author: MAXWELL, J., IRVING, P.J.,

text:
    Freda HOWELL d/b/a Lickity Splitz, Appellant v. BOARD OF SUPERVISORS OF JEFFERSON DAVIS COUNTY, Mississippi, Appellee.
    No. 2010-CA-00717-COA.
    Court of Appeals of Mississippi.
    Aug. 16, 2011.

      Victor A. Dubose, Orvis A. Shiyou Jr., Hattiesburg, attorneys for appellant.
    Robert E. Sanders, Jackson, attorney for appellee.
   MAXWELL, J.,

for the Court:

¶ 1. In 2009, the Jefferson Davis County (County) Board of Supervisors (Board) selected Freda Howell, doing business as Lickity Splitz, as the “primary” bidder on a contract to provide catered meals to the County’s prisoners. But after a dissatis-factory visit by the sheriff and several Board members to Lickity Splitz’s facility, Howell received a letter by the Board’s attorney notifying Howell that the County would be using the services of another bidder. At its next meeting, the Board voted to use the “alternate” bidder. The Board did not notify Howell of this meeting or provide her an opportunity to address the Board’s concerns.

¶ 2. As the primary bidder, Howell had a vested property interest entitled to due-process protection. We find the Board— and the circuit court in affirming the Board’s decision to use the alternate bidder — erroneously relied on provisions in Mississippi Code Annotated section 31-7-13 (Rev.2010) to justify depriving Howell of this interest without notice and a hearing. Therefore, we reverse the judgment of the circuit court and remand this case for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 3. Mississippi statute allows boards of supervisors to choose one of three methods for feeding county prisoners: (1) contract with a local caterer through the bid process in Mississippi Code Annotated section 31-7-13, (2) direct the sheriff to purchase all necessary food and supplies, or (3) contract with the local public hospital. Miss. Code Ann. § 19-25-73(1) (Rev.2003). The Board chose the first method — contracting with a caterer.

¶ 4. In December 2008, the Board requested bids to provide prisoner meals during 2009. Howell timely submitted a bid, as did Bassfield Texaco and two other bidders. At its January 5, 2009 meeting, the Board chose Howell as the “primary” bid and Bassfield Texaco as the “alternate” bid.

¶ 5. After the January 5 meeting, the sheriff and several Board members visited Lickity Splitz. On the location were two separate buildings the sheriff described as “snowball stands.” Inside the buildings, they discovered there was no food, cooking utensils, pots, pans, or commercial cooking equipment. Instead, it appeared Howell had transported cooked food from an undisclosed location using her personal vehicle, which also contained her personal effects. On January 9, 2009, the Board’s attorney mailed Howell a letter notifying her that the Board “had decided” to use the alternate bidder because of the unsatisfactory inspection. The Board met on January 20, 2009. The sheriff gave an oral report that he did not believe Lickity Splitz’s food-preparation procedures were sanitary or that its facility met the requirements for a commercial food establishment. The Board members who participated in the site inspection stated they did not believe that Lickity Splitz had the ability to fulfill the contract for prisoner meals. They also maintained they would be fearful of feeding prisoners any food that had passed through Lickity Splitz’s facilities. Based on these reports, the Board decided to use Bassfield Texaco’s services instead of Howell’s.

¶ 6. Also on January 20, 2009, Howell filed a notice of appeal in the circuit court. The notice of appeal stated Howell was appealing the Board’s decision to use the alternate bidder, of which she had received notification on January 12, 2009.

¶ 7. The circuit court found the Board’s January 5 and 20, 2009 minutes were not sufficient. On December 29, 2009, it issued a remand order, instructing the Board to amend its January 2009 minutes. Specifically, the circuit court ordered the Board to amend (1) its January 5 minutes to include the dollar amount of Lickity Splitz’s and Bassfield Texaco’s bids and (2) its January 20 minutes to include either a report or affidavits by the sheriff and Board members who inspected Lickity Splitz’s facility. On January 19, 2010, the Board met and amended its January 5 and 20, 2009 minutes to include the information requested in the circuit court’s order.

¶ 8. On February 8, 2010, Howell filed a second notice of appeal. The notice stated Howell was appealing both (1) the Board’s decision to rescind its award of the bid to Howell and (2) the Board’s amendments of its January 5 and January 20, 2009 minutes. Howell acknowledged her notice was more than ten days after the January 19, 2010 meeting but claimed her appeal was timely because “it is the Appellant’s information that this decision [to amend the minutes] has not yet been entered on a book and page of the Board’s minutes.”

¶ 9. The circuit court accepted Howell’s second notice of appeal as timely. Due to “logistical difficulty” in assigning the January 19, 2010 minutes a book and page number, the circuit court stated it would “ignore” the “procedural issue” of Howell’s failure to comply with the ten-day requirement under Mississippi Code Annotated section 11-51-75 (Rev.2002).

¶ 10. On April 5, 2010, the circuit court issued a final ruling. It affirmed both (1) the Board’s January 20, 2009 decision to the use the alternate bidder under Mississippi Code Annotated section 31 — 7—13(f) and (2) its January 19, 2010 amendments of the January 2010 minutes.

¶ 11. Howell further timely appealed to this court.

DISCUSSION

¶ 12. Howell argues the Board’s actions were illegal for several reasons. Although we address her arguments below, our two main concerns are (1) the timing of the two notices of appeal and (2) the Board’s failure to notify Howell of the January 20, 2009 meeting where it decided to use the alternate bidder.

I. The Notices of Appeal

¶ 13. Mississippi Code Annotated section 11-51-75 provides, in part, that: “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[.]” Non-compliance with section 11-51-75 is not a “procedural issue” that may be ignored. Instead, compliance is “mandatory and jurisdictional.” E.g., Newell v. Jones County, 731 So.2d 580, 582 (¶ 10) (Miss.1999).

A. The First Notice

¶ 14. Howell filed her first notice of appeal on January 20, 2009, the same day the Board decided to use Bassfield Texaco’s services instead of Howell’s. But her notice stated she “was notified of such decision by letter of the Board’s Attorney dated January 9, 2009, which was received by [her] on January 12, 2009.”

¶ 15. A board of supervisors “can act only as a body, and its act must be evidenced by an entry on its minutes.” Thompson v. Jones County Cmty. Hosp., 352 So.2d 795, 796 (Miss.1977); Lee County v. James, 178 Miss. 554, 559, 174 So. 76, 77 (1937) (holding “boards of supervisors can bind counties, or districts therein, only when acting within their authority and in the mode and manner by which this authority is to be exercised under the statutes”). Because, under Thompson, the January 9 letter was neither a Board decision nor evidence of a Board decision, Howell could not appeal from the letter under section 11-51-75. Sanford v. Bd. of Supervisors, Covington County, 421 So.2d 488, 490 (Miss.1982) (“[U]ntil such time as the Board has issued a final order ... there can be no appealable final judgment.”). Instead, the first appealable act of the Board was made during its January 20, 2009 meeting, as evidenced by the minutes from that meeting. Thompson, 352 So.2d at 796.

¶ 16. If all the Board had done was send the letter without taking any real action — or had made a different decision at its January 20, 2009 meeting than the letter indicated it would — Howell’s notice would not be compliant with section 11 — 51— 75. But we cannot overlook the fact the Board took the very action indicated by the letter. We find this particular circumstance analogous to a trial court announcing how it intends to rule but not entering a final judgment until after a party files a notice of appeal. Our appellate rules provide: “A notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry and on the day of the entry.” M.R.A.P. 4(b). Therefore, despite indications Howell filed her notice of appeal before the Board acted, we find the trial court properly viewed her notice of appeal as being filed after, and in response, the Board’s January 20, 2009 action. See City of Biloxi v. Hilbert, 597 So.2d 1276, 1279 (Miss.1992) (applying the Mississippi Rules of Appellate Procedure to determine the scope of the circuit court’s appellate jurisdiction under section 11-51-75).

