Ditto v. Hinds County, Miss.

• Decision Date: 22 November 1995
• Docket Number: No. 92-CA-00635-SCT,92-CA-00635-SCT
• Citation: 665 So.2d 878
• Parties: Kane DITTO, Mayor and City of Jackson, Mississippi v. HINDS COUNTY, MISSISSIPPI and Mississippi Bar Foundation, Inc.
• Court: Mississippi Supreme Court

Page 878

665 So.2d 878

Kane DITTO, Mayor and City of Jackson, Mississippi v. HINDS COUNTY, MISSISSIPPI and Mississippi Bar Foundation, Inc.

No. 92-CA-00635-SCT.

Supreme Court of Mississippi.

Nov. 22, 1995.

Sarah O'Reilly-Evans, Jackson; Leyser Q. Morris, Jackson; Charles T. Rubisoff, Jackson, for Appellants.

Pat H. Scanlon, Scanlon Sessums Parker & Dallas, Jackson; Sean Wesley Ellis, Young Williams Henderson & Fuselier, Jackson; Ruma Haque, Jackson, for Appellees.

Before PRATHER, P.J., and BANKS and McRAE, JJ.

McRAE, Justice, for the Court:

This case involves an appeal from the decision of the Circuit Court of the First Judicial District of Hinds County to dismiss the City of Jackson's petition to have the Mississippi Bar Center, a parcel of real property valued at approximately $1.45 million with furniture and office equipment worth $270,812, removed from its tax exempt status per an agreement with the County. The circuit court concluded that the City of Jackson's appeal from the Hinds County Board of Supervisors was prematurely filed. Because we decline to reach the merits of the case, we are presented with the sole issue of whether the municipality timely appealed to the circuit court the tax assessment decision made by the Board of Supervisors. Pursuant to Miss.Code Ann. § 11-51-77 (1972), we find that the November 20, 1991, appeal by the City of Jackson was timely filed in the circuit court. Therefore, this case is reversed and remanded for a trial on the merits.

The Mississippi Bar Foundation ("Foundation"), a nonprofit corporation organized under the laws of the state of Mississippi, is the exclusive owner of the Mississippi Bar Center, a parcel of real property which houses the Mississippi Bar. The Mississippi Bar has in turn set up the Mississippi Pro Bono Project and the Commission on Continuing Legal Education which are also located in the Bar Center. The organizations which share office space in the Bar Center make rental payments to the Foundation pursuant to an agreement labeled as an "Expense Sharing Agreement." Each organization pays the Foundation an amount of money commensurate with the percentage of the building which is occupied by its own office space. The Foundation admits it uses a portion of the rental income to pay the mortgage on the building.

The City of Jackson, pursuant to its desire to tax the Bar Center, filed a petition with the Board of Supervisors on August 1, 1991, protesting that the County had placed the Bar Center on a tax exempt status. The Board met on August 19, 1991, and voted in favor of the Foundation's property tax exemption after hearing argument from both sides. On November 12, 1991, the Board entered on its minutes its approval of the State Tax Commission's Order on the recapitulation of assessments. The Board gave its final approval of the Foundation's tax exempt status on January 6, 1992, after receiving the certificate from the State Tax Commission approving the tax rolls.

Prior to final approval by the Board, the City of Jackson had already filed a petition in the Circuit Court of Hinds County on November 20, 1991, appealing the Board's decision. On March 13, 1992, the Foundation filed a motion for summary judgment arguing that all property owned by it was tax exempt pursuant to Miss.Code Ann. § 27-31-1 (1972) which exempts certain property owned by nonprofit organizations. At the same time, the Foundation filed and forwarded to the City a set of interrogatories and a request for admissions which were never answered. A hearing on the motion for summary judgment was held on April 3, 1992, but the circuit court never reached the merits of the case. The trial court instead entered an Order sua sponte on June 1, 1992, dismissing the City's appeal finding that the appeal was taken prematurely.

The City appeals to this Court arguing that its case was improperly dismissed on procedural grounds. In a cross-appeal, the Bar Foundation requests that this Court reach the merits of this case and issue a ruling on whether the Foundation should keep its exemption from ad valorem taxes under Miss.Code Ann. § 27-31-1 (Supp.1992); however, it refuses to waive the procedural dismissal decision of the circuit court. The City remains reluctant to have this Court issue a ruling on the merits of this case although it contends that the Foundation can not maintain its tax exempt status based upon the record before this Court. The City contends that they are entitled to complete discovery, and to have a trial on the merits since the trial court dismissed the case solely on procedural grounds.

