DATE OF JUDGMENT: 08/19/2013.
COURT FROM WHICH APPEALED: JEFFERSON DAVIS COUNTY CIRCUIT. TRIAL JUDGE: HON. ANTHONY ALAN MOZINGO. TRIAL COURT DISPOSITION: AFFIRMED THE DECISION OF THE JEFFERSON DAVIS COUNTY BOARD OF SUPERVISORS.
FOR APPELLANT: ORVIS A. SHIYOU JR.
FOR APPELLEE: ROBERT E. SANDERS.
BEFORE GRIFFIS, P.J., CARLTON AND JAMES, JJ. LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J., DISSENTS WITH SEPARATE WRITTEN OPINION.
NATURE OF THE CASE: CIVIL - CONTRACT
[¶1] Freda Howell, doing business as Lickety Splitz, appeals the order of the Jefferson Davis County Circuit Court denying her appeal from the decision of the Jefferson Davis County Board of Supervisors (the Board). Upon review, we find error in the Board's capricious rescission of Howell's contract herein for prisoner catering services since the rescission was arbitrarily based upon consideration of
matters outside of the bid specifications. See Preferred Transp. Co. v. Claiborne Cnty. Bd. of Sup'rs, 32 So.3d 549, 554 (¶ 12) (Miss. Ct.App. 2010). Therefore, we reverse and render a finding that the Board lacked justification to rescind Howell's contract for prisoner meals, and we remand to the trial court to determine damages.
[¶2] In December 2008, the Board requested sealed bids to provide prisoner meals during 2009. The bid request specified that the Board sought a local caterer or restaurant owner to bring in food for the prisoners of Covington County, Mississippi. Howell timely submitted a bid, as did Bassfield Texaco and two other bidders. At its January 5, 2009 meeting, the Board chose Howell as the " primary" bid, and Bassfield Texaco as the " alternate" bid. The catering services were to begin " immediately and [end] January 4, 2010." We acknowledge that when a contract fails to specify a particular date on which performance thereunder begins, then performance is presumed to begin within a reasonable time. See Denbury Onshore v. Precision Welding Inc., 98 So.3d 449, 453 (¶ 15) (Miss. 2012).
[¶3] The Board awarded Howell, doing business as Lickety Splitz, the contract as the lowest and best bid. Jefferson Davis County Sheriff Henry McCullum and two other Board members performed inspections of Howell's facility in January 2009, prior to performance of the contract beginning. After the first of two inspections, Sheriff McCullum expressed his concerns to the Board, stating that he observed that Howell possessed no cooking utensils or other evidence of active on-site cooking at her meal-preparation facility in Collins. Sheriff McCullum claimed to possess experience in food preparation before becoming sheriff, and he provided that he conducted a similar site inspection at another restaurant when he first became sheriff.
[¶4] Sheriff McCullum testified that Howell informed him during the inspection that she prepared food at her house and then brought it to the facility to put in Styrofoam plates for delivery. Sheriff McCullum also testified that he found the conditions at the facility too unsanitary for food preparation. He also stated that he did not believe that Howell's meal-preparation facility was sufficient to provide meals to Jefferson Davis County on a regular and reliable basis, in addition to the meals she was already furnishing to Covington County and the Town of Collins.
[¶5] Four days after award of this contract, on January 9, 2009, the Board's attorney mailed Howell a letter informing her that the Board voted to rescind the contract it awarded her on January 5, 2009, due to an unsatisfactory inspection and awarded the contract to the alternate bidder. Then, at the January 20, 2009 Board meeting, Sheriff McCullum gave an oral report of his informal inspection, stating that he felt that Howell's food-preparation procedures were unsanitary or that her facility failed to meet the requirements for a commercial food establishment. The Board members who visited the facility and performed an inspection also stated
their belief that Howell lacked the ability to fulfill the contract for prisoner meals. The Board members also expressed concern about serving food to prisoners that had passed through Howell's facilities. Without providing notice to Howell, the Board rescinded Howell's contract just awarded by them on January 5, 2009, to provide prisoner meals. The Board then awarded the contract to Bassfield Texaco, the alternate bidder.
