Cook v. Board of Sup'rs of Lowndes County, 07-CA-59185

• Decision Date: 28 November 1990
• Docket Number: No. 07-CA-59185,07-CA-59185
• Citation: 571 So.2d 932
• Parties: Charles L. COOK and Cook's Ambulance Service, Inc., a Corporation, v. BOARD OF SUPERVISORS OF LOWNDES COUNTY, Mississippi, in their Official Capacity.
• Court: Mississippi Supreme Court

Page 932

571 So.2d 932

Charles L. COOK and Cook's Ambulance Service, Inc., a Corporation, v. BOARD OF SUPERVISORS OF LOWNDES COUNTY, Mississippi, in their Official Capacity.

No. 07-CA-59185.

Supreme Court of Mississippi.

Nov. 28, 1990.

Thomas L. Kesler, Columbus, for appellant.

James Walters, Walters & Easley, Columbus, for appellee.

Before ROY NOBLE LEE, C.J., and ROBERTSON and BLASS, JJ.

ROBERTSON, Justice, for the Court:

I.

State law enacts that private enterprise be preferred in the provision of county ambulance service. In today's case a private entrepreneur complains that the Board of Supervisors of Lowndes County, Mississippi, has offended the law by refusing to renew its contract and instead placing the service with the Golden Triangle Regional Medical Center, a public institution.

The statute at issue was enacted as Miss. Laws, Ch. 290, Sec. 5 (1968) and reads:

If there is in operation an adequate privately run ambulance service, then the governing authorities are hereby prohibited from contracting for ambulance services to be run by the public body, but the governing authorities may subsidize such existing privately run ambulance service, in their discretion, if they deem necessary to keep such service in operation.

This law has been codified as Miss.Code Ann. Sec. 41-55-7 (1972).

The Circuit Court allowed the Board to evade the statute. We reverse and remand.

II.

Cook's Ambulance Service, Inc. ("Cook") is a Mississippi corporation having its principal place of business in Columbus, Mississippi. Charles L. Cook is the corporation's sole stockholder and principal operating officer. Beginning in 1984, Cook provided ambulance service to Lowndes County under a contract with the Board of Supervisors. This contract was scheduled to expire on April 1, 1988. Prior to 1984, county ambulance service had been provided by Haynes Ambulance Service, Inc., another private concern, operating out of Bessemer, Alabama.

In 1986, several members of the Lowndes County Medical Association began writing to and visiting with members of the Board of Supervisors arguing the need for upgrading emergency medical service in the area. The specific concern was lack of adequate paramedic service attendant to the ambulance service. At one point the supervisors met with the medical community in the annex to the Golden Triangle Regional Medical Center to discuss the subject.

Without prior notice to Cook or advice that its contract would not be renewed or that the service it was providing was regarded inadequate, the Board of Supervisors, on December 11, 1988, approved a resolution to the effect that, from and after April 1, 1988, the county ambulance service should be provided through the Golden Triangle Regional Medical Center. Golden Triangle is a public agency established in 1942 under the old federal Hill-Burton hospital program. In its resolution, the Board of Supervisors found

... that the need exists in Lowndes County, Mississippi, for the ambulance and related services proposed by said hospital [Golden Triangle] which would not otherwise be available....

This finding was an apparent reference to Section 41-55-7's proviso that private entrepreneurs be preferred only "if there is in operation an adequate privately run ambulance service" and the complementary provision of Miss.Code Ann. Sec. 41-55-1 (1972) which authorizes the Board to provide ambulance service through public bodies

... upon finding that adequate public ambulance service would not otherwise be available....

Upon learning of the Board's action, Cook requested in writing that it be notified when the Board was going to convene to consider under the statutes the factual criteria granting the preference to private enterprise. The Board did not respond, nor did it hold a hearing but instead, and somewhat at odds with its December 11 resolution, placed the ambulance service contract up for bids for the four-year term beginning April 1, 1988. The Board received bids in acceptable form as follows:

Haynes Ambulance Service, Inc.

Bessemer, Alabama $1,225,000.00

Cook's Ambulance, Inc.

Columbus, Mississippi 923,000.00

Willie Goss Ambulance Service

Kosciusko, Mississippi 1,070,000.00

Golden Triangle Regional Medical Center

Columbus, Mississippi 500,000.00

On February 3, 1988, the Board accepted Golden Triangle's bid, and seven days later Cook's Ambulance Service, Inc. commenced the present action in the Circuit Court of Lowndes County, Mississippi. Cook styled his action one for a writ of prohibition. The Circuit Court cut through the form and heard the matter on its merits ¹ and on March 8, 1988, dismissed Cook's action. The Court acknowledged that

The only real question before the Court is whether the defendants [Board of Supervisors] have complied ... [with] Section 41-55-7.

