author: LAMAR, Justice,

text:
    O.R. GARRETSON, and Wife, Carolyn C. Garretson, Harry F. Garretson and Wife, Jean H. Garretson v. MISSISSIPPI DEPARTMENT OF TRANSPORTATION.
    No. 2013-CA-01511-SCT.
    Supreme Court of Mississippi.
    Nov. 20, 2014.
    Rehearing Denied Feb. 12, 2015.

      A. Malcolm N. Murphy, Lucedale, attorney for appellants.
    Jack H. Pittman, Christopher M. Howdeshell, Hattiesburg, attorneys for ap-pellee.
    Before WALLER, C.J., LAMAR and COLEMAN, JJ.
   LAMAR, Justice,

for the Court:

¶ 1. The Mississippi Transportation Commission (“MTC”) procured some land from the Garretsons via eminent domain to construct a bypass in Greene County. The Garretsons later filed a complaint against the Mississippi Department of Transportation (“MDOT”), alleging that the bypass construction had caused silt to flood onto their remaining land, damaging their timber. MDOT filed a motion for summary judgment and argued that it was immune under Mississippi Code Section 11^6-9(1), subsections (d) (discretionary-function immunity) and (p) (design immunity). We agree that MDOT is immune from liability under subsection (p) and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. MTC filed a complaint to condemn some of the Garretsons’ land, and the Greene County Special Court of Eminent Domain held a hearing on MTC’s complaint. The jury awarded the Garretsons $50,000 as just compensation for their land, and the trial judge filed the judgment on March 11, 2004.

¶ 3. The Garretsons subsequently served a Notice of Claim on “MDOT and/or MTC.” In their notice, the Gar-retsons alerted MTC and MDOT that they planned to bring a claim for “damages as a result of silt flooding that has occurred to their land adjacent to the North side of the new overpass that has been constructed over the existing State Highway No. 63.” The Garretsons further alleged that MDOT “ha[d] trespassed upon [their land] and has and is causing damage.”

¶ 4. The Garretsons listed the date of loss as “May 20, 2004 and continuing.” The Garretsons alleged it was on that date that it:

became apparent ... that the silt fence and other structures erected by MDOT were possibly going to be ineffective and that silt was going to flood their property and cause damage to the standing timber. It also became apparent that the entire drainage of “Cemetery Hill” had been changed so that by various drain structures the drainage had been shifted to one collection point adjacent to [the Garretsons’] land for the entire hill lying East of present State Highway No. 63. As a result of the change of the natural drainage silt has flooded the lands of the Garretsons and has killed, deadened, damaged and destroyed the standing timber, young timber and other timber of value to the Garretsons. The silt flooding is continuing and the damage to the land is continuing as well as the damage to the timber.

The Garretsons alleged that, as a result of MDOT’s actions, they had had to seek the services of a forester and an attorney and had to pay reforestation expenses. The Garretsons described MDOT’s actions as “deliberate,” “callous,” and “totally indifferent” and stated that they were entitled to recover for mental distress. The Gar-retsons concluded by stating that they had “suffered substantial compensable damages due to the [tortious] acts of MDOT and/or MTC,” and that they sought damages not exceeding the policy limits of any liability policies in effect, or $500,000 each, whichever was greater.

¶ 5. The Garretsons followed up their notice with their complaint against MDOT on August 1, 2005. Their complaint reiterated the claims in their notice. In sum, the Garretsons alleged that:

[P]rior to May 20, 2004, the Mississippi Department of Transportation [caused] a four lane highway roadway and overhead bridge to be constructed on land [parallel] and adjacent to lands owned by the Garretsons. After construction of the highway roadway beds and bridges, silt began to flood onto the lands of the Garretsons. On May 20, 2004, all of the preventive measures of [MDOT] failed and silt flooded from the right-of-way lands of [MDOT] onto the timber lands of the Garretsons [which caused] the damage herein complained of. MDOT caused silt fences and other structures to be erected, but all systems failed.
It was known to MDOT prior to the construction of the highway and bridges that the drainage would be changed, channeled to one collection point and that silt flooding would cause damage to the [Garretsons’] lands and timber. The damage by silt flooding was deliberately caused by MDOT and concealed from the Garretsons. MDOT is also guilty of gross negligence in the construction and change of drainage.

The Garretsons asked for (1) a permanent injunction to prevent the silt flooding; (2) a judgment for “all damages permitted by Section 95-5-10,” including expert-witness fees, attorneys’ fees, and costs; (3) a judgment for the damaged and destroyed timber in the amount of $55,051; and (4) a judgment of $500,000 for “the anger, outrage and mental upset” suffered as a result of MDOT’s “deliberate, callous and indifferent” actions. MDOT answered the Garretsons’ complaint, and the parties engaged in written discovery.

¶ 6. MDOT filed a Motion for Summary Judgment and argued that it was exempt from liability for “suits of this type” under Mississippi Code Section 11-46-9(1), subsections (d) and (p). MDOT attached three exhibits to its motion: (1) an itemization of undisputed facts; (2) an affidavit from MDOT Roadway Design Division Engineer C. Keith Purvis; and (3) the judgment from the Greene County Special Court of Eminent Domain.

¶ 7. More than four years later, the Garretsons responded to MDOT’s motion. The Garretsons disputed MDOT’s first statement of undisputed fact and stated that “the road construction was NEW construction and was not Reconstruction and/or widened.” The Garretsons also took issue with MDOT’s failure to attach the statement of values from the eminent domain action, in which it was stated that the “damage to the remainder [of the property] is $0.00.” The Garretsons attached the statement of values as Exhibit 1 to their Response.

¶ 8. The Garretsons’ response to MDOT’s argument that it was immune under Section 11-46-9(1), subsections (d) and (p), is hard to follow:

[T]he [Plaintiffs] deny that the Mississippi Department of Transportation is entitled to immunity under § 11-46-9(d)(p) in that this is not a tort claim action. At commencement of this cause of action, which is an ongoing cause of action, the [Plaintiffs] did make allegations of Tort Claim [sic], but also made allegations of “Negligence,” “Trespass” and a request for “Injunction.”

The Garretsons argued further that McLemore v. Mississippi Transportation Commission, 992 So.2d 1107 (Miss.2008), supported their position that they could maintain their claims.

