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BETTY P. SUGGS, D/B/A QUICK CHECK OF CALEDONIA AND MARTY KILLEBREW, D/B/A KILLEBREW'S GROCERY v. THE TOWN OF CALEDONIA

MAY 29, 1985

BETTY P. SUGGS, D/B/A QUICK CHECK OF CALEDONIA AND MARTY KILLEBREW, D/B/A KILLEBREW'S GROCERY
v.
THE TOWN OF CALEDONIA, MS., A MUNICIPAL CORPORATION



BEFORE PATTERSON, DAN LEE AND ROBERTSON

DAN LEE, JUSTICE, FOR THE COURT:

This action was initiated when the appellants, Suggs and Killebrew, owners of convenience stores in Caledonia, Mississippi, filed a complaint in the Lowndes County Chancery Court seeking to enjoin the Town of Caledonia from enforcing a municipal ordinance regarding the sale of beer. The chancellor ruled that he would issue a writ of injunction against Caledonia as to Suggs on a theory of estoppel; however, the chancellor refused to extend the injunction so as to prohibit Caledonia from enforcing the ordinance against Killebrew. From the chancellor's ruling, Killebrew appeals on the ground that the chancellor erroneously decided that the doctrine of estoppel would not apply to his benefit. Suggs appeals because of the chancellor's failure to determine that he was entitled to any damages under the Mississippi Antitrust Act. Caledonia cross-appeals the chancellor's finding that the doctrine of estoppel would bar it from enforcing its ordinance against Suggs.

I.

 In April, 1982, Betty Suggs purchased a small convenience store known as Quick Check of Caledonia. Prior to Ms. Suggs' purchase of the business it had operated as a convenience store for a period of more than twelve years, all of which time beer was sold on the premises. Ms. Suggs testified that during her first month of business, April, 1982, 58.2% of her business was from the sale of beer. Since that time her beer sales have fluctuated but have always been a considerable portion of her business. She stated that she would not have opened the store had she known that she would not have been allowed to sell beer. Ms. Suggs' bookkeeper and sister-in-law, Bess Steinman, testified that without the sale of beer Ms. Suggs would be operating at a loss. Records prepared by Ms. Steinman indicated that was correct.

 Marty Killebrew is the owner of Killebrew's Grocery. He had operated the combination hardware store and grocery store for many years. In late 1980 he decided his business needed to expand. He began to make plans to relocate his store. After making capital improvements in excess of $50,000, Killebrew moved to his present location on April 5, 1982. He had already obtained his beer license prior to moving because he stated that the Caledonia mayor had told him he should do so.

 Within days after opening his store, the Town of Caledonia notified Killebrew of a municipal ordinance prohibiting the sale of beer within fifteen hundred (1500) feet of a school or church. Both Killebrew's and Suggs' beer permits expired September 1, 1982. The State Tax Commission refused to renew their permits on the grounds that the Caledonia ordinance prohibited them from selling beer. A survey conducted at the city's request had revealed that Killebrew's grocery was within one hundred fifty (150) feet of a church and Suggs' business was fourteen hundred fifty six (1456) feet away from a church.

 Mayor Walton Willis testified that the town did not know that Suggs' business was within fifteen hundred feet of a church until it got the survey results July 20, 1982. Mayor Willis testified that he had known of the municipal ordinance for at least as long as he had been mayor, ten years. The mayor further testified that he had discussed the sale of beer with Killebrew during the period of Killebrew's remodeling and that at that time the two of them went to the town hall to look up the law

 as it related to the sale of beer. Because the mayor was under the mistaken impression that the municipal ordinance had been preempted by a county ordinance, he did not mention it to Killebrew. The mayor later learned that the municipal ordinance was in fact valid.

 As previously stated, the chancellor held that Caledonia was estopped to enforce its ordinance against Suggs but that it was free to do so against Killebrew.

 This Court has previously held that the doctrine of equitable estoppel may be applied against the state and its municipalities. Covington County v. Page, 456 So.2d 739 (Miss. 1984); State v. Stockett, 249 So.2d 388 (Miss. 1971); City of Jackson v. Merchants Bank and Trust Company, 112 Miss. 537, 73 So.2d 573 (1917); Witherspoon v. Merdian, 69 Miss. 288, 13 So. 843 (1891).

 In Covington Co. v. Page, the elements of estoppel were set forth as follows:

 The appellant, Covington County, urges a number of assignments of error on this appeal; however, we find it necessary to address only one, as our determination of that issue renders the other points inconsequential. The dispositive issue is whether the facts of this case make it ripe for application of the doctrine of equitable estoppel. We have often explained that the following factual elements are a prerequisite to application of the doctrine:

 (1) Belief and reliance on some ...


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