          IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2018-CC-00027-COA

DESOTO COUNTY, MISSISSIPPI                                                APPELLANT

v.

STANDARD CONSTRUCTION COMPANY, INC.                                         APPELLEE

DATE OF JUDGMENT:                        09/29/2017
TRIAL JUDGE:                             HON. GERALD W. CHATHAM SR.
COURT FROM WHICH APPEALED:               DESOTO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 ROBERT E. QUIMBY
                                         ANTHONY E. NOWAK
ATTORNEY FOR APPELLEE:                   WILLIAM P. MYERS
NATURE OF THE CASE:                      CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                             APPEAL DISMISSED - 01/22/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      CARLTON, P.J., FOR THE COURT:

¶1.   Standard Construction Company (SCC) applied for a conditional use permit to mine

sand and gravel in DeSoto County, Mississippi. After the DeSoto County Board of

Adjustments denied SCC’s application, SCC appealed the decision to the DeSoto County

Board of Supervisors. The Board of Supervisors held a public hearing on the matter and

ultimately denied SCC’s application. SCC then appealed to the DeSoto County Circuit

Court. The circuit court entered an order and opinion reversing the Board of Supervisors’

decision. The Board of Supervisors filed a motion for rehearing, which the circuit court

denied.

¶2.   The Board of Supervisors now appeals, arguing that the circuit court erred in finding
that the Board’s denial of SCC’s application was arbitrary and capricious. On January 18,

2018, SCC filed a motion to dismiss the Board of Supervisors’ appeal as untimely filed. The

Mississippi Supreme Court passed the motion for consideration with the merits of the appeal.

¶3.    We find that the Board of Supervisors’ appeal was untimely filed, and we therefore

grant SCC’s motion to dismiss the appeal.

                                            FACTS

¶4.    On February 11, 2016, SCC filed an application for a conditional use permit for a

gravel-mining operation on property zoned “Agricultural-Residential.” The DeSoto County

Zoning Regulations provide that the extraction of sand and gravel therefrom is allowed only

as a conditional use. Pursuant to Article XIV of the Regulations, entitled “Conditional

Uses,” landowners may be granted a right to conditional use with appropriate conditions and

safeguards imposed to, among other things, conserve and protect property and property

values in the surrounding neighborhood. The regulations state that use of the site for mining

sand and gravel is not a permitted use; it is a conditional use. When considering an

application for conditional use, the Board of Supervisors (on appeal from the Board of

Adjustment) shall investigate all aspects of the application during a properly noticed public

hearing. In doing so, the Board of Supervisors shall give particular regard to whether the

application will substantially increase traffic hazards or congestion; substantially increase fire

hazards; adversely affect the character of the neighborhood; adversely affect the general

welfare of the county; overtax public utilities or community facilities; and conflict with the

Comprehensive Plan. The regulations provide that the application shall be granted if, upon



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the above framework, the Board of Supervisors finds the county would benefit from the

proposed use.

¶5.    The Board of Adjustments held a hearing on SCC’s application. After hearing

testimony from both sides, the Board of Adjustments unanimously denied SCC’s application

on June 13, 2016. SCC appealed this decision to the Board of Supervisors.

¶6.    On September 19, 2016, the Board of Supervisors held a public hearing on the matter.

That same day, the Board of Supervisors voted to affirm the Board of Adjustments’ decision

denying SCC’s application. SCC then filed its notice of appeal to the circuit court on

September 27, 2016, pursuant to Mississippi Code Annotated section 11-51-75 (Rev. 2012).1

¶7.    On September 29, 2017, the circuit court entered an order and opinion reversing the

Board of Supervisors’ decision denying SCC’s application for a conditional use permit. The

circuit court explained that after reviewing the record, including the transcript of the hearing,

exhibits, and the Board meeting minutes, it found that the Board of Supervisors did not base

its opinion on substantial evidence; rather, it based its opinion “on nothing more than public

dissent.” The circuit court further stated as follows:

       Without reweighing the evidence, it appears plainly to this [c]ourt the Board
       [of Supervisors’] conclusions . . . were just that—unsupported conclusions.
       Because the Board [of Supervisors’] decision was not based on substantial
       evidence, this [c]ourt finds that the Board’s decision to deny the application
       for a conditional use permit was in error.

¶8.    On October 10, 2017, eleven days after entry of the circuit court’s order, the Board

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        “Any person aggrieved by a judgment or decision of the board of supervisors of a
county . . . may appeal the judgment or decision to the circuit court of the county in which
the board of supervisors is the governing body or in which the municipality is located.”
Miss. Code Ann. § 11-51-75.

