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Tunica County Board of Supervisors v. HWCC-Tunica, LLC

Supreme Court of Mississippi, En Banc

December 14, 2017

TUNICA COUNTY BOARD OF SUPERVISORS
v.
HWCC-TUNICA, LLC

          DATE OF JUDGMENT: 10/13/2015

         TUNICA COUNTY CIRCUIT COURT HON. CHARLES E. WEBSTER TRIAL JUDGE.

          TRIAL COURT ATTORNEYS: ALFRED THOMAS TUCKER, III W. ELLIS PITTMAN

          ATTORNEYS FOR APPELLANT: JULIAN DENNARD MILLER MELVIN DAVID MILLER, II

          ATTORNEY FOR APPELLEE: ALFRED THOMAS TUCKER, III

          KITCHENS, PRESIDING JUSTICE.

         ¶1. The Board of Supervisors of Tunica County, Mississippi (the Board), ordered an ad valorem tax levy for fiscal year 2014-15 and increased the millage rate from the previous year. After entering the order, the Board advertised a public hearing of the proposed ad valorem tax levy in the Tunica Times. The hearing took place and various taxpayers appeared to voice objections and concerns. Aggrieved by the actions of the Board, one such taxpayer, HWCC-Tunica, LLC (HWCC), which owns and operates Hollywood Casino-Tunica, filed a bill of exceptions in the Circuit Court of Tunica County and paid the taxes under protest. The trial court, finding that the failure of the Board to comply with statutory notice and public hearing requirements rendered the tax levy unlawful, ordered a refund. We affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On August 14, 2014, the Board of Supervisors of Tunica County, Mississippi (the Board), determined that the county's Tax Assessor Norma Anderson had "completed and filed the 2014 real and personal assessment rolls of Tunica County, Mississippi . . . ." Before the Board at that time was a document entitled "August Recaps 2014, " which showed that the assessed value of property in Tunica County had decreased in the amount of $4, 678, 672, a 1.87% decrease from the 2013 assessment.

         ¶3. On August 25, 2014, County Administrator of Tunica County Michael Thompson gave a presentation to the Tunica County Board of Supervisors regarding the county budget for the 2015 fiscal year. His presentation informed that the county's existing millage rates were "[i]nadequate and unsustainable." He cited "[d]ecreasing assessed property values, " long-term debt figures, "[i]nadequate or nonexistent fees for essential services, " and a dependency on tax revenue from a declining gaming industry. An advertisement was published in the Tunica Times on August 22, 2014, according to a proof of publication. This advertisement stated:

The Tunica County Board of Supervisors will hold a public hearing on its proposed budget and proposed tax levies for the fiscal year 2014-2015 on Thursday, August 28, 2014 at 5:00 p.m. at the Tunica County Courthouse located at 1300 School Street, in Tunica.
The Tunica County Board of Supervisors is now operating with projected total budget revenue of $45, 368, 673. Four (4) percent or $2, 043, 000 of such revenue is obtained through ad valorem taxes. For the next fiscal year, the proposed budget has total projected revenue of $40, 000, 000. Of that amount, eight (8) percent or $3, 100, 000 is proposed to be financed through a total ad valorem tax levy.
For the next fiscal year, the Tunica County Board of Supervisors plans to increase your ad valorem tax millage rate by 5.00 mills, due to the decrease in assessed property values.
Any citizen of Tunica County is invited to attend this public hearing on the proposed budget and tax levy, and will be allowed to speak for a reasonable amount of time and offer tangible evidence before any vote is taken.

         The advertised meeting occurred on August 28, 2014, and a report was introduced from Barbara Tuchel of Tunicians for Transparency in Government, who made various suggestions for budget reductions.

