                           IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2004-CT-00759-SCT

JACK HAYES AND GEORGE S. WHITTEN, SR.

v.

LEFLORE COUNTY BOARD OF SUPERVISORS

                               ON MOTION FOR REHEARING
                                ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                             06/16/2003
TRIAL JUDGE:                                  HON. WILLIAM G. WILLARD, JR.
COURT FROM WHICH APPEALED:                    LEFLORE COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS:                      GEORGE S. WHITTEN, JR.
ATTORNEY FOR APPELLEE:                        WILLIE JAMES PERKINS, SR.
NATURE OF THE CASE:                           CIVIL - OTHER
DISPOSITION:                                  THE JUDGMENT OF THE COURT OF APPEALS
                                              IS REVERSED AND RENDERED. THE
                                              JUDGMENT OF THE LEFLORE COUNTY
                                              CHANCERY COURT IS REINSTATED AND
                                              AFFIRMED - 08/17/2006
MOTION FOR REHEARING FILED:                   05/11/2006
MANDATE ISSUED:

        EN BANC.

        SMITH, CHIEF JUSTICE, FOR THE COURT:




¶1.     The motion for rehearing is denied.   The original opinion is withdrawn, and this opinion

is substituted therefor.
                            FACTS AND PROCEDURAL HISTORY

¶2.    On November 14, 1995, an order was entered into the minute books of the Leflore

County Board of Supervisors (“Board”).1          This order reflected that all five members of the

Board agreed to authorize the exchange of lands between Leflore County (“County”) and two

companies, Gold Kist and Scott Petroleum.              The order also included incentives from the

County, including the construction of a rail spur track, easements, and an ad valorem tax

exemption.    Phil Wolfe, a member of the Board, claimed the Board neither considered,

discussed, nor approved the 1995 order.        On April 17, 1998, he filed a petition for injunctive

relief in the Leflore County Chancery Court against the Board and County under the Open

Meetings Act, Mississippi Code Annotated Section 25-41-1, et seq. (Rev. 2003) (“Open

Meetings Suit”).    Wolfe requested the chancellor purge the order from the minute books and

enjoin the enforcement of the order, or in the alternative, remove his name from the recorded

vote. Gold Kist filed an answer and cross petition in June 1998, as did Scott Petroleum.

¶3.    While Wolfe’s case was pending, Southern States Cooperative (“Southern”) purchased

the land obtained by Gold Kist in the 1995 order.            Because Wolfe’s suit was a cloud on

Southern’s title to the land, Southern filed suit in late 2002 to quiet and confirm title, naming

Wolfe as a defendant (“Quiet Title Suit”).       On March 7, 2003, in an agreed order entered in

Southern’s suit, Wolfe agreed to dismiss any claims pending in his Open Meetings Suit against

the Board and County. In exchange, Wolfe would be released from Southern’s Quiet Title Suit.




       1
           The facts are taken from those provided by the Mississippi Court of Appeals in Hayes
v. Leflore County Bd. of Supervisors, 2005 WL 1870252, at *1 (Miss. Ct. App. Aug. 9, 2005)
(hereinafter “Hayes”).

                                                   2
¶4.     After learning that Wolfe was dismissing his suit, Harold Emerson, Jack Hayes, and

George S. Whitten, Sr. (collectively “Hayes”), filed a motion on March 21, 2003, to intervene

in Wolfe’s Open Meetings Suit under Mississippi Rule of Civil Procedure 24(a)(2).                 Like

Wolfe, Hayes alleged the 1995 order was not an action taken by the Board. Hayes requested

an injunction commanding the Board to purge the 1995 order from its minutes or a decree that

would strike the 1995 order from the Board’s minutes.

¶5.     On May 5, 2003, the chancellor entered an order dismissing Wolfe’s Open Meetings

Suit with prejudice.       When Hayes challenged the dismissal in a motion for relief, the

chancellor pointed to the March 7, 2003, order in Southern’s Quiet Title Suit wherein Wolfe

had agreed to dismiss his Open Meetings Suit.            The chancellor ruled that Hayes had no basis

for a Rule 24(a)(2) motion to intervene because Wolfe already had agreed to dismiss his Open

Meetings Suit on March 7, 2003.

