Lange v. City of Batesville, 2007-CA-00533-COA.

CourtCourt of Appeals of Mississippi
Citation972 So.2d 11
Docket NumberNo. 2007-CA-00533-COA.,2007-CA-00533-COA.
PartiesJulia W. LANGE, David L. Lange, James S. Whitaker, Jr. and James S. Whitaker, Sr., by and through the Executrix of the Estate, Joyce Whitaker, Appellants v. CITY OF BATESVILLE, Appellee.
Decision Date08 January 2008
972 So.2d 11
Julia W. LANGE, David L. Lange, James S. Whitaker, Jr. and James S. Whitaker, Sr., by and through the Executrix of the Estate, Joyce Whitaker, Appellants
No. 2007-CA-00533-COA.
Court of Appeals of Mississippi.
January 8, 2008.

[972 So.2d 13]

Edward P. Connell, Charles M. Merkel, Clarksdale, attorneys for appellants.

Benjamin E. Griffith, Cleveland, Michael Stephen Carr, Brookhaven, attorneys for appellee.


ROBERTS, J., for the Court.


¶ 1. The appellants (the Whitakers) and Panola County entered into an agreement under which the appellants agreed to give the county 70,000 cubic yards of dirt to be used for future construction in exchange for a "public road" the county would build on the appellants' land. After the county realized it was financially unable to complete the project, the City of Batesville

972 So.2d 14

(the City) agreed to take over the project and the agreement with the appellants. Confusion over the specifics of the road arose, and the Whitakers began their legal battle with a bill of exceptions that ultimately led to their current complaint for breach of contract filed with the Circuit Court of Panola County. The City subsequently filed a motion for summary judgment, which the trial court granted. This appeal followed.


¶ 2. With the current appeal, the parties find themselves before this Court for the second time. See Lange v. City of Batesville, 832 So.2d 1236 (Miss.Ct.App.2002) (Lange I). As a majority of the underlying facts relevant to the current review were previously stated in sufficient detail in Lange I we now restate those facts verbatim.

Panola County developed plans for construction of an arena on property east of Interstate 55 and south of Highway 6 East in Batesville, Mississippi. The County's architect, the Warrior Group, LTD, prepared drawings for what was called the "Arena Project." Those drawings included both the layout of the buildings to be constructed as well as parking lots and a five-lane road leading from the project and intersecting with Highway 6. Also included was a topographical map detailing the extent to which certain portions of the property would be leveled.

On July 31, 1996, Panola County entered into an agreement for a temporary easement [the Agreement] with [the Whitakers]. The Whitakers granted to Panola County "a temporary right of entry and temporary easement" to a certain parcel of property which was to the east of the Arena Project property. The Whitaker property and the Arena Project property shared a common boundary. The temporary easement allowed Panola County to enter the Whitaker property for the purpose of removing 70,000 cubic yards of dirt. The project ultimately required 100,000 cubic yards of dirt. Once the removal was complete, the easement and right of entry would terminate.

Several conditions were placed upon the grant of the easement. The condition which is the subject of this litigation reads as follows:

The Grantee [County] has plans to build an expo center and is about to embark upon Phase I thereof. If the Grantee commences Phase 2 of such project within two (2) years of the date hereof, then the Grantors [the Whitakers] agree to dedicate to the county such part of the above described 5.47 acres as may be needed for a public road. If Phase 2 is not commenced within two (2) years but the County has evidenced good faith to commence same within a reasonable period of time, then the Grantors agree to extend the aforesaid two (2) year period for a reasonable time.

The County also agreed to transfer to the Whitakers a .11 acre parcel of property to the east of the road, but only if a road was built.

The County later determined that it did not have the financial resources to continue with the Arena Project. The County began negotiations for transferring ownership to and completing the project by the City of Batesville. The County, in a letter dated August 3, 1998, requested that the negotiations include a promise by the City to honor the agreement it had entered with the Whitakers concerning the possible construction of a public road.

972 So.2d 15

The County and City signed an agreement on June 16, 1999. The City agreed to complete only Phase I of the Arena Project. The agreement specifically stated that Phase I consisted solely "of the construction of a Stall barn and Multi-Plex Arena." The agreement referred to the plans drawn by the Warrior Group, LTD. The City specifically refused to agree to the construction of any other parts of the project shown on those plans. The City also specifically agreed to "honor the Agreement for Temporary Easement between the County and James S. Whitaker et al [sic] dated July 31, 1996. . . ." A copy of the temporary easement was attached to the agreement.

