IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2013-SA-01755-COA FREDA HOWELL D/B/A LICKITY SPLITZ APPELLANT

v. BOARD OF SUPERVISORS OF JEFFERSON DAVIS COUNTY, MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 08/19/2013 TRIAL JUDGE: HON. ANTHONY ALAN MOZINGO COURT FROM W HICH APPEALED: JEFFERSON DAVIS COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ORVIS A. SHIYOU JR. ATTORNEY FOR APPELLEE: ROBERT E. SANDERS NATURE OF THE CASE: CIVIL - CONTRACT TRIAL COURT DISPOSITION: AFFIRMED THE DECISION OF THE JEFFERSON DAVIS COUNTY BOARD OF SUPERVISORS DISPOSITION: REVERSED AND REMANDED IN PART; REVERSED AND RENDERED IN PART - 04/07/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., CARLTON AND JAMES, JJ. CARLTON, J., FOR THE COURT: ¶1. Freda Howe l l , d oing business as Lickety Splitz, appeals the order of t he Jef f erson Davis Coun t y C ircuit Court deny ing her a p peal f rom the decision of the Jef f e r son Davis County Board of Supervisors (the Board). U p o n r e view, we f ind e rror in the Board’s

c a p r i cious r escission of Howell’s contract herein f or prisoner catering services since t h e rescission was arbitrarily based upon conside r a t ion of m atters outside of the bidspecif

ications. 1 See Preferred Transp. Co. v. Claiborne Cnty. Bd. o f Sup'rs , 32 S o. 3d 549,
554 (¶12) (Miss. C t. App. 2010). Theref ore, we reverse and render a f inding that the Board lacked justif

ic a t i on to rescind H owell’s contract f or prisoner m e als, and we rem and to the trial court to determ ine dam ages. FACTS ¶2. In Decem

ber 2008, the Board requested s ealed bids to p rovide prisoner m e als during
2009. T he bid request specif ied that the Board sought a l ocal caterer or restaurant owner to bring in f ood f or t he prisoners of Covington C ounty , Mississippi. H owell t im ely subm itted

a bid, as did Bassf

i e l d T e x a c o a nd two other bidders. At its January 5, 2009 m eeting, the Board chose Howell as the “prim ary ” bid, and B assf ield Texaco as the “alternate” bid. The catering services were to begin “ im m ediately a nd [ end] January 4, 2010.” We ack n o w led g e th at w h en a c o n tract f

a ils t o sp e cif

y a p articu lar d ate o n w h i ch p e rf o rm an ce th ereu n d er b eg in s , t h en p erf

o rm an c e i s p resu m ed to b eg i n w i th in a reaso n ab le tim e. S ee D en b u ry O n sh o re v. P recisio n Weld in g In c ., 9 8 S o . 3 d 4 4 9 , 4 5 3 (¶1 5 ) (M i ss. 2 0 1 2 )

. ¶3. The Board awarded Howell, doing business as Lickety Splitz, the co n t r a c t a s t h e lowest and b est bid. J ef

f e rson Davis County Sherif f Henry McCullum and two o ther Board

m em bers perf orm ed i nspections of Howell’s f acility in January 2009, prior to perf orm ance of the contract beginning. Af ter the f irst of two inspections, Sherif f M c C u l l u m expressed his concerns to the Board, stating that he observed that Howell possessed no cooking utensils

or o ther evidence of active on-site cooking at her m eal-preparation f acility in Collins. Sherif

f

1 M iss. C o d e A n n . § 3 1 -7 -1 0 5 (R ev . 2 0 1 0 ). S e e a lso M i ss. C o d e A n n . § 3 1 -7 -1 3 (d )(i) (S u p p . 2 0 1 4 ); M iss. C o d e A n n . § 1 9 -2 5 -7 3 (R ev . 2 0 1 2 )

. 2McCullum claim ed to possess experience in f ood p reparation bef

ore becom ing sherif

f , and he provided t h a t h e conducted a s im ilar site inspection at another restaurant w hen he f irst becam e sherif

f

. ¶4. Sherif

f McCullum t estif

ied that Howell inf

orm e d him during the inspection that she prepared f

ood at her house and then brought it to the f acility to put in Sty

r of oam plates f or deliver y . 2 S h e r i f

f McCullum also testif

ied that he f

ound the conditions a t t he f acility too unsanitary

f or f ood preparation. He also stated that he did not believe that Howell’s m ealpreparation f

acility was suf f icient to provide m eals to Jef f erson Davis County

on a regular and reliable basis, in addition to the m eals she was already f urnishing to C ovington County and the Town of

Collins. ¶5. Four day s af

ter a ward of this contract, on January 9, 2009, the Board' s attorney m ailed Howell a letter inf

orm i ng her t hat the Board v oted to rescind the c o ntract it awarded her on January 5, 2009, due t o an unsatisf actory inspection and awarded the contract to t he alternate bidder. T hen, a t the January 20, 2009 Board m eeting, Sherif f M cCullum g ave a n oral report of h is inf orm al inspection, stating t hat h e fe l t t h a t H o w e l l ’ s f

ood-preparation procedures were unsanitary o r that her f

acility f ailed to me e t t he requirem ents f or a com m ercial f

ood establishm ent. The Board m em bers who visited the f

acility and perf

orm ed an inspection also stated their belief that Howell lacked the ability to f u lf ill the contract f

