Falco Lime, Inc. v. Mayor & Aldermen of City of Vicksburg
| Decision Date | 24 October 2002 |
| Docket Number | No. 1999-CA-01284-SCT, No. 1999-CA-01277-SCT. |
| Parties | FALCO LIME, INC., L & L Aviation, Inc., Larry L. Lambiotte, J. Fred Farrell, Letourneau, Inc., Lawson'S Aviation Service, Inc., John G. Peterson d/b/a Vicksburg Engineering & Manufacturing, Nassour Aviation, Inc., J. Michael Nassour, Richard Tucker d/b/a Avcon, Benny May d/b/a Pilot Services Co., Charles Wayne Brown d/b/a South Delta Aviation, Frank A. May, General Aviation Services of Mississippi, Inc., Cappaert Enterprises, A Limited Partnership, Cappaert Manufactured Housing, Inc., Michael L. Cappaert And Ernest G. Thomas v. The MAYOR AND ALDERMEN OF THE CITY OF VICKSBURG. The Mayor and Aldermen of the City of Vicksburg, Robert M. Walker, Individually, Samuel D. Habeeb, Individually and Gertrude A. Young, Individually v. Falco Lime, Inc., L & L Aviation, Inc., Larry L. Lambiotte, J. Fred Farrell, Letourneau, Inc., Lawson's Aviation Service, Inc., John G. Peterson d/b/a Vicksburg Engineering & Manufacturing, Nassour Aviation, Inc., J. Michael Nassour, Richard Tucker d/b/a Avcon, Benny May d/b/a Pilot Services Co., Charles Wayne Brown d/b/a South Delta Aviation, Frank A. May, General Aviation Services of Mississippi, Inc., Cappaert Enterprises, A Limited Partnership, Cappaert Manufactured Housing, Inc., Michael L. Cappaert And Ernest G. Thomas. |
| Court | Mississippi Supreme Court |
Kenneth M. Harper, Vicksburg, Henry Dean Andrews, Wes W. Peters, Jackson, attorneys for appellees.
John L. Maxey, II, John F. Hawkins, Jackson, Christina Carroll, Timothy Dale Crawley, Gulfport, Nancy Davis Thomas, Vicksburg, P. Sharkey Burke, Jr., Gulfport, attorneys for appellees.
EN BANC.
COBB, J., for the court.
¶ 1. Two cases are consolidated in the present matter. In the first case, Mayor Robert M. Walker, and aldermen Samuel D. Habeeb and Gertrude A. Young of the City of Vicksburg (hereinafter "the Board") appeal the July 7, 1999, judgment of the Warren County Circuit Court, which permanently enjoined the Board from closing the Vicksburg Municipal Airport (hereinafter "VKS")1 "until such time as other adequate facilities are provided which can accommodate all of the aircraft at VKS to include adequate hangers [sic] for those aircraft hangered at VKS, and can handle the same aircraft load without flooding, crowded taxiways and apron, or other safety hazards." The Board also appeals the circuit court's entry of partial summary judgment against it on December 14, 1998, in which the court found that the Board was required to create a "separate corporate authority" under Miss.Code Ann. §§ 61-3-5 or 61-3-7 before it could "act under the Airport Authorities Law" to jointly operate the Vicksburg Tallulah Regional Airport ("VTR") with Warren County and a Louisiana city and parish.
¶ 2. A host of Vicksburg businesses, as shown in the style of this case, and for convenience and clarity referred to as "Falco" after Falco Lime, Inc., the party first named therein, filed a cross-appeal. Falco sought not only to reverse the closure of VKS but to recover from the members of the Board all funds appropriated by them for VTR as well as the reasonable attorney fees and costs expended by Falco in litigating this action. The circuit court refused to find the Board personally liable in their individual capacities for either funds or fees, and Falco asks this Court to reverse the trial court's judgment.
¶ 3. The second case consolidated in this appeal is Falco's own appeal from another judgment of the Warren County Circuit Court, dated June 30, 1999, which dismissed Falco's appeal of the Board's decision to create a municipal airport authority and to appoint two commissioners to that authority who allegedly were in violation of section 109 of our state constitution.
FACTS AND PROCEEDINGS
¶ 4. In 1950, VKS was opened to the public. The airport was built on property purchased from G.E. and Belvie Bobb in 1947 for $47,350.00. The warranty deed for the property made no mention of the land's intended use.
