author: WESTBROOKS, J.,

text:
    Jerry W. PAIGE d/b/a Paige Electric Company, LLC, Appellant v. WELLS FARGO AND COMPANY, Appellee
    NO. 2016-CA-00484-COA
    Court of Appeals of Mississippi.
    10/03/2017

      ATTORNEY FOR APPELLANT: BLEWETT W. THOMAS
    ATTORNEY FOR APPELLEE: MICHAEL JAMES BENTLEY
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   WESTBROOKS, J.,

FOR THE COURT:

¶ 1. This appeal is taken from the Harrison County Circuit Court. Paige Electric LLC (Paige Electric) sought recovery of a check, in the amount of $83,972.08, from Wells Fargo and Co. (Wells Fargo). Finding no error in the circuit court’s dismissal of Paige Electric’s case, we affirm.'

FACTS AND PROCEDURAL HISTORY

¶ 2. Paige Electric leased storage space to Bret Gibson (Gibson), an out-of-state contractor working on the Mississippi Gulf Coast following Hurricane Katrina. Gibson was indebted to Paige Electric for more than $80,000 for the storage space. On June 14, 2006, Gibson represented to Paige Electric that he received an insurance check as payment from Jim Wylie (Wylie) for construction work performed on Wylie’s Louisiana residence.

¶ 3. Gibson tendered the insurance check to Paige-Electric as payment and full satisfaction of Gibson’s debts. The check was issued by Fidelity and Deposit Company of Maryland (Fidelity). The check was payable to Jim A. Wylie and the company holding the mortgage on Wylie’s home, HomeEq Service Corporation (HomeEq), in the' amount of $83,972.08. This check was for the payment of damage done by Hurricane Katrina. Between 2006 and 2008, HomeEq was owned by Wells Fargo.

¶4. Paige Electric contacted Wylie to verify the check had been properly endorsed by all payees, and was negotiable. Wylie confirmed the genuineness of the endorsements, and that he rightfully possessed the check. As a result of Wylie’s and Gibson’s representations, Paige Electric accepted the check in satisfaction of Gibson’s outstanding debts and deposited the check into its BancorpSouth checking account. Paige Electric also paid Gibson the difference between his indebtedness and the amount of the check in cash.

¶ 5. The check was deposited on June 14, 2006, and final payment was made by Wells Fargo on June 15, 2006. After making the final payment, Wells Fargo did not dispute the payment of the check or raise any claims of fraudulent endorsement until nearly five months after it was deposited. From June 14, 2006, to November 27, 2006, BancorpSouth placed no restrictions or holds regarding the funds deposited.

¶ 6: On November 1, 2006, HomeEq submitted an affidavit alleging that the check Paige Electric deposited was wrongfully endorsed. Wells Fargo received that affidavit on November 20, 2006. Wells Fargo notified BancorpSouth that an endorsement was forged, and the check was not enforceable by Paige Electric. On November 27, 2006, Paige Electric was notified by BancorpSouth that a hold was being placed on Paige Electric’s checking account, due to Wells Fargo’s wrongful-endorsement claim. On December 5, 2006, BancorpSouth rejected Wells Fargo’s forged-endorsement claims and released the hold on Paige Electric’s account.

¶ 7. For more than a year, Paige Electric received no further communication from Wells Fargo, HomeEq, or Bancorp-South, regarding the validity of the endorsements or the payment of the check. On December 31, 2007, BancorpSouth contacted Paige Electric and advised that another hold was placed on their account, for the entire amount of the check. On March 3, 2008, BancorpSouth deducted the entire amount of the check from Paige Electric’s account.

¶8. Around May 2010, Paige Electric filed suit to recover the check’s value from Wylie, Gibson, HomeEq, BancorpSouth, and Wells Fargo. Wells Fargo moved to dismiss the claims against it, asserting that the claim was barred by the Mississippi Uniform Commercial Code (UCC),' since Paige Electric did not have an account with it. On May 15, 2014, four years after Wells Fargo’s motion to dismiss was filed, the clerk of the court sua sponte moved to dismiss Paige Electric’s suit for want of prosecution.