or prisoner m eals. The Board m em

bers a lso expressed co ncern about serving f ood to prisoners that h ad passed

2 H o w e v er, H o w ell d en ied m ak in g su ch a statem e n t to S h erif f M cC u llu m w h en sh e w a s su b seq u en tly p r o v id ed a d u e-p r o cess h earin g a f ter rem an d o f th e case i n H o w ell v. B o a rd o f S u p erviso rs o

f J efferso n D a v is C o u n ty (

H o w ell I) , 7 0 S o . 3 d 1 1 4 8 , 1 1 5 7 (¶3 2 ) (M iss. C t. A p p . 2 0 1 1 ). 3through Howell’s f acilities. Wi t h o ut providing n otice to H owell, t he Board rescinded Howell’s contract just awarded by them o n January 5, 2009, to provide prisoner m e als. The Board then awarded the contract to Bassf ield Texaco, the alternate bidder. ¶6. On January 20, 2009, Howell f i led a notice of a

p peal in the trial court, appealing the Board' s decision to use the alternate bidder. The t rial court entered an order f inding that the Board’s m inutes f

rom the January

5 and 20, 2009 m eetings were insuf f icient, and issued a

rem and order instructing the Board to am end its m inutes to include the d ollar a m ount of Howell’s a nd Bassf

ield T exaco' s bids and include either a report o r af f i davits b y the sherif

f and Board m e m

b e rs who inspected Howe ll’s f acility

. On January 19, 2 010, the Board m et and am ended its January 5 and 20, 2009 m inutes to include the inf orm a t ion requested by the trial court. ¶7. O n February 8 , 2010, Howell f iled a s econd notice of appeal taking is s u e w i t h t h e Board' s decision t o r escind its award of the bid to H owell and the Board' s am endm ents o f its January 5 and January 2 0, 2 009 m inutes. The trial court accepted Howell' s second notice of appeal as tim ely

and issued a f

inal ruling on April 5, 2010, af f irm ing “both (1) the Board' s January 20, 2009 d e cision to the use the alternate b idder under Mississippi Code Annotated section 31-7-13(f

) and (2) its January 19, 2010 am e ndm e nts of the January 2010 m inutes.” Howell v. Bd. of S

up'rs of Jefferson Davis Cnty

. ( Howell I) , 70 So. 3d 1 148, 1152 (¶10) (Miss. Ct. App. 2011). ¶8. Howell appealed the trial c ourt’s d e c i s ion, and this Court held t hat as “the prim ary bidder, Howell h ad a v ested p roperty interest entitled to d ue-process protection.” Id

. at 1151

4(¶2). As a result, in Howell I , this Court r e v e r s e d t h e j udgm ent of the t rial court af ter determ ining t h a t t h e trial court “erroneously relied on p rovisions i n Mississippi Code Annotated section 31-7-13

. . . to justif y depriving Howell of this interest without notice and

a h earing.” Id

. at 1156-57 (¶31). In Howell I , this C ourt then rem a nded the case to the trial

court. 3 Id

. at 1157 (¶32). Upon rem and, the trial court rem anded to the Board and ordered that the B oard provide H owell a due-process hearing. I d

. at 1 156-57 (¶31). The B oard then held Howell’s due-process hearing on Decem ber 5, 2011. U pon conclusion of the hearing, the Board went into an executive s ession 4 and f ound its earlier decision to rescind Howell’s

contract t o be justif

ied and a warded Howell $20 in n om inal actual dam ages f o r the absence of a due-process hearing in January 2009

. We n ow t urn to review the evidence f rom that due-process hearing. ¶9. A t t h e D e c e mber 5, 2 011 due-process hearing, t he Board heard testim on y f r o m Howell, a s well as her daughter, Michelle Howell, who was Howell’s em ploy ee. The Board also heard testim ony f

r om Sherif

f McCullum

. Michelle testif ied th at L ickety Splitz

3 In H o w ell I , H o w ell ask ed th is C o u r t t o r e v erse an d ren d er an d aw ard h er co n tractu al d a m ag es a n d co n seq u en tial co sts a n d f ees; h o w ev e r , th is C o u rt f o u n d “an y aw ard o f d am ag es in a

p p ro p riate at th is stag e.” H o w ell I , 7 0 S o . 3 d at 1 1 5 7 (¶3 2 ).

4 In settin g f

o rth th e f actu al ch ro n o lo g y o f th is case, w e a ck n o w led g e th at th e B o a rd w e n t in to ex ecu t iv e sessio n . T h is ack n o w led g m en t, h o w ev er, in d icates n o c o m m en t o n th e p ro p riety o f s u c h e x e c u tiv e sessio n , a n d n o i ssu e w as raised o n ap p eal co n cern in g th e M ississip p i O p en M e etin g s A ct. S ee M iss C o d e A n n . § 2 5 -4 1 -1 (R ev . 2 0 1 0 ) (estab lish i n g o p en -m e etin g s req u irem e n ts f o r p u b lic b o a rd s a n d p u b lic m eetin g s); M i ss. C o d e A n n . § 2 5 -4 1 -7 (R ev . 2010) ( e s tab lish in g ex em p tio n s f ro m o p en -m eetin g s req u irem en ts an d settin g f o rth w h a t a p u b l ic b o d y m ay ad d ress in ex e cu tiv e sessio n ); M iss. A tt' y G en . O p ., 2 0 0 2

