State wants marina lawsuits dismissed
By GEOFF BELCHER
Jul 31, 2012, 17:26
Mississippi Secretary of State Delbert Hosemann last week filed separate motions in Hancock Circuit Court asking a judge to dismiss two lawsuits against his office and the city of Bay St. Louis over beach front property involved in the on-going marina project.
The Murphy family filed an inverse condemnation suit in April, building on the legal challenge they began last year. On June 30, 2011, Kenneth, Ray and Audie Murphy filed suit against the city and Hosemann seeking the immediate "return and restoration" of their property, which was formerly the site of Dan B.'s Restaurant and Bar.
Scott M. Favre Public Adjuster, LLC, filed suit against Hosemann and the city on June 9, seeking to assert ownership of his property, lot 504 on Beach Boulevard across from Trapani's Eatery. According to Favre's complaint, the property line extends past the seawall and encompasses part of the beach, above the waterline.
The city and Hosemann both filed responses to the Murphys' inverse condemnation suit last month. The city also countersued, asking the court to order the Murphys to reimburse Bay St. Louis for attorney and filing fees. Hosemann moved for the judge to dismiss the case or to issue a summary judgment.
In the inverse condemnation claim, the Murphys are seeking "Just and due compensation of their property ... together with interest from the date actual possession was taken; attorney's, appraisal and engineering fees; reasonable compensatory damages to be determined by a jury; and "any and all" damages to their rights as landowners to which they may be entitled.The Murphys are asking the court to enter a declaratory judgment finding that their property is in compliance with the 1994 Final Tideland Boundary Map, lying between the retaining wall and the mean high water line, and is therefore not subject to Tidelands use. They're further seeking that any property that has been "taken or damaged" be "returned and restored ... immediately.
The secretary of state claims that all land on the shore side of a seawall belongs to the public trust. The Favre company is suing to assert ownership of the property and to prevent it being taken without compensation.
According to court filings, Scott Favre Public Adjuster obtained title to the property in 2010. At the time, there was no indication that the land beyond the seawall occupied the public trust, the suit claims.
When the company filed an Open Records Act request seeking any notices the previous landowners may have been sent, the secretary of state's office said those files were destroyed in Hurricane Katrina, the suit alleges.
The Murphy family in July filed an answer to Hosemann's motion to dismiss their suit, saying his claims are based on questionable facts.
Bay Mayor Les Fillingame contends that the city has a valid land use lease from the state and is acting in good faith.
In the motions filed last week, Hosemann claims that the statue of limitations for either the Murphys or Favre to sue had already expired as of 1998.
"(T)he Murphys are time barred by the Tidelands Act from challenging the Secretary's boundary interpretation," Hosemann said in one of the motions. ... In other words, the Secretary in 1994 interpreted the Tidelands boundary line to be at the seawall at the Murphys' property; conversely, the Murphys claim that the tidelands boundary is actually at the water's edge.
In the motion to dismiss Favres' claim, Hosemann says "The property being leased and claimed by the plaintiff is public property which is held in the Public Tidelands Trust by the Secretary for the people of Mississippi. Further, any challenge to the pubic tidelands boundary, including by quiet title, is time barred."
Hosemann said the statute of limitations to argue the boundary on that property was up when the previous owner, and "Favre was not the owner of the subject property at the time or within (the appropriate tie frame) of the finalization of the Tidelands map. Favre was not the owner of the subject property within fifteen years of the finalization of the Tidelands map."
Favre and the Murphys now must file answers to Hosemann's motions. No trial date in the matter has yet been set.