Longo v. City of Waveland, 2021-CA-00735-SCT

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtKITCHENS, PRESIDING JUSTICE
PartiesTHEODORE LONGO, AMY LONGO, JOSEPH LEE, SUSAN LEE, GERALD SONNIER, AMY DAVIS, AND 920 SOUTH BEACH BLVD., LLC v. CITY OF WAVELAND, MISSISSIPPI AND BEACH WALK DEVELOPMENT, LLC 920 SOUTH BEACH BLVD., LLC v. THE CITY OF BAY SAINT LOUIS, MISSISSIPPI
Docket Number2021-CA-00735-SCT,2021-CA-00923-SCT
Decision Date20 October 2022

THEODORE LONGO, AMY LONGO, JOSEPH LEE, SUSAN LEE, GERALD SONNIER, AMY DAVIS, AND 920 SOUTH BEACH BLVD., LLC
v.

CITY OF WAVELAND, MISSISSIPPI AND BEACH WALK DEVELOPMENT, LLC

920 SOUTH BEACH BLVD., LLC
v.

THE CITY OF BAY SAINT LOUIS, MISSISSIPPI

Nos. 2021-CA-00735-SCT, 2021-CA-00923-SCT

Supreme Court of Mississippi, En banc

October 20, 2022


DATE OF JUDGMENT: 06/16/2021

DATE OF JUDGMENT: 7/27/2021

HANCOCK COUNTY CIRCUIT COURT HON. RANDI PERESICH MUELLER TRIAL JUDGE:

ATTORNEY FOR APPELLANTS: VIRGIL G. GILLESPIE

ATTORNEYS FOR APPELLEES: MALCOLM F. JONES MATTHEW W. McDADE JAMES E. LAMBERT, III

ATTORNEY FOR APPELLANT: GARY M. YARBOROUGH, JR.

ATTORNEYS FOR APPELLEES: AMANDA J. TOLLISON HEATHER LADNER SMITH CAROLINE B. SMITH

KITCHENS, PRESIDING JUSTICE

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¶1. This matter comes before this Court as a consolidation of two cases on appeal, both from the Circuit Court of Hancock County. In each case, the circuit court found that it lacked jurisdiction due to a defect in the notice of appeal pursuant to Mississippi Code Section 11-51-75(a)(i) (Rev. 2019). The circuit court dismissed both cases. The statute does require that a petitioner before a local governing authority be made a party to an appeal of the authority's decision. But naming petitioners as appellees in the notice of appeal is procedural. M.R.A.P. 3(c). Therefore, a notice of appeal that is filed on time but erroneously omits a petitioner's name does not defeat the circuit court's jurisdiction, and the error may be corrected. The omission "is ground only for such action as the [appellate court] deems appropriate, which may include dismissal of the appeal." M.R.A.P. 3(a). Finding that a defect in the contents of the notice of appeal is a procedural rather than a jurisdictional error, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶2. This section will detail separately the facts and procedural history of each case.

I. Longo v. City of Waveland.

¶3. Beach Walk Development, LLC, filed applications with the City of Waveland's Planning and Zoning Commission requesting conditional use and preliminary plat approval

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for a nineteen-lot residential planned development on six acres of land near North Beach Boulevard. The Commission recommended that the City of Waveland approve the applications. On February 17, 2021, the Waveland Board of Aldermen approved the applications. On February 23, 2021, several individuals who objected to the applications' approval, including Longo (collectively, "Longo"), filed in circuit court a notice of appeal of Waveland's decision pursuant to Section 11-51-75. The notice of appeal named the City of Waveland as an appellee, but it did not name Beach Walk.

¶4. On March 22, 2021, Beach Walk filed a motion to intervene and to dismiss the appeal, arguing that the circuit court lacked subject matter jurisdiction over the appeal due to Longo's failure to comply with the statutory requirement that the notice of appeal name as an appellee anyone who was a petitioner before the City of Waveland. The next day, Longo filed an amended notice of appeal that named Beach Walk as an appellee. Beach Walk was served with the amended notice of appeal. The amended notice of appeal was filed outside the ten-day period for taking an appeal. Miss. Code Ann. § 11-51-75. Beach Walk moved to strike the amended notice of appeal.

¶5. Following a hearing that was not made a part of the record before this Court, the circuit court entered a judgment dismissing the appeal for lack of jurisdiction, finding that Longo's omission of Beach Walk rendered its notice of appeal fatally defective. The circuit court found that, because Section 11-51-75(a)(i) provides that an appellant "shall" name a petitioner in the notice of appeal when applicable, the requirement is mandatory and jurisdictional. The circuit court found that the statutory requirement is analogous to two

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situations: (1) the rule that, if all interested persons are not joined in a will contest, then the chancery court lacks jurisdiction and (2) that the failure to post a statutorily required appeal bond deprives the appellate court of jurisdiction. On June 23, 2021, Longo filed this appeal.