- 0 3 4 2 , 2 0 0 2 WL 1 8 3 3 2 8 1 , N o w a k (Ju ly 1 0 , 2 0 0 2 ) ( o p in in g th at c o n tract n eg o tiatio n s are n o t ex em p t f ro m o p en -m eetin g s req u irem en ts). 5previously

received m ainly

“A” grades f

rom the Health Departm ent, with t he exception of

one “B.” Michelle explained that Lickety Splitz received the “B” grade f or one y ear because the privilege l i c e n s e w a s p laced on the shelf instead of hanging o n the wall, as required. Michelle also testif

ied that she never c ooked m e a l s a t a residence to bring t o the m ealpreparing f

acility , as alleged by

Sherif f McCullum

. ¶10. Howell also provided testim ony about the e v e n t s o n t he day t he sherif f cam e to the

m eal-preparation f

acility to perf

orm an inspection, and contrary to Sherif f McCullum ’s claim s, she d enied his assertion that she possessed f ood in her car to deliver t o custom ers that she prepared elsewhere. The m inutes f rom the due-process hearing ref le c t H owell’s testim o ny that
f or the y e ar 2009, she had the contract f or inm ate m e als at the Collins c ity jail, t h e C o v i n g ton C ounty jail, and the Jef f erson Davis County jail. She

. . . “believed” she had the f

acilities and personnel to handle all three contracts, but that if it d eveloped t h a t she did not, she w ould hire additional help and purchase additional equipm ent. ¶11. At this hearing, S herif f McCullum stated that when he w ent t o inspect L ickety Splitz’s

m eal-preparation f

acility , he observed a “regular” ref rigerator a nd o ven inside of t he f acility , rather than a com m e rcial ref rigerator or oven. S herif

f M cCullum stated that he saw no f ood

or cooking u tensils at the f acility

. Sherif

f M cCullum again described his im pressions and observations of the f

a cility resulting f

rom his i n s p e c t i on. Sherif f McCullum opined that based on his inspection, he was not conf ident that Lickety S plitz c ould provide m eals to the Jef f erson Davis C ounty inm ates on a regular basis. Sherif f M cCullum claim e d he possessed prior com m ercial r e staurant e xperience, testif y ing that he owned a restaurant f or several

6y ears, as well as a grocery store with a deli.

¶12. The m inutes f

rom the due-process hearing f urther ref l ect that Sherif

f McCullum also provided testim ony about his experience with Bassf ield Texaco, explaining that he had eaten there of

ten prior to January 2009, and that t h e r estaurant at Bassf ield T exaco serves m eals seven day s a week. He test i f i ed that he was c o n f i d ent at the tim e that Bassf ield Texaco could reliably provide i nm at e m eals seven day s a w eek f or the duration of the 2009 cont r a c t

. H e also testif ied that af ter the alternate bid of B assf ield T exaco was used f

o r t he 2009 contract, he inspe c t e d t h e kitchen at Bassf ield Texaco e ven though h e had eaten there of

t en bef o re the award. H e testif

ied that Bassf

ield T e x a c o h a d com m ercial stoves, a walk-in cooler, and all the necess ities of a working com m ercial f

ood preparation f

acility

. ¶13. In its executive session, the Board then f ound its earlier decision to rescind Howell’s

c o n t r a ct justif

i ed, and f urther f ound Howell entitled to no award of dam a g es. The Boar d awarded Howell $20 in nom inal actual dam ages f or the absence of a due-process hearing in January 2009. ¶14. Af ter the hearing and the Boar d ’ s e x e c u t i v e s e s s i o n, the Board entered an order
f inding that it was “f

u lly justif ied in its prior action o f January 20, 2009, at which tim e the Board previously r escinded t he award of the contract to Howell f or i nm ate m eals f

o r the 2009 calendar y ear a n d awarded the contract to the alternate bidder.” The Board explained that it f ound Sherif

f McCullum ’s testim ony credib l e , and the Board c oncluded that Howell’s

m eal-preparation f

a cility was “ not sanitary enough f or the preparation o f i nm a t e m e als.” The Board f urther s tated that Howell “was not f orthcom ing in all respects,” citing as an exam ple h e r r ef u sal to provide her incom e-tax returns so that t he Board could see the a mo u n t o f business expenses s he reported in association with inm ate m e als prepared f or other jails. The

7record shows that to determ ine dam ages, Howell requested a prisoner m eal count f or 2009 and inf o rm ation related thereto. However, the county ref used to provide inf

orm ation as to how m any m eals had been p r ovided during that tim e because the county sought H owell’s tax
returns as a quid pro quo. T he Board f o und that Howell’s “unwillingness to be candid about her expenses caused the B oard concern about w hether she was f ully candid in the testim ony she did give.” As stated, the record ref lects that the coun t y w a n t e d inf o rm ation about Howell’s p rof

i t and t ax-return i nf

orm ation bef

ore it would provide her t he prisoner’s m ealcount inf orm ation. ¶15. H o w ell again f

iled an appeal in t he trial court, which the trial court d e n i e d

. O n Septem ber 27, 2013, Howell then f iled this appeal in this C o u r t claim ing error in the trial
court’s August 26, 2013 order and decision deny ing her appeal to that court f rom the actions and decisions of the Board. Bef ore this Court, Howell asserts the f ollowing assignm ents of

error: (1) t he t r ial court abused its discretion in rem anding t he m atter to the Board rather than deciding the issues at a hearing; (2) the Board im properly considered m atters outside of the bid specif ication; and (3) the Board’s actions were arbitrary and capricious.
STANDARD OF REVIEW ¶16. The standard o f review of an order of a board of supervisors i s well established. An adm inistrative agency ' s conclusions will rem ain undisturbed unless the agency ' s order is: (1) unsupported by substantial evidence , ( 2) a rbitrary or capricious, (3) bey ond the scope or
power granted t o the a gency , or (4) in violation of the em ploy ee' s statutory or constitutional rights. Miss. Dep't of Emp't Sec. v. Good Samaritan Pers. Servs ., 9 96 So. 2d 809, 812 (¶6)

