Michael Prendergast v. City of Waveland, Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2013-CA-00555-COA

MICHAEL PRENDERGAST, BRETT LADNER, APPELLANTS/CROSS-
MALCOLM COWAND AND HOWARD PARKER APPELLEES

v.

CITY OF WAVELAND AND THE WAVELAND APPELLEES/CROSS-
CIVIL SERVICE COMMISSION, A APPELLANTS
SUBDIVISION OF THE CITY OF WAVELAND

DATE OF JUDGMENT: 03/04/2013
TRIAL JUDGE: HON. ROGER T. CLARK
COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: RUSSELL S. GILL
ANDREW AUSTIN CLARK
ATTORNEY FOR APPELLEES: GARY MCKAY YARBOROUGH JR.
NATURE OF THE CASE: CIVIL - OTHER
TRIAL COURT DISPOSITION: DISMISSED PETITION FOR WRIT OF
MANDAMUS
DISPOSITION: AFFIRMED - 09/09/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE GRIFFIS, P.J., ROBERTS AND CARLTON, JJ.

ROBERTS, J., FOR THE COURT:

¶1. This is an appeal of the Hancock County Circuit Court’s decision to dismiss a petition

for a writ of mandamus filed by former employees of the City of Waveland, Mississippi. The

Waveland Board of Aldermen (the Board) voted to discharge Michael Prendergast, Brett

Ladner, Malcolm Cowand, and Howard Parker (Appellants1 ) from their employment as

1
We typically avoid generalizations when referring to parties. However, we make
an exception in this case due to the tedious nature of referring to Prendergast, Ladner,
Cowand, and Parker collectively by name.
police officers due to budgetary constraints. They attempted to appeal their discharge to the

Waveland Civil Service Commission (the Commission), which is unique in that it was

created by way of a municipal ordinance. After the Commission failed to respond to

Appellants’ request for prospective hearing dates, they filed a petition for a writ of

mandamus in the circuit court. The City moved to dismiss the petition and filed a

counterclaim for damages under the Mississippi Litigation Accountability Act.

¶2. The circuit court found that Appellants could have appealed the Board’s decision to

the circuit court. Because an adequate remedy had been available to Appellants, the circuit

court dismissed their petition for a writ of mandamus. And although the parties had not

argued the City’s counterclaim during the hearing on its motion to dismiss, the circuit court

dismissed it, as well. On appeal, Appellants claim the circuit court erred when it dismissed

their petition for a writ of mandamus. The City also appeals the circuit court’s decision to

dismiss its counterclaim under the Mississippi Litigation Accountability Act. Finding no

error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶3. On January 4, 2011, the Board met and voted to terminate eleven city employees from

five different departments for budgetary reasons. Appellants were among the terminated

employees. The Board also voted to have the department heads inform the eleven employees

that they had been terminated. The next day, Police Chief James Varnell complied with the

Board’s instructions by sending Appellants each a letter informing them of the Board’s

decision.

¶4. On January 12, 2011, Appellants faxed documents styled “Appeal of Termination”

2
to the Commission. Appellants’ letters stated that they demanded an investigation and

hearing “concerning [their] termination by the Waveland Police Department.” The

Commission did not respond. On February 23, 2011, Appellants sent a letter to the

Commission and requested prospective hearing dates. Again, the Commission did not

respond.

¶5. On April 18, 2011, Prendergast and Ladner filed a petition for a writ of mandamus in

the circuit court. They asked the circuit court to force the Commission to conduct the hearing

they had requested. Less than a month later, Cowand and Parker joined Prendergast and

Ladner’s petition. However, approximately one year later, Appellants filed a joint stipulation

to dismiss their petition for a writ of mandamus.2

¶6. Approximately three months after Appellants dismissed their first petition for a writ

of mandamus, they filed their second petition for a writ of mandamus. Within their second

petition, Appellants again requested that the circuit court force the Commission to address

their appeal. Appellants also claimed that the City had wrongfully terminated them. They

also claimed that by faxing letters to the Commission, they had properly appealed the

Board’s decision to terminate them.

