Pemberton Properties, Ltd. v. Mayor & Board of Aldermen of Pearl , 2017 Miss. LEXIS 52 ( 2017 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2015-CA-01865-SCT
PEMBERTON PROPERTIES, LTD d/b/a
PEMBERTON APARTMENTS, PARK VILLA, LLC
d/b/a EAST VILLA APARTMENTS, PEARL
PARTNERS, LP d/b/a COLONY PARK
APARTMENTS, COLONY PARK II, LLC d/b/a
GRANDE AT COLONY PARK APARTMENTS,
ALBERT MOORE HOME BUILDERS, INC. d/b/a
COLONIAL TERRACE APARTMENTS, WOOD
GLEN, LLC d/b/a WOOD GLEN APARTMENTS,
STEVE MAULDING d/b/a BAVARIAN GARDEN
APARTMENTS, STEVE MAULDING d/b/a PEARL
MANOR APARTMENTS, SHEILA MAULDING
d/b/a 468 PLACE TOWNHOMES AND WPB
PROPERTIES, LLC d/b/a FOX RUN
APARTMENTS
v.
THE MAYOR AND BOARD OF ALDERMEN OF
THE CITY OF PEARL, MISSISSIPPI
DATE OF JUDGMENT: 07/15/2015
TRIAL JUDGE: HON. WILLIAM E. CHAPMAN, III
TRIAL COURT ATTORNEYS: STEVEN H. SMITH
SAMAC S. RICHARDSON
JAMES A. BOBO
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: STEVEN H. SMITH
SAMAC S. RICHARDSON
ATTORNEY FOR APPELLEES: JAMES A. BOBO
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: AFFIRMED - 02/09/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
DICKINSON, PRESIDING JUSTICE, FOR THE COURT:
¶1. Under Mississippi law, a person wishing to appeal the adoption of a city’s ordinance
must do so within ten days. The primary question presented is whether—as the Mayor and
Board of Aldermen of the City of Pearl (the “City”) argue—the appeal period begins to run
from the day of the ordinance’s adoption, or—as the appellants argue—from its effective
date. We also must consider whether a circuit judge may dismiss a complaint seeking a writ
of mandamus to order a city to file a bill of exceptions presented to it for review, when the
circuit judge determines the bill of exceptions was not timely presented to the city.
¶2. Because the appeal period for city ordinances begins on the date an ordinance is
adopted, and because the appellants’ bill of exceptions was presented to the City outside the
ten-day period following the date of adoption, we find that the circuit judge in this case
properly dismissed the complaint for writ of mandamus, and we affirm.
FACTS AND PROCEDURAL HISTORY
¶3. On June 27, 2013, the Mayor and Board of Aldermen for the City of Pearl adopted an
ordinance to regulate rental housing. The ordinance provided it would take effect thirty days
after publication. Publication did not occur until September 17, 2014.
¶4. On January 27, 2015, the appellants—several rental-property owners—filed suit,
alleging they had filed a Notice of Appeal and Intent to File Bill of Exceptions with the City
Clerk of Pearl on September 26, 2014, and a Bill of Exceptions on November 14, 2014, to
appeal the City’s decision to adopt the rental-housing ordinance. The complaint further
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alleged the City had failed to transmit the Bill of Exceptions to the circuit clerk as required
by statute, and sought a writ of mandamus ordering the City to do so.
¶5. The City moved to dismiss the complaint, arguing that it was untimely and that the
circuit court lacked jurisdiction because the ten-day time for appeal ran from the adjournment
of the meeting at which the City had adopted the ordinance, June 27, 2013. The circuit judge
granted the motion, finding that he could not issue a writ of mandamus to order the City to
file the bill because the circuit court would lack jurisdiction over the untimely appeal from
the City’s decision. The property owners appealed.
ANALYSIS
¶6. This appeal presents two questions. First, when a litigant seeks a writ of mandamus
to order a municipal authority to sign and file a bill of exceptions, but the circuit judge
concludes the bill of exceptions would be untimely, must the circuit judge order that the bill
be signed and filed only to later dismiss that bill as untimely, or may the circuit judge dismiss
the complaint for mandamus on that ground? Second, did the property owners in this case
timely present their bill of exceptions to the City?
Appeal Period
¶7. The authority that controls this case is Mississippi Code Section 11-51-75, which
provides in relevant part:
Any person aggrieved by a judgment or decision of the board of supervisors,
or municipal authorities of a city, town, or village, may appeal within ten (10)
days from the date of adjournment at which session the board of supervisors
or municipal authorities rendered such judgment or decision, and may embody
the facts, judgment and decision in a bill of exceptions which shall be signed
by the person acting as president of the board of supervisors or of the
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municipal authorities. The clerk thereof shall transmit the bill of exceptions to
the circuit court at once, and the court shall either in term time or in vacation
hear and determine the same on the case as presented by the bill of exceptions
as an appellate court, and shall affirm or reverse the judgment.1
¶8. But here, the property owners argue their bill was timely because the ten-day period
ran from the ordinance’s effective date, not from the date the City decided to adopt the
ordinance. In support of this contention, the property owners cite cases holding that an
aggrieved party may not appeal a municipal decision until the decision is final.2
¶9. In Garrard v. City of Ocean Springs, the City of Ocean Springs transferred control
of the Ocean Springs American Legion Hut to the Park Commission.3 Several aggrieved
individuals appealed that decision through a bill of exceptions.4 The circuit judge dismissed
the case, finding that the City’s decision was not appealable.5 This Court reversed, finding
that Section 11-51-75 broadly permits an appeal of “any act of a county or municipality
leaving a party aggrieved . . . where all issues of the controversy are finally disposed of by
Order of the City Council.”6 This Court then went on to say, seemingly in dicta, that had the
City adopted an earlier proposed resolution regarding the hut, which stated “this action
1
Miss. Code Ann. § 11-51-75 (Rev. 2012).