¶6.     Hayes appealed, and in a 7-0 vote, the Court of Appeals reversed, finding Hayes’s

motion to intervene was timely and that Hayes should have been allowed to intervene. Hayes,

2005 WL 1870252, at *3.          The Court of Appeals based its decision on the fact that although

Wolfe signed March 2003 order in the Quiet Title Suit, there was no record of dismissal filed

in the Open Meetings Suit until May 2003.            Id.    Leflore County filed a Petition for Writ of

Certiorari to this Court, which we granted. We disagree with the Court of Appeals’ finding that

Hayes filed his motion to intervene before the Open Meetings Suit was dismissed.               For the

reasons set forth below, we reverse the Court of Appeals’ judgment and reinstate and affirm

the chancellor’s decision to dismiss Hayes’s petition.

                                      STANDARD OF REVIEW


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¶7.     “[A] trial court has considerable discretion in ruling on a motion to intervene.” City of

Tupelo v. Martin, 747 So. 2d 822, 826 (Miss. 1999) (citing Cummings v. Benderman, 681

So. 2d 97, 101 (Miss. 1996); Guaranty Nat’l Ins. Co. v. Pittman, 501 So. 2d 377, 381 n.1

(Miss. 1987)). “The standard of review of a chancellor’s denial of a motion to intervene is

abuse of discretion.” Cohen v. Cohen, 748 So. 2d 91, 93 (Miss. 1999) (citing Perry County

v. Ferguson, 618 So. 2d 1270, 1271-72 (Miss. 1993)).

                                             DISCUSSION

¶8.     One of many issues on appeal is whether Wolfe’s Open Meetings Suit closed so as to

prevent Hayes from intervening under Rule 24(a)(2).           Stated differently, the preliminary issue

is whether the chancellor’s March 7, 2003, order, which was entered in the Quiet Title Suit,

was sufficient to dispose of the Open Meetings Suit.         The County asserts, and the chancellor

agreed, that Hayes has no basis for a Rule 24(a)(2) motion to intervene because Wolfe already

had agreed to dismiss his suit on March 7, 2003, in an agreed order in Southern’s Quiet Title

Suit. Hayes disagrees, asserting several theories which this Court will address in turn.

¶9.     Under Mississippi Rule of Civil Procedure 41(a), a dismissal may be accomplished by

notice, stipulation, or court order. However, Hayes argues that the agreed order entered in the

Quiet Title Suit was not effective to dismiss the Open Meetings Suit.                      Hayes argues

Mississippi Rules of Civil Procedure 58 and 79(a) exclude the chancellor’s reasoning to deny

Hayes’s motion to intervene; namely, that an agreed order (containing an agreement to dismiss

a separate suit) which is entered on the docket in one suit does not operate to dismiss the

separate suit.




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¶10.      Rule 58 requires “[e]very judgment shall be set forth on a separate document which

bears the title of ‘Judgment.’” Rule 58 also states “[a] judgment shall be effective only when

entered as provided in M.R.C.P. 79(a).”          Rule 79(a) requires the court clerk to maintain a

general docket: “The clerk shall keep a book known as the “general docket” of such form and

style as is required by law and shall enter therein each civil action to which these rules are

made applicable.”

¶11.      Although Hayes cites to Rules 58 and 79(a) in support of his argument, we disagree

with Hayes’s contention that a notice of dismissal, stipulation of dismissal, or order of

dismissal must be entered on the docket so as to effect a dismissal for purposes of a Rule

24(a)(2) intervention.   The comment to Rule 58 states, “[t]he purpose of Rule 58 is simply to

provide a precise post-trial date from which periods of time may be computed. . . . The times

for taking post-trial action are computed from the date judgment is entered . . . .” (emphasis

added).     While Rule 58 is important for establishing a date for computing post-trial motions

and appeals, we do not interpret the rule to be the only means by which to effect a dismissal,

especially where the parties have stipulated to dismiss a separate case, even though the

stipulation is located in an order entered in a separate suit. Based on the facts of this case, we

focus on the agreement between the parties as formalized in the March 7, 2003, order in the

Quiet Title Suit, as opposed to whether a motion had been filed or an order entered in the Open

Meetings Case.      We find the March 7, 2003, order in the Quiet Title Suit, wherein Wolfe

agreed to dismiss his suit against the Board, sufficiently disposed of the Open Meetings Suit

for purposes of a Rule 24(a)(2) motion to intervene.      The matter being litigated was resolved,

which left nothing into which Hayes could intervene.


                                                   5
¶12.    Next, Hayes cites Elliot v. Harrigill, 133 So. 2d 612, 614 (Miss. 1961), where this

Court held where two or more cases are consolidated, the consolidation does not make parties

to one case parties to the other and separate decrees should be entered, unless the nature of

the matters be such that it is clearly proper to include both in one decree. In Elliot, a holder

of a note sued the note’s endorsers, and also filed a separate suit against the maker. Id. at 613.

