IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2013-CP-00273-COA CHARLES GALLAGHER AND ANITA GALLAGHER APPELLANTS

v. CITY OF WAVELAND, MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 01/10/2013 TRIAL JUDGE: HON. ROGER T. CLARK COURT FROM W HICH APPEALED: HANCOCK COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: CHARLES GALLAGHER (PRO SE) ANITA GALLAGHER (PRO SE) ATTORNEY FOR APPELLEE: GARY MCKAY YARBOROUGH JR. NATURE OF THE CASE: CIVIL - OTHER TRIAL COURT DISPOSITION: ENTERED AN ORDER AFFIRMING THE CITY OF W AVELAND’S DECISION TO APPROVE KBM LLC’S SUBDIVISION DISPOSITION: AFFIRMED: 05/19/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. GRIFFIS, P.J., FOR THE COURT: ¶1. Charles and Anita Gallagher appeal the ruling o f the Hancock C ounty C ircuit Court that af f irm ed the d ecision of the City of W av e l a n d t o approve a proposed prelim inary plat
f or a subdivision. W e f

ind no error and af

f i rm . FACTS AND PROCEDURAL HISTORY ¶2. In 2010, KBM LLC subm itted a prelim inary p lat f or a planned sub d i v i s i on in
W a veland, Mississippi. KBM intended to create a seventeen-lot subdivision on an area ofland between Mollere Drive and Central Avenue.

¶3. KBM subm itted the plan to the Planning and Zoning Board requesting approval of the subdivision, an extension of the cul-de-sac variance f rom 600 f eet t o 1,213 f

e e t, and approval of an extended construction tim e f rom one y e ar to f

ive y ears. ¶4. The planning b oard approved KBM’s requests, except the planning board allowed f or

a two y e ar c onstruction -tim e extension rather than the requested f ive y ears, and

reco mme n d e d approval of the prelim inary plat to the City ’s Board of Alderm en (the “Board”). ¶5. On May 24, 2 010, the Board held a public hearing regarding f inal approval o f KBM’s prelim inary plat. The Gallaghers, along with others who l ived along Mollere Drive, attended the hearing and opposed f i nal approval o f t he prelim inary plat until KBM and the City provided f

urther inf orm a tion. ¶6. The Gallaghers’ prim arily objected to a change f r om KBM’s init i al plan. KBM originally placed the entrance t o the p roposed subdivision o n one side of the land, which led

onto Central Avenue, but changed the entrance to Mollere Drive. On June 1, 2010, the Board approved the prelim inary plat with the entrance to the subdivision on Mollere Drive. ¶7. On June 11, 2 010, the Gallaghers and others residents on Mollere Drive 1 f iled a notice of appeal and a propose d b ill of e xceptions in t he Circuit Court of Hancock C ounty

. The Gallaghers subm itted a m otion f or a writ of m andam

u s and m o tion to com

p el i n order to get

1 In th e case b elo w , th e p lain tif f s w ere Jo h n Im

p so n , G w en Im

p so n , R o y R esp o n te, N a n c y F i n lasen , H u g h F in lasen , M ary Wald rep , O scar Wald rep , an d th e G allag h ers. O n ly th e G allag h ers ap p ealed th e circu it co u rt d ecisio n to th is C o u rt. 2certain docum ents f rom the City and to get the City to e i t h e r s i g n t heir proposed bill of exceptions or agree to an a m ended version to co n t i n u e w i t h the a ppeals process. The Gallaghers subm itted an am e nded bill of exceptions to the circuit court without agreem ent f rom the City

. ¶8. On March 13, 2011, t he City f iled its m otion to dism iss and to strike the Gallaghers’

m otion f or a writ of m andam

us. The circuit court i ssued an order on March 28, 2012, which dism issed the City ’s m otions and required the City and the Gallaghers to subm it an agreed bill of exceptions within thirty

day s of the order. ¶9. The p arties, however, could not agr e e . The City subm itted its bill of e xceptions on April 27, 2012. T he Gallaghers f ollowed with a second am e n ded bill of exceptions on April 30, 2012. ¶10. Th e c i rcuit court signed a n agreed order on May 3, 2012, to extend the tim e f or the parties to agr e e o n a b i l l of exceptions. H owever, on May 17, 2012, the City subm itted a

m otion t o declare t he City ’s bill of exceptions as the r e c o r d and a m otion to strike the Gallaghers’ bills of exceptions. T he circuit court, on June 18, 2012, issued a n order, which adopted the City ’s bill of

exceptions as the record. ¶11. The c i rcuit court af f i rm ed the decision of the City and Board on January 11, 2013. The Gallagher s a r gue on appeal that (1) the bill of exceptions adopted by the circuit court

was inadequate; (2) t he Board’s a pproval of the prelim inary plat was arbitrary and c a p r icious; (3) the Board im

properly rezoned two residential lots; (4) the Board im p roperly approved a def icient proposed prelim inary plat; and (5) the Board’s decision deprived the Gallaghers of

3their statutory and constitutional due-process rights.
ANALYSIS
I. W hether this Court has subject-matter jurisdiction to hear the m e r its of this case. ¶12. There are two issues about this Court’s jurisdiction over this appeal. F irst, as is of ten the case in appeals such as t his, the preparation and production o f a record, i. e . , t h e b i ll of exceptions, cr e a t e d a controversy

. The Gallaghers m a i ntain that the bill o f e xceptions adopted by the circuit c ourt o mi t t e d s everal docum e nts that require review b y this Court. Second, t he City argues that the Gallaghers f ailed to preserve any issues in this appeal when the notice of

appeal om itted a statem ent of issues.
A. The Bill of Exceptions ¶13. Though neither the Gallaghers nor the C ity a rgues this Court lacks jur isdiction regarding the bill of e xceptions, “[ this Court] m u st be constantly a ware o f questions of [ its] jurisdiction to proceed and m ust be prepared to decide a question pertaining to jurisdiction

at any t im e, even if the court m ust raise t h e i s s u e o n i t s o wn m otion.” M cKee v. City of Starkville , 97 So. 3 d 97, 1 0 0-01 (¶¶10-11) (Miss. Ct. App. 2 0 1 2 ) ( q u oting Dunaway v. Dunaway , 749 So. 2d 1112, 1120 (¶25) (Miss. Ct. App. 1999)). ¶14. Missis s i p p i C ode Annotated section 11-51-75 (Rev. 2012) m andates that an appeal
f rom a b oard decision occur “ within ten (10) day s f rom the date of adjournm ent at which session the board of supervisors o r m unicipal authorities r endered such judgm ent or dec i sion, and m ay em body the f a cts, judgm ent and decision in a bill of exceptions . . . .”

