                        IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2004-CC-02302-SCT

A&F PROPERTIES, LLC

v.

MADISON COUNTY BOARD OF SUPERVISORS,
LAKE CAROLINE, INC. AND LAKE CAROLINE
OWNERS ASSOCIATION


DATE OF JUDGMENT:                            11/08/2004
TRIAL JUDGE:                                 HON. WILLIAM E. CHAPMAN, III
COURT FROM WHICH APPEALED:                   MADISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                     G. TODD BURWELL
                                             WILLIAM LARRY LATHAM
ATTORNEYS FOR APPELLEES:                     ROBERT RICHARD CIRILLI, JR.
                                             EDMUND L. BRUNINI, JR.
                                             THOMAS A. COOK
                                             LISA MICHELE McCAIN
                                             STEVEN H. SMITH
NATURE OF THE CASE:                          CIVIL - REAL PROPERTY
DISPOSITION:                                 AFFIRMED - 06/29/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE WALLER, P.J., GRAVES AND RANDOLPH, JJ.

       RANDOLPH, JUSTICE, FOR THE COURT:

¶1.    On July 14, 1989, following public notice and a public hearing, the Madison County

Board of Supervisors (“Board”) adopted the petition of Lake Caroline, Inc. (“LCI”) to have

3,047 acres of property rezoned from A-1 Agricultural Classification to P-1 Planned Unit

Development District Classification.   On September 27, 1995, LCI and A&F Properties, LLC

(“AFP”) entered into a Contract wherein LCI agreed to sell 154 acres within the Lake Caroline
Planned Unit Development (“PUD”) to AFP for ten ($10)                  dollars.1   As additional

consideration, AFP agreed to construct “an eighteen (18) hole semi-private golf course” on

the subject property.    Regarding the golf course, the Contract provided that the property must

be used and maintained as a golf course for ten (10) years from December 31, 1996.

Moreover, LCI contractually agreed “not to compete with [AFP]” during that period in any golf

course operation within the Lake Caroline development “so long as [AFP] operates a golf

course.”     Finally, the Contract also provided that “[i]f [AFP] should desire to sell the Golf

Course during the first seven (7) years, [LCI] ... shall be given a right of first refusal to

purchase the golf course ... .” (Emphasis added). On November 3, 1995, LCI conveyed the

property to AFP by warranty deed. In addition to reiterating portions of the Contract regarding

restrictions on the use and transfer of the property as a golf course, the Warranty Deed

provided that, “[t]he warranty of this conveyance is made subject to ... (2) All applicable zoning

ordinances     of the governmental authority having jurisdiction over the herein conveyed

property.” In 1996, AFP developed the 154 acres as a golf course within the PUD.

¶2.    At some point after June 26, 1989, the 1989 Master Plan for the Lake Caroline PUD

could not be found in the Madison County records.2         In 1998, the Board adopted and duly

recorded a different Master Plan (“1998 Master Plan”) and declared that all future actions

affecting development within the PUD must be in conformity with it.        Like the 1989 Master



       1
         In addition to the 154 acres conveyed to AFP, LCI agreed to convey an additional ten
(10) residential subdivision lots to AFP, to be developed by LCI.
       2
       According to Madison County Zoning Administrator Brad Sellers, “there was no
Master Site Plan on file in my office and one could not be found in the Madison County
Chancery Clerk’s office for the Lake Caroline Planned Unit Development ... .”

                                                2
Plan, the 1998 Master Plan provided that “the developer reserves the right, in its sole

discretion, to alter or amend the uses and locations illustrated on this plan.” Unlike the 1989

Master Plan, the 1998 Master Plan illustrated a golf course as an amenity within the PUD. The

1998 Master Plan was prepared, filed, and adopted without the knowledge or involvement of

AFP, and again unlike 1989, there was neither public notice, nor a public hearing regarding its

adoption by the Board. On February 22, 2001, the 1998 Master Plan was allegedly3 amended,

adding 217 small residential lots (“2001 Master Plan”), without public notice or a public

hearing. On January 8, 2003, the Master Plan was again allegedly4 amended, providing for the

addition of six (6) commercial lots (“2003 Master Plan”), once again without public notice or

a public hearing.

¶3.     On September 1, 2003, AFP advised the Board of its intention to convert the golf

course into a residential subdivision. AFP asserted that the golf course was not profitable and

was not being used by residents of the Lake Caroline PUD.5 On September 9, 2003, Madison

County Zoning Administrator Brad Sellers sent a letter to AFP stating that the golf course is

zoned as a PUD and “[a]ny changes planned therein must be approved by the [Board] through

an amendment to the Master Development Plan.”       Up to this point, AFP alleges that it was

unaware of any Master Plan for the PUD other than the 1989 Master Plan.      On November 7,

2003, AFP filed a request asking the Board to hear its proposal to amend the Lake Caroline


        3
        No evidence can be found in the record of Board minutes authorizing this amendment
or new Master Plan.
        4
            See footnote 3.
        5
       Specifically, AFP claimed that only 22 of 300 homeowners within the Lake Caroline
development were members of the golf course.

