Bowling v. Madison County Bd. of Sup'rs

• Decision Date: 24 November 1998
• Docket Number: No. 96-CA-00369 COA,96-CA-00369 COA
• Citation: 724 So.2d 431
• Parties: David BOWLING, Emmett Eaton, Jr., Ken Ellis, John Jenkins, R.H. Bowling, Dr. and Mrs. Joe Files, Mrs. James Moss, Dr. and Mrs. William A. Rock, Jr., John Baker, and Madison County, Mississippi, Appellants, v. MADISON COUNTY BOARD OF SUPERVISORS, David Richardson, J.L. McCullough, Karl Banks, Marcus Sharpe, and Robert Dowdle, Individually and in their official capacity as Supervisors of Madison County, Mississippi, Appellees.
• Court: Mississippi Court of Appeals

724 So.2d 431

David BOWLING, Emmett Eaton, Jr., Ken Ellis, John Jenkins, R.H. Bowling, Dr. and Mrs. Joe Files, Mrs. James Moss, Dr. and Mrs. William A. Rock, Jr., John Baker, and Madison County, Mississippi, Appellants, v. MADISON COUNTY BOARD OF SUPERVISORS, David Richardson, J.L. McCullough, Karl Banks, Marcus Sharpe, and Robert Dowdle, Individually and in their official capacity as Supervisors of Madison County, Mississippi, Appellees.

No. 96-CA-00369 COA

Court of Appeals of Mississippi.

November 24, 1998.

Stanley F. Stater, III, Canton, Attorney for Appellants.

James L. Carroll, Gregg A. Caraway, Jackson, William G. Armistead, Tupelo, Attorneys for Appellees.

BEFORE McMILLIN, P.J., COLEMAN, AND SOUTHWICK, JJ.

SOUTHWICK, J., for the Court:

¶ 1. David Bowling along with fellow property owners filed a complaint in the Circuit Court of Madison County against the Madison County Board of Supervisors, acting in their official and individual capacity. Bowling's complaint alleged that recent decisions by the Board violated the Madison County Zoning Ordinances. The circuit court found that Bowling failed to comply with the requirements of section 11-51-75 of the Mississippi Code for appealing a decision of the Board to the court. Consequently, the court concluded that it lacked jurisdiction to entertain the appeal and dismissed the complaint. We agree that Bowling filed the wrong pleadings, but since he timely filed he should be given the opportunity to correct his error. We reverse and remand.

STATEMENT OF FACTS

¶ 2. On May 8, 1993, Anton Klinger, president of Klinger Electric Corporation, inquired into the possibility of relocating his facility to a parcel of property he owned in Madison County, Mississippi. Duke Loden, the executive vice president of the Madison County Economic Development Authority, responded to Klinger's inquiries and informed Klinger that the parcel was zoned C-1A for business and professional offices and establishments. During this time, Klinger also discussed the possible relocation of his business with W.W. Keeler, Madison County zoning administrator, in an effort to comply with the zoning regulations.

¶ 3. On June 30, 1993, the Madison County Board of Supervisors approved the final site plan for the construction of the proposed facility. The Board also approved the C-1A zoning classification with a variance to Klinger to permit light manufacturing. Following the Board's approval, the requisite building permits and other necessary documents were issued to Klinger. On July 14, 1994, Bowling complained to the Board about Klinger's alleged violations of the zoning ordinances. The Board appointed a committee to study Bowling's concerns about the Klinger facility. On September 22, 1994, the committee advised the Board that based upon a personal on-site inspection of the Klinger facility and a review of the zoning ordinances, the present use of the facility was allowed under the C-1A zoning classification. The committee determined that no light manufacturing had or was occurring on the property since the issuance of the building permit in August of 1993. Although the committee found that the facility was allowed under the zoning regulations, the committee noted that it was concerned with the Board's granting of a variance for light manufacturing. The committee recommended that the Board grant a conditional use for light manufacturing to the Klinger facility in anticipation of the corporation's future use of the facility.

¶ 4. Following the Board's acceptance of the committee's report on October 7, 1994, a petition for special exception to allow light manufacturing at the Klinger facility was filed on October 14, 1994. Three days later Bowling filed a complaint "in the nature of a bill of exceptions" against the Board in the Madison County Circuit Court. The complaint alleged that the Board approved the variance on the property without giving the public notice or without holding a public hearing. Bowling also asserted that the Klinger facility was not compatible with the facilities allowed under the C-1A regulation. Finally, Bowling argued that the actions of the Board deprived him and fellow property owners of their property without due process of law.