¶ 9. The Garretsons also objected to C. Keith Purvis’s affidavit because it failed to state that the highway design was “in conformity” [with current engineering or de-' sign standards]; rather, it used the word “indicating” that the plans were in conformity. The Garretsons attached to their response an affidavit from O.R. Garretson to “dispute” Purvis’s affidavit. Finally, the Garretsons asserted that “the negligence of permitting the silt flooding and trespass is a separate cause of action all of which occurred after the taking which is prohibited by Article 3, Section 17 of the Mississippi Constitution.”

¶ 10. The trial judge held a hearing on MDOT’s motion, and he entered an order granting the motion one week later. The order does not detail the trial judge’s reasoning, but it does state that he “specifically [found] that the Defendant ... [was] entitled to immunity under Mississippi Code Annotated 11^16-9(l)(d) and (p).”

¶ 11. The Garretsons now appeal to this Court, arguing:

(1) The Court erred by Granting Summary Judgment based on a discretionary function and design function § 11—46—9(l)(d)(p) and the Court further erred in dismissing all of the remaining causes of action for (1) negligence, (2) trespass and all damages under § 95-5-10, and (3) injunction and (4) damages. In effect the Court found the cause to be controlled by the Miss. Tort Claim Act and dismissed all [the] other remaining causes of action as if ‘Frasier’s Octopus’ were alive and well; and
(2) Article 3, Section 17, of the Mississippi Constitution prevails over the Mississippi Rules of Civil Procedure addressing the guarantees between the Government and its Citizens. Article 3, Section 17 of the Constitution, is self executing.

¶ 12. For clarity, we restate the issues as: (1) whether the circuit judge correctly granted summary judgment to MDOT; and (2) whether Article 3, Section 17 of the Constitution provides the Garretsons any relief.

STANDARD OF REVIEW

¶ 13. This Court conducts a de novo review when deciding whether the trial court properly granted a motion for summary judgment. Conrod v. Holder, 825 So.2d 16, 18 (Miss.2002). And the application of the Mississippi Tort Claims Act (“MTCA”) is a question of law that is also reviewed de novo. Little v. Mississippi Dep’t of Transp., 129 So.3d 132, 135 (Miss.2013).

ANALYSIS

I. The trial judge properly granted MDOT’s motion for summary judgment.

¶ 14. As mentioned above, the trial judge specifically found in his order granting summary judgment that MDOT was entitled to immunity under Mississippi Code Section 11-46-9(1), subsections (d) and (p). We agree with the trial court and find that MDOT is immune under Section 11—46—9(l)(p). Because we find immunity under subsection (p), we find it unnecessary to address MDOT’s immunity under subsection (d). See, e.g., Fortenberry v. City of Jackson, 71 So.3d 1196, 1204 (Miss.2011) (“Applicability under any one of the provisions of Mississippi Code Section 11-46-9 provides immunity for a governmental entity and its employees.”) (emphasis added).

A. Section ll-46-9(l)(p)

¶ 15. The trial judge found that MDOT was immune under Mississippi Code Section 11—46—9(l)(p), which states:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(p) Arising out of a plan or design for construction or improvements to public property, including, but not limited to, public buildings, highways, roads, streets, bridges, levees, dikes, dams, impoundments, drainage channels, diversion channels, harbors, ports, wharfs or docks, where such plan or design has been approved in advance of the construction or improvement by the legislative body or governing authority of a governmental entity or by some other body or administrative agency, exercising discretion by authority to give such approval, and where such plan or design is in conformity with engineering or design standards in effect at the time of preparation of the plan or design [.]

Miss.Code Ann. § 11—46—9(1)(p) (Rev.2012) (emphasis added). Here, MDOT submitted an affidavit in support of its motion for summary judgment from its Roadway Design Division Engineer C. Keith Purvis. In it, Purvis testified that “[t]he plans or designs for Project # SDP-0002-02(060)PH3 on SR-63 were approved in advance-of construction by [the] Roadway Design Division on 7/9/03, indicating that they conformed with the standards for design established by the American Association of State Highway and Transportation Officials in place ... at the time they were drafted.”

¶ 16. We are not persuaded by the Gar-retsons’ attempt to disavow any negligent-design claim on appeal, as the crux of their complaint clearly is that the bypass was negligently designed. For example, the Garretsons explicitly stated in their complaint that:

After construction of the highway roadway beds and bridges, silt began to flood onto the lands of the Garretsons.... It also became apparent that the construction of the roadbed and bridges caused the entire drainage of “Cemetery Hill” to be changed so that by various drain structures constructed by MDOT the drainage had been shifted to one collection point adjacent to the [Garretsons’] property line. As a result of the change of the natural drainage [,] silt has flooded the lands of the Garretsons....

(Emphasis added.) And, in his affidavit submitted in response to MDOT’s motion, O.R. Garretson testified that:

Prior to the construction of the subject road there was absolutely never any silting or drainage of any consequence to the subject property and silting had never occurred. In fact, the drainage from the hill was to the East and on the South side of State Highway No. 63, away from the subject land.... The construction of the highway radically changed and altered the drainage of the hill and was achieved by the installation of numerous pipes and drains which shifted an enormous amount of the water and silt on to the [plaintiffs’] land.

Finally, in their reply brief, the Garretsons state that “this case is and was about the change of grade that [caused] silt flooding and damage on [the Garretsons’] property.”

¶ 17. Based on the language above, we conclude that, although the Garretsons did not use the word “design,” the crux of their complaint is that the design of the bypass itself changed the naturally occurring drainage and caused silt to flow onto their land — which had not occurred before, according to O.R. Garretson himself. We affirm the trial judge’s finding that MDOT is immune under subsection (p).

B. The Garretsons’ Specific Causes of Action

¶ 18. The crux of the Garretsons’ argument on this issue is that the trial judge erred when he granted MDOT summary judgment on all the claims in their complaint. Specifically, the Garretsons argue that they “filed a multi-count complaint which was specific and detailed each count and the damages arising therefor. The Trial Court should not have dismissed all of [the] claims because the Trial Court insulated MDOT from all claims by sustaining [the exemptions] under § 11-46-9(1)(d)(p).”