4¶15. “The bill of exceptions serves as the record on appeal, and the circuit court m ay only

consider the case a s m ade by the bill of exceptions.” McKee , 97 So. 3d at 100 (¶8) (quoting
W ilkinson Cnty. Bd. of Sup’rs v. Quality Farms Inc. , 767 So. 2d 1007, 1 011 (¶11) (Miss. 2000)). “ [ A] p roper bill of exceptions on appeal is necessary to c o nf er jurisdiction on the appellate court.” W

i lkinson C nty. Bd. of Sup’rs , 767 So. 2d at 1012 (¶14) (citation om itted). Further, “[ a]ppellate r eview of an agency ’s decision is lim ited to t he record and t he agency ’s f indings.” Miss. W

a ste of Hancock Cnty. Inc. v. Bd. of Sup'rs of Hancock Cnty., 8 18 So. 2d 326, 330 (¶6) (Miss. 2001) (citation om itted). ¶16. Sim ilar to W

ilkinson County and McKee , this case involves a dispute over the proper bill of exceptions. W h ile the court in W ilkinson C

ounty dism issed the appeal f or lack of subject-m atter jurisdiction due to a def ective bill of exceptions, t his Court allowed an appeal to proceed on a technically def e ctive bill of

exceptions in McKee

. ¶17. In McKee , this Court distinguished the case f rom W ilkinson County when it ruled:
W h ile n either McKee nor t he City com plied with the procedural requirem ents set f orth in W

ilkinson , the bills of except i o n s f iled with the circuit court contained t he “pertinent and im portant f a cts and docum ents” and constituted “a record upon which ( the court could) i ntelligently act.” W ilkinson , 767 So. 2d at 1012 ( ¶14). Furtherm ore, t he suprem e court has previously addressed the m erits o f an appe a l w h e r e there were t wo bills o f exceptions bef ore the circuit court – one f

iled by local residents without the m ay or’s signature and another f iled by the Board of Alderm en with the m ay or’s signature. See Hall v. City of Ridgeland , 37 So

. 3d 25, 32 (¶17) (Miss. 2010). Theref ore, under these f acts, we decline to dism iss f or lack of subject m atter jurisdiction.
McKee , 97 So. 3d at 101 (¶11). ¶18. Thus, this Court f o und w hen the bill of exceptions co n t a i n s “all pertinent and im p ortant f acts and docum ents,” and constitutes a com plete record on w hich t he court could

5intelligently act, the appeal will not be dism issed f or lack of subject-m a tter jurisdiction. ¶19. The circuit c ourt adjudicated the ques t i o n of the proper b ill of exceptions and determ ined the City ’s bill of exceptions contained only t he inf orm ation presented to the
B o ard to which the circuit court was lim ited. See Byram 3 Dev. Inc. v. Hinds Cnty. Bd. of Sup’rs , 760 So. 2 d 841, 8 43 (¶5) ( Miss. Ct. App. 2000) (“An appeal f rom a decision of the board of supervisors on a zoning m atter is strictly lim ited to t h e r ecord o f what occurred bef ore the board as contained in the bill of exceptions.”). ¶20. Because the circuit court d eterm ined the proper b ill of exceptions and t h i s Court’s review is lim ited, we f

i nd subject-m atter jurisdiction proper and this issue without m erit.
B. The Preservation of Issues for Appeal ¶21. The City m aintains the Gallaghers f ailed to p r e s e r v e a n y issue f or appeal when the notice of appeal did not specif i cally set out the issues. I n s u pport of its proposition, the City cites Mississippi Rule of

Appellate Procedure 10(b)(4), which states: [ U] nless the entire record , except f or those m atters i dentif

ied in (b)(3) of this Rule , is to b e i ncluded, the appellant shall

. . . file a statement of the issues the appellant i ntends t o p r esent on the a ppeal and shall serve on the appellee a copy of the designation and of

the statem ent. (Em phasis added). ¶22. The City m isconstrues the applicability of Rule 1 0 ( b ) w hen a bill of exceptions is
f iled. In this case, the b ill of e xceptions, whi l e n o t f inalized until well af

ter the ten-day requirem ent f

or an a ppeal f r om the Board decision, served as the entire reco r d o n a p p e a l. Based on this rea ding of the rule, the Gallaghers were not required to f ile a separate
statem ent of

the issues when they

appealed the entire record.