8(Miss. Ct. App. 2008). This Court will conduct a de novo review of q uestions of law. A&

F Props. v. Madison Cnty. Bd. of Sup’rs , 933 So. 2d 296, 299-300 (¶6) (Miss. 2006).
DISCUSSION ¶17. As acknowledged, thi s c a s e i s a g a in bef ore this C ourt. I n Howell I , we previously
f ound the trial court erred in apply ing section 31-7-13(f ) to af f irm the Board’s term ination of H owell’s contract without providing Howell with notice and a hearing. Howell I , 70 So. 3d at 1 156 (¶30). 5 In Howell I , we explained specif

i cally t hat we passed n o judgm ent on the substance of the Board’s decision to stop using Howell’s contracted services. Id

. Due to the violation of Howell’s constitutional right to due process f o r lack of notice and hearing, we reversed the t rial court’s judgm e nt that af f irm ed the Board’s decision to e n d Howell’s

contract. Id . at 1157 (¶31). ¶18. W e also rem anded the c ase to the trial court t o provide Howell w ith p roceedings that af f ord her procedural due process. Id

. W e f urther explained that the rem and was to provide Howell “ the opportunity to def end against the Board' s claim s that it justif i ably stopped using her m eal service—as well a s com ply with s ection 31-7-13.” Id

. W e denied Howell’s request f or dam ages because s u ch request was prem ature, since the Board had not provided Howell with a due-process hearing. Id

. at (¶32). W i thout such, n o determ ination could be m ade as

5 “H o w ell a rg u e s th e B o ard ' s actio n s w ere illeg a l f o r sev eral reaso n s. A lth o u g h w e ad d ress h e r arg u m en ts b elo w , o u r tw o m ain co n cern s are (1 ) th e tim i n g o f th e tw o n o tices o f ap p eal a n d (2 ) th e B o ard ' s f ailu re to n o tif

y H o w e ll o f th e Jan u ary 2 0 , 2 0 0 9 m eetin g w h ere it d e cid ed to u se th e altern ate b id d er.” Id . at 1 1 5 6 (¶2 8 ). 9to whether the B o a r d p o s s e ssed justif ication to term inate her p risoner-m eal contract. Id

. 6 ¶19. The procedural history h e rein ref lects that upon o ur rem and to t he trial court, the trial

court in t urn rem a nded the case t o the Board, w i th i nst r u c t i o ns to p rovide Howell a dueprocess h e a r i ng. 7 The record of that Board hearing is now bef ore us. 8 In considering Howell’s assignm ents of error, we now review the record of the due-process hearing and the Board’s related decision, and its justif ication to rescind Howell’s contract. 9 ¶20. Since the bid specif i cations control the item s appropriate f or the B oard to consider in accepting bids, w e now turn to a review of these bid requirem ents. The record ref lects that the advertisem ent by the county f or bids provided the f

o llowing specif

ications: Notice is hereby given that the Board of Supervisors of J e f f erson Davis County , Mississippi, will receive sealed bids

. . . f or the sale to and f

urnishing to the County a t large and the separate road districts t h e r eof f or the calendar y ear of 2009 the f

ollowing:

. . . . Maintenance and operation o f county of f i c e s , jail f

acilities, equipm ent, buildings, a

n d g r o u n d s including prisoner meals and pest control of

Jef f erson Davis County

.

6 S ee M iss. C o d e A n n . § 3 1 -7 -1 3 (d )(i) (b id r eq u irem en ts an d b id p ro ced u res p ro v id in g n o g o v ern in g au th o rity sh all accep t a b id b ased o n item s n o t i n clu d e d in th e sp ecif icatio n s).

7 In H o w ell I , H o w ell ask ed th i s C o u rt to r ev erse an d ren d er an d aw ard h er co n tract d am ag es an d co n seq u en t ial co sts an d f ees; h o w e v er, th is C o u r t f o u n d “an y aw ard o f d am ag es in ap p ro p riate at th is stag e.” H o w ell I , 7 0 S o . 3 d at 1 1 5 7 (¶3 2 ).

8 S e e M iss. C o d e A n n . § 3 1 -7 -1 3 (d )(i); see a lso M iss. A t t' y G en . O p ., 2 0 0 3 -0 4 2 0 , 2 0 0 3 WL 2 2 1 3 9 8 2 1 , M

o o re (A u g . 1 5 , 2 0 0 3 ) (If accep tan c e o f b id is rev o k ed , t h e B o a rd m u st “sp read o n th e m i n u tes th e d etails as to w h y it d id n o t accep t th e lo w est b id .”).

