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STATE OIL & GAS BOARD v. JOHN W. McGOWAN

MARCH 29, 1989

STATE OIL & GAS BOARD
v.
JOHN W. McGOWAN



BEFORE HAWKINS, P.J., PRATHER AND ROBERTSON, JJ.

PRATHER, JUSTICE, FOR THE COURT:

This case involves a question of administrative

procedure. In a proceeding before the Chancery Court of Hinds County, John McGowan requested the chancellor to order the State Oil & Gas Board to submit to discovery. The chancery court held that the Mississippi Rules of Civil Procedure conferred upon McGowan no right to utilize its discovery procedure against an administrative agency, but that McGowan was entitled to file a pure bill of discovery in chancery to compel testimony of an Oil & Gas Board supervisor. The chancellor would not stay the Oil & Gas Board (Board) proceeding, but allowed an interlocutory appeal on the propriety of his procedural rulings.

 This appeal by the State Oil & Gas Board assigns as error the following:

 1. The trial court erred in denying the Board's motions to dismiss complaint and to dismiss amendment to complaint.

 2. The trial court erred in denying the Board's motion to quash subpoena and for alternate relief.

 3. The trial court erred in denying the Board's application requesting interlocutory appeal from the order of the court overruling appellant's motions to dismiss complaint and to dismiss amendment to complaint.

 4. The trial court erred in denying the Board's motion for relief from order, or in the alternative to alter or amend or for other relief.

 5. The trial court erred in denying the Board's motion to stay or hold in abeyance.

 6. The trial court erred in granting McGowan's request for a pure bill of discovery in chancery.

 I.

 John W. McGowan (McGowan) had pending before the State Oil & Gas Board a proceeding, the merits of which are not involved in this interlocutory appeal. Suffice it to say, McGowan wanted certain information from the Board in order to prepare for hearing on the merits of the pending matter. The Board denied McGowan's request for pre-administrative hearing discovery. McGowan then filed a complaint against the Board in the Chancery Court of the First Judicial District of Hinds County, Mississippi, requesting (1) the Board to respond to all discovery in accordance with the Mississippi Rules of Civil Procedure, and (2) seeking a temporary injunction against the Board from proceeding to hear matters pending

 before the Board until a reasonable time after the conclusion of discovery. McGowan, in connection with that complaint, had issued a subpoena duces tecum to Dr. A. Richard Henderson, Supervisor of the State Oil & Gas Board.

 The Board filed its motion to dismiss the complaint for lack of jurisdiction over the person and the subject matter and for failure to state a claim upon which relief could be granted. In support, the Board argued that the Mississippi Rules of Civil Procedure do not apply to proceedings before an administrative agency such as the Board, that the statutes, rules and regulations of the Board do not provide for discovery as requested, that McGowan had failed to exhaust his administrative remedy and lastly that Miss. Code Ann. 53-1-41 (Injunctions against Board) was controlling. The Board additionally filed a motion to quash and for alternate relief.

 Thereafter, McGowan filed an amendment to complaint characterizing the proceeding as a pure bill of discovery in chancery, ancillary to the proceedings before the Board.

 The March 19, 1987, the Chancery Court denied the Board's motion to dismiss complaint and in response the Board filed its application requesting interlocutory appeal from this denial in order to resolve the new or unique principles of law involved in this case i.e., (1) the application of the discovery process provided by the Mississippi Rules of Civil Procedure to proceedings before administrative bodies, agencies and commissions, and (2) the availability, in view of the new rules of civil procedure, of the pure or strict bill of discovery in chancery to obtain a limited form of discovery for use in administrative proceedings. The Board also filed a motion to stay or hold in abeyance the subpoena duces tecum and/or the pure bill of discovery until an interlocutory appeal could be taken to this Court. The Board then filed an answer to the complaint and an answer to amendment to complaint denying the right to a pure bill of discovery in that (1) the discovery sought was not exclusively within the knowledge or the power or custody of the Board, and (2) the discovery was within reasonable reach of McGowan, these being two of the requisites of the bill of discovery.

 On March 30, 1987 and April 1, 1987, the trial court conducted a hearing on the pure bill of discovery, and under its subpoena power required Dr. A. Richard Henderson, Supervisor of the Oil & Gas Board, to give testimony. Thereafter, the Court entered its final decree on April 13, 1987, to which McGowan filed a notice of appeal on April 28, 1987, and the Board filed its notice of appeal on May 15,

 1987. McGowan, originally the appellant, filed his motion to dismiss, which was granted. The Board now proceeds as appellant. The Chancery Court did not enjoin the Board proceeding under authority of Miss. Code Ann. 53-1-41 (Supp. 1988).

 II.

 DID THE CHANCERY COURT ERR IN GRANTING THE INTERLOCUTORY APPEAL?

 As of January 1, 1988, applications for interlocutory appeals have been governed by Rule 5, Miss. Sup. Ct. Rules; however, this case was filed prior to January 1, 1988, and Miss. Code Ann. 11-51-7 (1972) controls interlocutory appeals from ...


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