                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 1998-CA-01399-SCT
HOLLYWOOD CEMETERY ASSOCIATION
v.
BOARD OF MAYOR AND SELECTMEN OF THE CITY OF McCOMB CITY, MISSISSIPPI

DATE OF JUDGMENT:                                      05/21/1998
TRIAL JUDGE:                                           HON. KEITH STARRETT
COURT FROM WHICH APPEALED:                             PIKE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                                WILLIAM F. SELPH, III
ATTORNEY FOR APPELLEES:                                JOHN HARRIS WHITE, JR.
NATURE OF THE CASE:                                    CIVIL - CONTRACT
DISPOSITION:                                           AFFIRMED - 03/23/2000
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                        4/13/2000



     BEFORE PITTMAN AND BANKS, P.JJ., AND MILLS, J.
     MILLS, JUSTICE, FOR THE COURT:
¶1. The Circuit Court of Pike County, Mississippi acting as an appellate court pursuant to Miss. Code Ann.
§ 11-51-75 (1972), affirmed the action of the Board of Mayor and Selectmen of the City of McComb
City, Mississippi (City), denying that Hollywood Cemetery Association (HCA) had a property interest in
the opening and closing of graves in the city-owned cemetery; that board actions of the City constituted an
unjust taking; or that the City interfered with HCA's contract rights. From that decision HCA appeals
assigning the following as error:

     1) Whether the City of McComb, Mississippi through the Board of Mayor and Selectmen of
     the City of McComb City, Mississippi violated the property and liberty interests of the
     Hollywood Cemetery Association in rescinding Order No. 231:10/87.

     2) Whether the City unlawfully interfered with the business and contracts of HCA by causing
     a detrimental financial impact upon HCA due to the loss of revenues for opening graves.

     3) Whether the City has conceded the facts recited in HCA's Bill of Exceptions, and the
     City's Answer to the Bill of Exceptions should be disallowed by the Court.

     4) Whether the City's repeal of HCA's right to open graves at the Hollywood Cemetery
     Amounted to a taking without just compensation.

     5) Whether HCA is entitled to recover its attorneys' fees from the City.

                                       STATEMENT OF FACTS
¶2. During the Great Depression, the City found that it could no longer pay for burying its dead in the
idyllically named, city-owned Hollywood Cemetery. The City's financial embarrassments birthed the
Hollywood Cemetery Association, established as a non-profit corporation on March 12, 1932:

      Its purpose shall be to maintain, care for and beautify Hollywood Cemetery in the city of McComb
      city, Pike County, Mississippi, and to this end, it may collect dues from its membership, contract for
      the special care of cemetery lots, receive aid and donations from any person or persons or from other
      sources and may employ labor and contract with same to perform such services as may be required in
      said cemetery, to carry out the purpose of this organization.

Constitution of Hollywood Cemetery Association.

¶3. The Hollywood Cemetery is owned by the City, which has sold and currently sells deeded lots to
individuals. HCA, through dues collected and other income, including special care fees and fees generated
from opening and closing of graves, has hired workers and maintained the cemetery for over 60 years
providing the following services: (1) opening and closing of graves in the city cemeteries for privately owned
funeral homes; (2) interring and disinterring bodies; (3) providing grave site maintenance for the owners of
grave sites who have purchased perpetual care contracts (i.e., lump sum payment for perpetual grave site
maintenance); and (4) providing grave site maintenance for the owners of grave sites who annually purchase
Special Care Contracts.

¶4. Over time, problems began to develop regarding the maintenance of graves without perpetual care.
HCA did not wish to care for these graves. Since neither HCA nor the progeny of the decedents cared to
keep up these sites, the City was forced to assume these responsibilities--the expense to be borne by the
taxpayers of the City.

¶5. The newer parts of the cemetery have lots that are only sold with perpetual care. The money received
by the City from the sale of these lots is placed in a perpetual care trust and operated by the City. This new
system implemented by the City does not affect the rights and responsibilities of prior perpetual care
contracts entered into by HCA with individual gravesite owners.