¶ 19. We disagree with the Garretsons’ argument, as a cursory review of their complaint reveals that all of their causes of action sound in tort. In other words, even though they asked for costs of their timber and for all damages permitted by Section 95-5-10, all of their causes of action center on the alleged “[tortious] acts” of MDOT. And Mississippi Code Section 11-46-7 states that “(1) The remedy provided by this chapter against a governmental entity or its employee is exclusive of any other civil action or civil proceeding by reason of the same subject matter against the governmental entity or its employee or the estate of the employee for the act or omission which gave'rise to the claim or suit.” (Emphasis added.)

¶ 20. We find Section 11-46-7 unambiguous — any claim for money damages arising out of the State’s tortious acts must be brought under the MTCA. And here, the trial court was correct in finding that MDOT is immune under the MTCA. As for the Garretsons’ claim for an injunction, the Legislature clearly has stated that a plaintiff cannot procure an injunction against the State for actions sounding in tort:

The Legislature of the State of Mississippi finds and determines as a matter of public policy and does hereby declare, provide, enact and reenact that the “state” and its “political subdivisions,” ... are not now, have never been and shall not be liable, and are, always have been and shall continue to be immune from suit at law or in equity on account of any wrongful or tortious act or omission [.]

Miss.Code Ann. § 11-46—8(1) (Rev. 2012) (emphasis added). Although there is a waiver of this immunity in Section 11-46-5 for claims for money damages arising out of the State’s alleged tortious conduct, there is no such waiver of immunity for injunctive relief in this context. Thus, the trial judge was correct when he granted MDOT summary judgment on all of the Garretsons’ claims.

¶ 21. The Garretsons argue that MacDonald v. Mississippi Department of Transportation, 955 So.2d 355 (Miss.Ct.App.2006), is applicable and supports their argument that they should be able to pursue some of the claims in their complaint. We disagree. There, the Court of Appeals did state that:

[W]here there are separate claims, that single [immunity] provision may or may not be sufficient to create immunity as it applies to those other claims. Resolution of the question as to whether a single finding of immunity equates to immunity as to each and every claim raised depends on the facts of the case and the relevant claims. Therefore, such an issue must be decided on a case-by-case basis.... Succinctly put, immunity as to one claim does not necessarily, as a matter of law, equate to immunity for all claims.

Id. at 361-62 (emphasis added).

¶ 22. But the plaintiff in MacDonald had made other claims along with her negligent-design claims — for instance, she made a claim for negligent maintenance and improvement, as well as a claim for failure to warn of a dangerous condition. Thus, some of her claims fell outside the realm of road design. MacDonald, 955 So.2d at 857. Here, after carefully reviewing the “facts of [this] case and the relevant claims,” we find that all of the Garret-sons’ causes of action are barred by the design exemption.

II. The Garretsons did not plead a taking.

¶ 23. In their second point on appeal, the Garretsons argue that-a taking claim brought under Article 3, Section 17 of the Mississippi Constitution trumps the provisions of the MTCA. But because the Garretsons did not plead a taking in their complaint, we do not address the merits of this issue.

¶ 24. Even a liberal reading of the Gar-retsons’ complaint would not and did not put MDOT on notice of a constitutional taking claim. The words “taking” or “eminent domain” are nowhere to be found, nor is any sort of citation of or reference to the Takings Clause. Rather, the Garretsons repeatedly used phrases like “negligence,” “trespass,” and “[tortious].” The first time the Garretsons mentioned Article 3, Section 17, was in their response to MDOT’s motion for summary judgment. And despite the passage of almost five years between MDOT’s motion and the Garretsons’ response, there is no evidence in the record that the Garretsons ever attempted to amend their complaint to add a taking claim.

¶ 25. The Court of Appeals’ opinion in B & W Farms v. Mississippi Transportation Commission, 922 So.2d 857 (Miss.Ct.App.2006), is directly on point and instructive. There, the plaintiffs asserted that the defendants (MTC and its contractor) “unlawfully and negligently diverted and obstructed the natural flow of surface water,” and that they “had a duty to ... avoid the negligent flooding of the crops ... while constructing and improving the said Highway.” Id. at 858.

¶ 26. MTC filed a motion for summary judgment. Id. During the hearing on the motion, counsel for the plaintiffs argued that the term “unlawfully” must “certainly refer” to a violation of Article 3, Section 17, under the notice-pleading doctrine. Id. But the trial judge disagreed and found that the term “unlawful” was insufficient to put MTC on’ notice that the plaintiffs were asserting a constitutional claim. Id. The plaintiffs appealed and argued that the trial judge erred by strictly construing their complaint as “being limited to only a theory of negligence.” Id.

¶ 27. The Court of Appeals affirmed, beginning its analysis with a summary of Mississippi’s notice-pleading jurisprudence:

Although Rule 8 of the Mississippi Rules of Civil Procedure “has eliminated the technical forms of pleadings required in years past, notice pleadings are still required to place the opposing party on notice of the claim being asserted.”
In the complaint ... B & W asserted that the “[defendants ... unlawfully and negligently diverted and obstructed the natural flow of surface water which flowed from the west to the east under U.S. Highway No. 61.” The complaint is void of any references to the Mississippi Constitution or to a taking of private property for public use.
The first specific mention of a violation of the takings clause did not come until ... B & W filed its response to the MTC’s motion for summary judgment.
We agree with the finding of the trial court that “the word ‘unlawful’ is not so comprehensive as to specifically involve a constitutional claim in this instance because all contentions point to negligence.” Moreover, if B & W sought relief under Article 3, Section 17 of the Mississippi Constitution, at least some notice of this claim should have been given before B & W filed its response to the motion for summary judgment, (especially since the complaint was filed nearly seven years earlier).

Id. at 858-59 (citations omitted) (emphasis added). We find this reasoning persuasive and reach the same result here.

¶ 28. The Garretsons’ reliance on this Court’s opinion in McLemore v. Mississippi Transportation Commission, 992 So.2d 1107 (Miss.2008), is, again, misplaced. This Court did indeed hold in McLemore that the McLemores could bring their claims against MTC in spite of the provisions of the MTCA. Id. at 1111. But it was clear there that the McLemores had pleaded a taking:

Dennis and Tammy McLemore filed suit in the Circuit Court of DeSoto County against the Mississippi Transportation Commission (MTC) and Talbot Brothers Contracting Co., Inc., alleging a taking without just compensation in violation of the Mississippi and U.S. Constitutions due to flooding and siltation on real property from negligence in the construction of a highway.
Moreover, the parties agree that the McLemores provided notice of the constitutional claims.

