                IN THE SUPREME COURT OF MISSISSIPPI

                        NO. 2015-CA-01865-SCT

PEMBERTON PROPERTIES, LTD d/b/a
PEMBERTON APARTMENTS, PARK VILLA, LLC
d/b/a EAST VILLA APARTMENTS, PEARL
PARTNERS, LP d/b/a COLONY PARK
APARTMENTS, COLONY PARK II, LLC d/b/a
GRANDE AT COLONY PARK APARTMENTS,
ALBERT MOORE HOME BUILDERS, INC. d/b/a
COLONIAL TERRACE APARTMENTS, WOOD
GLEN, LLC d/b/a WOOD GLEN APARTMENTS,
STEVE MAULDING d/b/a BAVARIAN GARDEN
APARTMENTS, STEVE MAULDING d/b/a PEARL
MANOR APARTMENTS, SHEILA MAULDING
d/b/a 468 PLACE TOWNHOMES AND WPB
PROPERTIES, LLC d/b/a FOX RUN
APARTMENTS

v.

THE MAYOR AND BOARD OF ALDERMEN OF
THE CITY OF PEARL, MISSISSIPPI


DATE OF JUDGMENT:               07/15/2015
TRIAL JUDGE:                    HON. WILLIAM E. CHAPMAN, III
TRIAL COURT ATTORNEYS:          STEVEN H. SMITH
                                SAMAC S. RICHARDSON
                                JAMES A. BOBO
COURT FROM WHICH APPEALED:      RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:       STEVEN H. SMITH
                                SAMAC S. RICHARDSON
ATTORNEY FOR APPELLEES:         JAMES A. BOBO
NATURE OF THE CASE:             CIVIL - OTHER
DISPOSITION:                    AFFIRMED - 02/09/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


     EN BANC.
       DICKINSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Under Mississippi law, a person wishing to appeal the adoption of a city’s ordinance

must do so within ten days. The primary question presented is whether—as the Mayor and

Board of Aldermen of the City of Pearl (the “City”) argue—the appeal period begins to run

from the day of the ordinance’s adoption, or—as the appellants argue—from its effective

date. We also must consider whether a circuit judge may dismiss a complaint seeking a writ

of mandamus to order a city to file a bill of exceptions presented to it for review, when the

circuit judge determines the bill of exceptions was not timely presented to the city.

¶2.    Because the appeal period for city ordinances begins on the date an ordinance is

adopted, and because the appellants’ bill of exceptions was presented to the City outside the

ten-day period following the date of adoption, we find that the circuit judge in this case

properly dismissed the complaint for writ of mandamus, and we affirm.

                       FACTS AND PROCEDURAL HISTORY

¶3.    On June 27, 2013, the Mayor and Board of Aldermen for the City of Pearl adopted an

ordinance to regulate rental housing. The ordinance provided it would take effect thirty days

after publication. Publication did not occur until September 17, 2014.

¶4.    On January 27, 2015, the appellants—several rental-property owners—filed suit,

alleging they had filed a Notice of Appeal and Intent to File Bill of Exceptions with the City

Clerk of Pearl on September 26, 2014, and a Bill of Exceptions on November 14, 2014, to

appeal the City’s decision to adopt the rental-housing ordinance. The complaint further




                                              2
alleged the City had failed to transmit the Bill of Exceptions to the circuit clerk as required

by statute, and sought a writ of mandamus ordering the City to do so.

¶5.    The City moved to dismiss the complaint, arguing that it was untimely and that the

circuit court lacked jurisdiction because the ten-day time for appeal ran from the adjournment

of the meeting at which the City had adopted the ordinance, June 27, 2013. The circuit judge

granted the motion, finding that he could not issue a writ of mandamus to order the City to

file the bill because the circuit court would lack jurisdiction over the untimely appeal from

the City’s decision. The property owners appealed.

                                         ANALYSIS

¶6.    This appeal presents two questions. First, when a litigant seeks a writ of mandamus

to order a municipal authority to sign and file a bill of exceptions, but the circuit judge

concludes the bill of exceptions would be untimely, must the circuit judge order that the bill

be signed and filed only to later dismiss that bill as untimely, or may the circuit judge dismiss

the complaint for mandamus on that ground? Second, did the property owners in this case

timely present their bill of exceptions to the City?

       Appeal Period

¶7.    The authority that controls this case is Mississippi Code Section 11-51-75, which

provides 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


                                               3
       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.1

¶8.    But here, the property owners argue their bill was timely because the ten-day period

ran from the ordinance’s effective date, not from the date the City decided to adopt the

ordinance. In support of this contention, the property owners cite cases holding that an

aggrieved party may not appeal a municipal decision until the decision is final.2

¶9.    In Garrard v. City of Ocean Springs, the City of Ocean Springs transferred control

of the Ocean Springs American Legion Hut to the Park Commission.3 Several aggrieved

individuals appealed that decision through a bill of exceptions.4 The circuit judge dismissed

the case, finding that the City’s decision was not appealable.5 This Court reversed, finding

that Section 11-51-75 broadly permits an appeal of “any act of a county or municipality

leaving a party aggrieved . . . where all issues of the controversy are finally disposed of by

Order of the City Council.”6 This Court then went on to say, seemingly in dicta, that had the

City adopted an earlier proposed resolution regarding the hut, which stated “this action

       1
           Miss. Code Ann. § 11-51-75 (Rev. 2012).
       2
        See Garrard v. City of Ocean Springs, 672 So. 2d 736 (Miss. 1996); J.H. Parker
Constr. Co., Inc. v. Bd. of Aldermen of the City of Natchez, 721 So. 2d 671 (Miss. Ct. App.
1998).
       3
           Garrard, 672 So. 2d at 738–39.
       4
           Id. at 737.
       5
           Id. at 738.
       6
        Id. (quoting South Central Turf, Inc. v. City of Jackson, 526 So. 2d 558, 561
(Miss. 1988)).

