author: CARLSON, Presiding Justice, RANDOLPH, Justice,

text:
    Walter AKINS d/b/a Akins Construction Company v. GOLDEN TRIANGLE PLANNING & DEVELOPMENT DISTRICT, INC.
    No. 2009-CA-00182-SCT.
    Supreme Court of Mississippi.
    May 13, 2010.

      J. Niles McNeel, Louisville, attorney for appellant.
    Tommie Sullivan Cardin, William M. Gage, Jackson, Paul Michael Ellis, attorneys for appellee.
   CARLSON, Presiding Justice,

for the Court:

¶ 1. Walter Akins d/b/a Akins Construction Company (Akins) filed suit in the Circuit Court of Oktibbeha County against Golden Triangle Planning and Development District, Inc. (Golden Triangle) under the theory of respondeat superior, seeking, inter alia, $80,628, an amount that he claimed represented profits owed to him for constructing homes under the federal government’s HOME Investment Partnerships Program (HOME), which was administered locally by Golden Triangle. According to Akins, the profits to which he was entitled were embezzled by a Golden Triangle employee, Phyllis Tate. Upon both parties filing motions for summary judgment, the trial court denied Akins’s motion for summary judgment and granted summary judgment in favor of Golden Triangle. Consistent with these actions, the trial court entered final judgment in favor of Golden Triangle, thus dismissing Akins’s claims with prejudice. Aggrieved by the trial court’s judgment, Akins timely filed this appeal.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Golden Triangle is a nonprofit economic-development corporation headquartered in Starkville. Golden Triangle serves the counties of Choctaw, Clay, Lowndes, Noxubee, Oktibbeha, Webster, and Winston. One of the programs managed by Golden Triangle is the HOME program, which is under the auspices of the Department of Housing and Urban Development (HUD). The HOME program is aimed at providing affordable housing for rent or ownership to low-income individuals. Within Golden Triangle’s Community Enrichment Division is the Housing Department, and, at all relevant times herein, Phyllis Tate (Tate) was employed by Golden Triangle as a Housing Specialist within the Housing Department. Tate’s duties included enrolling the seven participating counties in the HOME program; assisting counties and municipalities in selecting eligible participants; advertising and soliciting bids from third-party contractors to construct the houses; verifying that the most competitive participants were awarded the bids; reviewing inspector reports certifying percentage of work completed on houses; and submitting requests to the Mississippi Development Authority for disbursement of money to counties and municipalities for payment to the contractors.

¶ 3. In general, the process began with Tate assisting the counties and municipalities in applying for HOME funds. For those applications which were approved, the HOME funds were allocated to the counties and municipalities. Tate worked with potential homeowners to select house plans and general contractors. The future hoineowners then contracted with the builders, and these contracts ultimately had to be approved by Golden Triangle. When building began, Tate received invoices from contractors and requested cash allotments from the counties and municipalities, which, in turn, paid the invoices with HOME funds.

¶ 4. Eventually, Tate began a scheme in which she colluded with her daughter and her daughter’s then-boyfriend, Jason Clark, to divert HOME funds by transferring profits from the building projects to the checking account of a shell corporation, J-Max Construction Company, purportedly owned by Clark. In reality, J-Max was created for the fraudulent purpose of receiving the illegally diverted HOME funds. Tate convinced future homeowners to contract with builders with whom she purportedly had been working. Tate then requested cash allotments for J-Max Construction Company. The county or municipality receiving the grant funds wrote checks to J-Max. Tate, Clark, or Tate’s daughter would withdraw the necessary funds to pay the subcontractors. When building was complete, Tate incorporated into the withdrawals the profits which should have been paid to the general contractor who actually had performed the work.

¶ 5. Akins was one of the general contractors who built homes under the HOME program administered by Golden Triangle. Akins was paid a total of $820,000 with HOME funds for various construction projects. Akins contracted with prospective homeowners to construct their residences. Golden Triangle approved these contracts. Akins requested periodic payments and a final payment upon completion. At Golden Triangle’s request, Akins was paid for his services.

¶ 6. In August 2005, Golden Triangle suspected that Tate and/or Akins was involved in fraudulent activity after learning that Akins was charging building supplies to an account opened by Tate on behalf of a county at an area building supply warehouse, thereby avoiding sales tax on the building supplies. A forensic certified public accountant, hired by Golden Triangle, investigated and determined that Tate was embezzling HOME funds.

¶ 7. Upon receiving this information from the forensic CPA, Golden Triangle reported Tate’s actions to the local district attorney, the Mississippi State Auditor, and the Mississippi Development Authority. In due course, the Federal Bureau of Investigation conducted its own investigation, ultimately resulting in a forty-seven-count federal grand jury indictment being handed down in the United States District Court for the Northern District of Mississippi. Some of the overt acts asserted by the government in this indictment were as follows:

3. PHYLLIS TATE created fraudulent requests for cash purportedly for J-Max Construction Company, a company supposedly building low income housing in Weir, Webster County, Choctaw County, Eupora, Winston County, Oktibbeha County, Macon, and Noxubee County, Mississippi.
4. J-Max Construction Company received funds for low income housing it did not build, but funds provided by the Housing and Urban Development Administration were nevertheless paid as a result of the fraudulent requests for cash.
5. J-Max Construction was purportedly a construction company operated by JASON CLARK, KEINA TATE’S then-boyfriend. The company and its checking account were created for no reason other than to funnel money designated to build low income housing into the pockets of JOSH BROWN, JASON CLARK, KEINA TATE, and PHYLLIS TATE.
6. KEINA TATE and JASON CLARK were the only individuals with signatory authority for J-Max Construction’s checking account, and once the funds from the town, city, or county were deposited into the account either KEINA TATE or JASON CLARK would withdraw a portion of those funds and transfer them to PHYLLIS TATE either by paying her cash or transferring it to one of PHYLLIS TATE’S personal accounts, including, but not limited to, PHYLLIS TATE’S Curry Club account, a non-business account in Phyllis Tate’s maiden name. KEINA TATE and JASON CLARK also retained a portion of the funds deposited into the J-Max Construction account.
7. At times pursuant to the dictates of the program, cash may not be distributed without an inspector providing information related to the progress of the construction. To make certain the fraudulent cash requests were honored, JOSH BROWN would provide fraudulent building inspection statements, stating that he had inspected the particular homes when he had not done so. On more than one occasion JOSH BROWN provided statements that construction of particular homes had progressed to a stage that would allow additional disbursements when in fact the structure was not yet started. JOSH BROWN received payment from the funding at issue for each fraudulent statement he provided.

¶ 8. On December 12, 2006, Akins filed suit against Golden Triangle in the Circuit Court of Oktibbeha County. In his complaint Akins alleged that the amount of $80,628 was embezzled by Tate, but actually owed to him for his services, and that Golden Triangle was vicariously liable under the doctrine of respondeat superior. Akins alleged that payments made to J-Max were for construction that he completed.

¶ 9. In due course, both Akins and Golden Triangle filed motions for summary judgment. The Circuit Court of Oktib-beha County, Judge Lee J. Howard presiding, denied Akins’s motion for summary judgment and granted Golden Triangle’s motion for summary judgment on the grounds that Tate was acting outside the scope of her duties in stealing government money and that Golden Triangle did not receive any benefit from Tate’s illegal actions. From the trial court judgment entered in favor of Golden Triangle, Akins appeals to us.

DISCUSSION

1110. Akins presents to us the single issue of whether the circuit court erroneously granted Golden Triangle’s motion for summary judgment.

¶ 11. A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). A grant of summary judgment is reviewed by this Court under the de novo standard. Weathers v. Metropolitan Life Ins. Co., 14 So.3d 688, 691 (Miss.2009) (quoting Bullard v. Guardian Life Ins. Co. of Am., 941 So.2d 812, 814 (Miss.2006)).

The court views the evidence in the light most favorable to the nonmoving party. Univ. of Miss. Med. Ctr. v. Easterling, 928 So.2d 815, 817 (Miss.2006). “The moving party bears the burden of demonstrating there is no genuine issue of material fact.” Id. This Court also has held that “[w]here there is doubt whether a fact issue exists, the non-moving party is the beneficiary of that doubt.” Allen v. Mac Tools, Inc., 671 So.2d 636, 640 (Miss.1996).

Weathers, 14 So.3d at 691.

¶ 12. Akins maintains that Golden Triangle is liable because the embezzlement was committed in the scope of Tate’s employment. Golden Triangle argues that the acts committed by Tate were committed in furtherance of her own personal gain and not for the benefit of Golden Triangle or in the scope of her employment.

¶ 13. The trial court relied on the test in Commercial Bank v. Hearn, 923 So.2d 202 (Miss.2006), for determining whether an employee was acting within the scope of employment. In Hearn, this Court defined an employee’s conduct as being in the scope of employment if:

(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master, and
(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

Id. at 208 (citing Marter v. Scott, 514 So.2d 1240, 1242-43 (Miss.1987); Restatement (Second) of Agency § 228 (1958)). “Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.” Id.

