City of D'Iberville v. City of Biloxi (In re Enlarging)

• Decision Date: 21 March 2013
• Docket Number: Nos. 2010–AN–01050–SCT, 2010–AN–01999–SCT.,s. 2010–AN–01050–SCT, 2010–AN–01999–SCT.
• Citation: 109 So.3d 529
• Court: Mississippi Supreme Court
• Parties: In the Matter of the ENLARGING, EXTENDING AND DEFINING the CORPORATE LIMITS AND BOUNDARIES OF the CITY OF BILOXI, Harrison County, Mississippi: City of D'Iberville, Mississippi v. City of Biloxi, Mississippi and Harrison County, Mississippi.

109 So.3d 529

In the Matter of the ENLARGING, EXTENDING AND DEFINING the CORPORATE LIMITS AND BOUNDARIES OF the CITY OF BILOXI, Harrison County, Mississippi: City of D'Iberville, Mississippi

v.City of Biloxi, Mississippi and Harrison County, Mississippi.

Nos. 2010–AN–01050–SCT, 2010–AN–01999–SCT.

Supreme Court of Mississippi.

March 21, 2013.

Jerry L. Mills, Ridgeland, John Preston Scanlon, W. Fred Hornsby, III, Walter L. Nixon, Jr., attorneys for appellant.

J. Chadwick Mask, James L. Carroll, Clifton Michael Decker, Jackson, Ronald G. Peresich, Gina Bardwell Tompkins, Biloxi, Tim C. Holleman, Gulfport, Patrick Taylor Guild, attorneys for appellees.

EN BANC.

KING, Justice, for the Court:

¶ 1. In this case consolidating the competing annexation petitions of Biloxi and D'Iberville, the chancellor ultimately awarded each city a reduced area from that requested. He determined that it was unreasonable for either city to annex the entire area requested, and then determined that it was reasonable to award each city a smaller, reduced area. Both cities appeal this decision, and Biloxi raises jurisdictional issues for the first time on appeal. Because Biloxi is raising personal jurisdiction on behalf of third parties, and because Biloxi failed to raise this issue at the trial-court level, we find that Biloxi not only lacks standing to raise this issue, it also waived it. Further, because the chancellor's decision awarding each city a reduced area is reasonable and supported by substantial evidence, we affirm the annexations as modified by the chancellor.

FACTS AND PROCEDURAL HISTORY

¶ 2. On August 17, 2007, the City of Biloxi filed a petition to enlarge its boundaries via annexation of approximately 11.2 square miles of Harrison County, the Proposed Annexation Area (“PAA”). Biloxi's City Council had passed its ordinance authorizing the same on August 7, 2007. D'Iberville filed its petition to enlarge its boundaries via annexation of essentially the same area on September 12, 2007, pursuant to an August 21, 2007, ordinance of its City Council. Harrison County objected to both petitions. All of the Harrison County chancellors recused themselves, and in November 2007, this Court appointed Thomas Zebert as Special Judge to preside over the case. The cases were consolidated on November 8, 2007. A scheduling order was entered on June 6, 2008, ordering the parties to “file all dispositive motions and motions challenging jurisdiction by June 16, 2008.” The court held the trial over twenty-three nonconsecutive days from May to September 2009.

¶ 3. The chancellor, in a comprehensive 133–page opinion, divided the PAA into three pieces. He found that it was not reasonable for either city to annex the entire PAA, thus leaving a portion to remain as unincorporated Harrison County. He concluded that “such property excluded by the Court is unreasonable and is not required by public convenience and necessity and therefore is excluded.” Of the remaining area, the chancellor essentially divided it in half, giving Biloxi an area adjacent to Biloxi (deemed the “Biloxi Critical Area”), and giving D'Iberville an area adjacent to it (referred to hereinafter as the D'Iberville Annexation Area, or “DAA”). The DAA includes the new D'Iberville High School. Each city received approximately 2.5 square miles. The chancellor determined that each city needed this land because, among other reasons, Hurricane Katrina “caused a tremendous loss of usable real estate both in Biloxi and D'Iberville.” He concluded that both municipalities “have proven by the totality of the circumstances by analyzing the testimony, viewing the property in question and finding that each municipality has successfully proven the degree of reasonableness necessary and that such proof was credible to reflect that the public convenience as a necessity will be served by such granting of the PAA as reduced by the court.”

¶ 4. D'Iberville appeals, arguing that it was unreasonable to award Biloxi any of the area, and that the chancellor should have awarded the entire PAA to D'Iberville. Biloxi cross-appeals, arguing that the chancellor should have awarded the entire PAA to Biloxi, and also raising for the first time the issue that the trial court lacked jurisdiction over D'Iberville's petition due to inadequate proof it had satisfied its statutory publication requirement. Harrison County does not appeal, and asks this Court to affirm the chancellor's ultimate determination.

