IN THE SUPREME COURT OF MISSISSIPPI

NO. 97-CA-01205-SCT

CITY OF MADISON

v.

STEVE BRYAN

DATE OF JUDGMENT: 08/28/1997

TRIAL JUDGE: HON. JOHN B. TONEY

COURT FROM WHICH

APPEALED:

MADISON COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: JOHN HEDGLIN

ATTORNEY FOR APPELLEE: STEVEN H. SMITH

NATURE OF THE CASE: CIVIL - OTHER

DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN

PART - 05/11/2000

MOTION FOR REHEARING

FILED:

5/25/2000; denied 7/20/2000

MANDATE ISSUED: 7/27/2000

EN BANC.

PRATHER, CHIEF JUSTICE, FOR THE COURT:

¶1. This case comes to this Court on appeal of the City of Madison (the City) regarding Steve Bryan's

failed attempt seeking approval by the City to erect an apartment complex to be known as The Madison.

After the City failed to act on Bryan's request for a building permit, Bryan appealed, by bill of exceptions,

to the Madison County Circuit Court which initially ordered the City to approve Bryan's plan. However, the

circuit court reversed its position and held the issue to be moot. Afterwards, the circuit court, applying Rule

11, awarded costs and attorney's fees to Bryan.

¶2. We find that the issue is indeed moot as Bryan did not have a valid option on the property at issue here

when he filed his appeal to circuit court. The circuit court was correct to hold the issue moot, but it abused

its discretion in awarding Bryan costs and attorney's fees. The City's defending its actions in circuit court

and appealing to this Court were not frivolous, because "a pleading or motion is frivolous within the meaning

of Rule 11 only when, objectively speaking, the pleader or movant has no hope of success." Leaf River

Forest Prods., Inc. v. Deakle, 661 So. 2d 188, 195 (Miss. 1995). Here, it cannot be said that the City

had no hope of success because the City ultimately prevailed, as Bryan had no valid option on the property

at the time he filed his third bill of exceptions. It is also questionable whether Bryan met the requirements of

Rule 11 or our caselaw which is necessary in order to prevail on the attorney fees issue. Whether the circuit

judge in imposing damages against the City actually meant to apply authority other than Rule 11 is unknown,
but nonetheless is a legitimate issue. We decline to speculate regarding what authority the circuit court was

applying to this case in awarding sanctions. We hold that the circuit court failed to set out sufficient findings

of fact, conclusions of law, and clear authority pursuant to our case law in its order awarding costs and

attorney's fees. We affirm the circuit court regarding the primary issue being moot, but reverse and remand

for a new hearing on the costs and attorney's fees awarded to Bryan.

FACTS

¶3. Steve Bryan attempted to obtain the approval of the governing authorities of the City of Madison to

build an apartment complex within the City. There have been three bills of exceptions taken by Bryan to the

Circuit Court of Madison County. The third bill of exceptions is the subject of this appeal (the previous two

were not appealed further than the Circuit Court of Madison County). This appeal concerns a development

or site plan for The Madison submitted by Bryan on March 18, 1994. A letter dated April 24, 1995,

executed by Kenneth F. Pritchard, owner of the proposed project site of The Madison, indicates that

Bryan's option to purchase contract expired on September 30, 1994. After the site plan was submitted, it

was reviewed by the City's public works Director, Fire Chief and Southern Consultants, P.E. a project

engineer specially employed by the City for this particular project. Their input resulted in the drafting of a

revised development plan by Bryan. This revised plan was filed with the City's Planning and Zoning Director

on June 8, 1995.

¶4. Pursuant to Madison Ordinance 2408.04, the plan was forwarded to Madison's Zoning and Planning

Commission which, on June 12, 1995, met for approximately five to six hours and discussed the proposed

plan in detail. At the close of the June 12 meeting, the Commission unanimously voted to approve the plan

subject to the resolution of six (6) remaining "punch-list" items which would have to be resolved

satisfactorily by Bryan.

¶5. The plan was placed on the agenda for the June 13, 1995, meeting of the Board of Aldermen and

Mayor. Four of the City's five aldermen and the Mayor were present. As the governing body was about to

consider Bryan's plan, the Mayor announced that she had decided to remove the item from the agenda and

that no action would be taken regarding Bryan's plan. She insisted that she needed to have a transcript of

the Planning Committee's meeting before passing on the merits of Bryan's plan.

¶6. Thereafter, three of the aldermen (a majority of the board present) voted to replace the item on the

agenda. The Mayor then produced a typewritten "Statement of Objection and Veto" and read the same into

the record. There were insufficient votes to override the Mayor's veto.

¶7. Aggrieved by the City's inaction, Bryan filed a bill of exceptions on June 23, 1995, and appealed to the

Circuit Court of Madison County. On February 7, 1996, the court ordered the City of Madison to

immediately issue Bryan a building permit and approve the site plan, staging plan and development plan.

¶8. Afterwards, acting on a Motion for Reconsideration on March 28, 1996, the circuit court reversed its

prior ruling and held that the issue of the option was moot, as Bryan no longer had a valid option on the

property which had since been sold to a third party. However, the circuit court preserved the rights of the

parties as to claims for damages, if any. The circuit court, however, did not rule on the lone remaining

motion of Bryan for attorney's fees.

¶9. Thereafter, on August 29, 1997, the circuit court did rule on Bryan's motion for attorney fees which was
filed on February 16, 1996. The circuit court awarded Bryan Rule 11 costs and attorney's fees in the

amount of $19,668.45.

STATEMENT OF ISSUES

¶10. The City appealed to this Court on September 26, 1997, presenting the following issues for review:

I. UNDER MISSISSIPPI LAW, CAN BRYAN APPEAL AN ALLEGED FAILURE TO

ACT BY THE GOVERNING AUTHORITIES OF A MUNICIPALITY TO CIRCUIT

COURT?