¶ 5. On November 14, 1994, the Board set a public hearing to be held on December 5, 1994, to consider the application for special exception to Klinger to allow him to operate a light manufacturing facility on the property. During the public hearing, Klinger presented a videotape of the facility and described the proposed operations of the facility. The Board then heard objections to the facility from several property owners, represented by their attorney, relating to the zoning classification and the proposed use of the property for light manufacturing. At the conclusion of the hearing, the Board adopted an ordinance which enacted the special exception. Subsequently, Bowling filed a motion to amend the complaint to include the actions taken by the Board at the hearing. Bowling alleged that the Board's actions at the hearing were also improper.

¶ 6. On January 13, 1995, the Board filed a motion to dismiss the complaint for lack of subject matter jurisdiction. The motion stated that Bowling failed to comply with the statutory requirements of Section 11-51-75, governing an appeal from a decision of the Board to the circuit court. The court found that Bowling failed timely to file a bill of exceptions with the court, and subsequently, the court dismissed the complaint for lack of jurisdiction. Bowling has appealed.

DISCUSSION

¶ 7. The controlling issue is jurisdictional. The court held that no jurisdiction existed since Bowling failed within 10 days of each disputed action by the Board to take an appeal and file a bill of exceptions. Such a procedure arises under the following statute:

Appeal to circuit court from board of supervisors, municipal authorities.

Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village, 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. The clerk thereof shall transmit the bill of exceptions to the circuit court at once, and the court shall either in term time or in vacation 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....

Miss.Code Ann. § 11-51-75 (1972). At its simplest, a bill of exceptions is the citizen's statement of the facts that the president of a local Board accepts or partly disputes after review and any mutually acceptable revision. Bowling's response to the Board's argument is in the alternative: first, the statute is not the limit of the right to have this action judicially reviewed, and second, the statute is antiquated and has been replaced by the Rules of Civil Procedure.

¶ 8. We take the second point first. The rules of procedure, both for trial and appellate courts, do not replace the jurisdictional statutes. The right to appeal is governed by statute. The supreme court has continued to apply the just-quoted statute for appeals from municipal and county governing authorities. McIntosh v. Amacker, 592 So.2d 525, 526 (Miss.1991). Thus Bowling must comply with the statute to the extent it is applicable.

¶ 9. What is the minimum required to comply with the statute is a more difficult issue. The same attorney for the complainants and many of the same supervisors as defendants were involved in one of the most significant precedents regarding appellate review of board of supervisor action. Canton Farm Equipment v. Richardson, 501 So.2d 1098 (Miss.1987). Not just coincidentally it would be supposed, that attorney followed a similar procedure in the present suit as succeeded in Canton Farm Equipment. There an unsuccessful bidder for the sale of heavy equipment filed a complaint in chancery court to set aside the winning bidder's contract. The supreme court found that filing a complaint either in chancery or circuit (though circuit ultimately was the correct court) was adequate if the complaint was filed within 10 days of the board action. Id. at 1102-03. The basis for relief was that the supervisors had ignored proper bid procedures, had not awarded to the lowest bidder, and were engaged in fraud. Id. at 1104-05. Damages against the supervisors on their bonds were also sought. No agreed bill of exceptions was filed, but instead the complaint contained a "`Statement of Facts In Lieu of Bill of Exceptions' and claimed that such was submitted in the event that an appeal under Miss.Code Ann. § 11-51-75 be deemed its sole remedy." Id. at 1102.

¶ 10. The only discussion of the possible jurisdictional defect was a summary dismissal of the concern. The board argued that the appeal did not comply with Section 11-51-75 "even though the original complaint was filed in Chancery Court on October 2, 1984, only the eighth day following the order of the Board of Supervisors complained of here." Id. at 1103. The ten day limit was met because even if the complaint (not an appeal) was filed in chancery instead of circuit court, a statute requires that the original filing date control when a case is transferred between the two courts. Id., citing Miss.Code Ann. § 11-1-39 (1972). Then the court proceeded to discuss the case as if it were a proper original action in circuit or chancery, even though the complaint/appeal sought a review of the propriety of the supervisors' awarding of a bid at its meeting. The supreme court never explicitly held that the case was a flawed but adequate appeal under section 11-51-75 or instead was an original action....