Smith v. Dorsey

Decision Date16 April 1992
Docket NumberNo. 07-CA-59273,07-CA-59273
Citation599 So.2d 529
Parties75 Ed. Law Rep. 692 Jimmy SMITH, Calvin C. Williams, Bennie Knox and Daniel Jennings v. Rev. James DORSEY, John E. Walls, Jr., Carl R. Brandon, Gussie P. Wilson, Harriet Aikerson and Roosevelt Yarbrough.
CourtMississippi Supreme Court

En Banc.

DAN M. LEE, Presiding Justice, for the Court:

I. INTRODUCTION

An earlier opinion by this Court was released on September 4, 1991, and a petition to rehear was filed by the appellants on September 23, 1991. The petition to rehear is granted; our earlier opinion of September 4, 1991, is withdrawn and held for naught, and we substitute the following opinion in its stead.

This appeal had its origin in a bifurcated proceeding from a complaint filed in October of 1986 by the Rev. James Dorsey and others, individually, and as taxpayers of Claiborne County against members of the Board of Trustees of the Claiborne County School District.

At some time between the filing of the complaint and a trial in late December of 1987 and January of 1988, the State of Mississippi, ex rel., Edwin Lloyd Pittman, Attorney General, and the Mississippi Ethics Commission intervened with permission of the court as plaintiffs in part I of the suit which concerned violations of section 109 of the Mississippi Constitution. However, the Attorney General and the State Ethics Commission are not parties to this second half (part II) of the suit which concerns misappropriation of school funds.

Part I of this proceeding was decided by this Court in August of 1988, and is reported as Smith v. Dorsey, 530 So.2d 5 (Miss.1988) (the late Ruble Griffin, Justice, for the Court). In part I, this Court held that a school board could not enter into a teaching contract with the spouse of a board member since such would be violative of art. IV., Sec. 109 of the Mississippi Constitution of 1890, but we declined to require the non-party spouses to make restitution for compensation received in the course of their employment, absent some showing of bad faith by the board members. Smith v. Dorsey, 530 So.2d 5, 9 (Miss.1988).

As noted, this appeal before the Court in part II of this suit concerns an attempt by the taxpayer plaintiffs to establish that members of the Claiborne County Board of Trustees have engaged in illegal conduct in their application and expenditure of school funds. The plaintiffs, Rev. James Dorsey, John E. Walls, Jr., Carl R. Brandon, Gussie P. Wilson and Harriet Aikerson are adult citizens and taxpayers of the Claiborne County School District. Mr. Roosevelt Yarbrough, plaintiff, is a citizen of the Claiborne County School District and is a duly elected member of the Board of Trustees for the school district. Mr. Yarbrough elected to become a party plaintiff in this case, and the defendants are the remaining members of the school district's Board of Trustees. Dr. Jimmy Smith, defendant, is the president of the Board of Trustees, Claiborne County School District, and Daniel Jennings, Calvin C. Williams and Bennie Knox are the remaining board members also named as defendants in both their individual and official capacities.

A trial was held on the issues which are the subject of this appeal by the Hon. Joseph Zuccaro on December 15, 1986, and January 14-15, 1987. Nine months later, Chancellor Zuccaro entered an "ORDER AND DECISION OF THE COURT". This decision held that the State of Mississippi was entitled to recover funds from Claiborne County Board of Education members who voted affirmatively for certain expenditures. Following this opinion by Chancellor Zuccaro, a "FINAL JUDGMENT" was entered by Chancellor Zuccaro's successor, the Hon. Hyde Rust Jenkins, II, on December 3, 1987. This "FINAL JUDGMENT" granted relief based on the opinion by Chancellor Zuccaro and empowered the State of Mississippi to recover funds from members of the Claiborne County Board of Education who voted affirmatively for the following expenditures:

1. The payment of $34,725.00 to State Senator James Disharoon and $17,000.00 to Mrs. Terri Disharoon for their assistance to the board as consultants in an effort to pass a bond issue in Claiborne County.

2. The purchase of two activity buses in February and July of 1985, costing $170,400.00 and $176,254.00, respectively (totaling $346,654.00), as unauthorized by law and violative of Secs. 37-41-7, -81, -85 and -101 of the Mississippi Code.

3. The payment of $266,148.00 and accrued interest of public funds which the Claiborne County Board of Education placed with the First National Bank of Vicksburg as a performance bond for a private construction company which was building housing units in Minden, Louisiana.

4. The payment of $9,427.50 for a documentary concerning a school bond referendum.

5. The expenditure of $944.03 for a fish fry in connection with a bond referendum.

6. The payment of $21,548.92 to campaign workers in regard to the bond referendum promotion.

Additionally, Chancellor Jenkins awarded punitive damages, attorneys' fees and an expert's fee. The final judgment awarded $1.00 in punitive damages, $20,088.00 and $5,550.00, respectively, in attorneys' fees and $5,000.00 for an accountant's expert witness fee.

