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 APPELLEE
DAVIS COUNTY, MISSISSIPPI
DATE OF JUDGMENT: 08/19/2013
TRIAL JUDGE: HON. ANTHONY ALAN MOZINGO
COURT FROM WHICH 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 Howell, doing business as Lickety Splitz, appeals the order of the Jefferson
Davis County Circuit Court denying her appeal from the decision of the Jefferson Davis
County Board of Supervisors (the Board). Upon review, we find error in the Board’s
capricious rescission of Howell’s contract herein for prisoner catering services since the
rescission was arbitrarily based upon consideration of matters outside of the bid
specifications.1 See Preferred Transp. Co. v. Claiborne Cnty. Bd. of Sup'rs, 32 So. 3d 549,
554 (¶12) (Miss. Ct. App. 2010). Therefore, we reverse and render a finding that the Board
lacked justification to rescind Howell’s contract for prisoner meals, and we remand to the
trial court to determine damages.
FACTS
¶2. In December 2008, the Board requested sealed bids to provide prisoner meals during
2009. The bid request specified that the Board sought a local caterer or restaurant owner to
bring in food for the prisoners of Covington County, Mississippi. Howell timely submitted
a bid, as did Bassfield Texaco and two other bidders. At its January 5, 2009 meeting, the
Board chose Howell as the “primary” bid, and Bassfield Texaco as the “alternate” bid. The
catering services were to begin “immediately and [end] January 4, 2010.” We acknowledge
that when a contract fails to specify a particular date on which performance thereunder
begins, then performance is presumed to begin within a reasonable time. See Denbury
Onshore v. Precision Welding Inc., 98 So. 3d 449, 453 (¶15) (Miss. 2012).
¶3. The Board awarded Howell, doing business as Lickety Splitz, the contract as the
lowest and best bid. Jefferson Davis County Sheriff Henry McCullum and two other Board
members performed inspections of Howell’s facility in January 2009, prior to performance
of the contract beginning. After the first of two inspections, Sheriff McCullum expressed
his concerns to the Board, stating that he observed that Howell possessed no cooking utensils
or other evidence of active on-site cooking at her meal-preparation facility in Collins. Sheriff
1
Miss. Code Ann. § 31-7-105 (Rev. 2010). See also Miss. Code Ann. § 31-7-13(d)(i)
(Supp. 2014); Miss. Code Ann. § 19-25-73 (Rev. 2012).
2
McCullum claimed to possess experience in food preparation before becoming sheriff, and
he provided that he conducted a similar site inspection at another restaurant when he first
became sheriff.
¶4. Sheriff McCullum testified that Howell informed him during the inspection that she
prepared food at her house and then brought it to the facility to put in Styrofoam plates for
delivery.2 Sheriff McCullum also testified that he found the conditions at the facility too
unsanitary for food preparation. He also stated that he did not believe that Howell’s meal-
preparation facility was sufficient to provide meals to Jefferson Davis County on a regular
and reliable basis, in addition to the meals she was already furnishing to Covington County
and the Town of Collins.
¶5. Four days after award of this contract, on January 9, 2009, the Board's attorney mailed
Howell a letter informing her that the Board voted to rescind the contract it awarded her on
January 5, 2009, due to an unsatisfactory inspection and awarded the contract to the alternate
bidder. Then, at the January 20, 2009 Board meeting, Sheriff McCullum gave an oral report
of his informal inspection, stating that he felt that Howell’s food-preparation procedures were
unsanitary or that her facility failed to meet the requirements for a commercial food
establishment. The Board members who visited the facility and performed an inspection also
stated their belief that Howell lacked the ability to fulfill the contract for prisoner meals. The
Board members also expressed concern about serving food to prisoners that had passed
2
However, Howell denied making such a statement to Sheriff McCullum when she
was subsequently provided a due-process hearing after remand of the case in Howell v.
Board of Supervisors of Jefferson Davis County (Howell I), 70 So. 3d 1148, 1157 (¶32)
(Miss. Ct. App. 2011).
