author: GRIFFIS, P.J., CARLTON, J.,

text:
    Robert Michael FULTON, Appellant v. MISSISSIPPI FARM BUREAU CASUALTY INSURANCE COMPANY, Appellee.
    No. 2009-CA-01529-COA.
    Court of Appeals of Mississippi.
    April 5, 2011.
    Rehearing Denied April 8, 2012.
    O. Stephen Montagnet III, W. Thomas McCraney III, Ridgeland, attorneys for appellant.
    Michael Wayne Baxter, Ridgeland, Walker Reece Gibson, attorneys for appel-lee.
   GRIFFIS, P.J.,

for the Court:

¶ 1. The issue in this appeal is whether a motion to award attorney’s fees following entry of judgment constitutes a motion under Rule 59(e) of the Mississippi Rules of Civil Procedure. Finding reversible error, we remand this case for further consideration by the Yazoo County Circuit Court.

FACTS

¶ 2. On April 21, 2007, Robert Michael Fulton was injured when he was struck by an automobile driven by Lofton Eugene (“Gene”) Pigg Jr. Fulton and Pigg were at the Little Yazoo Dirt Race Track. Pigg lost control of his automobile as he drove through the spectator section. Pigg was intoxicated at the time of the accident and had no automobile insurance.

¶ 3. Fulton submitted a claim for uninsured-motorist benefits to his automobile-insurance carrier, Mississippi Farm Bureau Casualty Insurance Company. Farm Bureau did not immediately pay the benefits. After Fulton filed a complaint against Farm Bureau, Farm Bureau paid Fulton $25,502.50 of his $50,500 in total available uninsured-motorist benefits.

¶ 4. Fulton asserted claims against Farm Bureau for breach of contractual duty to pay insurance proceeds; gross negligence in breaching a duty to investigate, process, and pay Fulton’s claim; and bad-faith refusal to pay on the grounds that Farm Bureau had no arguable justifiable basis to delay payment. Farm Bureau filed a third-party complaint against Pigg.

¶ 5. After a trial, the jury found Pigg at fault for the collision and found no fault on the part of the race track. The circuit judge entered a final judgment, agreed as to form by the attorneys, that the jury verdict: (a) awarded Fulton compensatory damages in the amount of $24,497.50, which was the remainder of his uninsured-motorist-policy limit; (b) awarded Fulton extra-contractual damages in the amount of $10,000 for Farm Bureau’s negligence in failing to investigate and pay Fulton’s claim in a timely manner; and (c) found in favor of Farm Bureau on the claim for bad faith and punitive damages.

¶ 6. Post-trial, Fulton filed a motion for an award of attorney’s fees, expenses, costs, and prejudgment interest. Fulton titled the motion as, “Plaintiffs Motion to Amend Judgment and to Award Attorneys Fees and Expenses, Costs and Interest.” The motion asked the circuit court to award Fulton $120,773 in attorney’s fees and expenses. The motion included a detailed itemization of the attorney’s fees and expenses incurred. In the motion, Fulton claimed that the award was authorized by Universal Life Insurance Co. v. Veasley, 610 So.2d 290 (Miss.1992).

¶ 7. After a hearing, the circuit court denied the motion, stating:

This Court, after considering the motion, records and pleadings, finds that Plaintiff filed a timely Rule 59(e) motion to amend judgment[,] but the Plaintiffs motion failed to show one of the three requirements set forth by the Mississippi Supreme Court in Brooks v. Roberts, 882 So.2d 229 (Miss.2004)[,] which states:
[I]n order to succeed on a Rule 59(e) motion, the movant must show: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice.” Brooks v. Roberts, 882 So.2d 229 (Miss.2004).
The Court therefore finds that Plaintiffs Motion to Amend Judgment to award attorneys fees and expenses, costs and interest is hereby DENIED.

It is from this judgment that Fulton now appeals.

STANDARD OF REVIEW

¶ 8. “Since this Court’s standard of review dictates that the discretionary decision of the trial judge to deny attorney’s fees be reversed only upon an abuse of discretion, this Court must determine if such an abuse, such as misapplication of the law or an unreasonable decision in light of the alternatives, occurred.” Cruse v. Nunley, 699 So.2d 941, 944 (¶ 11) (Miss.1997) (citation and quotation omitted).

ANALYSIS

¶ 9. Fulton argues that the circuit court’s ruling was in direct conflict with supreme court precedent. Indeed, Mississippi law on this issue is well settled. In Bruce v. Bruce, 587 So.2d 898, 908 (Miss.1991), the Mississippi Supreme Court held that “motions for reassessment of costs or for attorneys fees lie outside Rule 59(e), because they are ‘collateral’ and do not seek a change in the judgment but ‘merely what is due because of the judgment.’” In Cruse, 699 So.2d at 946 (¶ 19), the supreme court also held that “[rjegardless of when attorney’s fees are requested, the court’s decision of entitlement to fees will therefore require an inquiry separate from the decision on the merits — an inquiry that cannot even commence until one party has ‘prevailed.’” “[T]he fact that [a] fee request was made after the entry of judgment is not a proper basis for denying the fee award.” Id at (¶ 20).

¶ 10. The jury’s verdict of $10,000 for extra-contractual damages is not subject to consideration in this appeal. To award extra-contractual damages, the jury had to find that the mental anguish and emotional distress of the plaintiffs was “an independent intentional tort separate from the breach of contract.” Veasley, 610 So.2d at 295. In Veasley, the supreme court held that “[sjimple negligence is not such an independent tort that would support extra-contractual damages.” Id. Fulton’s request for attorney’s fees and expenses was based on the following language from Veasley: “Additional inconvenience and expense, attorney[’s] fees and the like should be expected in an effort to have the oversight corrected. It is no more than just that the injured party be compensated for these injuries.” Id.

¶ 11. In Essinger v. Liberty Mutual Fire Insurance Co., 534 F.3d 450, 451 (5th Cir.2008), the United States Fifth Circuit Court of Appeals discussed Veasley and concluded:

In practice, two separate categories of damages are recognized. Punitive damages are available for egregious conduct. The lesser level of damages may be appropriate where the insurer lacks an arguable basis for delaying or denying a claim, but the conduct was not sufficiently egregious to justify the imposition of punitive damages. See Universal Life Ins. Co. v. Veasley, 610 So.2d 290, 295 (Miss.1992). These damages are an intermediate form of relief between simply receiving incidental costs of suit (but not attorneys’ fees), and getting punitive damages. Id. at 295 (“Additional inconvenience and expense, attorney[’s] fees and the like should be expected in an effort to have the oversight corrected. It is no more than just that the injured party be compensated for these injuries.”).
The Mississippi Supreme Court described the kind of conduct that gives rise to the lower level of damages: Applying the familiar tort[-]law principle that one is liable for the full measure of the reasonably foreseeable consequences of her actions, it is entirely foreseeable by an insurer that the failure to pay a valid claim through the negligence of its employees should cause some adverse result to the one entitled to payment. Id. Thus, Mississippi law recognizes that negligent conduct of the insurance company can justify recovery of, for example, attorneys’ fees; punitive damages require bad faith by the insurance company.

(Emphasis added).

¶ 12. The question presented is whether attorney’s fees, under Veasley, are to be submitted to the jury to determine as an element of damages to be awarded or to the court as a collateral or derivative matter. The supreme court answered this in Mississippi Power & Light Co. v. Cook, 882 So.2d 474 (Miss.2002).

