and legally
conveyed to the SPEs and defendant Bradley. The e-mails sent by David Weems dated May 17,
2016 and attached as Exhibit D to the Second Amended Complaint is a true and correct copy of
that e-mail, which e-mail speaks for itself. The remainder of the allegations of paragraph
number 3.9 of the Second Amended Complaint are denied.
denied as to this defendant. This defendant is without sufficient information to either admit or
deny the allegations of paragraph number 3.10 as they relate to other defendants and, therefore,
denies the same.
3.11 This defendant denies the allegations of paragraph number 3.11 of the Second
Amended Complaint.
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office on the prescribed form. Green Hills never made application to purchase all or any part of
its real property following the real propertys forfeiture to the State of Mississippi. The
remainder of the allegations of paragraph number 3.12 of the Second Amended Complaint are
denied.
3.13 The land patent process is set forth in Mississippi law, including, but not limited
to, Miss. Code Ann. 29-1-1, et seq., and other statutes as well as the corresponding governing
and effective administrative rules. The remainder of the allegations of paragraph number 3.13
of the Second Amended Complaint are denied.
3.14. The land patent process is set forth in Mississippi law, including, but not limited
3.16 This defendant provided all proper and legally required notice to the plaintiff as
the prior owner pursuant to Mississippi law, including, but not limited to, Miss. Code Ann.
29-1-1, et seq. and the corresponding governing and effective administrative rules. The
denied.
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3.18. The land patent process is set forth in Mississippi law, including, but not limited
3.19 The content of any covenants are a matter of public record. The allegations of
paragraph number 3.19 of the Second Amended Complaint are not directed to this defendant but,
to the extent necessary, this defendant denies the remaining allegations of paragraph number
3.19.
allegations of paragraph number 3.20 of the Second Amended Complaint and, therefore, denies
the same.
allegations of paragraph number 3.21 of the Second Amended Complaint and, therefore, denies
the same.
IV.
CAUSES OF ACTION
MISSISSIPPI ADMINISTRATIVE CODE

1-11-1.6 PATENT PROCESS
4.1 This defendant incorporates by reference its responses to the foregoing paragraphs
as if fully set forth herein again.
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and effective administrative rules. The remainder of the allegations of paragraph number 4.2 of
the Second Amended Complaint are denied.
and effective administrative rules. The remainder of the allegations of paragraph number 4.3 of
the Second Amended Complaint are denied.
PROCEDURAL DUE PROCESS

ARTICLE III OF THE MISSISSIPPI CONSTITUTION
denied.
denied.
SUBSTANTIVE DUE PROCESS

denied.
denied.
EQUAL PROTECTION
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denied.
denied.
denied.
denied.
denied.
BREACH OF CONTRACT BY THE SPES AND UMB AND INTERFERENCE WITH

CONTRACT RIGHTS BY THE SPES AND UMB
4.17 The content of any covenants are a matter of public record. The allegations of
paragraph number 4.17 of the Second Amended Complaint are not directed to this defendant but,
to the extent necessary, this defendant denies the remaining allegations of paragraph number
4.17.
denied.
DECLARATORY JUDGMENT
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denied.
denied.
REVIEW OF FINAL AGENCY ACTION/DECISION
denied.
denied.
denied.
denied.
INTERFERENCE WITH PROSPECTIVE BUSINESS RELATIONS

(AS TO UMB AND THE SPEs ONLY)
4.28 The Forbearance Agreement speaks for itself. The remainder of the allegations
of paragraph number 4.28 of the Second Amended Complaint are denied.
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denies the same.
office on the prescribed form. Green Hills never made application to purchase all or any part of
its real property following the real propertys forfeiture to the State of Mississippi. The
denied.
denies the same.
The allegations of the unnumbered paragraph following paragraph 4.31 beginning
Wherefore, including subparts (1) through (5) and the following paragraphs, are denied.
FOURTH DEFENSE
The Defendant asserts the failure of the plaintiff to comply with applicable statutes, rules
and regulations, including, but not limited to, Miss. Code Ann. 29-1-1 et seq. and the effective
and governing corresponding administrative rules. This defendant affirmatively asserts the
protections, provisions, presumptions and defenses in Miss. Code Ann. 29-1-1 et seq.
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FIFTH DEFENSE
This defendant affirmatively asserts the provisions and protection of Miss. Code Ann.
19-31-1 et seq., and all defenses contained therein.
SIXTH DEFENSE
This defendant asserts the plaintiffs own action and omissions are the sole proximate
cause, or a contributing cause, of its claimed damages, if any.
SEVENTH DEFENSE
The Defendant asserts the defense of waiver.
EIGHTH DEFENSE
The Defendant asserts the defense of unclean hands.
NINTH DEFENSE
The defendant asserts that plaintiff had and received appropriate notice, including both
actual and constructive notice.
TENTH DEFENSE
The Defendant asserts the defense of failure to mitigate damages.
ELEVENTH DEFENSE
The Defendant asserts the defense of laches.
TWELFTH DEFENSE
The Defendant asserts the defense of failure to exhaust administrative remedies. The
Defendant further asserts the failure of the plaintiff to comply with Mississippi law and statutes
regarding administrative procedure.
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THIRTEENTH DEFENSE
The defendant asserts its actions in this matter are entitled to administrative, equitable
and legal deference under the law.
FOURTEENTH DEFENSE
Declaratory relief is inappropriate to these claims under Mississippi law.
FIFTEENTH DEFENSE
The Defendant asserts the defense of all applicable statutes of limitation, and statutes of
repose.
SIXTEENTH DEFENSE
The Secretary of State reserves the right to amend this Answer to assert other affirmative
defenses.
WHEREFORE PREMISES CONSIDERED, the Secretary of State prays for all other
relief, both general and specific, to which it is entitled.
Respectfully submitted, this the 1st day of November, 2016.