II. WHERE A MUNICIPAL ORDINANCE IS SUBJECT TO LEGITIMATE DIFFERING

INTERPRETATIONS, SHOULD THE INTERPRETATION OF THE CIRCUIT COURT

SUPERCEDE THE INTERPRETATION OF THE MUNICIPAL GOVERNING

AUTHORITIES?

III. DO THE GOVERNING AUTHORITIES "WAIVE" THEIR RIGHT TO REVIEW

ANY ASPECT OF THE SITE PLAN, INCLUDING THE STAGING PLAN, BY

REQUESTING ADDITIONAL INFORMATION RELEVANT TO THE PLAN?

IV. DID BRYAN HAVE STANDING TO PURSUE HIS APPEAL TO CIRCUIT COURT?

V. WAS THERE ANY LEGAL BASIS FOR THE CIRCUIT COURT JUDGE'S AWARD

OF ATTORNEY'S FEES AFTER DISMISSING BRYAN'S APPEAL AS BEING MOOT?

¶11. Bryan contests the City's argument of lack of standing and that the primary issue is moot. He also

argued that the circuit judge was correct to award attorney's fees.

ANALYSIS

¶12. Because the issues of standing and whether Bryan's interest in the property was moot control the

outcome of the case at bar, only Issues IV and V warrant discussion.

IV.

¶13. Much of the dispute centered around whether Bryan had fully complied with the City's strict zoning

requirements regarding his site plan. Each time the aldermen acted, the Mayor vetoed that action, and

Bryan appealed. Each instance was clearly a separate legislative act by the City. At the close of the June

12, 1995, meeting of the City of Madison's Zoning and Planning Commission, after a five to six-hour

discussion, the plan was approved. However, the "resolution of six (6) punch-list items" by Bryan still

remained. In other words, as of June 12, 1995, there still remained six items on the site plan with which

Bryan had not complied.

¶14. At the meeting of the Mayor and Board of Aldermen on June 13, 1995, the Mayor remained

concerned and wanted a transcript of the Zoning Commission's June 12th meeting prior to making a

determination on this issue. A majority of the Board wanted to proceed, and the Mayor allegedly removed

the consideration of the site plan from the agenda and vetoed the Board's action. Regardless, no action was

taken on the site plan on June 13, 1995.
¶15. The subject of this third bill of exceptions promptly filed by Steve Bryan against the City of Madison

concerns its refusal to approve the development or site plan which was submitted to the City on March 17,

1995. As previously noted, the Zoning Commission hearing was conducted on June 12, 1995. Bryan's

approval by the Zoning Commission was scheduled for the City's June 13, 1995, meeting. However,

Bryan's exclusive six-month contract of March 18, 1994, to purchase the property in question had

apparently expired on September 30, 1994. The issues of standing, mootness and res judicata are all raised

before this Court for consideration by the City of Madison.

¶16. The City argues that Bryan has "no standing when he has no present existent actual title or interest in

the property." This Court has said that "[u]nder our authorities there must be a present, existent actionable

title or interest which must be completed at the time the cause of action is filed." Crawford

Commercial Constrors., Inc. v. Marine Indus. Residential Insulation, Inc., 437 So. 2d 15, 16

(Miss. 1983) (emphasis added) (citing American Book Co. v. Vandiver, 181 Miss. 518, 178 So. 598

(1938)). See also Shaw v. Shaw, 603 So. 2d 287, 294 (Miss. 1992). The City alleges that Bryan did not

hold an option to purchase the site at issue at the time he filed his action. There is documentary evidence in

this record which establishes that the six-month option contract had in fact expired on September 30, 1994.

¶17. This Court has assumed, without specifically being called upon to decide, that optionees have standing

to challenge. See Moore v. Madison County Bd. of Supervisors, 227 So. 2d 862 (Miss. 1969)

(applicant for rezoning held option on land contingent on changing of zoning to commercial).(1) Thus, if

Bryan's option had expired before he filed the appeal, then he does not have standing.

¶18. The City alleges that a letter dated April 24, 1995, and signed by Kenneth F. Pritchard, President of

First Southeast Corporation, owner of the proposed project site, is record evidence that Bryan's option to

purchase contract expired on September 30, 1994. Additionally, correspondence from the landowner

indicates that Bryan's actions were in violation of his directive that Bryan cease making further

representations to third parties regarding the use of the property which is at issue here. Therefore, the City

argues that Bryan had no standing to file his bill of exceptions on June 23, 1995.

¶19. Bryan responds that he did have standing because he originally filed a site plan on March 18, 1994.

Moreover, Bryan claims he entered into a contract (dated March 22, 1993) to purchase one-half of the

property in question, which ran through April 1, 1995. Furthermore, Bryan alleges that only after the City

refused to approve his original site plan submission was he required to enter the contract relied upon by the

City above. Thus, he claims that the City is taking "advantage of the delay inevitably and lamentably

attendant upon the appellate process so as to render moot, what would otherwise be a live and justiciable

controversy." City of Durant v. Humphreys County Mem'l Hosp., 587 So. 2d 244, 249 (Miss. 1991).

Whether Bryan ever fully complied with required zoning and building requirements of the City has always

been in dispute, and remained so at the very end of this controversy, as noted by the "punch list" of six items

remaining to be complied with as late as the June 12, 1995 meeting of the Zoning Commission.

¶20. "Standing" is a jurisdictional issue which may be raised by any party or the Court at any time.

Williams v. Stevens, 390 So. 2d 1012, 1014 (Miss. 1980). In order for Bryan to have standing in this

matter, he must demonstrate that the City's action had an adverse effect on property in which he has an

interest. White Cypress Lakes Dev. Corp. v. Hertz, 541 So. 2d 1031, 1034 (Miss. 1989). We find that

when Bryan filed his bill of exceptions with the circuit court on June 23, 1995, the record reveals that he

was not the owner of the title, nor did he have valid option to purchase, a valid contract to purchase, or a
mortgage or any other encumbrance upon the property. Therefore, Bryan did not have standing to appeal.

