The Carl Ronnie Daricek Living Trust v. Hancock County
| Docket Number: | 2009-IA-01513-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 05-13-2010 Opinion Author: Randolph, J. Holding: Affirmed and remanded |
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| Additional Case Information: |
Topic: Eminent domain - Constitutionality of Seawall Act - Section 65-33-1 - Section 65-33-23 - Due process - Repeal of Act - Real Property Acquisition Policies Act - Condemnation - Section 43-37-3(h) - Jury trial - Section 11-27-1 Judge(s) Concurring: Waller, C.J., Carlson and Graves, P.JJ., Dickinson, Lamar, Kitchens, Chandler and Pierce, JJ. Procedural History: Interlocutory Appeal; Bench Trial Nature of the Case: CIVIL - CONSTITUTIONALITY OF STATUTE, EMINENT DOMAIN |
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| Trial Court: |
Date of Trial Judgment: 08-31-2009 Appealed from: Hancock County Circuit Court Judge: Lawrence P. Bourgeois, Jr. Disposition: Hurricane Katrina severely damaged the seawall protecting Beach Boulevard in downtown Bay Saint Louis. 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). 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. The Hancock County Board of Supervisors proceeded to condemn the property under the Seawall Act. All three landowners responded with claims for compensation as provided for in the statute. 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 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. In August 2009, the circuit court heard arguments and issued an order affirming the actions of the board. Under the Seawall Act, the circuit court found that the board had provided the landowners due and legal notice. The circuit court also found that, if thelandowners desire a jury trial on the issue of damages, the Seawall Act entitles them to such a trial. Case Number: 09-400 |
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| Consolidated: Consolidated with 2009-IA-01514-SCT Ernest Beckemeyer, III v. Hancock County, Mississippi, Acting By and Through Its Board of Supervisors and the Hancock County Road Protection Commission; Hancock Circuit Court; LC Case #: 09-398; Ruling Date: 08/31/2009; Ruling Judge: Lawrence Bourgeois, Jr.; Consolidated with 2009-IA-01515-SCT 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; Hancock Circuit Court; LC Case #: 09-399; Ruling Date: 08/31/2009; Ruling Judge: Lawrence Bourgeois, Jr. | ||
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | The Carl Ronnie Daricek Living Trust |
VIRGIL G. GILLESPIE |
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| Appellee: | Hancock County, Mississippi, Acting By and Through Its Board of Supervisors and the Hancock County Road Protection Commission | KARL CRAWFORD HIGHTOWER | ||
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| Topic: | Eminent domain - Constitutionality of Seawall Act - Section 65-33-1 - Section 65-33-23 - Due process - Repeal of Act - Real Property Acquisition Policies Act - Condemnation - Section 43-37-3(h) - Jury trial - Section 11-27-1 |
| Summary of the Facts: | 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. |
| Summary of Opinion Analysis: | Issue 1: Constitutionality of Seawall Act The landowners argue that the 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. The Legislature devoted an entire chapter of thirty-six sections of the Mississippi Code, sections 65-33-1 to 65-33-71, 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. Section 65-33-1 grants a board of supervisors the power to build and maintain a seawall if necessary to protect a public road or street. Section 65-33-23 clothes 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. 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. 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. 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. Thirty-days’ notice is constitutionally sufficient. The Seawall Act allows for an opportunity to be heard at a meaningful time and in a meaningful manner. Landowners may submit a written claim, accompany the assessors, appeal legal issues to the circuit court, and request a jury trial on damages. 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. Issue 2: Repeal of Act The landowners seek application of the Real Property Acquisition Policies Act (enacted in 1972) to the exclusion of the Seawall Act (enacted in 1924). The county acted under the authority granted by the Seawall Act, but conceded that the RPAPA also applies. 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. The RPAPA did not explicitly repeal the Seawall Act, nor does it refer to the Seawall Act in any way. In order for a subsequent act to repeal a former one expressly, it must point out the statute repealed with sufficient certainty. Although not expressly repealed, the Seawall Act might have been repealed by implication, if it conflicts with the RPAPA. There must be a plain and unavoidable repugnancy between statutes before one may be said to have repealed the other by implication. 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. The RPAPA has requirements regarding the amount of compensation, while the Seawall Act does not. The Seawall Act is not in conflict with the RPAPA. 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). The Seawall Act and the RPAPA are not hopelessly in conflict. Issue 3: Condemnation The condemnation was carried out in a manner prescribed by law under the Seawall Act and in compliance with applicable portions of the RPAPA. 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, the procedures to date have not been in derogation of the constitutional rights of the landowners. According to the landowners, any procedural shortcoming on the part of the county requires a remand to the board. 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. Some of the RPAPA clauses being inapplicable, 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, section 43-37-3(h), was followed. There were formal condemnation proceedings regarding this interest in real property to be acquired by exercise of power of eminent domain. 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. Issue 4: Jury trial Given the outcome of the other issues, it was not error for the circuit court to find that the landowners are entitled, upon request, to a jury trial in circuit court. The landowners seek application of the Eminent Domain Act’s prohibition of using enhancement as an offset to a compensation amount. However, as provided by section 11-27-1, the Act is applicable except as elsewhere specifically provided under the laws of the state of Mississippi. 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. 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. |
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