                        IN THE SUPREME COURT OF MISSISSIPPI

                                    NO. 2001-CA-01816-SCT

LARRY McPHAIL

v.

CITY OF LUMBERTON, MISSISSIPPI


DATE OF JUDGMENT:                                11/13/2001
TRIAL JUDGE:                                     HON. MICHAEL R. EUBANKS
COURT FROM WHICH APPEALED:                       LAMAR COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                          ORVIS A. SHIYOU
ATTORNEY FOR APPELLEE:                           WILLIAM E. ANDREWS, III
NATURE OF THE CASE:                              CIVIL - OTHER
DISPOSITION:                                     AFFIRMED AS MODIFIED - 12/12/2002
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE McRAE, P.J., EASLEY AND CARLSON, JJ.

       EASLEY, JUSTICE, FOR THE COURT:

¶1.    On April 1, 1999, the Board of Aldermen (Board) for the City of Lumberton (Lumberton),

Mississippi, voted to remove Larry McPhail (McPhail) from his position as municipal judge by a majority

vote.1 The Board, on April 6, 1999, voted to reconsider the action taken on April 1, 1999, regarding

McPhail. The minutes reflect that all aldermen were present on April 6, 1999. Mayor Russell Ladner

(Mayor) vetoed this action. On April 10, 1999, a majority of the Board voted to reinstate McPhail as



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           April 1, 1999 Meeting:
                 Alderman Rheams voted "Aye"
                 Alderman Merritt abstained
                 Alderman Marsh voted "Nay"
                 Alderman Beall voted "Aye"
                 Alderman Cooley was absent and not voting
municipal judge.2 The Mayor vetoed the motion to reinstate McPhail as municipal judge. Subsequent

thereto, the Board attempted to override the Mayor's veto of the order to reinstate McPhail as municipal

judge. The minutes reflect that Alderman Cooley, Alderman Merritt and Alderman Marsh voted "Aye" to

override the Mayor's veto. Alderman Rheams voted "Nay," and Alderman Beall was shown as absent and

not voting. According to the minutes, the motion to override the Mayor's veto failed since four of the five

board members did not vote "Aye."

¶2.     McPhail filed his complaint in the Circuit Court of Lamar County, Mississippi, on June 30, 2000,

seeking reinstatement of his position as city judge. The trial court conducted a hearing on Lumberton's

motion to dismiss. Lumberton’s motion to dismiss was denied by the trial court on November 5, 2001.



¶3.     Lumberton filed its motion to reconsider and motion for summary judgment. In considering

Lumberton's motion for summary judgment, the trial court determined that McPhail was a discretionary

employee who was properly removed from his position as municipal judge. The circuit court further held

that McPhail did not obtain the necessary two-thirds majority vote of the members of the Board in order

to override the Mayor's veto of the Board's majority vote to reinstate McPhail.

¶4.     McPhail appeals raising two issues, while Lumberton raises the following issue on appeal:

        I.        Whether McPhail was time barred from bringing any action
                  against Lumberton in accordance with Miss. Code Ann. § 11-51-75.

                                            DISCUSSION

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             April 10, 1999 Meeting:
                   Alderman Rheams abstained.
                   Alderman Merritt voted "Aye."
                   Alderman Marsh voted "Aye."
                   Alderman Beall voted "Aye."
                   Alderman Cooley was absent and not voting.

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                                   I. Miss. Code Ann. § 11-51-75

¶5.     Lumberton argues on appeal that McPhail's case should have been dismissed on jurisdictional

grounds due to McPhail's failure to timely appeal the adverse decision of the municipal authorities to

terminate his services in accordance with Miss. Code Ann. § 11-51-75 (2002). The record does not

reflect that McPhail ever addressed Miss. Code Ann. § 11-51-75 on appeal. Miss. Code Ann. § 11-51-

75 provides in pertinent part:

        Any person aggrieved by a judgment or decision by the board of supervisors, or municipal
        authorities of a city, town, or village, may appeal within ten (10) days from the date of
        adjournment at which session the board of supervisors or municipal authorities rendered
        such judgment or decision, and may embody the facts, judgment and decision in a bill of
        exceptions which shall be signed by the person acting as president of the board of
        supervisors or of the municipal authorities. The clerk thereof shall transmit the bill of
        exceptions to the circuit court at once, and the court shall either in term time or in vacation
        hear and determine the same on the case as presented by the bill of exceptions as an
        appellate court, and shall affirm or reverse the judgment. If the judgment is reversed, the
        circuit court shall render such judgment as the board or municipal authorities ought to have
        rendered, and certify the same to the board of supervisors or municipal authorities. Costs
        shall be awarded as in other cases. The board of supervisors or municipal authorities may
        employ counsel to defend such appeals, to be paid out of the county or municipal treasury.
        Any such appeal may be heard and determined in vacation in the discretion of the court on
        motion of either party and written notice for ten (10) days to the other party or parties or
        the attorney of record, and the hearing of same shall be held in the county where the suit
        is pending unless the judge in his order shall otherwise direct.