B. The Second Notice of Appeal

¶ 17. The circuit court ignored the fact Howell filed her second notice twenty days after the Board’s January 19, 2010 meeting because the Board’s minutes had not yet been assigned a book and page number. But in previous cases this court has made clear this circumstance in not relevant to whether Howell’s second notice was timely. See Rankin Group, Inc. v. City of Richland, 8 So.3d 259, 260-61 (¶ ¶ 6-12) (Miss.Ct.App.2009) (expressly rejecting the argument that the ten-day period does not begin to run until the minutes from a board meeting are signed); Tilghmcm v. City of Louisville, 874 So.2d 1025, 1026 (¶ ¶ 4-5) (Miss.Ct.App.2004) (similarly rejecting the argument the ten-day period did not begin to run until the party adversely affected by the City’s decision received a written copy of Board’s findings). The ten-day period for appeal begins to run when a board adjourns the meeting during which the decision being appealed is made. Rankin Group, 8 So.3d at 261(12); Tilghman, 874 So.2d at 1026 (¶ ¶ 4-5).

¶ 18. Howell did not file her second notice of appeal within ten days of the Board’s January 19, 2010 meeting in which the Board amended its minutes. But Howell’s appeal does not depend on this untimely second notice because the circuit court retained jurisdiction pending compliance with its remand order. “A circuit court, sitting as an appellate court, enjoys the same authority [as the Mississippi Supreme Court or Court of Appeals] to remand a case to an inferior body for record supplementation or a factual determination while at the same time retaining jurisdiction over both the parties as well as the subject matter.” Hilbert, 597 So.2d at 1279 (referring to the authority granted in M.R.A.P. 14(b)). As in Hilbert, the circuit court’s December 2009 remand order was not a final judgment to affirm or reverse the Board’s decision. Id. Instead, it ordered the Board to include further findings in its minutes because the record before the circuit court was inadequate. Therefore, the circuit court retained jurisdiction through the entrance of its final judgment in April 2010. Id.

¶ 19. Thus, we are satisfied the circuit court had appellate jurisdiction over the Board’s January 20, 2009 and January 19, 2010 actions.

II. The Board’s Decision to Use the Alternate Bidder

A. Standard of Review

¶ 20. Appellate review of a county board’s decision is limited. Prefemd Transp. Co., LLC v. Claiborne County Bd. of Supervisors, 32 So.3d 549, 551 (¶ 5) (Miss.Ct.App.2010) (citing Billy E. Burnett, Inc. v. Pontotoc County Bd. of Supervisors, 940 So.2d 241, 242-43 (¶ 5) (Miss. Ct.App.2006)). A decision or order of a county board of supervisors will be upheld unless the order was not supported by substantial evidence, was arbitrary or capricious, was beyond the board’s scope or power, or was in violation of the aggrieved party’s constitutional or statutory rights. Robinson v. Lincoln County Bd. of Supervisors, 973 So.2d 288, 289-90 (¶ 6) (Miss.Ct.App.2008) (citing Ladner v. Hamson County Bd. of Supervisors, 793 So.2d 637, 638 (¶ 6) (Miss.2001)).

B. No Illegal Action Prior to January 20, 2009

¶ 21. Howell strongly insists the Board’s decision to use the alternate bidder is void because it was illegally made outside a properly convened meeting. She claims the Board acted sometime between its January 5, 2009 decision awarding her the contract and the January 9, 2009 letter. She relies on the letter’s language that the Board “has decided” to use the alternate bidder.

¶ 22. We find the letter is not evidence of an illegal action by the Board. Thompson, 352 So.2d at 796 (holding a board of supervisors “can only act as a body, and its act must be evidenced by an entry on its minutes”). “[T]he decisions to be executed or the contracts to be awarded by the board must be determined or decided upon only in or at a lawfully convened session, and the proceedings must be entered upon the minutes, of the board or commission.” James, 178 Miss, at 558, 174 So. at 77. Therefore, the Board could not make a decision regarding Howell’s contract outside of a properly convened meeting. We would view Howell’s argument differently had the Board merely requested its attorney send a letter before it began using Bassfield Texaco’s services. But the Board followed through and actually “acted” in a properly convened meeting on January 20, 2009. And it is this action, not some alleged void action, we now consider.

C. No Improper Amendment of the Board’s Minutes

¶ 23. We also find the Board properly amended its January 5 and 20, 2009 minutes, in compliance with the circuit court’s order.

¶ 24. In Huey Stockstill, Inc. v. Hales, 730 So.2d 539, 541 (¶7) (Miss.1999), a board of supervisors rejected the lowest bidder due to ethical considerations. Two months later, it amended its minutes to provide a more detailed explanation of what happened at the meeting where the lowest bidder was rejected. Id. at 543 (¶ 19). The Mississippi Supreme Court affirmed, holding “that a governing body may, at a subsequent meeting, amend the minutes of the prior meeting to reflect what actually occurred on the first occasion.” Id. at 544 (¶ 20); see also Sunland Publ’g Co. v. City of Jackson, 710 So.2d 879, 881 (¶ 6) (Miss.1998) (recognizing that a trial court sitting in an appellate capacity may remand a decision of a governmental body to that body for more detailed findings where the record does not adequately support the governmental decision).

¶ 25. As in Sunland, the circuit court remanded the issue of the Board’s January 5 and 20, 2009 decisions to incorporate more detailed findings into the record. And, as in Huey, the Board complied by providing a more accurate and detailed explanation of its decisions without inserting new reasons why it selected and then rejected Howell. We find this to be a proper exercise of the Board’s authority. Huey, 730 So.2d at 543-4 (¶ ¶ 20-21).

D. No Notice and Opportunity to be Heard

¶ 26. Although we do not find the Board acted illegally prior to its January 20, 2009 meeting or improperly amended the minutes from that meeting, we do find the Board should have provided Howell notice of the meeting and an opportunity to address the sheriffs and Board’s concerns over Lickity Splitz’s services.

¶ 27. In designating Howell as the primary bidder, the Board conferred on Howell a vested property interest entitled to the constitutional protection of due process. See Nelson v. City of Horn Lake, 968 So.2d 938, 944 (¶ 22) (Miss.2007) (rely ing on Shepard v. City of Batesville, 2007 WL 108288, at *8 (N.D.Miss. January 8, 2007), which found the actual award of a contract under section 31-7-13 “gave the plaintiff a protected property interest”).

¶ 28. This is not a case where Howell, indisputably the lower bidder, was not selected as the “lowest and best bidder” under Mississippi Code Annotated section 31-7-13(d)(i). Cf. Nelson, 968 So.2d at 944 (¶ 23); see also Billy E. Burnett, Inc., 940 So.2d at 245 (¶ 13) (finding the board did not act arbitrarily and capriciously when it rejected lowest bidder). If it were, then the circuit court would have been correct that all Howell was entitled to was section 31 — 7—13(d)(i)’s requirement that the Board’s minutes provide “detailed calculations and narrative summary showing that the accepted bid was determined to be the lowest and best bid[.]” Nelson, 968 So.2d at 945 (¶ 27) (quoting Miss.Code Ann. § 31-7-13(d)(i)). Instead, because the Board actually awarded Howell the contract, she was entitled to notice and a hearing before her interest in the prisoner-meals contract was deprived. Shepard, 2007 WL 108288, at *9; cf. Harris v. Miss. Valley State Univ., 873 So.2d 970, 985 (¶ 40) (Miss.2004) (holding interest in public employment contract entitled terminated state employee to notice and adequate opportunity to be heard at some kind of hearing); Univ. of Miss. Med. Ctr. v. Hughes, 765 So.2d 528, 540 (¶ 41) (Miss. 2000) (citing Goss v. Lopez, 419 U.S. 565, 581, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975)) (holding that the “disciplinary dismissal [of a public-university student] requires that the student be given oral or written notice of the charges and evidence against him and the opportunity to present his side of the story”).

