Kennedy v. Claiborne County Ex Rel. Board of Supervisors ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CA-01397-COA
JERRY L. KENNEDY APPELLANT
v.
CLAIBORNE COUNTY, MISSISSIPPI, BY AND
THROUGH ITS BOARD OF SUPERVISORS,
CLAIBORNE COUNTY HOSPITAL AND
BOARD OF TRUSTEES OF CLAIBORNE
COUNTY HOSPITAL APPELLEES
DATE OF JUDGMENT: 09/14/2015
TRIAL JUDGE: HON. LAMAR PICKARD
COURT FROM WHICH APPEALED: CLAIBORNE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: CHUCK R. MCRAE
SETH C. LITTLE
CHRISTOPHER A. BAMBACH
ATTORNEYS FOR APPELLEES: SILAS W. MCCHAREN
BARBARA M. BLACKMON
EDWARD BLACKMON JR.
PETER J. MCKELROY
NATURE OF THE CASE: CIVIL - CONTRACT
TRIAL COURT DISPOSITION: FINAL JUDGMENT IN FAVOR OF
APPELLEES; CASE DISMISSED WITH
PREJUDICE
DISPOSITION: AFFIRMED: 02/14/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.
GRIFFIS, P.J., FOR THE COURT:
¶1. Jerry Kennedy appeals the judgment of the Claiborne County Circuit Court wherein
the circuit court found Kennedy’s contract of employment with the Claiborne County
Hospital Board of Trustees was not sufficiently spread across the minutes to constitute a
valid and enforceable contract. We find no error and affirm.
FACTS
¶2. In July 2012, Claiborne County, Mississippi, through its Board of Supervisors, took
control of the Claiborne County Hospital (“Hospital”), acting as the Board of Trustees for
the Hospital. The Claiborne County Hospital Board of Trustees (“Board”) held regular
meetings to discuss the business of the Hospital.
¶3. Pursuant to Mississippi Code Annotated section 41-13-35(3) (Rev. 2013), the Board
was required to keep minutes of its official business. The minutes from the following Board
meetings were introduced at trial and are summarized as follows:
August 13, 2012 — The Board selected Kennedy “Hospital Administrator.”
The minutes were adopted by action of the Board on August 27, 2012.
August 27, 2012 — The Board approved Kennedy’s salary of $20,000 per
month. The minutes were adopted by action of the Board on August 27, 2012.
September 10, 2012 — The Board noted under “Old Business” that the salary
for the Hospital Administrator is $20,000 per month and $240,000 per year.
The minutes were adopted by action of the Board on September 25, 2012.
September 25, 2012 — The Board agreed to give Kennedy “a 5 year contract
with incentives.” The minutes were adopted by action of the Board on
October 4, 2012.
April 1, 2013 — The Board informed Kennedy he did not have a valid contract
because there was never one reflected in the minutes. The Board offered
Kennedy a one-year contract and presented the one-year contract for approval.
Kennedy responded that his contract was a five-year contract and he did not
have a one-year contract. Kennedy refused the one-year contract. Kennedy
was terminated as Hospital Administrator effective April 2, 2013.
¶4. Kennedy filed a complaint in circuit court against Claiborne County, by and through
its Board of Supervisors, the Hospital, the Claiborne County Board of Trustees, and John
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Does 1-10. The complaint asserted claims for breach of contract, deprivation of civil rights,
conspiracy to interfere with civil rights, and specific performance. The contract that
Kennedy claims was breached was an employment agreement between Kennedy and the
Board dated October 4, 2012, and signed by Kennedy and the Board President as
“Chairperson.”1 The term of the contract was for five years beginning October 4, 2012.
¶5. Kennedy filed a motion for partial summary judgment and claimed that his five-year
contract was approved by the Board and sufficiently spread across the minutes. Thus, he
argued the contract was valid and enforceable. Claiborne County responded and filed a
cross-motion for summary judgment and claimed that the contract was not valid and
enforceable, and Kennedy was lawfully terminated. After a hearing, the circuit court denied
both motions.
