Fletcher v. Diamondhead Inc.

• Decision Date: 19 January 2012
• Docket Number: No. 2010–AN–00117–SCT.,2010–AN–00117–SCT.
• Parties: John FLETCHER, John McConnon and Tom Leader v. DIAMONDHEAD INCORPORATORS.
• Court: Mississippi Supreme Court

77 So.3d 92

John FLETCHER, John McConnon and Tom Leader

v.DIAMONDHEAD INCORPORATORS.

No. 2010–AN–00117–SCT.

Supreme Court of Mississippi.

Oct. 27, 2011.Rehearing Denied Jan. 19, 2012.

David Neil McCarty, William Michael Kulick, Ocean Springs, Oliver E. Diaz, Jr., attorneys for appellants.

John Preston Scanlon, Jerry L. Mills, Ridgeland, attorneys for appellee.

Before WALLER, C.J., RANDOLPH and CHANDLER, JJ.

CHANDLER, Justice, for the Court:

¶ 1. John Fletcher, John McConnon, and Tom Leader (collectively, “Fletcher”) appeal an order of the Chancery Court of Hancock County incorporating the City of Diamondhead, Mississippi. Fletcher argues that the chancery court lacked jurisdiction over the petition for incorporation because it did not include two-thirds of the signatures of the qualified electors residing in the proposed incorporation area, and notice was improper. Fletcher also argues that objectors to the incorporation were denied the right of cross-examination at the hearing, and that the second chancellor's failure to order a new trial was an abuse of discretion.

¶ 2. This Court finds that the petition for incorporation met the jurisdictional requirements, because notice was proper and the petitioners presented substantial evidence that the petition contained two-thirds of the signatures of the qualified electors residing in the proposed incorporation area. We find that the chancellor did not deny the objectors' right of cross-examination, and the second chancellor's decision not to order a new trial was within his sound discretion. Therefore, we affirm.

FACTS

¶ 3. On July 22, 2008, the Diamondhead Incorporators (Incorporators) filed a petition to incorporate the City of Diamondhead. On August 8, 2008, the chancery court set a hearing on September 15, 2008. On September 15, 2008, both the Incorporators and individual objectors to incorporation appeared, and the chancellor called the matter up for hearing. But then the chancellor recused himself from the case due to the contested nature of the petition, and entered an order of continuance until November 3, 2008. On September 29, 2008, all the chancellors of the Eighth Chancery Court District recused themselves, and on October 8, 2009, this Court appointed Special Chancellor Kenneth Middleton to hear the case. Due to a conflict with the November 3, 2008, hearing date, Chancellor Middleton continued the hearing until January 9, 2009.

¶ 4. The hearing occurred on January 9, 2009. The Incorporators presented the testimony of several members of the Diamondhead Property Owners' Association (POA) about the decision to pursue incorporation and the process of acquiring and compiling the signatures of Diamondhead residents in the petition to incorporate. The Incorporators also presented the testimony of an expert in urban planning and development. After the Incorporators rested, the court heard the sworn testimony and unsworn statements of five individuals who objected to the incorporation. These objectors proceeded pro se. The court also accepted several written statements by various Diamondhead residents who objected to incorporation. Sadly, Chancellor Middleton passed away after the hearing and before ruling on the case.

¶ 5. This Court appointed Special Chancellor Billy Bridges, who ruled on the case. Under Title 21 of the Mississippi Code, after a hearing on a petition for incorporation, a chancellor shall enter a decree declaring the creation of a municipal corporation upon a finding “from the evidence that the proposed incorporation is reasonable and is required by public convenience and necessity.” Miss.Code Ann. § 21–1–17 (Rev.2007). This Court has set out factors for making this determination in Incorporation of the City of Oak Grove v. City Hattiesburg, 684 So.2d 1274, 1276 (Miss.1996) (citing City of Pascagoula v. Scheffler, 487 So.2d 196, 200–02 (Miss.1986)). In his findings of fact and conclusions of law, Chancellor Bridges applied these factors and found that incorporation of the City of Diamondhead was reasonable and required by public convenience and necessity. Chancellor Bridges granted the petition for incorporation. On January 12, 2010, he entered a final decree of incorporation of the City of Diamondhead.

¶ 6. On appeal, Fletcher does not attack the chancellor's finding that incorporation was reasonable and required by public convenience and necessity. Rather, Fletcher argues that the chancery court lacked jurisdiction because the petition lacked the requisite number of signatures and the notice of hearing was inadequate, or that a new trial is required because Chancellor Middleton violated the objectors' right to cross-examine the Incorporators' witnesses, and Chancellor Bridges abused his discretion by failing to hold a new hearing after Chancellor Middleton's death.