¶ 29. This is also not a case where section 13 — 7—13(f) permitted the Board to use the alternate bidder merely upon showing Howell could not provide the catered meals. Section 13-7-13(f) states:

When necessary to ensure ready availability of commodities for public works and the timely completion of public projects, no more than two (2) alternate bids may be accepted by a governing authority for commodities. No purchases may be made through use of such alternate bids procedure unless the lowest and best bidder cannot deliver the commodities contained in his bid. In that event, purchases of such commodities may be made from one (1) of the bidders whose bid was accepted as an alternate.

Miss.Code Ann. § 31—7—13(f) (emphasis added). Based on a plain reading of the statute, this alternative-bid provision does not apply to all commodities but only “commodities for public works.” “Public works” is defined as “[s]tructures (such as roads or dams) built by the government for public use and paid for by public funds.” Black’s Law Dictionary 1639 (8th ed. 2004). Because Howell was not providing “commodities for a public works,” we find this was not the type of contract subject to the alternative-bid provision. Cf. Shepard, 2007 WL 108288, at *1, 3-4 (applying section 31 — 7—13(f) to a contract with a construction company for the supply of commodities used in the construction of public works).

¶ 30. Our holding is limited to finding the circuit erred in applying 31 — 7—13(f) to affirm the Board’s termination of Howell’s contract without notice and a hearing. We pass no judgment on the substance of the Board’s decision to stop using Howell’s contracted services, acknowledging the Board may have had other legal reasons for not buying food from Howell.

¶ 31. Because the Board violated Howell’s constitutional right to due process, we must reverse the circuit court’s judgment, which affirmed the Board’s decision to end the contract with Howell. Robinson, 973 So.2d at 289-90 (¶ 6). We remand this matter to the circuit court to provide Howell with proceedings that afford her procedural due process — namely, the opportunity to defend against the Board’s claims that it justifiably stopped using her meal service — as well as comply with section 31-7-13.

¶ 32. Although Howell asked this court to reverse and render — and award her contract damages and consequential costs and fees — we find any award of damages inappropriate at this stage. Based on the determination by the sheriff and Board members who visited Lickity Splitz’s facilities that Howell’s business was unsanitary and unsuitable for commercial food preparation, we cannot say, had the Board provided Howell with a hearing, it would have been unjustified in ending the contract. Therefore, any award for contract damages would be premature. And to recover more than nominal damages for a procedural due-process violation, Howell “must show that [her] injuries resulted from the denial of due process itself’ (i.e., from not being allowed to appear before the Board) and not merely from the underlying decision of the Board. Hill v. City of Pontotoc, Miss., 993 F.2d 422, 425 (5th Cir.1993) (citing Carey v. Piphus, 435 U.S. 247, 263, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978)). On remand, Howell may present evidence of both her alleged contract damages and any actual damages resulting from the procedural due-process violation.

¶ 33. THE JUDGMENT OF THE JEFFERSON DAVIS COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., MYERS, BARNES AND ISHEE, JJ., CONCUR. RUSSELL, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRIFFIS, P.J., AND ROBERTS, J., AND JOINED IN PART BY RUSSELL, J. CARLTON, J., NOT PARTICIPATING.

IRVING, P.J.,

dissenting:

¶ 34. The majority finds that the Board of Supervisors of Jefferson Davis County (Board) violated Freda Howell’s due process rights when it unilaterally, without notice to her, abrogated her contract to provide meals to the prisoners of the county and awarded the contract to an alternate bidder. I agree. The majority then reverses the judgment of the circuit court, which had affirmed the Board’s actions, and remands the case to the circuit court “to provide Howell with proceedings that afford her procedural due process — namely, the opportunity to defend against the Board’s claims that it justifiably stopped using her meal service — as well as comply with section 31-7-13.” Majority opinion at (¶ 31). I disagree with the remedy mandated by the majority. Therefore, I dissent. I believe that the judgment of the circuit court should be reversed and rendered and the case remanded for a determination of damages and costs pursuant to the law of contracts and Mississippi Code Annotated section 11-51-75 (Rev.2002).

¶35. On January 5, 2009, the Board accepted a bid from Howell, doing business as Lickity Splitz, to be the primary provider of catered meals to county prisoners at the rate of $11 per prisoner, per day. Four days later, the Board’s attorney sent a letter to Howell advising her that the Board had decided to use the services of Bassfield Texaco, which had also submitted a bid and had been accepted by the Board as the alternate provider of meals for the county’s prisoners. Bassfield Texaco’s bid was for $13.10 per prisoner, per day. Apparently, the Board had not, in an official meeting, authorized the Board’s attorney to send the letter, and the record does not provide any explanation as to the basis for the attorney’s authority to send it. Nevertheless, in an official meeting of the Board on January 20, 2009, the Board ratified the actions of its attorney in sending the letter. Also, on the same date, the Board entered an order, finding as follows:

Whereas, based on the negative report received from Sheriff McCullum and the representatives of the Board regarding the conditions of said facilities, the Board has found that Lickity Splitz cannot deliver the commodities contained in their bid.
IT IS THEREFORE HEREBY ORDERED AND RATIFIED that the alternate bidder, Bassfield Texaco[,] shall provide prisoner meals for the County for the year 2009 or until further order of the Board.

¶ 36. In the meantime, unaware of the Board’s action on January 20, Howell, acting pursuant to the letter that she had received from the Board’s attorney, appealed to the circuit court, which did not render a decision until December 29, 2009. In its December order, the circuit court remanded the matter to the Board with instructions to the Board to amend, nunc pro tunc, its January 20, 2009 minutes to reflect the amounts of Howell’s and Bass-field Texaco’s bids and the report of Sheriff McCullum and the representatives of the Board who had inspected Howell’s facilities.

¶ 37. On January 19, 2010, the Board complied with the order of the circuit court by issuing two orders nunc pro tunc: one amending its January 5, 2009 minutes to reflect the bid amounts of Howell and Bassfield Texaco and one amending its January 20, 2009 minutes to reflect an affidavit from the Board’s president detailing the findings of the group that visited Howell’s business after accepting her bid on January 5, 2009.

¶ 38. On April 2, 2010, the circuit court found that the Board’s decision — that Howell could not deliver the commodities contained in her bid — was fairly debatable and that the circuit court could not substitute its judgment for that of the Board. Therefore, the circuit court, finding that the Board’s decision was not arbitrary and capricious, affirmed the Board’s decision to use the alternate bidder, Bassfield Texaco, to provide meals to the prisoners of Jefferson Davis County. From a review of the circuit court’s December 29 order remanding the matter to the Board, it is clear that undergirding the court’s decision to affirm the actions of the Board is the court’s belief that the Board’s action is justified under Mississippi Code Annotated section 31 — 7—13(f) (Rev.2010), which states:

When necessary to ensure ready availability of commodities for public works and the timely completion of public projects, no more than two (2) alternate bids may be accepted by a governing authority for commodities. No purchases may be made through [the] use of such alternate[-]bids procedure unless the lowest and best bidder cannot deliver the commodities contained in his bid. In that event, purchases of such commodities may be made from one (1) of the bidders whose bid was accepted as an alternate.

¶ 39. I agree with the majority that the circuit court erred in relying upon section 31 — 7—13(f) as justification for the Board’s unilateral abandonment of its contract with Howell after it had accepted her bid. Providing meals to prisoners does not involve “commodities for public works.” Despite holding that the circuit court erred in relying upon section 31 — 7—13(f) to affirm the Board’s actions, the majority mysteriously states, without citation of authority: “[W]e cannot say, had the Board provided Howell with a hearing, it would have been unjustified in ending the contract. Therefore, any award for contract damages would be premature.” Majority opinion at (¶ 32).