Id. at 1107-1109 (emphasis added).

¶ 29. Finally, the Garretsons’ last-ditch effort to argue that Article 3, Section 17 is “self-executing” — ie., that they did not have to plead it — is unconvincing. It is true that this Court, in Parker v. State Highway Commission, 173 Miss. 213, 162 So. 162 (1935), stated that “[S]ection 17, Constitution of 1890, is self-executing.” Id. at 164. But a reading of the opinion as a whole reveals that the term “self-executing” as used there meant that the Legislature could not limit the right — not that a plaintiff did not have to plead it. This interpretation is evidenced by the sentence immediately following the “self-executing” sentence relied on by the Garretsons:

Prior to the adoption of this Constitution the Legislature could limit a landowner’s recovery to compensation for the land appropriated for public use, but as section 17 now exists it is quite clear that any effort on the part of the Legislature to shield the government or any arm thereof from payment of damages occasioned by it on the appropriation of land would be futile and of no effect. Before our Constitution was adopted, sections similar to the one here under consideration had been construed by the courts of other states as being self-executing. Section 17 of the constitution is mandatory.

Id. at 164.

¶ 30. In sum, the Garretsons failed to plead a taking claim in their complaint, and we find that they are barred from attempting to argue that theory now.

CONCLUSION

¶ 31. The trial judge was correct when he found that MDOT is immune from liability in this case under subsection (p) of Section 11-46-9(1). And because the Gar-retsons pleaded only claims that fall under this exemption, we find that the trial judge was correct in granting MDOT summary judgment on all of their claims. Finally, the Garretsons cannot pursue a constitutional taking theory because they failed to plead it.

¶ 32. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P JJ., KITCHENS, CHANDLER, KING AND COLEMAN, JJ., CONCUR. PIERCE, J., NOT PARTICIPATING.

      . There is no date on the actual notice, but the Garretsons’ complaint alleges that they served the notice on May 12, 2005. It appears that the project construction was ongo-mg by at least early 2004, as MTC had acquired "immediate title and possession” of the Garretsons' property in 2000.

      . "(1) If any person shall cut down, deaden, destroy or take away any tree without the consent of the owner of such tree, such person shall pay to the owner of such tree a sum equal to double the fair market value of the tree cut down, deadened, destroyed or taken away, together with the reasonable cost of reforestation, which cost shall not exceed Two Hundred Fifty Dollars ($250.00) per acre ...” Miss.Code Ann. § 95-5-10(1) (Rev. 2013).

      . MDOT also argued in its motion that it was entitled to summary judgment based on the eminent — domain judgment entered against the Garretsons- — a res judicata argument of sorts. But the trial judge did not address that argument in his order granting summary judgment, and the parties do not appear to raise that argument again on appeal.

      . "Private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law _" Miss. Const. art. 3, § 17 (emphasis added).

      . "[T]he MTC asserts that the Mississippi Tort Claims Act provides the exclusive remedy for the McLemores and that they failed to plead it; therefore summary judgment was proper. However, we disagree.” Id. at 1109.


source: Caselaw Access Project

author: CHANDLER, Justice,

license: Public Domain

text:
    Dimp POWELL v. MUNICIPAL ELECTION COMMISSION OF the TOWN OF ISOLA, Mississippi.
    No. 2013-EC-00928-SCT.
    Supreme Court of Mississippi.
    Dec. 11, 2014.
    Rehearing Denied Feb. 19, 2015.
    Kate Margolis, Andrew N. Alexander, III, Greenville, attorneys for appellant.
    Samuel L. Begley, attorney for appellee.
    Before WALLER, C.J., CHANDLER and KING, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. Democratic candidate Bobbie Miller successfully challenged independent incumbent Dimp Powell for the office of mayor of Isola, Mississippi. Prior to the election, the Municipal Election Commission of Isola approved the placement of Miller’s name on the ballot despite the fact that a Democratic Municipal Executive Committee was not in existence by the time of the qualifying deadline for candidates. Powell challenged the Election Commission’s decision in circuit court via a writ of mandamus, requesting the court to order the Commission not to place Miller’s name on the ballot or, in the alternative, to order that any votes cast for Miller not be counted. After an emergency evidentiary hearing, held the week prior to the election, the court denied relief. Powell appeals. We hold that the circuit court did not have jurisdiction to hear Powell’s challenge via a writ of mandamus. The appropriate procedural mechanism for challenging the decision of a municipal authority is through a bill of exceptions under Mississippi Code Section 11-51-75.

FACTS AND PROCEEDINGS BELOW

¶ 2. Bobbie Miller, who ran a local daycare center in Isola, decided to run as a Democratic candidate for mayor, challenging independent incumbent Dimp Powell. Miller filed her statement of intent and $10 cash filing fee with the municipal clerk on January 21, 2013. The municipal clerk accepted the documents. Isola did not at that time have a Democratic Municipal Executive Committee. On March 6, the clerk contacted Miller and informed her that she could not accept cash for the filing fee. Miller immediately exchanged the cash for a money order. At that time, Miller asked if any other action on her part was needed, and the clerk said no. The clerk also accepted a statement of intent and filing fee from Powell. Miller’s money order and Powell’s check were made payable to the “Municipal Executive Committee.”

¶ 3. The city clerk, uncertain where to send the candidates’ statements of intent and fees, sent both Powell’s and Miller’s papers and fees to the Secretary of State after consulting -with one of the incoming city election commissioners. The Secretary of State sent back a letter dated March 14, 2013, explaining that “the office of the Secretary of State does not receive nor file qualifying petitions of municipal candidates,” and that “[ajbsent a municipal executive committee, the municipal clerk cannot accept the statement of intent of a candidate seeking to qualify as a party nominee in a primary election, and cannot accept the $10.00 filing fee required by statute ... [ujnfortunately, Ms. Miller cannot be a candidate for Mayor since the qualifying deadline for all municipal candidates was last Friday, March 8, 2013.” The letter further noted that a filing fee and nomination through a municipal executive committee is not required for independent candidates, that Powell’s fee should therefore be returned to him and his qualifying documents forwarded to the Isola Municipal Election Commission.