3
through Howell’s facilities. Without providing notice to Howell, the Board rescinded
Howell’s contract just awarded by them on January 5, 2009, to provide prisoner meals. The
Board then awarded the contract to Bassfield Texaco, the alternate bidder.
¶6. On January 20, 2009, Howell filed a notice of appeal in the trial court, appealing the
Board's decision to use the alternate bidder. The trial court entered an order finding that the
Board’s minutes from the January 5 and 20, 2009 meetings were insufficient, and issued a
remand order instructing the Board to amend its minutes to include the dollar amount of
Howell’s and Bassfield Texaco's bids and include either a report or affidavits by the sheriff
and Board members who inspected Howell’s facility. On January 19, 2010, the Board met
and amended its January 5 and 20, 2009 minutes to include the information requested by the
trial court.
¶7. On February 8, 2010, Howell filed a second notice of appeal taking issue with the
Board's decision to rescind its award of the bid to Howell and the Board's amendments of its
January 5 and January 20, 2009 minutes. The trial court accepted Howell's second notice of
appeal as timely and issued a final ruling on April 5, 2010, affirming “both (1) the Board's
January 20, 2009 decision to the use the alternate bidder under Mississippi Code Annotated
section 31-7-13(f) and (2) its January 19, 2010 amendments of the January 2010 minutes.”
Howell v. Bd. of Sup'rs of Jefferson Davis Cnty. (Howell I), 70 So. 3d 1148, 1152 (¶10)
(Miss. Ct. App. 2011).
¶8. Howell appealed the trial court’s decision, and this Court held that as “the primary
bidder, Howell had a vested property interest entitled to due-process protection.” Id. at 1151
4
(¶2). As a result, in Howell I, this Court reversed the judgment of the trial court after
determining that the trial court “erroneously relied on provisions in Mississippi Code
Annotated section 31-7-13 . . . to justify depriving Howell of this interest without notice and
a hearing.” Id. at 1156-57 (¶31). In Howell I, this Court then remanded the case to the trial
court.3 Id. at 1157 (¶32). Upon remand, the trial court remanded to the Board and ordered
that the Board provide Howell a due-process hearing. Id. at 1156-57 (¶31). The Board then
held Howell’s due-process hearing on December 5, 2011. Upon conclusion of the hearing,
the Board went into an executive session4 and found its earlier decision to rescind Howell’s
contract to be justified and awarded Howell $20 in nominal actual damages for the absence
of a due-process hearing in January 2009. We now turn to review the evidence from that
due-process hearing.
¶9. At the December 5, 2011 due-process hearing, the Board heard testimony from
Howell, as well as her daughter, Michelle Howell, who was Howell’s employee. The Board
also heard testimony from Sheriff McCullum. Michelle testified that Lickety Splitz
3
In Howell I, Howell asked this Court to reverse and render and award her
contractual damages and consequential costs and fees; however, this Court found “any
award of damages inappropriate at this stage.” Howell I, 70 So. 3d at 1157 (¶32).
4
In setting forth the factual chronology of this case, we acknowledge that the Board
went into executive session. This acknowledgment, however, indicates no comment on the
propriety of such executive session, and no issue was raised on appeal concerning the
Mississippi Open Meetings Act. See Miss Code Ann. § 25-41-1 (Rev. 2010) (establishing
open-meetings requirements for public boards and public meetings); Miss. Code Ann. §
25-41-7 (Rev. 2010) (establishing exemptions from open-meetings requirements and setting
forth what a public body may address in executive session); Miss. Att'y Gen. Op., 2002-
0342, 2002 WL 1833281, Nowak (July 10, 2002) (opining that contract negotiations are not
exempt from open-meetings requirements).
5
previously received mainly “A” grades from the Health Department, with the exception of
one “B.” Michelle explained that Lickety Splitz received the “B” grade for one year because
the privilege license was placed on the shelf instead of hanging on the wall, as required.
Michelle also testified that she never cooked meals at a residence to bring to the meal-
preparing facility, as alleged by Sheriff McCullum.
