BellSouth Pers. Commc'n, LLC v. Bd. Of Supervisors of Hinds County
| Docket Number: | 2004-CA-01252-SCT Linked Case(s): 2004-CA-01252-SCT ; 2004-CA-01252-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 06-23-2005 Opinion Author: Carlson, J. Holding: Vacated and remanded |
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| Additional Case Information: |
Topic: Tax appeal - Right to appeal - Voluntary dismissal without prejudice - M.R.C.P. 41(a)(2) - Attorney’s fees - M.R.C.P. 54 - Reasonableness of award Judge(s) Concurring: Smith, C.J., Cobb, P.J., Graves, Dickinson and Randolph, JJ. Non Participating Judge(s): Waller, P.J., and Diaz, J. Dissenting Author : Easley, J. Procedural History: Admin / Agency Judgment Nature of the Case: CIVIL - STATE BOARDS AND AGENCIES |
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| Trial Court: |
Date of Trial Judgment: 04-20-2004 Appealed from: Hinds County Circuit Court Judge: Winston Kidd Disposition: Dismissed BellSouth’s tax appeals without prejudice and awarded attorney’s fees in excess of $100,000 as a condition to the voluntary dismissal. Case Number: 251-00-892CIV |
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| Consolidated: Consolidated with 2004-CA-01256-SCT MCTA, a Mississippi General Partnership and Northeast Mississippi Cellular, LLC, A Georgia Limited Liability Company v. Board of Supervisors of Hinds County, Mississippi and Tax Assessor, Mike Barnes; Hinds Circuit Court 1st District; LC Case #: 251-02-1114CIV; Ruling Date: 04/20/2004; Ruling Judge: Winston Kidd | ||
| Party Name: | Attorney Name: | |||
| Appellant: | BellSouth Personal Communication, LLC, the successor to MCTA, a Mississippi General Partnership |
STACY E. THOMAS, WALKER W. (BILL) JONES, III, ROBERT F. WALKER |
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| Appellee: | Board of Supervisors of Hinds County, Mississippi and Tax Assessor, Mike Barnes | GLOVER A. RUSSELL, JR. |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Tax appeal - Right to appeal - Voluntary dismissal without prejudice - M.R.C.P. 41(a)(2) - Attorney’s fees - M.R.C.P. 54 - Reasonableness of award |
| Summary of the Facts: | BellSouth Cellular Corporation filed two separate tax appeals in the Circuit Court of the First Judicial District of Hinds County. In both appeals, the defendants are the Board of Supervisors of Hinds County and Hinds County Tax Assessor Mike Barnes. BellSouth’s 2000 tax appeal involved an equipment changeover agreement made between BellSouth and Ericcson, Inc. The 2000 tax appeal is based on the disputed valuation assigned to the Hughes equipment which was scheduled for changeover and located within the Hinds County market area. BellSouth contested the Hinds County tax assessor’s alleged overvaluation of the tax value assigned to the Hughes equipment. In December, 1999, Hinds County appraised the true value of the Hughes equipment located in the Hinds County area at $20,430,060.00. BellSouth amended its Notice of Appeal and Bond in 2003, alleging that the Hughes equipment located in Hinds County should only be appraised at $3,899,231.00, $16,530,829.00 less than the Hinds County appraisal of true value. At the time that BellSouth filed its 2000 tax appeal, it could not identify the units of Ericcson equipment that might or might not be installed in the Hinds County area. After several attempts, BellSouth terminated its two and half year pursuit to substantiate its original valuation by way of discovery and settlement negotiations and asked the circuit court to dismiss its appeal. BellSouth filed its second of two tax appeals against Hinds County seeking additional ad valorem tax relief in the amount of $137,170.85. The 2002 appeal involved a dispute with Hinds County over the taxation of software. BellSouth claimed that the taxed properties were not only exempt from Mississippi ad valorem taxes under section 27-31-45, but that the values, which were determined by the tax assessor and approved by Hinds County, were based on erroneous useful lives for the equipment in question. BellSouth filed a motion to dismiss and asked the circuit court to dismiss its appeals with prejudice, with each party to bear its own costs. Hinds County filed its motion for dismissal without prejudice and for reimbursement of expenses including attorney’s fees and other costs of litigation. Hinds County alleged that as of February 17, 2003, in defending both actions filed by BellSouth, it had incurred attorney’s fees and litigation expenses in the amount of $95,381.82. Hinds County and BellSouth agreed to a voluntary dismissal without prejudice but failed to come to terms regarding an attorney’s fee award. The court awarded attorney’s fees under M.R.C.P. 41(a)(2) as a condition for allowing BellSouth to voluntarily dismiss both claims without prejudice and denied Hinds County’s motion requesting attorney’s fees under M.R.C.P. 11 and the Litigation Accountability Act. BellSouth appeals. |