¶ 14. The trial court found that Tate was employed for the purpose of transferring money from government entities into the accounts of builders. The trial court did not believe this scope of employment included stealing government money and routing it into her own personal account. Thus, according to the trial court, Tate’s conduct satisfied only one prong of the Hearn test, inasmuch as the illegal acts occurred during the time she was working at Golden Triangle; however, Golden Triangle received no benefit from Tate’s actions.

¶ 15. The facts in Hearn are as follows: A bank employee was involved in an automobile accident that resulted in the injury of another driver and the death of an infant passenger. Id. at 203. The accident occurred during the employee’s work hours while the employee was soliciting pledges for a United Way Campaign. The injured parties filed suit against both the employee and the bank based on the theory of respondeat superior. Id. at 204. This Court found that soliciting pledges was neither an act within the scope of employment nor an act conducted in furtherance of any benefit to the bank; thus, the trial court’s judgment denying Commercial Bank’s motion for summary judgment was reversed and rendered. Id. at 208-210.

¶ 16. The second case the trial court cited was Berhow v. The People’s Bank, 423 F.Supp.2d 562 (S.D.Miss.2006). In Berhow, a loan officer fraudulently used bank customers’ information to create fictitious loans and obtain funds for himself. One of the customers filed suit against the bank arguing that the bank was vicariously liable for its officer’s actions. The trial court rejected this argument on the basis that the employee’s fraud was for his own gain and of no benefit to the bank and that stealing funds from the bank was not within the scope of his employment. Id. at 575.

¶ 17. Akins argues that both of these cases concern employees involved in “an entirely personal act” and that such is not the case here. Akins alleges that Tate was acting within the scope of her duties in approving the disbursement of monies and building homes. Moreover, Akins alleges that Tate diverted Akins’s money to the J-Max account, paid subcontractors, and then kept Akins’s profits for herself and her co-conspirators. Thus, according to Akins, Tate was still ensuring that the homes were built, which acts, at least in part, served the master.

¶ 18. Akins compares the facts of the present case with the facts in Billups Petroleum v. Hardin’s Bakeries Corp., 217 Miss. 24, 63 So.2d 543 (1953), wherein a salesman was overcharging Billups for bread and keeping the difference for himself. Hardin’s was found liable for its employee’s theft. Id. at 548. Akins further cites Napp v. Liberty National Life Insurance Co., 248 Miss. 320, 159 So.2d 164 (1963), wherein an insurance agent pocketed half of a beneficiary’s dividends under a $1,000 life insurance policy with a double-indemnity clause in the event of accidental death. Id. at 164. The decedent had died in an automobile accident, and the decedent’s widow was the beneficiary. Id. The insurance agent convinced the beneficiary that the policy had lapsed but that the company would pay her $1,000 under the policy. Id. at 165. When the agent presented her with a $2,000 check from the life insurance company, he persuaded her that this was an oversight and that she would be required to deposit $1,000 in her account, but give $1,000 dollars in cash back to the agent. Id. The company was held liable for the difference. Id. at 166.

¶ 19. Golden Triangle contends that Akins’s reliance on both Billups and Napp is misplaced, as these decisions have been eroded by more recent Mississippi Supreme Court decisions which have demonstrated a “marked shift away from expansive employer vicarious liability.” Golden Triangle cites Gulledge v. Shaw, 880 So.2d 288 (Miss.2004), for the premise that when “a servant, having completed his duty to his master, then proceeds to prosecute some private purpose of his own, the master is not liable....” Id. at 295. Golden Triangle further argues that Akins has failed to prove that he is owed any of the funds diverted by Tate to J-Max, and in turn, to herself and her co-conspirators. Alternatively, Golden Triangle maintains that, even if the facts averred by Akins are true, Golden Triangle still is entitled to judgment as a matter of law because Tate acted outside her duties for her own gain to the detriment — not the benefit — of her employer/master, Golden Triangle.

¶ 20. From the record before us, we find that the trial court did not err in granting Golden Triangle’s motion for summary judgment, notwithstanding that genuine issues of fact exist, because Akins’s claims fail as a matter of law. The trial court was correct in finding that Tate’s misdeeds were for her own personal gain and were of no benefit to Golden Triangle. She took government money and funneled it into the J-Max account. Later, this money was put into Tate’s personal account. Even if this money was earmarked for Akins, as a matter of law, Akins cannot be granted relief under a theory of respondeat superior. Given that Akins contracted with the homeowners themselves, and there exists no privity of contract between the parties, Akins is not entitled to relief from Golden Triangle.

CONCLUSION

¶ 21. As a matter of law, Akins was not entitled to recover any funds from Golden Triangle, given that Golden Triangle’s employee, Tate, embezzled money for her own personal gain and did not serve to mutually benefit Golden Triangle. Rather, such actions were to the detriment of Golden Triangle. For all the reasons stated, the trial court did not err in granting Golden Triangle’s motion for summary judgment; therefore, the Oktibbeha County Circuit Court’s final judgment entered in favor of Golden Triangle Planning & Development District, Inc., dismissing with prejudice all claims of Walter Akins d/b/a Akins Construction Company, is affirmed.

¶ 22. AFFIRMED.

WALLER, C.J., GRAVES, P.J, KITCHENS AND PIERCE, JJ., CONCUR. RANDOLPH, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, LAMAR AND CHANDLER, JJ.

RANDOLPH, Justice,

dissenting:

¶ 23. As no employee’s duty involves stealing, the Majority, like the circuit court, properly concludes that Tate’s fraudulent conduct was not “within the scope of employment,” as her “misdeeds were for her own personal gain and were of no benefit to Golden Triangle.” (Maj. Op. at ¶ 21). Unfortunately, the vicarious-liability analysis of both the Majority and the circuit court is limited to the re-spondeat superior standard outlined in Section 228 of the Restatement (Second) of Agency. In cases involving employee negligence or wrongful conduct, like those relied upon by the Majority, such an analysis is quite appropriate. However, “[sjcope of employment does not define the only basis for employer liability under agency principles. In limited circumstances, agency principles impose liability on employers even where employees commit torts outside the scope of employment. The principles are set forth in the much-cited § 219(2) of the Restatement. ...” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 758, 118 S.Ct. 2257, 2267, 141 L.Ed.2d 633 (1998). See also Jones v. B.L. Dev. Corp., 940 So.2d 961, 967 (Miss.Ct.App.2006) (citation omitted) (“[a] master is subject to liability for the torts of his servant committed outside the scope of employment if the servant was aided in accomplishing the tort by the existence of the agency relation.”); Faragher v. City of Boca Raton, 524 U.S. 775, 801-02, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).

¶ 24. In employee theft/dishonesty/fraud cases, such a different analysis is required. See Napp v. Liberty Nat’l Life Ins. Co., 248 Miss. 320, 159 So.2d 164 (1963); Billups Petroleum Co. v. Hardin’s Bakeries Corp., 217 Miss. 24, 63 So.2d 543 (1953). In cases of this genre, the standards outlined in Sections 219(2)(d) and 261 of the Restatement (Second) of Agency apply. Considering those Restatement sections, in the context of the record presented, I conclude that genuine issues of material fact exist regarding whether Tate was “aided in accomplishing the tort by existence of the agency relation” such that Golden Triangle could be held vicariously liable for Tate’s fraudulent conduct. Restatement (Second) of Agency § 219(2)(d) (1958). As such, the circuit court erred in granting Golden Triangle’s motion for summary judgment.

¶25. According to Akins’s complaint, “Tate was acting as an employee and cogent of Golden Triangle and therefore, Golden Triangle is liable for the actions of [Tate] in wrongfully directing ... monies be paid to J-Max Construction.” (Emphasis added.) No reference to respondeat superior is made. Golden Triangle later summarized Akins’s cause of action in its “Memorandum of Authorities in Support of Defendant’s Motion for Summary Judgment,” when it stated that “Akins’[s] sole theory of recovery against Golden Triangle is that Tate was employed, by Golden Triangle when the funds were allegedly directed, and that Golden Triangle is therefore liable for the actions of Tate.” (Emphasis added.) However, Golden Triangle then proceeded to conflate distinctive theories of vicarious liability when it added “[i]n other words, Akins seeks to hold Golden Triangle vicariously liable under the doctrine of respondeat superior.” In so doing, Golden Triangle effectively submersed the broader principle of vicarious liability to restrict its application to only one of its bases, respondeat superior.

¶ 26. The circuit court and the Majority endorsed this restrictive application in their holdings, i.e., whether Tate’s fraudulent conduct was “within the scope of employment,” pursuant to the respondeat superior standard set forth in Section 228 of the Restatement (Second) of Agency. The Majority fails to address Sections 219(2)(d) and 261 of the Restatement (Second) of Agency, which control the case before us. See Restatement (Second) of Agency §§ 219(2)(d), 261 (1958).

¶ 27. Section 219(2) of the Restatement (Second) of Agency lists four situations in which conduct “outside the scope of ... employment” provides a basis for imposing vicarious liability. Restatement (Second) of Agency § 219(2). According to Section 219(2)(d):

(2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless:
(d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.