¶10. Howell also provided testimony about the events on the day the sheriff came to the
meal-preparation facility to perform an inspection, and contrary to Sheriff McCullum’s
claims, she denied his assertion that she possessed food in her car to deliver to customers that
she prepared elsewhere. The minutes from the due-process hearing reflect Howell’s
testimony that
for the year 2009, she had the contract for inmate meals at the Collins city jail,
the Covington County jail, and the Jefferson Davis County jail. She . . .
“believed” she had the facilities and personnel to handle all three contracts, but
that if it developed that she did not, she would hire additional help and
purchase additional equipment.
¶11. At this hearing, Sheriff McCullum stated that when he went to inspect Lickety Splitz’s
meal-preparation facility, he observed a “regular” refrigerator and oven inside of the facility,
rather than a commercial refrigerator or oven. Sheriff McCullum stated that he saw no food
or cooking utensils at the facility. Sheriff McCullum again described his impressions and
observations of the facility resulting from his inspection. Sheriff McCullum opined that
based on his inspection, he was not confident that Lickety Splitz could provide meals to the
Jefferson Davis County inmates on a regular basis. Sheriff McCullum claimed he possessed
prior commercial restaurant experience, testifying that he owned a restaurant for several
6
years, as well as a grocery store with a deli.
¶12. The minutes from the due-process hearing further reflect that Sheriff McCullum also
provided testimony about his experience with Bassfield Texaco, explaining that
he had eaten there often prior to January 2009, and that the restaurant at
Bassfield Texaco serves meals seven days a week. He testified that he was
confident at the time that Bassfield Texaco could reliably provide inmate
meals seven days a week for the duration of the 2009 contract. He also
testified that after the alternate bid of Bassfield Texaco was used for the 2009
contract, he inspected the kitchen at Bassfield Texaco even though he had
eaten there often before the award. He testified that Bassfield Texaco had
commercial stoves, a walk-in cooler, and all the necessities of a working
commercial food preparation facility.
¶13. In its executive session, the Board then found its earlier decision to rescind Howell’s
contract justified, and further found Howell entitled to no award of damages. The Board
awarded Howell $20 in nominal actual damages for the absence of a due-process hearing in
January 2009.
¶14. After the hearing and the Board’s executive session, the Board entered an order
finding that it was “fully justified in its prior action of January 20, 2009, at which time the
Board previously rescinded the award of the contract to Howell for inmate meals for the 2009
calendar year and awarded the contract to the alternate bidder.” The Board explained that
it found Sheriff McCullum’s testimony credible, and the Board concluded that Howell’s
meal-preparation facility was “not sanitary enough for the preparation of inmate meals.” The
Board further stated that Howell “was not forthcoming in all respects,” citing as an example
her refusal to provide her income-tax returns so that the Board could see the amount of
business expenses she reported in association with inmate meals prepared for other jails. The
7
record shows that to determine damages, Howell requested a prisoner meal count for 2009
and information related thereto. However, the county refused to provide information as to
how many meals had been provided during that time because the county sought Howell’s tax
returns as a quid pro quo. The Board found that Howell’s “unwillingness to be candid about
her expenses caused the Board concern about whether she was fully candid in the testimony
she did give.” As stated, the record reflects that the county wanted information about
Howell’s profit and tax-return information before it would provide her the prisoner’s meal-
count information.
¶15. Howell again filed an appeal in the trial court, which the trial court denied. On
September 27, 2013, Howell then filed this appeal in this Court claiming error in the trial
court’s August 26, 2013 order and decision denying her appeal to that court from the actions
and decisions of the Board. Before this Court, Howell asserts the following assignments of
error: (1) the trial court abused its discretion in remanding the matter to the Board rather than
deciding the issues at a hearing; (2) the Board improperly considered matters outside of the
bid specification; and (3) the Board’s actions were arbitrary and capricious.
