IN RE BOUNDARIES OF CITY OF HATTIESBURG

• Decision Date: 06 February 2003
• Docket Number: No. 2001-AN-00634-SCT.,2001-AN-00634-SCT.
• Citation: 840 So.2d 69
• Parties: In the Matter of the EXTENSION OF the BOUNDARIES OF the CITY OF HATTIESBURG, Mississippi; Lamar County, Mississippi, Lamar County Mississippi Board of Supervisors, Dennis Pierce, Inc., Dennis Pierce, Individually, Oak Grove Concerned Citizens, Inc., Thomas Price, Melva Maples, Craig Flanagan, David Cox, Bill Hover and Joyce Hover v. CITY OF HATTIESBURG, Mississippi.
• Court: Mississippi Supreme Court

840 So.2d 69

In the Matter of the EXTENSION OF the BOUNDARIES OF the CITY OF HATTIESBURG, Mississippi; Lamar County, Mississippi, Lamar County Mississippi Board of Supervisors, Dennis Pierce, Inc., Dennis Pierce, Individually, Oak Grove Concerned Citizens, Inc., Thomas Price, Melva Maples, Craig Flanagan, David Cox, Bill Hover and Joyce Hover v. CITY OF HATTIESBURG, Mississippi.

No. 2001-AN-00634-SCT.

Supreme Court of Mississippi.

February 6, 2003.

Rehearing Denied March 27, 2003.

William Jenkins Gamble, III, Purvis, William H. Jones, Petal, Jack B. Weldy, Anthony Alan Mozingo, Joseph Edgar Fillingane, Hattiesburg, attorneys for appellants.

Jerry L. Mills, Ridgeland, Charles E. Lawrence, Hattiesburg, attorneys for appellee.

EN BANC.

CARLSON, J., for the Court.

¶ 1. Feeling aggrieved due to the special chancellor's entry of a final judgment on March 7, 2001, which judgment had the practical effect of granting the City of Hattiesburg's petition to annex five (5) separate and non-contiguous parcels of land located in neighboring Lamar County, thereby causing Hattiesburg (the county seat of Forrest County) to move further into Lamar County, the appellants/objectors¹ have appealed to this Court seeking relief by way of this Court's setting aside the chancellor's judgment granting annexation. Acknowledging once again the judiciary's limited role in determining whether a municipality's exercise of its legislatively granted authority to enlarge its boundaries via annexation is reasonable, given the totality of the circumstances, we affirm the judgment of the Lamar County Chancery Court granting Hattiesburg's petition to annex, but we do so only after meticulous consideration of the record and the applicable law.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. In June, 1999, the City of Hattiesburg (hereinafter "City" or "Hattiesburg"), adopted an ordinance seeking to annex five (5) separate and non-contiguous parcels of land lying wholly within adjoining Lamar County, with each of the five (5) parcels of land being contiguous to the City's existing boundaries.² Upon a complaint for annexation being filed in chancery court, the objectors discovered certain errors within the legal description of a portion of the proposed property annexation (PPA)³ and filed a motion to dismiss. Evidently acknowledging fatal error due to an incorrect legal description in at least one parcel sought to be annexed, the City voluntarily dismissed its chancery court action to annex.

¶ 3. However, the City acted in a reasonably prompt manner by re-adopting its annexation ordinance, with supposedly corrected legal descriptions of the PPA, at a specially called meeting on September 14, 1999. The very next day, the City filed in the Chancery Court of Lamar County, Mississippi, its "Complaint in the Nature of a Petition for Ratification, Approval and Confirmation of an Ordinance Extending and Enlarging the Boundaries of the City of Hattiesburg, Mississippi," attaching to its complaint, a certified copy of the newly adopted ordinance. In accordance with Miss.Code Ann. § 21-1-27, the City's ordinance contained legal descriptions of each of the five (5) parcels of land sought to be annexed, and a legal description defining the entire boundary of the City, as enlarged after annexation. Also, pursuant to § 21-1-27, the City's ordinance (via Sections 3 and 4) described in general terms the proposed improvements to be made in the PPA, the manner and extent of such improvements, and a timetable for making the improvements, and contained a statement as to the municipal and public services to be furnished by the City to the PPA.

¶ 4. The three Chancellors of the Tenth Chancery Court District recused themselves from this case, for good cause, and the Chief Justice of this Court appointed Honorable Thomas Wright Teel, one of the Chancellors from the Eighth Chancery Court District, to preside in this case.⁴ From this point forward, there was considerable activity in the life of this annexation case, as numerous pleadings, including various objections, were filed, and extensive discovery was conducted by the parties. Of considerable note is a hearing conducted by Chancellor Teel on June 16, 2000, which hearing was memorialized by the chancellor's entry of a nine-page order on June 23, 2000. This order, inter alia, (1) granted the City's motion to amend its pleadings by way of correcting certain legal descriptions of the PPA, (2) denied various objectors' motions to dismiss and motion to bifurcate, (3) directed the City, upon the filing of its amended petition, to republish and re-post notice as required by law and consistent with the order, (4) allowed the objectors to likewise amend their pleadings, and (5) canceled the then existing August, 2000 trial date.

