IN THE SUPREME COURT OF MISSISSIPPI

NO. 2004-AN-01436-SCT

IN THE MATTER OF THE ENLARGEMENT AND

EXTENSION OF THE MUNICIPAL BOUNDARIES

OF THE CITY OF CLINTON, MISSISSIPPI: DAVID

WEEKS, MYRA JANE HALE, LUCAS L. HALE, R.

MITCHELL HALE, AND SUZYN B. HALE, d/b/a

HALE FIREWORKS, LLC

v.

CITY OF CLINTON, MISSISSIPPI

DATE OF JUDGMENT: 06/16/2004

TRIAL JUDGE: HON. STUART ROBINSON

COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT

ATTORNEYS FOR APPELLANTS: T. JACKSON LYONS

JOHN R. REEVES

JOHN JUSTIN KING

ATTORNEYS FOR APPELLEE: JERRY L. MILLS

KENNETH R. DREHER

NATURE OF THE CASE: CIVIL - MUNICIPAL BOUNDARIES &

ANNEXATION

DISPOSITION: VACATED AND REMANDED - 01/26/2006

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE WALLER, P.J., DICKINSON AND RANDOLPH, JJ.

WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1. Various owners of land annexed by the City of Clinton appeal from the judgment and

order of the Chancery Court of the Second Judicial District of Hin ds County approving the

plan of annexation. We vacate and remand for failure of the learned chancellor to address the

twelve indicia of reasonableness in support of his decision to approve the annexation.2 STATEMENT OF THE CASE

¶2. On January 29, 2003, after years of consulting with city planning firms, the City of

Clinton filed a complaint in the nature of a petition for the annexation of certain areas outside

the city limits of Clinton. Chancellor Stuart Robinson heard testimony and was presented

evid ence from both the City of Clinton and objectors to the annexation in a hearing held in

June of 2003. The chancellor gave a brief ruling from the bench and then entered a final

judgment approving the City of Clinton’s annexation plan. A number of objectors filed timely

appeals to this Court s eeking reversal of the chancellor’s decision to allow the annexation.

¶3. On appeal, the objectors challenge the notice- based jurisdiction of the chancery court,

object to possible bias in the c hancellor’s decision, and find fault in the chancellor’s failure

to specifically address the twelve indicia of reasonableness for annexation cases outlined by

this Cour t. Additionally, the City of Clinton, in addition to disputing the issues raised by the

objectors, argues that members of the Ha le family d/b/a Hale Fireworks, L.L.C. have no

standing to participate in this appeal.

STANDARD OF REVIEW

¶4. We may reverse a chancellor's determination that an annexation is either reasonable or

unreasonable only if that decision is manifestly erroneous or is unsu pported by substantial

credible evidence. I

n re Extension of the Boundaries of t he City of Batesville, Panola

County

, 760 So. 2d 697, 699 (Miss. 2000); In Re the Enlargement and Extension of the

Muni cipal Boundaries of the City of Biloxi , 744 So. 2d 270, 277 (Miss. 1999) (citing

McElhaney v. City of Horn L ake , 501 So. 2d 401, 403 (Miss. 1987)); E xtension of3

Boundaries of City of Moss Point v. Sherman

, 4 92 So. 2d 289, 290 (Miss. 1986);

Enlargement of Boundaries of Yazoo City v. City of Yazoo City

, 452 So. 2d 837, 838 (Miss.

1984); Matter of Extension of Boun daries of City of Clinton , 450 So.2d 85, 89 (Miss.

1984)). "Where there is conflicting, credible evi dence, we defer to the findings below." C ity

of Batesville

, 760 So. 2d at 699 (quoting Bassett v. Town of Taylorsville

, 542 So. 2d 91 8, 921

(Miss. 1989)). "Findings of fact mad e in the context of conflicting, credible evidence may not

be disturbed

unless this Court can say that from all the evidence that such findings are

manifestly wrong, given the weight of the evide nce." B assett

, 542 So. 2d at 921. "We only

reverse where the Chancery Court has employed erroneous legal standards or where we are left

with a firm and definite conviction that a mistake has been made." Id. (citing City of Biloxi , 744

So. 2d at 277.)

ANALYSIS

I. Whether Members of the Hale Family have Standing as Appellants to Appeal

¶5. Among those appealing the chancellor’s decision to allow the annexation are members

of the Hale family. The Hale family was not among the original objectors because they assert

they never had notice of the hearing and, thus, were absent from the proceedings in chancery

court. Though not parties to the original action, the Hales are still allowed to appeal the

approval of annexation if their property rights were adjudicated by the chancellor’s decision.

See Sperry Rand Corp. v. City of Jackson , 245 So. 2d 574, 575 (Miss. 1971).

¶6. The City o f Clinton asserts, however, that members of the Hale family lack the requisite

standi ng necessary to properly perfect an appeal in this case because the Hale family listed

themselves on their Notice of Appeal by their individual names followed by “d/b/a Hale4

Fireworks, L.L.C., A Missouri Limited Liability Company.” Because the trade name of Hale

Fireworks was included after the names of individual members of the Hale family, the City

argues the real party in interest is the company - which has no property in Mississippi and thus

may lack standing to challenge the an nexation decision of the chancery court. While it is true

that t he land has sometimes been used by the Hales to sell fireworks, members of the Hale

family have presented

affidavits and evidence, such as certified warranty deeds, that they, and

not their business, are landowners in the part of the area approved for annexation by the

chancery court an

d, thus, have standing to appeal the decision. Id ; see also Harrison County

v. City of Gulfport

, 557 So. 2d 780, 782-83 (Miss. 1990). Because the Hales have produced

do cumentary proof of their interest in the chancery court’s decision concerning the annexation

in question, we find the City’s cont ention that members of the Hale family are without standing

to challenge the annexation without merit.

¶7. The Hale objectors also ask us to sanction the City for attempting to remove them from

this appeal due to a lack of standing. The Hales argue that the City’s motion to strike their

brief was filed with no chance of succ ess and, thus, was a frivolous motion appropriate for

sanctions unde

r Rule 46(d) of the Mississippi Rules of Appellate Procedure. The City’s

motion to strike was predicated on a theory that the Hales’ business was the real party in

interest. Being incorporated in Missouri, the City asked us to explore the possibility that

standing was absent due to the out of state citizenship of the corporation. After reviewing the

City’s motion to strike, we find that, while the City’s argument ultimately was not successful,

it cannot be classified as frivolous and does not warrant sanction s under M.R.A.P. 46(d). The

Hales’ request for sanctions is denied.5

II. Whether Adequate Notice of the Annexation Hearing was Given

¶8. Objectors to the annexation also contend the chancery court was without ju risdiction

to hear the case because proper notice was not given. The City of Clinton argues that because

the issue of notice was not raised before the chancery court, the objectors are procedurally

barred from raising it now. The City’s argument is completely without merit. While issues

not raised at the trial co urt are typically not permitted to be argued on appeal, the issue of

notice in annexation cases has been specifically classified as jurisdictional by this Court and

may be raise d for the first time on appeal. Norwood v. City of Itta Bena

, 788 So. 2d 747, 751

(Miss. 2001) (citing Myrick v. Stringer , 336 So. 2d 209, 210-11 (Miss. 1976)).

¶9. Turning to the Hales’ contention that inadequate notice was provided, we note that Miss.

Code Ann. Section 21-1-31 (Rev. 2001) provides notice of a hearing on a propos ed area of

an nexation must be given in the same way notice is given under Miss. Code Ann. Section 21-1-

15 (Rev. 2001) for the creation of municipal corp orations. Miss. Code Ann. Section 21-1-15

(Rev. 2001) requires notice be published in a newspaper as well as the post i ng of such notice

in public places:

The said notice shall be given by publication thereof in some newspaper

published or having a general circulation in the territory proposed to be

incorporated once each week for three consecutive weeks, and by posting a copy

of such notice in three or more public places in such territory. The first

publication of such notice and the posted notice shall be made at least thirty

days prior to the day fixed for the heari ng of said petition, and such notice shall

co ntain a full description of the territory proposed to be incorporated. However,

if any of the territor

y proposed to be incorporated is located within three miles

of the boundaries of an existing municipality, then such existing municipality

shall be made a party defendant to such petition and shall be served with process

i n the manner provided by law, which process shall be served at least thirty days

prior to the date set for the hearing.6

Miss. Code Ann. § 21-1-15 (Rev. 2001). We have specifically stated that failure to give

proper notice in annexation cases renders a chance ry court without jurisdiction to hear the case

at all. Norwood , 788 So. 2d at 751(citing Myrick , 336 So. 2d at 210-11).

¶10. The Hale objectors contend the City failed to prove notice was given. The City filed

the affidavi

t of Richard Broome as proof that notice had been properly provided. In his

affidavit, Broome stated under o ath the locations where he had posted copies of the notice of

the hearing. Additionally, a copy of the notice published in the Clarion-Ledger was filed along

with the sworn

statement of a Clarion-Ledger employee verifying the authenticity of the notice

and dates of its publication. Broome did not appear at the hearing, and only his affidavit was

submitted as proof of notice. At the City’s request, the chancellor took judicial notice of the

affidavits as evidence that all no tice requirements had been met in the case. The chancellor’s

decision to ta

ke such notice was met with no objection by any of those appearing to oppose

the annexation. It is from this specific decision that the Hales appeal. The Hales argue the

affidavit was insufficient to provide proof of notic e because such an affidavit is untrustworthy

and an illegal admis sion of hearsay. We have addressed similar issues before and stated that

the burden is on thos e seeking annexation to affirmatively show through the record that

adequate posting and publication of notice were completed. Norwood , 788 So. 2d at 751;

Myrick , 336 So. 2d at 210-11; Wiley v. City of Iuka , 441 So. 2d 116, 117 (Miss. 1983).

¶11. Miss. Code Ann. Section 13 -1-145 (1972) (repealed 1991) previously allowed a party

to prove posting of notice i n an annexation case by filing a copy of the notice, as well as an

affidavit of posting, with the applicable court. Now, lacking statutory guidance as to how such

notice can be proven, we have relied upon Mississippi Rule of Civil Procedure (M.R.C.P.) 47

to clarify issues of p roof of notice. In re Extension of Corporate Boundaries of the Town

of Mantachie

, 685 So. 2d 724, 726 (Miss. 1996). M.R.C.P. 4(f) provides that a person, other

than a sheriff, may make proof of service by affidavit. In the instant case, the City of Clinton

did just that.

¶12. This Court takes seriously proof of proper notice. In Norwood

, for example, we found

that an attorney’s single re sponse to the question of whether proper notice had been served was

inadequate to meet the requirements for proof of notice. Norwood

, 788 So. 2 d at 750-52. The

answer of the attorney in Norwood was va gue and outlined no specifics as to the posting of

notice. I d

. Here, Broome specifically stated the exact locations and dates of his postings of

notice of the hearings in his affidavit as req uired by M.R.C.P. 4(f) and Miss. Code Ann.

Sections 21- 1-15 and 31 (Rev. 2001). The chancellor did not commit manifest error by

allowing the detailed affidavit of Richard Broome to constitute adequate proof of notice. The

Hales’ contention to the contrary is without merit.

III. Whether the Chancellor’s Ruling and Judgment were Sufficient

¶13. Those opposed to the annexation seek reversal because, in reaching his ruling and

judgment, the chancellor failed to consider and weigh the twelve indic ia of reasonableness, a

requirement essential to any decision regarding a proposed annexation. City of Batesville

, 76 0

So. 2d at 699-700. In C ity of Batesville

, we reviewed t hese twelve factors: (1) the

municipality's need for expansion, (2) whether the area sought to be annexed is reasonably

within a path of growth of the city, (3) the potential health hazard s from sewage and waste

disposal in the annexed areas, (4) the municipality's fina ncial ability to make the improvements

and furnish municipal services promised, (5) the need for zoning and overall planning in the8

area, (6) the ne ed for municipal services in the area sought to be annexed, (7) whether there

are natural barriers between the city and the [proposed annexation are a], (8) the past

performance and ti

me element involved in the city's provision of services to its present

residents, (9) the impact (economic or othe rwise) of the annexation upon those who live in or

own in the city or proposed annexation area, (10) the impact of the annexation upon the voting

strength of protected minority groups, (11) whether the property owners and other inhabitants

of the areas sought to be annexed have in the past, and for the foreseeable future unless

an nexed will, because of their reasonable proximity to the corporate limits of the municipality,

enjoy the (economic and social) benefits of proximit y to the municipality without paying their

fair share of the taxes, and (12) any other factors that may suggest reasonab leness vel non. I d

.

¶14. We have stated t hat a chancellor m ust consider all twelve of the factors in order to

determine whether the annexation is reasonable under the totality of the circumstances

. City

of Laurel v. Sharon Wa terworks Ass’n

, --- So.2d

----, 2005 WL1906031, at *1,4 (Miss.

2005); In re Enlargement and Extension o f Municipal Boundaries of City of Biloxi

, 744

So. 2d 270, 276-77 (Miss. 1999). In the instant case, the chancellor’s verbal ruling and written

judgment contain no reference to the twelve indicia of reasonableness in his decision to allow

the annexation. Accordingly, the chancellor’s failure to weigh and apply each of the twelve

factors in some form for the record renders this Court unable to determine whether substantial

evidence s upports the chancellor’s reasoning and ruling that the annexation should have been

granted. See City of Laurel , 2005 WL1906031 at *1.

IV. Whether Personal Bias Unreasonably Factored into the Chancellor’s Decision9

¶15. Objectors to the annexation claim th e chancellor erred by allowing personal bias to

inappropriately influence his decision about the annexation. Additionally, they argue the

chancellor inserted his personal opinion as a sort of “thirteenth factor” to the twelve indi c ia

of reasonableness. The objectors focus on statements made by the chancellor when he verbally

ruled the annexation proposal by the City was being approved by the court. The chancellor’s

ruling, the objectors argue, was based on a preference that the area be annexed by Clinton

before the city of Jackson attempted to annex it:

And I ’ ll say this much, too. Having been born and raised in Jackson, I know

Jackson, and if the City of Clinton didn’t get this annexed property, you could

count next month on Jackson coming after you; I can promise you that. They

were already after you, and everybody out here is aware of what they’re doing in

Byram. They’re trying to take over Byram. So they’re going to be relentless. I

think you’re much better off being part of the Ci ty of Clinton, and I say that from

experience. So that’s going to be the ruling of the Court, that the plaintiff will

prevail.

¶16. We presume a j udge is qualified and unbiased unless evidence presented produces a

reasonable doubt as to the judge’s impartiality and ask whether “a reasonable person, knowing

all of the cir cumstances, would harbor doubts about the [judge's] impartiality.” T urner v.

State

, 573 So.2d 657, 678 (Miss.1990). While the chancellor did make the statement in his

ruling that the City of Clinton had proven its case, his statement that th e annexed area would

fare better as a part of the City of Clinton and not the City of Jackson is troubling. We do not

find that such a comment rises to the level of disqualifying bias, but on remand we direct the

chancellor to base his decision on the twelve indicia of reasonableness announced by this

Court and ultimately on the totality of the circumstances - not personal opinion. This

assignment of error is without merit.10 CONCLUSION

¶17. Because the chancellor failed to weigh and apply the twelve indicia of r easonableness

on the record in order to determine whether the annexation was reasonable under the totality

of the circumstances, we vacate the chancellor’s judgment and remand this case with

in structions to the chancellor to provide more detailed reasoning on the record as to each

indicium of reasonableness and to enter a new judgment in accordance with those findings and

conclusions.

¶18. VACATED AND REMANDED.

COBB, P.J., EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ.,

CONCUR. SMITH, C.J., AND DIAZ, J., NOT PARTICIPATING.