Pearson's Fireworks, Inc. v. City of Hattiesburg


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Docket Number: 2010-CA-00495-COA

Court of Appeals: Opinion Link
Opinion Date: 07-26-2011
Opinion Author: Maxwell, J.
Holding: APPEAL DISMISSED

Additional Case Information: Topic: Declaratory judgment - Regulatory-takings claim - M.R.C.P. 54(b) - M.R.C.P. 56 - M.R.A.P. 5
Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Barnes, Ishee, Roberts and Russell, JJ.
Concurs in Result Only: Carlton, J.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - OTHER

Trial Court: Date of Trial Judgment: 01-04-2010
Appealed from: Lamar County Circuit Court
Judge: Prentiss Harrell
Disposition: CITY ORDINANCE AGAINST SALE OF FIREWORKS UPHELD
Case Number: 2008-299

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Pearson's Fireworks, Inc.




LAWRENCE CARY GUNN JR., JOSEPH H. MONTGOMERY



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: City of Hattiesburg, Mississippi CHARLES E. LAWRENCE JR.  

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    Topic: Declaratory judgment - Regulatory-takings claim - M.R.C.P. 54(b) - M.R.C.P. 56 - M.R.A.P. 5

    Summary of the Facts: In 2008, Pearson’s Fireworks, Inc. brought three claims against the City of Hattiesburg. Pearson’s sought (1) a declaratory judgment that the city ordinance prohibiting the sale of fireworks was unenforceable against it, (2) damages for the “regulatory taking” of its business, should the city ordinance be declared enforceable, and (3) injunctive relief preventing Hattiesburg from closing its business until the resolution of its first and second claims. In 2010, the circuit court granted summary judgment in favor of Hattiesburg because the city ordinance was enforceable against Pearson’s. But the circuit court did not address Pearson’s damages claim. Pearson’s appeals.

    Summary of Opinion Analysis: The record shows Pearson’s was careful to preserve its right to proceed on its regulatory-takings claim if its declaratory-judgment claim was denied. It is clear the circuit court simply did not address the regulatory-takings claim in January 2010 because the parties had agreed the declaratory-judgment action should be resolved first. Because the judgment Pearson’s appeals from did not adjudicate all of Pearson’s claims, nor was it certified as a final judgment under M.R.C.P. 54(b), the appeal is dismissed for lack of jurisdiction. Although M.R.C.P. 56 permits summary judgment on specific claims, it must be read in conjunction with Rule 54(b), which provides a grant of partial summary judgment is interlocutory without a Rule 54(b) certification. An interlocutory order is only appealable if the Mississippi Supreme Court grants permission under M.R.A.P. 5. Pearson’s neither sought nor was afforded permission under Rule 5 to proceed with an interlocutory appeal.


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