¶ 5. It is worth noting here that this Court finds the allegations of the City's motion to amend the legal descriptions to be enlightening, because in its motion, the City alleges, inter alia:

1. That on or about the 22nd day of June, 1999, [the City] adopted and (sic) ordinance seeking to annex the territory sought herein. In response thereto, the Lamar County engineer was engaged by objectors to review the legal description thereof. As a result of said review, he submitted a letter setting out alleged errors he found in said description. A copy of this letter is attached hereto, as Exhibit A.

2. Thereafter certain parties objecting (sic) to the proceedings setting out only one of the alleged errors the County Engineer reported to them in his review of the pleadings. As a result, [the City] dismissed the pending litigation, corrected the only alleged error, readopted its ordinance, and refilled (sic) this matter.

3. Upon the refilling (sic), the objectors raised other alleged errors which were set out in Exhibit A, but not disclosed to [the City] or the Court in the pervious (sic) filings. During discovery, Exhibit A was first provided to movant.

4. Following the production of Exhibit A, [the City] sought to take the deposition of the County Engineer to make certain that his review revealed no other alleged errors. The deposition was delayed until May. When the deposition was taken Mr. Walker, the County Engineer, testified that the description as contained in the current ordinance contained two typographical errors, but as an engineer he could located (sic) the territory on the ground. Additionally, he was able to plat the areas sought to be annexed.

5. [The City] desires to amend its ordinance and pleadings so as to remove any room for question or doubt as to the description.

6. [The City] seeks to neither add or (sic) remove any property form (sic) the area sought to be annexed.

7. No party would suffer any prejudice as a result of the proposed amendment.

The attached Exhibit A to which reference is made in the City's motion to amend is indeed a letter of July 23, 1999 from Engineer Walker to counsel for the objectors, wherein Walker reveals five (5) errors in the legal descriptions, three of the errors pertaining to the legal description of Parcel A and two of the errors pertaining to the legal description of Parcel C. Yet, it is disturbing to the Court that evidently only one of the five errors was disclosed by counsel for the objectors. Upon learning of this "one" error in the legal descriptions of the PPA, the City sought and obtained a court dismissal of its initial annexation petition, and then filed the second annexation petition with the "one" correction in the legal descriptions; however, as the responsive pleadings began to be filed by the various parties to this second annexation petition, the other four errors in the legal descriptions were revealed (evidently for the first time) to the City. Chancellor Teel noted this fact in his order granting the amended legal descriptions when he stated that since Lamar County notified the City of only one error in the property descriptions, the remaining "undisclosed errors pertaining to the descriptions of parcels remained uncorrected in the ordinance and petition filed in the instant action."

¶ 6. On July 7, 2000, certain objectors, feeling aggrieved by the chancellor's grant of the City's motion to amend certain legal descriptions of the PPA, filed a motion for interlocutory appeal pursuant to the Mississippi Rules of Appellate Procedure (M.R.A.P.).⁵ The chancellor, by order entered on August 31, 2000, granted the objectors' motion and certified this issue to this Court for consideration via an interlocutory appeal.⁶ By order dated October 10, 2001, a three-judge panel of this Court denied the objectors' petition for an interlocutory appeal.

¶ 7. Pursuant to prior order setting the City's amended complaint/petition for annexation for hearing, the chancellor called this case up for hearing on February 5, 2001, at the Lamar County Courthouse in Purvis.⁷ On that day, two attorneys appeared for the first time in this action, stating that they had been recently retained to represent various objectors and that they needed a continuance to prepare. The chancellor considered and denied their motions, proceeded to a hearing which lasted twelve (12) days, over a period from February 5, 2001, through February 20, 2001, and at the end of the hearing, took this case under advisement for further consideration of the testimony of the witnesses, arguments of counsel, the pleadings, numerous exhibits, and the applicable law. On March 7, 2001, the chancellor entered a thorough thirty-one page judgment which granted in toto Hattiesburg's annexation petition. Within the chancellor's judgment, there is contained a succinct description of Hattiesburg, its annexation history, and, a description of the 5 parcels comprising the PPA:

Hattiesburg is a city covering 49.7 square miles with roughly 49,233 people. Although most of Hattiesburg lies within Forrest County, a portion lies within neighboring Lamar County. Lamar County has, including residents of

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