IN THE SUPREME COURT OF MISSISSIPPI
NO. 2013-CT-00406-SCT
LOWNDES COUNTY, MISSISSIPPI BY AND
THROUGH ITS BOARD OF SUPERVISORS
v.
HAL H.H. MCCLANAHAN, III, MCCLANAHAN
CAMP, LLC, JULIE GARTMAN AND DENNIS
GARTMAN
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 02/04/2013
TRIAL JUDGE: HON. HENRY L. LACKEY
TRIAL COURT ATTORNEYS: HAL H. H. McCLANAHAN, III
TIMOTHY C. HUDSON
COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: TIMOTHY C. HUDSON
ATTORNEY FOR APPELLEES: HAL H. H. McCLANAHAN, III
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: THE JUDGMENTS OF THE COURT OF
APPEALS AND THE CIRCUIT COURT OF
LOWNDES COUNTY ARE REVERSED
AND THE CASE IS REMANDED -
04/23/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
DICKINSON, PRESIDING JUSTICE, FOR THE COURT:
¶1. After the Lowndes County Board of Supervisors voted to abandon a railroad crossing,
the county erected a barricade. Residents affected by the barricade filed two separate
motions for reconsideration, and the Board held a second meeting in which it affirmed the
abandonment but ordered the barricade removed. The residents filed a bill of exceptions in
the circuit court, which reversed the Board’s decision to abandon the crossing. The Court
of Appeals reversed the circuit court, holding it had no jurisdiction to hear the bill of
exceptions. We find that, although the circuit court had appellate jurisdiction to review the
Board’s second decision, it lacked jurisdiction to consider the Board’s original decision. So
we reverse the judgments of the Court of Appeals and the circuit court, and we remand this
case for the circuit court to consider only whether the Board’s second order complied with
the statutory procedure for abandoning a road.
FACTS AND PROCEDURAL HISTORY
¶2. On September 15, 2011, C&G Railroad requested that the Board hold a public hearing
about abandoning a road known as Co-Op Road, which crossed two sets of its railroad tracks.
Following the meeting, the Board publicized its intent to abandon the road and crossing by
placing a small ad in the middle of The Columbus Dispatch’s legal notices section for three
consecutive weeks. This was a departure from the Board’s usual custom of placing large
advertisements when meeting to discuss county road abandonments and other closures.
¶3. On October 31, the Board considered whether to abandon the crossing. None of the
residents who owned land near the crossing or who regularly used the crossing was in
attendance at the meeting. Hearing no opposition, the Board resolved to abandon the
crossing, finding that the crossing “serve[d] only one land-owner [i.e., the railroad] who has
requested abandonment of the road.”
¶4. Nearly a month later—after the county barricaded the crossing—residents affected by
the abandonment learned of the Board’s action. On November 30, the residents filed two
2
separate motions for reconsideration with the Board. The residents then appeared at the
Board’s December 5 meeting, where the Board stayed consideration of the residents’ motions
for reconsideration and encouraged the residents to work with the railroad to resolve the
dispute about the crossing. But discussions proved fruitless, and the sides were unable to
reach an agreement.
¶5. On February 3, 2012, the residents filed a joint amended motion for reconsideration,
asking that the Board revisit its October 31 order at the next Board meeting scheduled for
February 6. The Board revisited its prior decision and issued a new order, reaffirming its
decision to abandon the crossing, but ordering the barricade removed and posted signs
indicating that the county no longer maintained the crossing. On February 16, the residents
filed a bill of exceptions in Lowndes County Circuit Court, challenging both the October 31,
2011, order and the February 6, 2012, order. The residents argued that both of the Board’s
orders should be reversed because the Board failed to comply with the statutory requirements
for abandoning a road.1
¶6. The Board moved to dismiss, arguing that the residents’ bill of exceptions was
untimely because it was not filed within ten days of the Board’s October 31 resolution. The
residents responded with both a “Response to Motion to Dismiss and Memorandum in
Support Thereof” and also a “Motion to Amend or Alternatively Dismiss the Action of the
Board of Supervisors of Lowndes County, Mississippi.” In the motion to amend or
alternatively dismiss, the residents attached copies of the notices the Board published in
1
See Miss. Code Ann. § 65-7-121 (Rev. 2012) (outlining the procedure a board of
supervisors must follow to abandon a county road).
3
advance of the October 31 meeting, which were not originally attached to their bill of
exceptions. The residents argued that, because the Board had failed to give adequate notice
of the October 31 meeting, the circuit court should dismiss the Board’s action in closing the
road.