Id. at § 219(2)(d) (emphasis added). “The first clause establishes an employer’s vicarious liability for the torts of employees based on the doctrine of ‘apparent authority,’ while the second creates liability for an employer whose agent ‘was aided in accomplishing the tort by the existence of the agency relation.’ ” Doe v. Forrest, 176 Vt. 476, 853 A.2d 48, 56 (2004) (quoting Restatement (Second) of Agency § 219(2)(d)). “The commentary to the Restatement provides, by way of examples, that a telegraph company may be held liable for a tort committed by a telegraph operator who sends a false telegraph message, as may the undisclosed principal of a store whose manager cheats a customer.” LaRoche v. Denny’s, Inc., 62 F.Supp.2d 1366, 1373 (S.D.Fla.1999) (citing Restatement (Second) of Agency § 219 cmt. (e)).

¶ 28. Section 261 of the Restatement (Second) of Agency provides that “[a] principal who puts a servant or other agent in a position which enables the agent, while apparently acting within his authority, to commit a fraud upon third persons is subject to liability to such third persons for the fraud.” Restatement (Second) of Agency § 261. Comment (a) to Section 261 adds that:

[t]he principal is subject to liability under the rule stated in this Section although he is entirely innocent, has received no benefit from the transaction, and, as stated in Section 262, although the agent acted solely for his own purposes. Liability is based upon the fact that the agent’s position facilitates the consummation of the fraud, in that from the point of view of the third person the transaction seems regular on its face and the agent appears to be acting in the ordinary course of the business confided to him.

Restatement (Second) of Agency § 261 cmt. (a) (1958) (emphasis added). See also Entente Mineral, 956 F.2d at 527 (“[u]n-like § 228, § 261 assesses vicarious liability even though the agent’s conduct was not actuated by a purpose to serve the principal.”).

¶ 29. In Entente Mineral, the Fifth Circuit noted that:

[although Mississippi case law has not expressly differentiated between the two types of vicarious liability found in § 219(1) and § 219(2) of the Restatement, the distinction is implicit. Hence, cases imposing liability under the theory embraced by § 219(1) and defined in § 228, require the agent’s conduct to be for the principal's purposes; while other cases, under the theory embodied in §§ 219(2)(d) and 261, allow liability even when an agent acts solely for his own purposes. Compare [Seedlcem South ] with [Billups Petroleum] and [Napp ].

Entente Mineral, 956 F.2d at 527.

¶ 30. In Billups Petroleum, this Court stated that:

“[i]t is well settled that the principal is liable for the frauds and misrepresentations of his agent within the scope of the authority or employment of the agent, even though he had no knowledge thereof and has received no benefit therefrom. ...” 2 Am.Jur. p. 281, Agency, § 362. “The principal is liable to third persons for injuries resulting from the fraud and deceit of his agent if such is within the scope of the agent’s authority. Acts of fraud by the agent, committed in the course or scope of his employment, are binding on the principal, even though the principal did not know of or authorize the commission of the fraudulent acts, and although he derives no benefit from the success of the fraud, and the agent committed it for his own benefit.” 3 C.J.S., Agency, § 257, p. 190.

Billups Petroleum, 63 So.2d at 546 (emphasis added). In holding Hardin’s Bakeries vicariously liable for its agent’s fraud, this Court determined that “the fraud was committed by the agent ... while acting within the scope of his employment, and in our opinion the loss should fall on the principal who is liable for the act of the agent, and not upon the customer who has been defrauded.” Id. at 547-48.

¶ 31. The four cases discussed and relied upon by this Court in Billups Petroleum were: Birkett v. Postal Telegraph-Cable Company, 107 A.D. 115, 94 N.Y.S. 918 (N.Y.A.D. 4 Dept.1905); Wilmerding v. Postal Telegraph-Cable Company, 118 A.D. 685, 103 N.Y.S. 594 (N.Y.A.D. 1 Dept. 1907); Cleaney v. Parker, 167 Ala. 134, 51 So. 951 (1910); and Berkovitz v. Morton-Gregson Company, 112 Neb. 154, 198 N.W. 868 (1924). In Birkett, an agent of Postal Telegraph:

padded the statements of a customer and over a period of years collected a large sum in excess of the true amount due.... The agent ... retained the balance that he had wrongfully collected from the customer.... The court held that the agent was acting within the scope of his agency in receiving the money for the benefit of the defendant, and that the defendant was liable for the fraud perpetrated by its agent.

Billups Petroleum, 63 So.2d at 547 (citing Birkett, 94 N.Y.S. at 919-20). In Wilmerding:

the Court held that the plaintiff had a right to assume that the agents of the telegraph company admittedly employed by it and clothed with the power to collect money on the presentation of slips, were honest, and that the slips presented by them were genuine, and that where the defendant’s messenger had forged slips and presented them to the plaintiffs cashier who paid them[,] the company was liable. The Court in that case said: “[a]n employer who has put it within the power of his employe[e] to defraud a third person by intermingling fraudulent and genuine bills and collecting money therefrom should be held responsible to an innocent third party for the dishonesty of his employe[e].”

Billups Petroleum, 63 So.2d at 547 (quoting Wilmerding, 103 N.Y.S. at 597). In Cleaney, the employer of a newspaper agency was held liable for money extorted from a customer in excess of the price of the articles purchased. See Cleaney, 51 So. at 952. The Alabama Supreme Court:

stated that while the agent may have exceeded, and probably did exceed his authority, and violated the instructions of his principal when he collected the extra money from the customer, “yet it was clearly within the line and scope of his authority in such manner as to render the defendants liable to plaintiff for such tort of the agent; while it was the tort of the agent, as between him and his principals, it was the tort of both, as between them arid the plaintiff.”

Billups Petroleum, 63 So.2d at 546 (quoting Cleaney, 51 So. at 952) (emphasis added). In Berkovitz, a salesman for Morton-Gregson Company obtained merchandise orders from Berkovitz. See Berkovitz, 198 N.W. at 868. Without Morton-Gregson Company’s knowledge or authorization, the salesman began altering Berkovitz’s account statements to show larger amounts than were actually due. See id. at 869. Such amounts were then collected by the salesman from Berkovitz. See id. Thereafter:

[i]n an action by Berkovitz against Morton-Gregson Company to recover the amount of the excess collections so made, the [Nebraska Supreme] Court held that [the salesman], in presenting the altered statements of account, was acting in the line of his employment and within the apparent scope of his authority, and that Morton-Gregson Company was liable to Berkovitz for his loss, occasioned by the fraud of [the salesman],

Billups Petroleum, 63 So.2d at 547 (citing Berkovitz, 198 N.W. at 868).

¶ 32. In Napp, this Court considered the argument of the defendant-life insurance company “that the agent, if he was an agent, was acting without the scope of his authority real or apparent, and that the company could not foresee that the agent would commit an act of this sort.” Napp, 159 So.2d at 166. This Court, relying upon Billups Petroleum and the cases cited therein, disagreed and found that the “foreseeability of such an act” is not the applicable test. Id. Rather, in reversing and remanding for a new trial, this Court held that “the agent paid less than he was supposed to pay. If the appellant’s testimony be accepted as true, then the company has not paid its debt.” Id. (emphasis added).

¶ 33. Subsequently, the Fifth Circuit addressed Billups Petroleum and aptly stated that:

[contrary to some of the language in the ... ease, the principal’s liability is based on the theory embodied in §§ 219(2)(d) and 261 of the Restatement, rather than traditional “scope of employment” liability contained in § 219(1). The four cases the Billups [.Petroleum ] court discusses in support of its holding evidence that the court imposed § 219(2)(d) liability. Each of the four cases involves fraud by an agent upon the principal’s customer. Each case involved a situation in which the principal delegated to the agent the power to perform a certain task, such as collect monies for the principal. In each case, the agent acted for his own purposes, but the fraud transpired as part of the very duty that the principal authorized the agent to perform. Because the customers had a relationship with the principal that induced the customers to rely on the principal’s agent, and the agent defrauded the customers in the performance of the duty entrusted to him by the principal, the agent ivas “aided in accomplishing the tort by the existence of the agency relation.”

Entente Mineral, 956 F.2d at 529 (quoting Restatement (Second) of Agency § 219(2)(d)) (emphasis added). In sum:

[t]he proper inquiry for determining vicarious liability of a principal whose agent defrauds the principal’s customer is the relationship between the principal and the customer. In Billups [Petroleum], the four cases it discusses, and Napp, the principal had a relationship with the customer and the customer was defrauded by the principal’s agent. The courts reasoned that a principal who provides his agent with the tools or position necessary to perpetrate a fiuud on the principal’s customers, should be held responsible to the innocent customers who relied on the agent.

Entente Mineral, 956 F.2d at 529 (emphasis added). See also Jones, 940 So.2d at 967; Hardwicke v. American Boychoir School, 188 N.J. 69, 902 A.2d 900, 920 (2006); Doe, 853 A.2d at 57; Forum Fin. Group v. President and Fellows of Harvard Coll., 173 F.Supp.2d 72,101 (D.Maine 2001).

¶ 34. Golden Triangle acknowledges that it administered the HOME program. Golden Triangle then delegated to Tate, as housing specialist for the HOME program, the power to perform the following tasks, inter alia: advertising and soliciting bids from third-party contractors to construct homes; receiving invoices from contractors; reviewing inspector reports certifying the percentage of work completed on individual homes; and requesting cash allotments from counties and municipalities, which were paid with HOME funds.

