City of Saltillo v. City of Tupelo

Decision Date02 August 2012
Docket NumberNo. 2011–AN–00016–SCT.,2011–AN–00016–SCT.
Citation94 So.3d 256
PartiesIn the Matter of the EXTENSION OF the BOUNDARIES OF the CITY OF TUPELO, Mississippi: City of Saltillo, Mississippi, Lee County, Mississippi, Palmetto–Old Union Fire Protection District, Belden Fire Protection District and Unity Fire Protection District v. CITY OF TUPELO, Mississippi.
CourtMississippi Supreme Court

94 So.3d 256

In the Matter of the EXTENSION OF the BOUNDARIES OF the CITY OF TUPELO, Mississippi: City of Saltillo, Mississippi, Lee County, Mississippi, Palmetto–Old Union Fire Protection District, Belden Fire Protection District and Unity Fire Protection District
v.
CITY OF TUPELO, Mississippi.

No. 2011–AN–00016–SCT.

Supreme Court of Mississippi.

Aug. 2, 2012.


[94 So.3d 260]


Jason D. Herring, Henderson McKelvy Jones, Gary L. Carnathan, Tupelo, J. Chadwick Mask, James L. Carroll, Clifton Michael Decker, Jackson, attorneys for appellants.

Martha Bost Stegall, Tupelo, Guy W. Mitchell, III, William C. Spencer, Tupelo, John S. Hill, attorneys for appellee.


Before CARLSON, P.J., PIERCE and KING, JJ.

PIERCE, Justice, for the Court:

¶ 1. The Lee County Chancery Court entered a decree approving and ratifying, with modifications, an annexation ordinance adopted by the City of Tupelo, Mississippi. Notices of appeal were filed by Lee County, Mississippi; the Belden Fire Protection District, the Palmetto–Old Union Fire Protection District, the Unity Fire Protection District (collectively the Fire Protection Districts); and the City of Saltillo, Mississippi. We affirm the chancery court's decree.

FACTS AND PROCEDURAL HISTORY

¶ 2. Tupelo adopted an annexation ordinance on July 3, 2007, which sought to extend and enlarge Tupelo's boundaries to include seven proposed areas, totaling approximately 16.2 square miles, identified as Area 1, Area 2 North, Area 2 South, Area

[94 So.3d 261]

3, Area 4, Area 5, and Area 6 (“PAAs” or “annexed territory”), each of which lies adjacent to Tupelo's current municipal limits. 1 Tupelo filed a petition in the chancery court on September 12, 2008, seeking approval and ratification of its July 2007 annexation ordinance. Lee County, the Fire Protection Districts, and Saltillo, along with the Town of Plantersville, Mississippi, each filed answers and objections to Tupelo's annexation petition. Trial began in the matter in March 2010 and concluded in June 2010, after which the chancery court approved Tupelo's PAAs in their entirety, with the exception of a portion located in Area 5, which the court excluded from the final annexation decree.

¶ 3. Lee County, the Fire Protections District, and Saltillo appeal to this Court. The three entities are represented by separate counsel and have filed separate briefs. They assert a total of twelve issues between them, some of which are either the same or cumulative. In the interests of clarity and brevity, we have narrowed the total down to six, as follows:

I. Whether the chancery court had jurisdiction over Tupelo's annexation petition.

II. Whether Tupelo's request for voluntary dismissal of the prior annexation petition bars the use of the annexation ordinance in a second subsequent action for annexation without reuthorization of the annexation ordinance by Tupelo's newly constituted city council.

III. Whether the chancery court committed reversible error in not allowing a Daubert examination of Tupelo's expert witness, Karen Fernandez.

IV. Whether the chancery court's decision finding Tupelo's annexation reasonable, as modified, was manifestly wrong and/or not supported by substantial and credible evidence.

V. Whether the chancery court erred in failing to consider the inequitable and unreasonable impact of Tupelo's annexation upon the Lee County Fire Protection Districts and the residents and property owners annexed.

VI. Whether the chancery court erred in taxing the cost of Tupelo's publication of the statutorily-mandated notice to the public against Lee County.

¶ 4. Additional facts, as necessary, will be related during our discussion of the issues.

DISCUSSION
I. Jurisdiction

¶ 5. Both Lee County and Saltillo argue that the proceedings in the chancery court were procedurally flawed and that they deprived residents and property owners in the PAAs of their fundamental and statutory due process rights. Both concede that Tupelo met the notice requirements prescribed by Mississippi Code Sections 21–1–15 and 21–1–31 (Rev.2007) after Tupelo filed its annexation petition on September 12, 2008. But they contend the chancery court lost jurisdiction over Tupelo's annexation petition at the conclusion of a hearing held on November 3, 2008, when the matter was recessed without being set

[94 So.3d 262]

for a date and time certain for future proceedings.