¶21. Alternatively and regardless of Bryan's original standing, the record is clear (and Bryan admits) that

Bryan's option to purchase the site expired before the case ever made it to this Court. Even considering the

latter date of April 1, 1995, submitted by Bryan as the date of expiration of his option to purchase, the

contract still would have expired over two months before the submission to the Zoning Commission for a

hearing and consideration of the site plan, therefore, Bryan had no valid interest.

¶22. This Court has held that it will not adjudicate moot questions. Bradley v. State, 355 So. 2d 675, 676

(Miss.1978) (detainee's petition for habeas corpus was moot when detainee's sentence expired); Stevens

Enters., Inc. v. McDonnell, 226 Miss. 826, 827, 85 So. 2d 468 (1956)(where sheriff had already sold

all of taxpayer's property under sales tax warrant, action to enjoin sheriff from proceeding further with sale

was moot); Sheldon v. Ladner, 205 Miss. 264, 270, 38 So. 2d 718,719 (1949) (where general election

had already passed, appeal from dismissal of mandamus petition seeking to compel Secretary of State to

place only petitioners' names on ballot was dismissed as moot).

¶23. Furthermore, this Court has held that "[c]ases in which an actual controversy existed at trial but the

controversy has expired at the time of review, become moot. We have held that the review procedure

should not be allowed for the purpose of settling abstract or academic questions, and that we have no

power to issue advisory opinions." Allred v. Webb, 641 So. 2d 1218, 1220 (Miss. 1994). See also

Insured Sav. & Loan Ass'n v. State ex rel. Patterson, 242 Miss. 547, 135 So. 2d 703 (1961);

McLendon v. Laird, 211 Miss. 662, 52 So. 2d 497 (1951). Such is the situation here as we find that

Bryan had no valid option at the time he appealed to circuit court.(2)

¶24. On March 28, 1996, the lower court, acting upon a Motion for Reconsideration, held the issue of the

option was moot due to the sale of the property to a third party. We therefore affirm the lower court and

agree that the primary issue regarding the option is moot.

V.

¶25. Next, we consider the issue of whether costs and attorney fees were properly awarded subsequent to

the circuit court ruling that the primary issue was moot. We note at the outset that the circuit court stated

that it was imposing damages by authority of M.R.C.P. 11.

¶26. The standard of review of the circuit court's decision to grant costs and attorney fees is abuse of

discretion. Wallace v. Jones, 572 So. 2d 371 (Miss. 1990). See also Vicksburg Refin., Inc. v. Energy

Resources, Ltd., 512 So. 2d 901 (Miss. 1987); Ladner v. Ladner, 436 So. 2d 1366, 1370 (Miss.

1983).

¶27. The City argues that since on motion for reconsideration the lower court ruled that in fact the issue of

the option was moot due to the sale of the property in question to a third party, therefore, Bryan is not

entitled to attorney fees. In order to prevail, Bryan has a two fold standard to meet. M.R.C.P. 11

authorizes monetary sanctions to pay the non-offending party's reasonable expense, including attorney fees.

M.R.C.P. 11(b). In Leaf River Forest Prods., Inc. v. Deakle, 661 So. 2d 188, 195 (Miss. 1995), this

Court held that "Sanctions under M.R.C.P. 11 'are warranted when the pleading or motion is 1) frivolous or

2) is filed for the purpose of harassment or delay." This Court has stated that "Though a case may be weak

or "light-headed," that is not sufficient to label it frivolous. Nichols v. Munn, 565 So. 2d 1132, 1137
(Miss. 1990). The fact that a case is weak is not sufficient to find that it was brought to harass. Brown v.

Hartford Ins. Co., 606 So.2d 122, 127 (Miss. 1992). Here the City did not bring the action in circuit

court, but rather, Bryan appealed by bill of exceptions from the City's supposed inaction on his request for

a building permit to construct The Madison apartments. Nor can we allow ourselves to be influenced by the

two prior bill of exceptions mentioned, as they are not before us, but rather only Bryan's third bill of

exceptions and motion for attorney fees. Besides, although trial courts do have inherent authority to award

damages such as costs and attorney fees, not all misconduct would warrant such an award. In Aeroglide

Corp. v. Whitehead, 433 So. 2d 952 (Miss. 1983), involving allegations of misconduct by defense

counsel during cross-examination which caused a mistrial, and trial counsel submitted their costs and

attorney fees lost due to the mistrial and defense counsel's actions, this Court stated:

We agree with the learned trial judge that all courts possess the inherent authority to control the

proceedings before them including the conduct of the participants. . . .Upon the narrow issue

presented we hold that the inherent authority of the trial court did not extend to awarding of damages

as in a tort action for litigation expenses irretrievably lost under the facts presented herein.

Id. at 953. The case at bar is likened somewhat to Whitehead, in that Bryan alleges that because of the

City's actions he has suffered and incurred costs and attorney fees to which he is entitled to be awarded by

the trial court. The trial court awarded such costs and attorney fees by applying Rule 11 sanctions against

the City. As in Whitehead, here, misconduct by the City, if any, may not necessarily warrant an award of

costs and attorney's fees. Bryan complains that the City stalled his attempted construction of The Madison

to the point that he no longer possessed a valid option on the property. However, the record also reflects

that some of the delay can be attributed to Bryan who, for some unknown reason, did not even proceed

with the construction of The Madison project when it was initially approved by the City. Subsequently,

many citizens surrounding the project began to strongly voice their objections about The Madison project to

the Mayor and Board of Aldermen which may have contributed to some of the subsequent events which

occurred, due to the Mayor and some board members responding to their citizens' concerns about the

project.

¶28. Whether the pleading or motion is frivolous is the first standard which Bryan must meet in order to

prevail. This Court has held that "[A] pleading or motion is frivolous within the meaning of Rule 11 only

when, objectively speaking, the pleader or movant has no hope of success." Leaf River, 661 So. 2d at 195

(citing Stevens v. Lake, 615 So. 2d 1177, 1184 (Miss. 1993)(quoting Tricon Metals & Servs., Inc. v.

Topp, 537 So. 2d 1331, 1335 (Miss. 1989)).