6¶23. This Court has f ound “the actual f

iling of the bill of exceptions with the circuit court within t en day s is not an absolute prerequisite to vest the court with jurisdiction as long as

som e f o rm al p leading i ndicating an intention to appeal is f i led within ten day s.” Bowen v. DeSoto Cnty. Bd. of Sup'rs , 852 So. 2d 21, 23 (¶4) (Miss. 2003). ¶24. Further, t his Court c an only address issues r aised bef ore the Board, not issues raised

on appeal f

or the f i rst t im e. See B a ker v. Bd. of Sup’rs of Panola Cnty. , 113 So. 3d 1266,
1269 (¶10) ( Miss. C t. A p p . 2 0 1 3 ) (f inding appellants waived judicial review o f issue not raised bef ore t he b oard); see also Luther Munf ord, M ississippi Appellate Practice §10-24 (2006) (“The only

issues that can be raised on appeal are issues that were raised bef ore the board.” )

. Thus, the om i ssion of a statem ent of i ssues by the Gallaghers does not preclude their appeal. W e f

ind this issue is without m erit.
II. W hether the Board’s decision to approve KBM’s preliminary p lat was arbitrary and capricious, or against the substantial evidence. ¶25. The Gallaghers’ prima r y o bjections to t he Board’s approval of the prelim inary plat i n v o l v e s t he l ocation of the subdivision e ntrance. Because s everal of the issues th e Gallaghers raise im

plicate the Board’s decision, we will address the i ssues together. First, the Gallaghers assert t he Board im properly rezoned two R-1 r esidential lots. The Gallaghers also assert that Board erred when it incorrectly interpreted city ordinances and violated the city ’s com

prehensive p l a n . Accordingly , the Gallaghers a r gue the Board’s decision was arbitrary and capricious, or not supported by the substantial evidence. ¶26. “In m atters involving zoning decisions by boards of supervisor s , t he order of the governing body will ‘not b e s et aside unless it is c l early shown to be arbitrary , capricious,

7discrim inatory , or is illegal, or without a substantial e videntiary b asis.’” Tho m a s v
. Bd. of

Sup'rs of Panola Cnty. , 45 So. 3d 1173, 1180 (¶22) (Miss. 2010) (quoting Faircloth v. Lyles , 592 So. 2d 941, 943 (Miss.1991)). ¶27. “An act is arbitrary a n d capricious when it is done at pleasure, without reasoned judgm ent or with disregard f or the surrounding f

acts and circum stances.” Nelson v. City of
Horn L ake ex. rel. Bd. o f Aldermen, 968 So. 2d 938, 942 (¶11) ( M i s s . 2 007) (citation

om itted). “Substantial evidence has been def ined as ‘such r elevant evidence as r easonable

m inds m i ght acc e p t as adequate t o support a conclusion’ or to put it s im ply , m ore than a

‘ me r e s c intilla’ of evidence.” W ilkinson , 767 So. 2d at 1010 (¶8) (quoting Johnson v
. Ferguson , 435 So. 2d 1191, 1195 (Miss. 1983)). ¶28. The G allaghers m a intain the Board im properly rezoned t wo R-1 lots when it approved the prelim inary subdivision plat with the entrance through t he R-1 lots o nto Mollere Drive. The r ecord s hows the Board held public hearings o n the approval of the prelim inary plat, but did not hold a hearing to specif i cally address a zoning change to the l ots. According to the Gallaghers, this constituted an invalid rezoning of the land. ¶29. This assertion, h owever, is inaccurate. Mississippi Code A n n o tated section 17-1- 23(3) ( Rev. 2012), w hich dictates regulation o f subdivisions, states: “[ W ]here a m ap or plat of the subdivision is s ubm itted to t he governing authorities of a m u nicipality , a nd is by t hem approved, all streets, r oads, alley s and o ther public way s set f orth and shown on said m a p or plat shall be thereby d edicated to the public use . . . .” Theref o re, the statute contem

plates the necessity of p ublic-use roads in subdivisions, a nd does not require rezoning in this

8instance.

¶30. The Gallaghers additionally contend t h e Board f a i led to abide by the City ’s

com prehensive plan and city or dinances when i t approved the Mollere Drive subdivision

e n t r a nce. However, “[ l]ocal a uthorities’ construction o f zoning ordinances is given great weight unless their construction is m anif estly unreasonable.” Roundstone Dev. LLC v. City of Natchez , 105 So. 3d 317, 321 (¶15) (Miss. 2013) (citation om itted). ¶31. The c om

p rehensive plan and city ordinances, the Gallag h e r s a r g u e , p r o v i d e t hat traf

f ic should divert onto m ain c ollector s treets, like Central Avenue, rather than m inor s t reets, like Mollere D rive. Also, as the Gallaghers point out, the plan seeks to protect and m aintain the existing neighborhoods in W aveland. Additionally , the Gallaghers state the prelim inary plat
f ailed to m eet the requirem ents in city ordinance 219. ¶32. Yet the Gallaghers f ail to show the City contradicted the com prehensive p lan or f

ailed

to apply ordinance 219. The plan and ordinances both f ocus on m aintaining and protecting existing s ubdivision s w h i l e e ncouraging the developm e nt of new subdivisions, as well as

a c c o unt f or streets within new subdivisions. The Gallaghers also could not suppo r t t h e i r assertion that KBM’s prelim inary plat did not conf

orm w ith the requirem e n ts of ordinance
219. ¶33. Finally , the Gallaghers ra i s e t h e i s sue of whether the Board deprived them of their due-process rights when the Board f ailed to notice the public of the substance of the hearings

on May 24 a nd June 1, 2 010. The hearings on the prelim i nary plat im plicated an issue of rezoning, according to the Gallaghers, which required the Board to n otic e t h e r e zoning.

9However, as previously a ddressed, the approval of t he prelim inary plat did not constitute a

rezoning. ¶34. Based on t h e s e f

indings, this Court cannot say the City acted in an arbitrary and capricious m anner. T he Board weighed the evidence bef ore it in approving the prelim inary plat, and we cannot hold the s u bstantial evidence c ontradicts t he Board’s decision. Further,

we f ind the approval of the prelim inary plat did not constitute a n i m proper rezoning. For these reasons, we af

f irm the decision of

the circuit court. ¶35. THE JUDGMENT OF THE CIRCUIT COURT O F HANCOCK COUNTY IS AFFIRMED. A LL COSTS OF THIS APPEAL A R E ASSESSED TO THE APPELLANTS. LEE, C . J ., I SHEE, ROBERTS, MAX WELL AND F AIR, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN O PINION, JOINED BY BARNES AND JAMES, JJ.; IRVING, P.J., JOINS IN PART. CARLTON, J., DISSENTING: ¶36. I respectf

