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 W HICH 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 EDW ARD BLACKMON JR. PETER J. MCKELROY NATURE OF THE CASE: CIVIL - CONTRACT TRIAL COURT DISPOSITION: FINAL JUDGMENT IN FAVOR OF APPELLEES; CASE DISMISSED W ITH 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 judgm ent of the Claiborne County Circuit Court wherein
t h e c i rcuit court f

ound Kennedy ’s contract of em ploy m e n t with the Claiborne County
H o s p i t a l B oard of T r

ustees was n ot suf

f iciently spread across the m inutes to constitute avalid and enf o rceable contract. W e f

ind no error and af

f irm

. FACTS ¶2. In July 2012, Claiborne County , Mississippi, through its B oard o f Supervisors, took

c o n t r ol o f the Claiborne County Hospital (“Hospital”), acting as the B oard of Trustees f or the Hospital. The Claiborne Cou n t y H o s p i t a l Board of Trustees (“Board”) held regular

m eetings to discuss the business of the Hospital. ¶3. Pursuant to Mississippi Code Annotated section 41-13-35(3) (Rev. 2013), the Board

was r equired to keep m i nutes of its of f icial business. The m inutes f rom the f o llowing Board

m eetings were introduced at trial and are sum m arized as f ollows: August 13, 2012 — The Board s e l e c ted Kennedy “ Hospital Adm inistrator.” The m i n utes were adopted by action of the Board on August 27, 2012. August 27, 2012 — The B oard approved Kennedy ’s s a l a r y o f $20,000 per m onth. The m inutes were a dopted by action of the Board on August 27, 2012. Septem ber 10, 2012 — The Board noted under “Old B usiness” t hat the salary f or the Hospital Adm inistrator is $20,000 per m onth and $240,000 p e r y e a r. The m i n utes were adopted by action of the Board on Septem

ber 25, 2012. Septem ber 25, 2012 — The Board agreed to give Kennedy “a 5 y ear contract wi t h i n centives.” The m inutes were adopted by action of t he Board on October 4, 2012. April 1, 2013 — The B oard inf orm ed Kennedy he did not h ave a valid contract because there was never one ref lected in the m inutes. The Board of f e red Kennedy a one-y ear contract and presented the one-y ear contract f or approval. Kennedy r e s p o n d e d that his contract w as a f ive-y ear contract and h e did not have a one-y ear contract. Kennedy r ef used the one-y ear contract. Ke n n e dy was term inated as Hospital Adm inistrator ef f ective April 2, 2013. ¶4. Kennedy f

iled a com

plaint in circuit court against C laiborne County , by and through its Board of Supervisors, t he H ospital, t h e C l a i borne C ounty Board of Trustees, and John

2Does 1-10. The com p laint asserted claim s f

or breach o f contract, deprivation of civil rights, conspiracy to interf

ere with civil rights, and specif ic perf orm ance. The contra c t t h a t Kennedy claim s was breached was an em ploy m ent agreem e n t between K ennedy and the Board dated October 4, 2012, and signed by K e n nedy and the Board Pres i dent as “Chairperson.” 1 The term of the contract was f

o r f ive y e a rs beginning October 4, 2012. ¶5. Kennedy f

iled a m otion f

or partial sum m ary judgm e nt and claim ed that his f ive-y ear
contract w as a

pproved b y the Board and suf f iciently s pread a c ross t he m inutes. Thus, he

a r g u e d t h e contract w as valid and enf orceable. Claiborne County responded and f iled a

cross-m otion f

or sum m ary judgment and claim ed that the c ontract was n ot v alid and enf orceable, and Kennedy was l awf ully term inated. Af

ter a hearing, the circuit court denied both m otions. ¶6. On May 1 2-13, 2 015, a bench trial was held. K ennedy and Annie Odom , t he Board’s secretary , testif

ied. Various exhibits were introduced at trial, including the m inutes, the fivey ear contract, and the one-y ear contract. Claiborne County w as prohibited f rom presenting
any witnesses or docum e ntary evidence due to a p retrial sanction i ssued by the c ircuit court. Thus, the only

evidence introduced at trial was of f ered by Kennedy

. ¶7. On Septem

ber 4, 2015, the circuit court issued its f indings of f

act and conclusions of law and f ound that the m inutes were not suf f icient to create a valid and enf orceable contract f or a term of f

ive y ears between Kennedy and the B oard. The circuit court f urther f ound that Kennedy f

ailed to prove he was unlawf ully term inated and f

ail e d to establish Claiborne

1 T h e m in u tes f

ro m th e O cto b e r 4 , 2 0 1 2 B o ard m e etin g w ere n o t in tro d u ced at trial.