However, while the suits were later consolidated, a single decree was entered. Id.

¶13.    Hayes also cites the comment to Mississippi Rules of Civil Procedure 42(a) for the

proposition that “equity cases preserve identity of the causes, pleadings are carried on as if no

consolidation had arisen, and separate decrees are issued.” (citing V. Griffith, Mississippi

Chancery Practice, § 506 (2d ed. 1950)). Hayes concludes that since this is the rule for most

consolidated cases, it was far greater error for the chancellor to treat the March 2003 order

in the Quiet Title Suit as controlling in the Open Meetings Suit, since those two cases were not

consolidated.

¶14.    However, Hayes fails to recognize the exception provided in Elliot, that separate

decrees are required in consolidated cases “unless the nature of the matters be such that it is

clearly proper to include them in one decree.” Id. at 614.           Moreover, nothing in either Elliot

or the comment to Rule 42 suggests the chancellor was forbidden from entering an order in

the Quiet Title Suit to dispose of litigation involved in the Open Meetings Suit.

¶15.    Hayes also argues the Open Meetings Suit had not concluded, based on several events

that unfolded after the March 7, 2003, order.            These include Wolfe’s May 12, 2003, motion

to dismiss himself as a party in the Open Meetings Suit (as required by the March 7, 2003,




                                                     6
order in the Quiet Title Suit); an order of dismissal of Scott Petroleum2 signed by the

chancellor in April 2003;3 and an order of dismissal presented by the board attorney and signed

by the chancellor in May 2003 in the Open Meetings Suit. Again, in addition to the rationale

set forth above, we find the subsequent motions filed in the Open Meetings Suit as required

by the March 7, 2003, order, were simply formalities to a forgone conclusion.

¶16.    Hayes argues that based on Martin v. Wilks, 490 U.S. 755, 762 109 S. Ct. 2180, 104

L. Ed. 2d 835 (1989) (superseded by statute as recognized in Kourtis v. Cameron, 419 F.3d

989, 999 (9th Cir. 2005) in the context of employment discrimination), that while an agreed

order among parties to a lawsuit resolves the issues among them, it does not conclude the

rights of strangers to the proceeding.       As such, Hayes asserts he should be allowed to

intervene.

¶17.    In Wilks, a group of white firefighters filed suit claiming they were being denied

promotions in favor of less qualified black firefighters.    Wilks, 490 U.S. at 760.   The white




        2
           Although Wolfe’s first application for injunctive relief is not included in the record,
it appears Scott Petroleum was listed as a defendant in the Open Meeting Suit, as Scott filed
an answer along with a cross complaint requesting the court to compel the Board to fulfill all
legal obligations as listed in the 1995 order.
        3
          Hayes argues that because Scott Petroleum had filed a cross claim as part of its
answer, Wolfe’s Open Meetings Suit remained “open” because as a plaintiff, Scott Petroleum
did not dismiss its claim until after Hayes filed his motion to intervene. Hayes cites the
chancellor’s order denying Hayes’ intervention, where the chancellor stated Wolfe “was the
only Plaintiff in this matter.” We disagree with Scott’s assertion.            Even though Scott
Petroleum may have been a plaintiff for purposes of its cross claim, Scott Petroleum’s interest
was for the Board to fulfill its interests, namely the obligations listed in the 1995 order, not
the interests which Hayes sought: an injunction commanding the Board to purge the 1995
order from its minutes or a decree that would strike the 1995 order from the Board’s minutes.


                                                  7
firefighters argued the City of Birmingham and the county’s personnel board were making

promotion decisions based on race in reliance on certain consent decrees.             Id.   The consent

decrees were the result of a former suit initiated by black firefighters against the City of

Birmingham.     Id. at 759.    After trial, the district court granted the City’s motion to dismiss,

holding the plaintiffs were precluded         from challenging the employment decisions made

pursuant to the consent decrees, even though the plaintiffs had not been parties to the

proceedings in which the consent decrees had been entered. Id. at 755. The Eleventh Circuit

reversed, holding that because the plaintiffs “‘were neither parties nor privies to the consent

decrees, . . . their independent claims of unlawful discrimination are not precluded.’” (quoting

In re Birmingham Reverse Discrimination Employment Litigation, 833 F.2d 1492, 1498

(11th 1987)).