¶ 4. After the city clerk shared copies of this letter with the relevant parties and public officials, Miller immediately contacted the County Democratic Executive Committee. That committee approved Miller’s candidacy and notified the Election Commission and city clerk of Miller’s certification by letter on March 22. The County Executive Committee had not been aware of Miller’s candidacy prior to the qualifying deadline, and did not notify the municipal clerk prior to the qualifying deadline that it would be acting as a temporary municipal executive committee.

¶ 5. The City requested an opinion from the Attorney General, asking whether, under these circumstances, Miller could be placed on the ballot. The Attorney-General’s office issued an official opinion dated April 22, 2018, offering that Miller was not a timely qualified candidate because the County Democratic Executive Committee had not made the decision to act as the temporary municipal executive committee until after the qualifying deadline.

¶ 6. The Isola Municipal Election Commission met on May 24, 2013, and voted to accept the County Democratic Executive Committee’s certification of Miller, in spite of the opinion from the Attorney General. The Commission issued a written statement, noting that the error was on the part of the clerk, that the lack of a (temporary) municipal executive committee would have been resolved prior to the qualifying deadline had a delay not been created by the documents having been mailed erroneously to the Secretary of State, and that Miller should not be penalized when she had done everything she thought was required to qualify.

¶ 7. Powell filed an Emergency Complaint for Writ of Mandamus, asking the circuit court:

.... to issue a Writ of Mandamus to the Town of Isola, Mississippi’s Municipal Election Commission requiring that they remove candidate Bobbie Miller’s name from the Municipal Ballot for the June 4, 2013 election for Mayor. In the alternative, Plaintiff prays that this Court should issue a Writ of Prohibition to the Town of Isola, Mississippi’s Municipal Election Commission prohibiting that Commission from placing candidate Bobbie Miller’s name on the ballot as a Democratic candidate for the office of Mayor of the Town of Isola or, if such name appears on the ballot because of time restraints, prohibiting any votes for Ms. Miller from being counted ...

Attached as exhibits to the petition were the letter from the Secretary of State returning the statements of intent and filing fees to the municipal clerk, the letter from the Humphreys County Democratic Executive Committee certifying Bobbie Miller as a candidate, the Attorney General’s opinion offering that Miller was not a timely qualified candidate, and the Isola Municipal Election Commission’s letter to the municipal clerk finding that Miller should be placed on the ballot.

¶ 8. The court held an emergency evi-dentiary hearing on May 30, 2013, the week before the election. The court heard the testimony of the municipal clerk, Bobbie Miller, and of the three members of the Municipal Election Commission. The trial court denied Powell’s request for relief and permitted Miller to remain on the ballot. The court noted that Miller had done all she thought that she was required to do to qualify and should be permitted to run since the error was on the part of the city clerk. Miller won the election, which took place on June 4, 2013. Powell timely appeals to this Court. This Court denied Powell’s motions to expedite the appeal.

DISCUSSION

¶ 9. Jurisdiction is a question of law this Court reviews de novo. Issaque- na Warren Counties Land Co., LLC v. Warren Cnty., 996 So.2d 747, 749 (Miss.2008).

¶ 10. We find that the circuit' court lacked jurisdiction to hear Powell’s challenge because Powell failed to properly appeal the Commission’s decision by obtaining a bill of exceptions as provided for in Mississippi Code Section 11-51-75. Section 11-51-75 provides:

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 (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision, and may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the person acting as president of the board of supervisors or other municipal authorities. The clerk thereof shall transmit the bill of exceptions to the circuit court at once, and the court shall either in term time or in vacation hear and determine the same on the case as presented by the bill of exceptions as an appellate court, and shall affirm or reverse the judgment. , If the judgment be reversed, the circuit court shall render such judgment as the board or municipal authorities ought to have rendered, and certify the same to the board of supervisors or municipal authorities....

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

¶ 11. This Court held that a municipal election commission is a “municipal authority” for purposes of section 11—51—75 in Town of Terry v. Smith, 48 So.3d 507 (Miss.2010). In Town of Terry, the Terry Municipal Election Commission disqualified a democratic candidate for mayor on a finding that the Democratic Executive Committee had been improperly formed, and, “[b]ecause there was ‘no committee in place to qualify him’ and he had not qualified as an at-large candidate, [he] was, by extension, disqualified.” Id. at 508. The candidate and the committee appealed through an inapplicable statute that provided exclusive relief for contesting the qualifications of a candidate in a primary election. Id. This Court affirmed the trial court’s position that the appropriate method of appeal was through appeal by bill of exceptions under Section 11-51-75. We stated:

... the Committee came to circuit court not to challenge an election, but to challenge the decision (made by a municipal authority) that the committee was improperly formed and nonexistent. The trial court, relying on the plain language of Mississippi Code Section 11-51-75, said that appeal by bill [of] exceptions was the appropriate vehicle for remedy... We agree with the trial court that appeal by bill of exceptions ... was the appropriate mechanism for relief.

Id. at 510-511. Similarly, here, the challenge is to a municipal election commission’s decision regarding the timeliness of the candidate’s qualification.

¶ 12. The bill of exceptions serves as the objective record of the proceedings below, and therefore must be examined and certified for authenticity by being signed and delivered to the circuit court by the authority who made the decision. The responsibility of a municipal authority when presented with a bill of exceptions is to review it, note any aspect of it that appears to be inaccurate or incomplete, and then sign it as the correct record for the circuit court to review. Reed v. Adams, 236 Miss. 333, 111 So.2d 222, 224 (1959). Here, instead of going through this process of obtaining a record, Powell sought injunctive relief through a writ of mandamus.

¶ 13. A petition for writ of mandamus is a procedural tool a party can seek unilaterally to prompt officials to perform their required duties when they fail to act. Hinds Cnty. Democratic Exec. Comm. v. Muirhead, 259 So.2d 692, 695-695 (Miss.1972). For example, if Powell had presented a bill of exceptions to the Commission for its review, signature, and delivery to the court, and the Commission had refused to perform its ministerial duty to review, sign, and deliver it, then a writ of mandamus would be an appropriate mechanism to prompt the authority to perform that task. Reed, 111 So.2d at 224; Roach v. Tallahatchie Cnty., 78 Miss. 303, 29 So. 93 (1901). But, when a municipal authority has acted, and a party wishes to challenge the merits of that discretionary decision, the party must obtain a bill of exceptions to serve as the record for the circuit court. Miss.Code Ann. § 11-51-75 (Rev. 2012); Town of Terry v. Smith, 48 So.3d 507 (Miss.2010). A party cannot sidestep this process of, in essence, designating the record for appeal, by asking the appellate court to rely on the potentially selective presentation of facts and exhibits contained in a unilateral petition for injunctive relief.