                                              3
Master Plan to allow AFP to change the use of its property from a golf course to a residential

subdivision.   Unlike with the 1998 substitution and the 2001 and January 2003 alleged

amendments, the Board refused to consider AFP’s request without public notice and a public

hearing.6   On December 12, 2003, a public hearing was held by the Board regarding AFP’s

request. After lengthy argument from AFP, LCI, and LCOA, a transcript of the hearing reveals

that the Board unanimously voted to table AFP’s request and not reconsider the matter before

November 2006; and its decision was duly recorded in the Board’s minutes. This action of the

Board was not appealed.

¶4.     The composition of the Board changed in January 2004 as the result of elections the

prior year. Despite the Board’s December 12, 2003, ruling, and without seeking to rescind that

ruling, AFP re-filed its prior request on March 26, 2004, for the newly-constituted Board to

hear and consider the proposed amendment to the Lake Caroline Master Plan.          The newly-

constituted Board granted AFP’s public hearing request. At an April 23, 2004, public hearing,

the Board      received and considered argument, testimony, and documentary evidence.

Significantly, LCI and the Lake Caroline Owners Association (“LCOA”) argued that the hearing

should be barred under the doctrines of res judicata and equitable estoppel by virtue of its

substantive similarity to the December 12, 2003, hearing.   They claimed that the Board’s prior

ruling that the request was premature applied until November 2006. A board member offered



        6
        According to Brad Sellers, “[t]he language in the zoning ordinance says it is ambiguous
... . The procedure that we have followed in amendments to Master Plans have not been [to my]
notice public hearings. They’ve simply prepared the amendment that they’ve proposed and
presented it to the Board of Supervisors at a regular scheduled hearing.” The public notice and
public hearing in this situation was “at the request of the Board,” effectively creating a legal
requirement which was previously non-existent.

                                               4
a motion to table consideration of the matter until December 2006, but the motion died for

lack of a second. Thereafter, another Board member offered a motion to deny AFP’s request.

That motion was seconded.       After discussion, the Board unanimously voted to deny AFP’s

request to amend the Lake Caroline Master Plan, which was duly recorded in the minutes of

said meeting.

¶5.     On May 3, 2004, AFP filed its Notice of Appeal and Bill of Exceptions, appealing the

Board’s denial of its request to amend the Lake Caroline Master Plan. On October 25, 2004,

the Opinion and Order of the Circuit Court of Madison County affirmed the Board’s denial of

AFP’s request. The circuit court found, inter alia, the Board’s denial could be justified insofar

as any decision the Board rendered for AFP would be premature, as the LCI-AFP Contract

required the golf course to remain functional until December 31, 2006.             On November 8,

2004, the Final Judgment of the Circuit Court of Madison County, affirming the denial of

AFP’s request to amend, was entered. On November 16, 2004, AFP filed its Notice of Appeal

against the Board, LCI, and LCOA (“Appellees”), appealing the Final Judgment of the Circuit

Court of Madison County. Specifically, AFP seeks approval of its request to amend the Master

Plan and a remand of its request for approval of its development or site plan to the Board for

consideration and action in accordance with the Madison County Zoning Ordinance.

                                   STANDARD OF REVIEW

¶6.     “The standard of review of an order of a Board of Supervisors is the same standard

which applies in appeals from the decisions of administrative agencies.” Ladner v. Harrison

County Bd. of Supervisors, 793 So. 2d 637, 638 (Miss. 2001) (citing Barnes v. Bd. of

Supervisors, DeSoto County, 553 So. 2d 508, 511 (Miss. 1989)). The decision of the Board


                                                5
will not be disturbed unless its order “was unsupported by substantial evidence; was arbitrary

or capricious; was beyond the [Board’s] scope or powers; or violated the constitutional or

statutory rights of the aggrieved party.”      Id. (citing Bd. of Law Enforcement Officers

Standards & Training v. Butler, 672 So. 2d 1196, 1199 (Miss. 1996)) (emphasis added). As

to questions of law, however, the Board’s decision will be reviewed de novo.    See Harrah’s

Vicksburg Corp. v. Pennebaker, 812 So. 2d 163, 170 (Miss. 2001).

