In re City of Clinton

• Decision Date: 26 January 2006
• Docket Number: No. 2004-AN-01436-SCT.,2004-AN-01436-SCT.
• Parties: In the Matter of the ENLARGEMENT AND EXTENSION OF the MUNICIPAL BOUNDARIES OF the CITY OF CLINTON, Mississippi. David Weeks, Myra Jane Hale, Lucas L. Hale, R. Mitchell HALE, and Suzyn B. Hale, d/b/a Hale Fireworks, LLC v. City of Clinton, Mississippi.
• Court: Mississippi Supreme Court

920 So.2d 452

In the Matter of the ENLARGEMENT AND EXTENSION OF the MUNICIPAL BOUNDARIES OF the CITY OF CLINTON, Mississippi.

David Weeks, Myra Jane Hale, Lucas L. Hale, R. Mitchell HALE, and Suzyn B. Hale, d/b/a Hale Fireworks, LLC v. City of Clinton, Mississippi.

No. 2004-AN-01436-SCT.

Supreme Court of Mississippi.

January 26, 2006.

T. Jackson Lyons, Jackson, John R. Reeves, John Justin King, attorneys for appellants.

Jerry L. Mills, Kenneth R. Dreher, Ridgeland, attorneys for appellee.

Before WALLER, P.J., DICKINSON and RANDOLPH, JJ.

WALLER, Presiding Justice, for the Court.

¶ 1. Various owners of land annexed by the City of Clinton appeal from the judgment and order of the Chancery Court of the Second Judicial District of Hinds County approving the plan of annexation. We vacate and remand for failure of the learned chancellor to address the twelve indicia of reasonableness in support of his decision to approve the annexation.

STATEMENT OF THE CASE

¶ 2. On January 29, 2003, after years of consulting with city planning firms, the City of Clinton filed a complaint in the nature of a petition for the annexation of certain areas outside the city limits of Clinton. Chancellor Stuart Robinson heard testimony and was presented evidence from both the City of Clinton and objectors to the annexation in a hearing held in June of 2003. The chancellor gave a brief ruling from the bench and then entered a final judgment approving the City of Clinton's annexation plan. A number of objectors filed timely appeals to this Court seeking reversal of the chancellor's decision to allow the annexation.

¶ 3. On appeal, the objectors challenge the notice-based jurisdiction of the chancery court, object to possible bias in the chancellor's decision, and find fault in the chancellor's failure to specifically address the twelve indicia of reasonableness for annexation cases outlined by this Court. Additionally, the City of Clinton, in addition to disputing the issues raised by the objectors, argues that members of the Hale family d/b/a Hale Fireworks, L.L.C. have no standing to participate in this appeal.

STANDARD OF REVIEW

¶ 4. We may reverse a chancellor's determination that an annexation is either reasonable or unreasonable only if that decision is manifestly erroneous or is unsupported by substantial credible evidence. In re Extension of the Boundaries of the City of Batesville, Panola County, 760 So.2d 697, 699 (Miss.2000); In Re the Enlargement and Extension of the Municipal Boundaries of the City of Biloxi, 744 So.2d 270, 277 (Miss.1999) (citing McElhaney v. City of Horn Lake, 501 So.2d 401, 403 (Miss.1987); Extension of Boundaries of City of Moss Point v. Sherman, 492 So.2d 289, 290 (Miss.1986); Enlargement of Boundaries of Yazoo City v. City of Yazoo City, 452 So.2d 837, 838 (Miss. 1984); Matter of Extension of Boundaries of City of Clinton, 450 So.2d 85, 89 (Miss.1984)). "Where there is conflicting, credible evidence, we defer to the findings below." City of Batesville, 760 So.2d at 699 (quoting Bassett v. Town of Taylorsville, 542 So.2d 918, 921 (Miss.1989)). "Findings of fact made in the context of conflicting, credible evidence may not be disturbed unless this Court can say that from all the evidence that such findings are manifestly wrong, given the weight of the evidence." Bassett, 542 So.2d at 921. "We only reverse where the Chancery Court has employed erroneous legal standards or where we are left with a firm and definite conviction that a mistake has been made." Id. (citing City of Biloxi, 744 So.2d at 277.)

ANALYSIS

I. Whether Members of the Hale Family have Standing as Appellants to Appeal

¶ 5. Among those appealing the chancellor's decision to allow the annexation are members of the Hale family. The Hale family was not among the original objectors because they assert they never had notice of the hearing and, thus, were absent from the proceedings in chancery court. Though not parties to the original action, the Hales are still allowed to appeal the approval of annexation if their property rights were adjudicated by the chancellor's decision. See Sperry Rand Corp. v. City of Jackson, 245 So.2d 574, 575 (Miss.1971).

