                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 97-CA-00919-SCT
ERMA NEWELL, CINDY GORDON AND BEVERLY
COOLEY
v.
JONES COUNTY, MISSISSIPPI AND ENVIRO, INC.

DATE OF JUDGMENT:                                  7/14/97
TRIAL JUDGE:                                       HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED:                         JONES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                          RAY T. PRICE
                                                   GLENN L. WHITE
ATTORNEYS FOR APPELLEES:                           HAROLD W. MELVIN
                                                   PATRICIA MELVIN
                                                   TRUDY D. FISHER
                                                   CLOVER S. PITTS
NATURE OF THE CASE:                                CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                                       AFFIRMED - 1/14/99
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                    4/8/99




      BEFORE SULLIVAN, P.J., BANKS AND ROBERTS, JJ.


      BANKS, JUSTICE, FOR THE COURT:




¶1. We have for review a lower court's dismissal of a complaint on the grounds that the Plaintiffs failed to
follow Miss. Code Ann. § 11-51-75 as the appropriate avenue for challenging the actions of a Board of
Supervisors. Because we agree with the trial court, we affirm.

                                                      I.

¶2. Jones County, Mississippi ("Jones County") along with the City of Laurel, Mississippi, advertised for the
submission of bids for solid waste collection. Enviro, Inc. ("Enviro") was among those contractors which
submitted bids in response to the advertisement. Enviro was the only contractor willing to also accept
responsibility for billing and collecting fees.
¶3. On September 30, 1996, the Jones County Board of Supervisors issued an Order accepting Enviro's
bid. Jones County and Enviro entered into a contract on December 16, 1996.(1) The contract was
amended on April 21, 1997, to include a provision which allowed those who did not wish to pay for
Enviro's services to "'opt-out' of the Solid Waste Collection and Disposal System." In order to 'opt-out'
residents were required to file a form with the Chancery Clerk and to dispose of their own waste in a
manner prescribed by law.

¶4. On March 20, 1997, Erma Newell ("Newell"), Cindy Gordon ("Gordon"), and Beverly Cooley
("Cooley") filed a Complaint for Declaratory Judgment against Jones County and Enviro. The Complaint
alleged, inter alia, that Jones County violated Miss. Code Ann. § 21-19-2(2)(c), by failing to give notice
of the fees to be charged under the contract prior to its adoption. The Complaint sought a declaration that
the contract created an illegal monopoly and that its provisions could not be enforced against Newell,
Gordon, and Cooley. Of the Plaintiffs, only Cooley had opted out of the disposal system.

¶5. After answering, both Jones County and Enviro filed Motions to Dismiss the Complaint. The Motions
came on for hearing on June 9, 1997. During the hearing, Jones County argued that the Complaint was an
untimely attempt to appeal the decision of the Board and that the Plaintiffs' exclusive remedy was to appeal
the Board's decision as provided in Miss. Code Ann. § 11-51-75. Jones County further argued that
Newell and Gordon, who had not opted out, had failed to exhaust their administrative remedies and that the
case was moot as to Cooley, who had opted out. Enviro argued that the Plaintiffs did not have standing to
file the declaratory action because they were not parties to the contract.

¶6. On June 26, 1997, after taking the Motions under advisement, the trial court filed its findings and
opinion; an Order granting Jones County's and Enviro's Motions to Dismiss the Plaintiffs's Complaint
followed on July 14, 1997. The trial court found that Miss. Code Ann. § 11-51-75, provided the proper
procedure for appealing the Board's decision. The trial court further found that the case was moot as to
Cooley because she had opted out of the disposal system and that Newell and Gordon had failed to
exhaust their administrative remedies. Finally, the trial court found that the Plaintiffs had failed to allege that
they suffered an injury different from any other citizen or the deprivation of a legal right, and as such, lacked
standing to bring the action. The Plaintiffs filed a timely appeal from the findings and the Order of the trial
court.

                                                        II.

¶7. This Court has held that the appropriate standard to employ in reviewing a lower court's decision to
dismiss a case on a 12(b)(6) Motion is as follows:

      The standards which a trial court must employ when considering a motion to dismiss under Rule 12(b)
      (6) have become quite familiar. The well pleaded allegations of the complaint must be taken as true.
      See Marx v. Truck Renting & Leasing Association, 520 So. 2d 1333, 1339 (Miss. 1987).
      Those well in mind, together with any defense asserted in the motion to dismiss, the court should not
      grant the motion unless it appears beyond any reasonable doubt that the plaintiff can prove no set of
      facts in support of his claim which would entitle him to relief. Grantham v. Mississippi Department
      of Corrections, 522 So. 2d 219, 220 (Miss. 1988); Lester Engineering Co., Inc. v. Richland
      Water & Sewer Dist., 504 So. 2d 1185, 1187 (Miss. 1987); Stanton & Associates, Inc. v.
      Bryant Construction Co., 464 So. 2d 499, 505 (Miss. 1985); see also Estelle v. Gamble, 429
      U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251, 261 (1976). We employ the same standard
      when on appeal we are asked to consider whether a trial court's granting a motion to dismiss may
      have been error.