¶ 18. In Cook, a former employer of MP & L brought a bad-faith action against MP & L. Id. at 478 (¶ 4). The former employee alleged that MP & L had no arguable basis to stop his workers’ compensation benefits. The jury awarded the former employee compensatory damages in the amount of $150,000 and punitive damages in the amount of $5,000,000. Id. Based on the award of punitive damages, the circuit court entered an award of attorneys’ fees in the amount of $2,060,000. Id. The supreme court held the following standard of review applied to the award of attorneys’ fees:

The standard of review regarding attorneys’ fees is the abuse of discretion standard. “The fixing of reasonable attorneys’ fees is a matter ordinarily within the sound discretion of the trial court.” Gilchrist Tractor Co. v. Stribling, 192 So.2d 409, 418 (Miss.1966). This Court has held:
It is well settled in this State that what constitutes a reasonable attorney’s fee rests within the sound discretion of the trial court and any testimony by attorneys with respect to such fees is purely advisory and not binding on the trial court. We will not reverse the trial court on the question of attorney’s fees unless there is a manifest abuse of discretion in making the allowance.
Mauck v. Columbus Hotel Co., 741 So.2d 259, 269 (Miss.1999).

Cook, 832 So.2d at (¶ 7). The supreme court reversed the award of punitive damages and rendered a remittitur of the award of punitive damages on the condition that if the remittitur is not accepted then the case would be remanded for a new trial on punitive damages. Id. at 485 (¶ 38).

¶ 14. The supreme court also held that “[wjhere punitive damages are awarded by the jury, attorneys’ fees are justified.” Id. at 486 (¶ 40). The supreme court noted that the trial judge, not the jury, ordered the payment of attorneys’ fees. Id. at 487 (¶ 41). The supreme court then concluded that the trial court abused its discretion in the award of attorneys’ fees by not following the appropriate guidelines. Id. at (¶ 42). The supreme court then held:

The award of attorneys’ fees should be vacated and remanded to the trial court. The trial judge should reconsider this issue in light of the McKee [v. McKee, 418 So.2d 764 (Miss.1982) ] factors and support a new award, if any, based on findings of fact and conclusions of law concerning those specific factors. Additionally, the trial judge should rule accordingly in light of the remittitur. If the remittitur is not accepted by the plaintiff, and a new trial is ordered and no punitive damages are awarded by the jury, then attorneys’ fees cannot be awarded by the trial court.
We affirm the judgment to the extent that it awarded Cook $150,000 in compensatory damages. We remit punitive damages of $5,000,000 to $500,000. If Kenneth D. Cook accepts such remitti-tur so as to reduce the punitive damage award to $500,000 within ten days after the judgment of this Court becomes final, then the award as reduced will be affirmed. The award of attorneys’ fees is vacated and remanded to the trial court for further proceedings consistent with this opinion. Additionally, a hearing should be held by the trial judge in accordance with this opinion to determine attorneys’ fees strictly adhering to the McKee factors. Otherwise, the cause is reversed and remanded to the trial court for trial upon the issues of punitive damages. If punitive damages are thereafter awarded by the jury, then the award of attorneys’ fees should be addressed by the trial judge specifically using the McKee factors in her determination. However, if no punitive damages are awarded by the jury, then attorneys’ fees are clearly not to be awarded by the trial judge.

Cook, 832 So.2d at 487-88 (¶¶ 42-43) (emphasis added).

¶ 15. Based on Cook, this Court is of the opinion that the same holds true where extra-contractual damages are awarded by the jury. The issue of attorney’s fees is to be submitted to the court as a collateral or derivative matter. Thus, the time for such consideration is post-trial, as Fulton attempted to do here.

¶ 16. We find that the circuit court improperly considered Fulton’s motion under Rule 59(e). Accordingly, we reverse the judgment of the circuit court and remand this action for the consideration of Fulton’s motion for attorney’s fees and expenses.

¶ 17. THE JUDGMENT OF THE YA-ZOO 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., IRVING, P.J., ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., DISSENTS ' WITH SEPARATE WRITTEN OPINION JOINED IN PART BY BARNES, J. MYERS, J., NOT PARTICIPATING.

CARLTON, J.,

dissenting:

¶ 18. I respectfully dissent from the opinion of the majority. Procedural history and facts relevant to this case and my dissent show that Robert Michael Fulton filed suit against Mississippi Farm Bureau Casualty Insurance Company (Farm Bureau) and a third-party tortfeasor, Lofton Eugene Pigg Jr. (Pigg). Fulton received injuries to his back after being struck by an automobile driven by Pigg at the Little Yazoo Dirt Race Track. Pigg, intoxicated at the time of the collision, informed the investigating officer that he lacked automobile insurance. Fulton delayed notifying Farm Bureau about the collision for over six months. When Fulton tendered a claim for uninsured-motorist benefits to Farm Bureau, Farm Bureau paid him $25,502.50 of the total amount available, $50,500. One month after providing Farm Bureau notice of the claim, Fulton filed suit against Farm Bureau to recover his uninsured-motorist benefits and filed suit against Pigg and Little Yazoo Dirt Race Track.

¶ 19. Fulton’s complaint against Farm Bureau alleged the following: breach of contractual duty to pay insurance proceeds; gross negligence in breaching a duty to investigate, process, and pay Fulton’s claim; and bad-faith refusal to pay, asserting that Farm Bureau possessed no arguable justifiable basis for delay.

¶ 20. The final judgment, agreed as to form by the attorneys, reflects that the jury found no breach of contract by Farm Bureau in failing to pay Fulton, but it shows that the jury found Farm Bureau negligent in failing to investigate Fulton’s uninsured-motorist claim timely and adequately and in delaying the payment of his claim. The agreed final judgment further reflects that upon finding Farm Bureau negligent, the jury then awarded Fulton $10,000 in extra-contractual damages for that negligence. However, the final judgment does not reflect that the jury found that Farm Bureau acted with gross negligence or reckless disregard. The final judgment does reflect, though, that as to Fulton’s claim for bad faith and punitive damages, the jury found in favor of Farm Bureau.

¶21. The final judgment also reflects that the jury found Pigg to be 100% at fault and the proximate cause of the accident in question. The jury awarded $24,497.50 to Fulton for compensatory damages due to Pigg’s alleged negligence. The final judgment concluded by ordering that Fulton recover from Farm Bureau the total sum of $34,497.50, with post-judgment interest at the rate of 6% per annum. The court also ordered that Farm Bureau was to recover the sum of $65,000, plus post-judgment interest, from Pigg. The final judgment is signed by counsel for both parties as to form, as well as the circuit judge, and is dated April 17, 2009.

¶22. Then, on April 28, 2009, Fulton filed a post-trial motion for an award of attorney’s fees, expenses, costs, and prejudgment interest. Fulton acknowledged in his post-trial motion that a judgment agreed to as form based on the jury verdict was presented to the circuit court, and then Fulton requested to amend that judgment to add attorney’s fees, costs, and prejudgement interest. Fulton asked the trial court for $120,773 in attorney’s fees and asserted that these fees represented 484.8 hours of attorney and paralegal time and expenses amounting to $13,749.97.

¶23. In Fulton’s post-trial motion to amend, he asserts the jury’s finding of negligence in the delay in investigation and payment as the basis for his request for attorney’s fees to be awarded by the judge as judgment derivative upon post-trial motion. Fulton’s counsel acknowledged in the motion that they engaged in a contingent-fee arrangement with Fulton but now wanted an award at a higher rate for the hours spent on the case, or a multiplier of their lodestar time. Farm Bureau filed a brief in opposition to Fulton’s request to amend the judgment. After a hearing on Fulton’s motion, the circuit court denied the motion on procedural grounds, holding that a post-judgment motion for attorney’s fees mandates a showing of the requirements of Mississippi Rule of Civil Procedure 59(e), and Fulton had failed to present any of the three alternative grounds for a Rule 59(e) motion as set forth by Brooks v. Roberts, 882 So.2d 229, 233 (¶¶ 15-16) (Miss.2004). As his sole assignment of error on appeal, Fulton asks this Court to determine whether the circuit court erred in denying his motion to amend the judgment based upon the trial court’s judgment that the motion constituted a motion made pursuant to Rule 59(e). Fulton argues that his motion lies outside of Rule 59(e), and he asserts the award is a collateral award that does not seek to change the judgment but merely awards what is due because of the judgment.