ully dissen t f

r o m t h e m ajority ’s opinion. I f ind that the bill of

exceptions accepted b y the circuit c ourt was f atally def ective and f

ailed to provide a n intelligent record
upon which the circuit court could act. Because the parties f ailed to p rovide a proper bill of exceptions, the circuit court lacked subject-m atter jurisdictio n i n this case. A s a result, I would reverse the circuit court’s judgm ent and rem a nd this case to allow the circuit court to rule on the Gallaghers’ mo t i o n f or a writ of m andam

us and to p rovide the parties the opportunity

to f i le a properly

am e nded bill of

exceptions. ¶37. App e a l s f

r o m g o v e r n i n g m

unicipal boards are creatures of statute. See generally
Jones v. C ity o

f Ridgeland , 48 So. 3d 530, 5 43-44 (¶43) ( Miss. 2010) (“The right of appeal

1 0is purely a creature of statu t e . ” ( c i tations om itted)). Mississippi Code Annotated section

11-51-75 (Rev. 2 012) establishes t he requirem ents f or such appeals. W

ilkinson Cnty. Bd. of Supervisors v. Quality Farms Inc. , 767 So. 2d 1007, 1011-12 (¶¶11-14) (M iss. 2000). Section 11-51-75 clearly p r ovides an aggrieved p a r t y with the right t o prepare a bill of exceptions. ¶38. The G a l l aghers, t he aggrieved p arty i n the present case, assert that the circuit court erred by f inding that W aveland’s bill of exceptions accurately ref lected the issues presented

on appeal. A review of the record ref lects that W aveland’s p rof f ered bill of exceptions f

ailed

to sati s f y t he requirem ents of section 11-51-75 since the bill was n either agreed to nor prepared by the aggrieved party i n this c ase. The f ailure to f ollow the statutory procedures required to obtain a proper bill of exceptions deprived the circuit court of jurisdiction. ¶39. Although neither party raised the issue o f j u r i s d i c tion due t o the lack of a properly
f iled b i l l of exceptions, “[ j]urisdiction is a question of law, which [ the appellate court] reviews de novo.” Issaquena W arren Counties Land Co. v. W arren Cnty. , 996 So. 2d 747,
749 (¶5) (Miss. 2 008) (citations om itted). “ [ A ] l l courts m ust be c onstantly aware of questions of their j u r i s d i c t ion to proceed and m u st be p repared to d ecide a question pertaining to jurisdiction at a ny tim e, even if t he court mu s t r a i s e t h e issue on its own

m otion.” D unaway v. Dunaway , 749 So. 2d 1112, 1120 ( ¶25) (Miss. C t. App. 1999) (citation

om itted). ¶40. The Mississippi Suprem e Court “has held that a proper bill of exceptions on appeal is necessary t o conf

er jurisdiction on t h e a p p e l l ate c ourt.” W ilkinson Cnty. Bd. of

1 1Supervisors , 767 So. 2d at 1012 (¶14) (quoting Stewart v. City of Pasca g o u l a , 2 0 6 So. 2d

325, 328 (Miss. 1968)). This Court has previously stated: The bill of exceptions serves as the record on appeal and em bodies the f acts, judg ment, and decision involved in t he proceedings below. In its appellate capacity , the c ircuit court m u st lim i t its review of the evidence t o the bill o f e xceptions. I f the bill of e x c e p tions i s n ot com plete and is f

a tally d e f e c t i v e in that pertinent and im portant f acts and docum ents are om itte d theref rom , then t h e c i r c u it court does not have a record upon which it can intelligently act.
Pruitt v. Z

oning B d. of Laurel , 5 So. 3d 464, 4 69 (¶14) ( M i s s . C t

. App. 2008) (internal citations and quotation m arks om itted). ¶41. The suprem e court’s precedent establishes t hat t he proper procedure f o r f i ling a bill of exceptions is as f

ollows: The general rule with respect to bills of exceptions when presented to the proper of

f icial f o r signature appears to b e that s uc h o f f i c e r or of f i cial cannot arbitrarily r ef

use to sign and return the bill o f e x c e ptions m erely because he deem s the sam e to be incorrect, b ut that it is his duty to point out wherein he deem s the sam e to be incorrect, and to n ote his corrections thereon, and to sign the same as correct

. If he deem ed incorrect the bill of exceptions presented to him , he was under a n i mp l i ed duty to point out wherein he deem ed the sam e incorrect so that t he aggrieved parties m ight have an opportunity to am end the sam e, and then to sign the sam e as corrected. Id. ( e mp h a sis added) (quoting Reed v. Adams , 2 36 Miss. 333, 340-41, 111 So. 2d 222, 224-25 (1959)). ¶42. As the record in the present case ref lects, the parties disagreed on the contents of the bill of exceptions, a nd W a v e l a n d ’ s m ay o r r ef used to sign the bills of exceptions that the Gallaghers presented to h i m . On Septem ber 28, 2010, the G a l l a g h e r s f iled a “Motion to

