        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2014-CA-00940-COA

MIRIAM HOPKINS, ELDON SEWELL, DINA                                      APPELLANTS
SEWELL, ABBIE PATRICK, JARIS PATRICK,
JOVITA BOGGAN, RITA WIGGINTON AND
ANN WOMACK

v.

CITY OF MENDENHALL, MISSISSIPPI                                             APPELLEE


DATE OF JUDGMENT:                        06/11/2014
TRIAL JUDGE:                             HON. RICHARD W. MCKENZIE
COURT FROM WHICH APPEALED:               SIMPSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                 GAY LEE WILLIAMS
ATTORNEY FOR APPELLEE:                   L. WESLEY BROADHEAD
NATURE OF THE CASE:                      CIVIL - OTHER
TRIAL COURT DISPOSITION:                 UPHELD CITY’S ADOPTION OF
                                         ORDINANCE 244
DISPOSITION:                             AFFIRMED: 10/06/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE GRIFFIS, P.J., BARNES AND JAMES, JJ.

      GRIFFIS, P.J., FOR THE COURT:

¶1.   This is the second appeal of a city ordinance that closed a street. It was challenged

by concerned citizens.

                                        FACTS

¶2.   The First Baptist Church of Mendenhall, Mississippi (“the Church”), filed a petition

and an amended petition with the mayor and board of aldermen (the “Board”) of the City of

Mendenhall (the “City”) seeking to close East Court Street, which lies between East Street
and Oak Street in Mendenhall.

¶3.    At a Board meeting on April 6, 2010, a motion was made and carried by vote to: (1)

accept the Church’s petition to close a portion of East Court Street; (2) hold a public hearing

on the street closure; and (3) authorize the clerk to publish notice of the public hearing.

¶4.    Subsequently, Miriam Hopkins, Eldon Sewell, Dina Sewell, Abbie Patrick, Jaris

Patrick, Jovita Boggan, Rita Wigginton, and Ann Womack (collectively referred to as

“Hopkins”) filed a protest and objection to closing the portion of East Court Street. A public

hearing was held on April 26, 2010, and both proponents and opponents of the proposed

street closure were provided the opportunity to debate their positions.

¶5.    On June 1, 2010, the Board adopted Ordinance 244, which stated:

       SECTION 1. That First Baptist Church is the only adjoining landowner of the
       part of said street to be closed and have petitioned the Mayor and Board of
       Aldermen to close that portion of said street herein described.

       SECTION 2. That the governing body finds and adjudicates that First Baptist
       Church constitutes all of the interested and abutting landowners to that part of
       said street to be closed and vacated. That the City of Mendenhall has the legal
       right to vacate and close said portion of said street. The governing body
       further finds and officially adjudicates that the closing of said portion of East
       Court Street will cause minimal inconvenience to the general public due to
       numerous alternative streets. The City of Mendenhall now finds and officially
       adjudicates that said portion of the street should be closed and vacated as
       provided by law.

       SECTION 3. That portion of East Court Street more particularly described as
       that portion of East Court Street lying between East Street and Oak Street, City
       of Mendenhall, Mississippi, per map and plat on file in the office of the Tax
       Assessor of Simpson County, should be and is hereby vacated and closed.

       SECTION 4. That the governing body finds and adjudicates that the closing
       of the above-described part of said street would be in the best interest of the
       City of Mendenhall, Mississippi, and the citizens thereof.

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       SECTION 5. That the City Clerk shall cause this Ordinance to be published
       according to state statute in the Simpson County News.

       SECTION 6. That this Ordinance shall take effect and be in force as provided
       by law.

¶6.    On June 8, 2010, Hopkins appealed the adoption of the ordinance to the Simpson

County Circuit Court. A bill of exceptions was properly and timely filed. After a hearing

on August 30, 2011, the circuit court upheld the City’s adoption of Ordinance 244. Hopkins

filed a motion to reconsider, to alter or amend, and for a new trial, which the circuit court

denied.

¶7.    Hopkins appealed. In Hopkins v. City of Mendenhall, 116 So. 3d 166, 167 (¶3) (Miss.

Ct. App. 2013), this Court held that the record contained no findings of fact and reasons for

the City’s decision sufficient for appellate review. Therefore, this Court reversed the circuit

court’s judgment and remanded the case to the circuit court for further proceedings consistent

with our decision. Id. at 170 (¶17).