¶ 24. Upon review of the issues and record submitted on appeal, I respectfully submit that I find no abuse of discretion in the circuit judge’s treatment of Fulton’s post-trial motion to amend the judgment to award attorney’s fees as a motion under Rule 59(e). After a review of the record before us, I find that the record provides no support in this case to award attorney’s fees collaterally as judgment derivative since the jury found Farm Bureau merely negligent in delay and investigation. The circuit judge would have to reconsider the award of extra-contractual damages awarded to Fulton by the jury for negligent delay in investigation and payment in order to award Fulton attorney’s fees since no basis exists in our jurisprudence to award attorney’s fees as judgment derivative in cases of mere negligence. Compare F.R.C.P. 54(d). Fulton plead actual economic damages, including attorney’s fees, as an element of damages resulting from Farm Bureau’s delay in payment and investigation. While the jury failed to find gross negligence as pled by Fulton, the jury found only negligence and awarded him $10,000 in extra-contractual damages for that tort. Fulton does not raise on appeal any error as to the award of extra-contractual damages, and the record reflects no request for an additur by Fulton.

¶ 25. The Mississippi Supreme Court has established that if a party seeks to alter or amend a final judgment, the proceedings fall under the purview of Rule 59(e), requiring the movant to show the following: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice. Brooks, 882 So.2d at 238 (¶¶ 15-16); Bang v. Pittman, 749 So.2d 47, 52-53 (¶29) (Miss.1999) (overruled on other grounds). This Court reviews a trial court’s denial of a Rule 59 motion under an abuse-of-discretion standard. Bang, 749 So.2d at 52 (¶ 28).

¶ 26. Fulton argues that the circuit court should not have applied the requirements of Rule 59(e) to his motion to amend the judgment, claiming that an award of attorney’s fees is judgment derivative and based upon the jury verdict and thus fails to require the court to reconsider a judgment. Fulton claims that attorney’s fees are not for a jury to determine. Fulton cites numerous cases to support his claim asserting that the circuit court may consider a motion for attorney’s fees after the entry of a final judgment without the necessity of the movant showing any of the three circumstances required by Rule 59(e).

¶ 27. I agree that cases exist wherein attorney’s fees are indeed judgment derivative, thereby allowing a trial court to award attorney’s fees collaterally post-trial without considering the circumstances set forth in Rule 59(e) and also without necessity of proof to prove such as an element of damages. Attorney’s fees are awarded as judgment derivative when authorized by a contract, a statute, or upon the award of punitive damages or upon finding of intentional misconduct rising above simple negligence. See generally 4 Miss. Practice Series, Encyclopedia of Miss. Law, § 25:10. In comparison, the Federal Rule of Civil Procedure 54(d)(2)(B) also reflects the general rule that attorney’s fees are not awarded as part of costs unless authorized by statute, authorized by the Federal Rules of Civil Procedure, or by a court order stating otherwise. See Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 254-57, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Federal Rule of Civil Procedure 54(d) further clarifies that a claim for attorney’s fees must be made by motion unless the substantive law requires that those fees must be proved at trial as an element of damages.

¶ 28. When attorney’s fees are awarded as an element of damages for reasonably foreseeable actual economic extra-contractual damages resulting from a tort, then such damages must be pled and proved. A review of the agreed judgment in this case reflects that the jury awarded extra-contractual damages resulting from Farm Bureau’s negligence in its delay of the investigation and payment. Windmon v. Marshall, 926 So.2d 867, 874-75 (¶32) (Miss.2006) (Negligence is insufficient to support a collateral claim for extra-contractual damages); Andrew Jackson Life Ins. Co. v. Williams, 566 So.2d 1172, 1186 n. 13 (Miss.1990). (The supreme court held that upon presentation of sufficient proof, consequential or extra-contractual damages, e.g., reasonable attorney’s fees, court costs, and other economic losses, may be awarded in cases involving a lack of a reasonably arguable basis, notwithstanding that the insurer is not liable for punitive damages); Pioneer Life Ins. Co. of Ill. v. Moss, 513 So.2d 927, 931 (Miss.1987) (Robertson, J., concurring) (Justice Robertson explained that reasonably foreseeable actual economic damages such as attorney’s fees resulting from tortious conduct must be pled and proven.). Interestingly, Fulton asserts that attorney’s fees are a matter only for the judge, and not the jury, to consider, yet his complaint nonetheless pled attorney’s fees as an element of actual economic damages that foreseeably resulted from the negligence of Farm Bureau in its delay in payment and investigation. In contrast to Fulton’s argument, Mississippi precedent fails to support an award of attorney’s fees as judgment derivative based upon mere negligence and requires some conduct rising above mere negligence to the level of an intention tort or intentional wrongdoing. See Universal Life Ins. Co. v. Veasley, 610 So.2d 290, 295 (Miss.1992).

¶ 29. The recent precedent of United Services Automobile Association v. Lisanby, 47 So.3d 1172, 1178 (¶ 18) (Miss.2010), finds that:

Extra[-]contractual damages, such as awards for emotional distress and attorneys’ fees, are not warranted where the insurer can demonstrate “an arguable, good-faith basis for denial of a claim.” United Amer. Ins. Co. v. Merrill, 978 So.2d 613, 627 (citing State Farm Ins. Co. v. Grimes, 722 So.2d 637 (Miss.1998); Standard Life Ins. Co. v. Veal, 354 So.2d 239 (Miss.1977)). This Court has said that the “plaintiff bears a heavy burden” of proving that the denial of an insurance claim was in bad faith. Windmon v. Marshall, 926 So.2d 867, 872 (Miss.2006) (citing Blue Cross & Blue Shield v. Campbell, 466 So.2d 833, 844 (Miss.1984)). Moreover,
The plaintiffs burden in proving a claim for bad[-]faith refusal goes beyond proving mere negligence in performing the investigation. The level of negligence in conducting the investigation must be such that a proper investigation by the insurer would easily adduce evidence showing its defenses to be without merit.

Id. (quoting Liberty Mut. Ins. Co. v. McKneely, 862 So.2d 530, 534 (Miss.2003)).

¶30. The Mississippi Supreme Court has determined that in the absence of statutory authority or a contractual provision, attorney’s fees cannot be recovered unless the facts rise to such gross or willful wrong as to justify the infliction of punitive damages. See Cook, 832 So.2d at 486 (¶ 40); Simpson, 477 So.2d at 253; see also Bank of Miss., 850 So.2d at 137 (¶ 39) (generally, absent a statute allowing such an award, attorney’s fees and costs are not awarded unless punitive damages are awarded). Ascertaining whether statutory authority exists for a collateral award of attorney’s fees herein, the Mississippi Code provides no statutory authority for an award of attorney’s fees in uninsured-motorist-insurance cases absent punitive damages. See Miss.Code Ann. § 83 — 11— 103 (Supp.2010).

¶ 31. The agreed judgment reflects that the jury found Farm Bureau was negligent in that respect. Then, this interrogatory inquired: “If you answer ‘YES’ to the this question, what amount of extra-contractual damages do you award Fulton against Farm Bureau?” Underneath this question, the jury awarded Fulton $10,000 in extra-contractual damages.

¶ 32. Fulton cites Veasley, 610 So.2d at 295, arguing that a narrow exception to this rule exists in limited circumstances to allow for an award of attorney’s fees even where the jury failed to award punitive damages. As clarified in Wise v. Kansas City Life Insurance Co., 433 F.Supp.2d 743, 753 (N.D.Miss.2006), “[t]he Veasley exception applies in bad[-]faith insurance cases where the defendant insurer lacked an arguable basis for denying a claim and failed to pay the claim; in such cases, an award of attorneys’ fees to a prevailing plaintiff may be appropriate even if the fact-finder did not award punitive damages.” See Veasley, 610 So.2d at 295.