STANDARD OF REVIEW
¶16. The standard of review of an order of a board of supervisors is well established. An
administrative agency's conclusions will remain undisturbed unless the agency's order is: (1)
unsupported by substantial evidence, (2) arbitrary or capricious, (3) beyond the scope or
power granted to the agency, or (4) in violation of the employee's statutory or constitutional
rights. Miss. Dep't of Emp't Sec. v. Good Samaritan Pers. Servs., 996 So. 2d 809, 812 (¶6)
8
(Miss. Ct. App. 2008). This Court will conduct a de novo review of questions 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, this case is again before this Court. In Howell I, we previously
found the trial court erred in applying section 31-7-13(f) to affirm the Board’s termination
of Howell’s contract without providing Howell with notice and a hearing. Howell I, 70 So.
3d at 1156 (¶30).5 In Howell I, we explained specifically that we passed no judgment 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 for lack of notice and hearing, we
reversed the trial court’s judgment that affirmed the Board’s decision to end Howell’s
contract. Id. at 1157 (¶31).
¶18. We also remanded the case to the trial court to provide Howell with proceedings that
afford her procedural due process. Id. We further explained that the remand was to provide
Howell “the opportunity to defend against the Board's claims that it justifiably stopped using
her meal service—as well as comply with section 31-7-13.” Id. We denied Howell’s request
for damages because such request was premature, since the Board had not provided Howell
with a due-process hearing. Id. at (¶32). Without such, no determination could be made as
5
“Howell argues the Board's actions were illegal for several reasons. Although we
address her arguments below, our two main concerns are (1) the timing of the two notices
of appeal and (2) the Board's failure to notify Howell of the January 20, 2009 meeting where
it decided to use the alternate bidder.” Id. at 1156 (¶28).
9
to whether the Board possessed justification to terminate her prisoner-meal contract. Id.6
¶19. The procedural history herein reflects that upon our remand to the trial court, the trial
court in turn remanded the case to the Board, with instructions to provide Howell a due-
process hearing.7 The record of that Board hearing is now before us.8 In considering
Howell’s assignments of error, we now review the record of the due-process hearing and the
Board’s related decision, and its justification to rescind Howell’s contract.9
¶20. Since the bid specifications control the items appropriate for the Board to consider in
accepting bids, we now turn to a review of these bid requirements. The record reflects that
the advertisement by the county for bids provided the following specifications:
Notice is hereby given that the Board of Supervisors of Jefferson Davis
County, Mississippi, will receive sealed bids . . . for the sale to and furnishing
to the County at large and the separate road districts thereof for the calendar
year of 2009 the following:
....
Maintenance and operation of county offices, jail facilities,
equipment, buildings, and grounds including prisoner meals and
pest control of Jefferson Davis County.
6
See Miss. Code Ann. § 31-7-13(d)(i) (bid requirements and bid procedures
providing no governing authority shall accept a bid based on items not included in the
specifications).
7
In Howell I, Howell asked this Court to reverse and render and award her contract
damages and consequential costs and fees; however, this Court found “any award of
damages inappropriate at this stage.” Howell I, 70 So. 3d at 1157 (¶32).
8
See Miss. Code Ann. § 31-7-13(d)(i); see also Miss. Att'y Gen. Op., 2003-0420,
2003 WL 22139821, Moore (Aug. 15, 2003) (If acceptance of bid is revoked, the Board
must “spread on the minutes the details as to why it did not accept the lowest bid.”).
9
See Miss. Code Ann. § 31-7-13(d)(i).
10
Specifications on materials and items, where applicable, shall be equal or
better than state bid specifications, and the Board shall purchase under state
contract prices or less, unless reasonably unavailable.
Bids, which do not contain a certification and where such bids do exceed state
contract prices, will not be considered.
(Emphasis added).
¶21. The record shows that Howell’s responsive bid included the bid price, and also
provided:
The following bid is for the feeding of the inmates for [Jefferson] Davis
County Jail. The bid is based on the advertisement for bids. Meals will be
delivered at times set by the sheriff’s department. Lickity Splitz is certified by
the State of Mississippi Department of Health and has general liability
insurance[;] a copy of all certificates will be provided upon request of the
Board.
