Howell v. Bd. of Supervisors of Jefferson Davis County
| Docket Number: | 2010-CA-00717-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 08-16-2011 Opinion Author: Maxwell, J. Holding: Reversed and remanded |
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| Additional Case Information: |
Topic: Contract - Notices of appeal - Section 11-51-75 - Jurisdiction - Alternate bidder - Due process violation - Section 31-7-13 Judge(s) Concurring: Lee, C.J., Myers, Barnes and Ishee, JJ. Non Participating Judge(s): Carlton, J. Dissenting Author : Irving, P.J. Dissent Joined By : Griffis, P.J., and Roberts, J., and joined in part by Russell, J. Concur in Part, Dissent in Part 1: Russell, J., concurs in part and dissents in part without separate written opinion Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - CONTRACT |
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| Trial Court: |
Date of Trial Judgment: 04-02-2010 Appealed from: Jefferson Davis County Circuit Court Judge: Prentiss Harrell Disposition: AFFIRMED THE BOARD OF SUPERVISORS’ DECISION TO AWARD A CONTRACT TO ANOTHER BIDDER Case Number: A2009-09P |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Freda Howell d/b/a Lickity Splitz |
VICTOR A. DUBOSE
ORVIS A. SHIYOU JR. |
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| Appellee: | Board of Supervisors of Jefferson Davis County, Mississippi | ROBERT E. SANDERS | ||
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: | Contract - Notices of appeal - Section 11-51-75 - Jurisdiction - Alternate bidder - Due process violation - Section 31-7-13 |
| Summary of the Facts: | In 2009, the Jefferson Davis County Board of Supervisors selected Freda Howell, doing business as Lickity Splitz, as the “primary” bidder on a contract to provide catered meals to the County’s prisoners. But after a dissatisfactory visit by the sheriff and several Board members to Lickity Splitz’s facility, Howell received a letter by the Board’s attorney notifying Howell that the County would be using the services of another bidder. At its next meeting, the Board voted to use the “alternate” bidder. The Board did not notify Howell of this meeting or provide her an opportunity to address the Board’s concerns. Howell appealed, and the circuit court affirmed. Howell appeals. |
| Summary of Opinion Analysis: | Issue 1: Notices of appeal Section 11-51-75 provides that any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village, may appeal within ten days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision. Compliance is mandatory and jurisdictional. Howell filed her first notice of appeal on January 20, 2009, the same day the Board decided to use Bassfield Texaco’s services instead of Howell’s. But her notice stated she “was notified of such decision by letter of the Board’s Attorney dated January 9, 2009, which was received by [her] on January 12, 2009.” A board of supervisors can act only as a body, and its act must be evidenced by an entry on its minutes. Because the January 9 letter was neither a Board decision nor evidence of a Board decision, Howell could not appeal from the letter under section 11-51-75. Instead, the first appealable act of the Board was made during its January 20, 2009 meeting, as evidenced by the minutes from that meeting. The Board took the very action indicated by the letter. Therefore, despite indications Howell filed her notice of appeal before the Board acted, the trial court properly viewed her notice of appeal as being filed after, and in response, the Board’s January 20, 2009 action. The circuit court ignored the fact Howell filed her second notice twenty days after the Board’s January 19, 2010 meeting because the Board’s minutes had not yet been assigned a book and page number. But this circumstance in not relevant to whether Howell’s second notice was timely. The ten-day period for appeal begins to run when a board adjourns the meeting during which the decision being appealed is made. Howell did not file her second notice of appeal within ten days of the Board’s January 19, 2010 meeting in which the Board amended its minutes. But Howell’s appeal does not depend on this untimely second notice because the circuit court retained jurisdiction pending compliance with its remand order. The circuit court’s December 2009 remand order was not a final judgment to affirm or reverse the Board’s decision. Instead, it ordered the Board to include further findings in its minutes because the record before the circuit court was inadequate. Therefore, the circuit court retained jurisdiction through the entrance of its final judgment in April 2010. Thus, the circuit court had appellate jurisdiction over the Board’s January 20, 2009 and January 19, 2010 actions. Issue 2: Alternate bidder Howell argues that the Board’s decision to use the alternate bidder is void because it was illegally made outside a properly convened meeting. She relies on the letter’s language that the Board “has decided” to use the alternate bidder. The letter is not evidence of an illegal action by the Board. The decisions to be executed or the contracts to be awarded by the board must be determined or decided upon only in or at a lawfully convened session, and the proceedings must be entered upon the minutes, of the board or commission. Therefore, the Board could not make a decision regarding Howell’s contract outside of a properly convened meeting. The Board properly amended its January 5 and 20, 2009 minutes, in compliance with the circuit court’s order. The circuit court remanded the issue of the Board’s January 5 and 20, 2009 decisions to incorporate more detailed findings into the record. And, the Board complied by providing a more accurate and detailed explanation of its decisions without inserting new reasons why it selected and then rejected Howell. This is a proper exercise of the Board’s authority. However, the Board should have provided Howell notice of the meeting and an opportunity to address the sheriff’s and Board’s concerns over Lickity Splitz’s services. In designating Howell as the primary bidder, the Board conferred on Howell a vested property interest entitled to the constitutional protection of due process. Based on a plain reading of section 31-7-13(f), this alternative-bid provision does not apply to all commodities but only “commodities for public works.” “Public works” is defined as structures (such as roads or dams) built by the government for public use and paid for by public funds. Because Howell was not providing “commodities for a public works,” this was not the type of contract subject to the alternative-bid provision. Thus, the circuit court’s judgment is reversed and remanded to provide Howell with proceedings that afford her procedural due process—namely, the opportunity to defend against the Board’s claims that it justifiably stopped using her meal service—as well as comply with section 31-7-13. On remand, Howell may present evidence of both her alleged contract damages and any actual damages resulting from the procedural due-process violation. |
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