¶ 33. Veasley provides specifically that mere negligence is not such an independent, intentional tort that would support such extra-contractual damages. Veasley, 610 So.2d at 295. In this case, as previously discussed, the jury determined Farm Bureau’s actions constituted only negligence, and the judgment reflects no finding of any intentional or malicious act or any act of reckless disregard rising above mere negligence; thus, this case does not fall within the Veasley exception. A review of the law indeed supports the conclusion that a finding of only negligence by the jury fails to provide a sufficient basis award attorney’s fees as judgment derivative. See Wise, 433 F.Supp.2d at 753.

¶ 34. With respect to a arguable basis for its delay, Farm Bureau submits that the evidence in the record of Fulton’s delay in providing notice to Farm Bureau of his claim arising from the collision, coupled with the hastily filed suit one month later, provided Farm Bureau with sufficient evidence to show an arguable basis factually existed for delaying payment due to its need to investigate the delinquently filed claim. Farm Bureau further argues that the jury found nothing more than simple negligence and found no bad faith, no breach of its insurance contract, and no breach of its duty to pay.

¶ 35. In addition to acknowledging Farm Bureau’s factual arguable basis, I submit that precedent clearly requires more than simple negligence for attorney’s fees to be awarded as judgment derivative. Veasley, 610 So.2d at 295. The agreed judgment herein reflects that Fulton failed to prove that Farm Bureau’s actions constituted more than simple negligence, and as a result, Fulton failed to establish a legal basis for an award of attorney’s fees as judgment derivative in this case. The appellant bears the responsibility to designate the portions of the record necessary to the understanding of his issues on appeal, and Fulton failed to provide a record to support a finding of abuse of discretion by the circuit judge. I respectfully submit a review of this case on appeal shows no abuse of discretion in the circuit court’s treatment of Fulton’s post-trial motion to amend the judgment as a Rule 59(e) motion.

BARNES, J., JOINS THIS OPINION IN PART.

      . According to Fulton’s brief, he claims that Farm Bureau refused to pay his uninsured-motorist policy until a lawsuit was filed. However, Farm Bureau alleges that Fulton failed to notify Farm Bureau about his decision to pursue an uninsured-motorists claim for over six months after the collision. Farm Bureau claims that it was still investigating the claim when Fulton filed his lawsuit on January 10, 2008.

      . See also Briney v. U.S. Fidelity & Guar. Co., 714 So.2d 962, 966 (¶ 13) (Miss.1998) (A trial court’s denial of a Mississippi Rule of Civil Procedure 60 motion is also reviewed under an abuse-of-discretion standard.).

      . Shipley v. Ferguson, 638 So.2d 1295, 1299 (Miss.1994); Gordon v. Gordon, 929 So.2d 981, 986-87 (¶¶ 24-28) (Miss.Ct.App.2006); Romney v. Barbetta, 881 So.2d 958, 962-63 (¶¶ 20-23) (Miss.Ct.App.2004); Prescott v. Prescott, 736 So.2d 409, 415-16 (¶¶ 25-32) (Miss.Ct.App.1999).

        .Miss. Power & Light Co. v. Cook, 832 So.2d 474, 486 (¶ 40) (Miss.2002); State Farm Fire and Cas. Co. v. Simpson, 477 So.2d 242, 253 (Miss.1985). See also Bank of Miss. v. Miss. Life and Health Ins. Guar., 850 So.2d 127, 137 (¶ 39) (Miss.Ct.App.2003).

      . The comment to Mississippi Rule of Civil Procedure 54(d) acknowledges that expenses include all expenditures actually made by a litigant in connection with the action and explains that both fees and costs are included in the term "expenses.” The comment continues to explain that fees normally refer to filing fees, and the comment reflects that an award of "costs” by a judge normally includes the reimbursement for such filing fees paid by the party in whose favor the cost award is made. However, the comment also provides that absent judicial discretion, such items constituting actual expenses, such as attorney’s fees, fail to qualify as statutory fees or reimbursable costs and normally must be borne by the litigants. As previously stated, a review of Mississippi law reflects that a judge possesses the discretion to make a collateral award of the expense of attorney’s fees in cases where punitive damages are awarded, where intentional misconduct rising above simple negligence exists, or where authorized by contract or statute. Under the federal rules, Federal Rule of Civil Procedure 54(d)(2)(B) reflects the general rule that attorney's fees are not awarded as part of costs unless authorized by statute, by the Federal Rules of Civil Procedure, or by a court order stating otherwise. See Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 254-57, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Federal Rule of Civil Procedure 54(d) clarifies that a claim for attorney’s fees must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages.

      . The majority raises the cases of Bruce v. Bruce, 587 So.2d 898, 903 (Miss.1991) and Cruse v. Nunley, 699 So.2d 941, 946 (¶ 18) (Miss. 1997), both of which allowed the trial court to make a collateral award attorney's fees as judgment derivative. However, we note that in both cases, attorney's fees were authorized by statute or established past precedent such as divorce actions based upon financial need. See Dillon v. Dillon, 498 So.2d 328, 331 (Miss.1986) (The Mississippi Supreme Court stated that the broad scope of Mississippi Code Annotated section 93-5-23 (Supp.1979) grants chancellors the authority to award attorney's fees in divorce proceedings.).

      . In Grisham v. Hinton, 490 So.2d 1201, 1205-08 (Miss.1986), the supreme court determined that in punitive-damages cases, attorney's fees were awarded collaterally with tire award of costs and expenses by the trial judge due to misconduct of a party, but the court also noted that attorney's fees could also be awarded as an element of actual damages if proven. The Grisham court reviewed jurisprudence and explained that attorney's fees are not awarded in cases absent a finding of wrong doing because, historically, our jurisprudence refused to consider filing or defending a case as “wrong doing,” and hence some intentional misconduct was required to support such an award. The Grisham court explained that our judicial system sought to ensure access to the courts and justice without financial barriers.

      . Duggins v. Guardianship of Washington Through Huntley, 632 So.2d 420, 431 (Miss.1993) (The Mississippi Supreme Court cited and embraced its early comment in Andrew Jackson Life Ins. Co., 566 So.2d at 1186 n. 13.); Cont’l Cas. Co. v. Garrett, 173 Miss. 676, 161 So. 753, 755 (1935) (recognizing recovery under common law for tort damages that are proven to be reasonably foreseeable damages of one’s tortious acts).

      . I note that the record on appeal fails to contain the instructions to the jury reflecting how damages were defined. Mississippi Rule of Appellate Procedure 10(b) states that the appellant bears the responsibility to provide the record on appeal to support his argument. I also note that Fulton pled attorney’s fees as actual economic extra-contractual damages for gross negligence due to the delay in the investigation and payment of his uninsured-motorist claim, and then he was awarded extra-contractual damages for simple negligence in Farm Bureau's delay. Fulton has raised no error on appeal as to the sufficiency of this award. Fulton's motion herein would require the circuit judge to reconsider the judgment with respect to the sufficiency of the extra-contractual damages awarded by the jury as an element of those damages.

      . In Stewart v. Gulf Guaranty Life Insurance Co., 846 So.2d 192, 201 (¶ 36) (Miss.2002), in a general-verdict case, the Mississippi Supreme Court explained that without a finding, the court cannot assume the jury found conduct rising to the level of an intentional tort, amounting to gross negligence or recklessness, thus warranting extra-contractual damages. In the case before us, the judgment signed by both parties as to form and the circuit judge specifies that the jury found only negligence.

      . A review of the record herein reflects that Fulton waited six months after the injury to notify Farm Bureau of the claim, and Fulton then filed suit against Farm Bureau only two months after providing delinquent notice of his claim.

      .In his treatise on attorneys’ fees, Robert Rossi states that:
      As a general rule, and in the absence of any contractual or statutory provision therefore, each party in litigation must pay his or her own attorney’s fees, and attorney’s fees and expenses of litigation incurred by the plaintiff, or which the plaintiff is obligated to pay, in the litigation of the party's claim against the defendant, are not recoverable as an item of damages, either in a contract action or a tort action.
      The reasons for this rule, it has been said, are that these expenses are not the legitimate consequences of the tort or breach of contract complained of; that to allow these expenses to the plaintiff which are never allowed to a successful defendant would give the former an unfair advantage in the contest; and that where the statute provides that the successful party may be allowed certain sums, termed "costs,” by way of indemnity, for his expenses in the action, it is not in the power of courts or juries to increase the allowance fixed by statute, however inadequate that allowance may be.
      1 Robert L. Rossi, Attorneys’ Fees § 8:1 (3d ed.)