¶22. Our review of the record shows that the Board’s order accepting Howell’s bid states:
Whereas, at the time, place, and date fixed for receiving said bids, the Board
opened and considered all bids submitted, and now finds and determines that
the bids for the respective contracts and supplies and services listed are either
(a) at or lower than net state bid prices under state contracts, or (b) are not
subject to state bid prices under state contracts, and are the lowest, best, and
most responsible bids submitted therefore, due consideration being given to the
quality and specifications of the items herein accepted.
The Board then accepted Howell’s bid for prisoner meals, providing in its order:
It is further ordered that the bids listed above be, and they hereby are approved
and accepted for the items, services, and supplies listed therein and at the
prices listed on said bids and that contracts be and the same hereby are
awarded to the successful bidders for the period provided therein and not
inconsistent with law, but not exclusively, the bidders consenting that in the
event of necessity of public convenience, products, materials, and supplies of
identical or better quality may be purchased under state bid contracts, and it is
further ordered that the duly authorized agent of the Board of Supervisors be
and is hereby authorized to place orders upon said contracts for the calendar
11
year 2009, and the purchases under the statutory limits may be purchased at not
more than the public price as authorized by law, and that all purchases and
procedures for purchase comply with all applicable laws of the State of
Mississippi.
¶23. We now turn to apply the relevant law to the evidence from the due-process hearing
held upon remand, and the Board’s decision upon conclusion of that hearing. A review of
the aforementioned bid advertisement, bid order, and Howell’s bid reflects that Howell’s bid
met the advertised specifications. The record reflects that she possessed general liability
insurance, was certified by the State of Mississippi Department of Health, and possessed the
required certificates. The record reflects that the Board rescinded the award of the contract
to Howell despite her compliance with bid requirements and certifications and without any
showing that she failed to comply with the published bid requirements or terms of her bid.
Moreover, as set forth in Howell I, the Board rescinded Howell’s contract without notice or
hearing, notifying her by letter only four days after awarding her the contract.
¶24. The record reflects that the Board based its decision to rescind Howell’s contract
largely on testimony from Sheriff McCullum. We acknowledge that Mississippi Code
Annotated section 19-25-71 (Rev. 2012) indeed recognizes the authority of a county sheriff
as a county jailer. As such, he possessed authority to serve as administrator of the jail and
ensure that services were properly provided to the jail. We previously recognized such
authority in Howell I. Any such inspection relied upon to rescind a contract, however, must
apply the standards required by the bid specifications—and not some arbitrary, subjective
standard not contained in the bid specifications. See Miss. Code Ann. § 31-7-13(d)(i).
¶25. In reviewing the standards or criteria relied upon by Sheriff McCullum, we also
12
recognize that the bid specification allowed local caterers or restaurants to bid, and section
19-25-73 allows local caterers or restaurants to provide food to prisoners. A hospital also
possesses authority to contract to provide such meal services if found to be a caterer.10 The
Legislature intended to provide reasonable alternatives for feeding prisoners in the most cost-
effective manner.11 Sheriff McCullum’s complaints that Howell lacked walk-in freezers,
commercial-grade refrigerators, or a commercial-grade oven pertain to matters not required
by the bid specifications or by Howell’s contract.
¶26. The record of the hearing reflects that the Board acted arbitrarily and based its
decision upon the testimony of Sheriff McCullum, as opposed to the bid specifications
herein. Nothing in the record before the Board reflects that Sheriff McCullum utilized, or
knew, the applicable state inspection standards and licensing standards established by the
State Department of Health, and no evidence in the record or transcript of the hearing
disputed that Howell possessed the required certification, insurance, and licensure. The right
to inspect is premised upon reasonableness in place, time, and manner, and local 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. Op., 93-0166, 1993 WL 669226, Dyson (Mar.
17, 1993). The record reflects that Sheriff McCullum testified that he believed Howell could
not perform the services required by the contract. However, the record shows that his
inspection occurred the day after the award and before performance of the contract had
10
Miss. Att'y Gen. Op., 93-0964, 1994 WL 68461, Barry (Feb. 24, 1994).
11
Miss. Att'y Gen. Op., 1989 WL 504469, Dobbs (May 22, 1989).