                                           ANALYSIS

¶7.    AFP raised, and the Board and LCI responded to, the following issues:

       (1)Was the Board’s denial of AFP’s Request to Amend Caroline Master Plan
       and Approve Residential Development supported by substantial evidence?
       (2)Was the Board’s denial of the Request arbitrary and capricious?
       (3)Was the Board’s denial of the Request a violation of AFP’s due process
       rights?
       (4)Was the Board’s denial of the Request a violation of AFP’s equal protection
       rights?
       (5)Did the Board’s denial of the Request exceed the Board’s legislative
       authority as set forth by the Madison County Zoning Ordinance?
       (6)Was the Board’s denial of the Request contrary to the Ordinance and
       therefore unlawful?
       (7)Did the Circuit Court of Madison County, Mississippi err or abuse its
       discretion in affirming the denial of the Request filed by AFP?

¶8.    LCOA presents the issues as follows:

       (1)AFP had no legal right/“standing” to amend the Lake Caroline Planned Unit
       Development.
       (2)AFP’s Request to Amend the Lake Caroline PUD was “premature” and
       contractually prohibited.
       (3)The Lake Caroline PUD was officially and properly approved by the Board
       on February 25, 1998, and cannot now be collaterally attacked.
       (4)AFP failed and refused to comply with Sections 402.9-1 - 402.9-6, Madison
       County Zoning Ordinances.
       (5)AFP was “equitably estopped” from seeking/granting the relief requested by
       AFP.



                                                6
¶9.     This Court finds that Appellant Issue (7) and Appellee LCOA Issue (2) are dispositive.

Simply stated, was AFP’s Request to Amend Caroline Master Plan and Approve Residential

Development premature, and if answered in the affirmative, would the Board’s denial of the

Request, as affirmed by the Circuit Court of Madison County, likewise be premature?

¶10.    The Circuit Court of Madison County, in its Opinion and Order, properly found that

“interpretation of the golf course agreement is at the core of this matter.”          Moreover, the

circuit court determined that “given the pending and/or impending litigation between the parties

... AFP’s request was, in fact, premature before such litigation had been finally concluded.”

The circuit court also found:

        [w]hile the Board is called on to make many decisions on many issues, it is not
        the body to adjudicate the rights and responsibilities of AFP and the Developer
        under the golf course agreement or any assertions of rights in relation thereto
        by the Homeowners, or any claims it previously violated AFP’s constitutional
        rights.

In short, “that litigation, not a Board meeting, which is summary in nature, is the vehicle to

determine the duties of all the parties as to such future.” Only following that litigation or upon

expiration of the contract could an amendment to the Master Plan avoid being premature.         As

such, the circuit court concluded that “[t]he Board’s denial can be upheld on the basis that any

decision by it that far from December 31, 2006, and/or prior to the other parties sorting out

their various rights and responsibilities under the golf course agreement, would be premature.”

Appellees assert that AFP’s request was not only premature, but contractually prohibited by

virtue of the plain language of the LCI-AFP Contract.             In short, they contend AFP is

contractually required to continue using the property as a golf course through December 31,

2006.


                                                 7
¶11.   “The standard of review for questions concerning the construction of a contract are

questions of law that are committed to the court rather than to the fact-finder.”   Ferrara v.

Walters, 919 So. 2d 876, 881 (Miss. 2005) (citing Warwick v. Gautier Utility Dist., 738 So.

2d 212, 215 (Miss. 1999); Miss. State Highway Comm’n v. Patterson Ent ers., Ltd., 627 So.

2d 261, 263 (Miss. 1993)). Questions of law are reviewed by this Court de novo. See Biddix

v. McConnell, 911 So. 2d 468, 471 (Miss. 2005) (citing G.B. “Boots” Smith Constr. Corp.

v. Cobb, 860 So. 2d 774, 776-77 (Miss. 2003)).       Only if the contract is deemed ambiguous

will the “subsequent interpretation” involve “a finding of fact.”   Id. (citing Rotenberry v.

Hooker, 864 So. 2d 266, 269 (Miss. 2003)).

¶12.   “Our law requires this Court to accept the plain meaning of a contract as the intent of

the parties where no ambiguity exists.” Ferrara, 919 So. 2d at 882 (citations omitted). In

other words, “[l]egal purpose or intent should first be sought in an objective reading of the

words employed in the contract to the exclusion of parol or extrinsic evidence.” Royer Homes

of Miss., Inc. v. Chandeleur Homes, Inc., 857 So. 2d 748, 752 (Miss. 2003) (citations

omitted). In applying the “four corners” test, “[o]ur concern is not nearly so much with what

the parties may have intended, but with what they said, since the words employed are by far the

best resource for ascertaining the intent and assigning meaning with fairness and accuracy.”

