author: BRANTLEY, J., for the court. IRVING, J.,

text:
    HINDS COUNTY BOARD OF SUPERVISORS, Appellant, v. James LEGGETTE, Appellee.
    No. 2001-CA-01217-COA.
    Court of Appeals of Mississippi.
    Dec. 10, 2002.

      E. Charlene Stimley Priester, Jackson, attorney for appellant.
    Cynthia Ann Stewart, Jackson, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES, and BRANTLEY, JJ.
   BRANTLEY, J., for the court.

¶ 1. The Circuit Court of the Second Judicial District of Hinds County reversed and vacated the Hinds County Board of Supervisor’s (Board) directive to remove a riding arena and attendant facilities from James Leggette’s property. Aggrieved, the Board appeals. Finding no error, we affirm the ruling of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶2. On December 1, 1992, Mr. James Leggette purchased approximately 177 acres of land located in an unincorporated area of Hinds County zoned as an agricultural district. Article V of the Hinds County Zoning Ordinance sets forth the use regulations in regard to agricultural land. In particular, Section 501 specifies the permitted uses for such agricultural district land, such as non-commercial recreational facilities. Section 502 sets forth the conditional uses such as commercial activities. On February 14, 1995, Leg-gette filed an application for a Section 502 conditional use permit, wherein, he stated his intention to build a riding arena so that his children and grandchildren could enjoy horses and other equestrian activities. Similar arenas have been previously erected. He filed the request to address any possible commercial concerns.

¶ 3. On March 28, 1995, a public hearing was conducted before the Planning Commission. Leggette presented his plans for the construction of the riding arena on approximately two acres of land and expressed that he wanted to clear up any “commercial” concerns. His intention was to operate the arena in a non-profit manner, but was concerned with the manner in which to conduct the events at the arena, such as charging a riding fee. An opposing land owner then presented the community’s non-commercial concerns. The Planning Commission denied his application for a conditional use permit and Leg-gette appealed the decision to the Hinds County Board of Supervisors.

¶ 4. On May 1, 1995, the Board conducted a second public hearing. Leggette’s counsel stated that he was seeking the Board’s approval to open his “little riding arena to head off claims of commercial activity that may accompany a fee to ride.” Leggette’s counsel reiterated that this was not a for-profit operation and further stated that the arena would be open to youths of church groups, Boy Scouts, and any civic group dealing with minors in order to provide them with an opportunity to show their animals. The Board was assured that there would be proper supervision and that law and order would be administered on the premises. A member of the community expressed concerns of nuisances that may be created by the arena and submitted a petition signed by area property owners opposed to the arena. At the conclusion of the hearing, the Board “resolved to accept the planning board’s recommendation to deny Leggette’s request.”

¶ 5. Leggette did not appeal the May 1, 1995 decision by the Board. Subsequent to the Board’s hearing, Leggette constructed a horse riding arena on his agriculturally zoned land as provided in Miss. Code Ann. § 17-1-3 (Rev.1995) and in accordance with the zoning ordinance specifications, particularly Section 501. On September 20, 1997, Leggette hosted an equestrian event, attended by approximately one thousand patrons. Leggette did not charge an admission fee; however, donations were allowed and concessions were available. Deputies from the Hinds County Sheriffs Department were also on site during the event for crowd control.

¶ 6. On September 24, 1997, the zoning supervisor reported the horse show to the Board. On October 20, 1997, the Board held a meeting and Leggette was present. At the meeting, the zoning administrator informed the Board “that Miss.Code Ann. § 17-1-3 prevents his office from requiring a permit for land used for agricultural activity or for farm buildings and structures; his office can only control the use of the facility.” Leggette’s attorney stated that the Board’s decision on May 1, 1995, did not deny the construction of the arena, but merely denied a conditional use permit to operate the facility as a commercial arena. After having been informed of the legal authority supporting Leggette’s exercise of his property rights, the Board voted in a three-to-two decision to authorize the Zoning Administrator to proceed with appropriate legal action or proceedings to enforce the zoning ordinance and prevent any further activity in violation of the zoning ordinance.

¶ 7. Subsequently, after a hearing on November 17, 1997, on the matter of whether Leggette had a statutory right to erect and use such structures on his property, the Board found that the use of the riding arena and attendant structures was not an agricultural use and did not constitute farm buildings or farm structures as set forth in Miss.Code. Ann. § 17-1-3. The Board also found that the riding arena and attendant structures constituted a commercial and/or public or quasi-public use of the property which was in violation of the zoning ordinance. After another three-to-two vote, the Board issued a resolution which “authorize[d] and directed] the Zoning Administrator to take legal action in an appropriate court of law to seek the removal of the riding arena and attendant facilities from the subject property, and any other remedies the court may deem proper.” The Board then sent a letter to Leggette ordering him to dismantle the structure.

¶ 8. Leggette appealed the November 17, 1997 ruling to the circuit court. He filed a bill of exceptions pursuant to Miss. Code Ann. §11-51-75 on December 4, 1997, but it did not contain the required signature of the president of the Board. He filed a second bill of exceptions, which included the required signature of the Board’s president, on December 18, 1997. In reversing and vacating the Board’s November 17, 1997 directive, the circuit court found that the Board’s action directing destruction of the arena amounted to “nothing more than selective enforcement of the zoning regulations ... and was arbitrary and capricious” and violated a statutory right of Leggette as provided in Miss. Code Ann. § 17-1-3. The court further held that Leggette “should be allowed to conduct private non-commercial activities in the riding arena and attendant facilities on his property in a not-for-profit or noncommercial manner and in conformance with other arenas in Hinds County.”

ASSIGNMENTS OF ERROR

I. WHETHER THE ■ CIRCUIT COURT HAD SUBJECT MATTER JURISDICTION.

II. WHETHER THE BOARD’S DECISION WAS BEYOND THE POWER OF THE BOARD OR VIOLATED A STATUTORY RIGHT OF JAMES LEGGETTE OR WAS ARBITRARY OR CAPRICIOUS.

STANDARD OF REVIEW

¶ 9. Judicial review of a board of supervisor’s findings and decisions -is limited. A board of supervisor’s conclusions must remain undisturbed unless the board’s order: (1) is beyond the scope or power granted to the board by statute; (2) violates the constitutional rights or statutory rights of the aggrieved party; (3) is not supported by substantial evidence; or (4) is arbitrary or capricious.