While the Arena Project was proceeding, a new hospital was constructed on property located west of it. Also proposed was the construction of [a] Wal-Mart SuperCenter between Interstate 55 and the new hospital. For clarity, we note that the Whitaker property was to the east of the Arena Project, while both the hospital and the Wal-Mart store were to the west. All these projects were south of the major west-east road, which was Highway 6.

At a February 18, 2000 meeting of the Board of Alderman for the City, discussion turned to the Arena Project. The minutes note that the "need and placement of roads in the area was also discussed." The minutes note that "Whitaker Road is to be a five lane road." Presumably, this is a reference to the five-lane public road shown on the plans prepared by the Warrior Group, LTD, and the public road that was to be constructed should Phase 2 of the Arena Project commence.

At a May 2, 2000 meeting, the minutes show that the assistant city attorney was authorized by the Board "to draw up appropriate documents to move forward on the agreement between the County and Mr. Whitaker that the City has agreed to honor." A memorandum provided to the Whitakers requested that they sign and have notarized a deed to the City "in fulfillment of [the] agreement with the County." On May 23, 2000, the Whitakers executed a deed donating to the City 4.81 acres of property for the proposed road. The deed did not include specifications for the road such as how many lanes the road might be or when its construction would be completed.

At a September 5, 2000 meeting, the Board decided to delay determining the layout of the roads in the Arena Project area. However, the Board stated that as to the arena, "the main road will be the east most road agreed to in the original agreement between the county and land owners. . . ." The minutes were later amended to specify that the eastern-most road would be the main road if there were two entrances to the property. The Board also authorized a traffic study for the hospital and civic arena area.

At a September 19, 2000 meeting, the minutes show that James "Doc" Whitaker and John Hyneman were present. Mr. Hyneman had donated to the County a portion of his property for construction of the new hospital. Wal-Mart wished to locate its proposed SuperCenter on the remainder of the property owned by Mr. Hyneman near the hospital. The minutes note that both Whitaker and Hyneman "stated their opinions as to the location of the main [road] to this area." The administrator of the hospital also provided the Board with his preference for location of the main entrance to the area from Highway 6. The Board was informed that the existing

972 So.2d 16

entrance was "not adequate for the hospital traffic."

At the October 3, 2000 meeting, the Board discussed in executive session "the location of a large retail outlet near the new hospital." When the Board returned to its public meeting, a motion was adopted that the city engineer be ordered to "draw a road design leaving the current entrance off Highway 6 and the frontage road as is and showing construction of an entrance and road at the east side of the city's property with a road `T-ing' off this `new' entrance and road and running westerly to tie into the hospital road network and thereafter to submit this design layout to the business prospect desiring to construct a retail outlet northwesterly of the new hospital for its consideration." This option would provide a road on the Whitaker property.

Two weeks later, on October 17, 2000, the Board again discussed the issue of road design in the area of the Arena Project. The assistant city attorney stated that Wal-Mart did not approve the road design proposed during the last meeting. The Board decided to adopt "the road configuration as proposed by Wal-Mart in the letters of its attorney. . . ." The construction of this road configuration was made contingent upon the following: (1) obtaining title to two parcels of land, (2) the removal of a building through which the road would pass, (3) funding, and (4) "matters involving the bidding and construction process." The minutes of this meeting note that James "Doc" Whitaker and his attorney were present and objected to Wal-Mart's proposal.

The Whitakers appealed this decision by filing a bill of exceptions. The Whitakers argued that the action of the Board in adopting the Wal-Mart proposal was an "arbitrary and capricious decision of the City of Batesville to alter or ignore its often-stated and often-confirmed obligation to build the `main' — or primary — road on the strip of land donated, for that purpose, to the City in May of 2000." The Whitakers alleged that the City's decision devalued their property and adversely impacted negotiations entered into with other parties about the sale or development of their property. The Whitakers also alleged that their constitutional rights had been violated.

The circuit court found that "the decision of the Batesville Board of Alderman changing the route and location of the...

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