        .See Aetna Cas. and Sur. Co. v. Day, 487 So.2d 830, 832-35 (Miss.1986) (finding no punitive-damages instruction should have been given in suit against an insurance carrier for intentional refusal to pay a claim because of a factual dispute regarding time of notice of claim, thus providing an arguable basis for the delay).

      . In determining what constitutes an arguable reason for delaying payment of an insurance claim, we find this requirement is illustrated in past cases: Gregory v. Cont’l Ins. Co., 575 So.2d 534, 541-42 (Miss.1990); Cossitt v. Federated Guar. Mut. Ins. Co., 541 So.2d 436, 443 (Miss.1989); Moss, 513 So.2d 927; State Farm Fire & Cas. Co. v. Simpson, 477 So.2d 242, 250 (Miss.1985); Blue Cross & Blue Shield of Miss. v. Campbell, 466 So.2d 833, 840 (Miss.1984); Sobley v. S. Natural Gas Co., 210 F.3d 561, 564-65 (5th Cir.2000).

      . See M.R.A.P. 10, 11(a), and 30.

      . Fulton, as the appellant, provided this court with the agreed judgment but did not provide this reviewing court with a copy of the jury instructions or the portions of the record containing the testimony at trial.


source: Caselaw Access Project

license: Public Domain

text:
    ROUNDSTONE DEVELOPMENT, LLC, Appellant v. CITY OF NATCHEZ, Mississippi and the Mayor & Board of Aldermen of the City of Natchez, Mississippi, Appellees.
    No. 2010-CA-00274-COA.
    Court of Appeals of Mississippi.
    Nov. 15, 2011.
    Rehearing Denied May 8, 2012.

      Michael V. Cory Jr., Dale Danks Jr., Jackson, attorneys for appellant.
    Everett T. Sanders, attorney for appel-lees.
    Before GRIFFIS, P.J., BARNES and ROBERTS, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. This case concerns a zoning dispute. Roundstone Development, LLC applied to re-zone a parcel of real property in Natchez, Mississippi, from O-L (open land) to R-l (single-family residential) to develop a residential subdivision on the property. The Natchez mayor and Board of Aider-men (“Board”) denied Roundstone’s request to re-zone the property. On appeal, the Adams County Circuit Court affirmed the decision of the City of Natchez (“City”). On appeal to this Court, Round-stone argues that: (1) the City improperly required the property be re-zoned as a prerequisite for the development to go forward; (2) the City’s denial of the request to re-zone the property was arbitrary and capricious, discriminatory, illegal, and unsupported by substantial evidence; (3) the City’s denial of the request to re-zone the property violated the Fair Housing Act; and (4) the circuit court erred when it denied Roundstone’s motions to strike the City’s brief and for a judgment on the pleadings. We find no error and affirm the judgment of the circuit court.

FACTS

¶ 2. Roundstone acquired title to a tract of land in Natchez, Mississippi, with the intent to build a subdivision containing sixty-five homes on the property. The development was to be named the Audubon Terrace Subdivision. The 1,700 square-foot homes were to have three bedrooms and two bathrooms. The subdivision was to include a swimming pool, business center, fitness center, and community center.

¶ 3. The development was to be subsidized by a federal tax-credit program administered by the Mississippi Home Corporation. In return for the tax credit, Roundstone would be required to rent the homes to qualifying applicants for a period of fifteen years. To qualify, an applicant would have to have an income below a certain level. It was estimated that rent would be between $375 and $425 per month. After fifteen years, the renter would have the option to buy the home at a discounted price, estimated at a purchase price of approximately $65,000.

¶4. The record contains three letters from city officials that Roundstone claims it relied on when it decided to purchase the property. Roundstone claims the letters were provided to it and its lenders, but none of the letters were addressed to Roundstone. The record does not show what relationship, if any, Roundstone had with the recipients of the letters.

¶ 5. On February 10, 2006, Andrew L. Smith, Planning Director, wrote a letter to David Strange, with Neighborhood Development Alliance, LLC, as follows:

Re: Zoning Verification
Neighborhood Development Alliance, LLC
Audubon Terrace Subdivision, Phase I Dear Mr. Strange,
The above referenced project is zoned R-l (Single Family) Residential District according to the Official Zoning Map of the City of Natchez. The use of the property as single-family development is a permitted use under the sites R-l zoning classification.
Any new construction must be in accordance with the respective subdivision regulations and building codes of the City.

¶ 6. On December 21, 2006, Dennis E. Story, Director of Planning and Zoning, wrote a letter to Strange that tracks verbatim the February 10th letter.

¶ 7. On May 16, 2007, Walter Huston, Land Use Planner, wrote a letter to Mr. Phillips, with the SunAmerica Housing Fund, LP, which states:

Re: Audubon Terrace, Natchez, Mississippi (“the Project”)
Please be advised that: (i) the Project is zoned R-l (Single-Family Residential District) which zoning allows single-family use as a matter of right and is within the city limits of Natchez, Mississippi ... and (iii) there are no violations of zoning law, or non-conforming uses and the Project is in compliance with all applicable zoning and subdivision laws, ordinances and regulations.... Further, there are no other requirements which must be satisfied in order for the Project to fully comply with applicable zoning and subdivision laws, ordinances, regulations^] and parking requirements.

¶ 8. The letters were incorrect about the zoning status of the land. Approximately nine acres of the land were zoned R-l. The remaining seventeen acres were zoned OL. The City’s ordinance defines O-L zones, stating:

[O-L] districts are composed mainly of unsubdivided lands that are vacant or in agricultural or forestry uses, with some dwellings and some accessory uses. The regulations are designed to protect the essentially open character of the districts by prohibiting the establishment of scattered uses that are unrelated to any general plan of development and that might inhibit the best future urban utilization of the land. It is intended that land in these districts will be reclassified to its appropriate residential, commercial, and industrial category in accordance with the amendment procedure set forth herein whenever such land is subdivided into urban building sites.

City of Natchez Zoning Ordinance and Subdivision Regulations § IV(1) (emphasis added). The ordinance defines R-l zones as follows:

These districts are composed mainly of areas containing one-family dwellings and open areas where similar residential development seems likely to occur; few two-family and multiple-family dwellings are found in these areas. The district regulations are designed to protect the residential character of the areas by prohibiting all commercial and industrial activities, to encourage a suitable neighborhood environment for family life by including among the permitted uses such facilities as schools and churches[,] and to preserve the openness of the areas by requiring certain minimum yard and area standards to be met.

City of Natchez Zoning Ordinance and Subdivision Regulations § IV(2). The ordinance provides that “Dwelling, one-family” is a “Use by Right” in both O-L and R-l zones.

¶ 9. Roundstone sought approval for its site plan and subdivision plat from the Natchez Planning Commission (“Commission”). The Commission decided that before it could approve the site plan and subdivision, the O-L area had to be rezoned to R-l. Roundstone then submitted an application to the Commission to rezone the property. The Commission voted to deny the request to re-zone. Round-stone then appealed the Commission’s decision to the Board.

¶ 10. On February 16, 2008, at its regularly scheduled meeting, the Board considered the zoning issue. Roundstone’s attorney presented argument in favor of the request to re-zone. Those same arguments are renewed on appeal, so we will discuss them below. Next, a representative of the Mississippi Home Corporation explained the tax-credit program. Then, concerned citizens were allowed to speak, the majority of whom were opposed to the development. A motion was made to “affirm the ... Commission’s decision and deny the development.” The motion carried unanimously.