Board of Law Enforcement Officers Standards & Training v. Butler, 672 So.2d 1196, 1199 (Miss.1996). If a board of supervisor’s decision is not based on substantial evidence, it necessarily follows that the decision is arbitrary and capricious. Public Employees’ Ret. Sys. v. Marquez, 774 So.2d 421, 430 (¶ 35) (Miss.2000). We will review questions of law de novo. McCubbin v. Seay, 749 So.2d 1127(¶ 5) (Miss.Ct.App.1999).

DISCUSSION

I. WHETHER THE CIRCUIT COURT HAD SUBJECT MATTER JURISDICTION.

¶ 10. On, November 17, 1997, the Board issued a resolution which “authorize[d] and direct[ed] the Zoning Administrator to take legal action in an appropriate court of law to seek the removal of the riding arena and attendant facilities from the subject property, and any other remedies the court may deem proper.” In a supplemental brief, the Board contends that their resolution was not a “final judgment or decision,” but simply a “directive” to the Board’s Zoning Administrator to pursue a judicial resolution. Therefore, the Board contends that the circuit court was without subject matter jurisdiction because the resolution was not an appealable judgment or decision pursuant to Miss. Code Ann. § 11-51-75. Miss.Code Ann. § 11-51-75 provides in part that “any person aggrieved by a judgment or a decision of the board of supervisors ... may appeal within ten (10) days from the date of adjournment at which session the board of supervisors ... render such judgment or decision.”

¶ 11. In Sanford v. Board of Supervisors, Covington County, the Mississippi Supreme Court stated that “Mississippi Code Annotated § 11-51-5(1972) provides explicitly that appeals to the circuit court from a decision of the county board of supervisors is proper only when brought by a person ‘aggrieved by a judgment or decision of the board.... ’ Likewise, this Court’s own jurisdiction is expressly set forth in Mississippi Code Annotated § 11-51-3 (Rev.1972) as proper only from a ‘final judgment.’ ” Sanford v. Board of Supervisors, Covington County, 421 So.2d 488, 490 (Miss.1982). It is well settled that a final judgment has been defined as a “judgment adjudicating the merits of the controversy which settles all the issues as to all the parties.” Id.

¶ 12. In the present case, although, the words, “final judgment” or “decision,” were not used, we find that on November 17, 1997, the Board rendered its final decision on this matter, having “RESOLVED AND ORDERED” the Zoning Administrator to take legal action in an appropriate court of law to seek the removal of the structures. The language of the resolution alone indicates the finality of the Board’s decision to have the structures dismantled. Furthermore, the resolution was the result of an adjudication on the merits of this controversy. The Board found that Leg-gette’s use of the arena violated the zoning ordinance and, therefore, ordered the Zoning Administrator to have it dismantled. Aggrieved, he appealed their decision to dismantle his arena. Even though the Board did not actually arm the Zoning Administrator with a bulldozer and a hard hat, the Board’s order to the Zoning Administrator is still considered a final ap-pealable order from which Leggette could appeal pursuant to Miss.Code Ann. § 11-51-5 (1972). Therefore, the circuit court did have subject matter jurisdiction and this assignment of error is without merit.

II. WHETHER THE BOARD’S DECISION WAS BEYOND THE POWER OF THE BOARD OR VIOLATED A STATUTORY RIGHT OF JAMES LEGGETTE OR WAS ARBITRARY OR CAPRICIOUS.

¶ 13. The Board ruled that it had the authority to seek removal of the horse riding arena and attendant facilities from Leggette’s property and directed the Zoning Administrator to proceed with legal action in accordance with their decision. Mississippi Code Annotated § 17-1-3 (Supp.2002) gives the board of supervisors of the county the power and authority, with respect to the unincorporated part of the county, “to regulate the height, number of stories and size of a building and other structures, the percentage of a lot that may be occupied, the size of yards, courts and other open spaces, the density of population, and the use of buildings, structures and land for trade, industry, residence or other purposes.... ” This section further states, in pertinent part: “that no permits shall be required with reference to land used for agricultural purposes, including forestry activities as defined in Section 95 — 3—29(2)(c), or for the erection, maintenance, or repair or extension of farm buildings or farm, structures ... outside the corporate limits of the municipalities.” (emphasis added).

¶ 14. Therefore, although the Hinds County Board of Supervisors has the authority to promulgate and enforce zoning regulations under Miss.Code Ann. § 17-1-3, these powers are not absolute and there are statutory exceptions. Leg-gette does have the right and entitlement to have upon his property those structures that conform to the terms and limitations as provided for in Miss.Code Ann. § 17-1-3. No permit is required for “land used for agricultural purposes ... or for the erection ... of farm buildings or farm structures.... ”

¶ 15. The Board found that the use of the riding arena and attendant structures was not an agricultural use and did not constitute farm buildings or farm structures as set forth in Miss.Code Ann. § 17-1-3 (Supp.2002). Therefore, the Board concluded that Leggette’s horse arena did not fall within the limit or exception to the zoning regulation as set forth in the statute. The Board also found that the riding arena and attendant structures constituted a commercial and/or public or quasi-public use of the property.

¶ 16. We now look to see whether the private, non-profit horse arena constitutes an agricultural use of the land or a farm building or structure as provided in Miss. Code Ann. § 17-1-3. The statute does not specifically address whether or not a horse arena is a permitted agricultural use of the land or a farm building or structure. The Board also does not cite any authority to support their finding that the use of the horse arena is not considered an agricultural purpose and is not a farm structure or building. In addition, Miss.Code Ann. section 95-3-29 (Rev.1994), as provided in § 17-1-3 as a permit exception, does not aid us in our interpretation of the allowed permit exception, “land used for agricultural purposes.” Section 95-3-29 only provides the phrase “agricultural operation,” and defines it as “any facility for the production and processing of crops, livestock ... for commercial or industry purposes.” Miss.Code Ann. § 95-3-29(2)(a) (Rev.1994). Therefore, for guidance in our interpretation of the statutory exception, “land used for agricultural purposes,” we next look to the definitions that were provided in the Hinds County Zoning Ordinances, which were available to the Board at the time of their decision. Article II of the zoning ordinance defines “agricultural activities” as, “the production, keeping or maintenance, for sale, lease or personal use, of plants and animals useful to man, including but not limited to: ... livestock, including ... horses.... ”

¶ 17. The purpose of the private, nonprofit horse arena was to provide for the personal use of Leggette and the children of the community an opportunity to enjoy horses, equestrian activities, and a place to show their animals. We find that these agricultural activities are synonymous with land used for agricultural purposes.