9 S ee M iss. C o d e A n n . § 3 1 -7 -1 3 (d )(i). 1 0Specif i cations on m a terials a n d item s, where applicable, shall be equal or better than s tate bid s pecif ications, and the B oard shall purchas e u n d e r state contract prices or less, unless reasonably unavailable. Bids, which do not c ontain a certif i cation and where such bids do e xceed state contract prices, will not be considered. (Em phasis added). ¶21. The recor d s h o w s t h a t H o w e l l ’ s r esponsive bid included the bid price, and also provided: The f ollowing bid is f

or the f eeding of the inm a t e s f

or [ Jef f erson] Davis County Jail. The bid is ba s e d o n the advertisem ent f or bids. Meals will be delivered at tim es set by the sherif f ’s departm ent. Lickity S plitz is certif ied by the State of Mississippi Departm ent of Health and has general liability insurance[ ; ] a copy of all cert i f i c a t es will be p rovided upon request of the Board. ¶22. Our r eview of the record shows that the Board’s order accepting Howell’s bid states: W h ereas, at the tim e, place, and date f ixed f or receiving said bids, the Board opened and considered all bids subm itted, and now f i nds and d eterm ines t hat the bids f or t he respective contracts and supplies a nd services listed are either (a) at or lower than net state bi d p r i c e s u n d er state contracts, or ( b) are not subject to s tate bi d p r ices under state contracts, and are the lowest, best, and m ost responsible bids subm itted theref ore, due consi d e r a t i o n b e i n g g i v e n to the quality and specif

ications of

the item s herein accepted. The Board then accepted Howell’s bid f or prisoner m eals, providing in its order:
It is f urther ordered that the bids listed above be, and they hereby are approved and accepted f

or the item s, s e r v ices, and supplies listed therein and at the prices listed o n said bids and that c o n t racts be and the sam e hereby are awarde d to the successf

u l bidders f

or the period provided therein and not inconsistent with law , but not exclusively , the bidders consenting that in the event of n ecessity of p ublic convenience, products, m aterials, and supplies of identical or better quality m ay be purchased u nder state bid contracts, a n d it is f urther ordered that t he duly authorized agent o f the B o ard of Supervisors be and i s h ereby a

uthorized to place orders upon said contracts f o r the calend a r

1 1y ear 2009, and the purchases under the statutory lim its m ay be purchased a t not

m ore than the public price as authorized b y l a w, and that all purchases and procedures f

or purchase c om

ply w ith all applic a b l e laws of t he State of Mississippi. ¶23. W e now turn t o apply the relevant law t o the evidence f r om the due-process hearing held upon rem and, and the Board’s decision upon conclusion of that hearing. A review of the af orem entioned bid advertisem ent, bid order, and Howell’s bid ref lects t hat Howell’s bid

m et t h e a d v e r t i sed specif ications. The r ecord ref

lects that she possessed g eneral liability insurance, was certif

ied by the State of Mississippi Departm ent of Health, and possessed the required certif

icates. The r ecord r ef

lects that t he Board rescinded the award of the contract
to Howell despite her com pliance with bid requirem ents and certif ications and without any showing that she f

a iled to com

ply with the published b id requirem ents or term s of her bid. Moreover, as set f

orth in Howell I

, the Board rescinded Howell’s contract without notice or hearing, notif

y ing her by

letter only

f our day s af

ter awarding her the contract. ¶24. The r ecord r ef

lects that t he Board ba s e d i t s d e c i s i o n t o rescind Howell’s contract largely o n testim ony f

r o m Sherif

f McCullum

. W e acknowledge that M ississippi Code Annotated section 1 9-25-71 (Rev. 2012) i ndeed recognizes t he authority of a c ounty sherif f

as a county jailer. As such, he possessed authority to serve as adm inistrator of t he jail and

ensure t h at services w ere properly provided t o the jail. W e previously recognized such authority in Howell I

. A ny such inspection relied upon to rescind a contract, however, m ust apply the standards required b y the bid specif ications—and not som e arbitrary , subjective standard not contained in the bid specif ications. S

ee M iss. Code Ann. § 31-7-13(d)(i). ¶25. In reviewing the standards or crite r i a r e l i e d u p o n b y S h e rif f McCullum , we also

1 2recognize that the bid specif i cation allowed local c aterers or r estaurants to bid, and section
19-25-73 allows l ocal caterers or restaurants to p r o v i d e f o o d to prisoners. A hospital also
possesses authority to c ontract to provide such m eal services if f ound to be a caterer. 10 The Legislature i ntended to p r ovide reason a b l e a l ternatives f

or f eeding p risoners i n the m ost costef f ective m anner. 11 Sherif

f McCullum ’s c o m

plaints that H owell lacked walk-in f reezers,

com m ercial-grade ref

rigerators, or a com m e r cial-grade oven p ertain to m atters n ot required by the bid specif

i cations or by

Howell’s contract. ¶26. T h e r e c ord of t he hearing ref lects that the B o ard acted arbi t r a r i l y a n d b a s e d i t s d e cision upon the testim ony of Sherif f McCullum , as o pposed to the bid specif icatio n s herein. Nothing in the record bef ore the Board ref

lects t hat Sherif

f McCullum utilized, or knew, t he applicable state inspection standar ds and licensing standards established by the
State D epartm ent o f Health, and no evid e n c e i n t he record or transcript of the hearing disputed that Howell possessed the required certif ication, i nsurance, and licensure. The right

to inspect is prem ised upon reasonableness in place, tim e, and m anner, and l ocal caterers are authorized by

statute to provide these services. See Howell I , 70 So. 3d at 1155 n.1; Miss. Code Ann. § 19-25-73(1); Miss. Att' y Gen. O p . , 9 3