¶7. The City moved to dismiss Appellants’ second petition for a writ of mandamus.

According to the City, Appellants’ second petition was untimely. Additionally, the City

2
Originally, Prendergast and Ladner had retained one attorney, and Cowand and
Parker had retained a different attorney. For reasons that are not discussed in the record,
they either fired their original attorneys or allowed them to withdraw. Afterwards, they all
retained one attorney to represent them. During the hearing on the City’s motion to dismiss,
Appellants’ new attorney said that Appellants dismissed their first petition because they had
not named the City as a defendant, which he considered to be a “procedural defect.”

3
argued that Appellants’ second petition was an improper collateral attack of the Board’s

decision. The City also filed a counterclaim for attorney’s fees and costs under the

Mississippi Litigation Accountability Act.

¶8. On December 6, 2012, the circuit court conducted a hearing on the City’s motion to

dismiss Appellants’ second petition for a writ of mandamus. During the hearing, the City

argued that Waveland City Ordinance 251, which authorized the creation of the Commission,

did not allow appeals to the Commission when a city employee had been terminated for

budgetary reasons. The City also argued that Appellants should have appealed the Board’s

decision directly to the circuit court by filing a bill of exceptions within ten days of the

Board’s decision. According to the City, because Appellants had failed to file a bill of

exceptions, they had failed to properly appeal the Board’s decision. Alternatively, the City

argued that even if Appellants had a right to appeal to the Commission, they had failed to

exhaust their administrative remedies because they had not requested a hearing before the

mayor of Waveland.

¶9. Appellants argued that they had complied with the obligation to request a hearing

before the mayor by verbally asking to talk to him. They also argued that they had not

actually been terminated for budgetary reasons. According to Appellants, the Board’s

rationale was merely Chief Varnell’s pretext to terminate them for their membership in the

“Police Benevolent Association, which is a fraternal order that helps support the police.”

Appellants further argued that “[t]hey were [also] targeted for other reasons.” Finally,

Appellants argued that they properly appealed to the Commission, and it had jurisdiction to

hear their appeal of the Board’s decision.

4
¶10. On March 6, 2013, the circuit court entered an order dismissing Appellants’ second

petition for a writ of mandamus. The circuit court reasoned that Ordinance 251 did not allow

employees terminated for budgetary reasons to seek a hearing before the Commission. The

circuit court went on to hold that Appellants should have filed a bill of exceptions as set forth

by Mississippi Code Annotated section 11-51-75 (Rev. 2002). Because Appellants had an

adequate remedy available to them by appealing the Board’s decision to the circuit court, it

dismissed Appellants’ second petition for a writ of mandamus. Furthermore, although the

circuit court had not conducted a hearing on the City’s counterclaim for damages under the

Mississippi Litigation Accountability Act, the circuit court dismissed the City’s

counterclaim.

ANALYSIS

I. ATTEMPT TO APPEAL TO THE COMMISSION

¶11. Appellants argue that the circuit court erred when it dismissed their second petition

for a writ of mandamus. They claim that the circuit court should have given them an

opportunity to file a bill of exceptions. Appellants also claim that the circuit court erred

when it held that they did not have a right to appeal to the Commission after the Board

terminated their employment for budgetary reasons.

¶12. First and foremost, it is necessary to note that this case does not turn on any

application of Mississippi statutory law. Mississippi Code Annotated section 21-31-1 (Rev.

