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Pemberton Properties, Ltd v. Mayor and Board of Aldermen of City of Pearl

Supreme Court of Mississippi, En Banc

February 9, 2017

PEMBERTON PROPERTIES, LTD d/b/a PEMBERTON APARTMENTS, PARK VILLA, LLC d/b/a EAST VILLA APARTMENTS, PEARL PARTNERS, LP d/b/a COLONY PARK APARTMENTS, COLONY PARK II, LLC d/b/a GRANDE AT COLONY PARK APARTMENTS, ALBERT MOORE HOME BUILDERS, INC. d/b/a COLONIAL TERRACE APARTMENTS, WOOD GLEN, LLC d/b/a WOOD GLEN APARTMENTS, STEVE MAULDING d/b/a BAVARIAN GARDEN APARTMENTS, STEVE MAULDING d/b/a PEARL MANOR APARTMENTS, SHEILA MAULDING d/b/a 468 PLACE TOWNHOMES AND WPB PROPERTIES, LLC d/b/a FOX RUN APARTMENTS
v.
THE MAYOR AND BOARD OF ALDERMEN OF THE CITY OF PEARL, MISSISSIPPI

          DATE OF JUDGMENT: 07/15/2015

         RANKIN COUNTY CIRCUIT COURT HON. WILLIAM E. CHAPMAN, III

          TRIAL COURT ATTORNEYS: STEVEN H. SMITH SAMAC S. RICHARDSON JAMES A. BOBO

          ATTORNEYS FOR APPELLANTS: STEVEN H. SMITH SAMAC S. RICHARDSON

          ATTORNEY FOR APPELLEES: JAMES A. BOBO

          DICKINSON, PRESIDING JUSTICE

         ¶1. Under Mississippi law, a person wishing to appeal the adoption of a city's ordinance must do so within ten days. The primary question presented is whether-as the Mayor and Board of Aldermen of the City of Pearl (the "City") argue-the appeal period begins to run from the day of the ordinance's adoption, or-as the appellants argue-from its effective date. We also must consider whether a circuit judge may dismiss a complaint seeking a writ of mandamus to order a city to file a bill of exceptions presented to it for review, when the circuit judge determines the bill of exceptions was not timely presented to the city.

         ¶2. Because the appeal period for city ordinances begins on the date an ordinance is adopted, and because the appellants' bill of exceptions was presented to the City outside the ten-day period following the date of adoption, we find that the circuit judge in this case properly dismissed the complaint for writ of mandamus, and we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶3. On June 27, 2013, the Mayor and Board of Aldermen for the City of Pearl adopted an ordinance to regulate rental housing. The ordinance provided it would take effect thirty days after publication. Publication did not occur until September 17, 2014.

         ¶4. On January 27, 2015, the appellants-several rental-property owners-filed suit, alleging they had filed a Notice of Appeal and Intent to File Bill of Exceptions with the City Clerk of Pearl on September 26, 2014, and a Bill of Exceptions on November 14, 2014, to appeal the City's decision to adopt the rental-housing ordinance. The complaint further alleged the City had failed to transmit the Bill of Exceptions to the circuit clerk as required by statute, and sought a writ of mandamus ordering the City to do so.

         ¶5. The City moved to dismiss the complaint, arguing that it was untimely and that the circuit court lacked jurisdiction because the ten-day time for appeal ran from the adjournment of the meeting at which the City had adopted the ordinance, June 27, 2013. The circuit judge granted the motion, finding that he could not issue a writ of mandamus to order the City to file the bill because the circuit court would lack jurisdiction over the untimely appeal from the City's decision. The property owners appealed.

         ANALYSIS

         ¶6. This appeal presents two questions. First, when a litigant seeks a writ of mandamus to order a municipal authority to sign and file a bill of exceptions, but the circuit judge concludes the bill of exceptions would be untimely, must the circuit judge order that the bill be signed and filed only to later dismiss that bill as untimely, or may the circuit judge dismiss the complaint for mandamus on that ground? Second, did the property owners in this case timely present their bill of exceptions to the City?

         Appeal Period

         ¶7. The authority that controls this case is Mississippi Code Section 11-51-75, which provides in relevant part:

Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village, may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision, and may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the person acting as president of the board of supervisors or of the municipal authorities. The clerk thereof shall transmit the bill of exceptions to the circuit court at once, and the court shall either in term time or in ...

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