¶ 14. The use of a writ of mandamus also was inappropriate in this case because Powell is not alleging a violation of his due-process rights or asserting an opportunity to be heard. Rather, his sole request for relief is a challenge to a discretionary decision the Commission made after very thorough consideration of Powell’s position. In Wallace v. Town of Edwards, 118 So.3d 568 (Miss.2013), a potential candidate sought a writ of mandamus asking the circuit court to compel a municipal election commission to grant him a hearing and issue a ruling on his challenge to its successive rejection of his candidacy due to lack of sufficient signatures. A majority of the Court joined an order granting him relief. Three justices joined a separate statement disagreeing that the appellant had been denied an opportunity to be heard before the commission and that a bill of exceptions would have been the appropriate way to challenge the commission’s decision to reject his multiple attempts to qualify.

¶ 15. The due-process challenge that split this court in Wallace is not present in this case. We note that, in this case, the Commission does not appear to have held a formal hearing in which Powell formally presented his case. However, Powell does not challenge the absence of a hearing or allege that proceeding before the Commission denied him due process. To the contrary, the record reflects that the parties had extensive transparent communication with each other and that the Commission took the process of its decision very seriously, going so far as to request and consider an Attorney General’s opinion on the issue. Whether the Commission made the right decision is a question for an appeal via a bill of exceptions.

¶ 16. Finally, the procedural deficiency here cannot be considered harmless. A circuit court, sitting as an appellate court, should not hold an evidentiary hearing when considering a bill of exceptions. Falco Lime, Inc., v. Mayor and Aldermen of City of Vicksburg, 836 So.2d 711, 720 (Miss.2002). We have permitted harmless-error review where a circuit court erroneously held an evidentiary hearing when reviewing a bill of exceptions. Id. at 720-721 (holding that the evidentiary hearing was harmless error because sufficient evidence was in the bill of exceptions for the circuit court to have reached the same result as if the hearing had not taken place). But unlike Falco, the appeal here did not originate with a proper bill of exceptions. We decline to extend harmless-error review to the fundamental jurisdictional posture of the case. We decline to make it our task to review the petition and exhibits for retroactive authentication of the proceedings below.

CONCLUSION

¶ 17. Powell’s petition for writ of mandamus was ineffective to appeal the Municipal Election Commission’s decision that Miller should be placed on the ballot. The statutory method of appeal from the decision of a municipal authority is to obtain a bill of exceptions under Mississippi Code Section 11-51-75. We affirm the outcome of the circuit court’s holding, but on the ground that the circuit court lacked jurisdiction to hear the challenge via a writ of mandamus. Because we affirm on jurisdictional grounds, we do not reach the merits of whether Miller’s name should not have been permitted on the ballot when there was no Democratic Municipal Executive Committee in existence at the time of the qualifying deadline.

1118. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, . KITCHENS, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . This was the first election the clerk had handled in her official capacity.

      . Two of the three municipal election commissioners were also new at the job and, at that time, had not yet attended training for the position.

      . See Ashford, Miss. A.G. Op. # 14-00121, 2013 WL 2200417 (April 22, 2013). Whether a party executive committee must be in place by the qualifying deadline involves a question of statutory interpretation this Court has never addressed. The Attorney General's office consistently has taken the position that the relevant statutes require the existence of an executive or temporary executive committee by the qualifying deadline because, inter alia, such committees have responsibilities related to carrying out the party primary that cannot reasonably be performed if the committee is not in existence by the qualifying deadline. Id.

      . This Court decided Town of Terry on a procedural question, and, as in the case at hand, did not address the merits of the commission's decision.

      . "The proper function of mandamus is to supply a remedy for inaction on the part of an official or commission to whom it is directed. It is not a substitute for, nor intended to serve, the purpose of other modes of review. It can direct an official or commission to perform its official duty or to perform a ministerial act, but it cannot project itself into the discretionary function of the official or the commission. Stated differently, it can direct action to be taken, but it cannot direct the outcome of the mandated function ... [tihus, a court could, if necessary, compel by mandamus an election commission or executive committee to perform its statutory duty upon its failure to do so, or prohibit it by way of injunction or writ of prohibition from exceeding its statutory authority in some respect; use of an extraordinary writ, however, cannot be extended to actually telling the commission what action to take.” Id. at 694-695.


text:
    TELLUS OPERATING GROUP, LLC v. MAXWELL ENERGY, INC.
    No. 2012-CT-00357-SCT.
    Supreme Court of Mississippi.
    Jan. 22, 2015.

      Glenn Gates Taylor, Christy M. Sparks, Ridgeland, attorneys for appellant.
    Heather White Martin, Malcolm T. Rogers, Monticello, attorneys for appellee.

      . Tellus’s attorney indicated to the Board that he had, when the force-integration statute initially came out, attempted to do the same thing for a client — elect participation merely by submitting a check for a proportionate share of up-front costs — and that the Board consistently has rejected that type of attempt to elect participation absent an agreement to more specific reasonable terms.

   ON WRIT OF CERTIORARI

CHANDLER, Justice,

for the Court:

¶ 1. In this case, we review a challenge to a Mississippi Oil and Gas Board pooling order force-integrating various owners’ interests in a proposed drilling unit. See Miss.Code Ann. § 53-3-7 (Rev. 2003). We hold that the Board’s order was supported by substantial evidence. We also find that one owner’s attempt to voluntarily integrate his interest within twenty days of the Board’s pooling order did not satisfy Section 53—3—7(2)(g)(iii).

FACTS AND PROCEEDINGS BELOW

¶ 2. In 2006, Tellus Operating Group, LLC, sought to integrate the interests of various owners for the purpose of drilling a well unit in Jefferson Davis County. In accordance with its statutory duty to make a good-faith effort to negotiate the voluntary integration of the owners’ interests on reasonable terms, Tellus mailed option forms to the owners in June and July of 2006. The three options for voluntary integration were to lease the interest, farm out the interest, or participate as a working interest owner in the costs and risks of drilling, developing, and operating the well by agreeing in writing to pay the owner’s share of the actual costs of drilling, testing, completing, equipping, and operating the well. For the third option of participation, the letter accompanying the option form indicated that the agreement in writing must be evidenced by execution of an Authorization for Expenditure (“AFE”) and Operating Agreement (“JOA”). It further included a summary of some of the terms of the JOA. Upon election of that option, the AFE and JOA would be prepared and sent to the owner for execution.