¶8.    After remand, the Board held a meeting on June 27, 2013. The mayor notified the

members of the Board that they were to provide factual findings of the Board’s adoption of

Ordinance 244. Minutes were presented from the public hearing previously conducted on

April 26, 2010, wherein nine people gave testimony, with six in favor of closing the portion

of East Court Street. The Board determined that the factual basis for closing the portion of

East Court Street was the safety of the citizens of Mendenhall that attend functions at the

Church or the Church’s Family Life Center. On September 20, 2013, the City filed the

Board’s findings of fact in circuit court. The circuit court considered the matter and entered



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an order that upheld Ordinance 244. Hopkins has again appealed this matter.

                                       DISCUSSION

       I.     Standing

¶9.    We begin with the City’s challenge to the standing of the concerned citizens who have

brought this appeal. “‘Standing’ is a jurisdictional issue which may be raised by any party

or the Court at any time.” Hall v. City of Ridgeland, 37 So. 3d 25, 33 (¶23) (Miss. 2010)

(quoting In re Enlargement & Extension of the Mun. Boundaries of City of Horn Lake, 822

So. 2d 253, 255 (¶10) (Miss. 2002)). “This Court reviews questions of standing de novo.”

Id. (citing Gartrell v. Gartrell, 27 So. 3d 388, 391-92 (¶10) (Miss. 2009)).

¶10.   This Court has recently held:

       Mississippi’s standing requirements are quite liberal. Federal courts adhere to
       a stringent definition of standing, limited by Article 3, [S]ection 2 of the
       United States Constitution to a review of actual cases and controversies, but
       the Mississippi Constitution contains no such restrictive language. The
       Mississippi Supreme Court has been more permissive in granting standing to
       parties who seek review of governmental actions.

Hudson v. Jones Cnty. Bd. of Sup’rs, 77 So. 3d 1148, 1150 (¶4) (Miss. Ct. App. 2011)

(internal quotations omitted) (quoting Burgess v. City of Gulfport, 814 So. 2d 149, 151-52

(¶13) (Miss. 2002); State v. Quitman Cnty., 807 So. 2d 401, 405 (¶11) (Miss. 2001)).

¶11.   “‘In Mississippi, parties have standing to sue when they assert a colorable interest in

the subject matter of the litigation or experience an adverse effect from the conduct of the

defendant, or as otherwise provided by law.’” Id. at (¶5) (quoting Burgess, 814 So. 2d at

152-53 (¶13)). “‘Colorable,’ when used to describe a claim or action, means ‘appearing to

be true, valid, or right.’” Id. (quoting Hall, 37 So. 3d at 33 n. 6). “‘To establish standing on


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grounds of experiencing an adverse effect from the conduct of the . . . appellee, the adverse

effect experienced must be different from the adverse effect experienced by the general

public.’” Id. at (¶6) (quoting Hall, 37 So. 3d at 33-34 (¶24)). “Further, the mere fact that

[the appellant resides] in the City is not sufficient to confer standing.” Burgess, 814 So. 2d

at 153 (¶16).

¶12.     In Ball v. Mayor & Board of Aldermen of City of Natchez, 983 So. 2d 295 (Miss.

2008), residents of the City of Natchez filed an appeal with respect to the city’s sale of land

to a condominium developer. Hall, 37 So. 3d at 34 (¶26). On cross-appeal, the City of

Natchez challenged the residents’ standing. Ball, 983 So. 2d at 298 (¶6). The Mississippi

Supreme Court reasoned that standing existed because “the [residents] were property owners

in the city”; “their property was located near the [subject property]”; and they “alleged that

the [development project] would adversely impact their properties.” Hall, 37 So. 3d at 34

(¶26).

¶13.     The facts in the instant case are similar to the facts in Ball in that Hopkins owns

property in the City of Mendenhall; Hopkins’s property is located near the subject property;

and Hopkins alleges that the closure of the street will have an adverse impact. Therefore, we

find that the City’s argument that Hopkins does not have standing is without merit.

         II.    Ordinance 244

¶14.     “This Court employs a limited standard of review when considering the actions of a

municipal board.” Hopkins, 116 So. 3d at 169 (¶11) (citing Precision Commc’ns, Inc. v.