¶6. The City addressed the issue of opening and closing graves in October, 1987. By order dated October
27, 1987, HCA was given written authority to open graves in city owned cemeteries. However, by order
dated October 8, 1996, the city rescinded the October 27, 1987 order allowing HCA to open graves in all
the city owned cemeteries and designated itself as the sole entity authorized to open and close graves. HCA
complains that it derived a significant portion of its income from fees charged for opening and closing graves
for private individuals and funeral homes, even though HCA had no separate agreement with these entities.
This dispute over who could dig graves festered until February 18, 1997.

¶7. The Board of Mayor and Selectmen took up an HCA submitted settlement proposal and voted to
disapprove the proposal on March 11, 1997. From that decision, a second bill of exceptions was taken by
HCA. The trial court, acting as an appellate court, upheld the City's action. From that ruling HCA appeals
to this Court.

                                                ANALYSIS

      1) Whether the City of McComb, Mississippi through the Board of Mayor and Selectmen of
     the City of McComb City, Mississippi violated property and liberty interests of the
     Hollywood Cemetery Association in rescinding Order No. 231:10/87 and whether the City's
     repeal of HCA's right to open graves at the Hollywood Cemetery Amounted to a taking
     without just compensation?

     4) Whether the City's repeal of HCA's right to open graves at the Hollywood Cemetery
     Amounted to a taking without just compensation.

¶8. The scope of a reviewing court is limited in examining the actions of a municipal board. Such an order
may not be set aside by a reviewing court unless it is clearly shown to be arbitrary, capricious, or
discriminatory or is illegal or without substantial evidentiary basis. Sunland Publishing Co. v. City of
Jackson, 710 So.2d 879, 882 (Miss. 1998) (citing City of Jackson v. Capital Reporter Pub. Co., 373
So.2d 802, 807 (Miss.1979)).

¶9. In an appeal from the decision of a municipal authority, Miss.Code Ann. § 11-51-75 (1972) states that
the person aggrieved may "embody the facts, judgment and decision in a bill of exceptions" which will be
transmitted to the circuit court acting as an appellate court. Miss.Code Ann. § 11-51-75 (1972). The bill of
exceptions serves as the record on appeal, and this Court has held that "[t]he circuit court can only consider
the case as made by the bill of exceptions. This is the only record before the circuit court, as an appellate
court." Stewart v. City of Pascagoula, 206 So.2d 325, 328 (Miss.1968). Having said that, we review the
decidedly skeletal record in this case.

¶10. In order to simplify the issues, we combine HCA's first and fourth assignments of error. HCA
contends that the City violated its Fourteenth Amendment rights under the United States Constitution and its
Article 3, section 14 rights under the Mississippi Constitution by rescinding the City's order authorizing
HCA to open and close graves at the Hollywood Cemetery, which is owned by the City, without prior
notice. HCA argues that the repeal impaired a vested property interest.

¶11. First, HCA offers no authority to support its contention that it has a vested property interest in the
opening and closing of graves in the City-owned cemetery. The only case law that HCA offers is
Poindexter v. Greenhow, 114 U.S. 270, 5 S.Ct 903, 29 L.Ed. 185 (1885), which HCA cites to state
that an attempted repeal cannot divest vested rights. That puts the cart before the horse. Since HCA cannot
establish that HCA's opening and closing of graves in the city cemetery is a vested property interest, it
certainly cannot establish that the repeal of that duty amounts to a taking without just compensation. Miss.
Code Ann. §21-17-1 states in pertinent part:

     Every municipality of this state shall be a municipal corporation and shall have the power to sue and
     be sued; to purchase and hold real estate, either within or without the corporate limits, for all proper
     municipal purposes, including parks, cemeteries, hospitals, schoolhouses, houses of correction, . . . to
     purchase and hold personal property for all proper municipal purposes; . . . to sell and convey any
     real and personal property owned by it, and make such order respecting the same as may be
     deemed conducive to the best interest of the municipality, and exercise jurisdiction over the
     same.