official capacity

MICHAEL O. GWIN
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OF COUNSEL:

wsmith@watkinseager.com
nbryant@watkinseager.com
Emporium Building
Post Office Box 650
Tel: (601) 965-1900
Fax: (601) 965-1901
NANCY MORSE PARKES (MB # 3056)

NPARK@ago.state.ms.us
Special Assistant Attorney General
Secretary of State of the State of Mississippi
125 South Congress Street
Jackson, MS 39201

Jackson, MS 39211
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Jason Eric Fortenberry

Bradley Arant Boult Cummings, LLP
188 E Capitol St Ste 400
P O Box 1789
Jackson, MS 39215-1789
jfortenberry@bradley.com

Brandon, MS 39042
Craig Lawson Slay

Palmer & Slay, PLLC
Brandon, MS 39042-2222
craig.slay@palmerslay.com
This the 1st day of November, 2016.
/s/ Michael O. Gwin

MICHAEL O. GWIN
-15-

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Case: 25CH1:16-cv-001060 Document #: 35 Filed: 12/22/2016 Page 1 of 9

IN THE CHANCERY COURT OF HINDS COUNTY, MISSISSIPPI

GREEN HILLS DEVELOPMENT COMPANY, LLC PLAINTIFF

VS. CAUSE NO. 2016-1060

THE SECRETARY OF STATE OF THE STATE

MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

based on improper venue (Miss.R.Civ.P. 12(b)(3))1 stating:

proceed in Rankin County Chancery Court.

The propriety of proceeding in Rankin County Chancery Court is further confirmed by

property be filed in the county where the real property is located.

any defendant is not a factor in applying the correct venue/jurisdiction statutes.

jurisdiction, or transferred to Rankin County Chancery Court.

Mississippi. (Doc. 15, 3.2)

declaratory judgment that:

The sales of the subject property to the SPEs and defendant

Except as provided in this chapter, the question of failure of title

improper both as a matter of venue and subject matter jurisdiction.

dismissal of a divorce suit brought in the wrong county. Id.

instances we have recognized a concept of geographical jurisdiction. Belk v. State Department

jurisdiction. The Belk court explained:

Geographical jurisdiction, therefore, was based on the location

3:13 Local Actions (May, 2016), stating:

Mississippi is traditional in restricting venue of actions

where the property is located and objections to venue cannot be waived).

venue provisions for what were traditionally referred to as local actions.)

suit or transfer to the Rankin County Chancery Court.

Rankin County Chancery Court.

to Rankin County Chancery Court should be granted.

Respectfully submitted, this the 22nd day of December 2016.

SECRETARY OF STATE OF THE STATE OF

By: /s/ Michael O. Gwin

MICHAEL O. GWIN (MB #5086)

notice to the following:

Michael A. Heilman (MSB No. 2223)

by United States Mail, postage fully prepaid, to the following:

Kenneth Paul Bradley, Jr.

This the 22nd day of December, 2016.

/s/ Michael O. Gwin

IN THE CHANCERY COURT OF HINDS COUNTY, MISSISSIPPI

GREEN HILLS DEVELOPMENT COMPANY, LLC PLAINTIFF

VS. CAUSE NO. 2016-1060

THE SECRETARY OF STATE OF THE STATE

OPPOSITION TO GREEN HILLS MOTION TO STRIKE

Green Hills motion to strike,1 stating:

Opposition to Motion to Strike. Green Hills motion to strike certain affirmative

respectfully requests permission to amend its answer.

complaint. It is 8(c) that addresses affirmative defenses.

Rule 8(c) Affirmative Defenses explains precisely, explicitly and in mandatory

language how an affirmative defense shall be pled. It states:

In a pleading to a preceding pleading, a party shall set forth

the rule mandatorily requires.

The advisory committee note to the rule explains:

Rule 8 allows claims and defenses to be stated in general terms

on this general notice.

Miss.R.Civ.P. 84 provides an appendix of forms to illustrate the simplicity and brevity

no attempt to claim or establish prejudice; it is not.

7(a) . . .). The comments to Rule 12 provide the same.

Interrogatories No. 10 and 11 stating:

INTERROGATORY NO. 10: You assert all applicable