Alias v. the City of Oxford

• Decision Date: 29 September 2011
• Docket Number: No. 2009–CA–00301–COA.,2009–CA–00301–COA.
• Citation: 70 So.3d 1114
• Parties: William ALIAS, Jr., Appellantv.The CITY OF OXFORD, Mississippi, Appellee.
• Court: Mississippi Court of Appeals

70 So.3d 1114

William ALIAS, Jr., Appellant

v.The CITY OF OXFORD, Mississippi, Appellee.

No. 2009–CA–00301–COA.

Court of Appeals of Mississippi.

Sept. 14, 2010.Rehearing Denied May 24, 2011.Certiorari Dismissed Sept. 29, 2011.

Thomas Henry Freeland IV, Joyce Marie Freeland, attorneys for appellant.Pope Shannon Mallette, Paul Bowie Watkins Jr., attorneys for appellee.EN BANC.BARNES, J., for the Court:

¶ 1. William Alias, Jr. appeals the judgment of the Circuit Court of Lafayette County that upheld the City of Oxford's grant of a zoning variance to Richard Elam for construction of a privacy fence which bordered his and Alias's residential property. After a careful review of the record, we find the circuit court lacked jurisdiction to hear the appeal from the City of Oxford's Planning Commission; thus, the case is not properly before this Court. Accordingly, we vacate the circuit court's judgment and dismiss the appeal for lack of jurisdiction.

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

¶ 2. Alias and Elam are neighbors in the Grand Oaks subdivision in Oxford, Mississippi. This case arose as a dispute over a privacy fence that Elam wanted to erect along his driveway adjacent to Alias's property. Elam's lot, number 213, is a peculiar flag-shaped lot, with his driveway forming the “pole” of the flag and running between lots 212 and 214. Alias owns Lot 214. Elam's driveway abuts Alias's garage and utility area, and his house is set behind lot 212. In February 2007, Elam originally presented Alias with building plans for an eight-foot-tall retaining wall between the two properties. After a survey of the property and in response to concerns by Alias, Elam redesigned the project and opted to build a privacy fence instead of the retaining wall. Elam claims Alias did not object to the fence until Elam had already started building it. The record indicates Alias had, however, conferred with his attorney, and in February, Alias obtained an opinion letter from his attorney advising him on his various concerns about Elam's retaining wall.

¶ 3. In April 2007, Elam obtained a building permit from the City of Oxford (“City”) for the project; the City's Director of Planning and Development, Tim Akers (“Director”), originally interpreted the City's Land Development Code (“Code”) to allow Elam's eight-foot-tall privacy fence in a location identified as the “side yard.” Soon after building had commenced and fence footings had been installed, however, the Director issued Elam a stop work order. After objection from Alias's attorney, the Director decided the property where Elam planned to build the fence was the “front yard,” and not the “side yard.” The Code does not allow a solid fence in the “front yard” to exceed thirty inches. ¹ Therefore, Elam applied for a five-and-one-half-foot height variance to the Code for the fence from the City of Oxford's Planning Commission (“Commission”), as required, to complete the project.

¶ 4. The Director recommended the variance be granted. On May 14, 2007, at the Commission's regular meeting, the Commission granted Elam's variance, with the express condition that the fence would not extend beyond the front elevation of either structure (of lots 212 and 214) located on either side of Elam's driveway. The Commission approved the minutes at its June 11, 2007, meeting.

¶ 5. On June 14, 2007, Alias filed a notice of appeal and a bill of exceptions with the Circuit Court of Lafayette County. The circuit court affirmed the Commission's decision, entering a judgment in favor of the City on March 11, 2008. Alias filed a notice of appeal of that judgment on April 4, 2008.

¶ 6. On March 17, 2009, this Court rendered its decision in Rankin Group v. City of Richland, 8 So.3d 259, 261 (¶ 12) (Miss.Ct. App.2009), holding that the ten-day period in Mississippi Code Annotated section 11–51–75 (Rev.2002) for filing a notice of appeal from the decision of municipal authorities runs from the date of the meeting in which the decision was made and not from the date the minutes of the meeting were approved. The City raises for the first time before this Court the untimeliness of Alias's appeal.

ANALYSIS

¶ 7. Although Alias raises several issues regarding the propriety of the variance granted to Elam, we only find it necessary to address whether the case is properly before this Court. Jurisdiction is a question of law; thus, this Court's review is de novo. Busby v. Anderson, 978 So.2d 637, 639 (¶ 6) (Miss.2008) (citing RAS Family Partners, LP v. Onnam Biloxi, LLC, 968 So.2d 926, 928 (¶ 8) (Miss.2007)).