¶ 40. It should be noted that there is no evidence in the record that Howell breached her contract to provide the meals. Rather, the evidence is that she was never given a chance to provide the meals. I know of no authority that would allow the Board, as it did here, to change its mind and unilaterally abandon its obligation to honor the resulting contract with Howell when it accepted her bid. She was entitled not to a hearing to prove that she could perform the contract, but to the opportunity to perform. Had she been unable to perform, then she would have been in breach of contract, and in that event, the Board would have been justified in obtaining performance from another, with Howell being responsible for any damages the Board may have suffered because of her breach. Therefore, I agree with Howell that she is entitled to damages occasioned by the Board’s breach of their contract.

¶ 41. Pursuant to section 11-51-75, the circuit court, in its initial order, should have ordered the Board to honor its contractual obligations with Howell rather than remand the case to the Board for amendment of the Board’s minutes. Since specific performance is not now possible, Howell is entitled to an award of compensatory damages under the law of contracts. City of Durant v. Laws Constr. Co., 721 So.2d 598, 606 (¶ 34) (Miss.1998). I would reverse and render the judgment of the circuit court and remand this case to the circuit court for a determination of damages and costs in accordance with the requirements of section 11-51-75 and City of Durant. For the reasons presented, I dissent.

GRIFFIS, P.J., AND ROBERTS, J., JOIN THIS OPINION. RUSSELL, J., JOINS THIS OPINION IN PART.

      . We also reject Howell’s argument the sheriff and members of the Board had no right to perform a site visit of Lickity Splitz's facility. As the jailer of the County, the sheriff has the duty to see that his prisoners are properly fed. Miss.Code Ann. § 19-25-71(1) (Rev.2003). See also Miss. Att’y Gen. Op. No. 93-0166, 1993 WL 669226, Dyson (March 17, 1993) ("It is the responsibility of the sheriff to provide wholesome and sufficient food and drink for prisoners that are in his custody.”). And section 19-25-73(1) authorizes the Board’s involvement in feeding the prisoners. Miss. Code Ann. § 19-25-73(1). Therefore, the inspection was a proper action taken by the sheriff and Board members to carry out this duty.

      . At some point following the January 5 meeting, Sheriff Henry McCullum and two members of the Board inspected Howell’s business and determined that it was not suitable for the preparation of the meals. Apparently, it was following this inspection when the Board unofficially decided to use the alternate bidder, thereby prompting the letter to Howell. However, the advertisement for bids issued by the Board did not make acceptance of the bids contingent upon an inspection of the premises of the successful bidder.

      . The record reflects that at the time of Howell’s bid, she was in her second, non-consecutive year of providing meals to the prisoners in Covington County, Mississippi, pursuant to a contract with that county. The record also reflects that she had a current food permit from the Mississippi State Department of Health to operate a facility at 102 Covington Plaza, Collins, Mississippi 39428. I should also note that the advertisement for bids issued by the Board contained no provision as to where the meals were to be prepared.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Akbar F. BRINSMADE, Appellant v. CITY OF BILOXI, Mississippi, Appellee.
    No. 2009-CA-01906-COA.
    Court of Appeals of Mississippi.
    Aug. 30, 2011.

      Malcolm F. Jones, for appellant.
    Les W. Smith, Lauren Reeder McCrory, Biloxi, for appellee.
    Before LEE, C.J., Ishee and Roberts, JJ.
   ISHEE, J.,

for the Court:

¶ 1. The City of Biloxi (the City) voted to vacate an unimproved easement in the Edgewater Cove Subdivision (Edgewater Cove) in Biloxi, Mississippi. Akbar Brins-made, a resident of an adjoining subdivision, filed suit against the City with a bill of exceptions in the Harrison County Circuit Court. He claimed that vacating the easement was against public safety, and the City did not follow pertinent statutes and local ordinances required to vacate the easement properly.

¶ 2. The circuit court affirmed the City’s decision to vacate the easement, and Brinsmade now appeals. We have consolidated Brinsmade’s arguments for clarity as follows: (1) the circuit court erred by affirming the City’s decision to vacate the easement in violation of applicable statutes; (2) the circuit court and the City failed to consider public-safety concerns; (3) the circuit court failed to take judicial notice of a declaratory judgment made in the chancery court; and (4) the circuit court failed to take judicial notice of a municipal ordinance. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 3. This case involves a dispute over a public easement in a private neighborhood in Biloxi, Mississippi. The easement was originally created to provide a former landowner, Leonard Collins, with an exit to gain emergency access to and from his home. Collins eventually sold his property to the Edgewater Cove developers.

¶ 4. Edgewater Cove, a subdivision near the Big Lake in Biloxi, was platted in 1978 by its developer and approved by the City. The subdivision is basically one long street, Cove Drive, running north to south with a single entrance and exit on the western side, in the middle of the subdivision, which leads to Runnymeade Drive (formerly East DeBuys Road). Cove Drive is the only street in the neighborhood and has no cross streets. The northern and southern portions of Cove Drive end in culs-de-sac.

¶ 5. The easement runs approximately one hundred and twenty-three feet (123’) in overall length, and fifty feet (50’) in overall width, and rests between lots 8 and 9 in the subdivision, on the northwestern side of Cove Drive. The easement has never been developed, paved, or improved; and no utilities have been installed on the land.

¶ 6. Brinsmade lives in Channel Mark, an adjoining subdivision. Channel Mark lies to the west of Edgewater Cove, and it also has a single entrance on the southern end of the subdivision, which leads to Run-nymeade Drive. Channel Mark Drive is the main thoroughfare in Channel Mark, and like Cove Drive in Edgewater Cove, the road ends in a cul-de-sac on its northern end. There are two streets that branch off Channel Mark Drive into their own culs-de-sac, but the only way in and out of the subdivision is through the entrance to Channel Mark Drive, from Run-nymeade Road. Brinsmade lives on lot 9 in Channel Mark, which is on the northeastern side of the subdivision.

¶ 7. At the boundary between the Edge-water Cove and Channel Mark subdivisions, a public easement in Edgewater Cove abuts a paved roadway in Channel Mark. The driveways of lots 7 and 8 in Channel Mark enter this roadway. The roadway that runs into the boundary of Edgewater Cove is Channel Way. Only lots 7 and 8 of Channel Mark border Channel Way. Channel Way meets Channel Mark Drive, but does not cross it, making Channel Way only the length of one lot. If paved, the easement in Edgewater Cove would connect the two subdivisions. Brinsmade’s property does not touch the easement or Channel Way; it lies one lot north of any adjoining property to the easement.

¶ 8. On June 20, 2008, the City of Biloxi Planning Commission (the Commission) filed a request to vacate the public easement in Edgewater Cove. After a public hearing on July 17, 2008, the Commission voted to recommend approval of the vacation of the easement, finding that the unimproved easement was not necessary to provide for the needs of the City at that time or in the foreseeable future. During the hearing, several homeowners from both Edgewater Cove and Channel Mark spoke in favor of vacating the easement. Brinsmade was the only resident of either subdivision to contest the proposal.

¶ 9. Brinsmade then filed for a declaratory judgment in the Harrison County Chancery Court on September 14, 2008, against the City, Michael Rewis, Virginia Rewis, and Luis & Bernice Magee Enterprises, LP. The record does not include the original complaint or any answers or counterclaims made by the defendants. However, the declaratory judgment made by the chancery court on September 16, 2008, is provided in the record. In its order, the chancery court noted that the easement was platted for public use and could not be used otherwise until the plat was vacated in the manner provided by law. The chancery court further stated that the “Access Road Easements” shown on Lots 8 and 9 of the plat were subject to section 17-1-23(3) of the Mississippi Code Annotated (Rev.2003), and they could not be vacated until the requirements from the statute had been satisfied.

¶ 10. The Biloxi City Council (the City Council) adopted the Commission’s report on October 7, 2008. The adoption resulted in the execution of a quitclaim deed of equal halves of the easement to each of the adjoining property owners on Lots 8 and 9 of Edgewater Cove. Brinsmade again objected to vacating the easement, stating that the City was abandoning its responsibilities to maintain the easement, and claiming that the easement would prevent an evacuation in the event of severe weather.