¶29. Regarding the second standard required, we note that the Leaf River Court stated further, "The

second standard, a claim interposed for harassment or delay, generally cannot be met: 'where a plaintiff has

a viable claim.'" Id. at 195 (citing Stringer v. Lucas, 608 So. 2d 1351, 1359 (Miss. 1992) (quoting Bean

v. Broussard, 587 So. 2d 908, 913 (Miss. 1991)). The City's appeal "can hardly be considered frivolous,

" as clearly there was reasonable hope of success, even though "a case is weak." Brown, 606 So. 2d at

127. Here, in fact the City ultimately prevailed in the circuit court on the primary issue of the building permit

which was the subject of the bill of exceptions. Five months after that ruling that the circuit court allowed

costs and attorney fees applying Rule 11 sanctions on an issue that was moot. This Court, in Jackson

County Sch. Bd. v. Osborn, 605 So. 2d 731, 734 (Miss. 1992), held that if the underlying case is moot,

the issue of awarding attorney's fees is moot. In the case at bar, the record reflects that at the time Bryan

filed this third bill of exceptions on June 25, 1995, in fact, he did not have a valid option on the property as
his option expired September 30, 1994. Osborn thus appears to be very analogous to the case at bar, if

not controlling law, regarding award of attorney's fees to a losing party where the underlying issue is moot.

¶30. We also note that in its short order, the lower court failed to cite sufficient reasons in support of clear

authority for the award of costs and attorney fees pursuant to Rule 11. The lower court only mentioned its

memorandum opinion and order of February 7, 1996, which upon examination, is of little or no help as to

the court's reasoning, authority, or support for awarding costs and sanctions. Additionally, the comments of

the lower court refer to all three of the bills of exception in imposing sanctions, when, as previously noted,

each bill of exception is a separate distinct legislative act of the City. The cause of action before this Court

only involves the third bill of exceptions. Yet, the circuit judge should not be faulted in this difficult, close and

convoluted case. The issue of whether the City violated its ordinance or state law is indeed a debatable

factual issue for the lower court to decide, and both parties presented contrastive evidence in support of

their respective positions. The more difficult question however is: On what authority did the lower court

impose sanctions? We note that the circuit judge stated that he was imposing sanctions based upon Rule

11. Whether the circuit judge erred in that choice of Rule 11 and actually meant some other authority as

suggested by the dissent is unknown.(3) Apparently, the City and Bryan believed that the trial judge actually

utilized Rule 11 since both parties' briefs solely cite to Rule 11 sanctions. We would have to speculate from

this order as to sufficient support and clear authority, in view of our case law, that the trial court found for

imposing sanctions upon the City. This we decline to do.

¶31. Therefore, we reverse and remand the trial judge's award of costs and attorney's fees under Rule 11 in

the amount of $19,668.45 for the reasons cited above. We also must find that the lower court abused its

discretion in failing to cite sufficient findings of fact, conclusions of law and clear authority in support of its

award of sanctions.

CONCLUSION

¶32. This Court thus finds that the issue of the validity of Bryan's option was indeed moot when he filed his

bill of exceptions in the circuit court. Bryan had no valid option at that time. The circuit court ultimately on

Motion for Reconsideration, found that the issue was moot. We, therefore, affirm the lower court's ultimate

order dismissing the case as moot, but we reverse the lower court's award of costs and attorney's fees and

remand this case for a new hearing and decision by the lower court regarding any award of costs and

attorney's fees to Bryan.

¶33. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

PITTMAN AND BANKS, P.JJ., MILLS, WALLER AND COBB, JJ., CONCUR. McRAE,

J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ, J. SMITH,

J., NOT PARTICIPATING.

McRAE, JUSTICE, DISSENTING:

¶34. Because I agree with the lower court's sanctioning the City of Madison for violating its own ordinance,

for failing to treat its citizens fairly, for engaging in a decade-long campaign of delay to avoid issuing a permit

until such time as the developer lost his interest in the property, and for forcing the developer to file three

appeals to the circuit court to get the city to comply with its own ordinances, I dissent. At the very least,

Bryan should have been reimbursed for monies spent in his efforts to have the City of Madison comply with
its own laws governing the issuance of building permits. The fact that Bryan no longer possessed an interest

in the property (due to the City's repeated delays) did not make the City's actions any less arbitrary and

capricious. For this Court to reverse those sanctions awarded Bryan merely rewards Mayor Hawkins and

the City of Madison for their misdeeds and will serve only to encourage local governments to abuse their

powers, results I find unconscionable.

¶35. Before I delineate my specific objections to the majority's opinion, I feel it is necessary to set forth the

procedural background of this case. Not only do I disagree with the majority's disposition of this case, I

part company with the majority as well when it comes to interpreting exactly what happened below.

Specifically, the majority does not understand that the lower court's finding that the dispute was moot did

not erase the wrongs done to Bryan in his quest for final approval of the apartment complex. Bryan was

subsequently assessed sanctions damages by the court for those wrongs. The permit to develop an

apartment complex was no longer an issue because of the arbitrary and capricious manner of the City's long

delays in issuing a permit, which caused the permit issue to become moot. Notwithstanding the fact that the

permit became moot, Bryan was damaged and entitled to sanctions.

¶36. For over a decade, Steve Bryan has been trying to obtain the approval of the governing authorities of

the City of Madison to build an apartment complex within an area of the City zoned for apartments.

Madison's refusal to process Bryan's various applications engendered the filing of three bills of exceptions.

Three times the circuit court found that Madison was not treating Bryan fairly in pursuing his project.

¶37. The lower court undertook the Herculean task of chronicling the odyssey Bryan was forced to

undertake by the City, and it did it well as evidenced by a close review of the following pertinent portion of

the lower court's March 23, 1995, order:

Within the city limits of Madison lies a certain parcel of land, (approximately 55 acres, more or less),

being situated in the northwest quadrant of the intersection of Highway 463, (Main Street) and Locust

Lane just east of the intersection of Highway 463 and Interstate 55. Bryan does not own the land, but

rather had secured an option to purchase it when he began his fight with city hall. (Due to the delays in

gaining permission to proceed with the project, the option has lapsed. Bryan still has standing to

appeal.)