¶7. After hearing oral arguments, the circuit judge set aside the Board’s original order
abandoning the crossing, denied the Board’s motion to dismiss, and sua sponte, granted relief
on the residents’ bill of exceptions.2 The circuit judge found that the Board’s actions at the
October 31 meeting failed to comply with Mississippi Code Section 65-7-121 and that the
Board’s decision was “arbitrary, capricious[,] and without support of substantial credible
evidence, fail[ed] to make a proper adjudication upon which their decision was made[,] and
violated the Due Process Clause . . . .”
¶8. In particular, the circuit judge was troubled by the insufficiency of the Board’s notice
of its October 31 meeting. He found that “[t]he notice as published was in the smallest print
or font in the portion of newspaper made exhibits,” and that “[t]he [c]ourt had difficulty
locating the [n]otice even though the page of the newspaper where it was printed was made
an exhibit to the pleadings.”
¶9. Aggrieved, the Board filed a motion for reconsideration, arguing that it had made no
argument in response to the residents’ bill of exceptions because it understood the scope of
the hearing was to be confined to the Board’s motion to dismiss. The circuit court denied the
motion for reconsideration and entered a final order.
2
No transcript of this hearing is in the record before us.
4
¶10. On appeal, the Board argued that the circuit judge had no authority to issue a “sua
sponte judgment” in favor of the residents, and that it lacked jurisdiction to consider their
untimely bill of exceptions. The Court of Appeals agreed with the Board on the
jurisdictional issue, finding that the circuit court lacked appellate jurisdiction to hear the
residents’ bill of exceptions, because “the residents failed to take a timely appeal from the
Board’s [October 31] resolution.”3
¶11. In dissent, Judge Carlton astutely observed that the residents’ bill of exceptions was
timely because “the Board’s reconsideration of the prior resolution placed the underlying
matter back into issue at the Board’s February 6, 2012[,] meeting.”4 We then granted the
residents’ petition for writ of certiorari.
ANALYSIS
¶12. We must decide whether the residents filed a timely bill of exceptions under Section
11-51-75 and, if so, whether the circuit court erred in setting aside the Board’s October 31
order abandoning the crossing. Jurisdiction is a legal question we review de novo.5
3
Lowndes Cnty. ex rel. Bd. of Supervisors v. McClanahan, No. 2013-CA-00406-
COA, 2014 WL 1674097, at *1 (Miss. Ct. App. Apr. 29, 2014).
4
Id. at *3 (Carlton, J., dissenting) (citing Miss. Code Ann. § 19-3-40 (Rev. 2012)).
5
See Trustmark Nat’l Bank v. Johnson, 865 So. 2d 1148, 1150 (Miss. 2004) (citing
Briggs & Stratton Corp. v. Smith, 854 So. 2d 1045, 1048 (Miss. 2003)) (“Jurisdiction is a
question of law which this Court reviews de novo.”).
5
¶13. Though filed in the circuit court, a bill of exceptions is an appeal which must be
resolved on the merits presented in the appellate record.6 The briefs and arguments of
counsel are not an opportunity to supplement that record with evidence not presented to the
board, agency, or tribunal from which the appeal is taken.7 As we have said before, a
bill of exceptions serves as the record on appeal, and we have held that “[t]he
circuit court can only consider the case as made by the bill of exceptions. This
is the only record before the circuit court, as an appellate court.”8
¶14. With approval of the circuit judge, however, a bill of exceptions may “be amended
at any time before the hearing on appeal, for the purpose of curing omissions, defects, or
inaccuracy . . . .”9
¶15. When reviewing a bill of exceptions challenging the decision of a board of
supervisors, the circuit court must affirm, “unless [the] decision is ‘arbitrary, capricious,
discriminatory, or is illegal, or without a substantial evidentiary basis.’”10 But where a
board’s action is alleged to have violated a statute or other law—in this case, Section 65-7-
6
Miss. Code Ann. § 11-51-75 (Rev. 2012) (“[T]he court shall . . . hear and determine
the same on the case as presented by the bill of exceptions as an appellate court, and shall
affirm or reverse the judgment.”).
7
Id.
8
Hooks v. George Cnty., 748 So. 2d 678, 680 (Miss. 1999) (quoting Stewart v. City
of Pascagoula, 206 So. 2d 325, 328 (Miss. 1968)).
9
Miss. Code Ann. § 11-7-211 (Rev. 2012) (authorizing amendments of bills of
exceptions).
10
Baymeadows, LLC v. City of Ridgeland, 131 So. 3d 1156, 1159 (Miss. 2014)
(quoting Town of Florence v. Sea Lands, Ltd., 759 So. 2d 1221, 1223 (Miss. 2000)).