1 2Com

pel and Other Relief

.” T h e mo t i on asserted that W aveland had repeatedly f ailed to provide the Gallaghers with s e v e r a l r e quested docum ents that the G allaghers needed to

com plete a p roper f

iling of t heir bill of exceptions. The m otion f urther requested that the circuit court com

pel W aveland “to produce com plete and certif

ied copies of

the rem aining docum ents n eeded f

o r Appellants t o com

plete their [ b]ill of [ e]xceptions and to award Appellants all costs and expense[ s] incurred as a result of the unnecessary

delay [

. ]” ¶43. O n M a r c h 1 5 , 2 0 1 1, W aveland f i led a m otion to dism iss the appeal d u e t o t h e Gallaghers’ f

ailure to f ile a proper bill of exceptions. On Decem ber 2, 2011, t he Gallaghers
f iled an am ended bill of e xceptions. They also f iled a m o t i on f

or a writ of m andam

us due

to the m ay or’s ref

usal to sign their bill of exceptions. T he Gallaghers’ m otion f or a writ of

m andam us requested that the circuit court o rder W a veland’s m ay or to sign the am ended bill of exceptions or provide the Gallaghers with a list of o bjections to th e a me n d e d bill of exceptions. In response, W aveland f iled a m otion to strike the Gallaghers’ m otion f or a writ of m andam us. ¶44. Following a hearing o n the parties’ various m otions, the c i rcuit court f ound that both sides had contributed t o the d elay in obtaining a satisf actory bill of exceptions. The circuit
court’s order, f

i led on March 29, 2012, granted in part the G a l l a g h e r s ’ m otion t o com pel. The circuit c ourt f

ailed, t hough, to grant the relief the Gallaghers requested in their m otion
f or a writ of m a ndam

us. As the record ref

lects, the circuit court f

ailed to order the m ay or to
note his corrections on the Gallaghers’ bill of exceptions and to s ign the sam e as is required

1 3f

or a proper bill of e xceptions. 2 Instead, the circuit court’s order gave the parties thirty day s
to agree upon, sign, and f

ile a b ill of exceptions. A s the r ecord ref lects, however, even af

ter the circuit court’s order to agree, the parties still f ailed to reach any agreem e n t regarding the inf orm ation that should be included in the bill of exceptions. ¶45. Instead, on April 27, 2012, W aveland f iled i ts own bill of exceptions, and on April 30, 2012, the Gallaghers f

iled their “Second Am e nded Bill of Except i o n s . ” As the record ref lects, W aveland’s bill of exceptions contained t he m a y o r’s signature, but the bill f iled by the Gallaghers, the aggrieved party , did not. W aveland subsequently f iled m otions to have its bill of exceptions d eclared the record on appeal and to strike the bills of exceptions f iled by the G a l l a g h e r s . W aveland argued that, because i ts b ill of exceptions contained all the docum ents, evidence, and t estim ony bef ore the Board when the B oard m ade its decision, the cir c uit c ourt s hould declare W aveland’s bill of e xceptions the r ecord of t he appeal.
W a veland f

urther asserted that the circuit court should s trike the opposing bills o f e xceptions because those docum ents attem pted to adm it evidence not bef o re the Board at the tim e the Board rendered its decision. ¶46. Af ter considering t he parties’ argum ent s , t h e c i r c u i t c o u

r t f o und that “[ a]n appeal f

rom a decision of

the board of

supervisors on a zoning m atter is strictly lim ited to the record of what occurred bef

ore the b oard as contained in the bill of exceptions.” B y r a m 3 Dev. Inc.

v. Hinds Cnty. B d. of Supervisors , 760 So. 2 d 841, 843 (¶5) (Miss. Ct. App. 2000) (citation

om itted). Despite the def ici e n c y o f n o t having a bill of exceptions that satisf i ed statutory

2 S ee P o w ell v. M

u n
. E lectio n C o m m ’n o

f I so la , 1 5 6 S o . 3 d 2 5 0 , 2 5 3 -5 4 (¶¶1 2 -1 3 ) (M iss. 2 0 1 4 ); Wilkin so n C n ty. B d . o f S u p erviso r s , 7 6 7 S o . 2 d at 1 0 1 2 ( ¶1 4 ). 1 4requirem ents, t he circuit court then declared W aveland’s bill of exceptions to be the proper

record of the appeal. The ci r c uit court m ade this determ ination even though W aveland possessed no right to f

ile its own bill. 3 ¶47. Following the parties’ s ubm ission of their brief s, the circuit court considered all the evidence and entered an order a f f irm ing the Board’s approval of KBM’s application. Aggrieved by the circuit court’s judgm ent, the Gallaghers no w a p p e a l to this Court. In addressing t he Gallaghers’ appeal, I acknowledge that t he suprem e court has recently recognized t hat a circuit court, sitting as an appellate c ourt, should not hold an evidentiary hearing when considering a bill o f exceptions or where no proper bill of exceptions exists. See Powell v. Mun. Election Comm’n of Isola , 156 So. 3d 250, 255 (¶16) (Miss. 2014). ¶48. As previo u s l y acknowledged, “a proper bill o f exceptions on appeal is necessary to conf er jurisdiction o n the appellate court.” W i lkinson Cnty. Bd. of Supervisors , 767 So. 2d

at 1012 (¶14) ( quoting Stewart , 206 So. 2d at 328). As also acknowledged, the right to f ile

a bill of exceptions belongs to the aggrieved party

. Miss. Code Ann. § 11-51-75. As established by precedent, in the present case, W aveland’s m ay or should h a v e identif ied inaccuracies or noted his c orrections on the Ga llaghers’ b ill of e xceptions and t hen signed the bill as correct a nd f

iled it with the circuit court. S ee W i lkinson Cnty. Bd. of S

upervisors , 767 So. 2d at 1012 (¶14). ¶49. In addition to possessing the right to request corrections to the Gallaghers’ bill and to

note c o r r e c t ions o n the bill, W aveland p ossessed t he right to request by m otion that the