Id. (citing Simmons v. Bank of Miss., 593 So. 2d 40, 42-43 (Miss. 1992)).           “Only if the

contract is unclear or ambiguous can a court go beyond the text to determine the parties true

intent.” Id. at 752-53 (citing Pursue Energy Corp. v. Perkins, 558 So. 2d 349, 352 (Miss.

1990)). In short, this Court “will not rewrite or deem a contract ambiguous where the language



                                              8
is clear and indicative of its contents.” Miss. Farm Bureau Mut. Ins. Co. v. Walters, 908 So.

2d 765, 769 (Miss. 2005) (citing State Auto. Mut. Ins. Co. v. Glover, 253 Miss. 477, 176 So.

2d 256, 258 (1965)).

¶13.   Here, the plain, unambiguous language of the LCI-AFP Contract mandates that the

property be maintained as a golf course until December 31, 2006.          Prior to December 31,

2006, AFP is contractually bound to either maintain the property as a golf course or sell it to

another who will maintain it as such.     To require AFP to submit to the provisions of the

contract which it freely entered into with LCI respects the plain language of the contract.   See

Walters, 908 So. 2d at 769.

¶14.   The circuit court properly identified the prematurity issue.    However, the circuit court

failed to address the significance of the Board’s December 2003 ruling, which was not

appealed.    Rather than appealing, AFP simply ignored the prior ruling, and filed another

request with the newly constituted Board three months later. At the subsequent hearing, LCOA

properly argued to the Board that res judicata should control.        “Under Mississippi law, res

judicata or collateral estoppel precludes relitigation of administrative decisions.”   Smith v.

Univ. of Miss., 797 So. 2d 956, 963 (Miss. 2001) (involving a terminated state employee who

failed to appeal the dismissal decision of the Personnel Action Review Board to the circuit

court by writ of certiorari as mandated by Miss. Code Ann. Sections 11-51-93 and - 95). See

also Zimmerman v. Three Rivers Planning & Dev. Dist., 747 So. 2d 853, 861 (Miss. Ct. App.

1999) (involving the failure to file an appeal of the Permit Board’s decision within twenty days

after it was entered into the books as mandated by Miss. Code Ann. Section 49-17-29).

According to Zimmerman, “[o]nce an agency decision is made and the decision remains

                                               9
unappealed beyond the time to appeal, it is barred by administrative res judicata or collateral

estoppel.” 747 So. 2d at 861 (citing Hood v. Miss. Dep’t of Wildlife Conservation, 571 So.

2d 263, 268 (Miss. 1990)).          In denying AFP’s request, the Board erroneously ignored its

binding initial ruling of prematurity.    In failing to acknowledge that initial ruling of the Board,

which effectively renders this action non-justiciable until after December 31, 2006, the circuit

court’s prematurity analysis was incomplete.

¶15.    Only after December 31, 2006, when AFP’s contractual obligation to maintain the golf

course expires, is AFP free to petition the Board regarding other uses for the subject property.

Until that time, when this action ripens, this Court has no power to issue an advisory opinion.

See In re Summers, 325 U.S. 561, 567, 65 S.Ct. 1307, 89 L. Ed. 491 (1945) (in federal

appellate courts, the case or controversy requirement mandates “an actual controversy over an

issue, not a desire for an abstract declaration of the law.”); Furstein v. Hill, 218 Conn. 610,

627, 590 A.2d 939 (1991) (at the state level, as well, “the existence of an actual controversy

is an essential prerequisite to appellate jurisdiction.”); Allred v. Webb, 641 So. 2d 1218, 1220

(Miss. 1994) (the Mississippi Supreme Court “[has] no power to issue advisory opinions.”);

Insured Savs. & Loan Ass’n v. State, 242 Miss. 547, 554, 135 So. 2d 703, 706 (1961) (“The

Supreme Court has no power to render advisory opinions.”).                Therefore, the circuit court’s

affirmance of the Board’s denial of AFP’s request was proper, but only because AFP’s request

was premature contractually and barred by virtue of the Board’s initial ruling.




                                                    10
                                           CONCLUSION

¶16.    For these reasons, this Court finds that the circuit court was correct in rejecting AFP’s

request for relief, but not for the stated reasons.      This Court concludes that AFP’s request is

premature until the relevant provision of the LCI-AFP Contract expires on December 31,

2006. Therefore, the circuit court’s judgment is affirmed.

¶17.    AFFIRMED.

       SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON AND GRAVES,
JJ., CONCUR. DICKINSON, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN
OPINION. DIAZ, J., NOT PARTICIPATING.




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