CITY of JACKSON v. UNITED WATER Serv. INC.

• Decision Date: 18 November 2010
• Docket Number: No. 2009-SA-01105-SCT.,2009-SA-01105-SCT.
• Citation: 47 So.3d 1160
• Parties: CITY OF JACKSON, Mississippi and Jackson Water Partnership v. UNITED WATER SERVICES, INC. and United Water Services of Mississippi, LLC.
• Court: Mississippi Supreme Court

47 So.3d 1160

CITY OF JACKSON, Mississippi and Jackson Water Partnership

v.UNITED WATER SERVICES, INC. and United Water Services of Mississippi, LLC.

No. 2009-SA-01105-SCT.

Supreme Court of Mississippi.

Nov. 18, 2010.

Pieter John Teeuwissen, James A. Peden, Jr., Lara E. Gill, Ridgeland, Dale Danks, Jr., Jackson, attorneys for appellants.

Robert L. Gibbs, Katie Lofton Wallace, Jackson, attorneys for appellees.

EN BANC.

RANDOLPH, Justice, for the Court:

¶ 1. Aggrieved by the Jackson City Council's decision to award a contract to Jackson Water Partnership (“JWP”), United Water Services and its affiliate, United Water Services of Mississippi, LLC (collectively “UWS”), appealed the City Council's decision, pursuant to Mississippi Code Section 11-51-75 (Rev.2002), in the Circuit Court of the First Judicial District of Hinds County, Mississippi. JWP filed a motion to intervene, which the circuit court denied. JWP and the City of Jackson (“City”) timely perfected this appeal of the order denying JWP's motion to intervene. We affirm.

FACTS

¶ 2. In March 2008, the City issued a Request for Proposals (“RFP”) for the Operation, Maintenance and Management of the Wastewater Facilities. Various vendors, including UWS and JWP, submitted proposals on or about May 20, 2008. An “Evaluation of Proposals for the Operation, Maintenance and Management of Wastewater Facilities” prepared by the City's Department of Public Works revealed a “pricing comparison” of the three submitted bids, as follows: Southwest Water Company-$3,019,170.31; UWS-$2,615,996.05; JWP-$4,689,018.13. ¹ Following multiple special meetings reflected in the bill of exceptions, the Jackson City Council, by a four-to-one vote, awarded the contract to JWP on November 10, 2008.

¶ 3. Aggrieved by this decision, UWS filed a notice of appeal with the circuit court pursuant to Section 11-51-75. UWS claimed that the City, in awarding the wastewater contract, had engaged in an unlawfully executed RFP process. JWP moved to intervene in the action, to which the City filed a joinder. Thereafter, the circuit court denied JWP's motion to intervene. JWP and the City now appeal.

ISSUE

¶ 4. This Court will consider:

Whether the circuit court erred in denying JWP's motion to intervene in the underlying appellate proceedings between UWS and the City.

ANALYSIS

[1] ¶ 5. The right to appeal the City's action was created by the Legislature. UWS filed the appeal pursuant to Section 11-51-75, which provides that “[a]ny person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village, may appeal....” Miss.Code Ann. § 11-51-75 (Rev.2002) (emphasis added). JWP clearly was not “aggrieved,” because it was awarded a contract paying it $2 million more than what UWS had bid to perform the same services. The rationale behind permitting only the “aggrieved” to appeal is logical. It is not the act or conduct of a prevailing bidder which is subject to examination at the appellate level. Rather, the circuit court sitting as an appellate court was charged with determining whether the “decision of the board of supervisors, or municipal authorities” was arbitrary, capricious, or contrary to applicable law. See Falco Lime, Inc. v. Mayor & Aldermen of the City of Vicksburg, 836 So.2d 711, 721 (Miss.2002); Cooper v. City of Picayune, 511 So.2d 922, 923 (Miss.1987); Miss.Code Ann. § 11-51-75 (Rev.2002). Although the prevailing bidder may be interested, it is not a necessary or indispensable party, nor a proper party under the statute granting the right of appeal solely to the “aggrieved.” Miss.Code Ann. § 11-51-75 (Rev.2002). UWS, an “aggrieved” party, sought appellate relief. JWP moved to intervene in the appeal, despite the absence of a right to appeal or intervene under Section 11-51-75.