¶ 3. D.E. Maxwell, owner and president of interest owner Maxwell Energy, Inc., checked the third option to participate in the costs of developing the unit. However, he struck through the language on the option form which stated that owner would participate “in accordance with the terms and conditions set out in paragraph (3) of the offer in the attached letter,” and wrote in by hand that he would participate “as to Maxwell Energy, Inc.’s proportionate share of .00971714[%] in accordance with applicable law set out in Miss.Code 53-3-7.” He did not execute the AFE and JOA.

¶ 4. After allowing for the statutorily required ninety days to pass after submitting 'the options to the owners, Tellus petitioned the Mississippi Oil and Gas Board to integrate the interests of the owners, including a force-integration of Maxwell Energy’s interest as a nonconsenting owner subject to alternate-risk penalties. Twenty-one owners had elected participation and signed off on the terms of the AFE and JOA. With ninety-six percent of the owners’ interests voluntarily integrated, Maxwell Energy challenged the pooling petition, seeking recognition that it had consented to be a participating owner, that it wanted more time to negotiate a more favorable JOA, and that it was willing immediately to front its share of the initial anticipated cost of the dry well (calculated by applying its percent interest to the estimated initial dry-well cost outlined in the AFE).

¶ 5. The Board held a hearing on October 18, 2006. Only a few days before the hearing, Maxwell Energy sent Tellus an alternate JOA proposal. D.E. Maxwell appeared at the hearing on the company’s behalf. Maxwell requested a continuance of the hearing, stating that he wanted the drilling to go forward as scheduled, but that he wanted time to negotiate the participation terms to meet Tellus “halfway” between the two proposed JOAs. Tellus objected to the continuance, asserting that it had complied with its statutory good-faith requirements and deadlines. It further noted that operations on the well were scheduled to begin prior to the next Board meeting. The Board denied the motion to continue.

¶ 6. Maxwell testified, as did Tellus landman James Clark. Tellus’s attorney asked Maxwell to go through, point by point, the terms of the JOA he found to be unreasonable. Maxwell conceded that he had entered or was aware of other JOAs that contained similar terms, but he also testified to his personal experience and knowledge of JOAs with more favorable terms, particularly in regard to the high percentage of alternate-risk penalties on subsequent unit projects. Clark testified that Tellus’s JOA was based on a standard form developed in 1982 by the American Association of Professional Landmen. The form contains blanks to be filled in based on the needs of the parties, and parties routinely use strike-outs and additions to modify the form. Clark testified that the alternate-risk percentages, while high, are not unusual in the industry, given the increase in recent years of the costs and risks of drilling exploration. Maxwell argued that terms can be unreasonable as applied to some owners and not others, and that the intent of the force-integration statute was not to give operators undue leverage to convince owners to lease their interest without the power to negotiate away from expensive penalties.

¶ 7. In additional support of its argument that the proposed terms were reasonable and offered in good faith, Tellus pointed to the fact that twenty-one other owners, many of them sophisticated in the industry, had agreed to the terms of the JOA. It pointed to the difficulties that could arise if less than one percent of the owners were governed by a significantly different JOA from the other owners. It also pointed to the late date at which Maxwell Energy had gotten back to Tellus with a proposed alternate JOA.

¶ 8. The Board granted the petition to pool the interests, including a force-integration of Maxwell Energy’s interest as a nonconsenting owner. After stating that the statutory requirements had been met, the Board’s order stated that “the evidence presented at the hearing supports these findings.” Within twenty days of the pooling order, Maxwell Energy sent Tellus a check for $18,277.94 and a letter stating that Maxwell Energy

... elects in writing to participate and join in on the same cost basis as the other consenting owners for its share of the cost and risk of developing and operating of the above unit as described and referenced hereinabove, insofar and only insofar as the same relates to Maxwell’s leasehold interest covering mineral interests which are subject to alternate risk charges, and hereby agrees in writing to pay its pro rata share of all the costs associated therewith.

Tellus rejected Maxwell Energy’s check, and Maxwell Energy did not consent to any of the options offered prior to the Board’s hearing and order.

¶ 9. Maxwell Energy appealed the Board’s force-integration order to the Jefferson Davis County Chancery Court. In 2012, the chancery court reversed the Board’s order, finding that it was not supported by substantial evidence. The court also found that Maxwell Energy’s submission of the check for its share of estimated initial drilling costs, along with the letter stating that it would participate on the same costs basis, satisfied the requirements of Section 53—3—7(2)(g)(iii) for voluntary integration after a pooling order is entered.

¶ 10. Tellus appealed to the Mississippi Court of Appeals, which initially ruled unanimously in Maxwell Energy’s favor, affirming the ruling of the chancery court. Then, after granting Tellus’s motion for rehearing and receiving numerous amici briefs, the Court of Appeals reversed its decision and issued a unanimous opinion in favor of Tellus, reversing the chancery court judgment and reinstating the Board’s pooling order. We granted certio-rari review of the Court of Appeals’ second opinion.

DISCUSSION

1111. “The standard for judicial review of orders of the State Oil and Gas Board is whether the order is supported by substantial evidence, is arbitrary or capricious, beyond the power of the Board to make, or violates some constitutional right of the complaining party.” Superior Oil Co. v. State Oil & Gas Bd., 220 So.2d 602, 603-04 (Miss.1969). The Board evaluates the weight and credibility of the evidence, and when the Board evaluates conflicting testimony, the reviewing court “may not substitute its opinion for the opinion of the Board.” Boyles v. Mississippi State Oil & Gas Bd., 794 So.2d 149, 156 (Miss.2001). Questions of statutory interpretation are reviewed de novo. Adams v. Mississippi State Oil & Gas Bd., 139 So.3d 58, 67 (Miss.2014).