¶ 18. Therefore, we find that a private, non-profit horse arena in an agricultural district is considered a permitted agricultural use under Miss.Code Ann. § 17-1-3. We recall our standard of review which provides that a board of supervisor’s conclusions must remain undisturbed unless the board’s order: (1) is beyond the scope or power granted to the board by statute; (2) violates the constitutional rights or statutory rights of the aggrieved party; (3) is not supported by substantial evidence; or (4) is arbitrary or capricious. Board of Law Enforcement Officers Standards & Training v. Butler, 672 So.2d 1196, 1199 (Miss.1996). Thus, we find that the November 17, 1997 resolution of the Board to seek removal of the riding arena and attendant facilities from the subject property was beyond the power of the Board to make and violated Leggette’s statutory right to erect without a permit a private non-profit horse arena for agricultural use on his unincorporated property as provided in Miss.Code Ann. § 17-1-3.

¶ 19. Furthermore, the decision of the Board on May 1, 1995, to deny Leggette a conditional use permit effectively only denied him the use of the arena for-profit. As mentioned above, the Board does have the power to regulate the use of the facility under Miss.Code Ann. § 17-1-3 and according to Section 502 of the zoning ordinance, the Board also has the authority to particularly require permits for commercial uses, such as stables, riding academies, and dealing or trading in farm animals. However, section 501(e) of the Hinds County Zoning Ordinance permits the non-commercial use of public or private recreational or open space facilities within an agricultural district without a permit.

¶ 20. We find that Leggette’s horse arena was a private non-profit recreational facility which was permitted under Section 501. At the only event, there was no fee charged, nor was there any evidence presented that the facility was being operated for-profit in violation of the zoning ordinance. In addition, a “commercial activity” is defined in Blacks’ Law Dictionary as “any type of business activity which is carried on for a profit.” BLACK’S LAW DICTIONARY 270 (6th ed.1990). Therefore, we do not find that donations and non-profit concessions are commercial and in violation of Section 501(e). Additionally, Section 501(e) specifically only “excludes country clubs and the like” and states that they should be regulated as publie/quasi-public facilities or utilities subject to permits. The horse arena is not a country club or the like, nor is it a public or quasi-public facility. It is a privately owned horse arena. Therefore, the Board’s attempt to deny Leggette the use of his property as permitted by the zoning ordinance in Section 501(e) was also arbitrary and capricious.

CONCLUSION

¶ 21. The Board was clearly erroneous by directing the removal of the horse arena in conflict with Leggette’s statutory right as provided in Miss.Code Ann. § 17-1-3 to erect such a structure in an agricultural district. In accordance with authorities cited herein and as the facts require, we find that Leggette is entitled to operate his private arena as a non-profit arena only in conformance with the regulations of the zoning ordinance of Hinds County, and we affirm the circuit court in its reversal of the Board. However, this decision in no way prohibits the Board from enforcing the applicable zoning regulations in an effort to prevent any future violation of the zoning ordinance.

¶ 22. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, MYERS AND CHANDLER, JJ„ CONCUR.

IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, P. J.

IRVING, J.,

DISSENTING:

¶ 23. By a vote of three to two, the Hinds County Board of Supervisors (the Board), on May 1, 1995, accepted the recommendation of the Planning Commission Board to deny James Leggette a conditional use permit to construct and operate a horse riding arena on certain property zoned for agricultural use. The majority concludes that the Board, which had refused to grant Leggette a conditional use permit to construct the riding arena, did not have the authority to order Leggette to cease and desist operating the arena after Leggette built and began operating the facility without the required permit. The majority reaches this conclusion by finding that the riding arena is considered a permitted-agriculture use under Mississippi Code Annotated section 17-1-3 (Supp.2002), and thus exempted from regulation by the Board. I disagree; therefore, I respectfully dissent.

¶ 24. Mississippi Code Annotated section 17-1-3 (Supp.2002) provides in pertinent part that:

[F]or the purpose of promoting health, safety, morals, or the general welfare of the community, the governing authority ... of any county, in its discretion, [is] empowered to regulate the height, number of stories and size of the yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes, but no permits shall be required with reference to land used for agricultural purposes, including forestry activities as defined in Section 95-3-29(2)(c), or for the erection, maintenance, repair or extension of buildings or farm structures ....

Miss.Code Ann. § 17-1-3 (Supp.2002) (emphasis added).

¶ 25. The majority acknowledges that the code section does not define the phrase “agricultural purposes” but finds that Article II of the Hinds County Zoning Ordinances does and that, based on the Board’s own definition of “agricultural activities,” regulation of the riding arena was beyond the power granted to the Board by Mississippi Code Annotated section 17-1-3 (Supp.2002).

¶ 26. Also, the majority correctly points out that if the riding arena was used for agricultural purposes, the Board was without authority to require a permit for its operation, and that, as previously noted, the regulatory statute does not define the phrase “agricultural purposes.” However, I believe some ■ guidance can be gleaned from the legislative definition of the phrase, “agricultural operation,” as that phrase is defined in Title 95, Chapter 3 of the Mississippi Code of 1972, as annotated and amended.

¶ 27. In section 95-3-29 of Title 95, Chapter 3, entitled, “Immunity of certain agricultural operations from nuisance actions,” the phrase, “agricultural operation,” is defined as including “without limitation, any facility for the production and processing of crops, livestock, farm-raised fish and fish products, livestock products, wood, timber or forest products, and poultry or poultry products for commercial or industrial purposes.” Miss.Code Ann. § 95-3-29(2)(a) (Rev.1994). A horse riding arena is hardly used for the production of crops, livestock, farm-raised fish, etc.

¶28. Further, the majority’s construction of the definition of the phrase, “agricultural activities,” as that phrased is defined in Article II of the Zoning Ordinance of Hinds County is indeed strange, to say the least. This section of the zoning ordinance defines “agricultural activities” as:

The production, keeping or maintenance, for sale, lease or personal use, of plants and animals useful to man, including but not limited to: forages and sod crops; grains and seed crops; dairy animals and dairy products, poultry and poultry products, excluding commercial feed lots; livestock, including beef cattle, sheep, swine, horses, ponies, mules, or goats, or any mutations or hybrids thereof, including the breeding and grazing of any or all of such animals and excluding commercial feed lots; bees and apiary products, fur animals; trees and forest products; fruits of all kinds, including grapes, nuts and berries; vegetables; nursery, floral, ornamental and greenhouse products; or land devoted to a soil conservation or forestry management program.

In my opinion, it is more than a stretch to construe the right “to keep a horse for sale or personal use” to mean conferring the right “to construct and operate a riding arena,” not for personal use, but for the community at large.