The City first dealt with the land on May 8, 1987, when the Mayor and the Board of Aldermen took

up the matter of re-zoning the property to allow multi-use of the parcel. The owner's request was

approved and the land was rezoned to allow the construction of apartments.

On July 3, 1990, pursuant to its statutory duty, the City adopted a comprehensive plan for the

physical development of the entire municipality. The plan addressed residential, commercial, and

industrial development; parks, open spaces and recreation; street and road improvements and

community facilities. The plan was thorough and detailed. It provided for the construction of single

family dwellings as well as apartments. The subject property was, according to the plan, to be

eventually developed as an apartment complex.

In early 1991, Bryan approached the City with his plans for the construction of "The Madison," an

apartment development containing over 500 units. The plans were considered and on March 5, 1991,

the Mayor and Board approved the proposal with minimal conditions relating to certain

improvements on Locust Lane. On May 7, 1991, the City approved the architectural design of the
project. There was no objection to the height of any of the buildings by the City. For reasons known

only to Bryan, he didn't begin construction at the time and, consequently, his authorization to proceed

lapsed.

On December 17, 1991, the City adopted its "1992 Zoning Ordinance and Official Zoning Map", a

comprehensive re-zoning procedure for the entire city, repealing all prior or inconsistent ordinances

and having an effective date of January 16, 1992. The zoning of the subject property was confirmed

as "R-5", the proper zoning for apartment development, and in accord with the City's long-range

Comprehensive Plan.

After that things began to change in Madison. Subsequently Madison experienced growth and

development substantially in accord with the Comprehensive Plan. Single-family homes were built in

planned subdivisions. The population of Madison grew. The politics changed.

In response to petitions from residents near the subject property, the Mayor and Board attempted a

rather unusual maneuver. The City voted to make application to itself to rezone the property so as to

prohibit the construction of apartments. This action was taken by the City despite the strenuous

objections of the owners of the land and despite the fact that Bryan had already been given

permission by the City to proceed with the project!

As the City's Zoning Ordinance requires, the application to re-zone was submitted to the City Zoning

Commission for its review. On September 13, 1993, after a full hearing, the Zoning Commission

recommended that the application for re-zoning should be disapproved; that the property was zoned

properly and should remain zoned "R-5" for apartment development.

On September 21, 1993 the City again considered Bryan's site plan for construction of "The

Madison". (Bryan had applied for a building permit and the Board conducted its obligatory site plan

review at a regular meeting). The aldermen, by a vote of 3/2 approved the site plan and the issuance

of a building permit. Immediately thereafter on September 30, the Mayor filed her veto and objections

to the actions of the Board. An override attempt was fruitless. Bryan appealed to this Court for relief.

Giving the City the benefit of every doubt, this Court dismissed Bryan's appeal and returned the

matter to the Mayor and Board for further review of Bryan's building plans.

Now returning to the City's bizarre rezoning attempt; a political action group calling themselves the

"Madison Homeowners Association," appealed the decision of the Zoning Commission to the Mayor

and Board. Thereafter the matter was set for a public hearing on November 1, 1993. Following a

lengthy and thorough discussion of the issues presented by the application the Board voted 3 to 2 to

deny the rezoning. The Mayor declared the application "denied" and adjourned the meeting.

Two days later, on November 3, 1993, the Mayor and four Board members met. In a blatant attempt

to circumvent the City's zoning ordinances, the Mayor declared the prior November 1 vote on the

rezoning application invalid and called for another vote. The re-zoning issue did not appear on the

agenda nor were the interested parties, (the landowner and developer) given any notice that

the matter was subject to another vote.

Two of the aldermen present (to their credit) properly objected to this illegal procedure and stood to

leave the room. The mayor quickly counted those as "abstaining votes" and as affirmative votes on the
issue. The Mayor then announced that the re-zoning had passed by a majority vote. The landowners

appealed the City's actions. This Court reversed the improper actions of the City by Order entered

February 10, 1994.

On March 18, 1994, Bryan submitted a new site plan with accompanying documents to the City. On

April 7, 1994, Bryan submitted amendments and modifications to the site plan. The City took the

extraordinary step of hiring a special engineering firm to review the plans.

On April 25, 1994, the City's Planning and Zoning Commission voted to approve the site plan for

"The Madison" subject to certain conditions suggested by both Bryan and the private engineering firm

hired by the City.

On May 3, the Mayor and Board took up the matter of the site plan. The board had before it data

from the City's Director of Public Works and Zoning Administrator, Southern Consultants and

Bryan's revised site plan. No action was taken and the matter was continued until the next regular

meeting.

On May 17, 1994, the Board predictably voted 3/2 to approve the site plan and directed city

personnel to proceed with review of construction plans and issuance of a building permit for the

apartment complex. Again, the Mayor vetoed the Board action. Bryan appealed. This Court

remanded the matter to the City with instructions to treat Bryan "fairly". (See Memorandum Opinion

and Order, March 23, 1995. * * *)

On April 18, 1995, the Mayor and Board of Aldermen of the City of Madison, met and considered

waiving a 35 foot building height limitation contained in the City's Zoning Ordinance with regard to the

construction of Appellant's proposed apartment complex. The Board voted 3-1 in favor of such

waiver. The Mayor exercised her right of veto and the proposed waiver failed. Also, as part of the

site review process, and at the same meeting, the City revisited an earlier vote requiring Appellant's

proposed plans be sent to the Southern Building Institute for further review. Again, the vote was 3-2

to cancel such review. Again the Mayor vetoed the Board's actions. * * * *

(emphases in bold added; emphasis in italics in original).(4)

¶38. The bill of exceptions decided by the circuit court's March 23, 1995, order dealt with the City's

remaining "reasons" for not approving Bryan's site plan. Those issues involved a 35 foot height restriction,

Bryan's alleged failure to file a subdivision plat, water meters, etc. Toward the end of its March 23, 1995,

order, the court added a warning to the City of Madison:

Finally, a word of caution to the City; Bryan is lawfully entitled to develop this property as an

apartment complex provided he comply with the City's ordinances relating to construction. The land is

zoned for that purpose and multi-family development is in harmony with the long-range development

plans adopted by the City years ago. The site plan review process may not be used as a device

by which to improperly interfere with the property rights of a landowner.