In addition to concerns expressed by the City, we remain bound by the well established rule that this Court can only review matters on appeal as were considered by the lower court. Terry v. Superintendent of Educ., 211 Miss. 462, 52 So.2d 13 (1951). For this reason, the issue of whether the circuit court erred in holding that the City's November 20, 1991 appeal was not timely made is dispositive of this case. This Court also refuses to deem admitted the unanswered discovery items which were struck from the record by the trial court since the circuit court never reached the merits of the case.

As a preliminary matter, the Foundation strongly objects to the reference in the City's brief to the certified minutes of the November 12, 1991, Board meeting because copies of these minutes were submitted for the first time in the City's brief to this Court. There is much dispute over whether the certified minutes of this meeting should be included in the record. ¹ The Foundation contends that this Court may not consider the November 12, 1991, minutes for purposes of resolving this appeal. It should be noted that the source of this dispute is that the trial court, on its own initiative, dismissed the case on procedural grounds without either party having raised the timely appeal issue.

This Court "may not act upon or consider matters which do not appear in the record and must confine itself to what actually does appear in the record." Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973); see St. Louis Fire & Marine Ins. Co. v. Lewis, 230 So.2d 580, 583 (Miss.1970) (statements of facts found within briefs of counsel will not be considered unless also shown by record.); Moore v. White, 161 Miss. 390, 137 So. 99, 100 (1931) (Court will not act upon material matters which chancellor did not have opportunity to judge). It was clearly the City's duty to make sure the record contained any materials it wanted this Court to review in making its decision.

The City contends that the minutes of the November 12, 1991, meeting were properly included in the trial record by the fact that the trial judge took judicial notice of the contents of all the minutes from the Board of Supervisors including the November 12, 1991, minutes. The trial court Opinion and Order stated,

[i]n order to determine if this appeal is timely, it is important to determine when the Board of Supervisors met to correct the assessment rolls, or to approve the rolls. Since the minutes of the Board of Supervisors and the State Tax Commission are public records, and since no party sought to raise this point, the Court has reviewed these minutes and takes judicial notice of their contents.

M.R.E. 201 governs the situations in which the trial court may take judicial notice of adjudicative facts.

(b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

M.R.E. 201(b). A trial court is permitted to take judicial notice without request from either party, and the facts noticed are conclusive in any civil trial. M.R.E. 201(c), (g).

The facts judicially noticed in the case at hand fall within the second category as they were easily ascertainable through certified public records. The record demonstrates that the trial judge did not delineate between certain minutes by excluding some and accepting others. The trial judge took notice of all the minutes of the State Tax Commission and the Board of Supervisors because the court raised the issue of timeliness on its own.

The Foundation cites State v. Cummings, 203 Miss. 583, 591, 35 So.2d 636, 639 (1948), for the proposition that this Court will not take judicial "notice of a fact, evidenced by a receipt filed here for the first time." See Martin v. McGraw, 249 Miss. 334, 160 So.2d 89, 90 (1964) (Court will not take judicial notice of facts in another proceeding for first time on appeal). This case is distinguished because the lower court in Cummings had not previously taken judicial notice as it had in the case at hand. Judicial notice is not taken for the first time on appeal in the case sub judice since it already occurred in the lower court. The lower court's judicial notice has designated all of the minutes into the trial record and placed them properly before this court. Therefore, this Court accepts as part of the record the certified minutes of the November 12, 1991, Board meeting. ²

The minutes from the November 12, 1991, meeting of the Board of Supervisors stated as follows:

RESOLVED to approve the Order of the State Tax Commission on the Recapitulation of Assessments of Real and Personal Property. Document is affixed hereto and incorporated herein.

Accepting the November 12, 1991, minutes as part of the record through the trial court's judicial notice, this Court must determine whether that was a proper date upon which the City should have initiated its appeal which was ultimately filed on November 20, 1991. A review of the chain of events leading to the approval of the assessment rolls is necessary to an understanding of this case:

August 2, 1991 City filed petition with the Board to change assessment

August 19, 1991 Board met and...