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DeSoto County v. Standard Construction Company, Inc.

Supreme Court of Mississippi, En Banc

September 12, 2019

DESOTO COUNTY, MISSISSIPPI
v.
STANDARD CONSTRUCTION COMPANY, INC.

          DATE OF JUDGMENT: 09/29/2017

          DESOTO COUNTY CIRCUIT COURT HON. GERALD W. CHATHAM, SR. JUDGE

          ATTORNEYS FOR APPELLANT: ROBERT QUIMBY ANTHONY NOWAK

          ATTORNEY FOR APPELLEE: WILLIAM P. MYERS

          COLEMAN, JUSTICE

         ¶1. On September 29, 2017, the circuit court, sitting as an appellate court, reversed a decision of the DeSoto County Board of Supervisors. Eleven days later, on October 10, 2017, DeSoto County filed a motion seeking rehearing under Mississippi Rule of Appellate Procedure 40. On December 22, 2017, the circuit court denied the motion. On January 3, 2018, DeSoto County filed a notice of appeal "from the final judgment entered in this case on September 29, 2017 and the denial of the Motion for Rehearing by order entered on December 22, 2017."

         ¶2. The Mississippi Court of Appeals dismissed DeSoto County's entire appeal as untimely because the motion for rehearing did not toll the thirty-day time period for filing a notice of appeal under Mississippi Rule of Appellate Procedure 4(a). DeSoto Cty. v. Standard Constr. Co., Inc., No. 2018-CC-00027-COA, 2019 WL 276038, at **2, 5 (¶¶ 13, 20) (Miss. Ct. App. Jan. 22, 2019). We granted DeSoto County's petition for writ of certiorari to review the Court of Appeals' decision. While we agree that the appeal from the order of September 29, 2017, was untimely and should be dismissed, DeSoto County timely appealed the circuit court's order of December 22, 2017. Even though the appeal of the December order denying the motion for rehearing was timely, we hold that DeSoto County has waived any argument that the circuit court abused its discretion in denying the motion. Accordingly, we affirm the circuit court's judgment.

         FACTS AND PROCEDURAL HISTORY

         ¶3. The DeSoto County Board of Supervisors denied Standard Construction Company's application for a condition use permit to mine sand and gravel. Standard Construction appealed the decision to the circuit court under Mississippi Code Section 11-51-75 (Supp. 2018). On September 29, 2017, the circuit court entered an order reversing the board of supervisors. On October 10, 2018, DeSoto County filed a motion for rehearing under Mississippi Rule of Appellate Procedure 40. Standard Construction filed a response, arguing that Rule 40 does not apply to opinions and orders handed down by a circuit court. Standard Construction also maintained that the motion for rehearing also was untimely under the Mississippi Rules of Civil Procedure because it was filed more than ten days after the circuit court had entered its order.

         ¶4. On December 22, 2017, the circuit court denied the motion for rehearing, finding that DeSoto County "ha[d] failed to point to any new evidence, mistakes of law or fact, or other reason that would justify relief from the [circuit c]ourt's Order or otherwise warrant the [circuit c]ourt's reconsideration of the original appeal."

         ¶5. On January 3, 2018, DeSoto County filed a notice of appeal of the "final judgment entered in this case on September 29, 2017, and the denial of the Motion for Rehearing by order entered on December 22, 2017." While on appeal, Standard Construction filed a motion to dismiss the appeal as untimely. Standard Construction argued that the Rule 40 motion was improper because it provided no authority for the circuit court to entertain a motion for rehearing even when sitting as an appellate court. Alternatively, Standard Construction argued that even if a circuit court may hear a Rule 40 motion, the motion did not toll the time for filing an appeal. DeSoto County filed a response to the motion to dismiss, arguing that the circuit court's order of September 29, 2017, was not a final, appealable judgment because the circuit court had failed to certify its order to the board of supervisors.[1] Alternatively, DeSoto County argued that, assuming the order was a final, appealable judgment, the Mississippi Rules of Appellate Procedure apply exclusively and its motion for rehearing was timely because it was filed within fourteen days of the circuit court's order. As a second alternative, DeSoto County argued that the court should construe its motion for rehearing as a motion to alter or amend a judgment timely filed under Mississippi Rule of Civil Procedure 59(e).

         ¶6. The Court ordered that the motion to dismiss be passed for consideration with the merits of the appeal and assigned the case to the Mississippi Court of Appeals. The Court of Appeals determined that it lacked jurisdiction and dismissed the entire appeal as untimely. Standard Constr., 2019 WL 276038, at *5 (¶ 20). The Court of Appeals noted that DeSoto County's notice of appeal had been filed ninety-six days after the circuit court entered its judgment and held that DeSoto County's motion for rehearing did not toll the thirty day time period for filing a notice of appeal. Id. The Court of Appeals wrote that the Mississippi Rules of Appellate Procedure "reflect[] no tolling provision for the filing of a Mississippi Rule of Appellate Procedure 40 motion for rehearing." Id. at *3 (¶ 17). The Court of Appeals rejected DeSoto County's argument that its motion for rehearing should be construed as a Mississippi Rule of Civil Procedure 59(e) motion to alter or amend a judgment because it was not filed within ten days after the entry of the judgment. Id. at *4 (¶ 19). The Court of Appeals recognized that the ten-day requirement under Rule 59(e) is absolute and may not be extended. Id. Finally, the Court of Appeals wrote that an untimely Rule 59(e) motion may be considered a Rule 60(b) motion but that a Rule 60(b) does not toll the time period in which an appeal may be taken. Id.

         ¶7. We granted DeSoto County's petition for a writ of certiorari to address whether the Court of Appeals erred by dismissing the entire appeal.

         ANALYSIS

         ¶8. Because DeSoto County appealed from two separate circuit court orders, we will address each in turn.

         I.Order of September ...


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