         ¶4. The minutes also include a document, dated August 28, 2014, and entitled "RESOLUTION OF THE BOARD OF SUPERVISORS OF TUNICA COUNTY, MISSISSIPPI AUTHORIZING AND APPROVING THE HOLDING OF A PUBLIC HEARING . . . RELATING TO GIVING THE PUBLIC NOTICE OF A HEARING TO BE HELD ON THE PROPOSED BUDGET AND PROPOSED TAX LEVIES FOR TUNICA COUNTY . . . ." This resolution purported to fix a public hearing on August 28, "relating to the proposed budget and proposed tax levies for Tunica County, Mississippi, all relating to fiscal year 2014-2015 . . . ."[1] The resolution also said that "notice shall be given as required by law that the Board of Supervisors will consider and adopt a resolution adopting the final budget and tax levy resolution contemplated thereby at the Board of Supervisors' meeting to be held on Tuesday, September 2, 2014 beginning at 5:00 p.m ..... "[2] The Board then recessed the August 28 meeting and indicated in its minutes that it would continue the meeting to September 4, 2014.

         ¶5. The next meeting of the Board took place, according to the minutes, on September 2, 2014. The minutes of the September 2 meeting do not reflect that the Board took up or considered the matter of the millage rate increase. The Board then recessed the September 2 meeting and indicated in its minutes that it would continue the meeting to September 4, 2014.

         ¶6. The minutes show that the Board did meet on September 4, 2014. The only budget- related item of business considered by the Board at that time was a request from Michael Thompson, County Administrator, that a "Work Session for the 2015 Budget Year" be scheduled for September 11, 2014. The Board approved the request. The Board then recessed the September 4 meeting and indicated in its minutes that it would continue the meeting to September 11, 2014.

         ¶7. The Board next convened on September 15, 2014, according to the minutes. At its September 15 meeting, the Board approved the fiscal year 2015 budget for the county, which included an ad valorem tax levy. The "General County" millage rate increased from the 9.14 mills figure from the fiscal year 2013 levy to 15 mills, an increase of 5.86 mills. The "County Road Construction and Maintenance" millage rate was levied at 9 mills.[3] The "Yazoo-Mississippi Delta Joint Water Management District" millage rate increased from 0.71 mills in the fiscal year 2013 levy to 0.75 mills, an increase of 0.04 mills. The "G.O. Bonds Sinking Fund" levy increased from 15.77 mills in the fiscal year 2013 levy to 17 mills, an increase of 1.23 mills. The Tunica County School District "School Shortfall Notes" millage rate decreased from 1.32 mills in the fiscal year 2013 levy to .32 mills, a decrease of 1 mill. In total, according to the fiscal year 2015 levy order, the change in the millage rate from the fiscal year 2013 levy was 15.13 mills.[4]

         ¶8. Also at the September 15 meeting, the Board adopted a "RESOLUTION MEMORIALIZING DISCUSSION RELATING TO THE BUDGET FOR TUNICA COUNTY AND ADOPTING A BUDGET FOR THE FISCAL YEAR BEGINNING OCTOBER 1, 2014." This resolution claimed that "notice of today's budget discussion and potential action relating to the budget and the tax levy had been advertised as required by law."[5] According to the resolution, "[a] copy of the Proof of Publication relating thereto was received and directed to be attached hereto and made a part hereof as Exhibit 'A.'"[6]

         ¶9. The page immediately preceding the resolution (Book 166, Page 251) in the Board minutes (Book 166, Page 250, 414) is entitled "NOTICE OF A TAX INCREASE AND PUBLIC HEARING ON THE PROPOSED BUDGET AND PROPOSED TAX LEVIES FOR TUNICA COUNTY BOARD OF SUPERVISORS, " and states the following:

The Board of Supervisors of Tunica County, Mississippi will hold a public hearing on a proposed ad valorem tax revenue increase for fiscal year 2014-15 and on its proposed budget and proposed tax levies for fiscal year 2014-2015 on (September 30, 2014 at 5:00 p.m.) at the (Tunica County Courthouse located at 1300 School Street, Tunica County Mississippi).
Tunica County, Mississippi is now operating with projected total budget revenue of $45, 368, 673 in which (4.5 percent) or $2, 043, 000 of such revenue is obtained through ad valorem taxes. For the next fiscal year, the proposed budget has total projected revenue of $35, 621, 996. Of that amount, Eight (8.42) percent or $3, 000, 000 is proposed to be financed through a total ad valorem tax levy.
For next fiscal year, Tunica County, Mississippi plans to increase your ad valorem tax millage rate by 19.36 mills from 64.72 to 84.08. This increase means that you will pay more in ad valorem taxes on your home, automobile tag, utilities, business, fixtures, and equipment and rental property.
Tunica County, Mississippi proposes to increase the millage because of General Obligation Bond Debt and decreasing assessed property values and decreasing gaming tax revenue that supports and sustains the County's general operations.
Any citizen of Tunica County, Mississippi is invited to attend this public hearing on the proposed ad valorem tax levy increase, and will be allowed to speak for a reasonable amount of time and offer tangible evidence before any vote is taken.