¶ 6. The City of Clinton asserts, however, that members of the Hale family lack the requisite standing necessary to properly perfect an appeal in this case because the Hale family listed themselves on their Notice of Appeal by their individual names followed by "d/b/a Hale Fireworks, L.L.C., A Missouri Limited Liability Company." Because the trade name of Hale Fireworks was included after the names of individual members of the Hale family, the City argues the real party in interest is the company — which has no property in Mississippi and thus may lack standing to challenge the annexation decision of the chancery court. While it is true that the land has sometimes been used by the Hales to sell fireworks, members of the Hale family have presented affidavits and evidence, such as certified warranty deeds, that they, and not their business, are landowners in the part of the area approved for annexation by the chancery court and, thus, have standing to appeal the decision. Id; see also Harrison County v. City of Gulfport, 557 So.2d 780, 782-83 (Miss. 1990). Because the Hales have produced documentary proof of their interest in the chancery court's decision concerning the annexation in question, we find the City's contention that members of the Hale family are without standing to challenge the annexation without merit.

¶ 7. The Hale objectors also ask us to sanction the City for attempting to remove them from this appeal due to a lack of standing. The Hales argue that the City's motion to strike their brief was filed with no chance of success and, thus, was a frivolous motion appropriate for sanctions under Rule 46(d) of the Mississippi Rules of Appellate Procedure. The City's motion to strike was predicated on a theory that the Hales' business was the real party in interest. Being incorporated in Missouri, the City asked us to explore the possibility that standing was absent due to the out of state citizenship of the corporation. After reviewing the City's motion to strike, we find that, while the City's argument ultimately was not successful, it cannot be classified as frivolous and does not warrant sanctions under M.R.A.P. 46(d). The Hales' request for sanctions is denied.

II. Whether Adequate Notice of the Annexation Hearing was Given

¶ 8. Objectors to the annexation also contend the chancery court was without jurisdiction to hear the case because proper notice was not given. The City of Clinton argues that because the issue of notice was not raised before the chancery court, the objectors are procedurally barred from raising it now. The City's argument is completely without merit. While issues not raised at the trial court are typically not permitted to be argued on appeal, the issue of notice in annexation cases has been specifically classified as jurisdictional by this Court and may be raised for the first time on appeal. Norwood v. City of Itta Bena, 788 So.2d 747, 751 (Miss.2001) (citing Myrick v. Stringer, 336 So.2d 209, 210-11 (Miss.1976)).

¶ 9. Turning to the Hales' contention that inadequate notice was provided, we note that Miss.Code Ann. Section 21-1-31 (Rev.2001) provides notice of a hearing on a proposed area of annexation must be given in the same way notice is given under Miss.Code Ann. Section 21-1-15 (Rev.2001) for the creation of municipal corporations. Miss.Code Ann. Section 21-1-15 (Rev.2001) requires notice be published in a newspaper as well as the posting of such notice in public places:

The said notice shall be given by publication thereof in some newspaper published or having a general circulation in the territory proposed to be incorporated once each week for three consecutive weeks, and by posting a copy of such notice in three or more public places in such territory. The first publication of such notice and the posted notice shall be made at least thirty days prior to the day fixed for the hearing of said petition, and such notice shall contain a full description of the territory proposed to be incorporated.

However, if any of the territory proposed to be incorporated is located within three miles of the boundaries of an existing municipality, then such existing municipality shall be made a party defendant to such petition and shall be served with process in the manner provided by law, which process shall be served at least thirty days prior to the date set for the hearing.

Miss.Code Ann. § 21-1-15 (Rev.2001). We have specifically stated that failure to give proper notice in annexation cases renders a chancery court without jurisdiction to hear the case at all. Norwood, 788 So.2d at 751(citing Myrick, 336 So.2d at 210-11).

¶ 10. The Hale objectors contend the City failed to prove notice was given. The City filed the affidavit of Richard Broome as proof that notice had been properly provided. In his affidavit, Broome stated under oath the locations where he had posted copies of the notice of the hearing. Additionally, a copy of the notice published in the Clarion-Ledger was filed along with the sworn statement of a Clarion-Ledger employee verifying the authenticity of the notice and dates of its publication. Broome did not appear at the hearing, and only his affidavit was submitted as proof of notice. At the City's request, the chancellor took judicial notice of the affidavits as evidence that all notice requirements had been met in the case. The chancellor's decision to take such notice was met with no objection by any of those appearing to oppose the annexation. It is from this specific decision that the Hales appeal. The Hales argue the affidavit was insufficient to provide proof of notice because such an affidavit is untrustworthy and an illegal admission of hearsay. We have addressed similar issues before and stated that the burden is on those...