3County violated his constitutional rights. A f i nal judgm ent in f

avor of C laiborne County was entered. ¶8. Kennedy now a

ppeals and argues: (1) the circuit court erred in f i nding t he contract of

em ploy m ent was not suf

f iciently evidenced on the m inutes, (2) t he circuit c ourt’s ruling that Claiborne County

did not breach the contract was against the great weight of the e vidence, (3) the circuit court erred in f inding Kennedy did not have a property right i n his continued

em ploy m ent, a nd (4 ) t

he circuit court erred i n d eny ing K ennedy ’s m otion f o r partial sum m ary judgm ent. S TANDARD OF REVIEW ¶9. “ A circuit court judge s itting without a jury is af f orded the sam e def

erence as a chancellor.” City of Jackson, Miss. v
. S a n d i f e r , 107 S o. 3d 978, 983 (¶16) ( Miss. 2013). “W e will n ot disturb a circuit court’s f indings a f t er a bench t rial unless ‘they are m anif estly wrong, clearly

erroneous, or an erroneous legal standard was applied.’” Id

.

ANALYSIS
I. W hether the circuit court erred in finding the contract of employment was not sufficiently evidenced on the minutes. ¶10. A p ublic board “speaks a nd acts only through its m inutes.” W e l l n e s s , Inc. v. Pearl River Cty. Hosp. , 178 So. 3d 1287, 1290 (¶9) (Miss. 2015). The m inutes “are the sole and exclusive evidence of

what the board did” and “m ust be t he repository and the evidence of their of f icial acts.” Pike Cty., M

iss. ex rel. Bd. of Supervisors v. Indeck M agnolia, LLC , 866
F. Supp. 2d 589, 5 91-92 (S.D. Miss. 2012) ( quoting Thompson v
. J ones Cty. Cmty. Hosp. , 352 So. 2d 795, 796 (Miss. 1977)).

4a. W hether the contract was attached to the minutes. ¶11. Kennedy f

irst argues t hat his f

ive-y ear contra c t was attached to the m inutes and is theref ore enf orceable. Kennedy relies on the trial tes t i mo ny o f Annie Odom , the Board’s secretary

. Kennedy asserts the circuit court neglected t o consider Odom ’s testim ony that she “personally attached [ the contract] to the m inutes of the [ Board] prior to t he term ination of [ Kennedy ].” ¶12. Odom testif

ied that when Kennedy gave her the c ontract in 2012, she put the contract in a f older wit h K e n n e d y ’ s n a m e on it, and put it in her desk drawer. Odom s pecif ically stated the contract was not in t he m inute book at that tim e . Odom f urther testif

ied it was not until March 2013 w hen she put the cont r a c t i n t he “side pocket o f the m inute book.” However, sim

ply placing a contract in a drawer or in the side pocket of the m inute book at

som e later date is insuf

f icient to m eet the m inutes r equirem e nt. See Lange v
. City of Batesville , 972 So. 2d 11, 19 (¶10) (Miss. Ct. App. 2008) (“[ T]he action ta k e n will be evidenced by a w ritten m em o r ial entered upon the m inutes at the tim e, and to which all the public m ay have access to see what was actually done.” (quoting Thompson , 352 So. 2 d at 796)). ¶13. W h ile the circuit court d id n ot specif ically discuss O dom ’s testim ony , it did ref erence her testim ony in its f

indings of f

act and conclusions of law. The circuit c ourt concluded that

a copy of the contract was not attached to t he m inutes. W e do not f ind the c ourt’s f

in d i n g to be m anif

estly wrong or clearly

erroneous. b. W hether the minutes sufficiently evidence a contract

.

5¶14. Kennedy next argues that even i f the contract was not att a c hed to the m inutes, the

m inutes s uf

f iciently e vidence a f

ive-y ear contract of e m

ploy m ent. The requirem ent that “a board m ay

only speak through its m inutes does not equate to the notion that the entirety of

a contract m

ust be reproduced within a board’s m inutes.” Id. A c ontract with a public board
“m ay be enf

orced if enough of the term s a nd conditions of the contract are contained in the

m inutes f or determ i nation of t he liabilities and obligations of the contracting parties without the necessity

of resorting to other evidence.” Thompson, 352 So. 2d at 797. ¶15. The f

ive-y ear c ontract Kennedy s eeks t o enf orce addresses Kennedy ’s duties and perf orm ance and provi d e s a g r o s s annual salary of $240,000 f or the f irst y ear, with a f

our percent increase f

or every y ear thereaf

ter. Additionally , t h e c o n t r act provides f or f ringe benef its including a pager and a cell phone, and r eim b ursem ent f

or travel, lodging, f

ood, and prof essional d ues and lic e n s e s . The c ontract cannot be term i nated without cause, and the Board m ust give Kennedy at least 120 day s’ w ritten notice of it s i n t e n t t o term inate the
agreem ent if there is an am icable term ination. Moreover, the Board m ust provide Kennedy with the alleged cause f

or term ination and allow him 1 20 day s to correct the cause if proven to be am icable cause. ¶16. Kennedy claim s the Board b reached the contract when it term inated him “without the requisite cause, notice, or opportunity to correct.” Kennedy f urther claim s that pursuant to the contract, the Board is obligated to pay him “a gross salary of $240,000 per y ear at a rate of $20,000 per m o nth with a y early increase in salary

of 4% annually .” ¶17. The m inutes show Kennedy was nam ed hospital adm inistrator at a s alary of $20,000

6per m onth and $240,000 per y ear. W h ile the m inutes r ef lect Kennedy was to be given “a 5
y ear contract with i ncentives,” the m inutes d o n o t c o n tain enough t erm s and conditions of the contract to determ ine the i ncentives, or other l iabilities and obligations such a s benef its and term ination. ¶18. The only m inutes that r ef erence a f ive-y ear contract are the m inutes f rom Septem

ber 25, 2012, which ref

lect “a 5 y e a r c o n t r a ct with incentives.” However, the Septem ber 25, 2012 m i nutes were n o t a d opted by the Board u ntil a m eeting held on October 4, 2012. Additionally , the contract o n which Kennedy relies was dated and e ntered O ctober 4, 2012.
Yet the m inutes f

rom O c t o b er 4, 2012, were not introduced a t trial and are, theref ore, not included in the record b ef ore us. Thus, t here i s 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 m em

ber, there are no m inutes to show that th e b o a r d me mb e r was authorized to unilaterally enter i nto t he contract or to bind the Board as a whole. See Lange , 972 So. 2d at 21 (¶16) (Board m em bers, individually , cannot “authorize an agent to bind [ the Board] unless an o rder thereof was entered upon its m inutes authorizing the giving of s uch a uthority , or unless the order c onstituting a contract recited
t h e ma k i ng thereof

, and i ts approval by [ the Board].”). Moreover, there are no m inutes t o i n d i c a t e t h e contract was “ determ ined or decided u pon only in or at a lawf

ully convened session.” Howe l l v
. B d

. o f Supervisors of Jefferson Davis Cty. , 70 So. 3d 1148, 1154-55 (¶22) (Miss. Ct. App. 2011). ¶20. Kennedy relies on T homp s o n t o s upport his position that the m i nutes suf f iciently

7ref

lect a c ontract. I n Thompson , Thom pson f iled a breach-of

- contract a c t i on against the

com m unity h o s p i t al and claim ed the hospital e m ploy ed him as executive director at an annual salary of $ 4 4 , 0 0 0 f

o r a term of f

our y ears. T

hompson , 352 So. 2d at 795. The m inutes ref lected that Thom

pson was g iven a f

our-y ear contract a s executive director o f the hospital, but contained no ref

erence to salary

. Id

. at 797. On appeal, the court concluded it could not determ ine the am ount of the salary s i nce it w as n ot ref lected in the m inutes, and theref ore af f irm ed the circuit court’s d ism issal of Thom pson’s breach-of

-contract action. Id

. at 797- 98. ¶21. Just as the court in Thompson could not determ ine the salary , we cannot determ ine the incentives. Moreover, we cannot enf orce a c o ntract with a public board that lim its the board’s ability t o term inate an em ploy ee and contains certain obligations such as notice of
term ination and an opportunity to correct the cause, w ithout any ref erence to those obligations in the m inutes. ¶22. “[ E]ach person, f irm or corporation contracting w i t h a b oard of supervisors is responsible to see that the contract is legal and properly recorded on the m i nute s o f the board.” I d. at 7 97. Kennedy “ had a clear and well-established duty t o ensure t hat suf f icient
term s o f [ his] contract with t he h ospital w ere spread upon the Board’s m inutes.” W ellness,
Inc ., 178 So. 3d at 1293 (¶18). W e f ind Kennedy f

a i led to f u lf ill this duty

. As t he term s and conditions of the contract w ere not suf f iciently contained i n the m inutes f or determ ina tion of the liabilities and obligations of the contracting parties, the em ploy m e n t contract cannot be enf orced. Thompson, 352 So. 2d at 797.

8II. W hether the circuit court ’

s ruling that Claiborne C

ounty d id not breach the contract was against the great weight of the evidence

. ¶23. Kennedy asserts “the evidence presented at trial clearly showed [ he] was term inated without cause, and that such term ination constituted a breach of contract.” Kennedy claim s “[ the Board’s] act of a greeing to [ his] f ive (5) y ear contract rem o ves [ his] em p loy m ent f rom the at-will em

ploy m ent doctrine, thereby

prohibiting [ h is] term i nation without cause.” ¶24. Kennedy ’s b reach-of -cont r a c t claim is based on the assum ption that a valid and

e nf orceable contract o f em

ploy m ent exists. The c ircuit court determ ined that the Bo a r d c o u l d
term inate Kennedy ’ s em

ploy m e nt with or without cause because Kennedy did not have a

v a l i d and enf

orceable contract stating otherwise. W e do not f ind the c i rcuit c o u r t ’ s determ ination to be m anif estly wrong or clearly erroneous. Because there was no valid and enf orceable contract between the pa r t i e s , t h ere was no breach of c ontract b y Claiborne County

. III. W hether the circui t c o u r t e r r e d i n f i n d i n g K e n n e d y did not have a property right in his continued employment. ¶25. Kennedy f

urther asserts his term ination without cause a nd without notice constituted “a deprivation of a p roperty right i n continued em ploy m ent without due process.” “A public

em ploy e e has a property

interest in [ his] job if [ h e] h as a legitim a te claim of entitlem ent to it, a claim which would lim it the em ploy er’s ability t o term inate the em ploy m ent. ” Roberts

v. W althall Cty. Gen. H

osp. , 96 F

. S upp. 2 d 559, 562 (S.D. Miss. 2 000). “A claim of entitlem ent to job tenure m ay be created directly by s tatute or b y w ri t t e n c o n tract or by a

m utually explicit understanding enf orceable under state law as an im plied contract.” Id

.

9¶26. Kennedy argues his claim of entitlem ent to job tenure was created by his written

em ploy m ent contract with t he Board. However, the m inutes do n ot suf f iciently re f

lect a
contract. Moreover, the m inutes do not contain any provision that would lim it the Board’s ability to term i n a t e K e n n edy

. W ithout a valid contract, Kennedy did not have a constitutionally protected property interest i n c o n t i n u e d e m p l o y m e n t

. T h u s , h i s c o n s t i t

u t i o n al rights were not violated when he was term inated.
IV. W h ether the circuit court erred in denying Kennedy’s motion for partia l summary judgment. ¶27. Kennedy last a sserts the circuit court erred in deny ing his m otion f or partial sum m ary judgm ent. W e f

ind this issue is m oot. ¶28. “[ A]ppea ls f

rom the denial of a m otion f or sum m a ry judgm ent a re i nterlocutory in nature and are rendered m oot by a trial on the m erits.” B ritton v. Am. Legion Post 058 , 19 So. 3d 83, 85 (¶7) (Miss. Ct. App. 2008). Following t he circuit court’s denial of his m otion f or partial sum m ary judgm ent, Kennedy did not seek interlocutory review. Instead, h e proceeded to a trial on the m erits. As a result, this issue is m oot. CONCLUSION ¶29. “The Mississippi Suprem e Court has characterized the m inutes requirem e nt as ‘an im p ortant public p olicy issue,’ cautioning that ‘public interest requires a d herence thereto, notwithstanding the f

ac t t h a t in s om e instances the rule m ay work an apparent injustice.’” Urban Developers, LLC v. C ity of J ackson, Miss ., 468 F .3d 281, 299 ( 5th C ir. 2 006) (quoting Butler v. Bd. of

S upervisors

for Hinds Cty ., 659 So. 2d 578, 579 (Miss. 1995)). “[ T]he policy of protecting the public’s f u nds f or use by and f

or t he p ublic is param ount to other individual

1 0rights which m ay also be involved.” Id

.

¶30. W e f

ind the m inutes do not suf f iciently ref

l ect a f ive-y ear c ontract between Kennedy and the Board. Accordingly , we af f irm the judgm e nt of

the circuit court. ¶31. THE JUDGMENT OF T HE CIRCUIT COURT OF CLAIBORNE COUNTY IS AFF I R MED. 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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