(Emphasis in original.)[7]

         ¶10. The next meeting of the Board occurred on September 30, 2014. In accordance with the above notice, a public hearing took place. Various citizens, including Joe Jackson, Bobby Papasan, Brook Taylor, Barbara Tuchel, Dollie Hudson, Kathlene Gann, and Supervisor Henry Nickson, Jr., appeared before the Board to express "[b]udget [c]oncerns." ¶11. On October 10, 2014, Hollywood Casino-Tunica, or HWCC-Tunica, LLC (HWCC), filed a Bill of Exceptions/Notice of Appeal in the Circuit Court of Tunica County, Mississippi. HWCC argued, inter alia, that, because notice requirements of the Mississippi Code had not been complied with in levying ad valorem taxes for fiscal year 2014-15, the tax levy was "illegal and void." The Board filed its answer on November 3, 2014. Both parties filed briefs in the Circuit Court of Tunica County. A hearing on the HWCC's Bill of Exceptions was held on June 5, 2015. At the hearing, the Board moved ore tenus to dismiss, arguing that the bill of exceptions had not been timely filed and had not been signed by the president of the Tunica County Board of Supervisors and that such procedural failings deprived the circuit court of jurisdiction.

         ¶12. The trial court entered an order on October 13, 2015. It held that, because the Board failed to comply with the advertising requirements contained in Mississippi Code "Section 27-39-203(2)(a), " which it found were mandatory, "HWCC was overcharged for those ad valorem taxes it paid for the 2014 - 2015 fiscal year."[8]

         ¶13. Aggrieved, the Board filed a notice of appeal on October 30, 2015.

         DISCUSSION

         1. Whether the circuit court lacked jurisdiction over the tax levy appeal.

         ¶14. The Board argues that the Circuit Court of Tunica County lacked jurisdiction to hear the appeal because HWCC had failed to challenge the tax levy under Mississippi Code Section 11-51-77 (Rev. 2012) and to comply with the procedural requirements thereof, which the Board asserts constitute the exclusive method by which tax assessments may be challenged. The Board argues that HWCC's filing of a bill of exceptions pursuant to Mississippi Code Section 11-51-75 (Rev. 2012) was erroneous. The Board continues that, even if filing a bill of exceptions was proper, HWCC's failure to comply with the procedural requirements of Mississippi Code Section 11-51-75 deprived the trial court of jurisdiction.

         ¶15. Mississippi Code Section 11-51-77 provides a procedure for challenging a decision of boards of supervisors "as to the assessment of taxes":

Any person aggrieved by a decision of the board of supervisors or the municipal authorities of a city, town or village, as to the assessment of taxes, may, within ten days after the adjournment of the meeting at which such decision is made, appeal to the circuit court of the county, upon giving bond, with sufficient sureties, in double the amount of the matter in dispute, but never less than One Hundred Dollars ($100.00), payable to the state, and conditioned to perform the judgment of the circuit court, and to be approved by the clerk of such board, who, upon the filing of such bond, shall make a true copy of any papers on file relating to such controversy, and file such copy certified by him, with said bond, in the office of the clerk of the circuit court, on or before its next term. The controversy shall be tried anew in the circuit court at the first term, and be a preference case, and, if the matter be decided against the person who appealed, judgment shall be rendered on the appeal bond for damages at the rate of ten percent (10%) on the amount in controversy and all costs. If the matter be decided in favor of the person who appealed, judgment in his favor shall be certified to the board of supervisors, or the municipal authorities, as the case may be, which shall conform thereto, and shall pay the costs. The county attorney, the district attorney, or the Attorney General, if the state, county or municipality be aggrieved by a decision of the board of supervisors or the municipal authorities of a city, town, or village as to the assessment of taxes, may, within twenty days after the adjournment of the meeting at which such decision is made, or within twenty days after the adjournment of the meeting at which the assessment rolls are corrected in accordance with the instructions of the state tax commission, or within twenty days after the adjournment of the meeting of the board of supervisors at which the approval of the roll by the state tax commission is entered, appeal to the circuit court of the county in like manner as in the case of any person aggrieved as hereinbefore provided, except no bond shall be required, and such appeal may be otherwise governed by the provisions of this section.