13
begun, even though no issue or problem with performance had occurred. The record of the
hearing also reflects evidence of her successful performance of similar meal-service contracts
to another county and another municipality. Sheriff McCullum’s testimony was based on
matters outside of the bid specifications, his own subjective criteria, and therefore lacked
credible basis upon which the Board could base its decision.
¶27. In finding its prior decision to rescind the contract justified, the Board included
consideration of Howell’s refusal to provide the Board with her tax returns. Howell had
requested that the Board provide her with a meal count to determine the number of meals that
she would have provided under the contract in 2009 to determine her claim for damages.
However, the Board not only refused to provide the requested meal count due to Howell’s
refusal to provide her tax returns, but also considered this matter in justifying its prior
decision. In summary, the Board determined Howell’s testimony about her ability to perform
under the contract lacked credibility because she refused to provide her tax returns to the
Board.
¶28. The evidence provided at the due-process hearing held upon remand shows no dispute
as to Howell’s certificates and rating by the health department or any dispute as to the
evidence presented showing her satisfactory performance of other prison catering contracts
in the Covington County prison and Collins jail. The record further reflects that Howell
testified that she could hire additional personnel and purchase additional equipment in the
event such was needed to fulfill the contract. In addition to the testimony of Howell and
Michelle, Howell provided the Board with letters from the chief of the Collins Police
Department and the chief deputy of the Covington County Sheriff’s Department attesting to
14
her good contract performance for prisoner meals for their jails.
¶29. Howell claims that the evidence presented at the due-process hearing on December
5, 2011, proves that she is well qualified to provide meals to the prison, and also that the
Board’s decision was arbitrary. She further asserts that the trial court should have conducted
its own hearing, rather than remanding the matter back to the Board for a hearing. Howell
cites to City of Durant and claims that the trial court was supposed “to render [the] judgment
which [the Board] ought to have rendered.” City of Durant v. Laws Constr. Co., 721 So. 2d
598, 600 (¶4) (Miss. 1998).
¶30. Howell also argues that the Board failed to properly consider damages she sustained
as a result of the revocation of her contract, and as a result, the Board rendered an unfounded
and arbitrary amount of nominal damages in the amount of $20. As discussed, the record
shows that Howell and her counsel requested from the Board the meals-per-day count for
2009, which Howell needed to determine lost-profit damages, but the Board refused to
disclose the information. The record shows that the Board claimed refusal to disclose was
proper because no public-record request was made and because Howell refused to provide
her tax returns for the Board to review. The Board’s attorney also provided that the Board’s
refusal to disclose the gross meal count to Howell was because the Board determined the
requested information to be irrelevant or not probative. Howell alternately argues that the
information constituted a public record and was relevant and probative, since this Court had
directed that, on remand, she could present evidence of damages. Regarding damages,
Michelle testified at the due-process hearing that she could provide a lost-profit-damage
amount if she was provided the meals-per-day count for 2009. We now turn to address
15
Howell’s claims of error in the trial court’s remand to the Board for Howell’s procedural
hearing, the Board’s decision, and the determination of damages.
¶31. A review of Howell I reflects that this Court reversed and remanded to the trial court.
The trial court then remanded to the Board to provide Howell with a due-process hearing
and “the opportunity to defend against the Board's claims that it justifiably stopped using her
meal service—as well as comply with section 31-7-13.” Howell I, 70 So. 3d at 1157 (¶31).
After such hearing, the Board was also required to decide whether or not the prior rescission
was justified. We find the trial court properly remanded to the Board to provide Howell with
a due-process hearing and consider evidence presented therein to determine if its prior
contract rescission was justified. Additionally, after such hearing upon remand, the Board
was required to “spread on the minutes the details” and reason for rejecting the primary
bidder. Miss. Att'y Gen. Op, 2003-0420, 2003 WL 22139821, Moore (Aug. 15, 2003); see
Miss. Code Ann. § 11-51-75 (Rev. 2012). A supplementation of the factual basis of the
Board’s justification after the hearing was required to allow for judicial review of the
Board’s decision. Such factual supplementation of the record was required for rescission of
the contract, and to comply with statute.12 “A [trial] court, sitting as an appellate court,
enjoys the same authority to remand a case to an inferior body for record supplementation
or a factual determination while at the same time retaining jurisdiction over both the parties
as well as the subject matter.” City of Biloxi v. Hilbert, 597 So. 2d 1276, 1279 (Miss. 1992);
see also Miss. Code Ann. § 11-51-75. Here, the trial court retained jurisdiction upon remand
12
See Miss. Code Ann. § 31-7-13(d)(i).