- 0 1 66, 1993 W L 669226, D yson (Mar. 17, 1993). The record ref

lects that Sherif

f McCullum testif

ied that he believed Howell could

not perf orm the services r e q u i r e d b y t h e contract. However, the record shows that his inspection occurred t he d a y a f t e r t he award and bef

ore perf o rm ance of the contract had

10 M i ss. A tt' y

G en . O p . , 9 3 -0 9 6 4 , 1 9 9 4 WL 6 8 4 6 1 , B a rry ( F eb . 2 4 , 1 9 9 4 )

. 11 M i ss. A tt' y

G en . O p . , 1 9 8 9 WL 5 0 4 4 6 9 , D o b b s (M ay 2 2 , 1 9 8 9 )

. 1 3begun, even though no issue or problem with p erf orm ance had o ccurred. The record of the hearing also ref

l e c t s e v i d e n c e o f h e r s u c c e s s fu l perf orm ance of sim ilar m eal-service contracts
to a nother county and another m unicipality

. Sherif

f McCu llum ’s t estim ony was based on

m atters o u t s ide of the bid specif ications, h is own subjective criteria, and theref ore lacked credible basis upon which the Board could base its decision. ¶27. In f

inding its prior decision t o rescind the contract j u s t i f i e d , t h e B o a r d included consideration o f H owell’s ref usal to provide the Board with her tax retur ns. Howell had requested that the Board p rovide her with a m eal count to determ ine the num ber of m eals that she w ould have provided under the contract i n 2009 t o determ ine her claim f or dam ages. However, the Board n o t only ref u sed to provide the requested m eal count due to Howell’s ref usal to provide h er tax returns, but also considered this m atter in justif y ing its prior decision. In sum m ary , the Board determ ined Howell’s testim ony about her ability t o perf orm under the contract l acked credibility b ecause she ref used to p r o v i d e h e r tax returns to the Board. ¶28. The e vidence p rovided at the due-process hearing held u pon rem and shows no dispute

as to Howell’s c ertif

icates and rating b y the health departm ent or any dispute as to the evidence p resented showing her satisf actory perf

o rm ance of other prison c atering contracts in the Cov i n g t o n C o unty prison and Collins j ail. The record f urther ref l ects that Howell testif i ed that she c ould hire a dditional personne l a n d purchase additional equipm ent in the

event suc h w a s n e e d e d to f u lf i ll the contract. In addition t o the testim ony of Howell and Michelle, H o w e l l p r o v ided the Board with letters f rom the c hief of the Collins Police Departm ent and the chief d eputy o f the Covington County Sherif f ’s Departm ent a ttesting to 1 4her good contract perf orm ance f

or prisoner m eals f

or their jails. ¶29. H o well claim s that the evidence p resented at t he due-process hearing on Decem ber 5, 2011, p r o v e s t h a t s h e i s w ell qualif ied to provide m e als t o t he prison, a nd also that the Board’s decision was arbitrary

. S he f urther a sserts that t he trial court should have c onducted its own hearing, rather than rem anding the m atter back to the Board f or a hearing. Howell cites to City of

Durant and claim s that the trial court w as supposed “to render [ the] j udgm ent which [ the Board] o ught to have rendered.” C ity of D urant v. Laws Constr. Co., 721 So. 2d 598, 600 (¶4) (Miss. 1998). ¶30. Howell also argues that the Board f ailed to properly consider dam a ges s he sustained

as a result of the revocation o f her contract, and a s a result, the Board rendered an unf ounded

a n d a rbitrary am ount o f nom inal dam ages in the am ount of $20. As discussed, the rec o r d shows that Howell a nd her c ounsel reque s t ed f rom the Board the m eals-per-day count f or 2009, which Howell needed to determ ine lost-prof it dam ages, but the Board ref used to disclose the inf

orm a tion. The record shows that the Board claim ed ref usal to disclose was proper because no public-record request was m ade and because Howell ref used to provide her tax returns f

or the Board to review. The B oard’s attorney also p rovided that t he Board’s ref usal t o disclose the g ross m eal count to Howell was b e c ause the Board determ ined the
reque s ted inf

o rm ation to be irrelevant or not probative. Howell alternately a r gues that the inf orm ation constituted a public record and w as relevant and probative, since this Court had d i r e c ted that, on rem and, she c ould p resent evidence o f dam ages. Regarding d am ag e s , Michelle testif

ied at the due-process hearing t hat she could provi d e a lost-prof it-dam age

am oun t if she was provided the m eals-per-day count f or 2009. W e now turn t o address 1 5Howell’s claim s o f e r r o r i n the t rial court’s rem and t o the Board f or Howell’s p rocedural hearing, the Board’s decision, and the determ ination of dam ages. ¶31. A review o f H

owell I ref

lects that this Court reversed and rem anded to the t rial court. The tria l c o u r t t h e n r em anded to the Board to provide Howell with a due-process hearing and “the opportunity to def end against the B oard' s claim s that it j ustif iably s topped using her

m eal service—as well a s com ply with section 31-7-13.” H owell I , 70 So. 3d at 1157 (¶31).
Af ter such hearing, the Board was also required to decide whether or n ot the prior rescission

was justif ied. W e f ind t he trial court properly rem anded to the Board t o provide Howell with

a due-p r o c e s s h earing and consider evidence presented therein t o determ ine if its prior contract rescission was justif ied. Additionally , af

ter such hearing upon rem and, the Board

was required to “sp read o n th e m in u tes t h e d e t a ils” an d reaso n f o r rej ectin g th e p rim ary b id d e r. M iss. A tt' y G en . O p , 2 0 0 3 -0 4 2 0 , 2 0 0 3 WL 2 2 1 3 9 8 2 1 , M o o re (A u g . 1 5 , 2 0 0 3 ); see Miss. C ode Ann. § 11-51-75 (Rev. 2012 )