Miss. Code Ann. § 21-17-1 (Supp. 1999) (emphasis added).

¶12. The City owns the Hollywood Cemetery, the cemetery in which HCA claims its has a vested property
interest in the opening and closing of graves. The City chose to open and close the new graves in the
interest of economic efficiency. The City was wholly within its statutory rights to make this decision.

¶13. Without expressly stating so, it is apparent that HCA assumed or expected its agreement with the City
to open and close graves to be a vested property interest. This Court has stated that a mere unilateral
expectation is not sufficient to create a vested property interest. State v. Jones, 726 So.2d 572, 574
(Miss. 1998). HCA argues that a binding agreement between it and the City was established over a period
of time, through habit and custom, thereby creating more than a unilateral expectation. HCA offers proof
that it has opened and closed graves for the city since 1932. This is irrelevant. The City's decision to repeal
the order giving HCA the exclusive right to open and close graves was a lawful exercise of its police power.
Though the City is responsible for those graves opened between October 27, 1987 and March 11, 1997, it
bore no further obligations to HCA under the prior order after its revocation. The rule is well established
that any exercise of police power is valid if it has for its object the protection and promotion of the public
health, safety, morality or welfare, if it is reasonably related to the attainment of that object, and if it is not
oppressive, arbitrary or discriminatory. Hattiesburg Firefighters Local 184 v. City of Hattiesburg,
263 So.2d 767, 772 (Miss. 1972). In other words, when governmental entities act pursuant to their police
powers, and in the absence of a binding agreement, they are free to conduct their affairs in a manner
consistent with their best interests provided their actions are reasonably related to the attainment of those
interests and are not arbitrary, oppressive or discriminatory. Further, agreements sufficient to bind the
governmental entity must consist of more than habit, custom, tradition, course of dealings or unilateral
expectation. Here, the City's decision to repeal Order No. 231:10/87 is reasonably related to its interest in
streamlining the maintenance of its cemetery for the overall welfare of its citizens and is not arbitrary,
oppressive or discriminatory against HCA. The City's actions were within its authority and do not establish
an unconstitutional taking. See generally Board of Regents v. Roth, 408 U.S. 564, 576, 92 S.Ct. 2701,
33 L.Ed.2d 548 (1972).

      2) Whether the City unlawfully interfered with the business and contracts of HCA by causing
      a detrimental financial impact upon HCA due to the loss of revenues for opening graves.

¶14. HCA next argues that the City unlawfully interfered with its business and contract. HCA contends that
the City's adoption of the order rescinding HCA's authority to open and close graves in the cemetery
amounts to a tortious interference with contract rights. HCA claims that it will no longer be able to honor
and fulfill its own contract obligations to individuals who procured perpetual care contracts for the care and
maintenance of gravesites since it will no longer be receiving the income from the opening and closing of
graves.

¶15. An action for tortious interference with contract ordinarily lies when a party maliciously interferes with
a valid and enforceable contract, causing one party not to perform and resulting in injury to the other
contracting party. Levens v. Campbell, 733 So.2d 753, 760 (Miss. 1999). The four elements for this tort
are: "(1) that the acts were intentional and willful; (2) that they were calculated to cause damage to the
plaintiffs in their lawful business; (3) that they were done with the unlawful purpose of causing damage and
loss, without right or justifiable cause on the part of the defendant (which constitutes malice); and (4) that
actual damage and loss resulted." Par Indus., Inc. v. Target Container Co., 708 So.2d 44, 48 (Miss.
1998) (quoting Cenac v. Murry, 609 So.2d 1257, 1268-69 (Miss.1992)). Of course the plaintiff must
also prove that an enforceable obligation existed between the plaintiff and another party. Merchants &
Planters Bank v. Williamson, 691 So.2d 398, 407 (Miss.1997). In addition, the plaintiff must prove that
the contract would have been performed but for the alleged interference. Par Indus., Inc., 708 So.2d at
48.