3 S ee M iss. C o d e A n n . § 1 1 -5 1 -7 5

. 1 5circuit court o r d e r a n a mendm ent to the bill of exceptions af ter its f iling with the circuit

court. Miss. Code Ann. § 11-7-211 (Rev. 2004). 4 However, our statutory law ref lects that

no right exists f

o r a c ity ’s designated governing of f icial t o sim

p ly r ef use to sign a n aggrieved party ’s prof

f ered bill of exceptions and instead f ile a separate and distinct bill with the circuit

court. ¶50. A review of Mississippi caselaw and gover n i ng statutory law shows that the circuit

court f ailed to acquire j urisdiction in this case. In its recent o pinion in Powell , the suprem e
court discussed another case w here t h e c i r c u i t court f ailed to acquire jurisdiction over a

m unicipality ’s decision. Powell , 156 So. 3d at 253 (¶10). The suprem e court explained in Powell that a “bill of exceptions serves as the objective record of the p roceedings below, and theref ore m ust be exam ined and certif ied f or authenticity by being signed and delivered to the circuit court by the au t h o r i t y who m ade t he decision.” I d. at (¶12). The responsibility of a m unicipal authority

when presented with a bill of exceptions is to r eview the bill, note
any inaccuracies o r incom pleteness, and then sign the bill as the correct r ecord f or the circuit court to review. Id. ¶51. The suprem e court explained in Powell that the aggrieved party had actually sought

a writ of m andam

us as a m eans to appeal the mu n i c i p a l authority ’s decision instead of
f ollowing the statutory p r ocedures to appeal such action, which required the aggrieved party

4 S ee a l so Wilkin so n C

n ty. B d

. o f S u p erviso rs , 7 6 7 S o . 2 d a t 1 0 1 1 -1 2 (¶¶1 4 -1 5 ) (f i n d in g th at th e c ircu it co u rt l ack e d j u risd ictio n d u e to a f atally d ef ectiv e b ill o f ex cep tio n s b ecau se t h e b o ard f

ailed t o f o llo w th e s tatu to ry p ro ced u r es f o r su b m ittin g a co rrected b ill o f e x c ep tio n s); S tew a rt , 2 0 6 S o . 2 d at 3 2 8 (f in d in g th at th e circu it co u rt p ro p erly d ism issed th e ap p eal b ecau se it lack ed j u risd ictio n d u e to a f atally d ef ectiv e b ill o f

ex cep tio n s). 1 6to obtain a record through a bill of exceptions. Id. at 254 (¶12). The s uprem e court f urther explained that, i f P owell had p resented a bill o f e x ceptions to the designated city of f icial to be reviewed, signed, and delivered to the circuit c ourt, and i f tha t m unicipal authority had ref used to perf

o rm its m inisterial duty , then a writ of m andam us would h a v e p r o v ided an appropriate rem edial m echanism t o prom pt the authority to perf

o rm its required duty

. Id. at (¶13). See a lso Reed , 2 36 Miss. at 339, 111 So. 2d at 224 (“[ O]nly the acting president of the board of s upervisors or the presiding of f icer of the m

unicipal board can sign a bill of exceptions upon an appeal f rom a n order o f the board, and

. . . in case of his ref usal, he m ay be com pelled to do so by m a ndam us.” (citing R o a c h v
. Tallahatchie Cnty. , 78 Miss. 303, 303, 29 So. 93, 93 (1901))). ¶52. In apply ing governing statutory law and c a selaw to t he instant case, the record ref lects that the Gallaghers f

ollowed the procedures necessary to obtain a proper b ill of exceptions. They subm itted their prop o s e d bill of exceptions to W aveland’s m ay or f or h im to review, sign, and d eliver as required b y s ection 11-51-75 and Mississippi caselaw. 5 W h en the m ay or ref used to sign the Gallagh e rs’ bill, the Gallaghers f iled a m otion f

or a writ of m andam

us consistent with t he procedure set f orth in the suprem e court’s Powell o pinion. See Powell , 156 So. 3d at 2 54 ( ¶13). As the record ref lects, through their m otion f or a w rit of m andam

us, the G allagh e r s sought to r em e dy the m ay or’s i naction and his f ailure to perf

orm his

m inisterial duty of r ev i e w i n g , s i gning, and delivering the bill of exceptions to the circuit

court. However, the c ircuit court f ailed to gr a n t t h e r e lief requested by t he Gallaghers’

5 S ee P o w e ll , 1 5 6 S o . 3 d at 2 5 3 (¶1 2 ); Wilkin so n C n ty. B d

. o f S u p erviso rs , 7 6 7 S o . 2 d at 1 0 1 2 (¶1 4 ). 1 7m otion, and this appeal theref ore lacked a proper bill of exceptions. ¶53. I n P o w e l l , t h e s u p r e me c o u r t acknowledged that the p rocedural def i ciency of a n im p roper bill of e xceptions cannot be considered harm less. S ee id. at 255 (¶16). The
suprem e court f

urther advised that “[ a ] circuit court, sitting as an appellate court, should not hold an evidentiary hearing when considering a bill of exceptions.” Id. (citing F alco Lime Inc. v. Mayor & Aldermen of Vicksburg , 836 So. 2d 711, 720 (¶37) (Miss. 2002)). ¶54. The P owell opinion d istinguished the suprem e court’s prior decision in F alco Lime by explaining that, in Falco Lime , the c ircuit court’s decision to h old an evidentiary hearing resulted in harm less error because suf f icient evidence e xisted in the bill of exceptions f or the result r eached. Powell , 156 So. 3d at 255 (¶16 ) ( c i t i ng F alco Lime , 836 So. 2d at 720-21 (¶40)). T he Powell opinion also e m phasized that, unlike t he appeal in P owell , the appeal in Falco Lime began with a p r o p er b ill of exceptions. P owell , 156 So. 3d at 2 55 ( ¶16). The
suprem e court acknowledged in Powell that, where an appeal to t h e c i r cuit c ourt f ails to originate w ith a proper bill o f exceptions, t he suprem e court will ref use t o extend harm lesserror review to the f

u ndam ental jurisdictional posture of the case. Id. ¶55. In t he present c ase, the Gallaghers’ appeal to the circuit court f ailed to originate with

a p roper bill o f e xceptions. As explained in Powell and W ilkinson Co u n t

y B o a r d of Supervisors , this f

ailure d eprived the circuit court of appellate j urisdiction. See Powell , 156
So. 3d at 255 (¶16); W

i lkinson Cnty. Bd. of Supervisors , 767 So

. 2 d a t 1012 (¶14). In addition, the G allaghers f iled a m otion f

or a writ o f m andam

us with th e c i rcuit court af ter presenting their bill of e xceptions to W aveland’s m ay or f or the m ay or to sign. As e xplained