Miss. Code Ann. § 11-51-77 (Rev. 2012). Mississippi Code Section 11-51-75 provides a procedure for challenging a "judgment or decision" of a board of supervisors:

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 vacation hear and determine the same on the case as presented by the bill of exceptions as an appellate court, and shall affirm or reverse the judgment. If the judgment be reversed, the circuit court shall render such judgment as the board or municipal authorities ought to have rendered, and certify the same to the board of supervisors or municipal authorities. Costs shall be awarded as in other cases. The board of supervisors or municipal authorities may employ counsel to defend such appeals, to be paid out of the county or municipal treasury. Any such appeal may be heard and determined in vacation in the discretion of the court on motion of either party and written notice for ten (10) days to the other party or parties or the attorney of record, and the hearing of same shall be held in the county where the suit is pending unless the judge in his order shall otherwise direct. . . .

Miss. Code Ann. § 11-51-75 (Rev. 2012).

         ¶16. The trial court stated that, were it to determine that HWCC had filed a bill of exceptions, it "would most likely have to find it lacked jurisdiction to entertain this matter." The trial court held, however, that it was not "bound by the captions of the pleadings" and found that Section 11-51-77 governed, "[b]ecause the decision being appealed derives from a decision involving a tax matter . . . ." (Emphasis in original.) The trial court denied the Board's ore tenus motion to dismiss, finding that the Board was estopped from complaining that the bill of exceptions was filed untimely and that it lacked the Board president's signature in light of the Board's failure to comply with the mandatory statutory advertising requirements. The trial court found that the bond requirement of Section 11-51-77 was unnecessary because "the court understands that the tax heretofore imposed upon the plaintiff has been paid."

         ¶17. In deciding that Section 11-51-77 governed, the trial court relied on Lenoir v. Madison County, 641 So.2d 1124 (Miss. 1994). In Lenoir, the plaintiff challenged the denial of an agricultural use valuation, which had been granted continually for more than forty years, and which had resulted in extensively lower ad valorem taxes on the property. Id. at 1125. The taxes, which had been only a few hundred dollars per year, increased to approximately $95, 000 per year as a result of the denial of the agricultural use valuation. Id. The plaintiff sought relief from the Madison County Board of Supervisors in the form of a correction of the assessed taxes and the agricultural use valuation denial, but the Board denied her petition. Id. As a result, the plaintiff posted a bond and filed a complaint pursuant to Section 11-51-77 in the Circuit Court of Madison County. Id.

         ¶18. Madison County sought dismissal for lack of jurisdiction, arguing that a bill of exceptions was required pursuant to Section 11-51-75, and the trial court dismissed. Id. at 1126. This Court therefore was presented with the question of "whether filing a complaint with the Circuit Court of Madison County vested that court with subject matter jurisdiction over issues regarding tax assessments, or whether a bill of exceptions was required to be filed with the circuit court as a prerequisite to acquisition of subject matter jurisdiction." Id. at 1126.