I. The Mississippi Oil and Gas Board’s order was supported by substantial evidence.

¶ 12. The process by which operators offer owners the opportunity to voluntarily integrate their drilling interests is governed by Mississippi Code Section 53-3-7(2)(a), which provides in relevant part:

In the event that one or more owners owning not less than thirty-three percent (33%) of the drilling rights in a drilling unit voluntarily consent to the drilling of a unit well thereon, and the operator has made a good faith effort to (i) negotiate with each nonconsenting owner to have said owner’s interest voluntarily integrated into the unit ... and (v) offer each nonconsenting owner the opportunity to lease or farm out on reasonable terms or to participate in the cost and risk of developing and operating the unit well involved on reasonable terms, by agreeing in writing, then the operator may petition the board to allow it to charge alternate charges ...

Miss.Code Ann. § 53—3—7(2)(a) (Rev. 2003).

¶ 13. A plain reading of the statute clearly provides that the agreement in writing is an agreement to the reasonable terms that have been negotiated in good faith. While a JOA specifically is not statutorily required, it is an appropriate and common vehicle in which the agreed-on terms are memorialized. Maxwell and Tellus had not entered into a statutorily sufficient agreement in writing prior to the hearing on Tellus’s integration petition to the Board.

¶ 14. The Board heard, point by point, the terms in the JOA Maxwell objected to as unreasonable as to Maxwell Energy, as well as Tellus’s rebuttal evidence. The Board members asked extensive questions regarding the terms, common industry practices, and the witness’s experiences in the industry. Moreover, Maxwell did not present counteroffer terms until almost the eve of the scheduled Board hearing. Applying our deferential standard of review, we find that the Board’s decision that Tellus met all of its statutory requirements for offering good-faith options for voluntary integration on reasonable terms was supported by substantial evidence.

II. Statutory Interpretation of Mississippi Code Section 53-3-7(2)(g)(iii)

¶ 15. Mississippi Code Section 53-3—7(2)(g)(iii) provides a last opportunity for nonconsenting owners to participate following a Board pooling order:

... The pooling order if issued shall provide that each nonconsenting owner shall be afforded the opportunity to participate in the development and operation of the well in the pooled unit as to all or any part of said owner’s interest on the same costs basis as the consenting owners by agreeing in writing to pay that part of the costs of such development and operation chargeable to said nonconsenting owner’s interest, or to enter into such other written agreement with the operator as the parties may contract, provided such acceptance in writing is filed with the board within twenty (20) days after the pooling order is filed for record with the board....

Miss.Code Ann. § 53-3-7(2)(g)(iii) (Rev. 2003). Maxwell Energy argues that it satisfied this statute by sending a unilateral letter to Tellus stating that it would participate on the same costs basis as the consenting owners and by sending Tellus a check for Maxwell Energy’s estimated share of initial drilling costs. Tellus, consistent with the Board’s longstanding position, argues that, when the two subsections of Section 53-3-7 are read together, Section 53-3-7(2)(g) simply provides a opportunity to elect in writing one of the three offers in Section 53-3-7(2)(a), on the terms the Board found reasonable, or to negotiate an alternate contract on such terms as the parties can agree on.

¶ 16. We will engage in statutory construction when a statutory provision is ambiguous due to two reasonable interpretations. Miss. Methodist Hosp. and Rehab. Ctr., Inc. v. Miss. Div. of Medicaid, 21 So.3d 600, 607 (Miss.2009). Under the doctrine of in pari materia, where two statutes speak to the same or similar subject matter, “this Court must resolve the ambiguity by applying the statute consistently with other statutes dealing with the same or similar subject matter.” State ex rel. Hood v. Madison Cnty. ex rel. Madison Cnty. Bd. Of Supervisors, 873 So.2d 85, 91 (Miss.2004).

¶ 17. We agree with Tellus and the longtime working position of the Board that, when Sections 53-3-7(2)(a) and 53-3-7(2)(g)(iii) are read together, Section 53-3-7(2)(g)(iii) requires a nonconsenting owner, after a pooling order, to enter into a written agreement to what the Board found to be reasonable terms, or enter into such other written agreement as the parties may contract. If we construed Maxwell Energy’s actions to satisfy this statute, then owners who participate under Section 53 — 3—7(g)(iii) would in effect be exempt from the requirements of Section 53-3-7(2) for an an agreement in writing to reasonable terms negotiated in good faith. Section 53 — 3—7(g)(iii) does not create a loophole whereby an owner can simply wait until after a pooling order is issued as a way of avoiding being bound to terms the Board found to be reasonable or avoiding further negotiations to reach mutual alternative terms with the operator. The absence of contractually agreed-on terms also is highly impracticable, given the highly complicated and expensive nature of drilling projects that might last decades. We find that the statute is intended to provide certainty of the reasonable terms to which the parties are bound as the unit(s) are developed.

CONCLUSION

¶ 18. We hold that the chancellor erred in finding that the Board’s order was not supported by substantial evidence and also in finding that Maxwell’s actions after the pooling order operated to integrate his interest voluntarily. The judgment of the Court of Appeals is affirmed. The chancellor’s order is reversed, and the Board’s pooling order is reinstated.

¶ 19. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE CHANCERY COURT OF JEFFERSON DAVIS COUNTY IS REVERSED AND RENDERED.

DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, PIERCE, KING AND COLEMAN, JJ., CONCUR. WALLER, C.J., NOT PARTICIPATING.

      . Per Board policy, owners also could request a copy of the proposed JOA for review prior to electing an option.

      . Because nonconsenting owners do not front any of the costs of developing the drilling unit, they do not risk financial loss if the well is dry or unprofitable. Alternate-risk penalties have the ultimate effect of diverting a greater share of profits, if any, to the participating owners who risked a financial loss up front. Statutes like these have been, enacted because “it is unfair for a nonconsenting owner ... to be relieved of the costs and risks associated with drilling a producing well, but at the same time reap the benefits of another’s efforts in extracting oil and gas from beneath his or her land.” Gadeco, LLC v. Industrial Comm'n of North Dakota, 812 N.W.2d 405, 407-08 (N.D.2012).

      . Tellus did not file a motion for rehearing before the Court of Appeals on the second judgment. In granting certiorari review, this Court waived that procedural requirement in view of the circumstance such a motion would be a subsequent motion for rehearing after the case had been reversed on an initial motion for rehearing.

      . We certainly do not find, and Tellus does not suggest, that the terms necessarily must be uniform among the owners in order to be reasonable. We do not intend to discourage owners from engaging in negotiations or operators from being flexible within reason to obtain' the goal of voluntary integration.