II9. In response to the clerk’s motion, Paige Electric; sought leave to amend and “correct” its complaint. Wells Fargo opposed the amendment as futile and re-urged its motion to dismiss Paige’s claims. The circuit court gave Paige Electric leave to amend its complaint.

¶ 10. Paige Electric’s amended complaint dropped all claims against Wylie and Gibson and asserted that HomeEq, Bancorp-South, and Wells Fargo were liable for the full amount of the check. Paige Electric’s first amended complaint asserted that Wells Fargo was liable to it under the UCC for the face value of the forged check under the following theories: (1) Wells Fargo did not provide timely notice of the forgery; (2) Wells Fargo was. estopped from denying the validity of the endorsement of the forged check; (3) Wells Fargo unreasonably delayed its request that Ban-corpSouth return the funds transferred under, the forged check; (4) Wells Fargo was careless in handling HomeEq’s claim, which resulted in a failure to observe reasonable commercial standards of fair dealing; (5) Wells Fargo refused to assert the applicable defenses under Mississippi Code Annotated Section 75-4-406 (Rev. 2016), that would have required HomeEq to sustain the loss.

¶ 11. Wells Fargo moved to dismiss Paige Electric’s first amended complaint, contending that Paige Electric had failed to state a claim for relief against Wells Fargo and, further, that the UCC precluded Paige Electric from asserting any cognizable claim against Wells Fargo. Wells Fargo reiterated that Paige Electric was not a customer of Wells Fargo and the fact that Paige Electric acknowledged the forgery amounted to a breach of its warranties and precluded it from recovering any amounts from the check.

¶ 12. On March 12, 2015, a hearing was held on Wells Fargo’s motion to dismiss. On April 16, 2015, the circuit court entered an order dismissing Paige Electric’s complaint under Rule 12(b)(6) of Mississippi Rules of Civil Procedure. It is from that order that Paige Electric now appeals. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 13. A motion to dismiss under Mississippi Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Lagniappe Logistics Inc. v. Buras, 199 So.3d 675, 676 (¶ 5) (Miss. 2016). Rule 12(b)(6) motions should not be granted unless “it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim.” Id. (quotation marks omitted). When reviewing a Rule 12(b)(6) motion on appeal, we conduct a de novo review and must accept the allegations contained in the complaint as true. Id.

DISCUSSION

Whether the circuit court erred in dismissing Paige Electric’s claims against Wells Fargo.

¶ 14. Paige Electric’s amended complaint alleged that Wells Fargo was directly or indirectly involved in acts of conversion, misappropriation, and coercion regarding the wrongful appropriation and removal of the check’s proceeds from Paige Electric’s bank account. Paige Electric further asserts that Wells Fargo’s liability regarding the manner of recovery of the check’s proceeds from its bank account was supported by Mississippi Code Annotated Sections 75-3-417 and/or 75-3-418 (Rev. 2016).

¶ 15. Paige Electric argues that an unauthorized debit from its checking account was a wrongful recovery and tantamount to conversion, Paige Electric also argues sections 75-3-417 and 75-3-418 support its claims. We do not agree. Section 75-3-417 discusses the liability of parties and presentment warranties. This section of Mississippi’s UCC does not address the wrongful recovery of funds obtained by a fraudulent endorsement. Instead, the section addresses the applicable warranties of a payee and its responsibilities if those warranties are breached. Section 75-3-417 does discuss Paige Electric’s liability for a presentment-warranty breach due to Gibson’s and Wylie’s fraudulent endorsement. Therefore, Paige Electric warranted to BankcorpSouth and Wells Fargo that all signatures on the instrument were authentic and authorized, see Miss. Code Ann. § 75-3-417 (a)(2), and therefore those entities could recover from Paige Electric. We find nothing in this code section that supports Paige Electric’s claims of wrongful recovery.