2007) mandates that certain municipalities must have a civil service commission. Similarly,

Mississippi Code Annotated section 21-31-3 (Rev. 2007) gives qualified municipalities the

authority to adopt a civil service commission. The Commission is unique in that it is not a

5
creature of either statute. Instead, the Commission is the product of Waveland City

Ordinance 251 (“the ordinance”), which was authorized by House Bill 1770 of the 1994

Mississippi legislative session. Consequently, neither the provisions nor the procedures set

forth in the statutes that pertain to civil service commissions apply to this case. During the

hearing on the City’s motion to dismiss, Appellants’ attorney conceded that the ordinance

rather than statutory law applied. And section 10 of the ordinance states that it “shall not be

construed to invoke the provisions of [s]ections 21-31-1 through 21-31-75[,] . . . which deal

with civil service, nor to invoke the law of any court decisions made pursuant thereto.”

¶13. Section 4(1) of the ordinance states that a “covered employee” has the right to appeal

to the Commission under certain circumstances. The circumstance that applies to this case

involves “[d]ischarges . . . but not including layoffs resulting from budgetary decisions,

changes in the scope of public services provided by the city, reductions in force and changes

in technology, where these factors are unrelated to the performance of a particular

employee’s job.” Waveland City Ordinance 251 § 4(1)(a).

¶14. The qualifier in section 4(1)(a) creates the following question: How does a discharged

employee raise an argument that although the Board’s minutes reflect that his discharge was

for budgetary reasons, the Board’s decision was really a pretext to terminate him for factors

related to the performance of his job? We find that under such circumstances, an aggrieved

employee must appeal the Board’s decision through the mechanism set forth in Mississippi

Code Annotated section 11-51-75. The Board’s minutes reflect that Appellants were

discharged for budgetary purposes, and “public boards speak only through their minutes and

their actions are evidenced solely by entries on their minutes.” Lange v. City of Batesville,

6
972 So. 2d 11, 18 (¶9) (Miss. Ct. App. 2008). Section 11-51-75 provides that “[a]ny person

aggrieved by a . . . decision of the board of supervisors, or municipal authorities of a city,

town, or village, may appeal [to the circuit court] . . . .”

¶15. Without reservation, we find it problematic that the Commission simply failed to

respond to Appellants’ attempt to appeal the Board’s decision. Likewise, it is problematic

that the Commission did not respond to Appellants’ request for prospective hearing dates.

The Commission should have addressed the fact that Appellants had filed a clear attempt to

appeal the Board’s decision. And we neither sanction nor condone such blatant disregard of

Appellants’ grievance, regardless of its perceived merit. At a minimum, the Commission

should have addressed the fact that Appellants had attempted to raise an issue before it. Even

so, the issue before us is not whether the Commission erred by ignoring Appellants. The

issue before us is whether the circuit court erred when it dismissed Appellants’ petition for

a writ of mandamus.

¶16. The Mississippi Supreme Court has held that a petitioner must prove the following

essential elements before a writ of mandamus may issue:

(1) the petitioner must be authorized to bring the suit, (2) there must be a clear
right in [the] petitioner to the relief sought, (3) there must exist a legal duty on
the part of the defendant to do the thing which the petitioner seeks to compel,
and (4) there must be no other adequate remedy at law.

Bennett v. Bd. of Sup'rs of Pearl River Cnty., 987 So. 2d 984, 986 (¶6) (Miss. 2008). The

circuit court denied Appellants’ petition for a writ of mandamus because they had another

adequate remedy at law – they could have appealed the Board’s decision to the circuit court

under section 11-51-75. We agree with the circuit court’s reasoning. Precedent also supports

7
the circuit court’s decision. See Bd. of Sup'rs of Rankin Cnty. v. Lee, 147 Miss. 99, 104-05,

113 So. 194, 195 (1927) (Petitioners for a writ of mandamus “had a plain, adequate, and a

reasonably speedy remedy at law . . . by appeal” from a decision by a county board of

supervisors.). The fact that Appellants failed to timely pursue that adequate remedy is of no

moment. See State ex rel. Stanley v. Cook, 66 N.E.2d 207, 218 (Ohio 1946) (One’s failure

to avail himself of a legal remedy in a timely manner does not create an entitlement to “the

extraordinary remedy of mandamus.”).