16
and upon supplementation of the record by the Board. Once the Board provided Howell with
the required notice, due-process hearing, and its decision in the Board’s minutes, the trial
court should have then exercised its continuing jurisdiction to determine the remaining
issues. Id.13 As a result, we find that the trial court erred in allowing the Board to determine
the issue of damages. However, we find no error in the trial court’s remand to the Board for
Howell’s due-process hearing and supplementation of the record with the evidence and
minutes therefrom providing the factual basis for the Board’s decision. Upon appeal to the
trial court from the Board after the hearing, the trial court then sat as an appellate court to
determine if the evidence in the record before the Board supported the Board’s factual
justification for rescinding Howell’s contract. See Wilkinson Cnty. Bd. of Sup’rs v. Quality
Farms Inc., 767 So. 2d 1007, 1014 (¶24) (Miss. 2000) (The supreme court held that an “order
remanding the case to the city council ‘was not intended to constitute a final judgment
contemplated by [section] 11-51-75.’”); see also Good Samaritan Pers. Servs., 996 So. 2d
at 812 (¶6); URCCC 5.03 (scope of appeals from administrative agencies).
¶32. As acknowledged, after remand and after the due-process hearing and ruling from the
Board, Howell again appealed to the trial court. In its August 19, 2013 opinion, the trial
court held that substantial evidence existed to support the Board’s decision. The trial court
found that
reasonable minds could debate which testimony—that of [Sheriff] McCullum
or Howell—is more persuasive. The Board apparently found McCullum the
more compelling witness. This decision of witness credibility, because it is
fairly debatable, is beyond the court’s review.
13
See Miss. Code Ann. § 31-7-13(d)(i).
17
However, a review of the record shows that the testimony of Sheriff McCullum lacked a
credible basis, relying instead on his subjective criteria, and rested upon matters outside the
bid specifications. See Miss. Code Ann. § 31-7-13(d)(i). Thus, the decisions of the Board
and the trial court were not supported by substantial credible evidence, but instead were
arbitrary and capricious.14
¶33. Regarding the separate issue of damages, during its executive session, the Board
found that “Howell did not put on any proof of any actual damages associated with the
Board’s delay in providing her with a due[-]process hearing alone,” and awarded Howell
nominal damages in the amount of $20. However, upon remand to the Board, the trial court
retained jurisdiction over the determination of the issue of whether any damages were due
to Howell, and the issue of determining whether the justification provided by the Board for
rescinding Howell’s contract set forth sufficient factual justification in compliance 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) (supreme court remanded “to the Board either to
issue the permit or provide an appropriate factual basis for its denial”). Therefore, the trial
court erroneously remanded the issue of damages to the Board and utilized an inapplicable
standard of review thereto. See City of Biloxi, 597 So. 2d at 1279.
¶34. After reviewing the record, we find that the decision of the Board to rescind Howell’s
14
In Howell I, this Court found, after reviewing the record, that “[b]ased on the
determination by the sheriff and Board members who visited [the] facilities that Howell's
business was unsanitary and unsuitable for commercial food preparation, we cannot say, had
the Board provided Howell with a hearing, it would have been unjustified in ending the
contract.” Howell I, 70 So. 3d at 1157 (¶32).