The Court found that it had on grounds

The evidence indicated that additional services were required, namely paramedics and Defendants needed ambulance service for the County and such service was not provided by the Plaintiff [Cook's Ambulance Service, Inc].

Cook now appeals to this Court.

III.

We have considered whether this is one of those matters where judicial review lies only via appeal through that familiar process where the party aggrieved by board action files a bill of exceptions in circuit court. Miss.Code Ann. Sec. 11-51-75 (1972); Moore v. Sanders, 569 So.2d 1148, 1149, (Miss.1990); Shannon Chair Company v. City of Houston, 295 So.2d 753, 754 (Miss.1974). This process contemplates the circuit court sitting in an appellate capacity, see Thornton v. Wayne County Election Commission, 272 So.2d 298, 302 (Miss.1973), which in turn contemplates the board having held a hearing on the matter in issue, albeit not necessarily one according to the form of a trial in a court of law. Nothing here suggests the board held any such hearing. Nothing preceding the December 11, resolution has been preserved so that it may be reviewed. The same is true of the February 3 resolution accepting Golden Triangle's bid.

This becomes one of those cases where a party with standing challenges board action on grounds it is ultra vires and where that party is entitled to proceed de novo. In any event, Cook filed in Circuit Court within ten days and, if it were necessary, we could simply treat Cook's petition for writ of prohibition as an appeal. See, e.g., Canton Farm Equipment, Inc. v. Richardson, 501 So.2d 1098, 1102-05 (Miss.1987). More than eight years ago we declared there was but one form of civil action, see Rule 2, Miss.R.Civ.P., Dye v. State ex rel. Hale, 507 So.2d 332, 337 n. 4 (Miss.1987); Hall v. Corbin, 478 So.2d 253, 256 (Miss.1985), and are not about to get hung up on the label Cook placed on the papers it filed in Circuit Court. Shannon v. Henson, 499 So.2d 758, 762 (Miss.1986); Moore v. Moore, 451 So.2d 226, 227 (Miss.1984). The Circuit Court correctly allowed the parties to present evidence, all of which was received without Board objection.

IV.

Cook begins urging the traditional view of the limited authority of boards of supervisors, e.g., H.K. Porter Co., Inc. v. Board of Supervisors of Jackson County, 324 So.2d 746, 754 (Miss.1975) (board has no authority other than that delegated to it by the legislature); State of Mississippi v. Board of Supervisors of Warren County, 233 Miss. 240, 267, 102 So.2d 198, 208 (1958) (same); Howe v. State, 53 Miss. 57 (1876) (same). That view has been significantly relaxed. Miss.Code Ann. Sec. 19-3-40 (Supp.1990); Harrison County v. City of Gulfport, 557 So.2d 780, 784-85 (Miss.1990). The point need not detain us, for the Board does not deny it is subject to Sections 41-55-7, only that its strictures have been met.

Before the Circuit Court the parties developed the history of ambulance service in Lowndes County. Until the late 1960's, local funeral homes provided the service. Following the enactment of the 1968 statute, the Board of Supervisors took up the matter and on February 3, 1969, entered into a contract with Golden Triangle's predecessor, the Lowndes County General Hospital, for the provision of public ambulance service upon a finding "that no adequate public ambulance service is [otherwise] available to the citizens of the county...." Some years later, the service was placed in private hands, first through Haynes, and in 1984 the contract was awarded to Cook.

Questions of the adequacy of Cook's service centered around the fact that he did not provide paramedical service as an auxiliary to his ambulance service. Several years into the contract the county purchased for Cook a defibrillator to be used primarily in cardiac emergencies. Cook used the defibrillator monitoring patients being taken to the hospital but did not have personnel qualified to use its other capabilities. The contract, however, did not obligate Cook to provide the paramedical service.

The only deficiency the Board charged to Cook under his existing contract was his alleged failure to provide monthly financial reports. The contract required that Cook furnish to the Board of Supervisors a C.P.A.-prepared monthly operating financial statement. Cook said he made monthly reports but conceded they did not meet the standards of the contract. No one suggests, however, that this was the grounds upon which the Board determined not to renew Cook's contract but, rather, to contract with Golden Triangle.

Much is made in the record of additional and upgraded services Golden Triangle will be providing. Again, this has largely to do with the provision of paramedical services. Significantly, and without contradiction, the record reflects that as of the Spring of 1988, Golden Triangle possessed no ambulance or related service capabilities Cook did not possess. Under the Board's upgrade plan, Golden Triangle would send its personnel, at the county's expense, to the Northeast Emergency Medical Services training center in Tupelo, Mississippi, where physicians, nurses and paramedicals...