¶ 16.' However, it should be noted that Wells Fargo waited more than thirty days after it had reason to know of the breach of warranty before noticing its claim. Pursuant to Mississippi Code Annotated Section 75-3-416(c) (Rev. 2016), check warranties are disclaimed if notice of the claim is not submitted within thirty days after the claimant has reason to know of the breach and the identity of the warrantor. A warrantor’s liability is discharged to the extent of the loss caused by the delay in giving notice. Paige Electric’s warranty is discharged to the extent, the loss was caused by the delay. Nevertheless, Paige Electric has not identified any such issues.

¶ 17. Paige Electric also -asserts that Section 75-3-418 supports its wrongful-recovery claims. We disagree. Section 75-3-418 addresses payment or acceptance by mistake, and the right-of a drawee to recover funds that were mistakenly paid. This section is inapplicable, since the payment to Paige Electric was made due to fraud and not mistake. As such, this sec-, tion does not apply.

¶ 18. Paige Electric maintains that its claim of conversion is a cognizable claim for which relief can be granted. Paige Electric cites Mississippi Code Annotated Sections 75-1-103(b) and 75-3-420 (Rev. 2016) as support for its claim. Section 75-1-103 addresses the liberal construction and application of the UCC. Coercion is only mentioned once in this section and it states, “Unless displaced by the particular provisions of the Uniform Commercial Code, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, and other validating or invalidating cause supplement its provisions.” Miss. Code Ann. Section 75-1-103 (b) (Rev. 2016). Moreover, Paige Electric cites to Miss. Code Ann. Section 75-3-420 to support its claim of conversion, but we do not find this argument persuasive. Paige Electric cites to Section 75-3-420, but it fails to adequately explain how this section justifies its argument of conversion. The trial court found that Paige Electric failed to state a claim for which relief could be granted. Finding no error, we affirm.

¶ 19. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS,' P.JJ., BARNES, CARLTON, FAIR AND GREENLEE, JJ., CONCUR. WILSON, J., NOT PARTICIPATING.

      . We note that although Paige Electric had also appealed the dismissal" of its claims against HomeEq and BancorpSouth, its claims against those entities were resolved on appeal.


source: Caselaw Access Project

author: WILSON, J.,

license: Public Domain

text:
    Wallace Wayne WHATLEY a/k/a Wallace Whatley a/k/a Wallace W. Whatley, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01292-COA
    Court of Appeals of Mississippi.
    10/03/2017

      ATTORNEY FOR APPELLANT: WALLACE WAYNE WHATLEY (PRO SE)
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: DARRELL CLAYTON BAUGHN, ANTHONY LOUIS SCHMIDT, JACKSON
    BEFORE IRVING, P.J., WILSON AND WESTBROOKS, jj.
   WILSON, J.,

FOR THE COURT:

¶ 1. Wallace Wayne Whatley appeals from the denial of his second motion for post-conviction relief, in which he sought a determination that he is eligible for parole. Whatley is not eligible for parole. Therefore, we affirm.

¶ 2. In 2010, Whatley pled guilty to selling Dilaudid, a Schedule II controlled substance, as a subsequent drug offender, and the court sentenced him to sixty years in the custody of the Mississippi Department of Corrections (MDOC). Miss. Code Ann. §§ 41-29-139(b)(1) (Rev. 2009) & 41-29-147 (Rev. 2013) (“[A]ny person convicted of a second or subsequent offense under [the Uniform Controlled Substances Act] may be imprisoned for a term up to twice the term otherwise authorized .... ”). The sentencing order provided that after Whatley had served a term of twenty years in MDOC custody, he would be released and placed on post-release supervision for five years.

¶ 3. In 2011, Whatley filed a motion for post-conviction relief. The circuit court denied the motion, and this Court affirmed. Whatley v. State, 123 So.3d 461 (Miss. Ct. App. 2013). In 2016, Whatley filed a successive motion for post-conviction relief. His motion alleged that 2014 amendments to the parole statutes made him eligible for parole, and he asked the circuit court to order MDOC to classify him as eligible for parole and grant him a parole-eligibility date. The circuit court dismissed the motion, finding that it was procedurally barred and without merit. Whatley then appealed.