¶ 35. In the course of performing her tasks, which she was authorized by Golden Triangle to perform, Tate “acted for [her] own purposes....” Id. While this “was the tort of the agent, as between him and his principals,” there is also a genuine issue of material fact as to whether it “was the tort of both, as between them and the plaintiff.” Cleaney, 51 So. at 952. If Akins can prove that he “had a relationship with [Golden Triangle] that induced [him] to rely on [Golden Triangle’s] agent, [Tate,] and [Tate] defrauded [Akins] in the performance of the duty entrusted to [her] by [Golden Triangle],” Entente Mineral, 956 F.2d at 529, I conclude that genuine issues of material fact exist regarding whether Tate was “aided in accomplishing the tort by the existence of the agency relation.” Restatement (Second) of Agency § 219(2)(d) (1958). As such, the trial court erred in granting Golden Triangle’s motion for summary judgment. Therefore, I respectfully dissent.

DICKINSON, LAMAR AND CHANDLER, JJ., JOIN THIS OPINION.

      . As can be presumed from this recitation of the facts, numerous contracts/documents most likely exist to memorialize the duties and obligations of Golden Triangle in its relationship with HUD and the duties and obligations of the general contractors in their relationships with Golden Triangle and the individual homeowners; however, none of these documents appear in the appellate record before us in this case.

      . Eventually, Tate pleaded guilty in the United States District Court for the Northern District of Mississippi, Chief Judge Michael P. Mills presiding. Pursuant to a plea agreement, Tate pleaded guilty to Count 47 of the indictment, which asserted, inter alia, that Tate had conspired with Brown, Clark and Keina Tale to illegally convert federal funds for "the use of persons other than the rightful owner.” From the record before us, we are unable to decipher what sentence was ultimately imposed upon Tate by Judge Mills.

      . Notwithstanding the dissent’s discussion, we have focused our discussion on the issue as couched in the parties' appellate briefs, that being whether damages are recoverable in today's case on the theory of respondeat superior. Mississippi Rule of Appellate Procedure 28(a)(6) states that "[t]he argument [in the brief] shall contain the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.”

      . The trial court opinion referred to a "three prong” test from Hearn, and erroneously omitted the fourth prong when citing to Hearn.

        . See Commercial Bank v. Hearn, 923 So.2d 202 (Miss.2006); Gulledge v. Shaw, 880 So.2d 288 (Miss.2004). See also Seedkem South, Inc. v. Lee, 391 So.2d 990, 994-95 (Miss.1980) (a negligent-conduct case in which an employee's "nine hour beer drinking spree" was deemed a "frolic” outside the scope of his employment, such that Seedkem South could not be held liable under respondeat superior).

      . Akins incorrectly accepted this restriction and offered only the respondeat superior, Section 228 of the Restatement (Second) of Agency, argument, although he also raised the seminal cases that are dispositive of the issue before this Court. This Court cannot overlook that among the authorities cited by Akins in his "Memorandum of Authorities in Support of Plaintiff’s Motion for Summary Judgment” and Appellant’s Brief are employee theft/dishonesty/fraud genre cases, Billups Petroleum and Napp, which are directly on point with the issue before this Court. See Napp, 159 So.2d at 164; Billups Petroleum, 63 So.2d at 543. Billups Petroleum and Napp do not rely on a Section 228 analysis, but implicitly rely upon the analysis set forth in Sections 219(2)(d) and 261 of the Restatement (Second) of Agency, as discussed supra. See Entente Mineral Co. v. Parker, 956 F.2d 524, 527 (5th Cir.1992).

      . In Faragher:

      [t]he City ... argue[d] that the second qualification of the subsection, referring to a servant "aided in accomplishing the tort by the existence of the agency relation,” merely "refines” the one preceding it, which holds the employer vicariously liable for its servant’s abuse of apparent authority.... But this narrow reading is untenable; it would render the second qualification of § 219(2)(d) almost entirely superfluous (and would seem to ask us to shut our eyes to the potential effects of supervisory authority, even when not explicitly invoked). The illustrations accompanying this subsection make clear that it covers not only cases involving the abuse of apparent authority, but also cases in which tortious conduct is made possible or facilitated by the existence of the actual agency relationship.

        Faragher, 524 U.S. at 801-02, 118 S.Ct. 2275. See also Ellerth, 524 U.S. at 759-60, 118 S.Ct. 2257 (distinguishing the two theories outlined in Section 219(2)(d)).

      . The doctrines of respondeat superior and apparent authority do overlap, but not perfectly. See Charles Davant IV, Employer Liability for Employee Fraud: Apparent Authority or Respondeat Superior?, 47 S.D.L. Rev. 554, 566, 568-69 (2002); Grease Monkey Int'l, Inc. v. Montoya, 904 P.2d 468, 473 (Colo.1995) (citation omitted) (”[a]pparent authority liability is not based upon the rules of responde-at superior, and it is not 'essential to find that the agent was motivated by an intent to act for his master’s purposes.’ ”).

      . See footnote 5, supra.

      . The subject action was that the agent was to deliver a $2,000 check from the defendant-life insurance company to Napp, but instead the agent made misrepresentations resulting in only $1,000 being received by Napp, with the agent receiving the remaining $1,000. See Napp, 159 So.2d at 165-66.

      . According to Count 47 of the indictment against Tate, to which she pleaded guilty, the HOME funds "were in the care, custody, and control of” Golden Triangle.


source: Caselaw Access Project

author: RANDOLPH, Justice,

license: Public Domain

text:
    The CARL RONNIE DARICEK LIVING TRUST v. HANCOCK COUNTY, Mississippi, acting by and through its BOARD OF SUPERVISORS and The Hancock County Road Protection Commission. Ernest Beckemeyer, III v. Hancock County, Mississippi, acting by and through its Board of Supervisors and The Hancock County Road Protection Commission. Lisa K. Fitch, Sandra K. Goodwin and Ann K. Englehorn v. Hancock County, Mississippi, acting by and through its Board of Supervisors and The Hancock County Road Protection Commission.
    Nos. 2009-IA-01513-SCT, 2009-IA-01514-SCT, 2009-IA-01515-SCT.
    Supreme Court of Mississippi.
    May 13, 2010.

      Virgil G. Gillespie, Gulfport, attorneys for appellant.
    Karl Crawford Hightower, attorneys for appellee.
   RANDOLPH, Justice,

for the Court:

¶ 1. The three consolidated cases are nearly identical. Landowners assert in this interlocutory appeal that the statute used by Hancock County to condemn their property for a temporary construction easement is unconstitutional, or has been repealed and/or superseded by a subsequent statute. The landowners seek a remand to the Hancock County Board of Supervisors to begin proceedings “anew.” We affirm the decision of the circuit court and remand.the matter to that court for a jury trial, if requested by the landowners.

FACTS AND PROCEDURAL HISTORY

¶ 2. Hurricane Katrina severely damaged the seawall protecting Beach Boulevard in downtown Bay Saint Louis. Only battered, intermittent sections remain. The U.S. Corps of Engineers (“Corps”) offered to rebuild the seawall for Hancock County using federal funds, at an estimated cost of $33,000,000. The planned seawall will be slightly seaward from the former one and will be located on land already owned by the State (public-trust tidelands). See Parks v. Simpson, 242 Miss. 894, 902, 137 So.2d 136, 138-39 (1962). The seawall project requires easements from landowners. Some permanent easements are required for access, drainage, maintenance, and other purposes. Also required are temporary construction easements, which will revert to the owners. The easements at issue are for temporary construction, not to exceed thirty-six months, and involve small parcels (Daricek, 0.14 acre; Beckemeyer, 0.11 acre; Fitch, .004 acre).

¶ 3. From the beginning of this project, the Hancock County Board of Supervisors (“board”) followed the statutory procedures of the Seawall Act. See Miss.Code Ann. §§ 65-33-1 to 65-33-71 (Rev.2005). In accordance with that statute, the board certified to the governor that a seawall was necessary to protect Beach Boulevard. The governor then appointed five members to the Hancock County Road Protection Commission (“commission”). See Miss.Code Ann. § 65-33-27 (Rev.2005).

¶ 4. The first attempt to obtain the necessary temporary easements from the landowners was via a letter from the Corps in August 2008, followed by a second letter in February 2009. Enclosed with the letters were easement agreements. All of the affected owners, except the three appellants, agreed to the easements. The Daricek property and the Beckemeyer property are on either side of railroad tracks that run east and west through Bay Saint Louis. The Fitch property is located several lots away from the property of the other two appellants.

¶ 5. Although the owners now argue that the board never negotiated with them, they conceded at a hearing that the Corps had negotiated with them when the original letters were sent. The owners were unwilling to grant the easements without compensation. The Corps countered that lack of compensation was justified because of the expected increase in the value of the condemnees’ property after the construction of the new seawall.

¶ 6. The board proceeded to condemn the property under the Seawall Act. See Miss.Code Ann. § 65-33-23 (Rev.2005). The commission published notice of the condemnation in a newspaper in Hancock County. The notice listed the three landowners by name. All three landowners responded with claims for compensation as provided for in the statute. See Miss.Code Ann. § 65-33-31 (Rev.2005). The board responded by sending letters (mailed May 27, 2009) to the landowners, informing them that the board would visit the properties on June 8, 2009, to assess the damages claimed by the owners. On that date, a team of appraisers, including a member of the board, visited the properties, but the owners did not attend.