                                               3
of Supervisors filed a motion for rehearing pursuant to Mississippi Rule of Appellate

Procedure 40. In its motion, the Board argued that the circuit court overlooked and

misapprehended numerous facts in rendering its opinion that the Board’s decision was not

based on substantial evidence. SCC filed a motion in opposition, arguing that Mississippi

Rule of Appellate Procedure 40 does not apply to opinions and orders handed down by a

circuit court. SCC also argued that the Board of Supervisors’ motion was untimely because

it was filed more than ten days after the circuit court entered its order. See M.R.C.P. 59 (“A

motion to alter or amend the judgment shall be filed not later than ten days after entry of the

judgment.”).

¶9.    In response to SCC’s motion, the Board of Supervisors asserted that Mississippi Rule

of Appellate Procedure 40 provides fourteen days for a motion for rehearing to be filed, and

the Board filed its motion within that time frame. The Board of Supervisors also submitted

that SCC’s response in opposition to its motion for rehearing was untimely filed, because

SCC filed its response outside of the seven-day window provided by Mississippi Rule of

Appellate Procedure 40.

¶10.   On December 22, 2017, the circuit court entered an order denying the Board of

Supervisors’ motion for rehearing after finding that the Board “has failed to point to any new

evidence, mistakes of law or fact, or other reason that would justify relief from the [c]ourt’s

[o]rder or otherwise warrant the [c]ourt's reconsideration of the original appeal.”

¶11.   The Board filed its notice of appeal on January 3, 2018.

                                       DISCUSSION



                                              4
¶12.   As a procedural matter, we first address SCC’s motion to dismiss the Board of

Supervisors’ appeal as untimely filed. As stated, on September 29, 2017, the circuit court

entered its opinion and order reversing the Board of Supervisors’ decision. On October 10,

2017—eleven days after the circuit court entered its opinion and order—the Board of

Supervisors filed a motion for rehearing pursuant to Mississippi Rule of Appellate Procedure

40. The circuit court denied the motion for rehearing in an order filed on December 22,

2017. On January 3, 2018, the Board of Supervisors filed its notice of appeal from the circuit

court’s September 29, 2017 order.

¶13.   On January 18, 2018, SCC filed a motion to dismiss the Board of Supervisors’ appeal

as untimely. In its motion to dismiss, SCC argues that the Board of Supervisors filed its

notice of appeal ninety-six days after the circuit court entered its September 29, 2017 order,

well outside of the thirty-day time frame set forth in Mississippi Rule of Appellate Procedure

4(a). See M.R.A.P. 4(a) (providing that appellants must file their notice of appeal within

thirty days after the date of entry of the judgment or order appealed from). SCC asserts that

a Mississippi Rule of Appellate Procedure 40 motion for rehearing fails to toll the time in

which an appeal must be filed.

¶14.   In response, the Board of Supervisors argues that section 11-51-75 states that the

circuit court acts as an appellate court when reviewing an appeal from a board of supervisors,

and caselaw is clear that the Mississippi Rules of Appellate Procedure exclusively apply in

this matter. Therefore, the Board of Supervisors maintains that it possessed the right to file

a motion for rehearing under Mississippi Rule of Appellate Procedure 40. The Board of



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Supervisors also asserts that it timely filed its motion for rehearing within fourteen days of

the entry of the circuit court’s order. See M.R.A.P. 40(a) (“A motion for rehearing may be

filed within 14 days after a decision is handed down on the merits of a case by the Supreme

Court or the Court of Appeals.”).

¶15.   Mississippi Rule of Appellate Procedure 1 states as follows:

       These rules govern procedure in appeals to the Supreme Court of Mississippi
       and the Court of Appeals of the State of Mississippi, and proceedings on
       petitions for writs or other relief which the Supreme Court or the Court of
       Appeals or a justice of the Supreme Court or judge of the Court of Appeals is
       empowered to grant. When these rules provide for the making of a motion in
       the trial court, the procedure for making such motion shall be in accordance
       with the practice of the trial court.

The comment to Mississippi Rule of Appellate Procedure 1 explains that the “[r]ules which

provide for the making of a motion in the trial court include Rules 4(g), extension of time to

appeal; 6, determination of in forma pauperis status; 8(b), stay on appeal to be first sought

in trial court; and 10(e) correction of record on appeal.” The comment further states that

“[t]he term ‘trial court’ in these rules includes a circuit or chancery court sitting as an

appellate court.” Id.; see also City of Jackson v. United Water Servs. Inc., 47 So. 3d 1160,

1165 (¶13) (Miss. 2010).

¶16.   Turning to examine the Board of Supervisors’ argument, we recognize that

Mississippi Rule of Appellate Procedure 40 provides as follows:

       A motion for rehearing may be filed within 14 days after a decision is handed
       down on the merits of a case by the Supreme Court or the Court of Appeals.
       The motion shall state with particularity the points of law or fact which, in the
       opinion of the movant, the court has overlooked or misapprehended and shall
       contain such argument in support of the motion as movant desires to present.
       The motion for rehearing should be used to call attention to specific errors of

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       law or fact which the opinion is thought to contain; the motion for rehearing
       is not intended to afford an opportunity for a mere repetition of the argument
       already considered by the court.

