Don Cox v. City of Horn Lake, Mississippi ( 2000 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2000-AN-01808-SCT
IN THE MATTER OF THE ENLARGEMENT AND EXTENSION OF THE MUNICIPAL
BOUNDARIES OF THE CITY OF HORN LAKE, MISSISSIPPI: DON COX
v.
CITY OF HORN LAKE, MISSISSIPPI
DATE OF JUDGMENT: 10/17/2000
TRIAL JUDGE: HON. RAY HILLMAN MONTGOMERY
COURT FROM WHICH APPEALED: DESOTO COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: JERRY L. MILLS
ATTORNEYS FOR APPELLEE: BILLY C. CAMPBELL, JR.
WILLIAM AUSTIN BASKIN
JERRY R. WALLACE
NATURE OF THE CASE: CIVIL - MUNICIPAL BOUNDARIES & ANNEXATION
DISPOSITION: APPEAL DISMISSED - 04/18/2002
MOTION FOR REHEARING FILED: 6/3/2002; denied 8/1/2002
MANDATE ISSUED: 8/8/2002
BEFORE SMITH, P.J., DIAZ AND EASLEY, JJ.
EASLEY, JUSTICE, FOR THE COURT:
STATEMENT OF THE CASE
¶1. The case before this Court addresses the issues of standing, adequate service of process, and adequate
notice on unrepresented third parties in the proposed annexation of the City of Horn Lake (the City),
Mississippi. On December 17, 1997, the City filed a petition for the enlargement and extension of its
municipal boundaries in the Chancery Court of DeSoto County. A special chancellor heard the evidence
concerning the annexation matter commencing June 28, 1999, through January 25, 2000. On September
15, 2000, the special chancellor issued his opinion which annexed part and excluded part of the proposed
enlargement and extension area of the City. On October 17, 2000, the special chancellor issued a judgment
approving, ratifying and confirming the enlargement and extension of the boundaries of the City. On
October 20, 2000, Don Cox (Cox) appealed to this Court from the judgment of the DeSoto County
Chancery Court.
STATEMENT OF THE FACTS
¶2. On December 17, 1997, the City filed a petition for the enlargement and extension of its municipal
boundaries in the Chancery Court of DeSoto County. A hearing was scheduled for January 27, 1998.
Written objections were filed on or before the hearing date. On January 27, 1998, the lower court
continued the case until April 15, 1998. The chancellor recused himself on January 27, 1998; however, the
order provided that the lower court would retain jurisdiction of the matter for the limited purpose of
entertaining issues related to discovery until such time as a special chancellor was appointed to hear the
case. On January 30, 1998, a scheduling order was filed which stated in part the following:
ORDERED that all Objectors appearing pro se (without an attorney) shall be bound by this Order
regarding each matter listed herein, including but not limited to identification of witnesses and
production of documents, just as if said parties were represented by counsel.
....
ORDERED that the DeSoto County Chancery Clerk be, and he is hereby ordered to post a copy of
this Order on the public bulletin board in the DeSoto County Courthouse in Hernando, Mississippi.
¶3. On March 9, 1998, the City filed interrogatories, requests for admissions and request for production of
documents against all persons interested in, affected by, or being aggrieved by the proposed annexation and
filed discovery with the Chancery Court of DeSoto County. The certificate of service addressed the
document to five attorneys representing various individuals in the annexation including Cox.
¶4. On April 9 and 15, 1998, two other chancellors recused themselves from hearing the case. On April
14, 1998, the matter was again continued to June 8, 1998. However, on June 8, 1998, no hearing was
held, and there was no order continuing the matter. On July 22, 1998, the appointment of a special
chancellor was requested pursuant to Miss. Code Ann. § 9-1-105. By order dated December 4, 1998, this
Court approved the request for a special chancellor, appointing the Honorable Ray H. Montgomery to hear
the case.
¶5. On January 27, 1999, the City filed a Notice of Motion to Compel Discovery and for Sanctions with
the lower court and sent the notice to four attorneys representing individuals, including Jerry L. Mills,
attorney for Cox. On February 11, 1999, the special chancellor recognized that there was no order
continuing the case from June 8, 1998. Therefore, in his order dated February 11, 1999, the special
chancellor ordered a republishing and reposting of the matter. A sheriff's return and affidavit as to the
posting and notice of proof of publication were filed with the chancery court.
¶6. By order dated April 15, 1999, the special chancellor ruled that because of a failure to respond and a
failure to request an extension of time or leave to withdraw admissions, all parties interested in, affected by,
or being aggrieved by the proposed enlargement and extension of the municipal boundaries of the City were
deemed to have admitted the admissions propounded by the City. Specifically named and excluded from
this ruling of the court was Cox, along with a list of other individuals.