I. WHETHER THE TRIAL COURT HAD JURISDICTION TO CONSIDER THE PETITION FOR INCORPORATION.

A. Signature requirement.

¶ 7. Mississippi Code Section 21–1–13 lists the requirements a petition for incorporation “shall” meet:

(1) it shall describe accurately the metes and bounds of the territory proposed to be incorporated and there shall be attached to such petition a map or plat of the boundaries of the proposed municipality;

(2) it shall set forth the corporate name which is desired;

(3) it shall be signed by at least two-thirds of the qualified electors residing in the territory proposed to be incorporated;

(4) it shall set forth the number of inhabitants of such territory;

(5) it shall set forth the assessed valuation of the real property in such territory according to the latest available assessments thereof;

(6) it shall state the aims of the petitioners in seeking said incorporation, and shall set forth the municipal and public services which said municipal corporation proposes to render and the reasons why the public convenience and necessity would be served by the creation of such municipal corporation;

(7) it shall contain a statement of the names of the persons the petitioners desire appointed as officers of such municipality; and

(8) it shall be sworn to by one or more of the petitioners.

Miss.Code Ann. § 21–1–13 (Rev.2007). Petitioners for incorporation have the burden to prove the sufficiency of the petition. In re City of Pearl, 279 So.2d 590, 592 (Miss.1973). “This Court reviews the chancellor's findings for manifest error as to whether a petition for incorporation is legally sufficient.” City of Jackson v. Byram Incorporators, 16 So.3d 662 (Miss.2009) (citing City of Pascagoula v. Scheffler, 487 So.2d 196, 199 (Miss.1986)).

¶ 8. The chancellor determined that the court had jurisdiction over the petition to incorporate the City of Diamondhead because the petition met all requisites of Section 21–1–13. In particular, the chancellor found that the petitioners had presented substantial evidence that the petition contained two-thirds of the signatures of the qualified electors in the proposed incorporation area. Fletcher challenges the chancellor's finding that the petition contained the signatures of two-thirds of the qualified electors in the proposed incorporation area. This Court has held that, if the chancery court determines that a petition does not contain the requisite number of signatures, it must dismiss the petition for lack of jurisdiction. Myrick v. Incorporation of Stringer, 336 So.2d 209, 211 (Miss.1976). Fletcher argues that the chancery court lacked jurisdiction over the petition because it did not include the requisite number of signatures.

¶ 9. “[T]he question of whether the two-thirds requirement ... has been met must be determined by an ascertainment of the number of persons living in the area to be annexed who [on the date the petition was filed] were registered voters in [the proposed incorporation area], and then determining whether two-thirds of that number have signed the complaint.” In re City of Ridgeland, 494 So.2d 348, 352 (Miss.1986) (discussing the two-thirds requirement for annexations). In City of Pascagoula, the incorporators of the City of Gautier canvassed the relevant area and reviewed telephone books, utility consumer rolls, and postal lists to determine the number of qualified electors in the area. City of Pascagoula, 487 So.2d at 200. Then, the incorporators aided the commissioner of elections in removing from the voter rolls the names of persons who had died or moved away. Id. In ruling on a challenge to the petition's compliance with the two-thirds requirement, this Court stated the voter rolls and poll books are “the most viable record” from which to determine the number of qualified electors in a proposed incorporation area. Id. But this was because the incorporators in City of Pascagoula had requested purging of the voters roll before they filed the petition for incorporation. Id. The Court recognized that voter rolls and poll books may be inaccurate due to lack of notice to the clerk when registered voters die or move away. Id. “[C]ounty registration and poll books most accurately reflect the number of qualified electors. However, these records do not remain static, but must be corrected to reflect changes of residences, etc.” Id.

¶ 10. Fletcher argues that the requisite number of signatures is simply calculated as two-thirds of the number of persons listed on the voter rolls applicable to the proposed incorporation area. Fletcher argues that the certified voter rolls on the date the petition was filed and admitted into evidence show that 5,920 qualified electors lived in the Diamondhead community on that date. Two-thirds of that number is 3,947. Because the petition contained only 3,518 signatures, Fletcher argues, the petition did not comply with Section 21–1–13, and dismissal was required.

¶ 11. We reject Fletcher's argument. As recognized in City of Pascagoula, and as demonstrated by the evidence in this case, voter rolls are not conclusive evidence of the number of qualified electors living in the...