¶ 4. Whatley’s claim that he is eligible for parole is without merit. Mississippi Code Annotated section 47—7—3(1)(f) (Supp. 2016) continues to provide that persons convicted of “felonies with enhanced penalties” between June 30, 1995, and July 1, 2014, are not eligible for parole. This Court has twice held that a felony conviction as a subsequent drug offender is a felony conviction with an enhanced penalty within the meaning of section 47—7—3(1)(f). Lackaye v. State, 166 So.3d 560, 562 (¶ 6) (Miss. Ct. App. 2015); Ferrell v. State, 158 So.3d 1204, 1212 (¶ 38) (Miss. Ct. App. 2015). Therefore, Whatley is not eligible for parole.

¶ 5. Moreover, the fact that the Legislature expanded parole eligibility for some persons convicted after July 1, 2014, see Miss. Code Ann. § 47-7-3(1)(g)(i), is not relevant to Whatley’s case. “A state’s decision to expand parole eligibility only on a prospective basis is rational” and does not violate the constitutional rights of offenders convicted previously. Fluker v. State, 200 So.3d 1148, 1149 (¶ 2) (Miss. Ct. App. 2016), cert. denied, 214 So.3d 1058 (Miss. 2017). Because Whatley is not eligible for parole, the circuit court correctly denied his motion for post-conviction relief.

¶ 6. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . A motion for post-conviction relief "is a proper vehicle to challenge MDOC’s determination that [an inmate] is ineligible for parole.” Sinko v. State, 192 So.3d 1069, 1072-73 (¶ 9) (Miss. Ct. App. 2016) (citing Keys v. State, 67 So.3d 758, 759-60 (¶¶ 6-9) (Miss. 2011)).


author: GRIFFIS, P.J.,

text:
    Leonard ALPERT, Izabella Alpert, and Thuy Land Pawn Shop, Inc., Appellants v. CITY OF BILOXI, Mississippi, Appellee
    NO. 2016-CC-01121-COA
    Court of Appeals of Mississippi.
    10/17/2017

      WAYNE L. HENGEN, ATTORNEY FOR APPELLANTS.
    DAVID A. WHEELER, GERALD HENRY BLESSEY, ATTORNEYS FOR APPELLEE.
    BEFORE GRIFFIS, P.J.; CARLTON AND GREENLEE, JJ.
   GRIFFIS, P.J.,

FOR THE COURT:

¶1. Upon application by Boyd Gaming Corporation, the City of Biloxi adopted the Biloxi Planning Commission’s approval of a requested right-of-way vacation and realignment of Fayard Street. Leonard ..Alpert, Izabella Alpert, and- Thuy Land Pawn Shop (collectively “Alpert”), appealed the City’s decision to the Harrison County Circuit Court. After a hearing, the circuit court upheld the City’s decision. Alpert now appeals to this Court. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Boyd, owner of Imperial Palace Casino and Resort, and Seymour Engineering submitted an application to the Planning Commission seeking to vacate and realign a portion of Fayard Street. The northern portion of Fayard Street functioned as a public right-of-way. Boyd sought to install and dedicate a new public right-of-way, which would realign Fayard Street with Bayview Avenue, a five-lane thoroughfare.

¶3. On August 6, 2015, the Planning Commission held a public hearing on Boyd’s request. During the hearing, Boyd answered questions pertaining to' pedestrian safety, utility easements,, and the use of the proposed road. The hearing was continued to allow Boyd an opportunity to meet with Coast Transit Authority regarding the location for a new bus stop.