¶7. Beginning on June 28, 1999, through completion on January 25, 2000, the trial court heard testimony
concerning the annexation. On September 15, 2000, the special chancellor issued his opinion in which a
portion of the proposed area was annexed and portions of proposed Sections 7, 8, and 9 were not
included in the annexation. On October 17, 2000, the special chancellor rendered a judgment. The
judgment acknowledged that proof of the required notice was provided by proof of publication in the
newspaper, as well as the posting of the notice in at least three places within the City and territory. On
October 20, 2000, Cox appealed from the judgment of the DeSoto County Chancery Court to this Court.
STATEMENT OF THE ISSUES
I. Whether Cox has standing to pursue the appeal before this Court.
II. Whether the trial court committed reversible error in determining third parties admitted
the Request for Admissions in the absence of alleged service and notice of hearing on such
persons.
LEGAL ANALYSIS
I. Standing
¶8. Before reaching a determination as to the alleged lower court's error pertaining to service and notice on
the unrepresented third parties, the City raises the issue of standing.
¶9. Cox argues that the trial court committed reversible error when it ruled that "all persons interested in,
affected by, or being aggrieved" by the proposed enlargement and extension of the municipal boundaries of
the City had admitted the requests for admissions filed by the City.
¶10. The City counters that Cox has no standing to bring the appeal before this Court. "'Standing' is a
jurisdictional issue which may be raised by any party or the Court at any time." City of Madison v. Bryan,
763 So. 2d 162, 166 (Miss. 2000). The City claims that Cox has no privity to the third parties affected by
the lower court ruling, and he cannot show that he is aggrieved by the ruling. No third party pro se objector
is party to this appeal before the Court. Cox, who was specifically excluded from the decision of the lower
court, is the only person to appeal the lower court's decision.
¶11. Miss. Code Ann. § 21-1-37 (2000) provides the following in terms of an appeal from aggrieved
parties in annexation cases:
If the municipality or any other interested person who was a party to the proceedings in the chancery
court be aggrieved by the decree of the chancellor, then such municipality or other person may
prosecute an appeal therefrom within the time and in the manner and with like effect as is provided in
section 21-1-21(1) in the case of appeals from the decree of the chancellor with regard to the creation
of a municipal corporation.
¶12. The City maintains that admissions are binding only on objectors who do not come forward and voice
their objections or request that the admission be withdrawn. On January 30, 1998, the scheduling order
filed by the lower court ordered that all objectors that appeared pro se would be bound by the order,
including but not limited to, identification of witnesses and production of documents, just as if said parties
were represented by counsel. On April 15, 1999, the special chancellor ruled that the requests for
admissions as to all parties interested in, affected by, or being aggrieved by the proposed annexation were
deemed to be admitted.
¶13. The City stands on the fact that Cox was specifically named in the Order as one of the individuals that
was excluded from this portion of the Order. Cox never objected to the original discovery order.
Therefore, the City argues that since Cox was not bound by the admissions of the third parties, he clearly
was not adversely impacted by the lower court's ruling. Furthermore, the City claims that Cox has failed to
demonstrate any adverse impact or harm to his substantial rights that may have resulted from the lower
court's ruling.
¶14. Counsel for Cox, however, did object when the City sought to have a copy of the requests for
admissions admitted into the record, but counsel for Cox stated that he did not represent these third parties.
Counsel for Cox stated in part that "I am making a statement as to the position of my clients, and it is the
position of my clients that any aggrieved parties interested in, affected by, or aggrieved by the proposed
annexation should have the full right of participation." The lower court overruled the objection. However,
the City correctly argues that Cox did not assert any adverse impact that the ruling may have had upon him.
¶15. The City asserts that since Cox did not establish that he was adversely affected by the ruling he cannot
continue his appeal. In effect , the City claims that Cox was not aggrieved by the special chancellor's
decision. The City claims that a party has no standing to appeal a lower court decision where there is no
demonstration that the lower court's ruling was erroneous and the decision did not deprive the party of a
substantial right. Further, the City claims that Cox failed to show in the record that he had property in the
area.(2)
¶16. In addressing a permit application case, this Court held that in order for the party to have standing in
the matter, the party must demonstrate that the City's action had an adverse effect on property in which he
has an interest. City of Madison v. Bryan, 763 So. 2d 162, 166 (Miss. 2000) (citing White Cypress
Lakes Dev. Corp. v. Hertz, 541 So. 2d 1031, 1034 (Miss.1989).
¶17. Cox maintains that Miss. Code Ann. § 21-1-37 (2000) statutorily controls the issue of standing in
annexation cases. Further, Cox argues that a party's right to appeal has been held to apply even to those
that did not participate in the trial. Sperry Rand Corp. v. City of Jackson, 245 So. 2d 574, 575 (Miss.