¶ 6. JWP claims its right to intervene arises from Mississippi Rule of Civil Procedure 24. But this Court in Cooper clearly pointed out that “the Mississippi Rules of Civil Procedure ... apply to trial proceedings only, except where therein expressly provided to the contrary.” Cooper, 511 So.2d at 923. Moreover, post- Cooper, the Mississippi Rules of Appellate Procedure were adopted and now control appeals. See “Order Adopting the Mississippi Rules of Appellate Procedure” (“the Mississippi Rules of Appellate Procedure will promote the prompt, fair, and efficient administration of justice on appeal .... [T]he [Rules] ... are[ ] adopted as rules governing all proceedings in the Mississippi Supreme Court and the Court of Appeals of the State of Mississippi, and the trial courts of this State to the extent provided ....”) (emphasis added). The Mississippi Rules of Appellate Procedure clearly and unequivocally do not provide for intervention at the appellate level. ²

¶ 7. Mississippi Rule of Appellate Procedure 1 provides that:

[t]hese rules govern procedure in appeals to the Supreme Court of Mississippi and the Court of Appeals of the State of Mississippi, and proceedings on petitions for writs or other relief which the Supreme Court or the Court of Appeals or a justice of the Supreme Court or judge of the Court of Appeals is empowered to grant. When these rules provide for the making of a motion in the trial court, the procedure for making such motion shall be in accordance with the practice of the trial court.

M.R.A.P. 1. The Comment to Rule 1 adds that the enumerated:

[r]ules which provide for the making of a motion in the trial court include Rules 4(g), extension of time to appeal; 6, determination of in forma pauperis status; 8(b), stay on appeal to be first sought in trial court; and 10(e) [,] correction of record on appeal. Trial court practice is governed by the Mississippi Rules of Civil Procedure, Mississippi Rules of Evidence, applicable uniform rules, and local rules where adopted pursuant to M.R.C.P. 83. The term “trial court” in these rules includes a circuit or chancery court sitting as an appellate court.

M.R.A.P. 1 cmt. Based upon this Comment, the dissent maintains that “the Rules of Appellate Procedure ... require the application of the Mississippi Rules of Civil Procedure to a circuit court sitting as an appellate court.” (Diss. Op. at ¶ 31). This Court agrees that the Rules as enumerated in the Comment can be applicable in an appealed case. ³ But common sense dictates that the applicability of certain Mississippi Rules of Civil Procedure, Mississippi Rules of Evidence, uniform rules, and local rules adopted pursuant to Mississippi Rule of Civil Procedure 83, will depend upon the nature of the appeal. ⁴ In a trial de novo (for example, a direct appeal from justice court or municipal court), the Mississippi Rules of Civil Procedure (including Rule 24 on intervention) and the Mississippi Rules of Evidence would apply. See URCCC 5.01, 5.07 (“[a]ll proceedings on an appeal de novo will be governed by the Mississippi Rules of Civil Procedure, where applicable, the Mississippi Rules of Evidence, and these Rules”). But the dissent's reliance on language from Cooper contained in Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996), does not support intervention on appeal in the present case. (Diss. Op. at ¶ 19). Cummings involved a primary election contest, which also is a trial de novo. See Miss.Code Ann. § 23-15-931 (Rev.2007) (“[t]he special tribunal ... shall fully hear the contest or complaint de novo....”).

[2] ¶ 8. Likewise, the dissent's proposition that “[t]his Court repeatedly has allowed a circuit court to proceed de novo in an action appealed under Section 11-51-75 where a board failed to conduct a hearing on the matter in issue [,]” is not only delusive, but also altogether inapplicable in the present case. (Diss. Op. at ¶ 21) (emphasis added). It is delusive because “where no hearing is held, the action does not really proceed under Section 11-51-75 at all[,]” and because the proposition from Cook v. Board of Supervisors of Lowndes County, 571 So.2d 932, 934 (Miss.1990), cited by the dissent, ⁵ was later questioned in Falco Lime insofar as Cook failed to provide citation to similar cases, “[n]or does our research readily yield a list of them.” Falco Lime, 836 So.2d at 717-18 n. 4.

¶ 9. A de novo appeal under Section 11-51-75 is inapplicable here because sufficient “hearing” proceedings were held. The dissent's argument to the contrary is a red herring, distracting focus from the only issue presented on appeal, i.e., intervention. The appellate briefs filed herein in no way assert a lack of “hearing” or claim that the trial court erred in failing to conduct a de novo trial. JWP's brief proclaims this certainty, unequivocally stating that following the submission of competing proposals:

there ensued lengthy and complex administrative proceedings, in which the City negotiated with both [JWP] and [UWS]. The matter was considered by the Jackson City Council on several different occasions. At different times during the course of the proceedings, the Director of Public Works, acting for the Mayor, made different recommendations as to which of the competing entities ... should be awarded the contract. The details of these involved proceedings are beyond the scope of the present appeal, which involves the limited issue of intervention. Suffice it to say that at a special meeting held on November 10, 2008, the Jackson City Council, by a vote of 4-1, accepted the final recommendation of the Public Works Director and of the Mayor to award the contract to [JWP].

(Emphasis added.) UWS argues that its circuit court appeal “alleges ... that the City acted arbitrarily, capriciously, and contrary to law throughout the procurement process and in its ultimate decision to deny the award of contract to [UWS].”

¶ 10. Moreover, this Court has stated that the hearing requirement is “not necessarily one according to the form of a trial in a court of law.” Cook, 571 So.2d at 934. This Court has declined:

to limit the...