. A s u p p l e m entation of the f a c tual basis of the Board’s justif

i ca t i o n a f ter t he hearing was required to a llow f or j udicial review of the Board’s decision. Such f

actual supplem entation of t he record w as required f or rescission of the contract, and to com

ply with statute. 12 “A [ trial] court, sitting as an appell a t e court, enjoy s the sam e autho r i t y t o rem and a case to an inf e r ior body f

or record supplem entation

or a f a ctual determ ination w hile at the sam e tim e retaining jurisdiction over both t he parties

as w ell as the subject m atter.” City of Biloxi v
. Hilbert , 597 So. 2d 1276, 1279 (Miss. 1992);

see also Miss. Code Ann. § 11-51-75. Here, t he t rial court retained jurisdiction upon rem and

12 S ee M iss. C o d e A n n . § 3 1 -7 -1 3 (d )(i). 1 6and upon supplem entation of the record by the Board. Once t he B oard provided Howell with

the required notice, due-process h earing, and its d e c i s i o n i n the Board’s m inutes, the trial

court s hould have then exercised its continuing jurisdiction to d eterm ine the rem aining issues. Id

. 13 As a result, w e f ind that t he trial court erred in allowing the Board to determ ine the i ssue of dam ages. H owever, we f ind n o error in the t rial court’s rem and t o the Board f or Howell’s due-process h e ar i n g and supplem entation o f the record with the evidence and

m inutes theref

rom providing t he f

actual basis f

or the Board’s decision. Upon appeal to the trial court f

rom the Board af

ter the hearing, the t rial court then sat as an appellate court to determ ine if t h e evidence in the record bef or e t h e Board supported the Board’s f actual justif i cation f o r rescinding Howell’s contract. See W ilkinson Cnty. Bd. o

f Sup’rs v. Quality
Farms Inc. , 767 So. 2d 1007, 1014 (¶24) (Miss. 2000) (The suprem e c ourt held that an “order

r e m anding t he case to the city c ouncil ‘was not i ntended to constitute a f inal j u d g me n t
contem plated by [ section] 11-51-75.’”); see also Good S amaritan P ers. Servs

. , 996 So. 2d at 812 (¶6); URCCC 5.03 (scope of appeals f rom adm inistrative agencies). ¶32. As acknowledged, a f ter rem and and af

ter the due-process hearing and ruling f rom the Board, Ho w e l l again appealed to the trial court. In i ts August 19, 2013 opinion, the trial

court held that substantial evidence existed to support t he Board’s decision. T he t rial court f ound that reasonable m inds could debate which testim ony —that o f [ Sherif

f ] McCullum or Howell—is m ore persuasive. The Board apparently f ound McCullum

the m ore com

pelling witness. This decisio n o f w itness credibility , because i t is f airly debatable, is bey ond the court’s review.

13 S ee M iss. C o d e A n n . § 3 1 -7 -1 3 (d )(i). 1 7However, a review of the record s h o w s t h a t t he testim ony of S herif f M cCullum lacked a credible basis, rely i ng instead on his subjective criteria, a nd rested upon m atters outside the bid specif ications. See Miss. Code Ann. § 31-7-13(d)(i). Thus, the decisions of the Board and the trial court were n o t s u pported by substantial credible e vidence, but instead were arbitrary and capricious. 14 ¶33. Regarding the separate issue o f d a ma g e s , d u r i ng its executive session, the Board
f ound that “Howell did not put on any p r o o f o f any actual dam ages associated with the
Boa r d ’ s d e l a y in providing her with a due[ -]process h earing alone,” and awarded Howell

nom inal dam ages in the a m o unt of $20. However, upon rem and t o the Board, the trial court retained jurisdiction o ver the determ ination of the i ssue of whether any dam ages were due

to Howell, and the issue of determ ining whether the justif ication provided by the Board f or rescinding Howell’s contract set f orth suf f icient f actual justif

ication in com

pliance with

statute. See Miss. Code Ann. § 11-51-75; see also Baymeadows LLC v. City of Ridgeland , 131 So. 3d 1156, 1162 (¶25) (Miss. 2014) (suprem e court rem a nded “to the Board either to issue the perm it or p rovide an appropriate f actual basis f

or its denial”). Theref

ore, the trial

court erroneously rem anded the i ssue of dam ages to the Board and utilized an inapplicable standard of review thereto. See City of Biloxi , 597 So. 2d at 1279. ¶34. Af ter reviewing the record, we f ind that the decision of the Board to rescind Howell’s

14 In H o w ell I , t h is C o u rt f

o u n d , af ter rev iew in g th e reco rd , t h at “ [ b ] a s e d o n th e d eterm in atio n b y th e sh erif f an d B o ard m em

b ers w h o v isited [ th e] f

acilities th at H o w ell' s b u sin ess w as u n san itary a n d u n su i tab le f o r co m m ercial f

o o d p rep aratio n , w e can n o t say , h ad th e B o ard p ro v id ed H o w ell w ith a h earin g , it w o u ld h a v e b e en u n j u stif i ed in en d in g th e co n tract.” H

o w ell I , 7 0 S o . 3 d at 1 1 5 7 (¶3 2 ).