¶ 11. Roundstone filed a bill of exceptions with the circuit court. The circuit court affirmed the Board’s decision. Roundstone appealed to the Mississippi Supreme Court, which deflected the appeal to this Court for review.

STANDARD OF REVIEW

¶ 12. When the decision of a local zoning authority is appealed to the circuit court, the court acts as an appellate court. Broadacres, Inc. v. City of Hattiesburg, 489 So.2d 501, 503 (Miss.1986). This Court and the circuit court, in an appellate capacity, must apply the same standard of review. City of Biloxi v. Hilbert, 597 So.2d 1276, 1280 (Miss.1992). We can reverse the zoning authority’s decision only if that decision was “arbitrary, capricious, discriminatory, illegal, or not supported by substantial evidence.” Id. Indeed, if the zoning authority’s decision appears “fairly debatable,” the decision must be affirmed. Id.

ANALYSIS

1. Whether the City improperly required that the property be re-zoned as a prerequisite for the development to go forward.

¶ 13. Roundstone argues the development was in compliance with the ordinance and that the City’s decision to require re-zoning was arbitrary and capricious. Roundstone points out that single-family dwellings are permitted uses in both R-l and O-L zones. Roundstone contends that because its subdivision was to contain single-family dwellings, no rezoning was necessary.

¶ 14. The ordinance states: “It is intended that land in [O-L] districts will be reclassified to its appropriate residential, commercial, and industrial category ... whenever such land is subdivided into urban building sites.” City of Natchez Zoning Ordinance and Subdivision Regulations § IV(1). Neither party disputes that Roundstone’s residential subdivision required “subdivision into urban building sites.”

¶ 15. There may ■ be a question as to whether the ordinance required that O-L districts be reclassified before they can be subdivided into urban building sites. Perhaps, the ordinance might be read to mean that the land should be reclassified after it is subdivided. In addition, the ordinance does not state that reclassification is required. Rather, the ordinance merely states that there must be an intent to reclassify whenever the land is subdivided.

¶ 16. “In construing a zoning ordinance, unless manifestly unreasonable, great weight should be given to the construction placed upon the words by the local authorities.” Hall v. City of Ridgeland, 37 So.3d 25, 40 (¶ 50) (Miss.2010) (quoting Columbus & Greenville Ry. Co. v. Scales, 578 So.2d 275, 279 (Miss.1991)). Here, the City decided the ordinance did, in fact, require O-L districts to be reclassified before they could be subdivided into urban building sites. The language of the ordinance is indeed flexible enough to accommodate the City’s interpretation. The City’s interpretation is consistent with the following provision of the ordinance: “The regulations [of O-L districts] are designed to protect the essentially open character of the districts by prohibiting the establishment of scattered uses that are unrelated to any general plan of development and that might inhibit the best future urban utilization of the land.” City of Natchez Zoning Ordinance and Subdivision Regulations § IV(1). By requiring a developer to seek reclassification before he can undertake a large project in an O-L district, the City reserves the authority to make sure that the proposed use fits within the City’s larger, long-term goals.

¶ 17. We find that the City’s interpretation of the ordinance was not manifestly unreasonable. Therefore, the City did not act arbitrarily or capriciously when it required Roundstone to re-zone the property. This issue is without merit.

2. Whether the Board’s denial of Roundstone’s request to re-zone the property was arbitrary and capricious.

¶ 18. Next, Roundstone contends that its request to re-zone the property should have been approved. Roundstone argues that the City’s denial of the request was arbitrary and capricious.

¶ 19. Ordinarily, the proponent of a request to re-zone property would be required to show, by clear and convincing evidence, “either[:] (1) ... a mistake in the original zoning, or (2) that the character of the neighborhood has changed to such an extent as to justify reclassification, and there was a public need for rezoning.” Adams v. Mayor and Bd. of Aldermen of Natchez, 964 So.2d 629, 633-34 (¶ 12) (Miss.Ct.App.2007) (citation and quotation omitted).

¶ 20. Here, because of the unusual nature of the O-L zone, we are faced with a different analysis. The ordinance’s amendment procedure provides in part:

It is ... declared to be the public policy to amend this ordinance only when one or more of the following conditions prevail:
a. Error. There is a manifest error in the ordinance;
b. Change in conditions. Change or changing conditions in a particular area, or in the metropolitan -area generally, make a change in the ordinance necessary and desirable;
d. Subdivision of land. The subdivision or imminent subdivision of open land into urban building sites makes reclassification necessary and desirable.

City of Natchez Zoning Ordinance and Subdivision Regulations § XV(1). Thus, as the ordinance provides, the reclassification of O-L areas, when there is an imminent subdivision of those areas into urban building sites, is different from the usual mistake or change-in-character re-zoning.

¶ 21. Neither party disputes that there was an “imminent subdivision of open land,” as Roundstone had applied for subdivision approval. The only question under the ordinance was whether reclassification was “necessary and desirable.” That phrase confers substantial discretion on the Board to reject or deny an application to reclassify O-L areas.

¶ 22. The law prohibits a zoning authority from applying its ordinance in an arbitrary and capricious manner. Briarwood, Inc. v. City of Clarksdale, 766 So.2d 73, 80 (¶ 25) (Miss.Ct.App.2000). Those terms are defined as follows:

Arbitrary, as defined by our supreme court, refers to an act done not according to reason or judgment, but which is solely dependent upon the will alone. It has defined capricious “as any act done without reason, in a whimsical manner, implying either a lack of understanding of or a disregard for the surrounding facts and settled controlling principles.”

Id. at (¶26) (quoting Burks v. Amite County Sch. Dist., 708 So.2d 1366, 1370 (¶ 14) (Miss.1998)). The party challenging the zoning authority’s decision bears the burden of proving that the decision was arbitrary and capricious. Id. at (¶ 25).

¶ 23. Here, the Board decided that, under the ordinance, the reclassification of the O-L area at issue was not necessary and desirable. Upon our review of the minutes of the Board meeting held on February 16, 2008, we find that the Board’s decision was not arbitrary and capricious.

¶ 24. There were three distinct issues raised at the meeting. Concerned citizens and some Board members stated that the land had been contaminated by a chemical spill some years prior, and this might present health hazards to the future occupants of the subdivision. Some Board members also expressed concerns that the development would cause traffic congestion. Also, surrounding property owners expressed concerns that a large, densely populated cluster of rental houses would have a negative impact on their use and enjoyment of their properties.

¶ 25. Roundstone responded to the environmental concern by stating that it had hired a private company to perform some environmental tests. Those tests did not raise substantial concerns about the safety of the land, aside from the presence of some old railroad ties that had been treated with creosote, which is toxic. In response to the traffic-congestion concern, Roundstone pointed out that city engineers had performed a traffic study. The study opined that the development would not pose a significant traffic problem. As to the impact on surrounding properties, Roundstone argues the concerns about the development’s impact on surrounding properties were motivated by class and/or racial animus.

¶ 26. The Board was not bound by the results of the environmental tests or the traffic study. The Mississippi Supreme Court has stated:

[T]he Mayor and Board of Alderman were authorized to consider the statements expressed by all the landowners at the hearing, as well as to call upon their own common knowledge and experience in their town. It is manifest that the Mayor and Board took into consideration all statements, both sworn and un-sworn, and their common knowledge and familiarity about their small community, in reaching their decision. We believe this method to be sound and practical, and courts should respect such findings unless they are arbitrary, capricious, and unreasonable.

City of Jackson v. Aldridge, 487 So.2d 1345, 1347 (Miss.1986) (quoting Board of Aldermen of Bay Springs v. Jenkins, 423 So.2d 1323, 1327-28 (Miss.1982)). As such, the Board was authorized to use its common knowledge about the community.