¶ 7. Following the site assessment, the board passed at its meeting on June 24, 2009, a seawall resolution, denying the claims of the three owners. The resolution was entered into the minutes of the board’s meeting, and a copy of the minutes was certified as a true copy by the Clerk of the Board of Supervisors. All five board members were listed by name as having voted in favor of the resolution, which called for the taking of the property. The basis for the board’s decision was detailed in the resolution, as follows:

The benefit conferred upon the property owner by erection of the Seawall exceeds, in terms of value, any damage that may be incurred by [the property owner], and therefore, the property ... will have an enhanced value as a result of the erection of the Seawall. As such, the Board finds that just compensation for this claim is $0.00. The Board further finds that it is entitled to offset damages incurred by the landowner with the value of the enhancement conferred upon the landowner by completion of the Project, as the prohibition against using enhancement as an offset is found in Mississippi Code Annotated § 11-27-21 (1972), and the procedure being employed by the Board by this instance is set forth in Mississippi Code Annotated § 65-33-1, et seq., wherein no such prohibition is found.

¶ 8. The landowners appealed to the Circuit Court of Hancock County by submitting a Suggested Bill of Exceptions under the statute applying generally to appeals from the decisions of municipal authorities. See Miss.Code Ann. § 11-51-75 (Rev. 2002). The board requested that the county’s actions be affirmed. The board submitted that its actions were proper under the Seawall Act and that the landowners’ right to an appeal was provided for specifically in the Seawall Act. See Miss.Code Ann. § 65-33-33 (Rev.2005). The landowners responded by arguing that (1) the Seawall Act is unconstitutional; (2) the Seawall Act was repealed or superseded by the Real Property Acquisition Policies Act (“RPAPA”); (3) the manner in which the property was condemned had resulted in an unconstitutional taking; (4) the manner in which the property was condemned was not in compliance with the procedural requirements of the Seawall Act or the RPAPA; and (5) the board had violated the separate Eminent Domain Act’s prohibition of using enhancement as an offset to a compensation amount. See Miss.Code Ann. §§ 43-37-1 to 43-37-13 (Rev.2009); Miss.Code Ann. § 11-27-21 (Rev.2004).

¶ 9. In August 2009, the circuit court heard arguments and issued an order affirming the actions of the board. The circuit court held that “[t]he issue of damages, however, shall be revisited and, if necessary, subject to a jury trial in order to determine the amount of compensation that [the landowners are] owed.” Regarding the constitutionality of the Seawall Act and the taking, the circuit court found that the landowners’ due-process rights had not been violated, as the landowners had notice and an opportunity to be heard, by way of: (1) the newspaper notice, (2) the claim to the board, (3) the actual notice of assessment visit, and (4) the right to accompany the appraisers. Regarding the RPAPA’s effect on the Seawall Act, the circuit court agreed that both statutes applied, and that both had been followed by the Board. Under the RPAPA, the circuit court found that the Board had (1) negotiated with the landowners (via the Corps); (2) appraised the land via the site-assessment visit; (3) submitted a written statement (the board’s resolution) to the landowners describing the basis on which the compensation had been determined; and (4) initiated a formal condemnation hearing (board meeting) when it became necessary to acquire the temporary easements through eminent domain. Under the Seawall Act, the circuit court found that the board had provided the landowners due and legal notice. The newspaper condemnation notice and the notice of the assessment visit had informed the landowners of their right to make a claim and to accompany the appraisers. The circuit court found that, if the landowners desire a jury trial on the issue of damages, the Seawall Act entitles them to such a trial. See Miss.Code Ann. § 65-33-33 (Rev.2005). Thus, damages, if any, ultimately would be determined by a jury.

¶ 10. The landowners petitioned this Court for an interlocutory appeal, which was granted. This Court found that the appeal should be expedited and invited the Mississippi Attorney General to file an amicus curiae brief.

ISSUES

¶ 11. The issues are as follows:

I. Whether the Seawall Act is unconstitutional.
II. Whether the Seawall Act has been repealed or superseded by the Real Property Acquisition Policies Act.
III. Whether the county complied with all constitutional and statutory requirements in condemning the property.
IV. Whether it was error to find that the landowners are entitled to a jury trial, or whether the matter should be remanded to the Board of Supervisors to start anew under a separate Eminent Domain statute and/or the Real Property Acquisition Policies Act.

STANDARD OF REVIEW

¶ 12. “A ‘very heavy burden’ rests upon this Court before it may find a statute unconstitutional.” State v. Bd. of Levee Comm’rs for Yazoo-Miss. Delta, 932 So.2d 12, 19 (Miss.2006) (quoting Moore v. Bd. of Supervisors of Hinds County, 658 So.2d 883, 887 (Miss.1995)). The Board of Levee Commissioners Court continued as follows:

“[I]t behooves us to recall that the challenged act has been passed by legislators and approved by a governor sworn to uphold the selfsame constitution as are we.” State v. Roderick, 704 So.2d 49, 52 (Miss.1997). Therefore, “under Mississippi law a party challenging the constitutionality of a statute must prove unconstitutionality beyond a reasonable doubt.” Cities of Oxford, Carthage, Starkville and Tupelo v. Northeast Elec. Power Ass’n, 704 So.2d 59, 65 (Miss.1997). In other words: one who assails a legislative enactment must overcome the strong presumption of validity and such assailant must prove his conclusions affirmatively, and clearly establish it beyond a reasonable doubt. All doubts must be resolved in favor of validity of a statute. If possible, a court should construe statutes so as to render them constitutional rather than unconstitutional if the statute under attack does not clearly and apparently conflict with organic law after first resolving all doubts in favor of validity.

Bd. of Levee Comm’rs, 932 So.2d at 19-20 (citations omitted). The other issues, including the construction and application of statutes claimed to be in conflict, are legal questions subject to de novo review. See Aladdin Constr. Co., Inc. v. John Hancock Life Ins. Co., 914 So.2d 169, 174 (Miss.2005).

DISCUSSION

I. Whether the Seawall Act is unconstitutional.

¶ 13. The landowners argue the following:

[T]he Seawall Act ... cannot be applied without violating the Constitution of the State of Mississippi and ... of the United States of America. The process of condemning private property is a judicial function rather than a legislative function and the Seawall Act does not recognize this separation of powers and its implementation cannot be carried out without violating the Constitutional mandate and without violating due process of law. Therefore ... the Court should consider declaring these Sections of the Code unconstitutional.

The landowners cite the Fifth and Fourteenth Amendments to the U.S. Constitution and Article Three, Sections Fourteen, Seventeen and Twenty-four of the Mississippi Constitution. See U.S. Const, amend. V, XIV; Miss. Const, art. 3, §§ 14, 17, 24. The Fourteenth Amendment to the U.S. Constitution and Section Fourteen of the Mississippi Constitution prohibit deprivation of property without due process of law. See U.S. Const, amend. XIV; Miss. Const, art. 3, § 14. See also Nat’l Collegiate Athletic Ass’n v. Gillard, 352 So.2d 1072, 1081 (Miss.1977); Walters v. Blackledge, 220 Miss. 485, 515, 71 So.2d 433, 444 (1954). The Fifth Amendment to the U.S. Constitution has a similar prohibition and requires the payment of “just compensation.” See U.S. Const, amend. V. Section Seventeen of the Mississippi Constitution follows:

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; and whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be a judicial question, and, as such, determined without regard to legislative assertion that the use is public.

Miss. Const, art. 3, § 17. Section Twenty-four of the Mississippi Constitution follows: “All courts shall be open; and every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice shall be administered without sale, denial, or delay.” Miss. Const, art. 3, § 24.

¶ 14. The Mississippi Legislature, following its constitutional mandate to prescribe by law the manner in which private property, which extends “along the beach or shore of any body of tidewater,” may be taken for public use, enacted the Seawall Act. See Miss.Code Ann. § 65-33-1 (Rev. 2005). The Legislature devoted an entire chapter of thirty-six sections of the Mississippi Code to the Seawall Act. It provides a mechanism for a county, acting through its board of supervisors, to finance, acquire property for, and construct a seawall when necessary. See Miss.Code Ann. §§ 65-33-1 to 65-33-71 (Rev.2005). The statute was first enacted in 1924. The act’s first section grants a board of supervisors the power to build and maintain a seawall if necessary to protect a public road or street. See Miss.Code Ann. § 65-33-1 (Rev.2005). The act “clothe[s]” the boards of supervisors “with the power and authority, and it is made their duty, to exercise the right of eminent domain in order to procure the right of way for such roads, streets, highways, sea walls ... and such other devices as may be adopted for the protection of such highways.” Miss.Code Ann. § 65-33-23 (Rev.2005). Thus, the Legislature fulfilled its constitutional duty to prescribe by law the power to exercise eminent domain, and in the same statute, established protections for the landowner.

