         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2017-CA-01199-COA

SHARON LEE, HERBERT LEE JR., AND                                           APPELLANTS
PERCY TOASTER

v.

THE CITY OF BYRAM, MISSISSIPPI                                                 APPELLEE

DATE OF JUDGMENT:                           06/30/2017
TRIAL JUDGE:                                HON. FRANK G. VOLLOR
COURT FROM WHICH APPEALED:                  HINDS COUNTY CIRCUIT COURT,
                                            FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANTS:                    JANE E. TUCKER
ATTORNEYS FOR APPELLEE:                     JOHN PRESTON SCANLON
                                            JERRY L. MILLS
NATURE OF THE CASE:                         CIVIL - OTHER
DISPOSITION:                                REVERSED AND REMANDED - 05/21/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE CARLTON, P.J., TINDELL AND McDONALD, JJ.

       TINDELL, J., FOR THE COURT:

¶1.    Sharon and Herbert Lee and Percy Toaster (collectively, the Appellants) appeal the

judgment of the Hinds County Circuit Court, First Judicial District, which dismissed with

prejudice their bill of exceptions seeking judicial review of a rezoning decision by the mayor

and board of aldermen (the Board) of the City of Byram (the City). The Appellants raise the

following issues: (1) the circuit court erroneously dismissed as untimely their appeal from

the Board’s decision; (2) clear and convincing evidence failed to support the rezoning; and

(3) the rezoning resulted in illegal spot zoning.
¶2.    Upon review, we find the Appellants timely appealed the Board’s rezoning decision.

We therefore reverse the circuit court’s dismissal of the appeal and bill of exceptions as

untimely, and we remand this case so the circuit court may consider the merits of the

arguments raised in the Appellants’ bill of exceptions. Because we reverse and remand on

this ground, we decline to address the Appellants’ remaining arguments.

                                           FACTS

¶3.    On January 9, 2014, the Board approved Brett and Joni Huchins’s application to

rezone a small parcel of land on Siwell Road. The Hutchinses sought to rezone property

located at 4149 Siwell Road from agricultural to neighborhood commercial to allow the

construction of a dance studio. On January 17, 2014, the Appellants, who live near the

rezoned parcel, filed a notice of appeal from the Board’s decision. The Appellants also

prepared a proposed bill of exceptions, which they attached as an exhibit to their notice of

appeal. The Appellants delivered both documents to the city clerk with a letter asking that

the clerk provide the bill of exceptions to the mayor for his review and signature and that the

City provide the Appellants with copies of various specified documents for their appeal.

¶4.    The Appellants stated in their proposed bill of exceptions that they incorporated by

reference all proceedings conducted by the City and all documents filed with the City related

to the rezoning application. After receiving all such documents and obtaining the mayor’s

signature, the Appellants asserted that they would file the bill of exceptions and its attached

documents with the court clerk. On February 28, 2014, the City provided several of the

requested documents to the Appellants. On March 7, 2014, the City provided the Appellants



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with the remaining requested documents.

¶5.    The record reflects that the next filing in the matter occurred on September 25, 2015,

when the City filed a motion to dismiss. The City argued that the Appellants failed to

properly and timely file their bill of exceptions. The Appellants responded to the City’s

motion. In addition to their response, the Appellants filed a second bill of exceptions, this

time with the circuit court. This second bill of exceptions was also unsigned by the mayor,

and it recounted additional details about the matter that had occurred in the interim between

the filing of the first and second bills of exceptions. The City subsequently filed a rebuttal

in support of its motion to dismiss. As exhibits to its rebuttal, the City attached a certified

copy of (1) the Board’s January 9, 2014 meeting minutes; (2) the rezoning ordinance the

Board adopted; (3) the notice of the public hearing before the Planning and Zoning

Commission (the Commission) on the rezoning request; (4) the Commission’s factual

findings and written recommendation to the Board regarding the rezoning application; and

(5) the Commission’s meeting minutes.

¶6.    Following a hearing on the City’s motion to dismiss, the circuit court found the

Appellants failed to timely file their bill of exceptions. The circuit court therefore dismissed

with prejudice both the Appellants’ notice of appeal and their bill of exceptions. The

Appellants filed an unsuccessful motion for reconsideration. Aggrieved, they appeal.

                                STANDARD OF REVIEW

¶7.    We review de novo the circuit court’s grant of a motion to dismiss. Latham v.

Johnson, 262 So. 3d 569, 577 (¶39) (Miss. Ct. App. 2018).



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                                        DISCUSSION

¶8.    The Appellants argue the circuit court erroneously dismissed as untimely their appeal

from the Board’s rezoning decision. At the time the Appellants filed their notice of appeal

and proposed bill of exceptions with the city clerk, the Mississippi Supreme Court had not

yet decided City of Jackson v. Allen, 242 So. 3d 8 (Miss. 2018), which overruled Bowen v.