¶27. In Hillside Terrace, LB ex rel. Hillside Terrace I LLC. v. City of Gulfport, 18 So.3d 339, 343 (¶¶ 10-12) (Miss.Ct.App.2009), this Court affirmed the zoning authority’s decision to deny a permit to construct an apartment complex on a parcel of property. The zoning authority’s decision was based, in part, on a concern that the property was prone to flooding. Id. On appeal, the landowner argued that the zoning authority lacked the expertise to base its decision on what was essentially an engineering issue. Id. This Court disagreed, stating the city officials were authorized to use their common knowledge about the community. Id. Likewise, here, we find the Board was authorized to use its common knowledge when considering potential traffic and environmental problems with the proposed development.

¶ 28. Furthermore, this Court is not persuaded that racial and/or class animus played a role in the Board’s decision. Roundstone offers no proof to support its assertion that the Board had such a discriminatory motive. Indeed, Roundstone seems to imply that because the Board’s decision blocked the construction of low-income housing, a presumption of an improper motive is raised. The Board’s decision is presumptively valid. Briarwood, Inc., 766 So.2d at 80 (¶ 25). To prevail before this Court, Roundstone bears the burden to prove the Board’s decision was arbitrary and capricious. In the absence of such evidence, we cannot conclude that the Board’s decision was based on improper considerations of class and/or race.

¶ 29. As the Mississippi Supreme Court has stated, an appellate court “will not substitute [its] judgment as to the wisdom or soundness of the municipality’s action.” Aldridge, 487 So.2d at 1347. When the zoning authority’s decision appears “fairly debatable,” the decision must be affirmed. Id. (citing Killegrew v. City of Gulfport, 293 So.2d 21, 22 (Miss.1974); Currie v. Ryan, 243 So.2d 48, 51-52 (Miss.1970)).

¶ 30. After a careful review of the record, we conclude that the Board did not act arbitrarily and capriciously when it denied Roundstone’s request to re-zone the property. Accordingly, this issue lacks merit.

3. Whether the City’s denial of the request to re-zone the property violated the Fair Housing Act.

¶ 31. Roundstone next argues the City violated the Fair Housing Act (“Act”). Roundstone contends the City discriminated against the future tenants of the subdivision on the basis of class and/or race in violation of the Act.

¶ 32. Ordinarily, a claim under the Act is litigated in a trial court. See Homebuilders Ass’n of Miss., Inc. v. City of Brandon, 640 F.Supp.2d 835, 836-37 (S.D.Miss.2009). At trial, evidence would be presented, and on appeal, the appellate court would have an adequate record to review. See Woods-Drake v. Lundy, 667 F.2d 1198, 1199 (5th Cir.1982). This case is an appeal from the Board’s decision to deny a re-zoning request. We have no testimony or exhibits to examine, and we have no rulings from a trial court or verdicts from a jury on the issues that arise in a claim under the Act. We are of the opinion that an appeal from the Board is not an appropriate forum to assert a claim under the Act.

¶ 33. Further, the Act is a complicated federal statute. See 42 U.S.C. §§ 3601-3619 (2006). Yet Roundstone’s brief devotes a mere five sentences to this issue. The only authority cited is the statute itself, and it is cited only by its common name. The “argument” is simply a conclu-sory assertion that the City had an improper motive.

¶ 34. Mississippi Rule of Appellate Procedure 28(a)(6) provides: “The argument shall contain the contentions of the appellant ... and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” (Emphasis added). It is not enough to make a mere assertion and a reference to some authority. This Court has no obligation to develop an appellant’s argument. Simply stated, we will not act as an advocate for one party to an appeal. When the appellant fails to make a meaningful argument on an issue, the issue is considered waived. Randolph v. State, 852 So.2d 547, 558 (¶ 30) (Miss.2002). Based on Round-stone’s non-compliance with Mississippi Rule of Appellate Procedure 28(a)(6), he has waived his issue by failing to present a meaningful argument.

U. Whether the circuit court erred when it denied Roundstone’s motions to strike the City’s brief and for a judgment on the pleadings.

¶35. Roundstone contends that the circuit court should have stricken the City’s appellate brief and entered a judgment on the pleadings because the City did not file its brief with the circuit court within the time frame established by the rules.

¶ 36. Uniform Rule of Circuit and County Court 5.06 provides in part: “Briefs filed in an appeal on the record must conform to the practice in the Supreme Court, including ... time of filing. ... The consequences of failure to timely file a brief will be the same as in the Supreme Court.” Mississippi Rule of Appellate Procedure 31(b) provides in part: “The appellee shall serve and file the appellee’s brief within 30 days after service of the brief of the appellant.” Rule 31(d) provides in part: “If an appellee fails to file the appellee’s brief as required, such brief, if later filed, may be stricken from the record on motion of appellant[.]”

¶ 37. The record shows that Round-stone filed and served its brief on January 28, 2009. Therefore, the City’s brief was due on or about March 2, 2009. The City did not file its brief by that date. Instead, on March 13, 2009, the City filed a motion for enlargement of time, requesting an extension until April 2, 2009. The circuit court never ruled on the motion. By June 17, 2009, the City still had not filed its brief, so Roundstone filed a motion for a judgment on the pleadings. Before a ruling was obtained on that motion, on June 25, 2009, the City filed another motion for enlargement of time, requesting an extension until July 15, 2009. The circuit court granted the City’s motion by order dated June 29, 2009. The City filed another motion for enlargement of time on July 15, 2009, requesting an extension until July 22, 2009. The circuit court never ruled on the motion. Finally, on July 24, 2009, the City filed its brief.

¶ 38. Roundstone filed a motion to strike the City’s brief. A motion hearing was held on August 3, 2009. The circuit court denied the motion, stating:

[T]he City on this appeal could have been more diligent in filing its brief. It has now been filed.... This is a matter where the court does have a great deal of discretion. The law does favor deciding matters on the merits without deciding them on procedural deficiencies. That being said, however, there are situations where clearly enough is enough.... The court is going to allow the appeal to proceed as a matter of discretion.

The rules do, indeed, give appellate courts discretion on this issue. Rule 31(d) states that the appellee’s brief may be stricken if untimely filed. We cannot find error in the circuit court’s decision. The circuit court properly exercised its discretion. Accordingly, this issue is without merit.

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

LEE, C.J., MYERS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RUSSELL, J. IRVING, P.J., NOT PARTICIPATING.

CARLTON, J.,

dissenting:

¶ 40. I respectfully dissent from the majority’s opinion. The order of the circuit court reflects that the court used the wrong standard in reviewing the decision by the Mayor and the Board of Aldermen of the City of Natchez, wherein the City affirmed the City’s Planning Commission’s denial of Roundstone Development, LLC’s request for approval of a site plan, subdivision plat approval, and re-zoning of Audubon Terrace Development. The circuit court found the decision to deny Round-stone’s site plan, subdivision plat, and rezoning was fairly debatable and supported by substantial evidence and was neither arbitrary nor capricious. However, I submit that approval of a site plan and subdivision plan must be reviewed differently than re-zoning decisions.

¶ 41. Re-zoning decisions constitute quasi legislative decisions and are properly reviewed with the standard applied by the circuit court herein, as fairly debatable and supported by substantial evidence and neither arbitrary or capricious. However, I submit that approval of site plans and subdivision plats, like building permits, constitute ministerial acts. Since the site plan and subdivision plat met current zoning requirements and no re-zoning was needed, then the City cannot deny approval without a legally valid reason.

¶ 42. A letter from the City, to Mr. Phillips of SunAmerica Housing Fund, LP contained in the record, dated May 16, 2007, states the proposed subdivision met current standards, as the following excerpt demonstrates:

Please be advised that: (I) the Project is zoned R-l (Single-Family Residential District) which zoning allows single-family use as a matter of right and is within the city limits of Natchez, Mississippi^] (ii) the Project is not located within an overlay zone district (such as, for example a PUD or an historical district)[;] and (iii) there are no violations of zoning law, or non-conforming uses and the Project is in compliance with all applicable zoning and subdivision laws, ordinances and regulations (including, without limitation, all those establishing or relating to parking requirements). Further, there are no other requirements which must be satisfied in order for the Project to fully comply with applicable zoning and subdivision laws, ordinances, regulations^] and parking requirements. Copies of the regulations and ordinances of the City of Natchez, Mississippi!!,] that establish and define the parking requirements and permitted uses for the R-l (Single-Family Residential Zoning District) zone are attached to this letter.