¶16. HCA contends that the City's October 1996 order rescinding HCA's authority to open and close
graves in city-owned cemeteries amounts to a tortious interference with contract rights. HCA argues that it
will no longer be able to honor its perpetual care contracts with individual cemetery plot owners. However,
in HCA's bill of exceptions HCA offers no proof of any such contracts. We have stated, "If the bill of
exceptions is not complete and is fatally defective in that pertinent and important facts and documents are
omitted therefrom, then the [circuit] court does not have a record upon which it can intelligently act."
Stewart, 206 So.2d at 328. Further, this Court will not rely solely on assertions made in the briefs; it is the
appellant's duty to establish any facts necessary to establish his claim of error. Goss v. State, 730 So.2d
568, 572 (Miss. 1998). Therefore, HCA having provided no proof whatsoever of its perpetual care
contracts with individual gravesite owners, we must conclude that no such contracts exist, thereby
precluding a claim for tortious interference with contract rights.

¶17. Assuming arguendo, that HCA does have valid and enforceable contracts with individuals for the
perpetual care and maintenance of gravesites, we apply the four elements of tortious interference with
contract rights. First, the City's action in adopting the October 1996 order which rescinded the October
1987 order authorizing HCA to open and close graves must be said to be intentional and willful and
calculated to cause damage. HCA fails to offer any proof that the City calculated to cause damages to
HCA. HCA merely contends that the City "knew that its actions would injure HCA." The City's mere
knowledge of a detrimental effect on HCA does not constitute evidence that its actions were calculated to
cause damage. Further, the City's actions were not done with an unlawful purpose of causing damage and
loss without right or justifiable cause. When the City rescinded the October 1987 order it was exercising its
statutory authority to "make such orders . . . as may be deemed conducive to the best interest of the
municipality." Miss. Code Ann. § 21-17-1 (Supp. 1999). Finally, HCA offers no proof that any loss has
occurred. HCA only hypothesizes that it will no longer be able to fulfill its contractual obligations to the
individual gravesite owners because it will be forced out of business.

      3) Whether the City has conceded the facts recited in HCA's Bill of Exceptions, and the
      City's Answer to the Bill of Exceptions should be disallowed by the Court.

¶18. HCA's next assignment of error is immaterial. The circuit court expressly stated that it did not consider
the City's Answer to the Bill of Exceptions in its ruling.

      5) Whether HCA is entitled to recover its attorneys' fees from the City.

¶19. HCA's final assignment of error concerns its right to recover attorneys' fees from the City. HCA claims
that the City requested it to prepare a proposed agreement to resolve the principal dispute between the two
entities and that HCA prepared such an agreement. However, the City voted not to adopt the agreement.
HCA contends that the City never even considered adopting the agreement, and HCA cites authority
stating that attorney fees may be recovered where punitive damages would be justified. Aetna Cas. & Sur.
Co. v. Steele, 373 So.2d 797, 801 (Miss. 1979). HCA also states the well-established rule that punitive
damages are appropriate when there is a wrongful act intentionally performed. Milner Hotels v. Brent,
207 Miss. 892, 899, 43 So.2d 654, 655 (1949). This argument is without merit. Sufficient facts have not
been presented to in any way justify an award of punitive damages or attorneys' fees in this case. The City
lawfully declined to adopt the agreement during a regular board meeting on March 11, 1997. Accordingly,
this issue is wholly without merit.

¶20. For the foregoing reasons, the judgment of the Circuit Court of Pike County is affirmed in all respects.

¶21. AFFIRMED.

      PRATHER, C.J., PITTMAN AND BANKS, P.JJ., SMITH, WALLER
      AND COBB, JJ., CONCUR. McRAE, J., CONCURS IN RESULT ONLY.
      DIAZ, J., NOT PARTICIPATING.