¶6. On May 12-13, 2015, a bench trial was held. Kennedy and Annie Odom, the Board’s
secretary, testified. Various exhibits were introduced at trial, including the minutes, the five-
year contract, and the one-year contract. Claiborne County was prohibited from presenting
any witnesses or documentary evidence due to a pretrial sanction issued by the circuit court.
Thus, the only evidence introduced at trial was offered by Kennedy.
¶7. On September 4, 2015, the circuit court issued its findings of fact and conclusions of
law and found that the minutes were not sufficient to create a valid and enforceable contract
for a term of five years between Kennedy and the Board. The circuit court further found that
Kennedy failed to prove he was unlawfully terminated and failed to establish Claiborne
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The minutes from the October 4, 2012 Board meeting were not introduced at trial.
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County violated his constitutional rights. A final judgment in favor of Claiborne County was
entered.
¶8. Kennedy now appeals and argues: (1) the circuit court erred in finding the contract of
employment was not sufficiently evidenced on the minutes, (2) the circuit court’s ruling that
Claiborne County did not breach the contract was against the great weight of the evidence,
(3) the circuit court erred in finding Kennedy did not have a property right in his continued
employment, and (4) the circuit court erred in denying Kennedy’s motion for partial summary
judgment.
STANDARD OF REVIEW
¶9. “A circuit court judge sitting without a jury is afforded the same deference as a
chancellor.” City of Jackson, Miss. v. Sandifer, 107 So. 3d 978, 983 (¶16) (Miss. 2013).
“We will not disturb a circuit court’s findings after a bench trial unless ‘they are manifestly
wrong, clearly erroneous, or an erroneous legal standard was applied.’” Id.
ANALYSIS
I. Whether the circuit court erred in finding the contract of employment
was not sufficiently evidenced on the minutes.
¶10. A public board “speaks and acts only through its minutes.” Wellness, Inc. v. Pearl
River Cty. Hosp., 178 So. 3d 1287, 1290 (¶9) (Miss. 2015). The minutes “are the sole and
exclusive evidence of what the board did” and “must be the repository and the evidence of
their official acts.” Pike Cty., Miss. ex rel. Bd. of Supervisors v. Indeck Magnolia, LLC, 866
F. Supp. 2d 589, 591-92 (S.D. Miss. 2012) (quoting Thompson v. Jones Cty. Cmty. Hosp.,
352 So. 2d 795, 796 (Miss. 1977)).
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a. Whether the contract was attached to the minutes.
¶11. Kennedy first argues that his five-year contract was attached to the minutes and is
therefore enforceable. Kennedy relies on the trial testimony of Annie Odom, the Board’s
secretary. Kennedy asserts the circuit court neglected to consider Odom’s testimony that she
“personally attached [the contract] to the minutes of the [Board] prior to the termination of
[Kennedy].”
¶12. Odom testified that when Kennedy gave her the contract in 2012, she put the contract
in a folder with Kennedy’s name on it, and put it in her desk drawer. Odom specifically
stated the contract was not in the minute book at that time. Odom further testified it was not
until March 2013 when she put the contract in the “side pocket of the minute book.”
However, simply placing a contract in a drawer or in the side pocket of the minute book at
some later date is insufficient to meet the minutes requirement. See Lange v. City of
Batesville, 972 So. 2d 11, 19 (¶10) (Miss. Ct. App. 2008) (“[T]he action taken will be
evidenced by a written memorial entered upon the minutes at the time, and to which all the
public may have access to see what was actually done.” (quoting Thompson, 352 So. 2d at
796)).
¶13. While the circuit court did not specifically discuss Odom’s testimony, it did reference
her testimony in its findings of fact and conclusions of law. The circuit court concluded that
a copy of the contract was not attached to the minutes. We do not find the court’s finding
to be manifestly wrong or clearly erroneous.
b. Whether the minutes sufficiently evidence a contract.