¶4. The hearing recommenced on August 20, 2015. At that time, Boyd informed the Planning Commission that:the realignment would result in: (1) a safer area for pedestrians, (2) better turning radius for large vehicles entering Bayview Avenue from Fayard Street, and (3) the pawn shop receiving fifteen feet of additional land. Alpert,-the owner of the pawn shop, objected to the vacation and realignment. He asserted that- approving the proposal would only benefit Boyd, Alpert claimed there was no justification for the request. Alpert also informed the Planning Commission that the pawn shop had been using Fayard Street for customer parking for the past fifteen years, and the realignment would essentially eliminate customer parking and their business.

¶5, During the public hearing, local residents and business owners voiced their support or opposition to the proposed vacation and realignment. The executive planner addressed the Planning Commission and stated that after a thorough review of Boyd’s application, the staff had determined that the proposed vacation and realignment better addressed the intersection. The staff had determined that the change would provide more reasonable levels of safety. The Planning Commission supported the application; however, it preferred' the addition of some type of traffic control mechanism at the intersection. Despite this preference, the Planning Commission voted, eight to four, to approve Boyd’s application as' submitted. Alpert timely appealed and requested a public healing. The request was denied after it was determined that the matter was not appeálable at the Planning Commission level.

¶6.. On September 15, 2015, during a regularly scheduled meeting, the Biloxi City Council considered a resolution to approve Boyd’s application. Boyd gave a presentation depicting the following improvements:

(1) the sidewalk placement to Bayview Avenue on the realigned Fayard Street, which was not possible under the current layout;
(2) a straight crosswalk rather than a diagonal crosswalk, which would improve the line of sight for left-hand turns and reduce distance and time issues for left-turning motorists;
(3) the improved turning radius for large vehicles, turning from Bay- ,, view Avenue onto Fayard Street, that make business and residential deliveries along Fayard Street;
(4) flashing, lights and warning signs to alert motorists to the pedestrian crosswalk;
(5) improvements and beautification of the parking lot south of Bayview Avenue, which included lighting and landscaping; and
(6) the land owned by Boyd donated to the City for the realignment of Fa-yard Street, and the dedication to the City of the western -vacated portion of Fayard Street as a utility easement.

Following the presentation, the City Council engaged in an in-depth discussion regarding the potential effects, that the vacation and realignment would have on Alpert’s, husiness. Afterwards, the City Council adopted the Planning Commission’s report and findings. The requested right-of-way vacation was. approved, and the dedication of the new right-of-way, as presented in Boyd’s presentation, was accepted. The City Council’s decision was documented as Resolution No. 449-15.

¶7. On September 22, 2015, counsel for Alpert appeared before the City Council and requested reconsideration of the vote. Alpert argued that the changes that the Planning Commission had Mtially proposed were not set out in the resolution. Alpert later conveyed this concern to the mayor, the City Council, and the city attorney. On September 23, 2015, Alpert appealed the City Council’s decision to the Harrison County Circuit Court.

¶8. On September 30, 2015, the City Council held- a special meeting to consider a request to amend Resolution No. 449-15. Counsel for Alpert appeared at the meeting and urged the councilmen to rescind the resolution. Alpert claimed that the resolution gave Boyd the vacated western half of Fayard Street, which only left the pawn shop with the eastern half—a fifteen-foot-wide strip of land—to use for parking. Alpert asserted. that the.- space did not meet Biloxi City Code, and that the strip was insufficient for vehicles to enter, park, turn around, and leave. Alpert argued that this essentially eliminated any usable parking for his business. Alpert further asserted that.he had utilized Fayard Street for customer parking since 1999. Follomng a detailed discussion, the City Council tabled the question.

¶9. On June 16, 2016, the circuit court held a hearing on Alpert’s appeal. The circuit court entered its findings of fact and conclusions of law, wherein it affirmed the City’s decision. The circuit court found that the City’s decision was based on substantial evidence, which had been presented at the Planning Commission’s public hearings and at the City Council meetings. The circuit judge further found that the vacation and realignment of Fayard Street would improve safety and correct the deficiencies at the intersection of Fayard Street and Bayview Avenue. Based on these findings, the circuit judge determined that the decision was neither arbitrary nor capricious. Aggrieved, Alpert now appeals to this Court.