Bryan appears to have substantially complied with an extraordinary construction review process.

Undoubtedly he has invested much in terms of time, effort and money in his attempts to acquire

permission to proceed with his project. The City should deal with him fairly.
(emphasis added).

¶39. If the City had heeded the court's advice to treat Bryan fairly, the court's March 23, 1995, order

would have resolved all of the City's remaining objections to Bryan's site plan. But, once again, the City

managed to stonewall the project.

¶40. Specifically, the City failed to approve the issuance of a building permit after Bryan's plan had been

unanimously approved, albeit subject to the resolution of six punch list items, at a June 12, 1995, meeting of

Madison's Zoning and Planning Commission.

¶41. Bryan's plan was placed on the agenda for the June 13, 1995, meeting of the Board of Aldermen and

Mayor. Four of the City's five aldermen and the Mayor were present. As the governing body was about to

consider Bryan's plan, the Mayor suddenly announced that she had decided to remove the item from the

agenda and that no action would be taken regarding Bryan's plan. She insisted that she needed to have a

transcript of the Planning Committee's meeting before passing on the merits of Bryan's plan.

¶42. Immediately thereafter, three of the aldermen (a majority of the board) voted to reinstate the item on

the agenda. The Mayor then produced a previously prepared typewritten "Statement of Objection and

Veto" and read the same into the record.(5) There were insufficient votes to override the Mayor's veto.

¶43. Aggrieved by the City's inaction, Bryan filed a bill of exceptions and appealed to the Circuit Court of

Madison County. On February 6, 1996,(6) the court ordered the City of Madison to immediately issue

Bryan a building permit and approve the site plan, staging plan and development plan. "A Circuit Court will

not, in the normal course, substitute its judgment for that of City leaders," the Court wrote.

However, when elected officials of a City government are unwilling or unable to properly

attend to the duties of public office, or when municipal officials become paralyzed by political

pressure exercised by a vocal majority, then it is appropriate for this Court to step aside and

do what the municipal government, under the law, ought to have done.

The staging or development plan submitted by Bryan, the same one unanimously approved by

Madison's Planning Commission, will be approved. This Court finds that the City was required

by Section 2408.05 of its ordinance to address Bryan's plans at its June 13, 1995 meeting;

that the City, by and through its Mayor, violated the ordinance by removing the item from the agenda

and refusing to consider the same; that the actions with regard to Bryan were unreasonable,

arbitrary or capricious; that the City is now estopped from objecting to or otherwise denying, in

whole or in part, the staging or development plans; and that the City should bear any and all costs

associated with this appeal.

(emphasis added).

¶44. Shortly after this order was issued, the City of Madison moved for reconsideration of the court's order

on the grounds that Bryan's option had expired and that the plan was now moot. After a hearing, the lower

court, having no other choice, agreed with the City that the issue of the permit was moot since Bryan no

longer had any interest in the property. See Circuit Court's order of March 28, 1996. However, the circuit

court further ordered "that the rights of the parties to claims for damages, if any, are hereby

preserved." (emphasis added). On August 29, 1997, the court awarded Bryan $19,668.45 primarily for

attorneys fees and costs.(7) In so doing, the court stated that the award was made pursuant to its February
7, 1996, order - the order in which the court took the city to task for having "become paralyzed by political

pressure exercised by a vocal majority."

¶45. The March 28, 1996, order in which the lower court found the controversy to be moot, did not, as the

majority writes, have the effect of reversing the court's earlier rulings in this case; it merely relieved the

Board of Aldermen from having to issue a building permit to Bryan. The lower court clearly did not intend,

in finding the controversy moot, to reward Madison for its misconduct in unfairly obstructing Bryan's

project. That is, in finding the controversy moot, the lower court did not reverse its finding that Mayor

Hawkins usurped her authority when she removed Bryan's plan from consideration by the Board. While the

lower court clearly had reason to find that the issue of the permit was moot, the City's actions in obstructing

Bryan's plan could still be addressed via damages.(8) Indeed, the lower court's order dismissing the appeal

specifically stated "that the rights of the parties as to claims for damages, if any, are hereby preserved."

¶46. Bryan requested that he be awarded damages in the form of the attorneys fees he expended in

pursuing his case. The court, per order of August 29, 1997 - some five months after dismissing the appeal

as moot (but preserving the issue of damages including attorney fees) assessed Bryan attorney fees and

costs in the amount of $19,668.45. It was doing so, the court stated, pursuant to the court's Memorandum

Opinion and Order filed February 7, 1996. The February 7 order was the order in which the court held that

the City and specifically, the Mayor were wrong to remove Bryan's plan from the Board's agenda.

Damages in the form of reimbursement for attorneys fees expended were awarded to Bryan as recompense

for the City's wrongdoing and not, as the majority contends, for a Rule 11 frivolous defense to an appeal or

bill of exceptions.

¶47. The circuit court was correct in its February 7, 1996, ruling when it found that the Mayor was wrong

to disallow a vote on Bryan's plan. Miss. Code Ann. § 21-3-15 (1990) provides the authority under which

a mayor may veto actions by the Board of Aldermen. That section sets forth the "Duties of the mayor" and

gives the mayor the right to veto any ordinance.

¶48. The action of the Board of Aldermen in voting to place Bryan's plan on the June 13, 1995, agenda

was a procedural action outside the power of the Mayor to veto. If the Mayor is permitted to control

whether the Board is permitted to even consider a specific matter, the Mayor can control the outcome. This

would hardly seem to be a correct reading of the law. The Mayor was wrong in vetoing this item as it was a

procedural matter.