¶17.   In determining whether the Board of Supervisors’ Mississippi Rule of Appellate

Procedure 40 motion for rehearing tolls the time for filing a notice of appeal, we look to

Mississippi Rule of Appellate Procedure 4(d). Mississippi Rule of Appellate Procedure 4(d)

mandates that “[i]f any party files a timely motion of a type specified immediately below[,]

the time for appeal for all parties runs from the entry of the order disposing of the last such

motion outstanding.” This provision applies to the following motions:

       timely motion[s] under the Mississippi Rules of Civil Procedure (1) for
       judgment under Rule 50(b); (2) under Rule 52(b) to amend or make additional
       findings of facts, whether or not granting the motion would alter the judgment;
       (3) under Rule 59 to alter or amend the judgment; (4) under Rule 59 for a new
       trial; or (5) for relief under Rule 60 if the motion is filed no later than 10 days
       after the entry of judgment.

M.R.A.P. 4(d). Our review of the Mississippi Rules of Appellate Procedure, specifically

Rule 4, reflects no tolling provision for the filing of a Mississippi Rule of Appellate

Procedure 40 motion for rehearing.

¶18.   However, the Board of Supervisors asserts that phrase “of a type” is the critical

language to examine in Mississippi Rule of Appellate Procedure 4(d): “If any party files a

timely motion of a type specified immediately below . . . .” Id. (emphasis added). The Board

of Supervisors submits that a motion for rehearing is of the same “type” as motions under

Mississippi Rule of Civil Procedure 59 requesting a new trial or the alteration or amendment

of a judgment because these motions all question the correctness of a judgment. The Board

of Supervisors therefore argues that its motion for rehearing should be construed in the same

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manner as a Mississippi Rule of Civil Procedure 59 motion. Bruce v. Bruce, 587 So. 2d 898,

902 (Miss. 1991) (quoting Dalton v. First Interstate Bank of Denver, 863 F.2d 702, 703 (10th

Cir. 1988)) (“[R]egardless of how styled, a motion questioning the correctness of a judgment

and timely made within ten days thereof will be treated under [Mississippi Rule of Civil

Procedure] 59(e).”).

¶19.   In addressing the Board of Supervisors’ argument that its Mississippi Rule of

Appellate Procedure 40 motion for rehearing should be construed as a motion filed under

Mississippi Rule of Civil Procedure 59, we recognize that this Court has held that “[t]he

Mississippi Rules of Civil Procedure provide two avenues to move the trial court to

reconsider its judgment. The aggrieved party may (1) file a motion for a new trial or to alter

or amend under [Mississippi Rule of Civil Procedure] 59 or (2) file for a relief from a final

judgment under [Mississippi] Rule [of Civil Procedure] 60(b).” Loftin v. Jefferson Davis

Cty. Sch. Dist., 142 So. 3d 1098, 1100 (¶5) (Miss. Ct. App. 2014).2 Motions to reconsider

filed under Mississippi Rule of Civil Procedure 59(a) and Mississippi Rule of Civil

Procedure 59(e) must be filed within ten days after the entry of the judgment. M.R.C.P. 59;

Loftin, 142 So. 3d at 1100 (¶5). “[T]his ten-day requirement is absolute, and the court is not

permitted to extend this time period.” Sanders v. Hoover, 170 So. 3d 1233, 1234 (¶6) (Miss.

Ct. App. 2015) (internal quotation marks omitted) (quoting Wilburn v. Wilburn, 991 So. 2d




       2
         “A motion for reconsideration requesting a change in the result of a bench trial has
been deemed to be a motion to alter or amend the judgment pursuant to [Mississippi Rule
of Civil Procedure] 59(e).” McGrew v. McGrew, 184 So. 3d 302, 306 (¶13) (Miss. Ct. App.
2015).