PROCEDURAL HISTORY

¶ 11. Once the City passed the resolution to vacate the easement, Brinsmade filed a notice of appeal and intent to file a bill of exceptions in the Harrison County Circuit Court. He argued that the language in Mississippi Code Annotated section 17-1-23(4) (Rev.2003) applied to him as an “interested person and one directly affected” by the City’s action. He further asserted that because he did not agree in writing to vacating the easement, the City’s decision was arbitrary and capricious. He then filed a bill of exceptions on November 10, 2008, against the City, making the same argument.

¶ 12. Brinsmade’s brief to the circuit court listed three additional claims that were not included in the bill of exceptions, but which also challenged the City’s decision. He argued that the City should have followed Mississippi Code Annotated section 19-27-31 (Rev.2003), which mandated that the names of persons “adversely affected” by the vacation of the easement be notified of the vacation request. He also claimed that the City failed to consider his public-safety argument and that the City had violated its own rules and regulations because vacating the easement created streets that were longer in length than permitted.

¶ 13. After both parties fully briefed the matter, the circuit court dismissed the appeal and affirmed the City’s decision. Brinsmade now appeals the circuit court’s judgment.

STANDARD OF REVIEW

¶ 14. We will not disturb a decision of a governing board of authorities unless it is “unsupported by substantial evidence; was arbitrary or capricious; was beyond the agency’s scope or powers; or violated the constitutional or statutory rights of the aggrieved party.” Robinson v. Lincoln County Bd. of Supervisors, 973 So.2d 288, 289-90 (¶ 6) (Miss.Ct.App.2008). “The party challenging the governing body bears the burden of proof showing that the decision rendered is arbitrary, capricious, discriminatory, or beyond the legal authority of the city board, or unsupported by substantial evidence.” Mayor & Bd. of Aldermen v. Hudson, 774 So.2d 448, 451 (¶ 6) (Miss.Ct.App.2000) (citations omitted).

DISCUSSION

I. Statutory Requirement for Vacating a Municipal Easement

¶ 15. As his first assignment of error, Brinsmade argues that: section 17-1-23(4) of the Mississippi Code Annotated (Supp.2010) prohibits the City’s vacation of the public easement without his written approval, and the circuit court erred by ruling that he was not an “interested person directly affected by the decision,” as referenced by the statute. Mississippi Code Annotated section 17-1-23(4) provides in pertinent part:

If the owner of any land which shall have been laid off, mapped or platted as a city, town or village, or addition thereto, or subdivision thereof, or other platted area, whether inside or outside a municipality, desires to alter or vacate such map or plat, or any part thereof, he may petition the board of supervisors of the county or the governing authorities of the municipality for relief in the premises, setting forth the particular circumstances of the case and giving an accurate description of the property, the map or plat of which is to be vacated or altered and the names of the persons to be adversely affected thereby or directly interested therein. However, before taking such action, the parties named shall be made aware of the action and must agree in writing to the vacation or alteration. Failure to gain approval from the parties named shall prohibit the board of supervisors or governing authorities from altering or vacating the map or plat, or any part thereof.

(Emphasis added).

¶ 16. Brinsmade is incorrect in his assertion that section 17-1-28(4) controls here. First, the subsection specifically refers to a landowner who wishes to vacate or alter a plat in a subdivision. Miss.Code Ann. § 17-1-23(4). The statute does not apply to a municipality’s authority to vacate public easements. Further, Brins-made is neither an owner of the property in question nor does his lot border the easement. The easement is in a neighboring subdivision.

¶ 17. The applicable statute regarding municipally owned easements is Mississippi Code Annotated section 21-17-1(2)(a) (Rev.2007), which states, in part, that if “any of the real property belonging to a municipality shall cease to be used for municipal purposes, the governing authority of the municipality may sell, convey[,] or lease the same on such terms as the municipal authority may elect.” In addition, Mississippi Code Annotated section 21-37-7 (Rev.2007) gives a municipality the power to close and vacate any street or alley, provided due compensation is made to the abutting landowners for any sustained damages. Neither of these statutes require written approval by persons directly affected by the vacation or by adjoining landowners.

¶ 18. Although section 17-1-23(4) does not apply to the case at hand, we will nonetheless briefly discuss Brins-made’s argument that he is adversely affected and has a direct interest in the vacation of the easement because his property lies in close proximity to the easement. In Mississippi:

The general rule is that one whose property does not abut on the closed section of a street has no right to compensation for the closing or vacation of the street, i[f] he still has reasonable access to the general system of streets. The circumstances in some cases may be such as to give a right to damages to a property owner, even though his property does not abut on the closed section. But to warrant recovery in any such case the property owner must show that the situation is such that he has sustained special damages differing in kind, and not merely in degree, from those sustained by the public generally.

Puyper v. Pure Oil Co., 215 Miss. 121, 134-35, 60 So.2d 569, 573 (1952). Thus, in order for Brinsmade to have a right to contest the vacation of the easement, he must either be an abutting landowner, or “have a special easement in the use of the street in connection with his property for access purposes.” City of Jackson v. Welch, 136 Miss. 223, 101 So. 361, 362 (1924). That is, Brinsmade “must be specially damaged in connection with an outlet and inlet to his property, otherwise he has no more interest in the street than that enjoyed by the general public for travel, and cannot prevent its closing by the owners or the public authorities.” Id.

¶ 19. As stated above, Brinsmade’s property does not abut the easement in question. In fact, the easement is not located in Brinsmade’s subdivision; it is situated in a neighboring subdivision, adjacent to Brinsmade’s subdivision. The easement has never been improved upon, nor has it been used for any type of ingress or egress by anyone in either of the subdivisions. Brinsmade has reasonable access his property using a thoroughfare in his own subdivision, in the same manner as he did when he purchased the property years ago. Therefore, the closing of the street does not deprive Brinsmade of reasonable and adequate access to his property, and as such, he is unable to show that he is specially damaged by the vacating of the easement. This issue lacks merit.

II. Vacation of the Easement and Public Safety

¶20. Brinsmade’s next argument is that the vacatur of the easement is detrimental to public safety in the event of an evacuation, and the circuit court and the City failed to consider these public safety issues in their decisions. Brins-made cites no authorities to support his argument that the City or the circuit court was required to state specifically that public safety was considered in their decisions. We are under no duty to consider arguments that are unsupported by cited authority. Alexander v. Womack, 857 So.2d 59, 62 (¶ 12) (Miss.2003) (citation omitted). Further, after a thorough review of the map included in the record, we fail to see how any significant congestion would be alleviated if the easement were available for use. As such, we find Brinsmade’s assertions are without merit.

III. Judicial Notice

¶21. Brinsmade further argues that the circuit court erred by failing to consider a previous declaratory judgment by the chancery court. The declaratory judgment ordered that the public easement in question was subject to section 17-1-23(3) of the Mississippi Code Annotated, and until the statutory requirements were met, the easement could not be considered vacated. Brinsmade urges this Court to hold that, pursuant to Rule 201 of the Mississippi Rules of Evidence, the circuit court was required to take judicial notice of the chancery court’s declaratory judgment.

¶ 22. Under Rule 201(d) of the Mississippi Rules of Evidence, a court shall take judicial notice “if requested by a party and supplied with the necessary information.” Although Brinsmade included a copy of the declaratory judgment from the chancery court in his record excerpts on appeal to this Court, he did not include any pleadings or orders from the chancery court in his bill of exceptions to the circuit court. The circuit court’s judgment made note of this in its decision, and Brinsmade admits in his brief on appeal that he did not provide the circuit court with a copy of the judgment or any pleadings from the chancery court. Instead, he submits that by simply providing the circuit court with the case number, location of the court, and date of the judgment, the circuit court had sufficient information from which to take judicial notice. We disagree.