McFadden v. State, 542 So. 2d 871, 874-75 (Miss. 1989).

¶8. The Plaintiffs raise four issues on appeal. However, because we find the first issue raised to be
dispositive of this appeal the remaining issues will not be addressed.

¶9. Plaintiffs claim that the trial court erred by holding that the proper avenue for appeal was Miss. Code
Ann. § 11-51-75. Miss. Code Ann. § 11-51-75 (1972) provides, in pertinent part, as follows:

      11-51-75. Appeal to circuit court from board of supervisors, municipal authorities.

      Any person aggrieved by a judgment or decision of 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 be 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.

¶10. The statute's ten (10) day time limit in which to appeal the decision of a Board is both mandatory and
jurisdictional. Moore v. Sanders, 569 So. 2d 1148, 1150 (Miss. 1990). Where an appeal is not perfected
within the statutory time constraints no jurisdiction is conferred on the appellate court; and the untimely
action should be dismissed. Id. In the case sub judice Plaintiffs failed to file a bill of exceptions within ten
(10) days of the Jones County Board's decision to award the contract to Enviro. Instead, a Complaint for
Declaratory Judgment was filed nearly six (6) months after the Board issued an Order accepting Enviro's
bid and three (3) months after the Board entered into the contract with Enviro.

¶11. Plaintiffs argue that where the decision of a Board of Supervisors is claimed to be unlawful the
procedural requirements of Miss. Code Ann. § 11-51-75 do not apply. A similar issue was addressed in
South Central Turf, Inc. v. City of Jackson, 526 So. 2d 558 (Miss. 1988), in which a Plaintiff sought
damages and injunctive relief from the City of Jackson's awarding a leasing contract. Id., cited with
approval in Garrard v. City of Ocean Springs, 672 So. 2d 736, 738 (Miss. 1996). This Court held that
"any act of a county or municipality leaving a party aggrieved is appealable under § 11-51-75 where... all
issues of the controversy are finally disposed of." South Cent. Turf, 526 So. 2d at 561. This Court further
noted that the action brought in South Central Turf was in form and substance an appeal from the
decision of the municipal authority, and as such, § 11-51-75 was applicable. Id. This case takes issue with
the Jones County Board's decision to enter into the contract for garbage collection. Plaintiffs claim that the
acts of the Jones County Board were mandatory and not discretionary; Plaintiffs also claim that the acts of
the Jones County Board were unlawful. But nowhere do the Plaintiffs claim that the Jones County Board
did not act or that the actions taken by the Jones County Board were not final.

¶12. Plaintiffs also argue that where a complaint alleges that the actions of the Board failed to comport with
law a different standard of review applies and the party is entitled to a de novo proceeding. In support of
this argument the Plaintiffs cite Cook v. Board of Supervisors of Lowndes County, 571 So. 2d 932
(Miss. 1990). In Cook, this Court held that where a circuit court acts in its appellate capacity in reviewing
the decisions of municipal authorities it is contemplated that the municipal authority conducted a hearing.
Where municipal authorities fail to hold any kind of hearing, a party with standing is entitled to proceed de
novo. Cook, 571 So. 2d at 934. Allowing the parties to proceed de novo does not, however, mean that
they are relieved from complying with the procedural prerequisites to appeal under the statute. McIntosh v.
Amacker, 592 So. 2d 525, 527 (Miss. 1991) (holding that a bill of exceptions is required even when
appeal is for de novo determination of damages).

¶13. The party challenging the Board action in Cook filed a petition for writ of prohibition within the ten
(10) days prescribed by the Statute. Cook, 571 So. 2d at 934. This Court stated, "[i]n any event, Cook
filed in Circuit Court within ten days and, if it were necessary, we could simply treat Cook's petition... as an
appeal." Id. Substance should prevail over form regardless of the label placed on the documents filed with
the circuit court. Id. The holding in Cook turned, not on the nature of the violation the Board is alleged to
have committed, but rather on the fact that a timely challenge to the Board's action had been filed. As
discussed supra, Plaintiffs here failed to file any challenge to the Jones County Board's action within the ten
(10) days prescribed by Miss. Code Ann. § 11-51-75. Therefore, the action was properly dismissed as
untimely.

                                                      III.

¶14. For the foregoing reasons the Judgment of the lower court is affirmed.

¶15. AFFIRMED.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., McRAE, ROBERTS, SMITH, MILLS
AND WALLER, JJ., CONCUR.




1. The City of Laurel, Mississippi did not enter into the contract.