Hinds Cnty., Miss., 74 So. 3d 366, 369 (¶9) (Miss. Ct. App. 2011)). “‘For questions of law,



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a municipal board’s decision is reviewed de novo.’” Id. “Furthermore, we employ a de novo

standard of review when considering issues of statutory interpretation.” Id. “‘Otherwise, we

will not set aside the action of the governing body of a municipality unless such action is

clearly shown to be arbitrary, capricious, or discriminatory or is illegal or without a

substantial evidentiary basis.’” Id. “‘An act is arbitrary and capricious when it is done at

pleasure, without reasoned judgment or with disregard for the surrounding facts and

circumstances.’” Id. at (¶12). “‘Substantial evidence is such relevant evidence as reasonable

minds might accept as adequate to support a conclusion or more than a “mere scintilla” of

evidence.’” Id.

¶15.   “Additionally, this Court has found that ‘before a municipality may close a public

road, it must (1) find the closing is for the public good and (2) compensate abutting

landowners for any damages.’” Id. at (¶13) (quoting Mill Creek Props., Inc. v. City of

Columbia, 944 So. 2d 67, 69 (¶8) (Miss. Ct. App. 2006)).

              A.      Public Good

¶16.   As stated, “[b]efore a municipality may close a public road, it must . . . find the

closing is for the public good[.]” Mill Creek, 944 So. 2d at 69 (¶8). “[A] city may not close

a road just to benefit a private party.” Id. at 69-70 (¶8).

¶17.   In Laurel Improvement Co. v. Rowell, 84 Miss. 435, 36 So. 543 (1904), the City of

Laurel closed Post Street and gave it to Laurel Improvement Co., to the exclusion of all

others. Mill Creek, 944 So. 2d at 70 (¶9) (citing Laurel Improvement Co., 84 Miss. at 435,

36 So. at 543). Laurel Improvement Co. then built a fence around the road and erected



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buildings on it. Id. The Mississippi Supreme Court found the only reason the street was

closed was in order to give it to Laurel Improvement Co. Id. The court held this action was

outside the city’s powers. Id.

¶18.   This Court applied Laurel Improvement Co. to Mill Creek. However, this Court found

the board’s resolution to approve the closing of Columbia-Purvis Road was for the public

good. Mill Creek, 944 So. 2d at 70 (¶12). Unlike Laurel Improvement Co., this Court found

the reason for closing the road was traffic and safety. Furthermore, the decision to close the

road was based on substantial evidence consisting of an affidavit and testimony of one

person. Id. at (¶11).

¶19.   Here, the portion of East Court Street was not closed for the purpose of benefitting

the Church. The Church would benefit from the closed street, but not through ownership.

Instead, the Church would benefit merely because it was closed for the safety of the citizens

of Mendenhall that attend functions at the Church. Furthermore, the City’s decision to close

the portion of East Court Street was based on the testimony of nine persons, of which six

were in favor of closing the portion of the street.

¶20.   There was substantial evidence to support the City’s finding that East Court Street

needed to be closed for safety reasons. The question remains whether the City was required

to compensate Hopkins before it closed the road.

              B.        Compensation

¶21.   “‘[B]efore a municipality may close a public road, it must . . . compensate abutting

landowners for any damages.’” Hopkins, 116 So. 3d at 169 (¶13) (quoting Mill Creek, 944



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So. 2d at 69-70 (¶8)). “If a landowner is not abutting the closed portion of the road, he must

prove special damages in order to recover.” Mill Creek, 944 So. 2d at 71 (¶17) (citing

Puyper v. Pure Oil Co., 215 Miss. 121, 60 So. 2d 569, 573 (1952)).

¶22.   Here, Hopkins is not an abutting landowner, nor are the other concerned citizens who

pursued this challenge to the ordinance. Therefore, Hopkins is not entitled to compensation

without proving special damages. However, it is clear that Hopkins is not asking for

compensation. During trial, Hopkins’s attorney stated: “We don’t say we have a right to

special damages.” Furthermore, the circuit court found: “There was no testimony taken from

any citizen who was an abutting landowner to the subject property or as to any special

damages he might sustain.” For these reasons, Hopkins is not entitled to compensation.

¶23.   We find that the City’s argument that Hopkins lacks standing is without merit.

However, we also find that the City’s closure of East Court Street was for the public good

and was not arbitrary, capricious, or without substantial evidence. For these reasons, we

affirm the circuit court’s decision to uphold the City’s adoption of Ordinance 244.

¶24. THE JUDGMENT OF THE CIRCUIT COURT OF SIMPSON COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.

    LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, MAXWELL, FAIR,
JAMES AND WILSON, JJ., CONCUR.




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