DeSoto County Board of Supervisors, 852 So. 2d 21 (Miss. 2003). In Bowen, the DeSoto

County Board of Supervisors (the DeSoto Board) denied Bowen’s request for a conditional-

use permit. Bowen, 852 So. 2d at 22 (¶1). Within ten days of the DeSoto Board’s decision,

Bowen filed a notice of appeal, but no bill of exceptions, with the circuit clerk. Id. Based

on Bowen’s failure to file a bill of exceptions pursuant to Mississippi Code Annotated

section 11-51-75 (Rev. 2002), the DeSoto Board moved to dismiss Bowen’s appeal. Id. The

circuit court granted the dismissal, but on appeal to this Court, we reversed and remanded

with the following instructions to the circuit court:

       [P]ermit Bowen a reasonable time, as set by the court in the exercise of its
       sound discretion, to file the required bill of exceptions. In the event the bill of
       exceptions is filed within the mandated time, the court should proceed to
       resolve the issues presented by Bowen’s appeal on the merits. In the event the
       bill is not timely filed, the court should consider dismissing the appeal, not for
       lack of jurisdiction, but for the appellant’s failure to prosecute his appeal.

Bowen v. Desoto Cty. Bd. of Supervisors, 850 So. 2d 1156, 1158 (¶10) (Miss. Ct. App. 2002).

After granting certiorari, the supreme court concluded that Bowen’s properly and timely filed

notice of appeal sufficed to vest jurisdiction of the matter with the circuit court. Bowen, 852

So. 2d at 24 (¶9). As a result, the supreme court affirmed this Court’s judgment. Id.

¶9.    The supreme court’s holding in Bowen remained good caselaw until 2018, when the


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supreme court explicitly stated in Allen that it overruled Bowen’s holding “that the bill of

exceptions is nothing more than an optional vehicle for transmitting the record to the circuit

court and that some other filing, such as a notice of appeal, can suffice to confer jurisdiction

there.” Allen, 242 So. 3d at 22 (¶55).1 However, in clarifying the proper procedure for bill-

of-exceptions-practice and overruling Bowen, the Allen court explained that “to restore

fairness and sensibility to the bill[-]of[-]exceptions process, . . . going forward, the ten-day

deadline contained in the statute applies to the filing of the bill of exceptions with the clerk

of the county or municipal board.” Id. at (¶56). Based on such language, we find the Allen

court intended its holding to apply prospectively rather than retroactively. See Mid-S. Retina

LLC v. Conner, 72 So. 3d 1048, 1052 (¶13) (Miss. 2011) (“Generally, all judicial decisions

apply retroactively unless the Court has specifically stated the ruling is prospective.”). We

therefore find the change in caselaw brought about by Allen fails to apply to the appeal

currently before us because the current appeal was pending at the time the supreme court

decided Allen.

¶10.   Furthermore, pursuant to Bowen, which still controlled at the time the Appellants filed

their notice of appeal and proposed bill of exceptions, we find the circuit court erred by

granting the City’s motion to dismiss. At the time the Appellants sought judicial review of

the Board’s rezoning decision, Mississippi Code Annotated section 11-51-75 (Rev. 2012)

       1
         We note that five justices fully joined the majority opinion’s holding in Allen that
“the bill of exceptions itself is a jurisdictional requirement for the circuit court to hear an
appeal via Section 11-51-75 . . . .” Allen, 242 So. 3d at 22 (¶54). However, five justices
also fully joined Allen’s special concurrence, which concluded that a bill of exceptions is
just “an optional procedural vehicle” and “simply is not a mandatory jurisdictional
requirement.” Id. at 30 (¶¶88, 90) (Chamberlin, J., specially concurring) (emphasis added).

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provided in relevant part:

       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.

(Emphasis added).2

¶11.   The record here reflects that the Appellants filed their notice of appeal and proposed

bill of exceptions within section 11-51-75’s ten-day deadline. Thus, as in Bowen, the

Appellants properly and timely appealed from the Board’s decision. See Bowen, 852 So. 2d

at 24 (¶9). We therefore reverse the circuit court’s dismissal of their appeal as untimely. On

remand, the circuit court should consider the merits of the arguments raised in the

Appellants’ bill of exceptions. At the time the circuit court heard the City’s motion to

dismiss, the court had before it not only the proposed bill of exceptions but also all the

certified documents the City attached to its motion to dismiss. If on remand, though, the

circuit court determines that the Appellants should file an amended bill of exceptions, the

court should establish a reasonable time for the Appellants to do so and for the City to

provide its proposed changes. See Bowen, 850 So. 2d at 1158 (¶10). If the parties comply,

the circuit court should then resolve on the merits the issues presented by the bill of

exceptions. Id.



       2
       The Legislature amended section 11-51-75 after the Appellants filed their appeal.
Miss. Code Ann. § 11-51-75 (Supp. 2018); 2018 Miss. Laws ch. 448. However, those
amendments do not affect the Appellants’ appeal. 2018 Miss. Laws ch. 448, § 2.

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                                     CONCLUSION

¶12.   We find the Appellants timely appealed the Board’s rezoning decision by submitting

their notice of appeal and proposed bill of exceptions to the City within section 11-51-75’s

ten-day time limit. We therefore reverse the circuit court’s dismissal of their appeal as

untimely and remand so the circuit court may consider the merits of the arguments raised in

the Appellants’ bill of exceptions. Because we reverse the circuit court’s judgment on this

ground, we decline to address the Appellants’ remaining assignments of error.

¶13.   REVERSED AND REMANDED.

    BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ.,
CONCUR.




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