*Local Rule 47.5 provides: "The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

 

1 These officials include Police Officer Billy Pickens, Police

Chief Pete Bowen, Mayor Jimmy Fannon and Fire Chief James Massey.

1

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-60052

Summary Calendar

GREG JACKSON d/b/a BOTTOMS UP

Plaintiff-Appellant,

VERSUS

BILLY PICKENS, et al.,

Defendants-Appellees.

Appeal from the United States District Court

For the Northern District of Mississippi

(1:94CV315-B-D)

July 24, 1996

Before REYNALDO G. GARZA, JONES, and BARKSDALE, CIRCUIT JUDGES

PER CURIAM:*

Background

This is an appeal from a ruling of the district court granting

summary judgment to the Appellees, various officials of the city of

Columbus, Lowndes County, Mississippi ("the City").1 Appellant, 
All the defendants were sued solely in their official capacity. 

 

2 Jackson made claims under 42 U.S.C. § 1983 pursuant to the

First, Fourth, Fifth and Fourteenth Amendments for deprivation of

a property interest.

2

one Greg Jackson, challenges that summary judgment, assigning as

error the lower court's interpretation of state law.

Concerning the facts of this case there is no controversy. In

the summer of 1991, the City successfully annexed a portion of land

which included a tavern owned by Jackson called the "Bottoms Up."

The Lowndes County Chancery Court approved the annexation in June

1991. Both parties to the annexation appealed to the Mississippi

Supreme Court, which affirmed the Chancellor's order on June 23,

1994. Jackson petitioned for rehearing but such request was denied

on December 9, 1994. In issuing its mandate, the Mississippi

Supreme Court noted that its final judgment had been issued on June

23, 1994.

Subsequent to the Mississippi Supreme Court's June 1994

judgment, the City became responsible for providing public services

to the newly-annexed portion of the city. The City also began to

enforce its fire safety codes. On or about November 4, 1994, but

before the Supreme Court denial of rehearing, the City forced the

plaintiff to close the "Bottoms Up" bar for violation of various

city codes, particularly those dealing with fire safety.

After closure of his bar, Jackson brought suit against the

city officials for depriving him of constitutional rights.2 His

constitutional claims hinge on his argument that while his appeal

was still extant (November 1994), the City had no authority to
 

3 The propriety of the original annexation decision and the

fire code violations is not at issue in this dispute.

3

enforce its code provisions in the newly-annexed portion of

Columbus. According to Jackson, the annexation decision did not

take effect until the required ten days had passed after the

Mississippi Supreme Court's December 1994 denial of his petition

for rehearing.3

The district court granted summary judgment for the officials

of the City of Columbus, stating that the Mississippi Supreme

Court's decision was "final" on June 23, 1994 and that the

annexation decision properly took effect ten days later on July 3,

1994. Jackson then brought this timely appeal.

Discussion

The assignment of error is reducible to this contention: the

lower court erroneously held that the June 1994 judgment of the

Mississippi Supreme Court was its final judgment thus entitling the

City to enforce its codes in the newly annexed area ten days

following. We will review the lower court's grant of summary

judgment de novo. Al-Ra'id v. Ingle, 69 F.3d 28 (5th Cir. 1993).

In doing so, we reach the same conclusion as the district court. 

Under Mississippi law, a Chancery Court annexation decree goes

into effect ten days after issuance of the decision, unless an

appeal is perfected. Miss. Code Ann. § 21-1-33. At issue in this

dispute is when an appealed decree shall take effect. § 21-1-33

provides that
4

[T]he decree of the chancellor shall become effective

after the passage of ten days from the date thereof or,

in event an appeal is taken therefrom, within ten days

from the final determination of such appeal.

Because Jackson believes that the December 1994 denial of rehearing

was the "final determination" of his appeal, he argues that the

November closing of his bar was unauthorized. 

The district court relied on § 21-1-33 in ruling that the

Mississippi Supreme Court's June 23, 1994 "final judgment" was the

"final determination" of the dispute. While the district court's

logic is plausible, we believe that other code provisions resolve

the question before us. Miss. Code Ann. § 21-1-37 specifically

addresses appeals from annexation decrees and states that 

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 in the case of

appeals from the decree of the chancellor with regard to

the creation of a municipal corporation. 

§ 21-1-21 provides that 

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 . . . .

The language of these code sections is clear. The

Chancellor's annexation decree goes into effect, when appealed, ten

days from the date of "final judgment." What is the date of final

judgment in this case? As noted above, the Supreme Court's order

denying Jackson's petition for rehearing declared that 

On the 23rd Day of June, 1994, . . . the Supreme Court of

Mississippi entered a final judgment as follows: 

. . . Affirmed on Direct and Cross-Appeals. 
 

4 The Tax Assessor of Lowndes County, Mississippi requested an

opinion of what the date of final judgment was for purposes of §§

21-1-21 and 27-35-3 (regarding taxation).

5

The judgment of June 23rd was thus the "final judgment" for

purposes of §§ 21-1-37 and 21-1-21. 

Supporting this assertion is a Mississippi Attorney General

opinion that addressed the question of which date was the date of

"final judgment" in this particular case.

4 In the Opinion of

January 5, 1995, the Attorney General, applying § 21-1-21, stated

that

In accordance with the mandate of December 13, 1994, the

date of final judgment affirming the decree of the

chancellor is June 23, 1994. 

A state supreme court mandate and an attorney general opinion both

declaring that the date of final judgment was June 23, 1994, are

enough to convince us that Mississippi law requires such. We are

not inclined to challenge the Mississippi Supreme Court's own

designation of its "final judgment." 

June 23, 1994, was the date of "final judgment," and thus the

City of Columbus was both required to provide services and entitled

to enforce its fire safety provisions in the newly-annexed area as

of July 3, 1994 (ten days later). Because Jackson's bevy of civil

rights claims was based solely on the unauthorized nature of the

November 1994 enforcement action, the district court properly

granted summary judgment for the Appellees.

The judgment of the district court must be AFFIRMED.