¶ 6. Section 21–1–31 sets forth the notice requirements in annexation matters and provides, in part, as follows:

Upon the filing of such petition and upon application therefor by the petitioner, the chancellor shall fix a date certain, either in term time or in vacation, when a hearing on said petition will be held, and notice thereof shall be given in the same manner and for the same length of time as is provided in [Mississippi Code Annotated] section 21–1–15 with regard to the creation of municipal corporations, and all parties interested in, affected by, or being aggrieved by said proposed enlargement or contraction shall have the right to appear at such hearing and present their objection to such proposed enlargement or contraction.

Section 21–1–15, which is incorporated by reference in Section 21–1–31, requires notice to be given both by publication in “some newspaper published or having general circulation in the territory proposed to be [annexed]” as well as by posting “a copy of such notice in three or more public places in such territory[;][t]he first publication of such notice and the posted notice shall be made at least thirty days prior to the day fixed for the hearing of said petition....”


¶ 7. The notice required by Section 21–1–15 is in lieu of personal service and must be strictly complied with. Myrick v. Stringer, 336 So.2d 209, 210 (1976). “[F]ailure to give proper notice in annexation cases renders a chancery court without jurisdiction to hear the case....” In re Enlargement and Extension of Mun. Boundaries of the City of Clinton, 920 So.2d 452, 456 (Miss.2006). “The record must contain proof that posting and publication were accomplished in compliance with Section 21–1–15.” Fletcher v. Diamondhead Incorporators, 77 So.3d 92, 98 (Miss.2011). The petitioner bears the burden of proving that it met all the statutory notice requirements. Myrick, 336 So.2d at 210.

¶ 8. The annexation statutes do not provide for renotice of a continued hearing. Cf. Fletcher, 77 So.3d at 98 (recognizing same for incorporation statutes). Once the statutory notice had been given in this case, all property owners within the areas proposed to be annexed became parties to the annexation proceedings in the chancery court. Sperry–Rand Corp. v. City of Jackson, 245 So.2d 574, 575 (Miss.1971). “This status continue[s] through the final decree,” and remains “until and unless reversed or modified on appeal.” Id. “Once proper notice of the hearing date set by the chancellor has been provided in compliance with Section 21–1–15, if the hearing is continued, then all parties have notice.” Fletcher, 77 So.3d at 98.

¶ 9. The record before us affirmatively shows that Tupelo met the statutory notice requirements. That no order was immediately entered continuing the case to a specific future date and time was of no matter in this instance in light of the following facts.

¶ 10. After Tupelo filed its annexation petition on September 12, Tupelo obtained an order from the chancery court setting November 3 for public hearing on the petition. On October 1, 2008, notices of the public hearing were posted in three separate locations in each of the PAAs, and publication giving notice began on October 2, 2008. A petition in opposition to annexation was filed by 140 individuals on October 6, 2008. At the November 3 hearing, fifteen individual respondents appeared pro se in opposition to annexation, all from PAA “2 North.” The chancery court obtained

[94 So.3d 263]

from all fifteen pro se objectors their names, addresses, and phone numbers for the court's file. The chancery court also questioned each objector as to whether he or she had any interest in testifying and in receiving any future pleadings and discovery filings in the matter. The remainder of the November 3 hearing was devoted to discussions between the court and the respective attorneys regarding discovery schedules; eventually, the hearing was recessed with no new hearing date scheduled. On November 12, 2008, a scheduling order was entered setting discovery and dispositive-motion deadlines. And an order dated December 6, 2008, was entered providing as follows:

It is the Order of this [c]ourt that all who have appeared in this proceeding, whether represented by legal counsel or not, shall provide and be provided with copies of all orders, notices, pleadings, discovery requests and discovery responses. This Order applies in place and stead of the directives obtained by the Court from individual objectors who appeared at the hearing held on November 3, 2008 concerning the desired level of participation of each.

Any pleadings filed or discovery requests propounded by any party after November 3, 2008 and prior to the date of entry of this Order shall be mailed to each individual objector that has appeared in this lawsuit to date. Objectors who appear the date of entry of this Order shall be entitled only to copies of orders, notices, pleadings, discovery requests and discovery responses filed and propounded from and after objector's respective date of appearance.

The record indicates that all pro se objectors who had appeared in the case either through the October 6 petition, or the November 3 hearing, or afterward, were served with copies of all pleadings and discovery filings and provided copies of all orders and notices. This included a copy of the order setting trial for March 29, 2010.


¶ 11. The record also illustrates that an amended scheduling order was entered on February 11, 2009; a second amended scheduling order was entered on May 4, 2009; and a third amended scheduling order was...

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