¶ 23. It is well settled that the bill of exceptions constitutes the record on appeal from a municipality’s decision, and the circuit court must not consider matters that are not a part of that record. Pruitt v. Zoning Bd. of City of Laurel, 5 So.3d 464, 469 (¶ 14) (Miss.Ct.App.2008). As the aggrieved party, Brinsmade had the responsibility to ensure that all relevant material was included in the bill of exceptions. By his own account, Brinsmade failed to include these documents in the bill of exceptions. Accordingly, this issue is without merit.

IV.Municipal Land-development Ordinance

¶24. Brinsmade contends in his final argument that the circuit court erred by not considering whether the City violated its own rules and ordinances. Brins-made did not include these ordinances for review in either his notice of appeal or in the bill of exceptions. As we stated above, and as the circuit court properly noted, evidence outside the bill of exceptions is not to be considered on appeal. Id. Further, “courts do not and cannot take judicial knowledge of municipal contracts and ordinances.” Stewart v. City of Pascagoula, 206 So.2d 325, 327 (Miss.1968). Accordingly, we find this issue lacks merit.

CONCLUSION

¶25. We do not find anything in the record to support Brinsmade’s claims that the City acted arbitrarily or capriciously in vacating the public easement in Edge-water Cove. The City followed the proper requirements to vacate a municipal easement. As a non-abutting landowner, Brinsmade was not a person adversely affected by or directly interested in the vacation of the easement. Moreover, the record lacks support that the City failed to consider public-safety concerns, or the circuit court erred by not taking judicial notice of municipal ordinances or of the chancery court’s previous judgment. Therefore, we affirm the circuit court’s judgment.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ„ CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.


author: CARLTON, J.,

text:
    Keith BROOKS and Sandra Brooks, Appellants v. Victor R. PURVIS, Appellee.
    No. 2010-CA-00184-COA.
    Court of Appeals of Mississippi.
    Sept. 20, 2011.

      Martin D. Crump, Leslie Hancock Lang, Gulfport, attorneys for appellants.
    Cecil Maison Heidelberg, Ridgeland, attorney for appellee.
    Before IRVING, P.J., ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Keith Brooks and Sandra Brooks sued Victor Purvis in the Perry County Circuit Court for injuries sustained in an automobile accident. A jury returned a verdict awarding Keith zero damages and awarding Sandra $75,000 in damages. The Brookses now appeal. Finding no error, we affirm the judgment of the circuit court.

FACTS

¶ 2. On October 29, 2001, two vehicles driven by Keith and Purvis collided on Sand Ridge Road, a one-lane road in Beaumont, Mississippi. Keith’s wife, Sandra, was riding in the passenger seat of Keith’s automobile at the time of the accident. The parties relayed differing versions of the cause of the accident; Purvis claimed that Keith drove his car in excess of the speed limit and ran into Purvis’s vehicle. Alternatively, the Brookses alleged that Purvis ran into them while their car was stopped on the side of the road.

¶ 3. The Brookses filed suit against Pur-vis on May 19, 2004, seeking damages arising out of the automobile accident. The trial began on June 3, 2009, and the jury rendered a verdict on June 4, 2009, awarding zero damages to Keith and $75,000 total damages to Sandra, with each driver bearing fifty-percent of the fault.

¶ 4. The Brookses filed a motion for a new trial, which the circuit court denied. On appeal, the Brookses allege that the circuit court erred by admitting portions of Officer William Henry’s deposition testimony and also by allowing Purvis to present evidence of the Brookses’ social-security-disability applications and benefits. The Brookses also claim that the jury’s award of zero damages for Keith is against the weight of the evidence.

STANDARD OF REVIEW

¶ 5. On appeal, this Court utilizes an abuse-of-discretion standard when reviewing evidentiary rulings by a trial judge. Church of God Pentecostal, Inc. v. Freewill Pentecostal Church of God, Inc., 716 So.2d 200, 210 (¶ 36) (Miss.1998). In order to reverse a case on the admission or exclusion of evidence, the ruling must result in prejudice and adversely affect a substantial right of the aggrieved party; such harm must be severe enough to harm a party’s substantial right. Terrain Enters., Inc. v. Mockbee, 654 So.2d 1122, 1131 (Miss.1995).

DISCUSSION

I. Whether the circuit court abused its discretion by permitting Officer Henry to give opinion testimony.

¶ 6. In October 2007, Purvis designated Officer Henry with the Perry County Sheriffs Department as an expert witness. Officer Henry responded to the scene of the accident on October 29, 2001, and he completed an accident report. However, Officer Henry was unavailable to attend the trial due to military deployment, so the parties deposed him by videotape for use at trial. After the videotaped deposition, the Brookses filed a motion in limine to exclude Officer Henry’s testimony regarding his opinion of the point of impact of the accident and regarding the position of the vehicles at the moment of impact.

¶ 7. A motion in limine “should be granted only when the trial court finds two factors are present: (1) the material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury.” McGilberry v. State, 797 So.2d 940, 942 (¶ 12) (Miss. 2001) (quoting Whittley v. City of Meridian, 530 So.2d 1341, 1344 (Miss.1988)). Additionally, Mississippi Rule of Evidence 701 states: “If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to the clear understanding of the testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”

¶ 8. The Brookses argue that Officer Henry was neither qualified nor tendered as an expert witness at any point during the proceedings. They also claim that Officer Henry lacked qualifications to render a conclusion about how other drivers normally drove down Sand Ridge Road, and the Brookses assert that Officer Henry’s testimony and conclusions in the deposition constituted accident-reconstruction testimony. The Brookses assert that such conclusions require specialized skill or knowledge. They also argue that due to his status as a police officer, Officer Henry’s testimony strayed into the area of expert opinion and irreparably tainted the jury’s apportionment of liability.

¶ 9. The Brookses cite to Roberts v. Grafe Auto Co., Inc., 701 So.2d 1093, 1099 (Miss.1997), in which the Mississippi Supreme Court held that the admission of the responding officer’s opinion testimony constituted reversible error. In Roberts, the responding officer, Officer Steve Bitowf, was not tendered an expert witness, and Officer Bitowf also stated that he did not want to be tendered as an expert in accident reconstruction. The supreme court found that:

Notwithstanding the characterization of the Officer Bitowf as a “lay witness” at trial, the opinion which the defendants attempted to solicit was an expert opinion based on training and experience as a law[-]enforcement officer and experience in the investigation of accidents and physical findings at the scene of the accident. Bitowfs testimony was not based upon actually witnessing the accident, rather it was based on his investigation afterward. The average, randomly selected adult could not conclude from examining the accident site that the defective tire was the only factor contributing to the accident.
In following many years of Mississippi case law[,] we find that the trial court committed reversible error in allowing Officer Bitowf to give expert testify [sic] without first being tendered an accepted as an expert witness in accident reconstruction. Because the public holds police officers in great trust, the potential harm to the objecting party requires reversal where a police officer gives expert testimony without first being qualified as such. Bitowf was not tendered as an expert[;] further he stated he was not an expert in accident reconstruction. However, defense counsel relied on Bitowfs experience in accident investigation to present Bitowfs testimony as that of an expert. In effect, Bitowfs testimony instructed the jury that driver error did not contribute to the accident, the very issue to be determined at trial. The function of the jury as [the] fact[-]finder must not be usurped. Because of this error, this case must be reversed and remanded for a new trial. On remand, the defendants may list Officer Bitowf as an expert witness and proffer [his] testimony as such. In light of M.R.E. 701 and M.R.E. 702, and the authorities cited herein, the trial judge, at that time, may allow the testimony of the officer as expert testimony if he is properly qualified and tendered as such.

Id.

