Morgan Construction Company v. City of Starkville
| Docket Number: | 2003-CA-01231-COA | |
| Oral Argument: | 09-28-2004 | |
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| Court of Appeals: |
Opinion Date: 01-18-2005 Opinion Author: BRIDGES, P.J., Holding: AFFIRMED |
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| Additional Case Information: |
Topic: Closing of streets - Section 21-37-7 - Section 21-37-3 - Findings of fact - M.R.C.P. 52 Judge(s) Concurring: KING, C.J., LEE, P.J., IRVING, MYERS, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - OTHER |
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| Trial Court: |
Date of Trial Judgment: 05-15-2003 Appealed from: OKTIBBEHA COUNTY CIRCUIT COURT Judge: James T. Kitchens, Jr. Disposition: BILL OF EXCEPTIONS DISMISSED |
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| Party Name: | Attorney Name: | |||
| Appellant: | CHARLES E. MORGAN CONSTRUCTION
COMPANY |
H. RUSSELL ROGERS |
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| Appellee: | CITY OF STARKVILLE, MISSISSIPPI | KATHERINE S. KERBY BEN F. HILBUN |
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| Topic: | Closing of streets - Section 21-37-7 - Section 21-37-3 - Findings of fact - M.R.C.P. 52 |
| Summary of the Facts: | The board of aldermen for the City of Starkville, Mississippi, ordered the termination of Dunlap Street and Oakridge Drive. Charles E. Morgan Construction Company appealed the order to circuit court which dismissed the appeal explaining that the order was merely an advisory opinion and not a final decree. Morgan appeals. |
| Summary of Opinion Analysis: | Mississippi’s long-standing law unequivocally supports the proposition that a decree, to be appealable, must be final as to all parties and all issues. Here, dismissal was proper based on Morgan’s failure to properly voice his opposition to the City’s actions. The order terminating Dunlap and Oakridge streets was approved at a public meeting of the City’s board of aldermen pursuant to a previously published agenda. Morgan, along with his legal counsel, was present at the meeting and had full opportunity to challenge the issue either during the general input as to the agenda item, or when the agenda item was taken up, but prior to a motion being made. They failed to do so and therefore, dismissal was proper. Morgan argues that the City’s ordered termination of Dunlap and Oakridge streets was erroneous because the board failed to comply with the provisions of section 21-37-7, which controls the closing of streets by municipalities. However, the City’s ordered termination did not order the closure of active streets but simply ordered the streets to remain unchanged from their current condition which was proper under section 21-37-3. Morgan also argues that the court erred in denying the company’s motion requesting specific findings of fact and conclusions of law following the dismissal of its appeal as required by M.R.C.P. 52. This rule is not applicable to the facts of the appeal because the circuit court was functioning as an appellate court, and appellate courts are not required to issue such findings of fact. |
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