¶49. The fact that Bryan no longer owned the property which was the subject of the vote did not magically

transform Mayor Hawkins's wrongs into rights.(9) Nor did the lower court reverse its previous decision that

the Mayor erred in removing Bryan's plan from the agenda.

¶50. A party seeking to overturn an erroneous decision of the board of aldermen (or city council) may sue

not only to correct the error but to obtain damages, if any, caused by the decision. Where circumstances

preclude an award of specific performance, a party may be awarded monetary damages instead. For

instance, in City of Durant v. Laws Constr. Co., 721 So.2d 598 (Miss. 1998), the unsuccessful bidder

on a city construction project appealed via a bill of exceptions to the circuit court claiming that the lowest

bidder's bid should have been rejected because of the failure of that bidder to comply with the legal

requirements.(10) Rather than wait for a decision on the appeal, the city proceeded with the illegal award of

the contract and, by the time of the hearing, the project was near completion. Since the circuit court could

not order the project awarded to Laws, the circuit court determined that Laws was entitled to recover
damages in an amount of $168,495.00 in compensatory damages and $15,978.95 in attorneys fees and

costs. On appeal, this Court affirmed. "If meaningful damages are not allowed then the legislative intent of

the statutory bidding laws that public contracts are to be awarded on a purely competitive basis cannot be

carried out." City of Durant, 721 So.2d at 606.

¶51. In this case, the circuit court may not have been able to require the City of Madison to issue a building

permit but only because, due to the passage of time, Bryan no longer had an interest in the land he sought to

have developed. But the Court could sanction the City for its failure to abide by the Court's order and, as in

City of Durant, the plaintiff can be compensated in dollars.

¶52. The City did not prevail in the sense that the lower court determined the City's actions to have been

right. The lower court specifically found, as it should have, that the City's actions in delaying the vote on

Bryan's permit were wrong as well as arbitrary and capricious and that Bryan was entitled to damages as a

result of the City's wrongfully delaying the project even after the Court's March 23, 1995, opinion resolved

all of the City's remaining objections to the plan. The record demonstrates that there was ample evidence to

support the lower court's award of damages for the City's wrongdoing to Bryan. First of all, there was the

fact that Bryan had been trying for a period of ten years to obtain the approval of the governing authorities

of the City of Madison to build an apartment complex. The record demonstrates that the City of Madison

stalled Bryan at every opportunity. The mayor vetoed the Board's vote to place Bryan's building permit on

the agenda even though Miss. Code Ann. § 21-3-15 (1990) does not give veto power to the mayor over

"procedural actions governing the conduct of the council's meetings . . . ." Finally, there was the fact that the

area in which Bryan proposed to build his apartment complex was zoned for multi-family housing. A city

does not have the discretion to deny a building permit for a project where it complies with the applicable

codes and ordinances.(11) All of these factors support the lower court's award of damages to Bryan.

¶53. The majority has attempted to limit what the lower court may do with this case on remand by implying

that Rule 11 sanctions in this case were not warranted. When the lower court referred to Rule 11 in its

order awarding attorneys fees to Bryan, the lower court no doubt misspoke.(12) The attorneys fees

awarded against the City of Madison were not granted as a result of a frivolous appeal; they were awarded

for the City's wrongful action in delaying approval of Bryan's site plan even after the court's March and

April, 1995, orders resolving what should have been all of the remaining obstacles to approval. The lower

court's award of damages to Bryan specifically referred to the court's earlier, February 7, 1996, order in

which the court found that the City of Madison had erred in denying Bryan his building permit. Indeed, the

court's award of $19,668.45 was for all attorneys fees expended by Bryan after the Court's March 23,

1995 order since, at that point, all of the issues had been resolved. (See attachment.)(13)

¶54. Clearly, sanctions were warranted in this case albeit not Rule 11 damages. Indeed, it would seem that

Bryan may have been entitled to more than just attorney's fees in the way of damages as a result of the

illegal actions of the City of Madison.(14) Given the nature of the City's misdeeds as well as the amount of

money that Bryan could have claimed as damages as a result of the City's illegal actions, the City of

Madison should rejoice that the damages awarded were as insignificant as they were.

¶55. The lower court's confusion in characterizing the sanctions in this case is understandable given the dual

role that the lower court plays when it hears a bill of exceptions. In determining the correctness of the city's

actions, the circuit court is acting as an appellate court pursuant to Miss. Code Ann. § 11-51-75. However,

where the court concludes that damages are warranted and in determining the amount of damages (as in
City of Durant, supra), it is acting more as a fact finder to whom we owe some deference.

¶56. There are ways in which a city may legitimately control the use of property within its boundaries. The

City of Madison, however, chose not to utilize those methods and instead embarked on a decade-long

effort to stonewall Bryan's apartment complex. To the extent that the majority's opinion endorses Madison's

conduct, it does a grave disservice to citizens who seek to be treated fairly by their local elected officials.

For the majority to hold that Bryan was not entitled to the sanctions assessed by the lower court leaves him

having been wronged without a remedy and rewards a city for doing an injustice to its citizenry.

¶57. Even if this Court did award Bryan attorneys fees and costs, $19,668.45 would only be a drop in the

bucket compared to the $62,786.90 that he expended during the staging plan and development appeal

period, plus all the costs incurred since March 18, 1994.

¶58. Instead, this Court sends back Bryan's case to a new judge.(15) A judge who will be expected to

better explain exactly what Judge Toney meant in his order. It will be interesting to see if a new judge, who

has had no previous involvement in this case, can read Judge Toney's mind any better than the majority.

¶59. For all of these reasons, I dissent.

DIAZ, J., JOINS THIS OPINION.

1. Other states have specifically held that an option holder has a sufficient property interest to initiate a

request for a zoning change. See Hatch v. Fiscal Court of Fayette County, 242 S.W.2d 1018, 1022

(Ky. 1951); Humble Oil & Ref. Co. v. Board of Aldermen of Town of Chapel Hill, 202 S.E.2d 129

(N.C. 1974).

2. Bryan also filed suit against the City in the United States District Court for the Southern District of

Mississippi and that suit has already been decided. Bryan v. City of Madison, No. 3:97-cv-73WS (S.D.

Miss. Mar. 31, 1999), appeal pending, 5th Cir. No. 99-60305. The district court, citing the circuit court's

order finding the issue was moot, also ruled, inter alia that the issue of the option to build The Madison was

moot, because the property was sold to a third party who had a different purpose in mind for the property

at issue here.

3. The dissent claims that the circuit judge's order contained a typographical error in imposing "Rule 11"

sanctions, and that damages were partially awarded to Bryan as recompense for the City's wrongdoing per

City of Durant v. Laws Constr. Co., 721 So. 2d 598 (Miss. 1998). Such claims only further support the

majority view that this Court cannot determine with any degree of certainty under what support and

authority the trial court was imposing sanctions against the City.

4. The court issued an order on April 26, 1995, resolving the issue on the height of the buildings.

5. Mayor Hawkins read from the memo as follows: "Pursuant to the authority of the Mississippi Code

Annotated 21-3-15, I hereby exercise my right to file a statement of objection and veto that certain action

taken by the Board of Aldermen of the City of Madison, Mississippi, on June 13, 1995, wherein the board

by a vote of three to one voted to reinstate consideration of the staging plan for "the Madison" apartments

after its removal from the agenda, and in support of this veto, I would show the following. Number one, the

staging plan was the subject of a five-hour meeting of the Madison Planning Commission last night where

numerous substantive and important matters were discussed. Number two, since a court reporter was
present and a transcript of the hearing can be obtained, I feel it would be in the best interests of the city for

the board and me to obtain a copy of the transcript prior to any action on the staging plan. Consideration of

this will be at the first meeting in July. It will not cause any undue delay to the developer when compared

with the benefit of having a transcript available."

6. The order was filed February 7, 1996.

7. Bryan's itemization of expenses is attached as an exhibit to this opinion.

8. This is not as incongruous as it may seem at first blush. For example, in Anderson v. United States

Dep't of Health & Human Servs., 3 F.3d 1383 (10th Cir. 1993), the plaintiff sued under the Freedom of

Information Act in order to obtain government documents. The case was dismissed as moot when the

government produced the requested documents. This did not moot plaintiff's claims for attorneys fees nor

did it make the government right in withholding the requested information.

9. Indeed, once the plan met with the approval of the Planning Committee, the City of Madison did not

have the discretion to withhold a building permit if the proposed building met the applicable building codes

and ordinances. Thompson v. Mayfield, 204 So.2d 878 (Miss. 1967) (where all building codes and

zoning ordinances are complied with, the city did not have the discretion to deny a building permit); Berry

v. Embrey, 238 Miss. 819, 120 So.2d 165 (1960) (A permit to erect a structure which conforms to

building regulations cannot be denied because of proposed use where not zoned against such use); 83

Am.Jur.2d Zoning and Planning § 650, at 550 (1992)("Generally speaking, a municipality is without

authority to deny a permit for a currently legal use."); 101A C.J.S. Zoning and Planning § 195, at 576-77

(1979)("Broadly stated, while a property owner does not have an absolute right to obtain a permit to use

land in a manner contemplated by existing zoning ordinance, a permit may not be denied unless there is a

showing that the public health, safety, or welfare is in danger.").

In City of Jackson v. Sunray DX Oil Co., 197 So.2d 882 (Miss. 1967), the landowner sought a permit

to construct a service station. The city refused to grant the permit even though the land had been zoned

commercial and there were other service stations in the area. This Court, stating that "the commercial owner

is as entitled to the full use of his property as is his residential counterpart," held that the city had no

discretion to deny the permit absent proof that the station would constitute a nuisance in fact.

10. The bid was illegal in that it did not include the certificate of responsibility number on the exterior of the

envelope. City of Durant, 721 So.2d at 600.

11. See Thompson v. Mayfield, 204 So.2d 878 (Miss. 1967) (where all building codes and zoning

ordinances are complied with, the city did not have the discretion to deny a building permit); City of

Jackson v. Sunray DX Oil Co., 197 So.2d 882 (Miss. 1967) (the city had no discretion to deny permit

for gas station in area zoned commercial absent proof that the station would constitute a nuisance in fact);

Berry v. Embrey, 238 Miss. 819, 120 So.2d 165 (1960) (A permit to erect a structure which conforms to

building regulations cannot be denied because of proposed use where not zoned against such use);83

Am.Jur.2d Zoning and Planning § 650, at 550 (1992)("Generally speaking, a municipality is without

authority to deny a permit for a currently legal use."); 101A C.J.S. Zoning and Planning § 195, at 576-77

(1979)("Broadly stated, while a property owner does not have an absolute right to obtain a permit to use

land in a manner contemplated by existing zoning ordinance, a permit may not be denied unless there is a

showing that the public health, safety, or welfare is in danger.").
12. The fact that Judge Toney misspoke when referring to Rule 11 is supported by the fact that the court's

award of attorneys fees was not limited to just those fees spent prosecuting the bill of exceptions. The court

awarded Bryan attorneys fees for all legal fees incurred since April 26, 1995. April 26, 1995, is the date on

which the lower court issued an order that was to have resolved all the hurdles blocking approval of Bryan's

development. The attorneys fees awarded, then, represent damages for the City's continued opposition to

the plan after it became clear that the City could no longer, at least legally, do so. If the damages were truly

Rule 11 damages, they would have been limited to those amounts expended on the last bill of exceptions.

13. Attached is a letter from Steve Smith of Taylor, Covington & Smith detailing the costs expended by his

firm in representation of Steve Bryan's interests. This letter details the roadblocks Bryan encountered

throughout this case and contains a thorough itemization of all fees and costs expended. Bryan also

presented documentation of all his payments to his law firm, including copies of each check.

14. This is not an action under 42 U.S.C. § 1983 or § 1985.

15. Judge Toney did not run for reelection.