                                              8
1185, 1191 (¶11) (Miss. 2008)).3 A motion under Mississippi Rule of Civil Procedure 59

that is “filed more than ten days after the entry of the judgment falls under [Mississippi Rule

of Civil Procedure] 60(b). And a [Mississippi Rule of Civil Procedure] 60(b) motion does

not toll the thirty-day time period to file a notice of appeal.” Loftin, 142 So. 3d at 1100 (¶5);

see also Sanders, 170 So. 3d at 1234 (¶4) (“An untimely filed [m]otion for [r]econsideration

will not excuse an untimely [n]otice of [a]ppeal, and clearly will not create or confer

jurisdiction in this Court.”).4


       3
          In the recent case of Massey v. Oasis Health & Rehab of Yazoo City LLC, No.
2017-CA-00086-COA, 2018 WL 4204207, at *5 (¶16) (Miss. Ct. App. Sept. 4, 2018), the
appellant, Massey, filed his Mississippi Rule of Civil Procedure 59 motion eleven days after
the circuit court entered its order—one day too late. The appellee, Oasis, responded to
Massey’s Mississippi Rule of Civil Procedure 59 motion on the merits, but Oasis failed to
object to the motion as untimely. Id. at *6 (¶20). In discussing whether it possessed
jurisdiction, this Court acknowledged the supreme court’s recent departure from the
established precedent of finding no jurisdiction in such circumstances. Id. at *5 (¶18). This
Court recognized that in Wilburn v. Wilburn, 991 So. 2d at 1191 (¶11), the supreme court
found that it possessed jurisdiction over an appeal where the appellee failed to object at the
trial level to the timeliness of the appellant’s untimely Mississippi Rule of Civil Procedure
59 motion. Massey, 2018 WL 4204207, at *5 (¶18). This Court found that the
circumstances in Massey were “materially identical” to those in Wilburn and therefore
similarly found it possessed jurisdiction to address the merits of Massey’s appeal. Id. at *5-6
(¶¶18-20). In the present case, SCC filed a motion in opposition to the Board’s Mississippi
Rule of Civil Procedure 59 motion, arguing that Mississippi Rule of Appellate Procedure
40 does not apply to opinions and orders handed down by a circuit court and that the motion
was untimely because it was filed more than ten days after the circuit court entered its order.
We therefore clarify that holding set forth in Massey does not apply to the circumstances of
the present case.
       4
        Mississippi Rule of Civil Procedure 59 provides that “[a] motion to alter or amend
the judgment shall be filed not later than ten days after entry of the judgment.” The Board
of Supervisors filed its motion eleven days after the entry of the circuit court’s order. The
Board argues, however, that Mississippi Rule of Appellate Procedure 26(c) afforded the
Board of Supervisors three additional days to file its motion. The Board of Supervisors
explains as follows:


                                               9
¶20.   The record is clear that the Board of Supervisors filed its motion for rehearing eleven

days after the circuit court entered its judgment and therefore failed to toll the thirty-day time

period for filing a notice of appeal. Because the Board of Supervisors filed its notice of

appeal on January 3, 2018, ninety-six days after the circuit court entered its September 29,

2017 order and opinion, we find that the appeal is untimely filed, and we lack jurisdiction.5

¶21.   APPEAL DISMISSED.



       Because the trial court was sitting as an appellate court, the Clerk was required
       to serve notice of entry of the judgment by mail to all counsel of record.
       [Mississippi Rule of Appellate Procedure] 45(c). Accordingly, three days
       were added to the requisite ten days within which to file a Rule 59 motion.
       [M.R.C.P.] 6(e); [M.R.A.P.] 26(c).

The Board of Supervisors maintains that after factoring in the additional three days, the
Board timely filed its motion within the permissible ten-day time period, thus tolling the time
frame within which to file a notice of appeal. Contrary to the assertion of the Board of
Supervisors, Mississippi Rule of Civil Procedure 59 does not provide an extension of the
ten-day filing period based on service by mail of the entry of the judgment.
       5
         In its response to the motion to dismiss the appeal, the Board of Supervisors argues
that the circuit court failed to follow the provisions of section 11-51-75 and certify its order
to the Board of Supervisors. Section 11-51-75 provides, in part, that “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.” The Board of
Supervisors therefore asserts that absent a certification by the circuit court to the Board, no
final judgment existed from which the Board could appeal. However, our review of section
11-51-75 fails to reflect any language requiring a circuit court to certify its order to the board
of supervisors in order for it to be considered a final, appealable judgment. Additionally,
we recognize that “[a] final, appealable judgment is one that adjudicates the merits of the
controversy and settles all issues as to all the parties and requires no further action by the
trial court.” Conservatorship of Smith v. Vandevort, 237 So. 3d 852, 862 (¶29) (Miss. Ct.
App. 2017). “When all the issues in a case or claims against all the parties are not resolved
in a judgment, no appeal of right can be taken.” Id. Although the circuit court herein did
not certify its order and opinion as final, our review of the record reflects that the circuit
court “adjudicate[d] the merits of the controversy and settle[d] all issues as to all the
parties,” and the matter “require[d] no further action” by the circuit court.

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    GRIFFIS, C.J., BARNES, P.J., WILSON, GREENLEE, WESTBROOKS AND
TINDELL, JJ., CONCUR. McDONALD, LAWRENCE AND McCARTY, JJ., NOT
PARTICIPATING.




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