1971). This Court held in Sperry the following in part:
In overruling the motion, this Court considered the language actually employed in the statute to be
controlling. The statute (Mississippi Code 1942 Annotated section 3374--08(3)) grants the right of
appeal 'to any person interested in or aggrieved by the decree of the chancellor, and who was a party
to the proceedings in the chancery court. * * *' The right is not limited to those parties who actively
participated in the proceedings in that court. The interpolation of 'who participated' or 'who appeared'
or words of similar restrictive import, was not considered to be justified.
To fulfill the requirements of due process, the statute provides for publication of notice to all owners
of property within the area proposed to be annexed. The statutory notice having been given,
appellants and others within that classification, became 'parties to the proceedings' in the chancery
court. This status continued through final decree, which became conclusive and binding upon
appellants and will so remain until and unless reversed or modified on appeal.
Their property rights having been adjudicated and the decree being res judicata as to them, appellants
have perfected an appeal to this Court within the time and in the manner permitted by statute. This
appeal they are entitled to prosecute. As in other cases of appeal, it will be limited to the record as
made. No inference of any kind whatever is to be drawn from this ruling as to what limitations, if any,
there may or may not be as to grounds for reversal available for assignment by appellants.
Sperry, 245 So.2d at 575. Cox further cites Norwood v. In Matter of Extension of Boundaries of
City of Itta Bena, 788 So. 2d 747 (Miss. 2001), for its reversal of a municipal annexation in which parties
that did not participate in the trial had the right to appeal. However, Norwood is distinguishable from the
case sub judice because the parties appealing the case asserted that the City of Itta Ben failed to provide
mandatory notice through posting in three public places. See Miss. Code Ann. § § 21-1-15 and §21-1-33.
The City sought to annex areas known as Tract A and Tract B. Norwood, 788 So.2d at 749. The City
later amended its petition deleting Tract A from the proposed annexation. Id. at 748. The parties appealing
the annexation of Tract B were a group of concerned citizens living in Tract B, the only area annexed. Id. at
749. In the case before this Court, Cox is asserting a notice claim on behalf of a third party who is not a
named party to this appeal. In Norwood, the parties affected by the decision were the parties appealing the
decision.
¶18. Cox argues that the lower court's deeming the admissions as admitted was detrimental to him. Cox
claims that he was deprived of the ability to call witnesses that opposed the annexation. According to Cox,
anyone that has admitted the reasonableness of the annexation would be a tainted witness. Cox also asserts
that the chancellor's ruling must look to the evidence as a whole to decide whether an annexation is
reasonable. However, the special chancellor recited in his opinion that he reaffirmed the April 15, 1999,
order determining that the admissions were deemed admitted.
¶19. Despite Cox's arguments pertaining to standing and notice, he is asserting a claim that concerns a ruling
that clearly applies to third parties. These third parties have not objected or appealed to this Court for any
relief on the alleged notice and service issues. The special chancellor's order concerning the admissions
specifically excluded Cox from its determination. Had the third parties joined in this appeal, then they would
have standing to dispute any allegations relating to service and notice. However, these are not the facts
before this Court.
CONCLUSION
¶20. The chancellor ruled that the admissions of the third parties were admitted. Indeed, counsel for Cox
stated that he did not represent the third parties. Accordingly, this appeal is dismissed for lack of standing.
Cox is raising an issue pertaining to a ruling on a third party, as such, he has no privity to the appeal on this
issue. Since the standing issue is dispositive of the case, this Court need not address any further issues
presented on appeal.
¶21. APPEAL DISMISSED.
McRAE AND SMITH, P.JJ., WALLER, DIAZ, CARLSON AND GRAVES, JJ.,
CONCUR. PITTMAN, C.J., AND COBB, J., CONCUR IN RESULT ONLY.
1. Miss. Code Ann. § 21-1-21 provides:
Any person interested in or aggrieved by the decree of the chancellor, and who was a party to the
proceedings in the chancery court, may prosecute an appeal therefrom to the supreme court within
ten days from the date of such decree by furnishing an appeal bond in the sum of five hundred dollars
with two good and sufficient sureties, conditioned to pay all costs of the appeal in event the decree is
affirmed. Such appeal bond shall be subject to the approval of the chancery clerk and shall operate as
a supersedeas. If the decree of the chancellor be affirmed by the supreme court, then such decree
shall go into effect after the passage of ten days from the date of the final judgment thereon, and the
party or parties prosecuting such appeal and the sureties on their appeal bond shall be adjudged to
pay all costs of such appeal.
2. Cox disputes the City's allegation and stated that the location of his property was provided in discovery
and is part of the area annexed by the City. A review of the court papers reveals that Cox's address was in
Walls, Mississippi.
3. Miss. Code Ann. § 21-1-21 is derived from Miss. Code Ann. § 3374-08 (1942). See also Miss. Code
Ann. § 21-1-37.