¶ 29. The facts reveal that the Board did not seek to enjoin Leggette’s use of the riding arena until it was brought to the Board’s attention by the director of the Department of Permit and Zoning that a horse show had been held at Leggette’s place, that approximately one thousand persons attended the show, that several concession stands were in operation on the premises, that contests were held for prizes which were donated by several business, and that some Hinds County deputies were present for crowd control. Also, it appears that no fee was charged for admission to the show but donations in the amount of $10 per person were requested and accepted.

¶ 30. On November 17,1997, the Board, by the same three-to-two vote, passed a resolution finding that:

[I]n the judgment of the Board of Supervisors, and based upon the evidence presented, the riding arena and attendant structures constructed on the subject property are not an agricultural use and do not constitute farm buildings or farm structures, and, therefore, do not fall within the limit or exception to zoning regulation of Code Section 17-1-3....
[I]n the judgment of the Board of Supervisors, and based upon evidence presented, the riding arena and attendant structures constructed on the subject property constitute a commercial and/or public or quasi-public use of the property, therefore, coming squarely within the regulatory jurisdiction of the Board of Supervisors....
[I]n the judgment of the Board of Supervisors, and based upon evidence presented, the riding arena and attendant structures located on the subject property have been constructed and used in violation of Article V and other provisions of the Hinds County Zoning Ordinance and in contravention of the Board’s prior action of May 1, 1995.

¶ 31. I find nothing arbitrary or capricious with the above findings by the Board. It seems to me that using agricultural land for a riding arena is hardly using the land for agricultural purposes, for agricultural operations, or for agricultural activities. Further, I find that it is at least fairly debatable as to whether the activity which occurred at Leggette’s riding arena was of a commercial nature rather than of a personal one. This type of activity is hardly consistent with the production, keeping or maintenance, of a horse or horses for sale, lease or personal use.

¶ 32. “A decision by a local governing board is presumed valid, and the burden is upon the person seeking to set it aside to show that it was arbitrary, capricious and unreasonable.” Fondren North Renaissance v. Mayor and City Council of the City of Jackson, 749 So.2d 974, 979-80(¶ 18) (Miss.1999) (citing Board of Aldermen v. Conerly, 509 So.2d 877, 885 (Miss.1987)). “ ‘Fairly debatable’ is the antithesis of arbitrary and capricious.” Id. at 977 (citing Saunders v. City of Jackson, 511 So.2d 902, 906 (Miss.1987)). “If a decision could be considered fairly debatable then it could not be considered arbitrary or capricious.” Id.

¶ 33. For the reasons presented, I dissent. I would reverse and render the decision of the Hinds County Circuit Court and reinstate the decision of the Board of Supervisors of Hinds County. That decision was to authorize the zoning administrator to take “legal action in the appropriate court of law to seek the removal of the riding arena and attendant facilities from the subject property, and any other remedies the court may deem proper.”

KING, P.J, JOINS THIS SEPARATE OPINION.

      . Supervisors George Smith, Douglas Anderson, and Peggy Hopson Calhoun voted to accept the Planning Commission Board's recommendation to deny the permit, while Supervisors Joseph Lauderdale and Ronnie Chapell voted against accepting the recommendation.


source: Caselaw Access Project

author: LEE, J.,

license: Public Domain

text:
    Margie TWINE, Appellant v. CITY OF GULFPORT, Appellee.
    No. 2001-WC-01378-COA.
    Court of Appeals of Mississippi.
    Dec. 17, 2002.

      Thomas D. Berry, Bay St. Louis, Attorney for Appellant.
    Jeffrey S. Bruni, Gulfport, Attorney for Appellee.
    Before KING, P.J., BRIDGES, and LEE, JJ.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. This is a workers’ compensation case. The claimant/appellant, Margie Twine, worked for the City of Gulfport. Twine claims that in August 1994, lightning struck her building and sent electricity through her phone line allegedly causing her injury. Twine was treated thereafter by a host of doctors, some finding Twine had been shocked by the lightning and others claiming only a loud noise occurred which caused Twine’s injury. On May 2, 1995, Twine was advised that no further treatment would be allowed, and she filed a petition to controvert on May 15, 1995. Twine filed a motion for a Rule 9 hearing to force the City to provide further treatment and to pay temporary benefits. The City responded by admitting injury but denying that Twine’s current complaints were related to the injury.

¶ 2. At a March 1996 hearing, the employer admitted Twine had suffered from a surge of electricity and agreed that surgery was necessary to correct neck problems related to Twine’s injuries. After the surgery, Twine was paid full salary while recovering, and she reached maximum medical improvement in April 1996 for the neck injury. Also at this time, her treating physician, Dr. Harry Danielson, recorded Twine’s medical problems including carpal tunnel syndrome, pain in her knees, hips and legs, headaches, progressive tinnitus, trouble sleeping resulting in exhaustion, severe hearing loss, and situation depression. Dr. Danielson advised that disability retirement was needed, giving a nine percent anatomical impairment of the person as a whole as a result of the trauma and surgery.

¶ 3. In June 1996, Twine and the City entered into an agreement before the administrative law judge stating that if Twine was unable to work due to ongoing problems related to the injury, she was entitled to receive additional temporary total disability as she recovered. After Twine left work in November 1996, she never worked full time again, retiring in December 1996 when she turned 60. In March 1997, the City refused to pay benefits and Twine again filed a motion for a Rule 9 hearing. Dr. Jackson noted that Twine had a forty-four percent disability to her body as a whole and that she had been disabled since November 1996 when she first took a leave of absence from work; he further noted that he did not expect her situation to improve.

¶ 4. The administrative law judge found Twine voluntarily quit work and, except for her hearing loss and cervical spine problems, Twine failed to prove any other work-related injuries. Twine was awarded permanent partial disability for forty weeks. The Full Commission reviewed the findings of the administrative law judge and affirmed, as did the Harrison County Circuit Court. Twine now appeals to this Court raising the following issues: (1) did the trial court err in excluding testimony from the claimant’s selected doctors; (2) did the trial court err in ignoring stipulations between the employer and the claimant concerning the claimant’s injuries and causation; and (3) did the trial court err in holding a full hearing when the claimant was proceeding on a Rule 9 expedited hearing on refused medical treatment and temporary benefits; and (4) did the court err in denying the appellant’s motion for additional evidence? We review these issues and find no merit; thus, we affirm.