¶ 10. Purvis, however, attempts to distinguish Roberts from the case at hand. Purvis asserts that during the deposition, the Brookses’ own counsel, not Purvis’s, opened the evidentiary door by asking Officer Henry about his training and expertise. The Brookses’ counsel also inquired as to the nature and condition of the road at issue, and whether Officer Henry had traveled down the road prior to the accident. Purvis asserts that this inquiry by the Brookses’ counsel thereby opened the door to Officer Henry’s testimony about the road condition and normal course of travel on the road. The Brookses’ counsel also questioned Officer Henry about a photograph showing the tire tracks left on the road as a result of the accident. The Brookses’ counsel asked Officer Henry to opine, based on his observations, as to which direction the vehicle appeared to have been traveling in order to leave those tire tracks. Purvis argues that his counsel’s questions reflect that Officer Henry’s testimony was based on his observations at the scene of the accident, not any specialized training or experience. The transcript of the deposition confirms that Officer Henry explained to the attorneys that he was not an accident reconstructionist and that he was testifying based on his personal observations at the scene of the accident.

¶ 11. Purvis claims the case before us is similar to Jones v. State, 761 So.2d 907, 912 (¶ 24) (Miss.Ct.App.2000), wherein this Court held that a patrolman’s opinion regarding the point of impact of an accident constituted lay opinion evidence under Rule 701. This Court explained that:

... [I]t is clear that [Officer David] Blakene/s opinion was lay opinion evidence admissible under Mississippi Rule of Evidence 701, since it was based on his observations of the resting place of [Danny] Jones’s vehicle after the accident and his ability to trace the path of the vehicle by following skid marks backwards from the resting place to a point where the physical evidence indicated that fairly violent event had occurred. One need not be an expert accident reconstructionist to offer an opinion that tire marks appearing at the scene of accident indicate with some measure of precision the path the vehicle followed at the time of the accident. A lay person, through his ordinary experience of life, is capable of observing the typical physical phenomena that exist in the aftermath a vehicular collision, such as skid marks and debris location, and making an intelligent assessment of certain basic facts of the accident. In this instance, we do not find that [Officer] Blakeney’s testimony moved so far from his basic interpretation of those actual physical things he observed at the scene as to require that he possess specialized training, knowledge[,] or experience in order to offer his opinion of the point of impact.

Id.

¶ 12. Similarly, we find that Officer Henry’s deposition testimony was based on his observations at the scene of the accident — not on any scientific, technical, or other specialized knowledge. We acknowledge that the record reflects that the Brookses’ counsel opened the door to Officer Henry’s testimony regarding the tire tracks on the road. Additionally, the Mississippi Supreme Court and also this Court have previously determined that a police officer not qualified as an accident recon-structionist expert “could testify to what he found and observed at the scene of the accident upon his arrival.” Ware v. State, 790 So.2d 201, 207 (¶ 17) (Miss.Ct.App. 2001); see also Seal v. Miller, 605 So.2d 240, 243-44 (Miss.1992). We therefore find no abuse of discretion in the circuit court’s admission of Officer Henry’s testimony. This issue lacks merit.

II. Whether the circuit court erred by allowing Purvis to present evidence concerning the Brookses’ social-security-disability applications and benefits.

¶ 13. The Brookses also filed a motion in limine to preclude any evidence or testimony related to the fact that they were on social-security disability or received social-security-disability benefits prior to the October 2001 accident. The Brookses claim that such information is irrelevant to causation and damages, and they claim that such testimony risked prejudicing the jury against them. They assert that they conceded their preexisting conditions.

¶ 14. The Brookses’ preexisting conditions, as listed in their social-security applications, relate to the current complaint for injuries allegedly resulting from the accident at issue. Additionally, Keith testified that his medical bills from the Veterans Affairs (VA) hospital for preexisting conditions were combined with the bills for medical treatment sought after the accident at issue. The Brookses’ testimonies regarding their preexisting conditions reveals that Sandra suffers from Post Traumatic Stress Disorder, and Keith suffers from various physical medical conditions, including, but not limited to, degenerative disk disease, arthritis, migraine headaches, gout, and carpal tunnel syndrome. Keith also testified that he had suffered extensive injuries in the past resulting from freight falling on him while he was unloading it, and he stated that he had also been involved in another automobile accident prior to the accident at issue. After the accident at issue, Keith claimed that he suffered an increase in his pain level, which he testified necessitated the doctors to increase his pain medication and prescribe him a stronger muscle relaxer. Keith also asserted that the accident at issue caused his and Sandra’s current lack of mobility and activity, and he claimed that as a result, he and Sandra had to get rid of their farm animals because they could no longer physically care for them. Keith also stated that he had to forgo his plans to start a rabbit farm. Sandra, however, suffered extensive injuries to her face and mouth as a result of the accident.

¶ 15. Since the Brookses argue that the current accident caused limitations on their activities as well as limited mobility, Purvis argues that the circuit court did not err in allowing him to present evidence of the Brookses’ disability application and benefits. Purvis claims that one of the key issues in the case was causation pertaining specifically to whether the Brookses’ injuries were caused by the accident. Purvis argues that he presented evidence that the Brookses were adjudicated disabled and received social-security benefits as proof of the Brookses’ extensive preexisting injuries. Purvis claims that the Brookses suffered from lack of mobility and chronic pain prior to the accident at issue. Purvis argues that Keith’s testimony and also the social-security application reveal that Keith used a wheelchair prior to the accident. Keith’s testimony and the application also reveal Keith also made a request for assistance to aid him in maintaining his personal hygiene and his personal daily needs prior to the accident at issue. Pur-vis argues that the loss of Keith’s mobility and activity preexisted the current accident and, thus, failed to result from the accident at issue.

¶ 16. Purvis cites to Baugh v. Alexander, 767 So.2d 269 (Miss.Ct.App.2000), another case involving an automobile accident wherein this Court examined the issue of the extent of Mary Joyce Baugh’s injuries. Barbara Alexander presented evidence that Baugh had been experiencing significant pre-accident pain symptoms and emotional problems alleged by her to have been caused by a fall at her employment which occurred prior to the automobile accident. This Court stated:

In this case, there was substantial evidence that Baugh had, in a separate workers compensation case, asserted that the same injuries and the same medical expenses claimed in this case were the result of a fall at work occurring some seven weeks prior to the accident. There was substantial evidence in the record that Baugh had, in the weeks preceding the wreck, complained of extensive pain and attendant emotional difficulties arising out of her fall at work. The defense also presented evidence from which the jury could reasonably conclude that much of Baugh’s post-accident medical treatment was nothing more than a continuation of a course of treatment for her work-related injuries that had begun before the accident and had continued largely unchanged in the time after the accident. There was, in fact, evidence presented that Baugh had, a few weeks after the motor[-]vehicle accident, reported to a health[-]care provider that her symptoms had essentially returned to what they were pre-acci-dent.

Id. at 271-72 (¶ 8). Additionally, we have recognized that “any evidence tending to show that any part of [the plaintiffs] injury may have occurred as a result of some other cause was relevant.” Good v. Indreland, 910 So.2d 688, 693 (¶ 12) (Miss.Ct. App.2005) (citing Walker v. Lamberson, 243 So.2d 410, 411 (Miss.1971)). We also note that a defendant can only be liable for damages resulting from his negligence. Id.

¶ 17. The Brookses also claim that Purvis violated the collateral-source rule by offering the evidence related to the social-security benefits. In Mississippi, the collateral-source rule states that “[c]ompensation or indemnity for the loss received by plaintiff from a collateral source, wholly independent of the wrongdoer, as from insurance, cannot be set up by the [defendant] in mitigation or reduction of damages.” Coker v. Five-Two Taxi Serv., 211 Miss. 820, 826, 52 So.2d 356, 357 (1951). However, we recognize that “[t]he collateral[-]source rule applies only when the indemnity or compensation is for the same injury for which damages are sought.” Baugh, 767 So.2d at 272 (¶ 11). In Baugh, this Court held that:

The mere fact that this earlier injury produced symptoms largely indistinguishable from those symptoms Baugh alleged to have been caused by the wreck does not make them a collateral source of compensation for injuries received in the wreck. To the contrary, evidence of such payments based on assertions of causation in another proceeding by the plaintiff that are inconsistent with her assertions of causation in this case becomes quite probative for the jury in carrying out its duty to determine whether the plaintiff has met her burden of proving that the wreck caused the injuries for which she seeks compensation from the defendant.