ANALYSIS

I. Standard of Review

¶ 5. “Annexation is a legislative affair. The judicial function is limited to the question of whether the annexation is reasonable.” ¹City of Jackson v. Byram Incorporators, 16 So.3d 662, 683 (Miss.2009) (internal quotations and alterations omitted). The only determinations that the court has the power to make are whether the annexation is reasonable or unreasonable and whether it should be reduced. Id. This Court reviews the chancellor's determination of reasonableness for manifest error. Id. at 682–83. This Court will reverse only where the chancellor applies an incorrect legal standard, is manifestly wrong, or his findings are not supported by substantial evidence. Id. at 682. “Even where the credible evidence is conflicting, this Court will not reverse unless the chancellor's findings are manifestly wrong.” Id. at 682–83 (internal quotations omitted); see also In re Enlargement and Extension of the Municipal Boundaries of the City of D'Iberville, 867 So.2d 241, 248 (Miss.2004) (noting that “[f]indings of fact made in the context of conflicting, credible evidence may not be disturbed unless this Court can say that from all the evidence that such findings are manifestly wrong, given the weight of the evidence.” (internal quotations omitted)).

¶ 6. To annex territory, a municipality must adopt an ordinance regarding its desired enlargement. Miss.Code Ann. § 21–1–27 (Rev.2007). It must then file a petition in chancery court, and when a hearing is set on such petition, it must give notice of the hearing to interested parties by posting, publication, and personal service. Miss.Code Ann. §§ 21–1–15, 21–1–29, 21–1–31 (Rev.2007). The municipality then bears the burden at trial of proving that its proposed annexation is reasonable. Miss.Code Ann. § 21–1–33 (Rev.2007).

II. Jurisdiction

¶ 7. Jurisdiction is a question of law, and we review it de novo. In re M.I., 85 So.3d 856, 857 (Miss.2012).

¶ 8. Biloxi argues for the first time on appeal that D'Iberville did not provide proper proof of publication, thus, the chancery court lacked jurisdiction over D'Iberville's annexation petition. D'Iberville argues that Biloxi waived this issue by failing to raise it at the trial-court level and in accordance with the court's scheduling order and that notice by publication was actually accomplished, as D'Iberville had made the simple mistake of filing the wrong proof of publication with the trial court. D'Iberville attaches the correct proof of publication to its reply brief, but Biloxi contends that this Court cannot consider it, as it is outside the record.

¶ 9. Upon filing a petition to enlarge its boundaries and upon the court setting a hearing on the petition, a municipality must give notice of the hearing pursuant to Section 21–1–15 of the Mississippi Code. Miss.Code Ann. § 21–1–31 (Rev.2007). The required notice includes notice by publication, posting, and personal service. Miss.Code Ann. § 21–1–15 (Rev.2007). Notice by publication of the hearing must be made “in some newspaper published or having a general circulation in the territory proposed to be [annexed] once each week for three consecutive weeks.” Miss.Code Ann. § 21–1–15 (Rev.2007). “The first publication of such notice ... shall be made at least thirty days prior to the day fixed for the hearing of said petition, and such notice shall contain a full description of the territory proposed to be [annexed].” Id. This notice is in lieu of personal service. Myrick v. Incorporation of a Designated Area into a Mun. Corp. To Be Named Stringer, 336 So.2d 209, 210 (Miss.1976).

¶ 10. In annexation cases, notice is classified as jurisdictional, and thus may generally be raised for the first time on appeal. In re Enlargement and Extension of Mun. Boundaries of City of Clinton, 920 So.2d 452, 455 (Miss.2006). Failure to give proper notice may deprive the chancery court of jurisdiction. Id. at 456. Statutory guidance regarding proof of proper notice does not exist, thus, this Court relies on Rule 4 of the Mississippi Rules of Civil Procedure. Id. “This Court takes seriously proof of proper notice.” Id. The record should contain such proof of proper notice. Norwood v. Extension of Boundaries of City of Itta Bena, 788 So.2d 747, 751 (Miss.2001).

¶ 11. Rule 4 of the Mississippi Rules of Civil Procedure, upon which this Court relies in determining adequate proof of notice, provides that “[f]ailure to make proof of service does not affect the validity of the service.” M.R.C.P. 4(f); In re Extension of Corp. Boundaries of the Town of Mantachie, 685 So.2d 724, 726 (Miss.1996). While Biloxi correctly notes that this Court cannot consider matters outside the record,² it notably does not argue that notice by publication was not achieved. Rather, it argues that the proper proof was not garnered at trial. Biloxi implicitly admits that D'Iberville did properly publish, but merely argues its proof of such publication was deficient. Thus, failure to make proof of service does not necessarily invalidate D'Iberville's proper notice by publication. However, as noted, this Court does take proof of notice very seriously, thus we will further address Biloxi's jurisdictional arguments, especially given the argument that notice involves subject matter jurisdiction and the need to clarify jurisdictional issues surrounding annexation cases.

¶ 12. Biloxi argues that the jurisdictional requirement of notice is one of subject matter jurisdiction, thus lack of...