DISCUSSION OF THE ISSUES

¶ 5. At the outset, we first address the appellee’s contention that this appeal should be dismissed for want of jurisdiction. In December 1998, Twine filed her notice that she was appealing the decision of the Commission to the Harrison County Circuit Court. All briefing was completed by April 1999, and from that point until Twine finally received notice of Circuit Judge Whitfield’s order in January 2001, Twine’s attorney claims he continuously was in contact with the circuit clerk’s office checking to see if the order had been entered, including in November 1999 and April 2000 when he wrote the judge to ask if the judge could expedite his judgment in Twine’s case. Twine’s attorney also claimed that each time he was at the courthouse, he would personally check with the clerk to see if an order had been entered in Twine’s case. Twine’s attorney also stated that around the end of November 2000, while he was at the courthouse concerning another case, one of Judge Whitfield’s law clerks told him, “I think we got one coming out,” in response to the attorney’s questioning concerning a judgment on the Twine matter. The attorney for the employer testified that both he and Twine’s attorney were told by the law clerk that Judge Whitfield would be retiring December 1, 2000, and that the order would be issued prior to that time.

¶ 6. On November 21, 2000, Judge Whitfield signed his order affirming the Full Commission, and the order was filed with the clerk the next day. After November 2000, Twine’s attorney stated he did not contact the clerk to see if the order had indeed been filed, but rather waited until January 9, 2001, for the order to arrive by fax from the clerk’s office. On January 10, 2001, Twine filed a motion to allow out of time appeal, since the time had expired in which she could file her notice of appeal with the supreme court. A hearing on this motion was held in August 2001, and the judge granted the motion, finding that a representation from the law clerk as to the timing the order would be issued did not place any duty on Twine to contact the court clerk’s office to see if the order had been issued.

¶ 7. The applicable rule in this situation is Rule 4(h) of the Mississippi Rules of Appellate Procedure which states:

The trial court, if it finds (a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced, may, upon motion filed within 180 days of entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.

Here, Twine was notified of the November entry of judgment seven weeks after such entry, which exceeds the twenty-one days as stated in the rule. Also, Twine filed her motion the day after receiving the order, which falls under the seven-day window to do so, as prescribed in the rule. Additionally, neither party can show prejudice as a result of the out of time appeal. Accordingly, we find that the trial court properly granted Twine’s out of time appeal in allowing her fourteen days to file her notice of appeal, which she timely did.

I. DID THE TRIAL COURT ERR IN EXCLUDING TESTIMONY FROM THE CLAIMANT’S SELECTED DOCTORS?

¶ 8. Looking to the merits of the issues set forth in Twine’s brief, we note our standard of review in workers’ compensation cases:

[T]he Commission’s findings are subject to “normal, deferential standards upon review” and we will not reverse unless we find the Commission’s decision to be clearly erroneous in light of a mistake in finding of fact. “As the trier of fact, it is presumed that the Commission made proper determinations as to which evidence was credible and which was not. Unless the Commission’s decision was arbitrary and capricious, we will not tamper with the Commission findings.” “The Court of Appeals will not overturn a decision of the Workers’ Compensation Commission unless it is based on a misapplication of law or it is unsupported by the clear facts presented in the case.”

J.R. Logging v. Halford, 765 So.2d 580 (¶ 15) (Miss.Ct.App.2000) (citations omitted).

¶ 9. The administrative law judge denied payment for Twine’s medical services rendered by Dr. Joe Jackson and by Dr. Donald Weaver, finding that Twine had already selected Dr. Eugene McNally as her family physician, and noting that the employer had not authorized payment to Dr. Jackson or to Dr. Weaver pursuant to Miss.Code. Ann. § 71-3-15 (Rev.2000).

¶ 10. In September and in October of 1996, Dr. Weaver saw Twine for complaints relating to anemia and bronchitis, and Twine requested that Dr. Weaver refer her to neurologist Dr. Joe Jackson. Twine complained to Dr. Jackson of pain in her neck, shoulder, elbow, wrists, knees, and back. After prescribing a myriad of treatments, Dr. Jackson finally noted that based on what Twine had told him, he could not understand why Twine was medically unable to tolerate work-related activities.

¶ 11. In the administrative law judge’s thorough opinion, which the Full Commission affirmed in total, Judge Thompson stated:

The evaluations and treatment recommended by Dr. Joe Jackson were not required by the work injury and the process of Ms. Twine’s recovery therefrom. By the time she consulted Dr. Jackson, a neurologist, in December 1996, more than two years after the work accident, Ms. Twine had been tested, treated, and released by numerous physicians, including various specialists, at lease one a neurologist, and her visit to Dr. Jackson was nothing but blatant doctor shopping to find a doctor who would support her allegations of disability. Dr. Jackson believed Ms. Twine’s subjective complaints and in a good effort tried conservative treatment but did nothing for Ms. Twine that had not already been tried and failed. In the end, even he admitted he was baffled and could not offer her anything. Ms. Twine’s visits to Dr. Weaver, beginning on September 23, 1996, also more than two years after the work accident, were primarily for problems not related to the work accident, such as anemia and bronchitis. She had already made her selection of family physician when she saw Dr. McNally. The employer is not responsible for payment for any medical services or supplies rendered to Ms. Twine by or at the order of Dr. Jackson or Dr. Weaver unless authorized by the employer at the time pursuant to the Commission’s Medical Fee Schedule.

Twine saw Dr. McNally shortly after her accident. Thereafter, Dr. McNally was the one who referred her to various other doctors. We have reviewed the entire findings of the administrative law judge, which findings were affirmed by the Full Commission, and we find the Commission was not arbitrary or capricious in its findings, as the facts presented support the ruling. There is no merit to this issue.

II. DID THE TRIAL COURT ERR IN IGNORING STIPULATIONS BETWEEN THE EMPLOYER AND THE CLAIMANT CONCERNING THE CLAIMANT’S INJURIES AND CAUSATION?

¶ 12. Twine claims that the employer did not abide by certain stipulations made at the initial hearing in this case. Specifically, Twine argues that at this hearing, the employer stipulated that Twine suffered certain work-related injuries, including herniated disk, permanent hearing loss, right carpal tunnel syndrome, entrapment of the left ulnar nerve, acute vocal cord injury, and headaches. Twine, however, states that the administrative judge and the circuit judge both ignored the stipulations concerning the carpal tunnel syndrome, ulnar nerve entrapment, vocal cord injury and headaches. In our examination of both the opinion from the administrative law judge and the ruling from the circuit court, we find that the judges were fully aware of the stipulations that the employer and Twine recognized. These tribunals also recognized that, in spite of Twine’s condition, she had failed to show her wage earning capacity was affected by her stipulated-to, work-related injuries. In affirming the Full Commission, the circuit court stated:

Claimant/Appellant has the burden to demonstrate that she sustained a loss of wage earning capacity after she attained MMI. Since she returned to work after attaining this condition with the employer, there was a rebuttable presumption that she presented no proof of attempts on her part to secure any other employment after she resigned with employer in December 1996. Claimant’s claim for permanent disability benefits beyond those for bilateral hearing loss was properly denied by the Commission since there is substantial evidence to show that she had no such claim.