II. 920 South Beach Blvd., LLC v. City of Bay Saint Louis

¶6. On September 3, 2019, the City Council of Bay Saint Louis granted Scott Ballard, William Ward &Kyle Kent, LLC (SWK), preliminary plat approval for the development of a subdivision at 928 South Beach Boulevard. 920 South Beach Blvd., LLC (920 South Beach), is a neighboring property owner that strongly objected to the development. On September 11, 2019, 920 South Beach, timely appealed the decision of the City of Bay Saint Louis to grant preliminary plat approval through the filing of a notice of appeal in the circuit court pursuant to Mississippi Code Section 11-51-75. Although required by statute, 920 South Beach did not name SWK as a party to the appeal. See Miss. Code Ann. § 11-51-75(a)(i). Pursuant to Mississippi Rule of Civil Procedure 62, 920 South Beach also filed a motion for stay requesting that the City of Bay Saint Louis be prohibited from issuing a preliminary plat permit or any other approval pending the appeal. Over the course of the following months, the parties participated in briefing and oral arguments pursuant to Section 11-51-75.

¶7. On July 18, 2020, the circuit court requested letter briefing regarding the court's jurisdiction over the appeal due to SWK's not being joined as a party. On June 30, 2021, 920 South Beach and the City of Bay Saint Louis submitted their letter briefs. Additionally, 920 South Beach filed a motion to add SWK as a party under Mississippi Rule of Civil Procedure

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19. On July 1, 2021, SWK filed a motion to intervene and dismiss the notice of appeal due to the failure of 920 South Beach to name SWK as a party. On July 7, 2021, the City of Bay Saint Louis filed its response to oppose 920 South Beach's motion to add SWK. Without ruling on any of the pending motions, the circuit court entered a judgment on July 26, 2021, finding that it lacked "jurisdiction over the appeal because SWK, LLC was not named as an appellee as required by Miss. Code Ann. § 11-51-75." On August 5, 2021, the same circuit court dismissed the appeal in Longo v. City of Waveland, No. 2021-CA-00735-SCT. South Beach filed this appeal.

STANDARD OF REVIEW

¶8. This Court applies de novo review to jurisdictional issues. Fitch v. Wine Express Inc., 297 So.3d 224, 228 (Miss. 2020). Matters of statutory interpretation are also reviewed de novo. Am. Tower Asset Sub, LLC v. Marshall Cnty., 324 So.3d 300, 302 (Miss. 2021) (citing Chandler v. McKee, 202 So.3d 1269, 1271 (Miss. 2016)).

DISCUSSION

¶9. This appeal asks the Court to determine whether, under Section 11-51-71(a)(i), a notice of appeal must name a party who was a petitioner before the local governing authority in order to confer jurisdiction upon the circuit court. Section 11-51-75 was amended effective July 1, 2018, to provide that an appeal is initiated by the filing of a notice of appeal rather than by a bill of exceptions. Therefore, this issue is a matter of first impression for this Court. Below is the entirety of Section 11-51-75 with the pertinent language emphasized:

Any person aggrieved by a judgment or decision of the board of supervisors of a county, or the governing authority of a municipality, may appeal the
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judgment or decision to the circuit court of the county in which the board of supervisors is the governing body or in which the municipality is located. A written notice of appeal to the circuit court must be filed with the circuit clerk within ten (10) days from the date at which session of the board of supervisors or the governing authority of the municipality rendered the judgment or decision. Upon filing, a copy of the notice of appeal must be delivered to the president of the board of supervisors or to the mayor or city clerk of the municipality and, if applicable, to any party who was a petitioner before the board of supervisors or the governing authority of the municipality.
(a) The notice of appeal filed in the circuit court with the circuit clerk shall contain the following:
(i) The name of the county board of supervisors or the name of the municipality as the appellee. If applicable, any party who was a petitioner before the board of supervisors or the governing authority of the municipality shall be named as an appellee.
(ii) A succinct statement of the reasons, or grounds, for the appeal.
(iii) A written description or designation of record which includes all matters that the appellant desires to be made part of the record.
(iv) Appellant must also deliver a copy of the notice of appeal and a written designation of the record, along with a list of all documents or transcripts in appellant's possession, to the clerk of the board of supervisors or to the clerk of the municipality.
(b) An appellee has ten (10) days from the filing of the notice of appeal with the circuit clerk to designate any other items or matters that appellee believes should be included in the designated record.
(c) The clerk of the board of supervisors or the municipal clerk must assemble a complete record of the proceedings to include all writings, matters, items, documents, plats, maps and transcripts of proceedings that were part of the record and deliver the complete record to the circuit clerk within thirty (30) days after the filing of the notice of appeal with the circuit clerk. The clerk of the board of supervisors or
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the municipal clerk shall certify that the record is accurate and complete and contains all writings, matters, items, documents, plats, maps and transcripts of proceedings designated by appellant and appellee in their designations of record.
(d) The circuit court, as an appellate court,
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