1 8in Powell , the circuit court possessed authority to grant the writ of ma n d a m us since the

m ay o r ref used to perf

orm his m inisterial duty

regarding the Gallaghers’ bill o f exceptions.
See Powell , 156 So. 3d at 253-54 ( ¶¶12-13). See also R eed , 2 36 Miss. at 339, 1 11 So. 2d at 224 (discussing m andam

us as a m eans to com

pel a designated m

unicipal authority to f

ulf ill his m inisterial duty

to sign a bill of

exceptions). ¶56. In reviewing the c ircuit court’s judgm ent , t h i s C o u r t mu s t a dhere to the precedent established by th e s u p r e me court, and we m ust apply the requirem ents of Mississippi statutory law. 6 In the instant case, the m ajority ’s reliance on this Court’s previous opinion in McKee v. City of

Starkville , 97 So. 3d 97 ( Miss. Ct. App. 2 012), is m i splaced since McKee conf licts w ith suprem e court p recedent and relevant statutory l aw. A review o f t he suprem e
court precedent cited and relied upon in McKee ref lects that this Court m iscons t r u e d t he
suprem e c ourt’s decision i n Ha l l v. City of Ridgeland , 3 7 So. 3d 25 (Miss. 2010). This
Court’s McKee opinion asserts t hat, in Hall , the suprem e c ourt allowed a n appeal to circuit

court f rom a city ’s d ecision without a pr o p e r b i l l o f e x ceptions. McKee , 97 So. 3d at 101 (¶11). ¶57. However, t he suprem e court’s opinion in H a l l r e fl ects that the aggrieved party initially
f i l e d an u nsigned bill of exceptions, and then, shortly a f terward, the m ay or and the boar d perf orm ed their statutory a nd m i nisterial d u t ies by signing a nd f i ling the corrected bill of

6 S ee P o w ell , 1 5 6 S o . 3 d at 2 5 3 -5 5 ( ¶¶1 2 -1 6 ); Wilkin so n C n t y. B d

. o f S u p e r v iso rs , 7 6 7 S o . 2 d at 1 0 1 1 -1 2 (¶¶1 4 -1 5 ); M iss. C o d e A n n . § 1 1 -7 -2 1 1 ; M iss. C o d e A n n . § 1 1 -5 1

- 7 5

. 1 9exceptions w ith the circuit court. Hall , 37 S o. 3d at 3 2 ( ¶ 1 7 )

. 7 A s a result, appellate

jurisdiction vested in the circuit court t hrough a proper bill of exceptions. Id. A dditionally ,

a r eview of the suprem e court’s opinion in Hall ref lects that no issue was raised as to the suf f i ciency of the corrected bill of

exceptions f

i led in that case. ¶58. A f

u r t h e r review of the suprem e court’s opinion i n H a l l f a i l s t o s u p p o r t t h e proposition f

o r which it is rel i ed upon and cited by this Court in McKee

. Likewise, the
suprem e court’s opinion in Hall provides no support f

or the decision of

the m ajority

in the i nstant case since Hall and other suprem e court precedent clearly e s tablishes that, without

a p roper bill of exceptions, a circuit c o u rt cannot acquire jurisdiction o f an appeal f rom a

m unicipal board. Theref

ore, in McKee , t h i s C o u r t v eered f rom t he procedures def

ined by
suprem e court precedent and Mississippi statutory law, which require a m u nicipal of

f icial to sign the bill of exceptions a nd require a proper bill of exceptions to be f iled bef ore a circuit

court can acquire jurisdiction. See Powell , 1 56 So. 3d at 253-55 (¶¶12-16); W i lkinson Cnty. Bd. of Supervisors , 767 So. 2d at 1011-12 (¶¶14-15). ¶59. The m ajority o pinion in the p r e s e n t c a s e a l s o m i splaces i ts reliance u pon Byram 3 Development I

n c
. to support i ts f

inding that a circuit court m ay d eterm ine i ts own bill of exceptions when the a

ppeal f ails to originate with a p roper b i l l. In B yram 3 D evelopment
Inc. , t his Court’s o pinion ref lected that By

ram 3 Developm ent I nc. (By ram 3) f i led a bill of exceptions and an attached af f idavit. Byram 3 Development Inc. , 760 So. 2d at 843 (¶3). No

7 S ee a lso P o w ell , 1 5 6 S o . 3 d at 2 5 3 (¶1 2 ) (statin g th at a m u n icip a l au th o r i t y p o ssesses th e d u ty t o sig n a b ill o f ex cep tio n s an d t h e n d eliv er it to t h e co u r t to au th en ticate th e b ill). 2 0issue existed in Byram 3 Development Inc. as to t he s uf f iciency o f the bill of exceptions f iled. Id. at (¶¶3-5). I nstead, the opinion ref lected that the af

f idavit addressed m a t ters not included in the bill of exceptions. I d

. a t ( ¶ 3 )

. In addition, t he o pinion e xplained that the attached af f idavit contained allegations regarding f actual m isrepresentations that were not presented

to t he board of supervisors, and this Court f ound that By

r am 3 f ailed to m ake a record of the perceived m isrepresentations b ef ore the board to enable the m atters to be included in the bill of exceptions. Id. at (¶¶3-5). ¶60. As acknowledged , a r e v i e w o f this Court’s o pinion in Byram 3 D evelopment Inc. ref lects that no issues were raised in that case r egarding t h e s u f f iciency of the bill of exceptions. Id. Instead, our opinion in Byram 3 Development Inc. f ocused o n the issue that the additional m atters contained in the attached af f idavit were neither presented to the board

nor contained in the record m ade bef ore the board. Id. Because no record of the additional

m atters had been m ade b ef o r e t h e board, w e f

ound that consideration o f those m atters on appeal was barred. Id. at 844 (¶8). Our decision in Byram 3 Development Inc. theref ore f ails