Following the entry of final judgment in December of 1987, an appeal was taken to this Court.

The appellant school board members list three (3) "assignments of error" in their statement of issues which receive no mention in their brief. They are as follows:

1. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN THAT IT DENIED THE MOTION OF THE DEFENDANTS TO REOPEN THE CASE FOR FURTHER TESTIMONY AND EVIDENCE.

2. THE FINAL JUDGMENT OF THE TRIAL COURT IS CONTRARY TO THE LAW AND AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

3. THE PROCEEDINGS IN THE TRIAL COURT DENIED THE APPELLANTS THEIR RIGHTS TO DUE PROCESS AND EQUAL PROTECTION UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

Not only do the appellants fail to cite any authority to support the three propositions, but they also decline to devote any discussion or attention whatsoever to these alleged errors. Therefore, this Court is unable to assess these issues on the merits. The failure to cite any authority can be treated as a procedural bar, and this Court is under no obligation to consider the assignments. R.C. Petroleum, Inc. v. Hernandez, 555 So.2d 1017, 1023 (Miss.1990); Brown v. State, 534 So.2d 1019, 1023 (Miss.1988); Shive v. State, 507 So.2d 898 (Miss.1987); Read v. Southern Pine Elec. Power Ass'n, 515 So.2d 916 (Miss.1987); Devereaux v. Devereaux, 493 So.2d 1310 (Miss.1986); Pate v. State, 419 So.2d 1324 (Miss.1982).

There are five (5) assignments of error which we do address in this opinion. Each assignment has its own distinct factual basis, and the analysis of each error will be introduced by a review of the pertinent facts. The assignments of error are as follows.

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ITS FINDINGS AND RULING THAT THE STATE OF MISSISSIPPI IS ENTITLED TO RECOVER OF AND FROM THE MEMBERS OF THE BOARD OF EDUCATION OF CLAIBORNE COUNTY, MISSISSIPPI, WHO VOTED AFFIRMATIVELY ON THE FOLLOWING EXPENDITURES:

(a) THE PAYMENT OF $34,725.00 TO STATE SENATOR JAMES DISHAROON AND $17,000.00 TO MRS. TERRI DISHAROON WHICH THE COURT FOUND WAS IN FURTHERANCE OF THE PASSAGE OF A BOND ISSUE IN CLAIBORNE COUNTY, MISSISSIPPI.

(b) THE SUM PAID FOR THE PURCHASE OF TWO ACTIVITY BUSES ON FEBRUARY 18, 1985, AND JULY 12, 1985, FOR $170,400.00 AND $176,254.00, RESPECTIVELY, A TOTAL OF $346,654.00.

(c) THE SUM OF $266,148.00 (PLUS ACCRUED INTEREST) IN PUBLIC FUNDS WHICH WERE PLACED BY THE CLAIBORNE COUNTY SCHOOL BOARD IN THE FIRST NATIONAL BANK OF VICKSBURG, AND WHICH SAID BANK HAS INTERPLED INTO THE REGISTRY OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI IN THE CASE OF FIRST NATIONAL BANK OF VICKSBURG, MISSISSIPPI V. UNITED STATES DEPARTMENT OF HOUSING & URBAN DEVELOPMENT, ET AL., CIVIL ACTION NO. W086-0112(B).

(d) THE PAYMENT OF $9427.50 FOR A DOCUMENTARY TO PROMOTE A SCHOOL BOND REFERENDUM; THE EXPENDITURE OF $944.03 FOR A FISH FRY IN CONNECTION WITH THE PROMOTION OF A BOND REFERENDUM; THE PAYMENT OF $21,548.92 TO CAMPAIGN WORKERS IN REGARD TO THE BOND REFERENDUM PROMOTION.

(e) THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN AWARDING PUNITIVE DAMAGES IN THE AMOUNT OF $1.00; ATTORNEYS' FEES IN THE AMOUNT OF $20,088.00 AND $5550.00, RESPECTIVELY, FOR TWO ATTORNEYS, AND $5000.00 FOR AN EXPERT WITNESS FEE.

After careful study and an exhaustive review of the record, we affirm in part and reverse in part, the final judgment entered by the chancellor in this case on December 3, 1987.

Standard of Review

Our standard of review in this case is two-fold. After a trial on the merits in the Claiborne County Chancery Court, the chancellor made factual findings regarding the nature of various expenditures by the local school board. As it will become apparent, these findings of fact will be crucial to our disposition of the case. This Court always reviews a chancellor's findings of fact, but we do not disturb the factual findings of a chancellor unless such findings are manifestly wrong or clearly erroneous. Bowers Window and Door Co., Inc. v. Dearman, 549 So.2d 1309 (Miss.1989). This standard has also been explained as follows. Whenever there is substantial evidence in the record to support the chancellor's findings of fact, those...

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