[¶6] On January 20, 2009, Howell filed a notice of appeal in the trial court, appealing the Board's decision to use the alternate bidder. The trial court entered an order finding that the Board's minutes from the January 5 and 20, 2009 meetings were insufficient, and issued a remand order instructing the Board to amend its minutes to include the dollar amount of Howell's and Bassfield Texaco's bids and include either a report or affidavits by the sheriff and Board members who inspected Howell's facility. On January 19, 2010, the Board met and amended its January 5 and 20, 2009 minutes to include the information requested by the trial court.
[¶7] On February 8, 2010, Howell filed a second notice of appeal taking issue with the Board's decision to rescind its award of the bid to Howell and the Board's amendments of its January 5 and January 20, 2009 minutes. The trial court accepted Howell's second notice of appeal as timely and issued a final ruling on April 5, 2010, affirming " both (1) the Board's January 20, 2009 decision to the use the alternate bidder under Mississippi Code Annotated section 31-7-13(f) and (2) its January 19, 2010 amendments of the January 2010 minutes." Howell v. Bd. of Sup'rs of Jefferson Davis Cnty. (Howell I), 70 So.3d 1148, 1152 (¶ 10) (Miss. Ct.App. 2011).
[¶8] Howell appealed the trial court's decision, and this Court held that as " the primary bidder, Howell had a vested property interest entitled to due-process protection." Id. at 1151 (¶ 2). As a result, in Howell I, this Court reversed the judgment of the trial court after determining that the trial court " erroneously relied on provisions in Mississippi Code Annotated section 31-7-13 . . . to justify depriving Howell of this interest without notice and a hearing." Id. at 1156-57 (¶ 31). In Howell I, this Court then remanded the case to the trial court. Id. at 1157 (¶ 32). Upon remand, the trial court remanded to the Board and ordered that the Board provide Howell a due-process hearing. Id. at 1156-57 (¶ 31). The Board then held Howell's due-process hearing on December 5, 2011. Upon conclusion of the hearing, the Board went into an executive session and found its earlier decision to rescind Howell's contract to be justified and awarded Howell $20 in nominal actual damages for the absence of a due-process hearing in January 2009. We now turn to review the evidence from that due-process hearing.
[¶9] At the December 5, 2011 due-process hearing, the Board heard testimony from Howell, as well as her daughter, Michelle Howell, who was Howell's employee. The Board also heard testimony from Sheriff McCullum. Michelle testified that Lickety Splitz previously received mainly " A" grades from the Health Department, with the exception of one " B." Michelle explained that Lickety Splitz received the " B" grade for one year because the privilege license was placed on the shelf instead of hanging on the wall, as required. Michelle also testified that she never cooked meals at a residence to bring to the mealpreparing facility, as alleged by Sheriff McCullum.
[¶10] Howell also provided testimony about the events on the day the sheriff came to the meal-preparation facility to perform an inspection, and contrary to Sheriff McCullum's claims, she denied his assertion that she possessed food in her car to deliver to customers that she prepared elsewhere. The minutes from the due-process hearing reflect Howell's testimony that
for the year 2009, she had the contract for inmate meals at the Collins city jail, the Covington County jail, and the Jefferson Davis County jail. She . . . " believed" she had the facilities and personnel to handle all three contracts, but that if it developed that she did not, she would hire additional help and purchase additional equipment.
[¶11] At this hearing, Sheriff McCullum stated that when he went to inspect Lickety Splitz's meal-preparation facility, he observed a " regular" refrigerator and oven inside of the facility, rather than a commercial refrigerator or oven. Sheriff McCullum stated that he saw no food or cooking utensils at the facility. Sheriff McCullum again described his impressions and observations of the facility resulting from his inspection. Sheriff McCullum opined that based on his inspection, he was not confident that Lickety Splitz could provide meals to the Jefferson Davis County inmates on a regular basis. Sheriff McCullum claimed he possessed prior commercial restaurant experience, testifying that he owned a restaurant for several years, as well as a grocery store with a deli.
[¶12] The minutes from the due-process hearing further reflect that Sheriff McCullum also provided testimony about his experience with ...