¶ 5. Beginning in 1983, four political subdivisions (the City of Vicksburg and Warren County, Mississippi, and the City of Tallulah and Madison Parish, Louisiana) agreed to create and operate a new, more modern airport, VTR. They agreed to create a five-member board that would oversee VTR and be its funding vehicle. This agreement specifically cited § 61-3-67 of the Mississippi Code as authority. A new agreement in 1997 between the same parties also cited the same statute.
¶ 6. The 1997 agreement included the statement that Vicksburg "agrees to cease operating or providing funds for [VKS] as an airport from and after April 1, 1998." On February 25, 1998, the Board voted two to one to stop financing VKS and to close it, effective March 31, 1998.
¶ 7. The "Falco" parties, all of whom used VKS or otherwise benefitted from it, filed a flurry of actions in chancery, circuit, and county courts on March 6, 1998, seeking to keep VKS open and to recover from the Board in their individual capacities all the tax money that the Board had expended on VTR, as well as Falco's reasonable attorney fees and expenses. The circuit court considered these claims under Falco's bill of exceptions (seeking to permanently enjoin the closure) as well as under its amended complaint (seeking to enjoin the closure and to impose personal liability). The circuit court granted a temporary restraining order on March 23, which was converted to a preliminary injunction on April 20. In December 1998, it granted partial summary judgment against the Board, ruling that the Board could not conduct joint operations with Louisiana entities or fund VTR unless and until the Board created a separate airport authority. Sections 61-3-5 and 61-3-7 were cited by the circuit court as justifying this ruling.
¶ 8. In March, 1999, while the remainder of the case was pending, the Board voted to create a municipal airport authority and appointed five commissioners to it. Falco responded with a new suit, heard by the same circuit court.2 The new suit alleged that the Board's creation of a municipal, as opposed to a regional, authority for its dealings with VTR was contrary to Mississippi law, and that two of the appointed commissioners were ineligible for service due to section 109 conflicts.
¶ 9. In the first action, an opinion was entered on June 3, 1999, which concluded that (1) the Board acted arbitrarily and capriciously in closing VKS; (2) VKS had been dedicated by implication to use as a public airport; (3) the Board would be permanently enjoined from closing VKS until VTR's facilities met the court's approval; (4) no writ of prohibition or mandamus would be issued; and (5) the Board's members were not personally liable for funds spent on VTR in accord with the 1997 agreement, or for Falco's attorney fees and costs.
¶ 10. In the second action, on June 30, 1999, the other judge upheld the Board's creation of a municipal airport authority, found no evidence of section 109 violations, and dismissed the appeal as well as the Board's then-moot motion to stay.
¶ 11. Appealing from the first action, the Board assigns the following errors (edited):
I. Whether Falco's exclusive remedy was by notice of appeal and bill of exceptions as per § 11-51-75, not by a suit for a temporary restraining order and preliminary injunction.
II. Whether the Board acted without substantial evidence in closing VKS.
III. Whether VKS was dedicated by implication or otherwise to use as a public airport.
IV. Whether the Board could enter into a joint operations agreement without forming a separate airport authority.
V. Whether the circuit court erred in issuing its permanent injunction.
¶ 12. On cross-appeal, Falco adds the following assignments of error (edited):
VI. Whether the Board's members should have been held personally liable for taxes spent on VTR.
VII. Whether the Board's members should have been held personally liable for taxes spent on their attorney fees and costs.
¶ 13. Appealing from the judgment issued in the second case, Falco assigns the following errors (edited):
VIII. Whether the circuit court erred in affirming the Board's creation of a municipal airport authority.
IX. Whether section 109 violations were committed in appointing commissioners to the authority.
X. Whether the circuit court committed reversible error in denying Falco a meaningful opportunity to be heard on the merits of its bill of exceptions.
¶ 14. For the reasons set forth below, we reverse and render in part, remand in part, and affirm in part the trial court's decision in the first case and affirm the trial court in the second case.
DISCUSSION
¶ 15. The Board complains that in the present matter, the circuit court acted as a trial court, allowing extensive discovery and an 11-day trial (generating 17 volumes of testimony), rather than as an appellate court that would have confined itself to reviewing the bill of exceptions. It argues that because Falco's complaint was in reality a challenge to the Board's legislative act in ordering VKS closed, the bill of exceptions was the only proper means of proceeding. It also cites as error the circuit court's grant of temporary and permanent injunctions against the closure of the airport.
¶ 16. Miss.Code Ann. § 11-51-75 (2002) reads in pertinent part:
Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village, may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision, and may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the person acting as president of the board of...
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