1 8contract was arbitrary and not s u pported by substantial credible evidence in t he record. The record r ef lects that, in i ts decision to rescind her c ontract, the Board e rroneously relied upon

m atters not included in t he bid specif ications, Howell’s bid, or the Board’s order awarding the contract to Howell. 15 See Miss. Code Ann. § 31-7-13(d)(i). Accordingly , w e reverse and render a f inding that the B oard’s justif ication f or recision of the contract h erein is arbitrary , f ailed to com

ply with statute, and was not supported by substantial credible evidence. W e also rem and the issue of dam ages f or the Jef f e rson Davis County Circuit Court to d eterm ine. Good Samaritan Pers. Servs ., 996 So. 2d at 812 (¶6). ¶35. T H E J U D G M E N T OF THE CIRCUIT COURT OF JE F F E R S O N D A V I S COUNTY I S R EVERSED AND RE M A N D E D IN PART, AND REVERSED AND RENDERED I N PART. ALL COSTS OF T H I S A PPEAL ARE ASSESSED TO JEFFERSON DAVIS COUNTY. LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, FAIR AND JAMES, JJ., CONCUR. IRVING , P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. MAX WELL, J., DISSENTS WITH SEPARATE WRITTEN OPINION.
MAX WELL, J., DISSENTING: ¶36. In light of Howell I , I d isagree the Board acted arbitrarily and capriciously

. Instead,
f ollowing rem and f

rom this c ourt, the Board did exactly what the m ajority of this c ourt asked it to do. ¶37. In H

owell I , the m ajority s ent this case back to provide Howell “ t h e opportunity to def end against the Board’s claim s that it justif iably sto p p e d u s i n g her m e al service[ .]” Howell v. Bd. of Sup’rs of Jeff erson Davis C

nty. ( Howell I ), 70 So. 3 d 1148, 1157 (¶31)

15 G o o d S a m a r ita n P ers. S

ervs ., 9 9 6 S o . 2 d at 8 1 2 (¶6 ); see a lso U R C C C 5 .0 3

.

1 9(Miss. Ct. App. 2 011). W e did not send it back f or the Board t o reconside r Howell’s bid—because we rightly recognized her b id had b e e n a c c epted and a contract between Howell and the Board had been f orm ed. Id. at 1155-56 (¶¶27-28). So the question was no longer co u ld the Board reject Howell’s bid. I nstead, i t w as could the Board justif iably

term inate Howell’s contract. Id. at 1157 (¶32). ¶38. Nor did we instruct t he B o a r d to lim i t its consideration to the bid s pecif ications. Nowhere in our 2011 decision did we signal that the Board im pr o p e r l y c o n sidered the sherif f ’s and its own m em

bers’ i nput that Howell’s f acility was unsanitary and unsuitable f or

com m ercial f

ood p r eparation. In f

act , t h e v e r y reason the m ajority in that opinion did not declare the B oard’s actions a breach of contract, a s t he dissent would have, was because we f ound the sherif

f ’s a nd B oard m em

bers’ concerns—concerns t hat could not be gleaned f rom the f a ce of Howell’s bid—were valid and possibly justif ied the Board’s recision of Howell’s

contract. See id. ¶39. In other w ords, the problem a m ajority of this c ourt had with the Board’s 2009 decision was not that t he Board considered m atters outside the bid specif ications. The Board had been conf

ronted with valid sanitation and health concerns o ver the f ood it was to provide the prisoners in its care. W e f ound nothing arbitrary or capricious about the B oard’s taking those concerns s eriously

. The problem we f ound was that the Board did n ot give Howell the opportunity to def

end her s elf

. And af terwards, H owell chose not t o c hallenge our very specif ic ruling, so this court’s decision stood. ¶40. Following rem and, the Board provided H owell the opportunity to be h e a r d

. B ut because substantial evidence supported t erm inating t he contract, the Board stay ed with its 2 0original decision. To m e , the Board has done all that was required.

¶41. M y c o n c e r n is that the m ajority now f aults the Board f

o r acting arbitrarily and capriciously when all the Board did was f ollow o ur specif

ic m andate. It does s o by creating

an issue t h a t was not in play on rem and. P ut dif f erently , what today ’s m a

jority opinion actually d o es is reverse our earlier decision in Howell I

. ¶42. And regardless of t he m ajority ’s new justif ications f or reversal, the f

act is, in Howell I , the m ajority o f this c ourt—including the author of today ’s m ajority opinion— did
agree that the Board v alidly considered inf orm ation it learned af

ter H owell’s bid w as selected. In doing s o, the Howell I m ajority rem anded the case f or one specif

ic purpose—a due-process hearing. And the Board com plied with our m andate. ¶43. My view has not changed. I f ind the original assessm ent in H owell I— that we were dealing with a Board’s decision to termi nate a contract based on legitim ate h ealth and welf are concerns, not a B oard’s decision to r eject the lowest bid d e r

— w a s the correct one. I f ind any previous due-process concerns we had in that appeal were adequately addressed by the Board’ s 2011 hearing, which necessarily covered m atters outside the bid specif ications. ¶44. For this reason, I dissent. I would af f irm the lower court’s judgm ent, w hich upheld the Board’s decision.

2 1