         ¶19. This Court found that the absence of any statutory requirement for filing a bill of exceptions contained within Section 11-51-77 was indicative of "the legislature's intent not to require the filing of a bill of exceptions as a prerequisite to an appeal to the circuit court from an adverse decision of the board of supervisors, if a § 11-51-77 assessment of taxes is the subject of the appeal." Id. at 1129 (emphasis in original). The Court reversed and remanded the judgment of the circuit court, holding that:

[A]s a matter of law, Miss. Code Ann. § 11-51-77 (1972), controls Miss. Code Ann. § 11-51-75 (1972), and, consequently, where a tax matter is involved, the filing of a bill of exceptions is not a prerequisite to vesting the circuit court with subject matter jurisdiction over appeals to the circuit court from decisions of the board of supervisors.

Id. (emphasis in original).

         ¶20. The Board argues that, because HWCC failed to post a bond in accordance with that statute, the circuit court lacked jurisdiction. HWCC responds that Section 11-51-77 governs appeals of tax assessments, not tax levies by a Board of Supervisors, and that this Court has reviewed bills of exceptions in cases involving other "tax matters."

         ¶21. In City of Ocean Springs v. Home Builders Association of Mississippi, Inc., 932 So.2d 44, 47 (Miss. 2006), the Mayor and Board of Aldermen of Ocean Springs, Mississippi, adopted "a Comprehensive Plan, which included separate impact fee ordinances which authorized the assessment, collection, and expenditure of 'development impact fees' for various municipal improvements, services, equipment, and vehicles." Home Builders Association of Mississippi, Inc. (Home Builders), filed a bill of exceptions claiming that the development impact fees "constituted facial and per se illegal taxes which the City did not have the power to enact." Id. The Circuit Court of Jackson County agreed that "the impact fees were actually taxes, and the ordinances were unconstitutional, i.e., beyond the legal authority of the City" and found that "the issue is one for the Legislature rather than the courts." Id. at 448. This Court agreed: "Because these fees constitute a tax, the municipality must have enabling legislation in order to levy and collect this tax. The municipality has been given no such authority and in imposing such fees has stepped outside of its authority." Id.

         ¶22. While the question before this Court, whether a tax levy requires an appeal pursuant to Section 11-51-77 or whether a bill of exceptions may be filed pursuant to Section 11-51- 75, was not before this Court in the Home Builders case, HWCC is correct that this Court did, in that instance, consider a bill of exceptions in the context of a tax levy. The Lenoir Court merely pointed out that "where a tax matter is involved, the filing of a bill of exceptions is not a prerequisite to vesting the circuit court with subject matter jurisdiction over appeals to the circuit court from decisions of the board of supervisors" Lenoir, 641 So.2d at 1132 (emphasis in original) The Court in Lenoir made clear that "the case sub judice concerns a § 11-51-77 tax assessment issue" Id. at 1131 (emphasis in original)

         ¶23 The Lenoir Court further observed: "The purpose of a bill of exceptions is to bring the proceedings before the tribunal to the court to enable that court to determine whether the tribunal acted properly with reference to what was before it" Id. at 1128 (quoting McIntosh v. Amacker, 592 So.2d 525, 528 (Miss 1991) (Banks, J, concurring in part, dissenting in part)) (emphasis in Lenoir). "[I]n appealed tax matters, a bill of exceptions is not necessary for the circuit court since the proceedings of the board of supervisors are not in issue, only the decision of the board of supervisors is reviewed." Lenoir, 641 So.2d at 1128.

         ¶24. Here, the bill of exceptions filed by HWCC challenged the Board's compliance with the mandatory statutory notice requirements set forth in then-Mississippi Code Section 27-39-203(2) (2012). According to the bill of exceptions, "[f]ailure to comply renders the budget and tax levy illegal and void." The bill of exceptions takes issue with the procedures the Board employed in levying the tax. Therefore, the Board's proceedings are in issue and, under the language in Lenoir, require a bill of exceptions. Lenoir, 641 So.2d at 1128. The Tunica County Circuit Court was obliged to determine whether the Board had "acted properly with reference to what was before it." Id. (emphasis removed).

         ¶25. Moreover, Section 11-51-77, by its plain language, applies to "a decision of the board of supervisors . . . as to the assessment of taxes . . . ." (Emphasis added.) Mississippi Code Section 27-39-317 (Rev. 2010) rightly contemplates that a ...


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