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contract was arbitrary and not supported by substantial credible evidence in the record. The
record reflects that, in its decision to rescind her contract, the Board erroneously relied upon
matters not included in the bid specifications, Howell’s bid, or the Board’s order awarding
the contract to Howell.15 See Miss. Code Ann. § 31-7-13(d)(i). Accordingly, we reverse and
render a finding that the Board’s justification for recision of the contract herein is arbitrary,
failed to comply with statute, and was not supported by substantial credible evidence. We
also remand the issue of damages for the Jefferson Davis County Circuit Court to determine.
Good Samaritan Pers. Servs., 996 So. 2d at 812 (¶6).
¶35. THE JUDGMENT OF THE CIRCUIT COURT OF JEFFERSON DAVIS
COUNTY IS REVERSED AND REMANDED IN PART, AND REVERSED AND
RENDERED IN PART. ALL COSTS OF THIS APPEAL 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. MAXWELL, J., DISSENTS WITH SEPARATE
WRITTEN OPINION.
MAXWELL, J., DISSENTING:
¶36. In light of Howell I, I disagree the Board acted arbitrarily and capriciously. Instead,
following remand from this court, the Board did exactly what the majority of this court asked
it to do.
¶37. In Howell I, the majority sent this case back to provide Howell “the opportunity to
defend against the Board’s claims that it justifiably stopped using her meal service[.]”
Howell v. Bd. of Sup’rs of Jefferson Davis Cnty. (Howell I), 70 So. 3d 1148, 1157 (¶31)
15
Good Samaritan Pers. Servs., 996 So. 2d at 812 (¶6); see also URCCC 5.03.
19
(Miss. Ct. App. 2011). We did not send it back for the Board to reconsider Howell’s
bid—because we rightly recognized her bid had been accepted and a contract between
Howell and the Board had been formed. Id. at 1155-56 (¶¶27-28). So the question was no
longer could the Board reject Howell’s bid. Instead, it was could the Board justifiably
terminate Howell’s contract. Id. at 1157 (¶32).
¶38. Nor did we instruct the Board to limit its consideration to the bid specifications.
Nowhere in our 2011 decision did we signal that the Board improperly considered the
sheriff’s and its own members’ input that Howell’s facility was unsanitary and unsuitable for
commercial food preparation. In fact, the very reason the majority in that opinion did not
declare the Board’s actions a breach of contract, as the dissent would have, was because we
found the sheriff’s and Board members’ concerns—concerns that could not be gleaned from
the face of Howell’s bid—were valid and possibly justified the Board’s recision of Howell’s
contract. See id.
¶39. In other words, the problem a majority of this court had with the Board’s 2009
decision was not that the Board considered matters outside the bid specifications. The Board
had been confronted with valid sanitation and health concerns over the food it was to provide
the prisoners in its care. We found nothing arbitrary or capricious about the Board’s taking
those concerns seriously. The problem we found was that the Board did not give Howell the
opportunity to defend herself. And afterwards, Howell chose not to challenge our very
specific ruling, so this court’s decision stood.
¶40. Following remand, the Board provided Howell the opportunity to be heard. But
because substantial evidence supported terminating the contract, the Board stayed with its
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original decision. To me, the Board has done all that was required.
¶41. My concern is that the majority now faults the Board for acting arbitrarily and
capriciously when all the Board did was follow our specific mandate. It does so by creating
an issue that was not in play on remand. Put differently, what today’s majority opinion
actually does is reverse our earlier decision in Howell I.
¶42. And regardless of the majority’s new justifications for reversal, the fact is, in
Howell I, the majority of this court—including the author of today’s majority opinion—did
agree that the Board validly considered information it learned after Howell’s bid was
selected. In doing so, the Howell I majority remanded the case for one specific purpose—a
due-process hearing. And the Board complied with our mandate.
¶43. My view has not changed. I find the original assessment in Howell I—that we were
dealing with a Board’s decision to terminate a contract based on legitimate health and
welfare concerns, not a Board’s decision to reject the lowest bidder—was the correct one.
I find any previous due-process concerns we had in that appeal were adequately addressed
by the Board’s 2011 hearing, which necessarily covered matters outside the bid
specifications.
¶44. For this reason, I dissent. I would affirm the lower court’s judgment, which upheld
the Board’s decision.
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