STANDARD OF REVIEW

¶10. “This Court employs a limited standard of review when considering the actions of a municipal board.” Hopkins v. City of Mendenhall, 116 So.3d 166, 169 (¶11) (Miss. Ct. App. 2013) (citation omitted). “For questions of law, a municipal board’s decision is reviewed de novo.” Id. “Otherwise, we will not set aside the action of the governing body of a municipality unless such action is clearly shown to be arbitrary, capricious, or discriminatory or is illegal or without substantial evidentiary basis.” Id.

¶11. “An act is arbitrary and capricious when it is done at pleasure, without reasoned judgment^] or with disregard for the surrounding facts and circumstances.” Id. at (¶12). “Substantial evidence is such relevant evidence as reasonable minds might accept as adequate to support a conclusion or more than a mere scintilla of evidence.” Id.

ANALYSIS

I. Whether the City’s approval of the resolution denies access to the pawn shop and violates Alpert’s rights.

1112. Alpert contends that his access rights were taken, rather than diverted, and no route of access was substituted. He asserts that the taking is equivalent to eminent domain. Alpert argues that his property will be blocked on all sides—by Boyd’s private property on the east and west, utility easements and landscaping on the south and west, and Bayview Avenue on the north. He further asserts that neither the resolution nor any written agreement provides for Boyd’s verbal claim that the pawn shop will receive unrestricted access to the casino parking lot. He contends that there is no evidence to support the claim that the vacation is in the public good. Therefore, he claims that the approval of the resolution was beyond the City’s power and unsupported by substantial evidence.

¶13. The City disputes Alpert’s assertions. The City first contends that no portion of Alpert’s property was taken. The City argues that approval of the vacation and realignment pertains to a public road—not Alpert’s private property. The City further argues that the construction will not alter the present layout of Alpert’s property. Therefore, the City argues that this case is not equivalent to eminent domain. The City notes that Alpert currently only has one parking space on his property, and that the pawn shop customers either park on the street or in the casino parking lot. According to the City, this arrangement will not be affected by the vacation and realignment.

¶14. The City further argues that although Alpert and his customers have used Fayard Street for parking for many years, the usage did not create a right. The City asserts that Alpert, like the general public, , has a right to use the street as a road but not as private parking for his business. Therefore, the City contends that the approval neither constitutes a taking nor violates Alpert’s rights.

1115. The present matter is governed by Mississippi Code Annotated section 21-37-7 (Rev. 2015), which provides: '

The governing authorities of municipalities shall have the power to close and vacate any street or alley, or any portion thereof. No street or alley or any portion thereof shall be closed or vacated, however, except upon due compensation being first made to the abutting landowners upon such street or alley for all damages sustained thereby.

As the governing authority of Biloxi, the City Council had the power to vacate any portion of Fayard Street. The record reflects that Fayard Street is a public street. Although Alpert and his customers have utilized the street for parking, there is no evidence in the record to substantiate Alpert’s claim that the City’s approval violates the access rights to his property.

¶16. During a meeting, the councilmen consulted the city attorney to ensure that the approval would not violate Alpert’s property rights. At that time it was determined that Alpert’s, as a grandfathered business, had no parking rights on Fayard Street. As a grandfathered business on Bayview Avenue, Alpert was permitted to operate without providing his own separate parking. However, the City’s allowance did not convey a right of ownership to Alpert. Thus, Alpert’s property has ■ not been taken, as the public street never belonged to Alpert. Moreover, the present layout of Fayard Street, and the proposed realignment under Resolution No. 449-15, will not result in any change to the street. Fayard Street will remain a two-way street with no designated parking spaces. This argument is without merit.