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¶14. Kennedy next argues that even if the contract was not attached to the minutes, the
minutes sufficiently evidence a five-year contract of employment. The requirement that “a
board may only speak through its minutes does not equate to the notion that the entirety of
a contract must be reproduced within a board’s minutes.” Id. A contract with a public board
“may be enforced if enough of the terms and conditions of the contract are contained in the
minutes for determination of the liabilities and obligations of the contracting parties without
the necessity of resorting to other evidence.” Thompson, 352 So. 2d at 797.
¶15. The five-year contract Kennedy seeks to enforce addresses Kennedy’s duties and
performance and provides a gross annual salary of $240,000 for the first year, with a four
percent increase for every year thereafter. Additionally, the contract provides for fringe
benefits including a pager and a cell phone, and reimbursement for travel, lodging, food, and
professional dues and licenses. The contract cannot be terminated without cause, and the
Board must give Kennedy at least 120 days’ written notice of its intent to terminate the
agreement if there is an amicable termination. Moreover, the Board must provide Kennedy
with the alleged cause for termination and allow him 120 days to correct the cause if proven
to be amicable cause.
¶16. Kennedy claims the Board breached the contract when it terminated him “without the
requisite cause, notice, or opportunity to correct.” Kennedy further claims that pursuant to
the contract, the Board is obligated to pay him “a gross salary of $240,000 per year at a rate
of $20,000 per month with a yearly increase in salary of 4% annually.”
¶17. The minutes show Kennedy was named hospital administrator at a salary of $20,000
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per month and $240,000 per year. While the minutes reflect Kennedy was to be given “a 5
year contract with incentives,” the minutes do not contain enough terms and conditions of
the contract to determine the incentives, or other liabilities and obligations such as benefits
and termination.
¶18. The only minutes that reference a five-year contract are the minutes from September
25, 2012, which reflect “a 5 year contract with incentives.” However, the September 25,
2012 minutes were not adopted by the Board until a meeting held on October 4, 2012.
Additionally, the contract on which Kennedy relies was dated and entered October 4, 2012.
Yet the minutes from October 4, 2012, were not introduced at trial and are, therefore, not
included in the record before us. Thus, there is no evidence to show what, if any, action was
taken by the Board on October 4, 2012, regarding the contract.
¶19. Although the contract was signed by a board member, there are no minutes to show
that the board member was authorized to unilaterally enter into the contract or to bind the
Board as a whole. See Lange, 972 So. 2d at 21 (¶16) (Board members, individually, cannot
“authorize an agent to bind [the Board] unless an order thereof was entered upon its minutes
authorizing the giving of such authority, or unless the order constituting a contract recited
the making thereof, and its approval by [the Board].”). Moreover, there are no minutes to
indicate the contract was “determined or decided upon only in or at a lawfully convened
session.” Howell v. Bd. of Supervisors of Jefferson Davis Cty., 70 So. 3d 1148, 1154-55
(¶22) (Miss. Ct. App. 2011).
¶20. Kennedy relies on Thompson to support his position that the minutes sufficiently
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reflect a contract. In Thompson, Thompson filed a breach-of-contract action against the
community hospital and claimed the hospital employed him as executive director at an annual
salary of $44,000 for a term of four years. Thompson, 352 So. 2d at 795. The minutes
reflected that Thompson was given a four-year contract as executive director of the hospital,
but contained no reference to salary. Id. at 797. On appeal, the court concluded it could not
determine the amount of the salary since it was not reflected in the minutes, and therefore
affirmed the circuit court’s dismissal of Thompson’s breach-of-contract action. Id. at 797-
98.
¶21. Just as the court in Thompson could not determine the salary, we cannot determine the
incentives. Moreover, we cannot enforce a contract with a public board that limits the
board’s ability to terminate an employee and contains certain obligations such as notice of
termination and an opportunity to correct the cause, without any reference to those
obligations in the minutes.