¶ 13. Twine argues that reports from several doctors supported her claim that stipulations were made in this case. We concede that the employer admitted that Twine suffered the afore stated work-related injuries. We find, however, that these stipulations are extraneous to the fact that even in light of the admissions of work-related injury, Twine failed to show any decline in wage earning capacity as would entitle her to disability benefits. See International Paper Co. v. Kelley, 562 So.2d 1298, 1303 (Miss.1990). Thus, we find no merit to this issue.

III. DID THE TRIAL COURT ERR IN HOLDING A FULL HEARING WHEN THE CLAIMANT WAS PROCEEDING ON A RULE 9 EXPEDITED HEARING ON REFUSED MEDICAL TREATMENT AND TEMPORARY BENEFITS?

¶ 14. With her third issue, Twine claims she thought the July 28, 1997 hearing would be on the issues raised in her motion, not on her case as a whole, and the trial court erred in failing to inform her that the hearing was a “full” hearing rather than a Rule 9 hearing. She claims, since she had not yet reached maximum medical improvement, she was unprepared at that time to present her case for final hearing. Twine further argues that the administrative law judge decided the whole case without- benefit of the full hearing at which time she would have presented corroborating testimony from her doctors and would have been able to defend against the employer’s allegation of “doctor shopping.”

¶ 15. The employer rebuts that Twine was well-aware that the hearing would be on the merits of her claim, and that Twine had ample opportunity to object or request additional time, neither of which she did. The Commission granted Twine’s motion to expedite, which concerned her amended petition to controvert, and the April 1997 order stated that the cause would be placed on the active docket for sixty days to allow discovery, after which time a hearing on the merits as to the issue of permanent disability ' would be conducted. Thereafter, Twine did not file any objection to the order. Additionally, Twine received an “official notice of hearing” in July 1997 which stated the hearing was “on the merits.” At no place in the record do we find that Twine objected to the hearing being “on the merits” of her case, nor do we find evidence that she requested a rescheduling of such hearing since she claims she was not prepared at that time.

¶ 16. In support of her contention that the judge exceeded her authority in conducting a hearing on the full merits, Twine cites to Monroe v. Broadwater Beach Hotel, 593 So.2d 26 (Miss.1992). In Monroe, the decision of the administrative law judge was affirmed by both the Full Commission and the circuit court. However, the Mississippi Supreme Court found that the administrative law judge erred as a matter of law when he specifically stated that the hearing was limited to whether the claimant was suffering from improper medical treatment or lack of medical treatment, and then proceeded to make findings on maximum medical recovery and apportionment. Monroe, 593 So.2d at 30. The court found that the administrative law judge abused his discretion in misleading Monroe into thinking further hearings would follow when, in fact, that hearing was the final one. Id.

¶ 17. The case sub judice is distinguishable from Monroe. Here, contrary to what Twine asserts, there is no evidence that the judge gave Twine any indication that the hearing would be anything other than on the merits. This issue has no merit.

IV. DID THE COURT ERR IN DENYING THE APPELLANT’S MOTION FOR ADDITIONAL EVIDENCE?

¶ 18. With her final issue, Twine argues the Commission erroneously denied her December 1998 motion for additional evidence. Specifically, Twine asked the court to admit Twine’s own affidavit plus certain reports from Dr. Weaver, Dr. Jackson, and Dr. Dix which concerned her pain, treatment, and prospects for continued employment in the future.

¶ 19. Twine cites to Walker Mfg. Co., v. Cantrell, 577 So.2d 1243 (Miss.1991), in reminding us of the distinction of the roles of the administrative law judge and of the Commission. See Walker, 577 So.2d at 1246. She also cites to Wells-Lamont Corp. v. Watkins, 247 Miss. 379, 151 So.2d 600 (1963), in reminding us that the Commission has the discretion to allow additional evidence if such evidence was inadvertently omitted or if the case has yet to be fully developed. See Wells-Lamont, 247 Miss. at 388, 151 So.2d at 604. Twine deducts that, in her case, it is clear that “essential testimony and evidence inadvertently left out should be allowed.”

¶ 20. We find in the present case that two and a half years had passed from the date of injury to the date Twine filed her amended petition to controvert, and Twine had ample opportunity prior to the July 1997 hearing to gather and then to present doctors’ reports and other evidence relevant to her case. We also note that her motion, as written, did not meet the requirements of the applicable rules of the Workers’ Compensation Commission. Procedural Rule 9 states in part:

A motion for the introduction of additional evidence must be made in writing at least five (5) days prior to the date of the hearing of the review by the Full Commission. Such shall state with particularity the nature of such evidence, the necessity therefor, and the reason it was not introduced at the evidentiary hearing.

Rules of Miss. Workers’ Comp. Comm’n, Procedural Rule 9. Twine’s motion, filed a year and a half after the hearing, was not timely and merely listed the documents without going into detail the need for the documents and reason why they were not introduced previously. We find the judge did not abuse his discretion in denying this motion.

¶ 21. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, IRVING, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.

      . "The injured employee shall have the right to accept the services furnished by the employer or, in his discretion, to select one (1) competent physician of his choosing and such other specialists to whom he is referred by his chosen physician to administer medical treatment. Referrals by the chosen physician shall be limited to one (1) physician within a specialty or subspecialty area.” Miss.Code Ann. § 71-3-15 (Rev.2000).


author: LYONS, Justice. LYONS, Justice.

text:
    The WATER WORKS AND SEWER BOARD OF the CITY OF SELMA et al. v. Samuel L. RANDOLPH.
    1002182.
    Supreme Court of Alabama.
    Feb. 1, 2002.
    Opinion Overruling Rehearing April 19, 2002.

      J. Garrison Thompson, Selma; and Philip Henry Pitts and Rickman E. Williams III of Pitts & Pitts, Selma, for appellants.
    Collins Pettaway, Jr., of Chestnut, Sanders, Sanders, Pettaway, Campbell & Al-bright, P.C., Selma, for appellee.
    Robert E. Sasser, Tamara A. Stidham, and Charlanna W. Spencer of Sasser, Lit-tleton & Stidham, P.C., Montgomery, for amicus curiae Alabama Water and Waste-water Institute, in support of the appellant.
   LYONS, Justice.