| Summary of Opinion Analysis: | Issue 1: Right to appeal Hinds County argues that the dismissals in this case are not ripe for appellate review since both tax appeals were dismissed by the circuit court without prejudice and since BellSouth technically retains its right to relitigate its suits at a later date. The Fifth Circuit has held that an involuntary dismissal with conditions going beyond payment of fees and costs was indeed appealable. The important consideration in determining whether an issue is appealable is that there has been an adverse final judgment rendered against the appealing party. While BellSouth acquiesced in the dismissal, what it acquiesced in was what it had requested–final adjudication subject to appeal. If the Court were to now say that the issue is not unappealable, it would be saying to the circuit court that it can grant a defendant’s motion and deny a plaintiff’s ability to appeal the adverse order of the court. In essence, it would be to endorse a trial court’s ability to condition the appealability of its own orders. The grant of dismissal without prejudice and assessment of over $100,000.00 in attorney’s fees in favor of Hinds County was contrary to what BellSouth had requested or acquiesced in. It follows that the determination made by the circuit court judge served as an adverse final judgment as it was against the interest of BellSouth who had expressly requested the circuit court for a dismissal with prejudice and voluntarily submitted to the preclusive effect of final adjudication. The circuit court’s final order served as a dismissal with prejudice for appeal purposes. Issue 2: Attorney’s fees BellSouth argues that while M.R.C.P. 41(a)(2) allows an award of attorney’s fees under certain circumstances, the rule is interpreted so as to work in conjunction with Rule 54, i.e., a defendant asking for an award of attorney’s fees under Rule 41(a)(2) must demonstrate unfairness and plain legal prejudice failing which the defendant must bear his own expense. In clear terms, the language of M.R.C.P. 41(a)(2) is designed to give a judge, on hearing a motion for voluntary dismissal, the authority to not just dismiss a case, but to dismiss a case in a way which insures protection for the unwitting litigant. The comment gives the court discretion to require plaintiff to pay the defendant’s attorney’s fees as well as other costs and disbursements. In its interpretation of Rule 41, BellSouth has misapprehended both Mississippi procedural and case law and has in essence confused the legal mandate which governs a grant of dismissal with the mandate which governs a court’s ability to attach litigation expense and attorney’s fees upon a grant of dismissal. Here, the circuit court judge properly assessed attorney’s fees as a curative condition to the plaintiff’s motion to dismiss under M.R.C.P. 41(a)(2). BellSouth also argues that the circuit court’s findings of fact did not support the attorney’s fees award it granted. While the court has considerable discretion in determining whether to assess fees, and if so, in what amount, this discretion must be predicated on facts. The reasonableness of attorney’s fees is governed by Rule 1.5(a) of the Mississippi Rules of Professional Conduct and these guidelines are unambiguous. In this case, the circuit court judge not only failed to make any substantive findings of fact, he made a blanket endorsement of Hinds County’s attorney’s fee submission without making any kind of reasonableness determination. Therefore, the cases are remanded to the circuit court to reconsider the issue of the amount of attorney’s fees and make appropriate findings of fact and conclusion of law to support any such award. |
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