¶ 43. As stated, the record reflects that when the property was purchased, the proposed use met existing zoning requirements for development of the property, and the subsequent re-zoning demanded by the City was unnecessary for the property’s development. Moreover, the re-zoning demanded by the City differed from zoning requirements existing when the property was purchased for the proposed use. The unnecessary demand for rezoning delayed the project and provided a frustrating distraction in confusing the review of the legality of the City’s denial of the site plan and subdivision plat, particularly since the proposed project met existing zoning requirements. In denying approval of the site plan and subdivision plat, the City abused its discretion as Round-stone submitted it as a matter of right in compliance with existing zoning requirements.

¶ 44. This Court, in Vineyard Investments, LLC v. City of Madison, 999 So.2d 438, 442 (¶ 10) (Miss.Ct.App.2009), previously held that a City had acted outside of its discretion by denying building permits that met current zoning ordinances and building regulations. Similarly, in Berry v. Embrey, 238 Miss. 819, 824, 120 So.2d 165, 167 (1960), the Mississippi Supreme Court recognized that a building permit for a shopping center, which conformed to building regulations, could not be denied because of a proposed use where the area was not zoned against such use. Furthermore, precedent has recognized that the issuance of a permit constitutes a purely ministerial act, and a city lacks discretion to deny when applicable building code and zoning ordinances are met. See Thompson v. Mayfield, 204 So.2d 878, 880 (Miss.1967). In applying precedent to this case, I respectfully submit that the City abused its discretion in denying approval of the site plan and subdivision plat for a use that met existing requirements.

¶45. Additionally, Roundstone asserts that the City considered improper criteria of an alleged undesirable elass of people in demanding re-zoning. Roundstone essentially argues that the City’s requirement of re-zoning constituted a subterfuge and a tainting of its consideration of improper demographic criteria to block the development, since the proposed use met zoning and building requirements when the property was purchased. If shown by sufficient evidence that the City of Natchez indeed considered improper discriminatory demographic criteria, then precedent reflects that such decision by the City would be arbitrary, capricious, and improper in denying approval of the site plan and subdivision plat for the use that met existing requirements.

¶ 46. However, we need not reach that issue today. The approval of the site plan and subdivision plat herein required no re-zoning for approval; therefore, the denial of the re-zoning fails to impact the approval of the site plan and subdivision plat submitted in compliance with current zoning requirements. The proposed use satisfied existing zoning and building ordinances; therefore, the City abused its discretion in denying approval of the site plan and subdivision plat without a legally valid reason. See 83 Am. Jr.2d Zoning and Planning § 400 (“Where the creation of a planned unit development is authorized, the applicant must meet the standards of the ordinance, but the applicant need not adduce the proof essential to the granting of a variance.”) (citing Chandler v. Kroiss, 291 Minn. 196, 190 N.W.2d 472 (1971)). See generally Woodhouse v. Bd. of Comm’rs. of Town of Nags Head, 299 N.C. 211, 261 S.E.2d 882 (1980) (denial improper where development was not prohibited by current zoning ordinances); LaSalle Nat’l Bank v. Lake County, 27 Ill.App.3d 10, 325 N.E.2d 105 (1975) (denial was arbitrary, capricious, and unreasonable where developers substantially complied with requirements of existing ordinances).

¶ 47. Returning to review the key analysis before us — was there error in the trial court’s review of whether the City had abused its discretion in performing the ministerial acts of approving a site plan and subdivision plat. In Vineyard Investments, LLC, 999 So.2d at 441-42 (¶ 10), this Court recognized that an applicant’s right to erect a building for which a permit is sought is otherwise absolute where no legally valid reason exists to deny the building permit. As stated differently, issuance of a permit constitutes a ministerial act, and where zoning and building requirements are satisfied, then no legal basis exists for the city to deny the permit. Id. at 440-41 (¶ 7); see Berry, 238 Miss, at 824-25, 120 So.2d at 168 (finding city officials act outside of their authority when denying building permit where existing requirements are met, and aggrieved property owner may obtain a writ of mandamus or may appeal from the order of the municipality denying such permit).

¶ 48. In applying the foregoing precedent to the present case, since the proposed use, site plan, and subdivision plat met the existing zoning requirements, as acknowledged by the City in the May 16, 2007 letter quoted herein, then the City possessed no discretion to deny the permit without a legally valid reason. The circuit court failed to review whether any legally valid reason existed to deny approval of the site plan or subdivision plat. This Court in Vineyard Investments, LLC, 999 So.2d at 441-42 (¶ 10), acknowledged that an applicant’s right to erect a building, which met current zoning requirements, was absolute, and this Court reversed and remanded the case to the circuit court.

¶ 49. Based upon the foregoing reasons, I respectfully dissent.

RUSSELL, J., JOINS THIS OPINION.

      . Mr. Phillips’s first name is not indicated in the record.

      . See McKee v. City of Starkville, 2010 WL 3547993 *4 (¶ 12) (Miss.Ct.App.2010) (recognizing that zoning and re-zoning are legislative matters); Childs v. Hancock County Bd. of Supervisors, 1 So.3d 855, 859 (¶ 12) (Miss.2009) (The classification of property for zoning purposes is a legislative rather than judicial matter, and the burden of proof for rezoning is on the individual asserting invalidity of the re-zoning or seeking re-zoning); Miss. Manufactured Housing Ass'n v. Bd. of Supervisors of Tate County, 878 So.2d 180, 187 (¶ 17) (Miss.Ct.App.2004) (“[Z]oning ordinance must be construed as a whole, and it may not be dissected and considered as a multitude of ordinances having no relation to the general scheme of zoning."). See generally Sherman v. City of Colorado Springs Planning Comm'n, 763 P.2d 292 (Col.Ct.App.1983); 83 Am. Jur.2d Zoning and Planning § 480 (2d ed. 2003) ("Conditions imposed for approval of subdivision plans must be reasonable in the context of the subdivision in issue, be necessary for the harmonious development of the municipality, and be specifically stated.”).

      . See Vineyard Inv., LLC v. City of Madison, 999 So.2d 438, 440-41 (117) (Miss.Ct.App.2009).

      . Walter Huston, Land Use Planner for the Department of Planning and Zoning, drafted the letter.

      . Mr. Phillips's first name is not indicated in the record.

      . Regardless of whether the letter was addressed to Roundstone or to SunAmerica Housing Fund, LP, one of Roundstone’s alleged lenders, the letter clearly provided that the project met the current zoning requirements. This letter is indicative of the other two letters in the record showing that Round-stone’s proposed subdivision met the zoning requirements.

      .The use of land is subject to a valid exercise of a municipality’s power to zone and control property use within its boundaries. See 101A C.J.S. Zoning & Land Planning § 6 (2005).

      . Regarding exclusionary zoning tactics, see generally BAC, Inc. v. Bd. of Supervisors of Millcreek Twp., 534 Pa. 381, 633 A.2d 144 (1993); Toll Bros. v. Twp. of W. Windsor, 173 N.J. 502, 803 A.2d 53 (2002).

      . See generally Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 146-49 (3rd Cir.1977); United States v. City of Black Jack, Mo., 508 F.2d 1179, 1184-85 (8th Cir.1974).

      . Regarding ministerial acts, see generally Powell v. State Tax Comm'n, 233 Miss. 185, 101 So.2d 350 (1958); City of Jackson v. Sunray DX Oil Co., 197 So.2d 882 (Miss.1967). See also 5 Rathkopf’s The Law of Zoning and Planning, § 87:3 (2005) ("Site plan approval is the process by which a local board, typically the planning board or commission, reviews a project that is permitted as a matter of right.”).