to support the proposition f or w hich it is relied upon by the m ajority in the instant case. Our decision in Byram 3 Development Inc. also f ails to support the m ajority ’s f inding herein that

a c ircuit court can d eterm ine its own record d e s p i t e a procedurally d ef icient bill of exceptions. 8 ¶61. In its af

f idavit attached to the bill of exceptions i n Byram 3 Development Inc. , By ram 3 claim ed that f

a c t u al m isrepresentations h ad been m ade to the p lanning c o m m ission

8 S ee P o w ell , 1 5 6 S o . 3 d at 2 5 5 (¶1 6 ) (d iscu ssin g th at a p ro ced u rally d ef icien t b ill o f ex cep tio n s resu lts in r ev ersib le e rro r f o r lack o f j u r isd ictio n ); M iss. C o d e A n n . § 1 1 -5 1 -7 5

. 2 1regarding occupancy and t he n eed f or the developm ent at issue. Id. at 843-44 ( ¶¶3-7). Our opinion in Byram 3 Development Inc. establishe d t h a t t his Court will ref use to review any

a l l e gation raised f

or the f irst tim e on appeal. Id. at 842 (¶1). As discussed, becau s e n o record had been m ade bef ore the board r e g arding the perceived f a ctual m isrepresentations

set f o r t h i n B y

ram 3’s attached af

f idavit, this Court f

o und the consideration of those allegations to be procedurally barred. Id. at 844 (¶8). 9 ¶62. I n t h e p r e s e n t c a s e , instead of sim ply ref using to sign t he G a l laghers’ bi l l o f exceptions, the m ay or possessed an im plied duty to identif

y any aspect of the Gallaghers’ bill that appeared t o be inaccurate or i ncom plete or to note corrections thereon and then to sign and deliver the bill t o the circuit court to authenticate the bill of e xceptions. See Powell , 156
So. 3d at 253-54 (¶¶12-13); W ilkinso n C

nty. Bd. of Supervisors , 767 So. 2d at 1012 (¶14). Additionally , section 11-7-211 allows the circuit court judge to order an am endm ent to the bill of exceptions “f

or the purpose of curing o m i ssions, def ects, or inaccu r a c y ” af

ter providing f

i ve day s’ notice to the interested parties. ¶63. Based on a review o f t he record a nd applicable statutory law and caselaw, I f ind that, while the circuit court lacked appellate jurisdiction in this case, the circuit court possessed jurisdiction to grant the Gallaghers’ m otion f or a writ of

m andam u s to require W aveland’s

m ay o r t o perf

orm his m inisterial d

uty to provide a proper bill of exceptions. 10 Because the

9 S ee a lso B la ckw ell v. M

iss. B d

. o f A n im a l H ea lth , 7 8 4 S o . 2 d 9 9 6 , 1 0 0 2 ( ¶1 4 ) (M iss. C t

. A p p . 2 0 0 1 ) (statin g th at th is C o u rt ref u ses to rev iew a n y alleg atio n o f erro r raised f o r th e f irst tim e o n ap p e al an d th eref o re n o t su p p o rted b y th e reco rd ).

10 S ee R eed , 2 3 6 M iss. at 3 3 9 , 1 1 1 S o . 2 d a t 2 2 4 ( e x p lain in g t h a t “o n ly th e actin g p resid en t o f th e b o ard o f su p e rv iso rs o r t h e p resid in g o f f icer o f th e m

u n icip al b o ard can sig n 2 2bills of exce p t i o n s p r o f f e red by the parties and relied u pon b y the circuit court were procedurally a nd f

atally def ective, the circuit court l acked both jurisdiction a n d a record upon which it c o uld intelligently act. See W ilkinson Cnty. Bd. of S

upervisors , 767 So. 2d at 1012 (¶14); Pruitt , 5 So. 3d at 469 ( ¶14). I would theref ore r everse the circuit court’s judgm ent and rem and t his case to the circuit cou r t t o provide t he opportunity f o r a ruling on the Gallaghers’ m o t ion f

or a writ of m andam

us and to allow the part i e s t he o pportunity to f ile

a properly am ended bill of exceptions, either by agreeme n t o r b y a g r a nt of the writ of

m andam us previously

f iled by the Gallaghers. 11
BAR N E S A N D J A M E S , J J . , J O I N T H I S O PINION. IRVING, P .J., JOINS THIS OPINION IN PART.

a b ill o f ex cep tio n s u p o n an ap p e al f ro m an o rd e r o f t h e b o a rd , an d th at in case o f h is ref u sal, h e m ay b e co m

p elled to d o so b y m an d a m u s” (citin g R o a ch , 7 8 M iss. at 3 0 3 , 2 9 S o . at 9 3 )).

11 T h e su p rem e co u r

t’s o p in io n s in R eed a n d P o w e l l ex p lain th at a m u n icip al au th o rity p resen ted w ith a b i ll o f ex cep tio n s p o ssesses th e resp o n sib ility to rev iew th e b ill, n o te an y in accu racies, an d th en sig n th e b ill as th e co rrect re c o r d f o r t h e circu it co u rt to rev iew

. S ee P o w ell , 1 5 6 S o . 3 d at 2 5 3 (¶1 2 ); R e ed , 2 3 6 M iss. at 3 4 0 , 1 1 1 S o . 2 d at 2 2 4

. If th e d esig n ated m

u n icip al au th o rity

ref u ses to sig n th e b ill o f e x cep tio n s u p o n an ap p eal o f an o rd er o f t h e m

u n icip al b o ard , th en th e co u r t can co m p el th e o f f icial b y m an d a m

u s. S ee R e ed , 2 3 6 M iss. at 3 3 9 , 1 1 1 S o . 2 d at 2 2 4 ; R o a ch , 7 8 M iss. at 3 0 3 , 2 9 S o . at 9 3

. 2 3