II. Whether the vacation and realignment create a more dangerous intersection.

¶17. Alpert next argues that the City’s decision was made without reasoned judgment and with disregard for the surrounding facts and circumstances. He contends that the City’s approval of the resolution will make the intersection more dangerous. He asserts that the resolution doubles the number of vehicle intersections and places a pedestrian crosswalk across five lanes of traffic. Thus, Alpert argues that the realignment is not safer, and the City’s assertion to the contrary was not based on substantial evidence.

1Í18. Alpert further contends that the City based its approval on the fact that Boyd was paying for all of the realignment improvements, which he argues benefits the City. Alpert also argues that the City only approved Boyd’s application after it grew “tired of dealing with Boyd.” He contends that the decision was arbitrary and capricious.

¶19. The City argues that approval of the vacation was neither arbitrary nor capricious, and it asserts that the decision was supported by substantial evidence. The City maintains that the Planning Commission and the City Council considered opposition, support, and explanations regarding the vacation and realignment. Therefore, the City contends that the Planning Commission and the City Council considered substantial evidence before it rendered a decision.

¶20. The City further argues that the evidence produced at the public hearings and the city council meetings prove that the current layout of the intersection creates hazardous conditions. The City also contends that the record reflects that Alpert’s use of Fayard Street for parking creates a safety hazard. Therefore, the City argues that the vacated and realigned street will eliminate the existing dangerous road conditions and create a less dangerous intersection.

¶21. We find that both the Planning Commission and the City Council considered substantial facts surrounding Boyd’s application. During the public hearing, the executive planner addressed the councilmen and stated that the Planning Commission’s staff had thoroughly reviewed and considered Boyd’s application. In a detailed report, the Planning Commission justified its findings and noted that the proposed vacation and realignment “better addressed the intersection and provided reasonable levels of safety.-” The City Council considered information and testimony provided by both Alpert and Boyd. Therefore, we find that the City’s subsequent approval was based upon reasoned judgment.

¶22, Additionally, the councilmen discussed the continued ability of the pawn shop’s customers to park along the curb of the realigned Fayard Street, the legality of parking on the street, the additional land that the pawn shop owners would acquire as a result of the vacation, and the elimination of the hazard of drivers backing onto Bayview Avenue. Even more, Boyd informed the City that the pawn shop’s customers would not be restricted from using the casino parking lot, which surrounds the pawn shop on three sides.

¶23, The City also considered the statement of one councilman, who asserted that the vacation and realignment placed Alpert in the same position as without the changes. The councilmen also -, considered the benefits of the improvements, which included, that .Boyd would pay for the changes. Notably, the City considered several alternatives for reconstructing Fayard Street. Most importantly, the City considered the impact that the improvements would have on the health, safety, and welfare of the citizens.

¶24. We find that the. City’s decision to approve Boyd’s application was reached after much consideration. It' was after-wards that the City finally concluded:

[Hjaving determined that the standards for [r]ight-of-[w]ay abandonment have been met, specifically, finding that the portion of improved public [r]ight-of-[w]ay submitted for vacation is not now or in the foreseeable future of need to the city or its inhabitants, and that the dedication of [a] new [r]ight-of-[w]ay, which will involve the realignment of Fayard Street (as depicted in Exhibit Á), will prove beneficial to correcting deficiencies now experienced at this Fa-yard Street/Bayview Avenue' intersection and is acceptable as submitted, subject to the applicant providing éasement(s) of sufficient size and location, as determined by the City to accommodate any existing utilities or anticipated future utility or accessibility needs. ...

We find that the approval was based on “more than a mere scintilla” of evidence and was neither, arbitrary nor capricious. See Hopkins, 116 So.3d at 169 (¶11). This issue is without merit.

¶26. AFFIRMED.

LEE, C.J., IRVING, P.J., BARNES, - CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS; JJ., CONCUR. TINDELL, J., NOT PARTICIPATING,

      . Boyd's representatives, Nancy Depreo, with Seymour Engineering, and Michaél Cava-naugh, attorney for the corporation, appeared at the public hearings and meetings and addressed the concerns of the Planning Commission and the City Council.