Id. See also Geske v. Williamson, 945 So.2d 429, 434 (¶¶ 20-21) (Miss.Ct.App.2006).

¶ 18. In the present case, the record shows that the Brookses applied for and received social-security-disability payments for injuries arising from a different incident that left Keith with chronic pain and lack of mobility. Additionally, the entries in the applications as to prior injuries and preexisting conditions show a progression in intensity over time, resulting in increased pain and a lack of physical mobility prior to the current accident. Significantly, the record also reflects that Keith testified that his bills from the Veterans Affairs hospital for his preexisting injuries were combined with his bills resulting from the current accident, and he testified that even he could not distinguish between his different bills and treatments. During Keith’s cross-examination, Purvis inquired as to how the fact-finder would distinguish between the bills if Keith himself could not ascertain which bills resulted from the current accident. Significantly, our review of the trial transcript shows that Purvis’s counsel never questioned the Brookses regarding any monetary amount of disability payments received prior to the accident for their preexisting injuries. The record also reflects no quantification of the Brookses’ social-security-disability payments. As a result, we find that the collateral-source rule is inapplicable to the case before us. See Wright v. Royal Carpet Servs., 29 So.3d 109, 115 (¶ 14) (Miss.Ct.App.2010) (When evidence of compensation from an independent source is introduced for a purpose other than to mitigate damages, the collateral-source rule is not violated.). Thus, we find that the circuit court did not err in allowing Purvis to present evidence that the Brookses received social-security-disability benefits prior to the automobile accident. We also find that the circuit court did not err in allowing Purvis to question the Brookses regarding the entries on their social-security-disability applications describing their injuries and also the progression of their preexisting injuries prior to the current accident at issue. This issue is without merit.

III. Whether the jury’s award of zero damages for Keith is against the weight of the evidence.

¶ 19. As their final assignment of error, the Brookses allege that the circuit court erred in denying their motion for a new trial on the ground that the jury’s award of zero damages to Keith was inadequate. They claim that as a result of the automobile accident, Keith suffered an increased pain level and also accumulated medical expenses totaling $18,300.65.

¶ 20. However, Purvis claims that the award of zero damages for Keith resulted because the jury simply concluded that the injuries alleged by Keith existed before the accident; thus, the injuries were not the result of Purvis’s alleged negligence. Purvis points to Keith’s medical records, which show that before the accident, Keith was living in “chronic pain,” and he was on pain medication. The jury also heard testimony from the parties, as well as videotaped deposition testimony from various experts, including physicians.

¶ 21. When determining whether a trial court erred in refusing an additur or a new trial, this Court applies an abuse-of-discretion standard of review. Herring v. Poirrier, 797 So.2d 797, 807 (¶ 33) (Miss.2000). We further note that it “is primarily the province of the jury to determine the amount of damages to be awarded”; thus, the award “will normally not ‘be set aside unless so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous.’ ” Id. at 808 (¶ 33) (citation omitted). On appeal, “[we] must view the evidence in the light most favorable to the defendant, giving him any favorable inferences that may reasonably drawn therefrom.” Id.

¶ 22. In Herring, the supreme court held that Joseph Poirrier had introduced evidence at trial, including testimony from physicians stating that Kenneth Herring’s preexisting injuries included back problems and degenerative joint disease, from which the jury could reasonably conclude that Herring’s alleged injuries were not caused by the car accident at issue in the case. Id. at (¶ 35). The supreme court further held that Poirrier also had presented evidence from which the jury could reasonably conclude that Herring was not injured. Id. at (¶ 36); see also Hubbard v. Delta Sanitation of Miss., 64 So.3d 547, 553-56 (¶¶ 25-33) (Miss.Ct.App.2011).

¶ 23. Similarly, in the case at hand, the record reflects that Purvis presented evidence showing that Keith was living in “chronic pain” before the automobile accident and possessed numerous preexisting physical health conditions. As a result, we find that the jury’s award of zero damages for Keith is supported by the evidence presented at trial. As the supreme court reiterated in Solanki v. Ervin, 21 So.3d 552, 568 (¶ 41) (Miss.2009), the jury determines the weight and credibility of witnesses. Further, as previously stated, the amount of damages to be awarded is primarily for the jury to determine. Harvey v. Wall, 649 So.2d 184, 187 (Miss.1995). Additionally, we find nothing in the record that suggests the jury’s decision in the present case reflects bias or prejudice. Therefore, we find the circuit court did not abuse its discretion in denying the Brookses’ motion for a new trial. This issue lacks merit.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF PERRY COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, ROBERTS, MAXWELL AND RUSSELL, JJ„ CONCUR.


author: LEE, C.J.,

text:
    Elius Lamar REED, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00545-COA.
    Court of Appeals of Mississippi.
    Sept. 20, 2011.

      Elius Lamar Reed, appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, C.J., BARNES and ROBERTS, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On November 16,1976, a jury in the Lauderdale County Circuit Court found Elius Lamar Reed guilty of armed robbery. Reed was sentenced to serve six years in the custody of the Mississippi Department of Corrections (MDOC). Reed was paroled on March 30, 1979, and discharged from the custody of the MDOC on January 5,1983. Reed filed a motion for post-conviction relief on December 4, 1990, which was denied by the trial court. The Mississippi Supreme Court affirmed the trial court’s decision on April 14, 1994. Reed v. State, 635 So.2d 863 (Miss.1994).

¶ 2. In 2008, Reed filed a motion for a new trial, alleging that he had newly discovered evidence that would prove his innocence. This evidence, which Reed admittedly received from the FBI in 2000, consisted of a 1976 fingerprint report which stated that “the latent fingerprints previously reported in this case are not identical with the fingerprints of Elius Lamar Reed.” This report was generated several months prior to Reed’s trial. The trial court denied Reed’s motion. Reed filed a motion to reconsider, which was denied. After filing another motion to reconsider, the trial court denied the motion. The trial court assessed $150 in sanctions due to Reed’s continual filing of frivolous motions.

¶ 3. Reed filed another motion for post-conviction relief on December 23, 2009. The trial court denied the motion and assessed $1,000 in sanctions for frivolous filings. Reed now appeals, asserting that the trial court erred in denying his motion for post-conviction relief. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 4. A trial court’s denial of a motion for post-conviction relief will not be reversed absent a finding that the trial court’s decision to deny the motion was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150 (¶ 8) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

DISCUSSION

¶ 5. In his only issue on appeal, Reed argues that the trial court erred in denying his motion for post-conviction relief. We first note that Reed’s motion for post-conviction relief is moot. According to Mississippi Code Annotated section 99-39-5(1) (Supp.2010), “[a]ny person sentenced by a court of record of the State of Mississippi, including a person currently incarcerated, civilly committed, on parole or probation ... may file a motion to vacate, set aside or correct the judgment or sentence, ... or a motion for an out-of-time appeal....” At the time he filed his first motion for post-conviction relief, Reed was not incarcerated or on parole or probation. Therefore, Reed was not entitled to maintain a motion for post-conviction relief.

¶ 6. Reed’s motion for post-conviction relief is also barred as untimely as the motion falls outside the three-year time limitation set forth in Mississippi Code Annotated section 99-39-5(2) (Supp.2010). Reed’s motion is likewise barred as a successive writ pursuant to Mississippi Code Annotated section 99-39-23(6) (Supp.2010).

¶ 7. Notwithstanding the procedural bar, we also note that in regard to the exception for newly discovered evidence, Reed must prove that he has evidence, not reasonably discoverable at trial, that would have caused a different result in the conviction or sentence. Miss.Code Ann. § 99-39-5(2)(a)(i). Under this definition, it is clear that the fingerprint reports were reasonably discoverable as they had been generated as early as May 4, 1976, which was seven months prior to trial. This exception is inapplicable to Reed’s claims.

¶ 8. We cannot find error in the trial court’s decision to deny Reed’s motion for post-conviction relief. This appeal is without merit.

¶ 9. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR.