IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-CA-01865-SCT PEMBERTON PROPERTIES, LTD d/b/a PEMBERTON APARTMENTS, PARK V I LLA, LLC d/b/a EAST V

ILLA 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, STEV E MAULDING d/b/a BAV ARIAN GARDEN APARTMENTS, STEV

E 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 MAY

O R AND BOARD OF ALDERMEN OF THE CITY OF PEARL, MISSISSIPPI

DATE OF JUDGMENT: 07/15/2015 TRIAL JUDGE: HON. W ILLIAM E. CHAPMAN, III TRIAL COURT ATTORNEYS: STEVEN H. SMITH SAMAC S. RICHARDSON JAMES A. BOBO COURT FROM W HICH 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 o f a city ’s ordinance

m ust do so within ten day s. The prim a ry question presented is w hether—as the May or and Board of Alderm en of t he C ity of Pearl (the “City ”) argue—the appeal period begins to run f rom the day of t h e ordinance’s adoption, or—as the appellants argue—f rom its ef f ective date. W e also m

ust consider whether a circuit judge m ay dism iss a com plaint seeking a writ of m andam

us to order a city

to f ile a bill of

exceptions presented to it f or review, when the circuit judge determ ines the bill of exceptions was not tim ely presented to the city

. ¶2. Because the appeal period f or c ity o r d i n a n c e s 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 f

ollowing the d a t e o f a d option, we f ind that the c i rcuit judge i n this case properly dism issed the com

plaint f or writ of m andam

us, and we af

f irm

. FACTS AND PROCEDURAL HISTORY ¶3. On June 2 7, 2 013, t he May or and Board of Alderm en f or the City o f Pearl adopted an ordinance to regulate r ental housing. The ordinance provided it would take ef f ect t hirty day s af ter publication. Publication did not occur until Septem ber 17, 2014. ¶4. O n January 27, 2015, the appellants—several rental-property ow n e r s

— f i l e d s u i t , alleging they had f

i led a N otice of Appeal and I ntent to File Bill of Exceptions with the City Clerk of Pearl on Septem ber 26, 2014, and a Bill of Exceptions on Novem

ber 14, 2014, to appeal the City ’ s decision to adopt the re n t a l

- h ousing ordinance. The c om plaint f urther

2alleged t he C ity had f ailed to transm it the B i ll of Exceptions t o the c ircuit clerk as required by statute, and sought a writ of m andam u s ordering the City

to do so. ¶5. The City m o v e d to dism i ss the com plaint, arguing that it was untim ely and that the circuit c ourt lacked j urisdiction because the ten-day tim e f or appeal ran f

rom the adjournm ent of the m eeting at which the City had adopted the ordinance, June 27, 2013. The circuit judge granted the m otion, f

i nding that he could not issue a writ of m andam us to order the City to f ile the bill because the circuit court would lack jurisdiction over t he untim e ly appeal f rom the City ’s decision. The property owners appealed. ANALYSIS ¶6. This appeal presents t wo q uestions. First, when a litigant seeks a writ of m andam us to order a m

unicipal authority to sign a n d f i le a bill of e xceptions, but the circuit judge concludes the bill of exceptions would be u ntim ely , m ust t he circuit judge order that the bill be signed and f

iled only to later dism iss that b ill as untim ely , or m a y the circuit judge dism iss the com plaint f or m andam

us on that ground? Second, d id the property owners in this case tim ely present their bill of

exceptions to the City ? Appeal Period ¶7. The a

uthority that controls this case is Mississipp i C o d e S e c t i o n 11-51-75, which provides in relevant part: Any p erson aggrieved by

a judgm ent or d ecision of the b oard o f s upervisors, or m u nicipal authorities o f a city , town, or v illage, m a y appeal within ten (10) day s from the date of adjournment at which session the board of supervisors o r m u n icipal authorities r endered such judgment or decision , and m ay e m b o d y the f acts, judgm ent and d ecision in a bill of exceptions which shall be signed by the person acting as president o f t h e b oard o f supervisors or of the

3m

unicipal a uthorities. The clerk thereof shall transm it the bill of exceptions to the circuit court at once, and the court s hall either in term t im e or in vacation hear and determ ine the sam e on the case as presented by t he bill of e xceptions as an appellate court, and shall af f irm or reverse the judgm ent. 1 ¶8. But here, the property owners a rgue their bill was tim ely b ecause the ten-day period

r a n f r om the ordinance’s ef

f ective date, not f

rom the date the City decided to adopt th e ordinance. In support o f this contention, the property owners cite cases holding that an aggrieved party

m ay not appeal a m

unicipal decision until the decision is f inal. 2 ¶9. In Garrard v. City o f Ocean Springs , the City of Ocean Springs transf

erred control of the Ocean Springs Am e rican L e g i o n Hut to the Park C om m ission. 3 Several aggrieved individuals appealed that decision through a bill of exceptions. 4 The circuit judge dism issed the case, f

inding that the City ’s decision was not appealable. 5 This Court reversed, f inding that Section 11-51-75 b r oadly p e rm its an appeal of “any act of a county or m unicipality leaving a party

aggrieved . . . where all issues of the controversy

are f inally disposed of

by Order of the City C ouncil.” 6 This Court then went on to say , s eem ingly in dicta, that had the City a d o p t e d an earlier p r oposed resolution regarding the hut, which stated “this action

1 M iss. C o d e A n n . § 1 1 -5 1 -7 5 (R ev . 2 0 1 2 ).

2 S e e G a rra r d v. C

ity o f O cea n S

p rin g s , 6 7 2 S o . 2 d 7 3 6 (M iss. 1 9 9 6 ); J .H . P a rk er C o n s tr. C o ., In c. v. B d

. o f A ld erm en o f th e C ity o f N a t ch ez , 7 2 1 S o . 2 d 6 7 1 (M iss. C t. A p p . 1 9 9 8 ).

3 G a rra rd , 6 7 2 S o . 2 d at 7 3 8

– 3 9

.

4 Id . at 7 3 7

. 5 Id . at 7 3 8

. 6 Id . (q u o tin g S o u th C

en tra l T u rf, In c. v

. C i t y o f J a ck so n , 5 2 6 S o . 2 d 5 5 8 , 5 6 1 (M iss. 1 9 8 8 )). 4should not start until the Suprem e Court has ruled on the case currently pending regarding subject building,” the order would not have been f inal and appealable. 7 ¶10. Later, i n J.H. Parker Construction Com pany, Inc. v. B oard of

Alderm an of City of Natchez , the Mississippi C o u r t o f Appeals, rely ing on Garrard , held that the ten-day t im e f or appeal under Section 11-51-75 does n o t r un until the City issues a f inal, a ppealable

or d e r . 8 T h e r e , the City accepted a bid f or a public c onstruction project c o ntingent upon approval by the Mississippi Departm ent of T ransportation and Federal Highway Adm inistration. 9 The City a rgued that t he ten-day tim e ran f rom the d a t e i t a c cepted the bid. 10 But the Court of Appeals f ound that, u ntil the contingencies w ere rem oved, the City had rendered no f

inal, appealable judgm ent and the ten-day tim e did not begin to run. 1 1 ¶11. But this C ourt’s o p inio n i n C i t y o f O x f o r d v. Inm an is m ost directly on point. 12 There, the City of Oxf

ord r ezoned certain property and a b ill of exceptions f ollowed. 13 On appeal f rom the circuit court’s decision to reverse the City ’s action, this C ourt considered whether the bill had been tim ely f iled. 14 The City argued the t en-day tim e period ran f rom

7 G a rra rd , 6 7 2 S o . 2 d at 7 3 9

. 8 J .H . P a rk er C o n str. C o . , In c. , 7 2 1 S o . 2 d at 6 7 4

. 9 Id . at 6 7 3

. 10 Id . at 6 7 4

. 11 Id . 12 C ity o f O x fo rd v. In m a n , 4 0 5 S o . 2 d 1 1 1 (M i ss. 1 9 8 1 )

. 13 Id . at 1 1 2

. 14 Id . at 1 1 4

– 1 5

. 5May 6, 1980, the d ate the May or and Board o f Alderm en voted to rezone the property

. 15 This

Court disagreed, f

inding that the ten-day period r an f rom “the date the written ordinance was

s i g n e d and a dopted.” 16 Notably , this Court, while noting the statutory p erquisites f o r t h e

o rdinance to take ef

f ect, never connected the tim e f or appeal to the ef

f ective date of the ordinance. 17 ¶12. Here, the p r o p e r ty o wners argue the ten-day tim e f o r appeal could n ot run until the City had rendered a f

i nal decision and t hat the City had n ot rendered a n appealable decision until the ordin a n c e took ef f ect. But under Section 11-51-75, the property owners had to present the bill of e x c e p t i o n s “within ten (10) day s f rom the d ate o f adjournm ent at which session t h e . . . municipal authorities rendered such judgm ent or decision.” 18 The plain,

unam biguo u s l anguage of the statute counts the t en-day period f r om the date of the

com pleted decision to b e appealed. Here, the bill of exceptions appeals the C ity ’s decision
to adopt the ordinance, w h i c h o c curred during a m eeting adjourned on June 27, 2013, and

was c om pleted w ith the m ay or’s signature that sam e day

. The City ’s decision w as com plete that day , and the ten-day

tim e to appeal began to run. ¶13. I n other words, the property owners correctly argue that the decision r ef erenced i n Section 11-51-75 is the f inal, appealable decision. But here, t he C i t y had rendered a

15 Id . at 1 1 4

. 16 Id . 17 Id . 1 1 4

– 1 5

. 18 M i ss. C o d e A n n . § 1 1

- 5 1 -7 5 (R ev . 2 0 1 2 ). 6com

plete d ecision on June 27, 2013. So, in concert with our precedent and the clear wording of the statute, we f

ind that the bill of

exceptions was not tim ely presented. Mandamus ¶14. W h en a l i t i g a n t presents a bill of exceptions t o the m unicipal authority , the “bill of exceptions

. . . shall be signed b y the person acting as president

. . . of the m unicipal authorities” and “[ t]he clerk thereof shall transm it the bill o f exceptions to the circuit court.” 1 9 This Court has recognized that when m unicipal authorities f

ail to carry out these duties, a writ of

m andam us is the appropriate rem e d y to f orce them to do so. 20 ¶15. In Hathorn v. Morgan , Hathorn prepared a bill of exceptions concerning a decision by t he m ay or—Morgan—and board of alderm en o f Woodville, and presented the bill to Morgan f o r his signature. 21 Morgan ref used to sign the bill, believing it had not been tim ely presented. 22 So H athorn petit i oned the Circuit Court of W ilkinson County f or a writ of

m andam us to order Morgan to sign the b ill. 23 T he circuit judge s u stained a dem urrer to the petition, and this Court af f i rm ed, based on Hathorn’s f a i lure to tim ely present the b ill to the

m ay o r. 24 So, u n d e r H

a t h o r n , we already have held that a circuit judge m ay dism iss a

com plaint f or writ of m andam

us to order a City ’s action on a bill of exceptions i f the bill was

19 Id

. 20 S ee R eed v. A d a m s , 2 3 6 M i ss. 3 3 3 , 1 1 1 S o . 2 d 2 2 2 (1 9 5 9 ).

21 H a th o rn v. M

o rg a n , 1 0 7 M iss. 5 8 9 , 6 5 S o . 6 4 3 , 6 4 4 (1 9 1 4 ).

22 Id . 23 Id . at 6 4 3

. 24 Id . at 6 4 3

– 4 4

. 7presented to the City outside the tim e f or taking an appeal. W e see no r eason to d isturb that precedent. Sanctions ¶16. The City asks t hat this Court sanction t he pro p e r t y o w n e r s f o r f i l i n g a f rivolous appeal. According to the City , no “ reasonable person would have any hope f or success” with this appeal, so sanctions are appropriate. 25 T he line that sep a r a t es zealous a d vocacy and f rivolous f ilings occasionally i s d i f

f icult to d iscern. But in this case, w e f ind that neither the property owners nor their counsel crossed that line. W e do not f ind this appeal f

rivolous, so we deny the City ’s request f

or sanctions. CONCLUSION ¶17. W e af

f irm the c ircuit court’s decision t o dism i ss the property owners’ com plaint, and we deny the City ’s request f

or sanctions. ¶18. AFFIRMED. WALLER, C.J., R A N D OLPH, P.J., KITCHENS, KING, COLEMAN, MAX W ELL, BEAM AND CHAMBERLIN, JJ., CONCUR.

25 H a rris v. H a rris , 9 8 8 S o . 2 d 3 7 6 , 3 8 0 (M iss. 2 0 0 8 ).

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