¶ 8. In its brief before this Court, the City raises for the first time the issue of whether the circuit court had jurisdiction to hear the appeal from the Commission. Citing Rankin Group, the City argues that Alias's appeal to the circuit court was untimely because Alias did not file the notice of appeal within ten days of the City's decision to grant the variance, as required by section 11–51–75, which provides in part:

Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities ... may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision, and may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the person acting as president of the board of supervisors or of the municipal authorities.

Therefore, the City argues, because Alias's notice of appeal to the circuit court was untimely filed, this Court must dismiss the appeal for lack of jurisdiction.

¶ 9. Alias counters that the City has waived this issue because it was raised for the first time before this Court, instead of before the circuit court. Alias points out that even the circuit court, in its order, stated that Alias's “appeal was timely perfected,” ² and the City did not file a cross-appeal from this ruling. Citing Duvall v. Duvall, 224 Miss. 546, 551–52, 80 So.2d 752, 753–54 (1955), Alias states in his brief that: “While subject matter jurisdiction cannot be waived, other types of jurisdiction can be waived.” ³ He contends that the timeliness of an appeal can be waived.

¶ 10. The timeliness of an appeal is jurisdictional, and this Court must always acknowledge its own lack of jurisdiction. Michael v. Michael, 650 So.2d 469, 471 (Miss.1995) (citing Common Cause of Miss. v. Smith, 548 So.2d 412, 414 (Miss.1989)). See also David G. Knibb, Federal Court of Appeals Manual, § 7:1 (5th ed. 2007) (“Filing your appeal on time is critical because a timely notice of appeal is jurisdictional, and timeliness cannot be waived or dispensed with by the parties or by court order.”). It is well established that if the appealing party has no right to appeal, the appellate court should dismiss the appeal on its own motion. 5 Am.Jur.2d Appellate Review § 804 (2007). See also Smith v. Smith, 221 Miss. 180, 183, 72 So.2d 230, 231 (1954) (If the appeal not authorized by statute, the reviewing court may on its own motion question whether the order of lower court is appealable.); Baham v. Sullivan, 924 So.2d 580, 582 (¶ 10) (Miss.Ct.App.2005) (appellate court always has the responsibility to determine its jurisdiction). Moreover, the Mississippi Supreme Court has specifically held that: “Where an appeal is not perfected within the statutory time constraints [of section 11–51–75] no jurisdiction is conferred on the appellate court; and the untimely action should be dismissed.” Bowen v. DeSoto County Bd. of Supervisors, 852 So.2d 21, 23 (¶ 3) (Miss.2003) (quoting Newell v. Jones County, 731 So.2d 580, 582 (¶ 10) (Miss.1999)).

¶ 11. In Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007), the United States Supreme Court made clear that “the timely filing of a notice of appeal in a civil case is a jurisdictional requirement” and that the Supreme Court “has no authority to create equitable exceptions to jurisdictional requirements” which Congress has established. Bowles dealt with the belated appeal of a denial of a state prisoner's petition for habeas corpus-a civil action-before the district court. Id. at 206–08, 127 S.Ct. 2360. The prisoner failed to file a timely notice of appeal, but moved to reopen the appeal under a federal statute. The district court granted the motion but gave the prisoner seventeen days to file his notice of appeal, which was beyond the fourteen days mandated by the pertinent statute. The United States Court of Appeals for the Sixth Circuit held that the prisoner's appeal was untimely filed; thus, the court lacked jurisdiction and dismissed the case. Id. at 207, 127 S.Ct. 2360. The Supreme Court agreed, rigidly applying the doctrine that appealing within the time constraints of a statute in a civil case is “mandatory and jurisdictional,” and thus cannot be waived. Id. at 209, 214–15, 127 S.Ct. 2360.

¶ 12. The Mississippi Supreme Court has held, time and again, that the ten-day time limit of section 11–51–75 is “both mandatory and jurisdictional.” See, e.g., Ball v. Mayor and Board of Aldermen of City of Natchez, 983 So.2d 295, 299 (¶ 8) (Miss.2008) (citing Bowen, 852 So.2d at 23 (¶ 3); City of Madison v. Shanks, 793 So.2d 576, 581 (¶ 19) (Miss.2000); Newell, 731 So.2d at 582 (¶ 10)). Alias claims that the question of timeliness is not a question of subject-matter jurisdiction and, therefore, can be waived. He insists that the circuit court had the power to hear “cases of the general nature raised by the appeal below” and that the subject matter of this case was within the circuit court's “exclusive jurisdiction.” However, Alias's argument misses the point that when a circuit court sits as an appellate court, and not as a court of general jurisdiction, the jurisdiction provided by section 11–51–75 is akin to subject-matter jurisdiction and cannot be waived. In this case, the circuit court's jurisdiction was provided solely by ...