The Water Works and Sewer Board of the City of Selma (“the Board”); Board members William K. Hicks, J. Marvin Melton, Glen Sexton, and Bennie L. Tucker; and attorneys Phillip Henry Pitts and John Kelly III appeal from a judgment entered against them in an action filed by Board member Samuel L. Randolph. We reverse and render a judgment for them.

The Board was incorporated in 1966 pursuant to what is now codified as § 11-50-310 et seq., Ala.Code 1975. Pursuant to § 11-43-80, Ala.Code 1975, the governing body of a municipal water system may require the mayor of a municipality to act as superintendent of the system and, if it so chooses, the governing body “may, at any time it deems best, dispense with the mayor’s service as superintendent.” § 11-43 — 80(c).

James E. Perkins, Jr., mayor of the City of Selma, was appointed superintendent of the water works and sewer system for the City of Selma (“the system”) at a regular meeting of the Board on October 4, 2000. On Friday, November 17, 2000, Mayor Perkins came to the Board’s office accompanied by two bodyguards and two members of the city council. Perkins informed Hicks, the Board’s chairman, and Melton, the Board’s secretary, that he was taking over the Board, locking the water works building, and changing the security system. The locks and security system were subsequently changed.

Hicks and Melton sought legal advice. Board members Hicks, Melton, Tucker, and Sexton, and two attorneys, Pitts and Kelly, met on Sunday, November 19, 2000. Randolph, the only other Board member,' did not attend the meeting. Hicks contends that he attempted to contact Randolph before the meeting, but that Randolph did not return his calls. Randolph acknowledges that he was aware that the group was meeting, but he contends that he could not get into the building where the meeting was being conducted, although there is no evidence indicating that he was refused admission.

According to the participants in the meeting, no vote was taken at the meeting as to whether to dismiss the mayor as superintendent, nor was there any discussion as to whether to retain the mayor as superintendent. According to Randolph, he went to Tucker’s house later in the evening on November 19. Randolph testified that Tucker told him that there had been a meeting, but that when he asked Tucker what was discussed at the meeting, Tucker said, “I can’t tell you. It’s a secret. .You’ll find out in the morning.” On the following morning, Monday, November 20, 2000, Hicks contacted Board counsel and requested that counsel draft a resolution to be adopted by the Board dismissing the mayor as superintendent of the system. At the regularly scheduled Board meeting on November 20, 2000, copies of the resolution were distributed and, by a vote of 4 to 1, Mayor Perkins was dismissed as superintendent. Randolph cast the lone dissenting vote.

Also on November 20, 2000, Hicks and others filed an action against Mayor Perkins seeking a declaratory judgment as to the authority of the Board to dismiss the mayor as superintendent. Two days later, on November 22, 2000, Randolph filed an action against the Board, the four other members of the Board (Hicks, Melton, Sexton, and Tucker), and attorneys Pitts and Kelly, alleging that the defendants had held a secret meeting of the Board without notice to the public or to him, in violation of § 13A-14-2, known as “the Sunshine Law.” Randolph’s complaint further alleged that Mayor Perkins actually had been terminated at the Sunday night meeting, sought a judgment declaring void the actions of the defendants terminating May- or Perkins as superintendent of the system, and requested an award of attorney fees.

The trial court issued an ex parte temporary restraining order blocking the defendants from enforcing the decision to terminate the mayor as superintendent of the system. Subsequent proceedings in Randolph’s action, during which the restraining order remained in effect, included a challenge by the defendants to the authority of the court to issue the restraining order on the ground that the pending action filed by Hicks and others deprived the trial court of jurisdiction to hear the case and on the ground that the Sunshine Law did not apply to the Board; an amended complaint filed by Randolph seeking a judgment declaring that the action taken by the defendants was a constitutional nullity; an attempt by the trial court to obtain resolution of the dispute through mediation; and, after hearing evidence described by the trial court as “partial testimony,” the entry of a “Final Order” on January 16, 2001. In that order the trial court held that the Board was subject to the Sunshine Law, that the Sunday night meeting violated the Sunshine Law, and that therefore the actions taken at that meeting were void. The court also permanently enjoined the defendants from engaging in future secret or illegal meetings.

The defendants filed posttrial motions that led to the admission of additional evidence by the defendants. On May 11, 2001, the trial court entered a judgment in which it denied the defendants’ motion' for a new trial or to alter, amend, or vacate the “Final Order”; held that the defendants’ jurisdictional arguments were without merit; affirmed its previous finding regarding the applicability of the Sunshine Law; and awarded Randolph attorney fees in the amount of $16,275, plus costs.

The Board and the Board-member defendants (hereinafter collectively referred to as “the Board”) raise several issues on appeal. The Board assei’ts 1) that the trial court lacked jurisdiction to hear Randolph’s action because when that action was filed the prior declaratory-judgment action filed by Hicks and others was pending, 2) that the Sunshine Law does not apply to the Water Works and Sewer Board of the City of Selma, 3) that exceptions to the Sunshine Law dealing with the rendition of legal advice or the discussion of character or good name prevent the Sunshine Law from being applicable to the Sunday night meeting, 4) that the subsequent action of the Board at a public meeting should have been recognized as a basis for discharging the mayor as superintendent of the system, notwithstanding what might have transpired at the Sunday night meeting, and 5) that the award of attorney fees was inappropriate.

The Sunshine Law provides:

“(a) No executive or secret session shall be held by any of the following named boards, commissions or courts of Alabama, namely: Alabama Public Service Commission; school commissions of Alabama; board of adjustment; state or county tax commissions; any county commission, any city commission or municipal council; or any other body, board or commission in the state charged with the duty of disbursing any funds belonging to the state, county or municipality, or board, body or commission to which is delegated any legislative or judicial function; except, that executive or secret sessions may be held by any of the above named boards or commissions when the character or good name of a woman or man is involved.”

(Emphasis added.) Most of the previous cases that this Court has decided involving the Sunshine Law have dealt with entities expressly listed in the Sunshine Law. See, e.g., Slawson v. Alabama Forestry Comm’n, 631 So.2d 953 (Ala.1994) (Alabama Forestry Commission); Dunn v. Alabama State Univ. Bd. of Trustees, 628 So.2d 519 (Ala.1993), overruled on other grounds, Watkins v. Board of Trustees of Alabama State Univ., 703 So.2d 335 (Ala.1997) (state university board of trustees); Gray v. Birmingham Bd. of Educ., 641 So.2d 279 (Ala.Civ.App.1993) (board of education); Kucik v. Opelika City Bd. of Educ., 454 So.2d 967 (Ala.1984) (board of education); Ex parte Alabama Pub. Serv. Comm’n, 376 So.2d 665 (Ala.1979) (Alabama Public Service Commission); and Miglionico v. Birmingham News Co., 378 So.2d 677 (Ala.1979) (a city council).