¶ 15. The act details the process as follows:

Whenever it shall become necessary to construct, widen, or protect any highway under the provisions hereof, the road protection commission shall make publication for thirty days in some newspaper published in the county wherein such improvements are made, setting forth the commencement and termination, with a general outline of the nature and extent thereof. When any owner of land or other person shall claim compensation for land taken for such purpose, or for damage sustained by the construction, widening, improvement, or protection of such road or highway, he shall petition the board of supervisors in writing within thirty days after the expiration of the time provided for such publication, setting forth the nature and character of the damages claimed. Thereupon the board shall, on five days’ notice to petitioner, go on the premises and assess the damages sustained by him. The finding of the board shall be in writing, signed by the members agreeing to it, and must be entered on the minutes at the next meeting; but if the damages sustained and claimed be less than the cost of assessing, the board may allow the same without inquiry.

Miss.Code Ann. § 65-33-31 (Rev.2005). If a landowner is dissatisfied at this juncture, the Seawall Act further grants a landowner the right to appeal to circuit court, as follows:

All proceedings of the board of supervisors and the road protection commission in ... protecting any such highway and assessing damages therefor may be reviewed by the circuit court in respect to any matter of law arising on the face of the proceeding. On the question of damages, the case may be tried anew and the damages may be assessed by a jury if the owner of the land so desires. The board of supervisors shall grant appeals for that purpose when prayed for, on appellant giving bond for cost in such penalty as the board may require, not exceeding $200.00, payable to the county.

Miss.Code Ann. § 65-33-33 (Rev.2005) (emphasis added). Thus, if a landowner is aggrieved, he or she has a remedy by due course of law in the courts of Mississippi. A landowner dissatisfied with the assessment of damages by the board has the right to request a jury trial on the question of damages. Thus, the damage assessment is made by the landowner’s fellow citizens, not the condemning authority, the board.

¶ 16. This Court has stated that “due process is flexible and calls for such procedural protections as the particular situation demands.” Miss. Bd. of Veterinary Med. v. Geotes, 770 So.2d 940, 943 (Miss.2000) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)). “ ‘The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.’ Due process therefore requires that a defendant be given adequate notice.” Vincent v. Ghiffin, 872 So.2d 676, 678 (Miss.2004) (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976)) (citing Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 798-99, 107 S.Ct. 2124, 2133, 95 L.Ed.2d 740 (1987)). The Seawall Act calls for a thirty-day period of newspaper notices and then allows thirty additional days for a landowner to submit a claim. The county then is required to give five days’ actual notice of an assessment visit. Following the board’s final decision on the landowner’s claim, the landowner may appeal to circuit court.

¶ 17. Thirty-days’ notice is constitutionally sufficient. In a condemnation case under a different statute, this Court found a two-day notice requirement to be unconstitutional. Branaman v. Long Beach Water Mgmt. Dist., 730 So.2d 1146, 1150 (Miss.1999). Nonetheless, the Bra-naman Court affirmed the taking because the chancellor had given the defendant additional time to prepare for trial. Id. at 1151. In finding the statute in Branaman unconstitutional, this Court declared, “Until such time as the Mississippi Legislature addresses the issue of adequate notice, the Mississippi Rules of Civil Procedure will control the amount of notice that a landowner should be given after a complaint is filed.” Id. Subsequently, the statute was amended to require thirty-days’ notice. See Miss.Code Ann. § 51-29-39 (Rev. 2003). In Geotes, this Court held that thirty-days’ notice does not violate due-process rights. See Geotes, 770 So.2d at 944-45 (“Even if the previous notice was not adequate, it was cured by the Board leaving the record open and giv[ing] Geotes thirty days to respond.”).

¶ 18. The Seawall Act complies with the Mathews standard in that it allows for an “opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews, 424 U.S. at 333, 96 S.Ct. 893. Landowners may submit a written claim, accompany the assessors, appeal legal issues to the circuit court, and request a jury trial on damages. Miss.Code Ann. § 65-33-33 (Rev.2005).

¶ 19. This Court upheld the constitutionality of a similar statute in Jones v. Belzoni Drainage District of Washington County, 102 Miss. 796, 59 So. 921 (1912). The Jones Court described the statute as follows:

The whole matter of notice and protest, hearing, and decision is worked out in detail, and the right of appeal is carefully preserved. The assessment of damages is provided for in [the statute]; and, in short, a most elaborate system to preserve and conserve the interests and rights of all parties concerned is prescribed by the act. It thus appears that all reasonable grounds of complaint on account of being deprived of due process of law has no foundation in fact or in law. The Legislature was careful to incorporate the entire Bill of Rights in the act — if not in words, certainly in substance.

Id. at 923. The same observation could be made about the Seawall Act.

¶ 20. This Court has affirmed the constitutionality of the Seawall Act. See Henritzy v. Harrison County, 180 Miss. 675, 178 So. 322 (1938); Ladner v. Road Prot. Comm’n, 150 Miss. 416, 116 So. 602 (1928). In Ladner, the Court dealt with a different issue. Ladner, 116 So. at 602. Ladner filed a taxpayer suit claiming that the grant of road-building power to a road protection commission violated Mississippi Constitution Article 6, Section 170. Id. at 602, 605. The Ladner Court held that the board of supervisors retained its constitutional power, as the commission’s actions required board approval. Id. at 605. In Henritzy, a decade after the construction of its original seawall, Harrison County sought an injunction against a landowner who refused to remove a structure that prevented the county from making improvements to the seawall. Henritzy, 178 So. at 322. The Court found the statute to be constitutional, inter alia, because newspaper notice is sufficient for an in rem proceeding, and the right to a jury trial is preserved. Id. at 325-26. The Henritzy rationale is still apt even though the in rem-in personam distinction has lost its significance in another context (jurisdiction over residents of other states). See Shaffer v. Heitner, 433 U.S. 186, 195, 97 S.Ct. 2569, 2575, 53 L.Ed.2d 683 (1977). The Henritzy Court explained its decision as follows:

We consider the proceedings of the boards of police in this State, condemning lands to be used as public highways, strictly proceedings in rem, and that the orders made by them in relation thereto, are to be governed by the rules and principles applicable to such cases. Such was evidently the intention of the legislature, as it has not made any provision on the subject of notice, nor directed any manner in which it shall be given. The whole community is vitally interested in the efficient exercise, by the boards of police, of the jurisdiction on the subject of roads conferred upon those tribunals by the constitution and laws. The jurisdiction conferred upon them is of a peculiar character, in which every citizen is interested. The subject-matter on which they act, is of a public nature, independent of private parties. The judgments rendered by them act upon the thing itself, which is condemned to the use of the public, and we believe the public interests imperatively require that the orders made by them, when made pursuant to the statutes, should conclude the whole world, whether actual notice was given or not to the parties interested in the premises.

Henritzy, 178 So. at 324-25 (quoting Stewart v. Bd. of Police of Hinds County, 25 Miss. 479, *3 (1853)). Present notions of adequate notice to satisfy due-process concerns may well be different than those of the Stewart Court. However, the issue of notice in the proceedings sub judice is moot, for the landowners have conceded notice of these proceedings at every juncture. Thus, “whether actual notice was given or not to the parties interested in the premises” is not before this Court for decision. Id. at 325.

¶ 21. The landowners’ argument that the Seawall Act turns condemnation into a legislative process rather than judicial process is without merit. The Seawall Act provides for adjudication of claims by boards of supervisors, which are part of the judicial branch of state government. See Miss. Const. art. 6, § 170; Miss.Code Ann. § 65-33-31 (Rev.2005); Bd. of Levee Comm’rs, 932 So.2d at 25 n. 2. This Court has held that boards of supervisors are quasi-judicial bodies. See Harris v. Harrison County Bd. of Supervisors, 366 So.2d 651, 655 (Miss.1979); Glass v. Hancock County Election Comm’n, 250 Miss. 40, 49, 156 So.2d 825, 830 (1963). Finally, even if we were to assume arguendo that the acts of the board were purely legislative in nature, the Seawall Act provides for independent judicial review of the actions of the board, as this case clearly demonstrates. See Miss.Code Ann. § 65-33-33 (Rev.2005).

¶22. For the reasons detailed above, we find that the landowners have failed in their burden to show beyond a reasonable doubt that the Seawall Act is unconstitutional.