2
See Garrard v. City of Ocean Springs, 672 So. 2d 736 (Miss. 1996); J.H. Parker
Constr. Co., Inc. v. Bd. of Aldermen of the City of Natchez, 721 So. 2d 671 (Miss. Ct. App.
1998).
3
Garrard, 672 So. 2d at 738–39.
4
Id. at 737.
5
Id. at 738.
6
Id. (quoting South Central Turf, Inc. v. City of Jackson, 526 So. 2d 558, 561
(Miss. 1988)).
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should not start until the Supreme Court has ruled on the case currently pending regarding
subject building,” the order would not have been final and appealable.7
¶10. Later, in J.H. Parker Construction Company, Inc. v. Board of Alderman of City of
Natchez, the Mississippi Court of Appeals, relying on Garrard, held that the ten-day time
for appeal under Section 11-51-75 does not run until the City issues a final, appealable
order.8 There, the City accepted a bid for a public construction project contingent upon
approval by the Mississippi Department of Transportation and Federal Highway
Administration.9 The City argued that the ten-day time ran from the date it accepted the
bid.10 But the Court of Appeals found that, until the contingencies were removed, the City
had rendered no final, appealable judgment and the ten-day time did not begin to run.11
¶11. But this Court’s opinion in City of Oxford v. Inman is most directly on point.12
There, the City of Oxford rezoned certain property and a bill of exceptions followed.13 On
appeal from the circuit court’s decision to reverse the City’s action, this Court considered
whether the bill had been timely filed.14 The City argued the ten-day time period ran from
7
Garrard, 672 So. 2d at 739.
8
J.H. Parker Constr. Co., Inc., 721 So. 2d at 674.
9
Id. at 673.
10
Id. at 674.
11
Id.
12
City of Oxford v. Inman, 405 So. 2d 111 (Miss. 1981).
13
Id. at 112.
14
Id. at 114–15.
5
May 6, 1980, the date the Mayor and Board of Aldermen voted to rezone the property.15 This
Court disagreed, finding that the ten-day period ran from “the date the written ordinance was
signed and adopted.”16 Notably, this Court, while noting the statutory perquisites for the
ordinance to take effect, never connected the time for appeal to the effective date of the
ordinance.17
¶12. Here, the property owners argue the ten-day time for appeal could not run until the
City had rendered a final decision and that the City had not rendered an appealable decision
until the ordinance took effect. But under Section 11-51-75, the property owners had to
present the bill of exceptions “within ten (10) days from the date of adjournment at which
session the . . . municipal authorities rendered such judgment or decision.”18 The plain,
unambiguous language of the statute counts the ten-day period from the date of the
completed decision to be appealed. Here, the bill of exceptions appeals the City’s decision
to adopt the ordinance, which occurred during a meeting adjourned on June 27, 2013, and
was completed with the mayor’s signature that same day. The City’s decision was complete
that day, and the ten-day time to appeal began to run.
¶13. In other words, the property owners correctly argue that the decision referenced in
Section 11-51-75 is the final, appealable decision. But here, the City had rendered a
15
Id. at 114.
16
Id.
17
Id. 114–15.
18
Miss. Code Ann. § 11-51-75 (Rev. 2012).
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complete decision on June 27, 2013. So, in concert with our precedent and the clear wording
of the statute, we find that the bill of exceptions was not timely presented.
Mandamus
¶14. When a litigant presents a bill of exceptions to the municipal authority, the “bill of
exceptions . . . shall be signed by the person acting as president . . . of the municipal
authorities” and “[t]he clerk thereof shall transmit the bill of exceptions to the circuit
court.”19 This Court has recognized that when municipal authorities fail to carry out these
duties, a writ of mandamus is the appropriate remedy to force them to do so.20
¶15. In Hathorn v. Morgan, Hathorn prepared a bill of exceptions concerning a decision
by the mayor—Morgan—and board of aldermen of Woodville, and presented the bill to
Morgan for his signature.21 Morgan refused to sign the bill, believing it had not been timely
presented.22 So Hathorn petitioned the Circuit Court of Wilkinson County for a writ of
mandamus to order Morgan to sign the bill.23 The circuit judge sustained a demurrer to the
petition, and this Court affirmed, based on Hathorn’s failure to timely present the bill to the
mayor.24 So, under Hathorn, we already have held that a circuit judge may dismiss a
complaint for writ of mandamus to order a City’s action on a bill of exceptions if the bill was
19
Id.
20
See Reed v. Adams, 236 Miss. 333, 111 So. 2d 222 (1959).
21
Hathorn v. Morgan, 107 Miss. 589, 65 So. 643, 644 (1914).
22
Id.
23
Id. at 643.
24
Id. at 643–44.
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presented to the City outside the time for taking an appeal. We see no reason to disturb that
precedent.
Sanctions
¶16. The City asks that this Court sanction the property owners for filing a frivolous
appeal. According to the City, no “reasonable person would have any hope for success” with
this appeal, so sanctions are appropriate.25 The line that separates zealous advocacy and
frivolous filings occasionally is difficult to discern. But in this case, we find that neither the
property owners nor their counsel crossed that line. We do not find this appeal frivolous, so
we deny the City’s request for sanctions.
CONCLUSION
¶17. We affirm the circuit court’s decision to dismiss the property owners’ complaint, and
we deny the City’s request for sanctions.
¶18. AFFIRMED.
WALLER, C.J., RANDOLPH, P.J., KITCHENS, KING, COLEMAN,
MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.
25
Harris v. Harris, 988 So. 2d 376, 380 (Miss. 2008).
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