Cases involving entities not specifically listed in the statute include City of Wetumpka v. Central Elmore Water Authority, 703 So.2d 907 (Ala.1997) (involving a water authority but not reaching the issue of the applicability of the Sunshine Law to the authority); and Advertiser Co. v. Wallis, 493 So.2d 1365 (Ala.1986) (holding that the Department of Mental Health and Mental Retardation and the Alabama Medicaid Agency were not “boards” for purpose of the Sunshine Law). A reading of the statute discloses that neither “public corporation” nor “water board” is expressly listed as a body subject to the Sunshine Law. Whether the Sunshine Law is applicable to water boards incorporated as public corporations pursuant to § 11-50-310 et seq. appears to be a question of first impression.

In interpreting a statute, this Court must ascertain and effectuate the intent of the Legislature as expressed by the statute. Employees’ Retirement Sys. of Alabama v. Head, 369 So.2d 1227 (Ala.1979). When determining legislative intent from the language used in a statute, a court may explain the language, but it may not detract from or add to the statute. Siegelman v. Chase Manhattan Bank (USA), Nat’l Ass’n, 575 So.2d 1041, 1045 (Ala.1991). When the language is clear, there is no room for judicial construction. Employees’ Retirement System, 369 So.2d at 1228.

Because neither a public corporation nor a water board is expressly enumerated as a body subject to the prohibitions of the Sunshine Law, we must interpret the meaning of the catchall phrases, “any other body, board or commission in the state charged with the duty of disbursing any funds belonging to the state, county or municipality,” or “board, body or commission to which is delegated any legislative or judicial function.” § 13A-14-2(a).

Randolph relies upon Hicks’s testimony, in which he described the Board as a utility receiving and disbursing “public grants”; providing water, sewer, and garbage services and collecting fees from the public for those services; and receiving and disbursing public funds. The burden rested upon Randolph to prove the basic fact of his case, namely, that the conduct complained of took place under circumstances that brought him within the protective purview of the statute under which he claims relief. Daughtry v. Western Ry. of Alabama, 341 So.2d 702, 706 (Ala.1977). In order to establish the applicability of the Sunshine Law, Randolph had the burden of proving that public funds or grants received or disbursed by the Board were “funds belonging to the state, county or municipality” (§ 13A — 14—2(a)); this he failed to do. Section 11-50-314, the statutory basis for the creation of the Board, contemplates that the monies used by such a public corporation in the operation of its business shall come from the revenues generated by the operations of its system and through the borrowing of money. Such a public corporation is authorized to issue bonds to generate revenue, and the contemplated use of such funds is for the operation of the system. § 11 — 50—314(a)(5) and §§ 11-50-316 through -318. Nowhere in that statute is the public corporation authorized to disburse state, county, or municipal funds. The fact that the customers of the system operated by the public corporation also are residents of the municipality does not convert the revenue received from those customers into municipal funds.

The applicability of the remaining catchall phrase, “board, body or commission to which is delegated any legislative or judicial function” (§ 13A-14-2(a)), is equally unsupported by this record. Randolph does not contend that this phrase is applicable. No basis exists in § 11-50-310 et seq., the statutory basis for the existence of the Board, upon which to conclude that the Board exercises delegated legislative or judicial functions.

We conclude that the Sunshine Law does not apply to a public corporation organized under § 11-50-310 et seq., such as the Water Works and Sewer Board of the City of Selma. We therefore pretermit consideration of all other issues.

We reverse the judgment of the trial court, including the award of attorney fees, and render a judgment in favor of the Board.

REVERSED AND JUDGMENT RENDERED.

MOORE, C.J., and HOUSTON, JOHNSTONE, and WOODALL, JJ„ concur.

On Application for Rehearing

LYONS, Justice.

On rehearing, Randolph challenges our statement in our opinion on original submission that he did not contend on appeal that the second catchall phrase in § 13A-14-2(a), Ala.Code 1975' — “board, body or commission to which is delegated any legislative or judicial function” — is applicable. Although he quoted from the statute in his initial brief and emphasized certain' words in the quoted portion by using bold type, he made no argument concerning the applicability of that portion of the statute to the facts of this case. Nor do we find in that brief any citations to authority as to that issue. Rule 28(a)(5), Ala. R.App. P, when read in conjunction with Rule 28(b), requires the ap-pellee’s brief to contain contentions with respect to the issues presented and the reasons for those contentions with citations to authorities, statutes, and parts of the record. Merely quoting a statute and emphasizing certain parts with bold type does not constitute a properly stated and supported contention.

Randolph, for the first time in this proceeding, argues in his rehearing application that the second catchall phrase is applicable to the Board. He cites two cases he says support his argument. The well-settled rule of this Court precludes consideration of arguments made for the first time on rehearing. See Ex parte Lovejoy, 790 So.2d 933, 938-39 (Ala.2000), where this Court stated:

“Vesta raises for the first time m its application for rehearing the argument that it is a third-party beneficiary of the retail installment contract between Lovejoy and Allen Motor Company. “We can not sanction the practice of bringing up new questions for the first time, in an ex parte application for rehearing.’ Robinson v. Allison, 97 Ala. 596, 604, 12 So. 604 (1893) (on application for rehearing). “We cannot sanction the practice of bringing up new questions for the first time in application for rehearing.’ Kirkland v. Kirkland, 281 Ala. 42, 49, 198 So.2d 771, 777 (1967) (on application for rehearing). ‘We cannot sanction the practice of bringing up new questions for the first time in applications for rehearing.’ Cole v. Cole Tomato Sales, Inc., 293 Ala. 731, 735, 310 So.2d 210, 212 (1975) (on application for rehearing). ‘New supporting arguments presented for the first time on rehearing generally will not be considered.’ Stover v. Alabama Farm Bureau Ins. Co., 467 So.2d 251, 253 (Ala.1985) (on application for rehearing). ‘[T]his argument was raised for the first time on application for rehearing, and therefore will not be considered.’ Schulte v. Smith, 708 So.2d 138, 141 n. 2 (Ala.1997) (on application for rehearing).”

We are constrained to deny the application. The question of the effect of the portion of the statute on which Randolph relies for the first time on application for rehearing on entities such as The Water Works and Sewer Board of the City of Selma will have to await another day.

APPLICATION OVERRULED.

MOORE, C.J., and HOUSTON, JOHNSTONE, and WOODALL, JJ., concur.