II. Whether the Seawall Act has been repealed or superseded by the Real Property Acquisition Policies Act.

¶ 23. The landowners seek application of the RPAPA (enacted in 1972) to the exclusion of the Seawall Act (enacted in 1924). See Miss.Code Ann. §§ 43-37-1 to 43-37-13 (Rev.2009); 65-33-1 to 65-33-71 (Rev.2005). The county acted under the authority granted by the Seawall Act, but conceded that the RPAPA also applies. See id. As no litigant challenges the applicability of the RPAPA, that issue is not before the Court. However, whether the board complied with the RPAPA is at issue. Thus, applicability will be discussed where necessary to adjudicate the issue of statutory compliance. The RPAPA imposes several requirements on a condemnor, including the following:

Any person, agency or other entity acquiring real property for any project or program in which public funds are used shall comply with the following policies:
(a) Every reasonable effort shall be made to acquire expeditiously real property by negotiation.
(b) Real property shall be appraised before the initiation of negotiations, except that the acquiring person, agency or other entity may adopt a procedure in compliance with federal regulations to waive the appraisal in cases involving the acquisition by sale or donation of property with a low fair market value. For the purposes of this chapter, property with a low fair market value is property with a fair market value of Ten Thousand Dollars ($10,000.00) or less. The owner or his designated representative shall be given an opportunity to accompany the appraiser during his inspection of the property.
(c)(i) Except as otherwise provided for in subparagraph (ii) of this paragraph, the price that shall be paid for real property shall be the lesser of the best negotiated price or the approved appraisal of the fair market value or the price at which the property is offered for sale. Any decrease or increase in the fair market value of real property prior to the date of valuation caused by the public improvement for which the property is acquired or by the likelihood that the property would be acquired for such improvement, other than that due to physical deterioration within the reasonable control of the owner, will be disregarded in determining the compensation for the property. The owner of the real property to be acquired shall be provided with a written statement of, and summary of the basis for, the amount established as just compensation. Where appropriate, the just compensation for the real property acquired and for damages to remaining real property shall be separately stated.
(ii) The purchase price for real property may exceed the amount offered as just compensation for the property when reasonable efforts to negotiate an agreement at that amount have failed, and the person, agency or other entity seeking to acquire the property approves an administrative settlement as reasonable, prudent and in the best interests of the public....
(d)No owner shall be required to surrender possession of real property before the agreed purchase price is paid or there is deposited with the state court, in accordance with applicable law, for the benefit of the owner an amount not less than the approved appraisal of the fair market value of such property, or the amount of the award of compensation in the condemnation proceeding of such property.
(h) If an interest in real property is to be acquired by exercise of power of eminent domain, formal condemnation proceedings shall be instituted. The acquiring authority shall not intentionally make it necessary for an owner to institute legal proceedings to prove the fact of the taking of his real property.

Miss.Code Ann. § 43-37-3 (Rev.2009).

A. Whether the RPAPA repealed the Seawall Act.

¶ 24. The RPAPA did not explicitly repeal the Seawall Act, nor does it refer to the Seawall Act in any way. See Miss.Code Ann. §§ 43-37-1 to 43-37-13 (Rev.2009). “In order for a subsequent act to repeal a former one expressly, it must point out the statute repealed with sufficient certainty.” Roberts v. Miss. Republican Party State Executive Comm., 465 So.2d 1050, 1051 (Miss.1985) (quoting Ex parte McInnis, 98 Miss. 773, 783, 54 So. 260, 262 (1911)). The Roberts Court continued, “If it was the purpose of the legislature to repeal [a section] of the Code ... it should have said so explicitly in the repealing act; but this they did not do.” Id. at 1052. Therefore, we find that the Seawall Act was not expressly repealed by the RPAPA.

¶ 25. Although not expressly repealed, the Seawall Act might have been repealed by implication, if it conflicts with the RPAPA. However, this Court has stated, “That implied repeals are not favored has been the universal declaration of this and of all courts.” Id. at 1051. See also Associated Press v. Bost, 656 So.2d 113, 115 (Miss.1995). This Court has held that the RPAPA is not in direct conflict with a statute very similar to the Seawall Act. See Branaman, 730 So.2d at 1152; Miss.Code Ann. § 51-29-39 (Rev.2003). The standard set by this Court requires there to be “a plain and unavoidable re-pugnancy between” statutes before one may be said to have repealed the other by implication. Roberts, 465 So.2d at 1052 (quoting McInnis, 54 So. at 262). Even when statutes are “in apparent conflict,” they “should if possible be construed in harmony with each other to give effect to each.” Roberts, 465 So.2d at 1052. Although areas of apparent conflict will be discussed below, we find that the high standard for repeal by implication has not been met.

B. Whether the RPAPA supersedes the Seawall Act.

¶ 26. Distinctions exist between the RPAPA and the Seawall Act. The RPAPA provides different protections for the landowner. The RPAPA requires a reasonable effort to acquire property by negotiation, while the Seawall Act does not mention negotiation. Miss.Code Ann. § 43-37-3(a) (Rev.2009). The RPAPA requires an appraisal unless the property has a low fair market value, and requires that the owner be given an opportunity to accompany the appraiser. Miss.Code Ann. § 43-37-3(b) (Rev.2009). The Seawall Act has similar provisions. Miss.Code Ann. § 65-33-31 (Rev.2005). • The RPAPA requires written notice of the basis for a compensation amount. Miss.Code Ann. § 43-37-3(c)(i) (Rev.2009). The Seawall Act has similar language, requiring a written finding on damages. Miss.Code Ann. § 65-33-31 (Rev.2005). The RPAPA has requirements regarding the amount of compensation, while the Seawall Act does not. Miss. Code Ann. § 43-37-3(c) (Rev.2009). Subsection 3(d) of the RPAPA requires the agreed purchase price, if any, to be paid before the owner is required to surrender the property. Miss.Code Ann. § 43-37-3(d) (Rev.2009).

¶ 27. The RPAPA requires “formal condemnation proceedings.” Miss.Code Ann. § 43-37-3(h) (Rev.2009). The Seawall Act provides a detailed process of condemnation, requiring formal proceedings in the Board of Supervisors and, if appealed, formal judicial proceedings in the courts of this State. See Miss.Code Ann. §§ 65-33-31, 65-33-33 (Rev.2005). The term “formal condemnation proceedings” is not defined in the RPAPA. See Miss.Code Ann. §§ 43-37-2, 43-39-5 (Rev.2009). “Formal” is defined as “Pertaining to or following established procedural rules, customs, and practices.” Black’s Law Dictionary 542 (abr. 8th ed.2005). We find, as the circuit court did, that the condemnation procedure under the Seawall Act is a formal procedure as required by the RPAPA. See Miss.Code Ann. §§ 43-37-3(h) (Rev. 2009); 65-33-31, 65-33-33 (Rev.2005).

¶ 28. In the same subsection requiring a formal procedure, the RPAPA states, “The acquiring authority shall not inten tionally make it necessary for an owner to institute legal proceedings to prove the fact of the taking of his real property.” Miss.Code Ann. § 43-37-3(h) (Rev.2009) (emphasis added). The landowners argue that this language is in conflict with the Seawall Act’s requirements that the landowners make a claim, file an appeal, and request a jury trial. See Miss.Code Ann. §§ 65-33-31, 65-33-33 (Rev.2005). However, the county is required to initiate the taking. Once such procedures are instituted by the county, the owner then has some procedural requirements under the Seawall Act, but not to prove the fact of the taking. Thus, the Seawall Act is not in conflict with the RPAPA. These requirements concern damages, not “the fact of the taking.... ” Miss.Code Ann. § 43-37-3(h) (Rev.2009).

¶ 29. Finally, the landowners’ argument that the Seawall Act is “vague [and] unclear” and thus superseded by the RPAPA is without merit. First, the landowners do not specify which part of the Seawall Act is “vague [and] unclear.” Further, if there is an ambiguity when construing multiple statutes, the more specific law (Seawall Act) controls, rather than the more general statute (RPAPA). See Madison County Bd. of Supervisors, 873 So.2d at 91; Branaman, 730 So.2d at 1152; Kilgore v. Barnes, 508 So.2d 1042, 1045-46 (Miss.1987). Therefore, we find that the Seawall Act and the RPAPA are not hopelessly in conflict. Thus, the RPA-PA does not supersede any part of the Seawall Act, and the two statutes are to be applied in conjunction with each other.

III. Whether the county complied with all constitutional and statutory requirements in condemning the property.

A. Constitutional requirements

¶ 30. The following are required by the Constitutions of the United States and Mississippi before private property may be taken or damaged for public use: (1) notice; (2) opportunity to be heard; (3) due and just compensation to the owner in a manner prescribed by law; (4) public use determined as a judicial question; (5) courts open to provide a remedy by the due course of law. See U.S. Const, amend. V, XIV; Miss. Const, art. 3, §§ 14, 17, 24.

¶ 31. As noted in Issue I, the landowners had adequate notice and an opportunity to be heard. The issue of whether a compensation amount of $0.00 can be “due” or “just” was not decided by the circuit court; thus, that issue is not before us. As detailed above in issues I and II, and below in Issue III-B, the condemnation was carried out in a manner prescribed by law under the Seawall Act and in compliance with applicable portions of the RPAPA. See Miss.Code Ann. §§ 43-37-1 to 43-37-13 (Rev.2009); 65-33-1 to 65-33-71 (Rev.2005). The landowners concede that the replacement of a seawall is a public use. Therefore, public use is not at issue. If it had been, it would be subject to judicial review by the courts. Thus, the courts of Mississippi are open to provide a remedy and to protect landowners from their government. Therefore, we find that the procedures to date have not been in derogation of the constitutional rights of the landowners.