¶17. Appellants essentially argue that the circuit court should have held that their appeal

to the Commission should be converted to an appeal to the circuit court. To support their

argument, Appellants cite Bowling v. Madison County Board of Supervisors, 724 So. 2d 431

(Miss. Ct. App. 1998). In Bowling, a property owner “filed a complaint ‘in the nature of a

bill of exceptions’” in circuit court after a board of supervisors approved a zoning variance

for other property in the county. Id. at 433 (¶4). The board of supervisors successfully

moved to dismiss the property owner’s complaint because he had failed to timely file a bill

of exceptions. Id. at (¶6). The circuit court reasoned that it had no jurisdiction because the

property owner had failed to appeal and file a bill of exceptions within ten days of the

board’s decision. Id. at (¶7). This Court held that the defects in the property owner’s

“complaint” “were not on the timeliness or on the issues raised, but on the label, ‘complaint’

instead of ‘appeal,’ and on the absence of a bill of exceptions.” Id. at 441 (¶50). We went

on to hold that the defects were “matters of form [that] should be amendable.” Id. at 442

(¶51). Consequently, this Court reversed the circuit court’s judgment and held that the

property owner “must file a bill of exceptions if he wishes to proceed[,] and [he] should

8
promptly prepare and submit one to the county.” Id.

¶18. The events in Bowling are distinguishable from the events in the case presently before

us. Bowling involved mere formal defects in a document that had been filed in the proper

forum. But in this case, we cannot find that an appeal to the Commission is essentially the

equivalent of an appeal to the circuit court. Improper jurisdiction is not merely a formal

defect. Although Appellants eventually filed a petition for a writ of mandamus in the circuit

court, their petition did not request relief that could have been obtained by way of an appeal

of the Board’s decision to the circuit court. They simply requested that the circuit court order

the Commission to conduct a hearing. Because the defects involved in this case are not mere

formalities, we find that Bowling does not apply. There is no merit to this issue.

II. CROSS-APPEAL

¶19. On cross-appeal, the City argues that the circuit court erred when it dismissed its

request for damages under the Mississippi Litigation Accountability Act. The City notes that

it had not scheduled a hearing on its counterclaim, and neither party argued the relative

merits of the counterclaim during the hearing on the City’s motion to dismiss Appellants’

petition for a writ of mandamus. According to the City, this Court should reverse the circuit

court’s judgment dismissing the counterclaim, and remand it for a hearing on the merits.

¶20. The City’s entire argument in its initial brief for this issue is as follows:

[Appellants] did not move to dismiss [the City’s] counterclaim, and it
set no hearing to dismiss those claims. Despite [the fact that . . . Appellants
did] not mov[e] to dismiss or set[] a hearing to dismiss [the City’s] claims as
is required by Mississippi Rules of Civil Procedure 7 and 12, the [circuit c]ourt
dismissed [the City’s] counterclaim without notice or hearing. This dismissal
should be reversed for failure of notice and opportunity to be heard, and for
violation of [the City’s] right of access to the courts.

9
(Footnote omitted). The City cited no authority to support its argument. In its reply brief,

the City distinguished authority cited by Appellants, but it still did not cite any authority to

support its own argument on appeal. Mississippi Rule of Appellate Procedure 28(a)(6)

requires that a brief include “citations to the authorities, statutes, and parts of the record

relied on.” Likewise, Mississippi caselaw has consistently held that the “[f]ailure to cite any

authority is a procedural bar, and [a reviewing court] is under no obligation to consider the

assignment [of error].” Taylor v. Kennedy, 914 So. 2d 1260, 1262 (¶4) (Miss. Ct. App. 2005)

(citation omitted). It follows that the City’s issue on cross-appeal is procedurally barred.

¶21. THE JUDGMENT OF THE HANCOCK COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY
BETWEEN THE PARTIES.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, MAXWELL, FAIR
AND JAMES, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION.

10