6
121’s procedure for abandoning a road—the circuit court must conduct a de novo review to
determine whether the board’s actions complied with the governing law.11
¶16. To perfect the appeal of a board’s decision, an aggrieved party must file a bill of
exceptions in circuit court within ten days of the board’s decision .12 Section 11-51-75’s ten
day period to file an appeal is both “mandatory and jurisdictional.”13 And “[w]here an appeal
is not perfected within the statutory time constraints[,] no jurisdiction is conferred on the
appellate court; and the untimely action should be dismissed.”14
¶17. The party opposing a bill of exceptions may file a motion to dismiss based on a
jurisdictional challenge.15 But the procedure outlined in Mississippi Code Section 11-51-75
does not allow a party challenging a board’s actions to file a dispositive motion on the
11
Baymeadows, LLC, 131 So. 3d at 1159 (quoting ABC Mfg. Corp. v. Doyle, 749
So. 2d 43, 45 (Miss. 1999)).
12
Miss. Code Ann. § 11-51-75 (“Any person aggrieved by a judgment or decision of
the board of supervisors, . . . may appeal within ten (10) days from the date of adjournment
at which session the board of supervisors . . . rendered such judgment or decision . . . .”).
13
Newell v. Jones Cnty., 731 So. 2d 580, 582 (Miss. 1999) (citing Moore v. Sanders,
569 So. 2d 1148, 1150 (Miss. 1990)).
14
Newell, 731 So. 2d at 582.
15
See Town of Terry v. Smith, 48 So. 3d 507, 512 (Miss. 2010) (holding that circuit
court properly dismissed an untimely filed bill of exceptions).
7
merits.16 The bill of exceptions, itself, is a request to set aside and reverse the board’s
actions.
¶18. As to the Board’s October 31 order, the residents’ February 16 bill of exceptions was
untimely under Section 11-51-75. But the Board reconsidered and issued a new order on
February 6, so the residents’ February 16 bill of exceptions appealing the Board’s February
6 order was within Section 11-51-75’s ten-day period allowed for appeal.
¶19. We recognize that Section 11-51-75 includes no procedure authorizing motions for
rehearing or reconsideration, but neither are they prohibited.17 Boards of supervisors
certainly are not prohibited from reconsidering their previous decisions and issuing new
decisions.18 And when they do—as they did in this case—Section 11-51-75 allows aggrieved
residents to file a bill of exceptions challenging the new decision. In this case, the circuit
court had jurisdiction over the residents’ bill of exceptions challenging the Board’s February
6 order. However, the circuit court did not have jurisdiction to consider the Board’s October
31 order.
16
In responding to the Board’s motion to dismiss, the residents filed both a “Response
to Motion to Dismiss and Memorandum in Support Thereof” and also a “Motion to Amend
or Alternatively Dismiss the Action of the Board of Supervisors of Lowndes County,
Mississippi.” We note that the residents never should have filed a motion to dismiss on the
merits after filing their bill of exceptions.
17
See Gatlin v. Cook, 380 So. 2d 236, 237 (Miss. 1980) (“Persons aggrieved by the
action or decision of municipal authorities may appeal under [Section 11-51-75] but we find
no authority for aggrieved persons to petition the municipal authorities for rehearing a
zoning ordinance adopted by the municipal authorities.”).
18
See Miss. Code Ann. § 19-3-40 (“[A]ny such board shall likewise have the power
to alter, modify and repeal such orders, resolutions or ordinances.”).
8
¶20. On remand, we do not mean to prohibit the circuit court from considering an
amendment to the bill of exceptions under Section 11-7-211 and addressing the issue of
whether the Board published adequate notice.19 Whether the Board gave constitutionally
adequate notice leading up to the October 31 meeting may be relevant in analyzing whether
the Board’s actions at the February 6 meeting complied with Section 65-7-121.
CONCLUSION
¶21. The circuit court had appellate jurisdiction over the residents’ bill of exceptions
challenging the Board’s February 6 order, but it improperly considered the Board’s October
31 order. We reverse the Court of Appeals’ judgment finding that the circuit court did not
have jurisdiction to hear the residents’ bill of exceptions. We also reverse the circuit court’s
judgment, which considered the Board’s October 31 order, and we remand this case for the
circuit court to consider, consistent with this opinion, whether the Board’s actions at the
February 6 meeting complied with Mississippi Code Section 65-7-121’s procedure for
abandoning a county road.
¶22. THE JUDGMENTS OF THE COURT OF APPEALS AND THE CIRCUIT
COURT OF LOWNDES COUNTY ARE REVERSED AND THE CASE IS
REMANDED.
WALLER, C.J., RANDOLPH, P.J., LAMAR, KITCHENS, CHANDLER,
PIERCE, KING AND COLEMAN, JJ., CONCUR.
19
See Miss. Code Ann. § 11-7-211 (Rev. 2012) (“Bills of exception, with the
approval of the trial judge, may be amended at any time before the hearing on appeal, for the
purpose of curing omissions, defects, or inaccuracy . . . .”).
9