¶18.    On certiorari to the United States Supreme Court, the defendants argued the plaintiffs

were aware that the original suit (from which the consent decree was entered) might affect

them, and because they chose not to intervene, the plaintiffs should not be permitted to later

litigate the racial discrimination issue in a new action. Wilks, 490 U.S. at 762. The Supreme

Court disagreed, stating “[a] judgment or decree among parties to a lawsuit resolves issues as

among them, but it does not conclude the rights of strangers to those proceedings.”

¶19.    The Wilks decision has no bearing on this case. In Wilks, the issue was not whether the

plaintiffs could intervene in a proceeding already before the court, but instead whether a

plaintiff was bound by a decision in a prior proceeding where the plaintiff chose not to

intervene.    Here, the issue is whether Hayes may intervene in a proceeding that is no longer

ongoing.     Again, Hayes seeks an injunction commanding the Board to purge the 1995 order

                                                   8
from its minutes or a decree that would strike the 1995 order from the Board’s minutes.

While we find the Wilks case has no bearing on Hayes’ right to intervene, the decision here

does not “conclude the rights” of Hayes to seek the same or similar relief.        Stated differently,

we are not precluding Hayes from filing his own suit seeking an injunction or a decree to purge

or strike the 1995 order.4

¶20.    Finally, Hayes alternatively argues that even if the March 7, 2003, order in the Quiet

Title Suit served to close the Open Meetings Act, intervention is still permissible after final

judgment pursuant to Guaranty Nat’l Ins. Co. v. Pittman, 501 So. 2d 337 (Miss. 1987) and

Mississippi Rule of Appellate Procedure 4(i).

¶21.    In Pittman, the trial court entered a default judgment in favor of the plaintiff. Pittman,

501 So. 2d at 380.       Approximately 140 days after the entry of judgment, the liability insurer

for the defendant’s putative employer filed a motion to intervene and have the default judgment

vacated.      Id. at 381. The trial court denied the liability insurer’s motion. Id. On appeal, this

Court reversed, finding the liability insurer’s intervention was proper under the four requisites

listed in Rule 24(a)(2). Id. at 386.

¶22.    However, Pittman is distinguishable from this case.        In Pittman, the liability insurer’s

purpose in seeking intervention was to file a motion under Mississippi Rules of Civil

Procedure 60(b), which may be filed at any time within six months after entry of a judgment.

Id. at 382.     Moreover, the defendant had similarly filed a motion to vacate the judgment.       Id.

This Court stated:



        4
            However, as that issue is not before us, we will not discuss the merits of such a claim.

                                                  9
        Any delay other parties may have experienced from allowing [the liability
        insurer] to intervene was going to be experienced anyway as a result of the
        [defendant’s] motion. [The liability insurer’s] motion for leave to intervene did
        not introduce into the case any new claim or require any new litigation beyond
        that already before the court by virtue of [defendant’s] motion filed the previous
        day.

Id.

¶23.    Hayes also argues M.R.A.P. 4(i) authorizes post-judgment intervention.         The rule states:

        If the board of supervisors of any county . . . sued in official capacity, fails to
        file a notice of appeal under Rule 4(a) within 20 days after the date of entry of
        an adverse judgment or order, or within 7 days after filing of a notice by another
        party pursuant to Rule 4(c), any taxpayer of the county . . . shall have the right
        at the taxpayer’s own expense to employ private counsel to prosecute the appeal
        in compliance with these rules.

M.R.A.P. 4(i). However, Hayes fails to realize that a fundamental element of the rule requires

an “adverse judgment or order.” Again, Wolfe dismissed his suit against the Board; as logic

would dictate, no judgment in favor of or against the Board was possible.

                                           CONCLUSION

¶24.    Based on our analysis, we find the chancellor did not abuse his discretion by denying

Hayes’s motion to intervene.     As the chancellor explained in his order denying Hayes’ motion

to intervene, the Open Meetings Suit was completely disposed of pursuant to the March 7,

2003 order whereby Wolfe agreed to dismiss his suit. For all intents and purposes, the action

in which Hayes wanted to intervene no longer existed at the time he filed his petition for

intervention. For these reasons, we reverse the judgment of the Court of Appeals and reinstate

and affirm the chancellor’s order denying Hayes’s motion to intervene under Rule 24(a)(2).

¶25. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND
RENDERED. THE JUDGMENT OF THE LEFLORE COUNTY CHANCERY COURT
IS REINSTATED AND AFFIRMED.


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     WALLER AND COBB, P.JJ., EASLEY, CARLSON AND DICKINSON, JJ.,
CONCUR. RANDOLPH, J., CONCURS IN RESULT ONLY. DIAZ AND GRAVES, JJ.,
NOT PARTICIPATING.




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