                                              4
should not start until the Supreme Court has ruled on the case currently pending regarding

subject building,” the order would not have been final and appealable.7

¶10.   Later, in J.H. Parker Construction Company, Inc. v. Board of Alderman of City of

Natchez, the Mississippi Court of Appeals, relying on Garrard, held that the ten-day time

for appeal under Section 11-51-75 does not run until the City issues a final, appealable

order.8 There, the City accepted a bid for a public construction project contingent upon

approval by the Mississippi Department of Transportation and Federal Highway

Administration.9 The City argued that the ten-day time ran from the date it accepted the

bid.10 But the Court of Appeals found that, until the contingencies were removed, the City

had rendered no final, appealable judgment and the ten-day time did not begin to run.11

¶11.   But this Court’s opinion in City of Oxford v. Inman is most directly on point.12

There, the City of Oxford rezoned certain property and a bill of exceptions followed.13 On

appeal from the circuit court’s decision to reverse the City’s action, this Court considered

whether the bill had been timely filed.14 The City argued the ten-day time period ran from


       7
           Garrard, 672 So. 2d at 739.
       8
           J.H. Parker Constr. Co., Inc., 721 So. 2d at 674.
       9
           Id. at 673.
       10
            Id. at 674.
       11
            Id.
       12
            City of Oxford v. Inman, 405 So. 2d 111 (Miss. 1981).
       13
            Id. at 112.
       14
            Id. at 114–15.

                                              5
May 6, 1980, the date the Mayor and Board of Aldermen voted to rezone the property.15 This

Court disagreed, finding that the ten-day period ran from “the date the written ordinance was

signed and adopted.”16 Notably, this Court, while noting the statutory perquisites for the

ordinance to take effect, never connected the time for appeal to the effective date of the

ordinance.17

¶12.   Here, the property owners argue the ten-day time for appeal could not run until the

City had rendered a final decision and that the City had not rendered an appealable decision

until the ordinance took effect. But under Section 11-51-75, the property owners had to

present the bill of exceptions “within ten (10) days from the date of adjournment at which

session the . . . municipal authorities rendered such judgment or decision.”18 The plain,

unambiguous language of the statute counts the ten-day period from the date of the

completed decision to be appealed. Here, the bill of exceptions appeals the City’s decision

to adopt the ordinance, which occurred during a meeting adjourned on June 27, 2013, and

was completed with the mayor’s signature that same day. The City’s decision was complete

that day, and the ten-day time to appeal began to run.

¶13.   In other words, the property owners correctly argue that the decision referenced in

Section 11-51-75 is the final, appealable decision. But here, the City had rendered a



       15
            Id. at 114.
       16
            Id.
       17
            Id. 114–15.
       18
            Miss. Code Ann. § 11-51-75 (Rev. 2012).

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complete decision on June 27, 2013. So, in concert with our precedent and the clear wording

of the statute, we find that the bill of exceptions was not timely presented.

       Mandamus

¶14.   When a litigant presents a bill of exceptions to the municipal authority, the “bill of

exceptions . . . shall be signed by the person acting as president . . . of the municipal

authorities” and “[t]he clerk thereof shall transmit the bill of exceptions to the circuit

court.”19 This Court has recognized that when municipal authorities fail to carry out these

duties, a writ of mandamus is the appropriate remedy to force them to do so.20

¶15.   In Hathorn v. Morgan, Hathorn prepared a bill of exceptions concerning a decision

by the mayor—Morgan—and board of aldermen of Woodville, and presented the bill to

Morgan for his signature.21 Morgan refused to sign the bill, believing it had not been timely

presented.22 So Hathorn petitioned the Circuit Court of Wilkinson County for a writ of

mandamus to order Morgan to sign the bill.23 The circuit judge sustained a demurrer to the

petition, and this Court affirmed, based on Hathorn’s failure to timely present the bill to the

mayor.24 So, under Hathorn, we already have held that a circuit judge may dismiss a

complaint for writ of mandamus to order a City’s action on a bill of exceptions if the bill was

       19
            Id.
       20
            See Reed v. Adams, 236 Miss. 333, 111 So. 2d 222 (1959).
       21
            Hathorn v. Morgan, 107 Miss. 589, 65 So. 643, 644 (1914).
       22
            Id.
       23
            Id. at 643.
       24
            Id. at 643–44.

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presented to the City outside the time for taking an appeal. We see no reason to disturb that

precedent.

       Sanctions

¶16.   The City asks that this Court sanction the property owners for filing a frivolous

appeal. According to the City, no “reasonable person would have any hope for success” with

this appeal, so sanctions are appropriate.25 The line that separates zealous advocacy and

frivolous filings occasionally is difficult to discern. But in this case, we find that neither the

property owners nor their counsel crossed that line. We do not find this appeal frivolous, so

we deny the City’s request for sanctions.

                                       CONCLUSION

¶17.   We affirm the circuit court’s decision to dismiss the property owners’ complaint, and

we deny the City’s request for sanctions.

¶18.   AFFIRMED.

   WALLER, C.J., RANDOLPH, P.J., KITCHENS, KING, COLEMAN,
MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.




       25
            Harris v. Harris, 988 So. 2d 376, 380 (Miss. 2008).

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