¶6.     The circuit court addressed Miss. Code Ann. § 11-51-75 in its November 5, 2001, final judgment

reasoning that:

        Lumberton ... argues that Miss. Code Ann. § 11-51-75 provided a statute of limitation of
        ten days for McPhail to appeal the April 1999 decision to the Board to terminate his
        appointment. Lumberton argues that McPhail brought this suit on June 30, 2000, and
        therefore, is barred by the ten day statute of limitation. At oral argument counsel for
        McPhail agreed with this interpretation of § 11-51-75, however, the issue as framed by
        McPhail, was the authority of Lumberton to remove a sitting judge, not the decision
        reached by the Board. This [c]ourt agrees with both counsel for Lumberton and McPhail
        that, had McPhail attempted to challenge the vote of the Board terminating his appointment


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        as municipal court judge, that his action would be barred by § 11-51-75. That, however,
        was not the issue before this court.

¶7.     The act of a municipality which leaves a party aggrieved is appealable to the circuit court where

all of the issues of the controversy are finally disposed of by order of the municipal authorities. Garrard

v. City of Ocean Springs, 672 So.2d 736, 738 (Miss. 1996). This matter was finally disposed of on

May 4, 1999, when the Board failed to sustain a motion to take up the Mayor's veto of McPhail’s

reinstatement. The lawsuit was filed by McPhail on June 30, 2000, long past the ten day limit authorized

by Miss. Code Ann. § 11-51-75.

¶8.     The ten-day statutory limit in which to appeal a decision rendered by a county board of supervisors

is both mandatory and jurisdictional. Newell v. Jones County, 731 So.2d 580, 582 (Miss. 1999).

Thence, when an appeal of a decision rendered by municipal authorities is not perfected within the statutory

time constraint of ten days, no jurisdiction is conferred upon the appellate court, i.e., the circuit court. Id.

See also Moore v. Sanders, 569 So.2d 1148, 1150 (Miss. 1990). McPhail was well beyond the ten-

day limit to perfect his appeal.

¶9.     The circuit court excused McPhail's failure to timely appeal the decision of the Board finding that

McPhail was not attempting to challenge the Board’s vote. Rather, the circuit court determined that

McPhail was challenging the Board's authority to remove a sitting judge. We find that the circuit court

erred in not dismissing McPhail's claim as untimely in accordance with Miss. Code Ann. § 11-51-75.

McPhail's complaint clearly seeks to have the circuit court "declare the [Board's] vote [to dismiss McPhail

as judge] null and void" and "declare the Mayor's veto [of the vote to reinstate McPhail] null and void."

¶10.    We find that Miss. Code Ann § 11-51-75 did operate as a jurisdictional bar as McPhail did not

appeal the Board's decision within a timely manner to the circuit court. The circuit court should have


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dismissed McPhail's suit. Therefore, as this issue is dispositive of McPhail's claim, the issues raised in

McPhail's two assignments of error on the merits of the case are rendered moot.

                                            CONCLUSION

¶11.     While McPhail's dismissal as municipal judge should stand, we find that the trial court erred in its

reasoning. We determine that the trial court erred for failure to dismiss McPhail's claim as being untimely

filed in accordance with Miss. Code Ann. § 11-51-75. Miss. Code Ann. § 11-51-75 clearly operated

in this case as a jurisdictional bar to McPhail's claim. McPhail's claim should have been dismissed by the

trial court as not being properly before the court. Accordingly, the circuit court's judgment is modified to

dismiss McPhail's suit for lack of jurisdiction under Miss. Code Ann. § 11-51-75 and affirmed as so

modified.

¶12.    AFFIRMED AS MODIFIED.

    PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, DIAZ, CARLSON AND
GRAVES, JJ., CONCUR. COBB, J., CONCURS IN RESULT ONLY.




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