B. Statutory requirements

¶ 32. The landowners argue that this Court’s precedent requires strict construction of any statute conferring the power of eminent domain. See Miss. Power & Light Co. v. Conerly, 460 So.2d 107, 112-13 (Miss.1984) (condemnation for interstate power lines exceeded the authority of the statute); Roberts v. Miss. State Highway Comm’n, 309 So.2d 156, 161 (Miss.1975) (condemnation of land for a roadside weigh station did not include mineral rights); Ferguson v. Bd. of Supervisors of Wilkinson County, 149 Miss. 623, 115 So. 779, 779-80 (1928) (no adjudication that taking was in the public interest); Wise v. Yazoo City, 96 Miss. 507, 51 So. 453, 454 (1910) (condemnation for a spur track exceeded authority granted in city charter). According to the landowners, any procedural shortcoming on the part of the county requires a remand to the board. The cases cited do require strict construction of the statutes, with landowners receiving the benefit of the doubt. See id. However, the issue in each of these cases was the right of the condemnor to exercise the power of eminent domain, not the 'procedure employed. Conerly, 460 So.2d at 111 (“The right to exercise the power is strictly limited to the purposes specified in the statute conferring it.”); Roberts, 309 So.2d at 159; Ferguson, 115 So. at 780 (“Where there is any doubt of the right to exercise the power, the landowner is entitled to the benefit of such doubt.”). The Wise Court stated the following:

This high power is never to be presumed to be confided to any public or private body or corporation, however great may be the necessity for it to have and exercise such power. When it is asserted by any person or corporation, the state’s assent must be clearly given in legislative acts, and the subjects for which it may be exercised specifically named. No state has yet given to any corporation the sweeping power to condemn and take private property for “any public purpose,” without preceding every such clause with specifically named subjects for which it may exercise the right. Even if it can be done, we do not believe any state will ever confide this sovereign power, so liable to abuse and filled with possibility of oppression, by a clause so sweeping as to vest any individual or corporation with the power to condemn at pleasure for any and every public use, without specifically naming the public use.

Wise, 51 So. at 455-56. As stated above, the landowners do not assert that a seawall is not a public use. The landowners’ argument is not that the replacement of a seawall exceeds the authority granted to the board, but that the wrong statute was applied and that the statutes, whether applicable or not, were not followed. In the Seawall Act, the Legislature granted counties the power to condemn land to erect, improve and maintain seawalls. See Miss. Code Ann. §§ 65-33-1, 65-33-23 (Rev. 2005). The Seawall Act withstood attacks in the early part of the twentieth century, and decisions of this Court upheld its constitutionality. See Henritzy, 178 So. at 325-26, Ladner, 116 So. at 605. We find no rational basis or newly found knowledge or wisdom to overrule that precedent. Thus, the county had the right to exercise its eminent-domain power in this instance.

¶ 33. The Seawall Act requires publication for thirty days in a newspaper published in the county wherein the improvements will be made. See Miss.Code Ann. § 65-33-31 (Rev.2005). The landowners concede that this was done. The act requires actual notice of an assessment visit. See id. The landowners signed certified-mail receipts upon receiving such notices. Also required is a written finding, signed by the members voting in favor, and entered into the minutes. See id. The board’s resolution is a written finding and was entered into the minutes. The resolution was signed by the clerk of the board of supervisors, who is also the chancery clerk. He certified that the copy was a true and correct copy of the board’s order. All five members of the board were listed by name as having voted in favor, although their signatures are not on the resolution. We find compliance with the statute. See Shipman v. N. Panola Consol. School Dist., 641 So.2d 1106, 1116-17 (Miss.1994) (“technical shortcoming of the minutes” — delayed signature by board president and failure of secretary to attest — does not invalidate board’s action); Butler v. State, 241 So.2d 832, 835 (Miss.1970) (failure to sign minutes not a radical departure from the statute such that the actions of a board of supervisors should be rendered void).

¶ 34. The landowners argue that, because not all of the five members of the board attended the assessment visit, the county did not comply with the requirement that “the board shall, on five days’ notice to petitioner, go on the premises and assess the damages sustained....” See Miss.Code . Ann. § 65-33-31 (Rev. 2005). However, as the landowners concede, a member of the board did attend the assessment, along with a member of the commission, as well as two other county officials and three Corps personnel. Therefore, the “board” did attend in the person of one of its members along with several agents of the board. See Childs v. Hancock County Bd. of Supervisors, 1 So.3d 855, 860 (Miss.2009) (not error for board to delegate authority to a planning commission).

¶ 35. The next section of the Seawall Act requires the county to grant an appeal brought by a landowner. See Miss.Code Ann. § 65-33-33 (Rev.2005). This appeal was granted, even though the landowners brought it by submitting a Suggested Bill of Exceptions, a procedure inapplicable to the Seawall Act. See Miss.Code Ann. § 11-51-75 (Rev.2002).

¶ 36. The RPAPA requires, inter alia, the following: (1) negotiation; (2) appraisal before the initiation of negotiations, (3) price requirements, (4) no requirement to surrender property before the agreed price is paid or an amount deposited with the State court, (5) formal process, (6) no intentional requirement for the landowner to initiate proceedings. See Miss.Code Ann. § 43-37-3 (Rev.2009). The landowners conceded that the Corps negotiated with them. Thus, the negotiation issue was not before the trial court, and it was unnecessary to find that that RPAPA clause had been followed. Regarding the requirement of an appraisal prior to negotiations, the Corps asserted in its letters that an assessment had been made. Even so, the RPAPA exempts that requirement regarding properties with a low fair market value. See Miss.Code Ann. § 43-37-3(b) (Rev.2009). The price requirements of the RPAPA (paragraph (c)), as they concern the “purchase price” of “real property acquired,” would apply to a sale of land, but not to the interest in real property at issue here, temporary construction easements. See Miss.Code Ann. § 43-37-3(c) (Rev.2009). The requirement that any agreed payment be made before surrender of a property is not before the Court, as there has been no taking as yet. The final two requirements (formal process and the requirement to initiate) are discussed above.

¶ 37. Some of the RPAPA clauses being inapplicable, we find that the trial court was in error to find that the RPAPA had been complied with fully. However, this is harmless error, as the RPAPA clause most applicable, paragraph (h), was followed. There were “formal condemnation proceedings” regarding this “interest in real property ... to be acquired by exercise of power of eminent domain.... ” Miss.Code Ann. § 43-37-3(h) (Rev.2009). We affirm the decision of the circuit court that both statutes were followed. Other than the inapplicable RPAPA clauses detailed above, any discrepancies between the procedure employed and the statutory requirements (signatures, attendance at the site-assessment) are harmless errors at worst, as they do not pertain to the power of the board to condemn the property, nor do they infringe on the constitutional rights of the landowners.

IV. Whether it was error to find that the landowners are entitled to a jury trial, or whether the matter should be remanded to the Board of Supervisors to start anew under the separate Eminent Domain statute and/or the Real Property Acquisition Policies Act.

¶ 38. Having found that the Seawall Act is constitutional and should be applied in conjunction with the RPAPA, and that both statutes were followed by the board in a manner that did not infringe on the constitutional rights of the landowners, we find that it was not error for the circuit court to find that the landowners are entitled, upon request, to a jury trial in circuit court. See Miss.Code Ann. § 65-33-33 (Rev.2005).

¶ 39. The landowners argue that the provisions of the Eminent Domain Act should apply to the exclusion of the Seawall Act. See Miss.Code Ann. §§ 11-27-1 to 11-27-51 (Rev.2002), 65-33-1 to 65-33-71 (Rev.2005). Specifically, the landowners seek application of the Eminent Domain Act’s prohibition of using enhancement as an offset to a compensation amount. See Miss.Code Ann. § 11-27-21 (Rev.2002). The landowners submit “that the Legislature knew what it was doing when ... it provided for the establishment of the Special Court of Eminent Domain.” Indeed, this Court reads the Eminent Domain Act, as all other statutes, with that presumption in mind. However, the landowners turn a blind eye to the first sentence of the Eminent Domain Act. The act is applicable, “except as elsewhere specifically provided under the laws of the state of Mississippi.” Miss.Code Ann. § 11-27-1 (Rev.2002). The Seawall Act provides the specific statutory exception, making the Eminent Domain Act inapplicable herein, while at the same time clothing the landowners with the protections our Constitution demands. See Miss. Const, art. 3, § 24. Further, the landowners are guaranteed protections similar to those provided under the Eminent Domain Act, most importantly, a jury trial by their peers for damages. See Miss.Code Ann. §§ 11-27-13 (Rev.2002), 43-37-3 (Rev.2009).

CONCLUSION

¶ 40. We affirm the order of the Hancock County Circuit Court and remand to that court for proceedings consistent with this Court’s opinion.

¶ 41. AFFIRMED AND REMANDED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ„ CONCUR.

      . The cases differ only in the names of the appellants, the locations of the properties, and the sizes of the easements sought.

      . Others attending were a commission member, the county tax assessor, the chancery clerk, and Corps personnel (project manager, acquisition agent, and a property appraiser).

      . The landowners raise the compensation amount as an issue. However, our holding is that compensation vel non and the legal issues surrounding damages should be considered at a jury trial, if requested, upon remand. Thus, damages are not discussed separately, but will be discussed only as they relate to other issues. The landowners raise issues (attorney fees, costs, and expenses) in this appeal that were not brought below, and that are not pleaded for in the petition for interlocutory appeal. Thus, these issues are procedurally barred.

      . The landowners argue that the only "formal'' condemnation procedures are those in a Special Court of Eminent Domain under the Eminent Domain statute to be discussed below. See Miss.Code Ann. §§ 11-27-1 to 11-27-51 (Rev.2002).