¶22. “[E]ach person, firm or corporation contracting with a board of supervisors is
responsible to see that the contract is legal and properly recorded on the minutes of the
board.” Id. at 797. Kennedy “had a clear and well-established duty to ensure that sufficient
terms of [his] contract with the hospital were spread upon the Board’s minutes.” Wellness,
Inc., 178 So. 3d at 1293 (¶18). We find Kennedy failed to fulfill this duty. As the terms and
conditions of the contract were not sufficiently contained in the minutes for determination
of the liabilities and obligations of the contracting parties, the employment contract cannot
be enforced. Thompson, 352 So. 2d at 797.
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II. Whether the circuit court’s ruling that Claiborne County did not breach
the contract was against the great weight of the evidence.
¶23. Kennedy asserts “the evidence presented at trial clearly showed [he] was terminated
without cause, and that such termination constituted a breach of contract.” Kennedy claims
“[the Board’s] act of agreeing to [his] five (5) year contract removes [his] employment from
the at-will employment doctrine, thereby prohibiting [his] termination without cause.”
¶24. Kennedy’s breach-of-contract claim is based on the assumption that a valid and
enforceable contract of employment exists. The circuit court determined that the Board could
terminate Kennedy’s employment with or without cause because Kennedy did not have a
valid and enforceable contract stating otherwise. We do not find the circuit court’s
determination to be manifestly wrong or clearly erroneous. Because there was no valid and
enforceable contract between the parties, there was no breach of contract by Claiborne
County.
III. Whether the circuit court erred in finding Kennedy did not have a
property right in his continued employment.
¶25. Kennedy further asserts his termination without cause and without notice constituted
“a deprivation of a property right in continued employment without due process.” “A public
employee has a property interest in [his] job if [he] has a legitimate claim of entitlement to
it, a claim which would limit the employer’s ability to terminate the employment.” Roberts
v. Walthall Cty. Gen. Hosp., 96 F. Supp. 2d 559, 562 (S.D. Miss. 2000). “A claim of
entitlement to job tenure may be created directly by statute or by written contract or by a
mutually explicit understanding enforceable under state law as an implied contract.” Id.
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¶26. Kennedy argues his claim of entitlement to job tenure was created by his written
employment contract with the Board. However, the minutes do not sufficiently reflect a
contract. Moreover, the minutes do not contain any provision that would limit the Board’s
ability to terminate Kennedy. Without a valid contract, Kennedy did not have a
constitutionally protected property interest in continued employment. Thus, his constitutional
rights were not violated when he was terminated.
IV. Whether the circuit court erred in denying Kennedy’s motion for partial
summary judgment.
¶27. Kennedy last asserts the circuit court erred in denying his motion for partial summary
judgment. We find this issue is moot.
¶28. “[A]ppeals from the denial of a motion for summary judgment are interlocutory in
nature and are rendered moot by a trial on the merits.” Britton v. Am. Legion Post 058, 19
So. 3d 83, 85 (¶7) (Miss. Ct. App. 2008). Following the circuit court’s denial of his motion
for partial summary judgment, Kennedy did not seek interlocutory review. Instead, he
proceeded to a trial on the merits. As a result, this issue is moot.
CONCLUSION
¶29. “The Mississippi Supreme Court has characterized the minutes requirement as ‘an
important public policy issue,’ cautioning that ‘public interest requires adherence thereto,
notwithstanding the fact that in some instances the rule may work an apparent injustice.’”
Urban Developers, LLC v. City of Jackson, Miss., 468 F.3d 281, 299 (5th Cir. 2006) (quoting
Butler v. Bd. of Supervisors for Hinds Cty., 659 So. 2d 578, 579 (Miss. 1995)). “[T]he policy
of protecting the public’s funds for use by and for the public is paramount to other individual
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rights which may also be involved.” Id.
¶30. We find the minutes do not sufficiently reflect a five-year contract between Kennedy
and the Board. Accordingly, we affirm the judgment of the circuit court.
¶31. THE JUDGMENT OF THE CIRCUIT COURT OF CLAIBORNE COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, FAIR, WILSON AND
GREENLEE, JJ., CONCUR. WESTBROOKS, J., NOT PARTICIPATING.
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